You Can’t Blame Tiahrt

This blogger seems to think the Fort Hood tragedy was all about Tiahrt, but he’s wrong. What he bases that on would seem to be a section from this article:

In August 2009, Hasan purchased two firearms that he used to carry out the attack, but the government officials said that U.S. law does not permit them to connect that purchase information with the other intelligence they had.

This has nothing to do with Tiahrt, but to understand why that is, you have to understand what the Tiahrt does, and know something about our federal gun laws. I’m not going to automatically assume malice on the part of this blogger, but rather just attempt to point out the problems.

In order to buy a gun in this country at retail, as Hasan did, you have to fill out a ATF Form 4473 and be cleared by the National Instant Check System. Some states have additional forms, and other states are what are called “POC (Point-Of-Contact) States”, which means they use their own state level background check systems in lieu of the federal one. The dealer is then required to keep form 4473 on file. NICS, by law, does not keep records of people who pass the background check. The law only allows records to be kept of those who fail. There is no giant red siren that goes off at CIA or FBI if someone they are currently investigating tries to buy a gun. This isn’t hollywood.

In the event a gun is recovered at a crime scene, law enforcement can file a trace request with the ATF in order to find out who the last legal purchaser of that firearm was at retail. In order to do that, ATF starts with the manufacturer, who traces it to the distributor, who traces it to the retailer. The retailer then goes and fetches the 4473 they have on file, turns over the information and if necessary the form, and the trace is complete. Law enforcement can use this data any way that is necessary and proper within the course of a legitimate investigation of a crime, or in the prosecution of a criminal for violation of laws.

What Tiahrt does is prevent ATF from spending any funds to share the entire trace database with third parties not related to a bonafide criminal investigation. It also makes the trace database undiscoverable in a civil action, and inadmissible in a civil suit. Both ATF and the Fraternal Order of Police support this measure, something MAIG won’t tell you. It does not require that NICS records be destroyed. The requirement that NICS records be destroyed is not a funding matter, but is found in the United State Code, Title 18, Section 922(t):

(2) If receipt of a firearm would not violate subsection (g) or (n) or State law, the system shall –
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.

This is federal law that was instituted as part of the Brady Act, which established the background check system to begin with. Since Hasan had no criminal record, his background check was not saved by the system. The FBI hasn’t always been good about following the law on this, but it’s the law, and it has nothing to do with Tiahrt. MAIG’s assertion that Tiahrt requires NICS records to be destroyed is false. It’s the Brady Act itself that requires it.