In the wake of the recent mass shooting at Covenant School in Nashville, Tennessee, Republican Gov. Bill Lee signed an executive order Tuesday aimed at strengthening the state’s background check system.
The executive order represents incremental progress in a state with some of the laxest gun laws in the country, and comes just as two lawmakers previously expelled from the state legislature for participating in a gun control protest return to their posts.
It requires that new criminal history information and court mental health information be reported within 72 hours for purposes of including it in the state’s background check system. It also directs the Tennessee Bureau of Investigation to evaluate how its background check system can be improved.
But it still leaves gaping holes in a background check system. It also wouldn’t have stopped the Nashville shooter, who bought their guns legally from five different local gun stores and had no history of contact with law enforcement or commitment to an institution that would have been flagged on a background check.
The governor has separately called for the state legislature to pass a red flag law, also known as an extreme risk protection law, under which individuals believed to pose a danger to themselves or others can be barred from possessing firearms. But it’s not clear that there is the political will to do so among Republicans in the state, who have in recent years removed permit requirements to carry a handgun in public and pushed legislation that would loosen restrictions on carrying guns on school campuses.
On its own, Lee’s executive order does “very little to change the status quo,” said Nick Suplina, senior vice president of law and policy at the gun control advocacy group Everytown for Gun Safety. But the fact that Lee took any action at all on background checks — which are broadly popular and proven to reduce gun violence when well implemented — is a striking victory for gun control advocates.
“I think the most salient aspect of the executive order is the fact that he felt compelled under pressure from gun violence prevention activists and the people of Tennessee to do something and that something should be about background checks,” Suplina said. “He understood it would be a very popular and meaningful-sounding response to the tragedy in Nashville.”
Do background checks work?
There are ways that Tennessee could meaningfully improve its background check process under Lee’s executive order. Suplina said that the Tennessee Bureau of Investigation could suggest reevaluating what information is reported to the background check system. At the moment, criminal history and mental health adjudications are reported. But the state could consider including information on prior contact with law enforcement or domestic violence incidents that aren’t prosecuted to a final disposition.
“These are things that may not be dispositive of a background check, but may be useful to have access to when determining whether to clear somebody to purchase a firearm or to require additional investigation,” Suplina said.
The new executive order doesn’t fill a major gap in Tennessee’s background check system: Current law doesn’t require background checks for private gun sales, ones where there isn’t a licensed dealer involved. Those sales can occur at gun shows or online marketplaces such as Armslist. According to an Everytown analysis of 2018 gun ads on Armslist, one in eight prospective buyers in Tennessee wouldn’t have passed a background check.
Currently, 14 states require universal background checks on all gun sales, including those that occur online. Those states have homicide rates that are 10 percent lower than states without them, and states that require background checks for all handgun sales are associated with 48 percent lower rates of gun trafficking in cities and 29 percent lower rates of gun trafficking across state lines, Suplina said.
“Illegal guns that are trafficked aren’t starting in states that have background checks on all gun sales,” Suplina said.
But the implementation of a background check system also matters, said Allison Anderman, senior counsel and director of local policy for the Giffords Law Center to Prevent Gun Violence. Research shows that it’s most effective at preventing gun homicides and suicides when implemented as part of a “permit to purchase system” — where an individual looking to purchase a gun has to apply for a permit to do so and is subject to a background check as part of that. When Connecticut passed such a law, its firearm homicide rate decreased by 28 percent and its firearm suicide rate decreased by 33 percent.
Anderman said the research isn’t as conclusive regarding background checks implemented at the point of sale, rather than as part of permitting. That’s consistent with a literature review from the RAND Corporation which found moderate evidence that universal background checks reduce total homicides and limited evidence that they reduce firearm homicides. The lack of strong evidence for their effectiveness might be due to issues with enforcement, Anderman said.
“We can’t say from the research that point-of-sale background checks don’t reduce homicides and suicides because we don’t know that that’s true. If they’re not implemented properly, or at all, then they can’t be effective,” Anderman said. “But what we do know is that when universal background checks are implemented through licensing or permitting, they’re very effective.”
The new Tennessee executive order doesn’t implement these kinds of background checks, however, and state law still allows any determined individual to obtain a firearm without one.