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20–269 PDF 2016

S. HRG. 112–942 

THE FIX GUN CHECKS ACT: BETTER STATE AND 

FEDERAL COMPLIANCE, SMARTER ENFORCEMENT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME AND TERRORISM 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

NOVEMBER 15, 2011 

Serial No. J–112–52 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON CRIME AND TERRORISM

SHELDON WHITEHOUSE, Rhode Island, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

DICK DURBIN, Illinois 

AMY KLOBUCHAR, Minnesota 

CHRISTOPHER A. COONS, Delaware 

JON KYL, Arizona, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

STEPHEN LILLEY, Democratic Chief Counsel 

STEPHEN HIGGINS, Republican Chief Counsel 
(III) 

C O N T E N T S 

NOVEMBER 15, 2011, 2:34 P.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois, 

prepared statement .......................................................................................... 80 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 5 

Schumer, Hon. Chuck, a U.S. Senator from the State of New York ................... 1 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 10 

WITNESSES 

Witness List ............................................................................................................. 31 

Anderson, Heather A., Section Manager, Criminal Records Division, Washington State Patrol, Olympia, Washington ........................................................ 13 

prepared statement .......................................................................................... 32 

Cuthbertson, David, Assistant Director, Criminal Justice Information Services 

Division, Federal Bureau of Investigation, Washington, DC ........................... 8 

prepared statement .......................................................................................... 37 

Feinblatt, John, Chief Advisor to Mayor Michael R. Bloomberg for Policy 

and Strategic Planning, New York, New York .................................................. 11 

prepared statement .......................................................................................... 45 

Kopel, David B., Adjunct Professor, Advanced Constitutional Law, Denver 

University, Strum College of Law, Denver, Colorado ....................................... 17 

prepared statement .......................................................................................... 47 

Maisch, Patricia, Tucson, Arizona .......................................................................... 15 

prepared statement .......................................................................................... 76 

QUESTIONS 

Questions submitted to David Cuthbertson by Senator Grassley ....................... 82 

Questions submitted to David Cuthbertson by Senator Klobuchar .................... 85 

Questions submitted to Prof. David B. Kopel by Senator Hatch ......................... 84 

ANSWERS 

Responses of David Cuthbertson to questions submitted by Senators Grassley 

and Klobuchar ...................................................................................................... 86 

Responses supplement—redacted of David Cuthbertson to questions 

submitted by Senators Grassley and Klobuchar ............................................... 91 

Responses of Prof. David B. Kopel to questions submitted by Senator Hatch ... 94 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Bloomberg, Hon. Michael R., Mayor, New York, New York, 

prepared statement .......................................................................................... 35 

Electronic correspondence from Ranking Member Chuck Grassley to 

Hon. Hillary R. Clinton, Secretary of State, U.S. Department of State, 

November 15, 2011, and Kenneth Melson, Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, June 

16, 2011 ................................................................................................................. 97 

Veterans Second Amendment Protection Act, Hon. Richard Burr, a U.S. Senator from the State of North Carolina, and Hon. Jim Webb, a U.S. Senator 

from the State of Virginia, October 13, 2011, press release ............................. 96 

(1) 

THE FIX GUN CHECKS ACT: BETTER STATE 

AND FEDERAL COMPLIANCE, SMARTER 

ENFORCEMENT 

TUESDAY, NOVEMBER 15, 2011 

UNITED STATES SENATE, 

SUBCOMMITTEE ON CRIME AND TERRORISM, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:34 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Chuck Schumer, 

presiding. 

Present: Senators Schumer, Whitehouse, Grassley, Sessions, and 

Hatch. 

OPENING STATEMENT OF HON. CHUCK SCHUMER, 

A U.S. SENATOR FROM THE STATE OF NEW YORK 

Senator SCHUMER. The hearing will come to order. I want to welcome the witnesses, and there are many gun violence victims and 

family members in the audience. I would like to thank you all for 

being here. Maybe you can stand up—no applause, please—so we 

can acknowledge you. Please stand if you are here. Thank you all 

very much for being here. 

First, I want to thank my friend and colleague Senator 

Whitehouse. He is the Chair of this Committee. He convened this 

hearing, and he is allowing me as sponsor of the bill to serve as 

Chairman for the day. 

Making sure that guns stay out of the hands of criminals, drug 

addicts, violent abusers, and the mentally ill has been important 

to me as long as I have been in Congress. I believe there is a right 

to bear arms, but I also believe it is not absolute, just like the 

First, Third, Fourth, Fifth, Sixth, et cetera, Amendments are not 

absolute. And just as we have limits on the First Amendment— 

anti-pornographic laws, laws that say cannot falsely scream ‘‘Fire’’ 

in a crowded theater, libel laws—there are reasonable limits on the 

Second Amendment. I do not believe it should be through a pinhole 

and then see the First, Third, Fourth, Fifth, and Sixth Amendments expansively, but I also believe that limits are very reasonable, and we are talking among the most reasonable limits here in 

the bill that we have professed. And that is why I have worked 

hard to make sure that the National Instant Criminal Background 

Check System was enacted, implemented, and in place. Since it 

went online in 1998, the background check system has stopped 
2 

more than 1.6 million people who are prohibited by law from owning guns from going through with their purchases. 

I want to say that again. That is 1.6 million people, criminals, 

fugitives from justice, domestic abusers, drug addicts, might not 

have been prohibited from buying guns if not for this system. 

And it is my belief that NICS is the textbook example of a law 

that is well balanced and well tailored. It poses no threat to millions and millions of law-abiding gun owners across the country 

who do have the right to bear arms, while keeping guns out of the 

hands of those who are most likely to misuse them to terrible ends. 

Now, let me be clear about this. I understand that in large parts 

of my State of New York and across the country gun ownership is 

a way of life, and I respect that. The Heller decision, unlike some 

of my colleagues on this side of the aisle, was a decision I welcomed 

because I have consistently, as I mentioned, talked about the right 

to bear arms in the Constitution. I believed it in before Heller, but 

as I mentioned, no amendment is absolute. Reasonable limitations 

are placed on the First, Third, Fourth, Fifth, and Sixth Amendments, and should be. So should they be on the Second Amendment. And some of my friends on the other side of the aisle who 

simply believe that there should be no limit whatsoever—we once 

had a witness come before a House Subcommittee on Judiciary who 

said people should have the right to buy bazookas or tanks—go a 

little far. 

So NICS has consistently been viewed as an appropriate way to 

carry out the Government’s aim of protecting individuals’ rights 

and keeping people safe. It meets the balancing test, that there is 

a constitutional right but it has to be balanced. Ever since it replaced State-led checks that were struck down by the Supreme 

Court in U.S. v. Printz, getting NICS in place was a major watershed event in public safety. I am proud of my role in crafting it 

when I was in the House of Representatives. 

But just having it in place and on the statute books is not 

enough. We have to make sure that States and Federal agencies 

are actually turning in the records that they need to turn in. The 

background check database is only as good as the records it stores. 

Today we are going to examine NICS’ successes and failures so 

far and examine how we can close gaps in our system. Here are 

some facts from the FBI: 52 out of 61 Federal agencies have reported no mental health records into NICS; 58 agencies have reported zero records of drug abusers, including the DEA, the Department of Defense, and ICE; 47 out of 61 have reported no 

records at all, although I understand that some have reported to 

another database, the Interstate Identification Index, or the III; 23 

States and the District of Columbia have submitted fewer than 100 

mental health records to the NICS database; 17 States have submitted fewer than 10 records and 4 States have submitted none at 

all. 

GAO estimates that there are still 1.5 million relevant mental 

health records outstanding, so the data suggests that our gun background check system is still riddled with loopholes, and this is only 

the beginning. 

The truth is we do not even know the full extent of the noncompliance with the NICS law. That is because many States have 
3 

failed to even give an estimate to the Federal authorities on how 

many relevant records exist, let alone turn these records over to 

the national database. This has apparently prevented the Attorney 

General from being able to provide a comprehensive list of which 

States are in compliance with the NICS reporting requirement and 

which are not. 

This lack of accountability is totally unacceptable. 2011 was the 

first year that the Attorney General could withhold 3 percent of a 

State’s Byrne/JAG funding at his discretion for having fewer than 

50 percent of its relevant records in the NICS database. So far the 

Attorney General has declined to do this. 

So today I am calling on Attorney General Holder to fully enforce 

the law and begin cutting funds for States that fail to meet the reporting requirements. We will never get States to comply with the 

reporting requirements if the Federal Government is not following 

through and imposing the penalties. Right now, based on numbers 

that we do have so far, at least eight States would risk losing dollars if the Justice Department were fully enforcing the law. They 

are—since it is not Iowa, I will be happy to read the list—Alaska, 

Delaware, Georgia, Kentucky, Louisiana, New Hampshire, 

Vermont, and Wyoming. There are likely to be many more. 

We cannot continue to turn a blind eye on this failure to comply 

with the law. If we do, we’ll be continuing a very bad trend. As a 

Nation, it seems we are moving backward when it comes to this 

area of protecting people from people who should not have guns. 

Earlier this week, the New York Times reported on how many 

States are actively taking steps to make it easier for felons to regain their right to own a gun. In some States it is now easier for 

a felon to legally reacquire a gun than to regain his or her right 

to vote. 

In addition, as soon as tomorrow, the House of Representatives 

is expected to approve a concealed-carry measure. After that it 

would be sent to the Senate. Two years ago, we defeated this measure on a very close vote. This time I am not so sure what will happen. The legislation would take the carefully crafted gun laws in 

New York and other States and basically tear them up. It seems 

perverse that the first gun-related measure that this Congress 

plans to pass since the Tucson shooting is one that seeks to dismantle States’ abilities to protect their own citizens. It is like a bad 

dream. 

Clearly, our Nation’s gun laws are under assault enough as it is, 

so we should not make matters worse by shrinking from the full 

enforcement of the laws that remain on the books. That is why it 

is time to toughen our approach when it comes to NICS. 

In 2007, we responded to the horrible tragedy at Virginia Tech 

in which 32 people were killed by a gunman who had been adjudicated mentally ill, but whose records never made it into the background check system. I took the lead in drafting improvements to 

NICS to increase incentives of States to get their records into the 

system and to allow the Attorney General to withhold benefits from 

States that did not. This law, the NICS Improvement Amendments 

Act, also incentivizes States to give those who have been adjudicated to be mentally disabled to have that judgment removed 
4 

from their record if they are no longer dangerous to themselves or 

others. 

The law is well balanced. I actually negotiated many provisions 

of it with Senator Coburn from Oklahoma, who generally does not 

agree on the issue of gun control with me, and it was passed with 

the support of the National Rifle Association. Most important, the 

NICS Improvement Amendments Act had a palpable impact on the 

quality of the Federal background check process. For years after 

the mass shooting at Virginia Tech, the total number of Federal 

and State mental health records in the NICS Index has roughly tripled, from 500,000 to 1.3 million. However, there are still about 1.5 

million mental health records missing, according to GAO estimates. 

In addition, it remains the case that very few Federal agencies 

have reported any relevant records into the NICS database. I am 

very sorry to say that, despite its successes, the NICS database, despite improvements, remains dangerously incomplete. 

For example, it is entirely possible that Jared Loughner might 

not have bought the Glock that so tragically killed six people and 

wounded 13 others, including Congresswoman Gabrielle Giffords 

that horrible day in Tucson, almost 11 months ago, if the army had 

reported the fact that he admitted drug use and was denied enlistment into the army. If that had been in the NICS database, he 

would have been denied the right to purchase a gun. 

I do not want there to be any more ‘‘what ifs.’’ We want to make 

sure that we marshal every resource we have at our disposal to 

make the background check database, which we all agree should 

exist, complete once and for all. 

Gun violence is irrevocable and tragic, but it seems even less understandable when there is a chance that it could have been prevented. That is why we have introduced the Fix Gun Checks Act 

here in the Senate. The bill would improve incentives for the States 

to report records that they have into the NICS database and require the Attorney General to start withholding funds from those 

that do not. 

Specifically, the bill would require DOJ to withhold 15 percent 

of a State’s Byrne/JAG money rather than allowing DOJ to withhold 4 percent of the money, beginning in 2013. 

The Fix Gun Checks Act would require everyone to redouble 

their efforts if States want to continue to receive grant money. In 

addition, this bill would also close the private sales loophole once 

and for all. An estimated 40 percent of gun sales are conducted by 

private sellers which are not licensed by the Federal Government. 

Our bill would require these sales to be subject to background 

checks as well. 

Finally, the bill would require each Federal agency to report to 

the Attorney General twice a year the relevant records it has in its 

possession. 

I know that a lot of you in this room have been deeply affected 

by this issue. I know the pain in your hearts. And I want to thank 

all of you for doing what is really the noble thing. Instead of simply 

cursing the darkness that I know envelops your life because of the 

losses that you have sustained, the injuries you have sustained as 

well, but instead you are trying to light a candle, and that is a 

noble thing. 
5 

So we are looking forward to hearing from the witnesses today 

to get to the bottom of how we can improve the background check 

system and get it working better for law-abiding citizens, and with 

that let me turn it over to Senator Grassley. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Like you, Mr. Chairman, substituting for another Senator, I am substituting for Senator Kyl, who is a Member 

of the Committee on Debt Reduction, and they are working very 

hard these next few days to get a recommendation to the Senate. 

I would ask consent that a number of documents I am going to 

refer to be placed in the record, and then I was going to refer to 

the—I was asking for permission to put some things in the record 

that I am going to refer to. 

Senator SCHUMER. Without objection, all of Senator Grassley’s 

materials will be put in the record at this point. 

[The information appears as a submission for the record.] 

Senator GRASSLEY. And I am not going to repeat what you said 

about the Virginia Tech thing because it was the genesis of legislation that passed both the House and Senate by unanimous consent. 

So, obviously, there was a strong feeling at that time of a need. 

Despite the strong bipartisan support, the NICS Improvement 

Act was, in fact, not a perfect bill, and I will give you a good example. It stripped thousands of veterans and their beneficiaries of 

their Second Amendment rights simply because they have a fiduciary appointed on their behalf. Oftentimes a fiduciary is appointed 

simply for managing disability compensation pensions or survivors. 

Under an interpretation by the Department of Veterans Affairs, 

veterans who have a fiduciary appointed are deemed ‘‘mentally defective,’’ are reported to the FBI’s NICS system and prohibited from 

purchasing firearms. Under the NICS Improvement Act, a bipartisan bill, we have around 114,000 veterans and their beneficiaries 

have been automatically denied Second Amendment rights. It is a 

terrible irony that veterans who have served their country on the 

battlefield, have been entrusted with our national security, and 

have been provided firearms by their very own Government while 

they were in uniform are the same people that this Improvements 

Act harmed by taking away Second Amendment rights, all without 

a hearing or formal adjudication. 

We just honored and celebrated Veterans Day last Friday, yet we 

are here debating new legislation to restrict Second Amendment 

rights of citizens without fixing the unintended consequences of our 

last major gun law. 

While the horrific events in Tucson are still fresh in our memories, as we discuss new gun control laws we also need to move forward on bipartisan legislation such as the Veterans Second Amendment Protection Act. Introduced by Senators Burr and Webb, this 

bill would fix the unintended consequences to the thousands of veterans caused by the Improvement Act. 

Today’s hearing offers us another opportunity to discuss illegal 

firearms trafficking and the Government’s efforts to stop it. At the 

forefront of this is the Department of Justice’s failed Operation 

Fast and Furious where the ATF knowingly allowed illegal pur-
6 

chasers to buy guns. The more that we learn about Fast and Furious, the more we have discovered that senior Justice Department 

officials knew or should have known about nearly 2,000 funds ending up in the hands of criminals, including drug cartels in Mexico. 

At the first House oversight hearing on Operation Fast and Furious, multiple ATF agents testified that fear spread through the 

Phoenix Field Division every time there was news of a major shooting incident. Specifically with regard to Congresswoman Giffords’ 

shooting, one agent said, ‘‘There was a state of panic, like ‘Let’s 

hope this is not a weapon from that case,’—‘that case’ meaning 

Fast and Furious.’’ 

The Fast and Furious operation was failed in concept design and 

execution. As the Attorney General said last week, it should never 

have happened, and the Justice Department officials that knew 

about this program, including those who allowed false statements 

to Congress, need to be held accountable. I thought it was fitting 

that late last week Attorney General Holder finally wrote the family of Agent Terry. In his letter, he stated he was sorry for their 

loss, although he refused to take responsibility for the Department’s role in Agent Terry’s death. 

At the root of Fast and Furious and a lot of rhetoric surrounding 

gun control legislation has been the gun-trafficking statistics provided by ATF. These unclear statistics have fueled the debate and 

contributed to undertaking such a reckless operation as Fast and 

Furious. 

For example, in 2009, both President Obama and Secretary of 

State Clinton stated that 90 percent of the guns in Mexico were 

from the United States, but that statistic later changed to 90 percent of the guns that Mexico submitted for tracing to ATF were 

from the United States. And now this year that number has become 70 percent of the guns submitted by the Mexican Government 

for tracing were from the United States. So you can reasonably 

ask: What are the real numbers? 

Articles discussing the 70-percent number misrepresent the facts. 

As I pointed out in a letter to then-ATF Acting Director Melson in 

June 2011. First, there are tens of thousands of guns confiscated 

at crime scenes annually in Mexico. The Associated Press stated in 

2009 that over 305,424 confiscated weapons are locked in vaults in 

Mexico. However, the ATF acknowledged to my staff in a briefing 

on July 29, 2011, that ATF does not have access to the vault in 

Mexico described in the story. 

ATF also acknowledges that only a portion of the guns recovered 

in Mexico are actually submitted to the U.S. for tracing. In a November 8, 2011, court filing, the chief of ATF’s Firearms Operations Division made a declaration saying, ‘‘It is important to note, 

however, that ATF’s e-trace data is based only on gun trace requests actually submitted to ATF by law enforcement officials in 

Mexico and not on all of the guns seized in Mexico.’’ 

That court filing further states that, ‘‘In 2008, of the approximately 30,000 firearms that the Mexican attorney general’s office 

informed ATF that it had seized, only 7,200, or about one-fourth, 

of those firearms were submitted to the ATF for tracing.’’ So if 

Mexico submits only 25 percent of the guns for tracing, then the 

statistics could be grossly inaccurate one way or the other. 
7 

The discrepancies in number do not stop there. The ATF also informed my staff that the e-trace-based statistics could vary drastically by a single word’s definition. For example, the 70-percent 

number was generated using a definition of ‘‘U.S.-sourced firearms’’ 

that includes guns manufactured in the United States or imported 

through the U.S. Thus, the 70-percent number does not mean that 

all the guns were purchased at a U.S. gun dealer and then smuggled across the border. It could simply mean that the firearms was 

manufactured in the United States. 

So when my staff asked ATF how many guns traced in 2009 and 

2010 were traced to the United States gun dealers, the numbers 

were quite shocking in comparison to the statistics we always hear. 

In 2009, of the 21,313 guns recovered in Mexico and submitted for 

tracing, only 5,444 were sourced to U.S. gun dealers. That is 

around 25 percent. For 2010, of the 7,971 guns recovered in Mexico 

submitted for tracing, only 2,945 were sourced to U.S. gun dealers. 

That is 37 percent. Either way, both are a far cry from the 70 percent we keep using, not to mention that guns in 2009 and 2010 

from gun dealers could include some of the nearly 2,000 firearms 

walked as a part of the Justice Department’s Operation Fast and 

Furious. 

So we need clearer data from ATF and from Mexico. Mexico 

needs to open up the gun vaults and allow more guns to be traced, 

not just the ones that they select. We need to know if military arsenals are being pilfered as a source, as media articles have claimed 

the State Department points to in diplomatic cables. 

To that end, I sent a letter today to Secretary of State Clinton 

seeking all diplomatic cables discussing the sources of arms from 

Mexico and Central and South America. I believe this information 

is relevant to Congress given I discovered a July 2010 cable as part 

of my Fast and Furious investigation. That cable, titled ‘‘Mexico’s 

Weapons Trafficking: The Blame Game,’’ seeks to dispel myths 

about weapons trafficking. Among other things, the State Department authors discussed what they perceived as ‘‘myth, an iron 

highway of weapons flows from the United States.’’ These cables 

are vitally important to Congress’ understanding of this problem. 

Further, given they appear in documents that ATF submitted to 

the Congress as part of Fast and Furious, there should be no reason for the State Department to withhold them as part of our legitimate oversight even if they are classified. 

There is a lot more to be said about the specific problem with the 

legislation that we are discussing today. I plan to ask some questions to flesh out some of these problems and make sure that we 

pass a bill that is more perfect than what we passed last time by 

a unanimous vote denying 114,000 veterans the right to bear arms. 

Senator SCHUMER. Thank you. I want to thank you, Senator 

Grassley, and we would welcome working with you. The last bill I 

think was a large improvement. It was bipartisan, as you mentioned, passed unanimously. I worked with Senator Coburn on it. 

But there are certainly ways it can be improved, both from the 

ways I am talking about and perhaps the ways you are talking 

about as well. So I would like to work with you on it. 

Senator GRASSLEY. Thank you. 
8 

Senator SCHUMER. Great. Now let me introduce our witnesses, 

and I want to welcome Senator Hatch to the hearing and thank 

him for attending. 

Our first witness is Assistant Director David Cuthbertson from 

the Federal Bureau of Investigation, where he leads its Criminal 

Justice Information Services Division and oversees the National Instant Criminal Background Check System, the NICS system. Prior 

to this position, he served as special agent in charge of the El Paso 

Division. He has investigated Mexican drug-trafficking organizations, white-collar crime, drug trafficking, and violent crime. Mr. 

Cuthbertson graduated magna cum laude from William Jewell College, where he earned a bachelor of science in business administration and economics. 

John Feinblatt is the chief advisor for policy and strategic planning for Mayor Michael Bloomberg of New York City. He previously served as New York’s criminal justice coordinator and in 

his current position leads the mayor’s efforts in national coalitions 

such as Mayors Against Illegal Guns to prevent access to illegal 

firearms in cities around the country, and Mayor Bloomberg was 

planning to attend but could not at the last minute because of the 

things people have read in the newspapers. And so we want to welcome Mr. Feinblatt and thank Mayor Bloomberg for his interest, 

which I know continues. 

Heather Anderson is the section manager for access and collision 

record system of the Washington State Patrol where she oversees 

efforts of the State to participate in the NICS database. She has 

worked in the law enforcement support field for 18 years and spent 

13 years with the Washington State Patrol. 

We are really honored to have Patricia Maisch, a survivor of the 

recent shooting in Tucson, Arizona. As you may remember, she 

wrestled a semiautomatic clip of ammunition out of Jared 

Loughner’s hands, the alleged shooter, thereby helping to end an 

already awful day, and almost certainly saving countless lives. She 

is from Tucson, Arizona, where she currently owns her own business as a heating and air conditioning contractor, and we particularly want to thank you for being here, Ms. Maisch, and for your 

heroism. 

Finally, David Kopel is an adjunct professor of advanced constitutional law at Denver University, Strum College of Law, the research director of the Independence Institute, and an associate policy analyst with the Cato Institute. He went to Brown University 

and received his J.D. from the University of Michigan Law School. 

Witnesses, your entire statements will be read into the record. I 

would ask each of you to keep your statements to 5 minutes. 

David Cuthbertson will lead off, and then we will go from his left 

to the end of the panel. Thank you. 

STATEMENT OF DAVID CUTHBERTSON, ASSISTANT DIRECTOR, 

CRIMINAL JUSTICE INFORMATION SERVICES DIVISION, 

FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, DC 

Mr. CUTHBERTSON. Good afternoon, Chairman Schumer, Senator 

Grassley, and Members of the Committee. It is my privilege to address you today regarding the role that record availability and completeness play in the operation of the National Instant Criminal 
9 

Background Check System, or NICS, and the continuing efforts of 

the FBI to increase the quality and quantity of information available to the NICS. 

Since it became operational in 1998, the NICS has been essential 

in ensuring that individuals prohibited from possessing firearms 

under Federal or State law do not acquire them from Federal firearms licensees. The ability of the NICS to effectively and efficiently 

determine firearm eligibility depends on the accuracy and completeness of the information made available to it. 

To strengthen the NICS, the NICS Improvement Amendments 

Act, or NIAA, was signed into law on January 8, 2008. Upon its 

passage, the FBI implemented a number of initiatives to intensify 

existing outreach efforts to assist States, tribes, Federal agencies, 

and departments in their efforts to identify and make available to 

the NICS firearms-prohibiting information. 

The FBI developed numerous resource and training materials, 

coordinated NIAA efforts with our Federal agency counterparts regarding administration of the NIAA, and has conducted internal 

outreach throughout the FBI regarding disposition and record reporting to the Interstate Identification Index, or III, and the National Crime Information Center, or NCIC. 

From May 2008 to September 2011, the FBI coordinated 15 external meetings with Federal agencies and departments, including 

the Department of Defense and branches of the military, regarding 

agency-held information needed by the NICS. Through extensive 

outreach efforts, the FBI has also provided over 30 NIAA training 

opportunities; participated in mental health conferences at the 

State and national level; dedicated staff to address technology, 

legal, and audit concerns; conducted approximately 25 meetings 

with State NIAA task forces, in addition to three regional meetings 

with numerous State agencies; and offered guidance on a variety 

of matters, including the development of a qualifying relief from 

mental health disabilities program. 

Comprehensive and ongoing outreach efforts to educate local, 

State, Tribal, and Federal agencies about the NICS and the overall 

importance of the NIAA efforts are producing success and strengthening partnerships. Since 2009, 14 States have been awarded grant 

funding under the NIAA. Since the passage of the NIAA to the current date, the number of State-submitted records to the NICS 

Index has more than doubled and the number of States with less 

than 100 records has decreased. 

On the Federal side, more recent advancements in enhancing the 

electronic submission of records to the NICS include the efforts of 

several Federal agencies. The FBI is currently working with DOJ 

components and the Department of State toward record identification and electronic submission to the NICS. 

However, many State systems lack adequate infrastructure to 

allow for the effective and efficient sharing of data between local, 

county, and State-level agencies. Providing technical guidance to 

address the needs of 50 different State systems is a challenge. In 

addition to obtaining grant funding under the NIAA, all States 

have the added requirement of creating and implementing a qualifying relief from mental health disabilities program, which is time 

and labor intensive. 
10 

Despite the FBI’s intense outreach efforts and resulting successes, many records, such as mental health records, are still unavailable to the NICS. Many States are challenged by existing privacy laws that bar the sharing of mental health information. The 

FBI in a consulting capacity assists States seeking to draft legislation permitting the sharing of mental health information with the 

NICS. A limited number of States have overcome this informationsharing obstacle, and others are in the process. 

Progress has been made in advancing awareness of the NIAA 

and its purpose. The amount of records submissions to the NICS 

Index continues to rise. Just prior to the passage of the NIAA, approximately 5.1 million records were maintained in the NICS 

Index. Approximately 500,000 were mental health records. 

Currently, the records maintained in the NICS Index have increased by approximately 41 percent, and mental health records 

have increased by approximately 153 percent. However, the improvements are not spread equally across the board. Several States 

have significantly increased the number of records submitted to the 

NICS Index, yet some Federal agencies have only recently begun 

submission. 

I appreciate the opportunity to review some of the FBI’s recent 

work to improve the completeness and accuracy of the information 

made available to the NICS. Through these efforts the FBI continues to ensure that persons prohibited from possessing firearms 

pursuant to State or Federal law do not acquire them from an FFL 

and that law-abiding citizens are able to acquire them without 

undue delay. Thank you. 

[The prepared statement of David Cuthbertson appears as a submission for the record.] 

Senator SCHUMER. Well, thank you, Mr. Cuthbertson, Assistant 

Director, not only for your excellent testimony but for staying within the 5 minutes. That is a good starting example. 

And now I am going to break that example by calling on—I mentioned earlier today that Chairman Whitehouse was generous 

enough to let us have this hearing and allow me because of my interest in this issue to chair it, and he has been nice enough to come 

by, and I am just going to interrupt our panel to let him say a few 

words since, after all, he is the Chairman. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

A U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you very much, Senator Schumer. 

I just wanted to compliment Senator Schumer on his vigorous 

pursuit of these issues which are so important to New York and to 

Rhode Island and to the rest of the country. Many of our communities continue to be plagued by gun violence. Congress recently 

has suffered a real tragedy as a result of gun violence, and too 

often it is enabled by loopholes in our gun laws that allow the purchase of military-style weapons in great bulk or that deny law enforcement officers the information they need to go about doing their 

jobs in a responsible way. And I think it is important that we work 

to close those loopholes. We can have different ideas of the extent 

to which various gun laws should or should not be extended, but 
11 

there really should be a bipartisan agreement that we should effectively and sensibly enforce the gun laws that we have. 

So we look forward to continuing to work with you in this Subcommittee, Senator Schumer. We thank you for taking the lead on 

this issue, and I am very happy to have you be the Chair of the 

day in this Subcommittee, and I thank Senator Hatch for being 

here and for attending and for being gracious about my little interruption of the order of proceeding here. 

Thank you, Senator Schumer. 

Senator SCHUMER. Thank you, Senator Whitehouse. Chairman 

Whitehouse has certainly stayed within the 5 minutes. 

Mr. Feinblatt. 

STATEMENT OF JOHN FEINBLATT, CHIEF ADVISOR TO MAYOR 

MICHAEL R. BLOOMBERG FOR POLICY AND STRATEGIC 

PLANNING, NEW YORK, NEW YORK 

Mr. FEINBLATT. Good morning, Chairman Schumer, Senator 

Grassley, Members of the Subcommittee. Thank you for the opportunity to be here today. I am John Feinblatt, chief policy advisor 

to Mayor Michael Bloomberg, who very much regrets that he cannot be here with us today. 

Ten months ago, the Nation turned its attention to Tucson, Arizona, and watched in horror as 6 people were gunned down and 13 

others were seriously injured, including Congresswoman Giffords. 

Since that day, more than 10,500 Americans have been shot to 

death in senseless crimes. That is 34 Americans a day, and that 

means on a daily basis we experience a tragedy larger than the one 

we had at Virginia Tech. 

Even more tragic is that we could have prevented some of these 

deaths. 

Over the past 5 years, Mayor Bloomberg and Mayor Tom Menino 

of Boston have worked to build a bipartisan coalition of more than 

600 mayors dedicated to honoring the Second Amendment and also 

dedicated to fighting gun crime by strengthening enforcement of 

existing laws and closing loopholes that are a criminal’s best friend. 

The tragic fact is that often background checks just do not happen or they do not work because the information that should be in 

the background check system just is not. 

After the Virginia Tech massacre, both Houses of Congress 

unanimously passed a law designed to ensure that Federal agencies and States submit the necessary mental health, domestic violence, and drug abuse records to the background check system. And 

as a result, the number of records in the background check system 

has risen substantially. 

Still, according to a new analysis released today by Mayors 

Against Illegal Guns, 23 States have contributed fewer than 100 

mental health records. Seventeen of those States have submitted 

fewer than ten records; four have not shared any at all. 

Federal agencies are not doing much better: 52 out of 61 Federal 

agencies have reported zero mental health records; 58 Federal 

agencies have reported zero records of drug abusers, including 

agencies such as the DEA, the Department of Defense, and ICE. 

To understand why some States are succeeding and others are 

failing, our coalition talked to more than 60 officials in 49 different 
12 

States. We found that States face a complex set of challenges. But 

we also learned that a few common themes united those States 

that are successfully sharing information. 

First, it is clear that leadership matters. Nine out of the 10 

States with the highest submission rates have taken active steps 

to overcome logistical and legal barriers by passing record-reporting laws. 

Second, funding matters. States with access to Federal grant 

funds are reporting on average nearly twice as many records as 

States that do not receive those funds. And yet Congress has appropriated less than 5 percent of the funds it authorized for this 

vital grant program. 

Third, it is clear that Congress needs to impose penalties with 

real teeth for States that are failing to submit records. Today 

States stand to lose only a combined $12.7 million in Federal funding if they do not meet their reporting requirements. 

And, fourth, we learned that many States still do not know what 

mental health and drug abuse records should be sent to NICS. The 

Justice Department should issue clear guidance and make it easily 

accessible. 

In addition, the President should issue an Executive order requiring all Federal agency heads to certify to the Attorney General, 

in writing, that their agencies have submitted all the necessary 

records to the national background check system. 

This is about enforcing the law, plain and simple, and nothing 

else. Both Congress and the President have a responsibility to do 

that and must take action if our laws are to be upheld and our 

public is to be protected. 

These four steps are all necessary and urgent. But, unfortunately, they are not enough, because if you buy a gun from a socalled occasional seller at a gun show or online or in the parking 

lot of a supermarket, Federal law does not require a background 

check, no matter if you buy one gun or 20. This loophole feeds the 

voracious market for illegal guns, and an estimated 40 percent of 

all U.S. gun sales are not subject to a Federal background check. 

Passing the Fix Gun Checks Act Senator Schumer introduced 

earlier this year would increase the incentives for States to ensure 

that all records that should be in NICS are. It would also close the 

private sale loophole once and for all. A bipartisan poll commissioned by our mayors showed that 86 percent of the public and 81 

percent of gun owners want every gun purchase to go through a 

background check system. 

Last spring, our coalition launched the National Drive to Fix 

Gun Checks. Today the number of Americans who have signed our 

petition in support of that effort has passed 400,000. I would like 

those names to be included in the record today. 

Senator SCHUMER. Did you say 400,000? 

Mr. FEINBLATT. 400,000. 

Senator SCHUMER. Could we just have a summary of what was 

put in? 

[Laughter.] 

Senator SCHUMER. Because it is a lot of names to put in the 

record. 

Mr. FEINBLATT. It is a lot of names, and we took—— 
13 

Senator SCHUMER. We will take that under advisement, but 

somehow we will work something out so we certainly put into the 

record what you have talked about. 

Mr. FEINBLATT. A few of those of the 400,000 are with us today. 

All of them have lost loved ones to gun violence, and I hope that 

this Committee listens to their stories and acts swiftly to pass the 

Fix Gun Checks Act to prevent future tragedies. Thank you. 

[The prepared statement of John Feinblatt appears as a submission for the record.] 

Senator SCHUMER. Thank you, Mr. Feinblatt, and thank you for 

the good job you do in New York City helping us fight crime. 

Ms. Anderson. 

STATEMENT OF HEATHER A. ANDERSON, SECTION MANAGER, 

CRIMINAL RECORDS DIVISION, WASHINGTON STATE 

PATROL, OLYMPIA, WASHINGTON 

Ms. ANDERSON. Good afternoon, Senators and Members of the 

Subcommittee. Thank you for this opportunity to testify today. For 

the past 10 years, the Washington State Patrol has maintained the 

responsibility of management, training, support, and audits of our 

local law enforcement agencies that conduct NICS checks for gun 

transfers and issuance of State concealed pistol licenses. 

WSP oversees the NICS program within Washington State, ensuring agencies understand the processes. Agencies conduct NICS 

checks according to the rules set forth by the FBI and applicable 

State and Federal laws. WSP verifies appropriate usage of NICS 

and proper retention and destruction of the checks. They also work 

with other State and local entities to ensure submission of records 

into the NICS Index. In carrying out this role, WSP has experienced a litany of obstacles, particularly in the context of mental 

health record sharing. These include a coordination with other 

State agencies, logistical hurdles, technical hurdles, data issues, 

training, and funding, just to name a few. 

That said, Washington has been very successful in moving more 

records into NICS. Currently, WSP works with NICS, the Department of Social and Health Services, and the Administrative Office 

of the Courts to ensure mental health records are submitted, validated, and canceled as necessary. In 2004, DSHS provided NICS 

with all of the historical mental health committal information in an 

initial transfer of over 30,000 records. They continued to provide 

monthly submissions thereafter via a CD in the mail. 

In working with Social Services, we found pockets of information 

that were missing. If a person had private insurance, Social Services may not have a mental health record. Additionally, not all 

records provided to us met the criteria to deny a person a gun. 

WSP continues to work with the State and local entities to clean 

the existing records that have already been submitted to the NICS 

Index. 

In 2009, the courts took over data submittal for mental health 

records. This was a better fit. Court databases contain most committal records regardless of insurance types. Unfortunately, the 

court was only able to provide day-forward information. They have 

a legacy database. So between the existing data provided up to 

2009 by the Social Services and the new data provided by the 
14 

courts, Washington is providing as much information as possible, 

but we still enter missing records provided by State and local entities upon request. The court set up an electronic data transfer process with NICS, and that is getting us closer to real-time data. 

Another large issue for Washington is the overall understanding 

for agencies that conduct background checks. The process is not always clear to them. Ongoing training by the NICS staff over the 

years has educated our decentralized State, but the need for training remains a priority due to turnover in personnel at local law enforcement and changes in interpretations. The commitment of 

NICS to partner with the State Patrol is providing the best possible service despite the obstacles and continued issues that we 

face. 

WSP has reached out to various State and local entities to work 

as a united force to ensure compliance with State and Federal laws 

and to work together to improve data processes and requirements. 

Washington is hosting NICS and five other States on December 7th 

for a NICS Improvement Amendments Act discussion. 

We are also working with the courts, prosecutors, and judges on 

a number of issues pertaining to NICS to better our forms and consistency and provide more education. 

Lastly, because of the efforts of so many within Washington, 

there is continued improvement during our State’s NICS triennial 

audits with the FBI. We have a long way to go. We still need to 

find good solutions for the fact that many misdemeanor crimes of 

domestic violence are not all entered into our State criminal history 

repository because the courts have reported that many of these 

charges are not followed up with fingerprints due to their workload. If a person is not fingerprinted, the information is not in the 

criminal history repository. WSP is not connected to the court database to pull data from. These are legacy databases. The court information is name based, and the State Patrol data results from fingerprint cards. 

State misdemeanor and felony warrants are not all forwarded to 

the National Crime Information Center. There is much stakeholder 

work to accomplish this move of, on average, 165,000 misdemeanor 

warrants and 19,000 felony warrants, and we are currently working on this issue. 

The ATF has determined that Washington does not meet the requirements of the NIAA for firearm restoration of rights and a relief program. This has been something we have worked on with 

other State agencies, and we are not there yet. We have not been 

able to obtain the funding or any opportunities for grant funding 

because of that. 

I am honored to be here today to talk about Washington’s successes and the roads that we still need to travel. Continued Federal 

funding of the NIAA for years to come will enable States to improve technology for more accurate and faster reporting to the 

NICS Index. The funding will allow States to bridge legacy data 

systems not unlike ours and ensure information can be made available. The power of more information can be measured in lessened 

Thank you. 

[The prepared statement of Heather A. Anderson appears as a 

submission for the record.] 
15 

Senator SCHUMER. Thank you, Ms. Anderson. 

Ms. Maisch. 

STATEMENT OF PATRICIA MAISCH, TUCSON, ARIZONA 

Ms. MAISCH. Good afternoon, Chairman Schumer and distinguished Members of this Committee. Thank you for inviting me to 

testify. 

It is an honor, and humbling, for me to speak about a very personal issue: fixing our country’s firearms background check system 

and keeping illegal guns away from dangerous persons. 

On January 8th—a beautiful, crystal-clear Saturday morning in 

Tucson—my life and the lives of so many other people changed forever. Words cannot describe the horrific acts I witnessed that 

morning or the sorrow we have all suffered. Luck was with me that 

day. I survived, physically uninjured. 

Six other innocents were not so fortunate. Their lives ended violently in a matter of 30 seconds. I want you to know who they are: 

Dorothy Morris, wife of George Morris. He was shot and survived 

that day; high school sweethearts married more than half a century; mother of two daughters. 

Dorwin Stoddard died shielding his wife, Mavy. Mavy and 

Dorwin, grade school sweethearts, found each other again after 

both their spouses had passed away. Mavy tells me that the last 

15 years have been a wonderful journey and that she misses 

Dorwin every waking minute. Mavy, who was wounded that day, 

is here today with one of her daughters. 

Phyllis Schneck, a widow with three adult children, grandchildren, and one great-grandchild; a Tucson snowbird from New 

Jersey; an avid crafter; cherished winter member of the North Minster Presbyterian Church. 

Some of you might recognize Judge John Roll, father, husband, 

grandfather; attended mass daily; served the great State of Arizona 

for over 30 years; friend of Congresswoman Giffords. 

Gabe Zimmerman. Gabby Giffords’ staffer loved Tucson, hiking, 

and social concerns; fiance to Kelly O’Brien; son of Emily Nottingham and Ross Zimmerman; brother to Ben; friend to everyone he 

met, I am told. I am so sorry I did not have the opportunity to be 

his friend. 

Christina-Taylor Green. Beautiful little Christina-Taylor Green, 

only 9 years old; born on the day of our national tragedy—9/11/ 

2001; newly elected to the Mesa Verde Elementary School student 

council; potential for future political service gone; loved butterflies; 

was a budding artist; loved playing baseball with the boys in Little 

League; doting sister of Dallas; cherished daughter of Roxanna and 

John. 

Thirteen more were physically injured that morning and untold 

numbers emotionally hurt. Colonel Bill Badger, Ken Dorushka, 

Randy Gardner, and Mavy Stoddard were among those physically 

wounded, and they are here with us today. 

Faith and Roger Salzgerber are also here. They stopped by that 

morning to talk to Gabby. Roger volunteered many hours to help 

re-elect Gabby. It is incredible that they escaped physical injury 

that day. Faith covered Christina-Taylor to keep her warm and 

comfort her while waiting for medical assistance to arrive. 
16 

That morning, Roger had the courage to chase in behind the 

shooter, along with Bill Badger, who suffered a bullet graze wound 

to the head. Together they took the shooter down. Their courage 

and heroism gave me the opportunity to take an ammunition magazine from the shooter. 

Nurse Nancy Bowman is here today, too. She and her husband, 

Dr. David Bowman, were buying Brussels sprouts at the Safeway 

that morning. They provided triage service and immediate life-saving care to the wounded. I shudder at the thought of what might 

have happened had they not been there that day. 

Tucson, unfortunately, is not the only tragedy represented here 

today. Joining us are more than 50 other survivors from across our 

great land whose lives are forever altered by gun violence. Mass 

murders with guns garner the most headlines, but each gun murder holds its own horrific details. Different places, different names, 

different circumstances; each somewhat different, but each all too 

similar. All tragic, all so very unnecessary. 

Chairman Schumer, I am definitely here to remember those that 

were killed that day as well as to honor each survivor. But my primary mission today is to remind all of you that Tucson is yet another extremely tragic example of what is at stake each and every 

time a gun falls—or is placed—into the wrong hands. 

Changing the past is impossible, no matter how desperately we 

want to change it, but it would be a pitiful shame if no action were 

taken to change the future. 

You can take action to improve our broken gun background check 

system, and I truly believe with all my heart that your actions can 

save lives. 

If I can try to make this as personal to you as it is to me, I feel 

that we can make progress. So forgive me if you find this offensive, 

but I want you to take a moment to do something. Imagine the 

headlines you have seen. Now replace the names of Dorothy Morris, Dorwin Stoddard, Phyllis Schneck, Judge John Roll, Gabe Zimmerman, and Christina-Taylor Green with one of your loved one’s 

names. 

So that is why I am here today: to ask that you pass the Fix Gun 

Checks bill, which will save lives, maybe the life of someone you 

love. 

Your support for this legislation would help families and communities across our great country be more hopeful that they will be 

spared the pain, sorrow, and tragedy of Tucson. 

Since the day of the shooting, I have been sincerely touched by 

the outpouring of prayers and good wishes that Americans from 

across the county have shared with the victims’ families as well as 

with fellow survivors, our community, and myself. These offerings 

continue to comfort and sustain me. 

That outpouring of support reminds me of our fundamental unity 

as a country. We all know that polarized debates that stifle policymaking prevent us from solving real-life problems. And when it 

comes to guns, the majority of Americans, the majority of 

Tucsonans, and the majority of gun owners want common-sense 

laws that protect Second Amendment rights and that protect us by 

helping stop the supply of illegal guns to dangerous people. 

This law will do that. 
17 

Hopefully, the debate we have today will be different. I am here, 

we are all here, to ask you to recognize the common ground we 

share and to take two common-sense steps. 

First, make sure the records of all persons who should not be allowed to buy guns are in the background check system. 

Second, require every gun buyer to pass a background check, no 

matter where he or she buys the gun, or whom he or she buys it 

from. Background checks are simple, quick, and inexpensive. 

The American people support these proposals. According to a recent poll, 90 percent of all Americans and 90 percent of all gun 

owners support fixing gaps in the background system; 86 percent 

of all Americans and 81 percent of gun owners support universal 

background checks. 

Please take these two steps by enacting the Fix Gun Checks bill. 

This bill could help prevent the murders of some 34 Americans 

killed with guns each day. Thirty-four Americans killed every day. 

Five times the number of people murdered in Tucson. I cannot sit 

idly by while that happens each day, and I know that you will not 

either. 

The shooting in Tucson brought Americans together. Please 

honor that unity by putting politics aside and working together to 

fix our broken background check system. 

Please take action. Please prevent the next mass shooting. Please 

pass the Fix Gun Checks Act. 

I want to thank you again, all Members of the Committee, for 

giving me the opportunity to appear before you today, and I have 

just one last question for you: 

How much more pain, how much more sorrow, how many more 

deaths by guns must we endure before we do something? 

Thank you. 

[The prepared statement of Patricia Maisch appears as a submission for the record.] 

Senator SCHUMER. Well, thank you, Ms. Maisch, for your riveting 

and powerful testimony. 

Ms. MAISCH. Thank you. 

Senator SCHUMER. It takes a lot of courage for you to be here. 

I had earlier, before my colleagues came in, asked the people who 

are here who were injured by gun violence or have family members 

who were killed or injured by gun violence to stand, but I am just 

going to ask—you mentioned a whole bunch of people who came 

here from Tucson with you, and I would just ask them to stand so 

we could recognize them separately. 

[Applause.] 

Senator SCHUMER. Thank you. 

Professor Kopel. You have a tough act to follow. 

STATEMENT OF DAVID B. KOPEL, ADJUNCT PROFESSOR, 

ADVANCED CONSTITUTIONAL LAW, DENVER UNIVERSITY, 

STRUM COLLEGE OF LAW, DENVER, COLORADO 

Professor KOPEL. Thank you, Senator Schumer and Members of 

the Subcommittee. The Subcommittee has heard about concepts 

which are said to be in S. 436. I would like to address the actual 

contents of the bill. 
18 

According to the Fifth Amendment, no one may be deprived of 

life, liberty, or property without due process of law, but S. 436 violates the constitutional standards of due process and fair trial. 

S. 436 prohibits gun ownership based on an arrest rather than 

a conviction. For example, suppose a person was arrested for marijuana possession and was later found innocent because the police 

officer mistook tobacco for marijuana. S. 436 would make it a Federal felony for the innocent person to possess a firearm. 

At the press conference level, S. 436 is said to be about background checks on gun sales, but the bill is far more extreme than 

that. Under S. 436, it would be a Federal felony to temporarily 

allow someone to use or hold one’s firearm in the following circumstances: while a friend visits your home; while taking a friend 

target shooting on your property or public lands where target 

shooting is allowed; while instructing students in a firearms safety 

class. 

Current law bans gun possession if there has been a formal determination that a person’s mental illness makes him a danger to 

himself or others. S. 436 eliminates the requirement for a fair determination and eliminates the requirement for a finding of dangerousness. Instead, S. 436 bans gun possession by anyone who has 

ever been ordered to receive counseling for any mental problem. 

This would include: a college student who is ordered to get counseling because the school administration was retaliating against 

him for criticizing the administration; a person who was once ordered to receive counseling for homosexuality, cross-dressing, or 

being transgender; a woman who was raped and now has post-traumatic stress. 

S. 436 explicitly strips people of their Second Amendment rights 

based on a mere order from a college administrator rather than 

based on an actual determination by a court or a commission that 

an individual actually is dangerous. 

Ever since 1776, Congress has recognized that a national gun 

registry would be a dangerous violation of the right to keep and 

bear arms. S. 436 creates national gun registration. Several years 

ago, national gun registration was enacted in Canada. Canada’s 

parliament is expected to repeal the national gun registration soon. 

As Canadians have realized, national gun registration is a waste 

of taxpayer dollars and contributes nothing to public safety. 

Congress does not have the constitutional authority to enact S. 

436. The bill is apparently based on Congress’ constitutional power 

to regulate commerce among the several States—the Interstate 

Commerce Clause; yet S. 436 applies to gun transfers that are 

purely intrastate, not interstate. It applies to activities that have 

nothing to do with commerce such as simply letting a friend examine your firearms collection. Thus, S. 436 violates the Tenth 

Amendment’s reservation of State authority over purely intrastate 

activities. S. 436 further violates the Tenth Amendment by imposing on the vast majority of States an extremely repressive system 

of restrictions on law-abiding gun owners which those States have 

already rejected. 

Whatever good intentions might lie behind S. 436, the actual bill 

as written is unconstitutionally overbroad. It is a Pandora’s box 

filled with the dangerous consequences that are the inevitable re-
19 

sult of making it a felony for law-abiding Americans to possess and 

use firearms. 

Thank you. 

[The prepared statement of Prof. David B. Kopel appears as a 

submission for the record.] 

Senator SCHUMER. Thank you, Professor Kopel. 

Now we will go on to the questions. We are going to try to limit 

ourselves to the same amount we limited you, 5 minutes. 

My first series of questions are for Assistant Director 

Cuthbertson, and as you know, Director, the NICS Improvement 

Act requires the Department of Justice to ‘‘assess the total percentage of records provided by each State in order to determine whether a given State is eligible for certain grants or, as of January 

2011, eligible to have 3 percent of its DOJ money taken away.’’ 

Isn’t that right? 

Mr. CUTHBERTSON. I believe that is accurate, sir. 

Senator SCHUMER. Now, it is my understanding DOJ has decided 

not to penalize any States this year for providing fewer than 50 

percent of their relevant records to NICS, and I am not sure I 

agree with this decision. I intend to push to make sure the penalties available under NICS are not viewed as empty threats. But 

the bottom line is we need to know which States are reporting and 

which States are not. 

To your knowledge, were estimates actually made as to the percentage of records that each State made available for background 

checks? If no estimates were made, do you know why that was? 

Mr. CUTHBERTSON. Sir, although the responsibility for the State 

estimates and the evaluation of the grants is the responsibility of 

the Department, I am aware from BJS that most States submitted 

estimates on some categories. However, that was not consistent 

throughout, and it is suspected that the estimates varied in reliability from State to State. 

Senator SCHUMER. So that is why they did not do it. 

Mr. CUTHBERTSON. I am not aware of why they did or did not. 

Senator SCHUMER. Okay. Well, I know you do not represent the 

Bureau of Justice Statistics today, and I appreciate that. But I am 

concerned about how we are going to get from here, where we have 

no estimates and they seem difficult to come by, to where we need 

to be, specific estimates to enable the Department to make an informed determination about which States are in compliance and 

which are not. 

I am troubled, to say the least, that the Department has not been 

able to do this yet, so today I am sending a letter to DOJ’s Office 

of Justice Programs asking them to come up with a solution to the 

problem. 

In the meantime, since you are here today, I want to ask you 

this: By the time that DOJ issues its report to the Judiciary Committee next year, I would like for DOJ to be able to come up with 

estimates, even if they have to be explained and qualified, of compliance by State. This does not seem to be unreasonable to me 4 

years after the passage of NIAA. Can you commit to doing that or 

take this message back to DOJ? I do not want a bureaucratic answer. I think this is part of the problem. Can you and your colleagues at DOJ please get this done? 
20 

Mr. CUTHBERTSON. Sir, I will certainly take that back to the Department. The FBI has committed to work with all of our State, 

local, and Federal agencies to increase the completeness and accuracy of the records, provide them with whatever assistance we can, 

understanding it is a daunting problem to collect the estimates of 

records held in county courthouses throughout the country. 

Senator SCHUMER. Okay. Now, next, have you been able to make 

rough estimates for any of the categories of prohibited users? Are 

there any in which States appear to be, by and large, above 50 percent? 

Mr. CUTHBERTSON. Sir, the FBI has not made estimates since 

that is under the purview of BJS. What we do look at are the completeness of the criminal history records in the III in which, in general, the number of dispositions for the arrests are about 50 percent. We work very hard in trying to increase the completeness of 

those so that arrests will contain the corresponding court outcome, 

whether that is a conviction or otherwise. 

Senator SCHUMER. Okay, and that is on the felonies. So you have 

an easier time with that, I presume. 

Mr. CUTHBERTSON. Felonies or misdemeanors, sir. 

Senator SCHUMER. Okay. Now, I understand you have made 

some progress in getting Federal agencies to improve their reporting to the NICS database. The negative side is that 52 out of 61 

Federal agencies have reported zero mental health records. What 

concrete steps have you taken to assess the number of records out 

there and increase reporting? 

Mr. CUTHBERTSON. Sir, we have had a tremendous amount of 

correspondence with the Federal agencies, both at the FBI and the 

Department level, to work with them to try to have them discover 

what records would be responsive. I think when you look at the list 

of Federal agencies, there are a good number, however, who would 

not have responsive records to some of the categories, including 

mental health records. 

Senator SCHUMER. Now, shortly after the Tucson shooting, several media outlets reported DOJ has an effective policy of not requiring Federal agencies to report the results of voluntary drug 

tests to the NICS database. I would like to know whether you and 

the Department are working on this policy to make sure all relevant records from Federal agencies are, in fact, getting into the 

NICS. Jared Loughner, as you know, failed a drug test when he applied to enlist in the army. So it is clearly relevant, particularly to 

Ms. Maisch’s testimony. 

Mr. CUTHBERTSON. Sir, as I understand it, the Reno memo, 

which you are referencing, is still in force. The Department is 

aware of your concerns regarding that existing policy, and any further discussions regarding policy of the Department would have to 

be referred to them. 

Senator SCHUMER. Is there a chance we can get this Reno memo 

undone? 

Mr. CUTHBERTSON. I would have to defer that question to the Department, sir. 

Senator SCHUMER. Okay. We will ask the Department in writing 

and add it to the record, without objection. 

[The information appears as a submission for the record.] 
21 

Senator SCHUMER. My time has expired. I may be able to come 

back to a second round, but I am not going to call on Senator 

Grassley. 

Senator GRASSLEY. For my investigation of Fast and Furious, Mr. 

Cuthbertson, I have written a letter to the FBI, including you in 

your previous position as head of the El Paso Field Office, for some 

documents. Have you done anything to search documents in response to our request? 

Mr. CUTHBERTSON. I have not done so personally, sir. That is 

being done by FBI headquarters in conjunction with the Department. 

Senator GRASSLEY. We have not gotten any documents. When did 

you first hear about ATF walking guns? And when did you hear 

it? 

Mr. CUTHBERTSON. Sir, the only knowledge I have, personal 

knowledge, regarding ATF’s investigation commonly known as Fast 

and Furious are from media accounts that we all read. 

Senator GRASSLEY. Okay. Did you ever receive any emails related 

to Operation Fast and Furious? 

Mr. CUTHBERTSON. Sir, I would respectfully ask that any particular questions regarding Fast and Furious be directed to the Department, who is coordinating all responses. 

Senator GRASSLEY. At least you can—I am going to ask the questions, anyway. Do you have any knowledge of any emails involving 

FBI employees that are related to ATF’s Operation Fast and Furious? 

Mr. CUTHBERTSON. No, sir, I do not have any direct knowledge, 

and any knowledge I would have would not be comprehensive, so 

I would defer the question to the Department of Justice. 

Senator GRASSLEY. Are you aware of any other investigations involving gun walking by any Federal agency in Texas? 

Mr. CUTHBERTSON. No, I am unaware of any of those. 

Senator GRASSLEY. I am sure you can answer this question: Regarding the legislation we are addressing today, has the President 

and the administration taken a formal position in support of it? 

Mr. CUTHBERTSON. Sir, I am going to respectfully ask you to repeat the question. I did not hear it. 

Senator GRASSLEY. Regarding this legislation that we’re addressing today, has the President and the administration taken a formal 

position in support of it? 

Mr. CUTHBERTSON. Sir, I am unaware of any position taken by 

the President and administration, and I am not in a position to 

comment on any position of the FBI or the Department. 

Senator GRASSLEY. Okay. Mr. Kopel, the Improvement Act was 

signed into law in 2008 as a result of the tragedy at Virginia Tech. 

As I indicated in my statement, that has affected some veterans. 

The legislation we are discussing here today makes similar changes 

to Federal gun laws that could have serious side effects. 

In your testimony you discussed how the bill’s definition of ‘‘adjudicated as mentally defective’’ is problematic. Notably, the bill 

states that if a court, board, commission, or other lawful authority 

determines that the mental health of an individual is an issue and 

compels or mandates ‘‘counseling, medication, or testing to deter-
22 

mine compliance with prescribed medication,’’ a person will be prohibited from owning a weapon. 

Question: Many police forces across the country, including the 

New York Police Department, require mandatory mental health 

counseling for officers that discharge their weapons in the line of 

duty. Under this provision could these officers now be barred from 

owning, purchasing, or possessing firearms? 

Professor KOPEL. That would seem to be the result. An important 

change that this bill would make is that it makes it clear that the 

language about other lawful authority is not just a board or a commission or some kind of mental health expert. It includes explicitly 

university administrations, and I think by implications it would 

likewise include the lawful authority of a police commander ordering a police officer to get mental health counseling. And, again, it 

makes the disarmament provision triggered not by any finding that 

a person has a mental problem. It is simply the order to get counseling that triggers the gun ban. 

Senator GRASSLEY. What about a family member of a 9/11 victim 

that is grieving from the loss of a loved one? If they were ordered 

to receive mental health counseling to deal with their loss, would 

they be barred from exercising their Second Amendment right 

under the bill? 

Professor KOPEL. Yes, because it takes away—the bill takes away 

the current language that says people lose their gun rights on mental health issues only if they are either incompetent to take care 

of themselves or they have been found to be dangerous to themselves or others. That would be eliminated, and instead the bill 

would impose the gun prohibition on anyone who has been ordered 

into counseling for any mental illness. 

Senator GRASSLEY. This will have to be my last question for this 

round. A 2008 article in the New York Times entitled, ‘‘Worried 

about stigma, officers often opt out of police counseling,’’ and then 

to quote from the article, it states, ‘‘Counseling remains among the 

most underused tools in the police officer’s arsenal, the result of an 

age-old stigma within the department against psychiatry in general.’’ 

Isn’t it a real possibility that this bill will become a new deterrent for those who need mental health counseling because they are 

afraid to seek it for fear of losing their Second Amendment rights? 

As this article points out, there is already a stigma for law enforcement seeking mental health counseling. Won’t this make that problem much worse? 

Professor KOPEL. I think the problem of the stigma of people 

being reluctant to go to counseling is not just confined to police officers. It is something mental health professionals face all the time. 

And even the very discussion of this bill, frankly, makes the problem worse because the bill is retroactive, so somebody who got 

counseling in 2006 or, for that matter, in 1993, the day this bill became law it would be illegal for that person to possess a gun. So 

if they have three guns and the bill becomes law on December 1st, 

on December 2nd they are a Federal felon. And when you talk 

about this kind of retroactive felonization of people for getting mental health counseling, I would think it would only worsen the reluctance of many people to go to counseling. 
23 

Senator GRASSLEY. Thank you. 

Senator SCHUMER. Thank you, Senator Grassley. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Mr. Cuthbertson, with regard to the reporting for the purposes 

of the National Crime Information Center, every State and local 

government is required, I believe is the right word, to submit all 

convictions that occur in their courts, and they are requested to 

submit records for arrest to the NCIC. Is that correct? 

Mr. CUTHBERTSON. Sir, all information provided to the FBI 

through the States is voluntary. The III, or Interstate Identification 

Index, is the criminal history repository in which arrests and convictions are reported via fingerprints to the FBI. 

Senator SESSIONS. Is there any discipline to a State that accesses 

the NCIC for their benefit, or a local jurisdiction, but will not bother to put their information in concerning convictions, some of which 

may be very serious convictions? 

Mr. CUTHBERTSON. There is no process in which we fine people 

or have any negative effects because all the information provided 

to the FBI is voluntary. We have an audit procedure to make sure 

that information is used, stored correctly, and accessed correctly, 

but it is a voluntary system. 

Senator SESSIONS. Okay. So now we have this new requirement 

that mental health counseling be reported, and if you do not do 

that, you lose money? 

Mr. CUTHBERTSON. I would have to defer that to the Department 

since they are the ones that judge the grant applications. 

Senator SESSIONS. Well, I would just say, for people who are concerned about public safety, the greatest likelihood of apprehending 

serious criminals, people who actually commit crimes and murders, 

based on my 15-plus years of prosecuting—and I prosecuted these 

Federal gun cases by the hundreds. I personally tried lots of them. 

As a matter of fact, I see in the report my district is one of the 

highest in the Nation in prosecutions still, my old district. But we 

made it a high priority. 

Senator SCHUMER. You set a very good example, Senator. 

Senator SESSIONS. Well, I think they are following the example 

we set because we were at the top of the country. I just would say 

to you, what I am trying to get at is, would you not as an experienced person in this, dealing with these issues, say that a failure 

to enter felony convictions would be far more numerous than 

maybe a counseling question would be? 

Mr. CUTHBERTSON. Sir, as we have seen, although submission to 

the III is voluntary, it is widely used by law enforcement agencies—— 

Senator SESSIONS. III is? 

Mr. CUTHBERTSON. The criminal history repository, Interstate 

Identification Index. Although it is widely used and it is the Nation’s criminal history repository, we have traditionally seen the 

dispositions of arrests run at about 50 percent or a little bit more. 

And there are a variety of reasons for that, because the records 

have to come from the courts, and that seems to have been the 

weak point in getting those records from the courts into the Fed-
24 

eral system so that those dispositions can be attached to the arrests that caused either those convictions or acquittals. 

Senator SESSIONS. Mr. Chairman, one of the greatest advancements in criminal justice is the ability to arrest someone in New 

York who was convicted of a felony in Alabama and the arresting 

officer know it immediately because it is in the NCIC, and they 

know they have got a dangerous criminal. It affects who is released 

on bail. So when you get half the jurisdictions not submitting routine felony convictions—is that what you were saying? 

Mr. CUTHBERTSON. No, sir. It is not half the jurisdictions. It is 

about half the arrest cycles in NCIC. 

Senator SESSIONS. Arrest cycles. 

Mr. CUTHBERTSON. Right. 

Senator SESSIONS. You mean arrests or convictions? 

Mr. CUTHBERTSON. No, sir. One arrest can be for different criminal charges. So let us say you had a breaking and entering and an 

assault and a murder. Normally, that would be reported in three 

arrest cycles. As a prosecutor, you understand you may have a conviction on one of those charges. So one arrest cycle does not equal 

one arrest. Some arrests have more than one arrest cycle, and it 

is, in general, 50 percent of the arrest cycles in the III have a corresponding disposition associated with them. The NCIC is the part 

that is used for wants and warrants, active information that is very 

accurate and very up to date. But the criminal history information 

in and of itself is in the III. The NICS accesses both those databases in addition to the NICS Index. 

Senator SESSIONS. I have trouble with this every time. It is so 

complex. But basically I would just say that when a prosecutor is 

prosecuting under—the most commonly used statute, I believe, is 

possessing of a firearm after conviction of a felony, if you do not 

know the person is convicted of a felony, then you do not have a 

conviction, and it may not have occurred in your district. It is a 

huge issue. 

I would just wrap up, Mr. Chairman. My time is out. There are 

a lot of things I would ask, but—— 

Senator SCHUMER. We are going to have a second round. 

Senator SESSIONS. I do have to excuse myself. If I could have one 

more question? 

Senator SCHUMER. Sure. 

Senator SESSIONS. It would deal with the overall trend of prosecutions. I have noticed in the last year of the Bush administration 

there were 8,480 prosecutions under the firearms statutes. That 

has dropped to 7,183 today, which is a rather substantial reduction 

in the number of prosecutions. 

I would note, Mr. Feinblatt, that New York, at least the Eastern 

District, Brooklyn, is one of the lowest in the country. Maybe you 

ought to talk to the U.S. Attorney and Alcohol, Tobacco, and Firearms, because I am not dismissing the importance of the legislation 

you have offered, Mr. Chairman. I look forward to studying it. I do 

think it has some breadth issues that certainly need to be dealt 

with. But I would just say to you the bread-and-butter issues, the 

ones that put people in jail, are carrying a firearm during the commission of a crime and possessing of a firearm after having been 
25 

convicted of a felony. There are about 30 pages of firearms legislation here in small print. It is not as if we do not have firearm laws. 

So we have had a lot of fights over gun shows and how to regulate that, and this issue is an important issue. But I would just say 

to you we need to be sure that the administration is actually prosecuting the criminals that use guns. A lot of these regulations that 

are pushed often by people who do not prosecute the cases are very 

seldom used and very seldom applicable to normal, routine prosecutions. 

I thank the Chair. 

Senator SCHUMER. Well, thank you. Again, I offered this to Senator Grassley. Certainly the legislation we passed unanimously in 

2007 can be improved, and if there are people who are wrongfully 

being deprived of their right to bear arms, I would certainly look 

at that as well as, just as you correctly point out, making the 

records as strong as possible. We are not intending to add new 

crimes here in the part of the bill dealing with NICS but, rather, 

trying to just make it work. 

Senator SESSIONS. One reason this code is complex on gun crimes 

is because there is a constitutional right to keep and bear arms. 

I believe the Constitution, if you respect it, you enforce it as written. I believe the Supreme Court is correct to say it is a personal 

right to keep and bear arms. And, therefore, when you constrict 

that right, you have to have a justification to constrict it. One of 

them is if you have been convicted of a felony. Another one is that 

you get an extra enhanced penalty if you are carrying a gun during 

the commission of a felony. If you lie on the form, if you are a dealer that does not have a license and sells contrary to the law and 

does not comply with the waiting period, all those things, hundreds 

of requirements on constricting the free flow of firearms in America, but there is a fundamental constitutional right to keep and 

bear arms, and so we get down to these little areas where we have 

disputes. 

Senator SCHUMER. The Senator came in after I spoke, but not 

much different from what I said. There is a right to bear arms, but 

there is also a balancing test, and I think we would agree on that, 

and maybe we can work together. That is very encouraging. 

Okay. I have a few quick questions that I had not been able to 

ask. One last one to Director Cuthbertson. Mayor Bloomberg testified that, according to his coalition, many States say they need 

more specific guidance in several of the prohibited categories, for 

example, in determining the scope of mental health and drug abuse 

records that qualify for inclusion to NICS. Now, I have looked at 

the frequently asked questions that are posted online. It is not covered by such as this. Would you consider developing more specific 

written guidance on the kind of records that do and do not qualify 

for inclusion by category? 

Mr. CUTHBERTSON. We have worked extensively with the States, 

provided a tremendous amount of guidance. But if there are areas 

that we have not covered, we certainly would be willing to provide 

that guidance to the States. 

Senator SCHUMER. Okay. Next I have a question for Mr. 

Feinblatt. I was going to ask this of Mayor Bloomberg, but perhaps 

you can speak for him. As you know, I have worked closely with 
26 

the mayor and your office on crime issues. I tend to be a toughon-crime guy, and I think one of the great things that has happened to New York is crime rates are way, way down, and that has 

allowed our city to grow by 1.5 million people. Most people do not 

know that New York has grown by close 1.5 million people, and one 

of the main reasons is our much lower crime rates. I am proud to 

say that we are the lowest of the 25 largest metropolitan areas in 

violent crime and crime, and that is due to the good work of our 

police force and some of the Federal laws we passed over 15 years 

ago. 

But we are concerned, I am concerned about the resurgence of 

the efforts to make concealed-carry permits legal across State lines, 

making someone who obtained a permit to carry a concealed weapon in one State able to carry it in another like New York where 

we regulate concealed weapons. 

Are the mayor and his coalition and you, Mr. Feinblatt, concerned about this renewed effort which the Senate defeated in 

2009, but I believe the House will be voting for tomorrow? And, you 

know, it was very neck and neck in the Senate as to whether it 

passes or fails. 

Mr. FEINBLATT. Yes, the Mayors Against Illegal Guns, made up 

of over 600 mayors as well as law enforcement organizations across 

the country, domestic violence advocates across the country, are all 

keenly concerned about national concealed-carry reciprocity. We believe that States ought to have the ability to regulate who gets a 

concealed-carry permit in their State and that there should be respect for States’ rights. 

New York has a set of regulations that are very different from 

Florida. We are not saying that New York’s regulations should be 

what Florida’s regulations are, but it is very important that each 

State gets to determine how to keep their citizens safe, and Mayors 

Against Illegal Guns is working very hard with you and others to 

hopefully defeat that legislation when it comes to the Senate. 

Senator SCHUMER. Now, for Ms. Anderson, you mentioned in 

your testimony that you have not been able to obtain funding to 

improve your record reporting under the grants we created in 2007 

because your law providing for restoration of gun rights did not 

meet ATF’s criteria. Did you ultimately get the help you needed 

from ATF so you could draft an appropriate restoration of gun 

rights programs? 

Ms. ANDERSON. It was not very clear to us in the beginning as 

we worked with our stakeholder agencies that we could lean on 

them for assistance for the legislation and to ensure the language 

that was necessary. They were helpful when we approached them 

and asked questions because it was not clear to us. However, this 

last round it did not pass, and so we have areas that are too permissive and areas that are less permissive that we need to work 

on. 

Senator SCHUMER. And given the lack of grant money, what did 

enable your State Department of Social and Health Services to finally transfer 30,000 mental adjudication records to the database? 

What were your most effective strategies, both logistical and political? 
27 

Ms. ANDERSON. They were very helpful and very willing to work 

with us on those areas. It was tough because they are not a criminal justice agency. They understood our need to provide the information. However, they come from a different perspective than we 

do, and they do not have a connection to NICS. And so we worked 

with them, lots and lots of stakeholder work. It took over a year. 

But they were willing to provide information. 

One of the bigger problems is that the information that we provided is not necessarily a set standard. They provided what they 

had. And so not all of that information that they had necessarily 

would stop somebody from having a gun. So it was initially dumped 

into the denied persons file. 

Senator SCHUMER. We may have to look at a little more flexibility here because what the States have on file is not necessarily— 

we drafted our legislation one way, and the States have things on 

file in different ways, and I think that is something we will look 

at, and you bring that up. 

Okay. I want to thank all of you for being here. I want to 

thank—yes, we are going to—do not worry. This is the last thing 

I am going to say except, ‘‘The hearing is adjourned.’’ 

[Laughter.] 

Senator SCHUMER. I want to thank Ms. Maisch for her powerful 

testimony, and I thank Professor Kopel for coming as well. With 

that, our last questioner will be Senator Grassley. 

Senator GRASSLEY. I think mine will only take 5 minutes or less. 

Professor, I am going to start with you along the same scenario I 

was spelling out with you in my last two or three questions. In 

each of these scenarios, law-abiding citizens who were subject to 

life-changing circumstances not of their own fault could lose their 

Second Amendment rights. Under this bill what recourse would 

they have to reestablish their Second Amendment rights? 

Professor KOPEL. Well, in some senses, none. If you take the example of the person who was incorrectly arrested for a drug offense, the law says that there is a ban for 5 years on the person 

simply because of the fact of the arrest. You cannot go into court 

and prove that you were never arrested. It was a fact that you 

were arrested, even if you can also show that you were later found 

to be innocent. 

One of the real loopholes, I guess, in how the Federal gun laws 

currently exist is that when the Gun Control Act of 1968 was 

passed into law, Congress did prohibit many categories of people 

from having firearms, and it also put in a safety valve, which is 

called the restoration of rights. So, for example, someone who was 

convicted of cheating on his taxes in 1964, then in 1968 he became 

retroactively barred from owning a gun for the rest of his life, 

under the restoration-of-rights procedure he could do a discretionary petition to have his rights restored say in 2000 that he has 

gone straight since then, has lived an exemplary life, he just wants 

to have a gun for hunting, he is not a threat to anyone. And the 

Bureau of Alcohol, Tobacco, and Firearms could in its discretion restore his gun rights. 

But since the 1990s, Congress has put in appropriations riders 

which have forbidden any restoration of rights. So these people who 

may well have been, say, properly barred at one time in their life 
28 

from having a gun have no way of ever getting their rights back, 

and that would apply to a lot of these people as well. 

The NICS Improvement Act, which Senator Schumer talked 

about, did provide funding for States to restorations of rights only 

on the mental health issues, but that thing would have to be entirely rewritten because now we are not talking under the existing 

law. You are talking about a determination that someone is a 

threat to himself or others. But now the ban happens simply because the person was ordered into counseling. Well, you can say, 

gee, this person at one time was a threat to himself or others, but 

now it is 10 years later and he is mentally healthy. That is a 

changed circumstance. But the circumstance that a person was ordered into counseling is like the circumstance of an arrest. It is an 

unchangeable fact that it happened. So I am not sure what could 

ever happen for those people to have their rights restored. 

Senator SCHUMER. With Senator Grassley’s permission, I would 

just like to make a clarification. It will not come from your time. 

Senator GRASSLEY. Yes, go ahead. 

Senator SCHUMER. Under the provisions of the law, they have to 

be—and we worked this out with Senator Coburn. They have to be 

adjudicated mentally ill. Only after that can they be ordered for 

counseling. It is not just willy-nilly. It is an adjudication, like everything else. And if we want to try and change it so that the person’s status is changed, there are laws on the State books that say 

you can go back and say, ‘‘I am no longer mentally ill.’’ Now, maybe 

you think those are too tough and we could look at those, but isn’t 

it true that the only way that you can be put on this database is 

an adjudication that you are mentally ill, you are not just ordered 

to counseling? That is secondary after the first step. Isn’t that correct? 

Professor KOPEL. Senator, you are correctly describing the law as 

it exists now, presuming that having—if you describe an adjudication as being something broad enough to include what a veteran— 

somebody the Veterans Department says. But your bill would 

change that. Your bill would change it so that the order into counseling is itself the trigger for the gun prohibition. 

Senator SCHUMER. Yes, but there has to be—they cannot just 

willy-nilly order someone into counseling. 

Professor KOPEL. Well, under your bill it—your bill under Section 

124 orders colleges to set up a system to order people into counseling, and then what gets reported to NICS is the fact that they 

were ordered into counseling, not what any result of the counseling 

was. So your bill would—you have correctly described the existing 

law, but your bill would change that so that the counseling order 

becomes the trigger. 

Senator SCHUMER. They still have to be adjudicated mentally ill. 

Professor KOPEL. No, not under Section 124 of your bill. 

Section 124 of your bill says that the—you put an order—— 

Senator SCHUMER. I will read it. 

Professor KOPEL. Sure. It is on page 8. The order into counseling 

is itself what is supposed to be reported to NICS. 

Senator SCHUMER. Let me just read it, okay? Yes, it is not just 

by a court, you are right, but there has to be—‘‘The term ‘adjudicated as mentally defective’ includes an order by a court’’—it is 
29 

an order—‘‘board, commission, or other lawful authority that a person in response to marks of normal intelligence, mental illness, or 

incompetency be compelled to receive services.’’ Now, as best I 

know, no State lightly does that. In fact, we have been through it 

in New York. I have had constituents who want very much their 

adult children to be ordered into some kind of counseling and other 

kinds of treatment of mental illness, and it is extremely difficult 

to get done. They are frustrated. They can do it for their minor 

children, but they cannot do it for their adult children. I have been 

through this. 

Now, I do not know how easy it is in other States, and we will 

certainly look at that. But this is not just a whimsical decision. 

That is all I am saying. 

Professor KOPEL. Senator, it is on pages 8 through 10 of the bill 

where you require that all federally funded universities have to set 

up this team which will order people to go to involuntary counseling. That is what the bill says. 

Senator SCHUMER. That is a different part of the bill. 

Professor KOPEL. Yes, and once they are ordered to go into involuntary counseling—and, of course, it is not really involuntary in 

the sense that you cannot drag them in. They could just drop out 

of school instead. But what your bill says, when the school orders 

somebody into involuntary counseling, that itself is what is supposed to be reported to NICS. 

Senator SCHUMER. I understand that, but my point is that you 

cannot be ordered into involuntary counseling very easily. There is 

a whole procedure that has to be done certainly under New York 

State law and I believe under most State law. 

Professor KOPEL. Well, not under your bill. Your bill says 

you—— 

Senator SCHUMER. My bill refers to the State’s decision. 

Professor KOPEL. No. Your bill refers to the university’s decision. 

That is what Section 124 of the bill does. 

Senator SCHUMER. Which is sanctioned by State law. 

Mr. KOPEL. Senator, that is just not in the bill. Your bill makes 

the—— 

Senator SCHUMER. The part you are referring to relates to mental health programs. The part about ordering it into NICS is the 

part I read back here on page 7. Anyway—— 

Mr. KOPEL. Senator, very quickly. Page—— 

Senator SCHUMER. Go ahead. We will let you get the last—— 

Mr. KOPEL. Page 9, go down to line 17, subsection 5, ‘‘Every federally funded university, a procedure for making involuntary referrals for such students to State or local mental health authorities 

for mental evaluation, which shall include reporting such referrals 

to a State agency responsible for identifying persons described in 

Section 922(g)(4) of Title 18 U.S. Code,’’ which is the section that 

imposes the gun prohibition for mental conditions. 

Senator SCHUMER. But you still need the State agency to approve 

it. 

Mr. KOPEL. No, it—there is nothing—well, not in the bill as 

drafted. Perhaps you might want to revise it. 
30 

Senator SCHUMER. Section 5 deals with—well, okay. We will 

get—I do not want to—we will go back to Senator Grassley, and 

we will have a series of questions. 

Senator GRASSLEY. He answered all of my questions, and one 

question I answered—or that I asked, so I will end by just suggesting to us—and I will put this in the record. I want a statement 

that Burr and Webb put in about their bill to helping veterans get 

back their Second Amendment protection rights in the—I would 

like to have that put in the record, and then maybe that will focus 

people’s attention on something we can do right now to correct a 

sweeping judgment that was made 2 years ago that probably none 

of us thought about. 

[The information appears as a submission for the record.] 

Senator GRASSLEY. Thank you all very much. 

Senator SCHUMER. I am just going to give you one minute here 

because I want to clarify this. The part you are referring to says 

when a university makes such a determination, they have to refer 

it to the State. It does not relate to whether they are on the NICS 

database. That is what I am saying. If then the State by its own 

actions after the referral says that there can be involuntary—you 

know, orders involuntary counseling or whatever, then it would be 

referred. That is the point. This is just—page 9 is simply the university refers it to the State so the State is aware. 

Mr. KOPEL. I understand your purpose, Senator, but you might 

want to have the language revised if that is what you want to accomplish, because—— 

Senator SCHUMER. I am happy to look at it. 

Mr. KOPEL. Thank you. 

Senator SCHUMER. All right. As I said—I did not quite keep my 

promise that the only thing else I would say would be, ‘‘Hearing 

adjourned,’’ but, again, I want to thank so many who came here. 

We understand your anguish. And, actually, we got good answers 

to the questions from everybody, and the fact that both Senator 

Grassley and Senator Sessions, and particularly in Senator Sessions’ comments, shows we might be able to reach some common 

ground here in terms of at least moving parts of our legislation. So 

I want to thank you for being here and thank all the witnesses for 

their excellent testimony, and now I will say the hearing is adjourned. 

[Applause.] 

[Whereupon, at 4:10 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows.] 
(31) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF HEATHER A. ANDERSON
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PREPARED STATEMENT OF HON. MICHAEL R. BLOOMBERG
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PREPARED STATEMENT OF DAVID CUTHBERTSON
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PREPARED STATEMENT OF JOHN FEINBLATT
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PREPARED STATEMENT OF PROF. DAVID B. KOPEL
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PREPARED STATEMENT OF PATRICIA MAISCH
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PREPARED STATEMENT OF SENATOR DICK DURBIN
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QUESTIONS SUBMITTED TO DAVID CUTHBERTSON BY SENATOR GRASSLEY
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QUESTIONS SUBMITTED TO PROF. DAVID B. KOPEL BY SENATOR HATCH
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QUESTIONS SUBMITTED TO DAVID CUTHBERTSON BY SENATOR KLOBUCHAR
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RESPONSES OF DAVID CUTHBERTSON TO QUESTIONS SUBMITTED

BY SENATORS GRASSLEY AND KLOBUCHAR
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RESPONSES SUPPLEMENT—REDACTED OF DAVID CUTHBERTSON

TO QUESTIONS SUBMITTED BY SENATORS GRASSLEY AND KLOBUCHAR
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RESPONSES OF PROF. DAVID B. KOPEL TO QUESTIONS SUBMITTED

BY SENATOR HATCH
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SUBMISSION FOR THE RECORD
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SUBMISSION FOR THE RECORD
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Æ