State system for background checks divides gun advocates

By: - June 29, 2021 6:15 am
A man looks at guns mounted on a wall at a gun shop

When Congress passed the Brady Handgun Violence Prevention Act of 1993, it gave states a choice: They could accept a mandatory five-day waiting period for all handgun sales or institute a state system of background checks for handgun purchasers. (Getty Images)

Five years after May 13, 2016 – the night when two Manchester police officers were shot and injured by an assailant – many of the details leading up to the violence remain unknown. But one thing is clear: The man who fired the shots was not supposed to have a gun.

Six weeks before the shooting, Ian MacPherson purchased a handgun at Chester Arms in Derry, court records show. It was his second attempt to do so; the first time had been delayed while the seller contacted the New Hampshire State Police’s Gun Line, a requirement for all handgun purchases in the state.

But the Gun Line had been slow to respond, and crucial information about MacPherson’s mental health history and experience in the court system had failed to pass from local law enforcement to State Police to the firearms shop itself. The second time the 34-year-old attempted to purchase the handgun, the sale went through. 

Six weeks later, MacPherson fired on officers who were attempting to stop him in connection with a gas station robbery. 

The non-fatal attack – which led to a sentence of five years in the state’s secure psychiatric unit for MacPherson and a lawsuit by the officers against the gun shop and the state – has been held up as a cautionary tale for the state’s Gun Line.

This year, it’s one of the cases that some firearms advocates are citing to end the Gun Line entirely.

Senate Bill 141

A bill to eliminate New Hampshire’s state-run background check system for handguns is heading to Gov. Chris Sununu’s desk this summer, but its fate remains uncertain.

Senate Bill 141 would scrap the Gun Line in favor of the FBI criminal background check system. Under the bill, federal firearm licensees would no longer need to call the State Police; instead sellers would simply call the FBI and run the names of would-be handgun buyers through the National Instant Criminal Background Check System (NICS).

To supporters, eliminating the state’s role would allow the gun stores to bypass a beleaguered and inaccurate system in favor of a federal database that could work faster while still stopping prohibited buyers. 

“There were just an unbelievable number of problems going on with the Gun Line,” said Sean List, an attorney who helped author the bill. “The federal system works, we have to use the federal system anyway, so why wouldn’t we go directly to the feds?”

But the bill’s opponents argue that the Gun Line provides a needed, if imperfect, check against holes in the FBI’s system – allowing state officers to chase down information on buyers whose data is incomplete. 

And a small contingent of gun rights advocates say the alternative would be worse.

“We should try and fix it before we throw it away,” said J.R. Hoell, the corporate secretary of the New Hampshire Firearms Coalition. “And we have seen significant improvement.”

Publicly, Gov. Chris Sununu has said he’s undecided. 

“I’m not firm on it one way or another yet, to be honest with you,” he said at a June 17 press conference. 

Now, Second Amendment supporters on both sides are pressing for his support. 

A complex system

On the surface, New Hampshire’s Gun Line appears simple. 

Currently all New Hampshire firearms sales must be cross-checked through the FBI background checks, NICS, before they proceed. 

For long guns, rifles, shotguns, and others, the firearms dealer or seller will call up the FBI’s NICS system and run the name of the interested buyer. 

If the buyer is listed in one of nine prohibited categories – ranging from having been imprisoned for more than one year to being undocumented in the U.S. to being the subject of a domestic violence or stalking protective order – the sale cannot go through. 

But handgun sales are in a separate category, with higher scrutiny. Sales of handguns must go to the state’s Department of Safety for an additional records request of the would-be buyer. Staff at the department’s “Gun Line” will conduct their own NICS background check, but will also check the name against a state database of prohibited people.

That process can take longer; critics say a firearms dealer might wait hours or days to hear back from the Gun Line. In recent months, those wait times have grown much longer, firearms advocates say. 

“The Gun Line has created a system where a law-abiding citizen has waited, in many cases, six to 10 months to be cleared to buy a handgun that they have the constitutional right to own,” said Sen. Bob Giuda, a Warren Republican, during a Senate hearing in February.

“The FBI is paid through taxes to run firearm-related background checks pursuant to federal law,” Giuda continued. “Why is New Hampshire using state funds to add an extra layer of government bureaucracy?”

The current system emerged out of a demand from Washington. 

When Congress passed the Brady Handgun Violence Prevention Act of 1993, it gave states a choice: They could accept a mandatory five-day waiting period for all handgun sales or institute a state system of background checks for handgun purchasers.

New Hampshire chose the second option, setting up its own system – the Gun Line – to satisfy the statutory requirement. 

The statute expired in 1998, but the Gun Line has persisted to the present day.

Proponents of eliminating the Gun Line point to that history as evidence that the state system is  a relic. Opponents say the system, flawed as it may be, is a key layer of security over handgun purchases. 

Accuracy concerns 

Beyond response times, advocates for ending the Gun Line have another qualm with it: accuracy.

By law, New Hampshire’s court system is obligated to enter domestic violence protective orders, stalking orders, and other records in the National Crime Information Center, which passes the information to NICS.

But on any given day, 50 to 70 people who have domestic violence orders filed against them do not have dates of birth logged with their name, according to Sarah Freeman, domestic violence prevention manager at the New Hampshire Judicial Branch, during testimony to lawmakers in February. 

That’s where the Gun Line is supposed to help. State Police officers maintain a separate list of those who may have fallen between the cracks – the people who have been served a protective order but for whom the court system does not have a date of birth. When a gun store employee calls in a potential handgun buyer to the Gun Line, state officers check the name against both the NICS database and their own additional database. 

The system is meant to provide a double layer of defense to catch those buyers that NICS would not. But some firearms supporters say that defense is conceptually flawed.

Rather than rely on a second system, the New Hampshire court system should work to make sure that the NICS system is wholly accurate in the first place, Gun Line opponents say.

“The whole argument that you need to have this list for incomplete data: No. There needs to be complete data,” List said. 

The inconsistencies between databases can slow the process down, stopping people who share a name with a person on the Gun Line list from obtaining firearms until the Gun Line can determine who they are, List says. 

But the patchy records can also mean that those who should be denied a firearm fall through the cracks, List and others argue. 

If the Gun Line takes more than three days to return an answer to the firearms store, the store is allowed under federal law to sell the gun anyway, though most stores choose not to.

Meanwhile firearms supporters have taken issue with what they see as inconsistent standards. Purchasers of handguns must go through a separate state system. Buyers of long guns and rifles can acquire their weapons faster, through the streamlined federal approach. 

“The same person, though the State Police may block them from buying a handgun . . . they wouldn’t be prohibited from going in and buying a rifle or shotgun,” List said. “It just made no sense.”

But others say the entire point of the Gun Line is to step in and mitigate the existing gaps in the system.

Advocates for domestic violence victims say eliminating the Gun Line could cause those 50 to 70 people to be missed during background checks. 

Pamela Keilig, the public policy specialist at the New Hampshire’s Coalition Against Domestic and Sexual Violence, has expressed concerns over the potential of reverting to the NICS system without an additional state buffer.

“A background system with loopholes could have deadly consequences for victims of domestic violence and their children,” Keilig said. 

Pandemic slowdown

The urgency to end the Gun Line was spurred by COVID-19. 

When the coronavirus hit the state, firearms purchase authorizations slowed to crawl. Amid a surge in interest for guns during the pandemic, the Gun Line began to suffer from its structural problems, List and others say. 

More people attempted to buy handguns. More firearms dealers and stores sent requests to the Gun Line. And more buyers and sellers experienced long wait times.

In January, after complaints to the Department of Safety from gun stores and lawmakers, the department rolled out some policy changes designed to reduce the wait times. They implemented a call line with a queue. They streamlined some of the investigative tasks used to clear certain queries. 

In the months since, some have been satisfied with those reforms, which all sides agree have reduced the waiting. 

“Currently, the Gun Line has performed significantly better than it was when this whole thing started,” Hoell said. “That was the root cause, and their performance has been corrected.”

But others, like former state Sen. Bob Clegg, have called the reforms temporary and insufficient, arguing that they emerged only under threat that the whole program could be ended by the Legislature. 

“Over the years the Gun Line has consistently – whenever we go to take it away, the Gun Line suddenly starts doing its job,” Clegg said.

Appeals to Sununu

As Republican lawmakers advanced a bill to end the Gun Line, Sununu has kept his position to himself. 

“I understand there’s strong arguments on both sides,” he said during a June 17 press conference.

The governor continued by expressing skepticism about deferring the process entirely to the FBI. And he said that the Department of Safety had “done a very good job” with speeding up the state process. 

But he said the processing concerns could prompt him to sign the bill. 

“If I’ve defined myself as anything, it’s someone who just doesn’t trust Washington very much, so I have concerns over that,” he said. “Would it speed up a process or secure a process? It could.”

As he awaits the bill’s arrival, Sununu said he would be reaching out to members of the FBI for further advice. 

“If we think Washington can do it, we’ll move forward with it,” he said. “But if we have concerns that they’re going to just slow the system down and create a problem for owners, for individuals who want to purchase a firearm, then that would be a problem.”

Firearms rights groups are lining up to try to convince him. 

Supporters of Gun Owners of America, the National Rifle Association, the National Shooting Sports Foundation, and the Independent Firearms Owners Association have come out in support of ending the Gun Line. 

A smaller coalition of Second Amendment advocates who oppose the bill – including Hoell and Executive Councilor Dave Wheeler – are pressing Sununu to keep the state’s system and continue its reforms. 

“It’s the short view versus the long view,” Hoell said. “Those who want it fixed right now are taking a short-view approach. Those who wanted to keep it local are taking a long-view approach: We don’t trust the federal government.”

A spokesman for Sununu, Ben Vihstadt, said Monday that Sununu had not yet made up his mind.

“The governor continues to have conversations with officials at the New Hampshire Department of Safety, who have been in contact with their counterparts in Washington, D.C., to ensure that any change to the gun line that might occur is done so in the right manner and keeps everyone safe,” Vihstadt said.

Whatever the governor decides, advocates on all sides of the issue agree that the state needs to improve what it reports to the NICS database. 

“If this bill passes, the state must routinely assess the system to ensure that those who are prohibited from purchasing firearms due to domestic violence are not inadvertently sold firearms in the State of New Hampshire,” Keilig said.

Clegg shares that concern. But to him the Gun Line is not helping the state fix the system. 

“With the courts not doing their proper job and getting the information and reporting it to the NICS system, there are people who, possibly, in New Hampshire, are buying rifles and shotguns that shouldn’t be,” Clegg said.

“Getting rid of the Gun Line,” he added, “forces the court to do its job.” 

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Ethan DeWitt
Ethan DeWitt

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel.