Lawmakers grappling with ways to keep guns from the hands of the mentally ill are faced with a central question: How to entice states to report such cases without trampling on the Constitution?
"I'm thinking about that," he said Thursday. "That's a 10th amendment deal, but it's also – I think we'd benefit."
But even gun-control advocates doubt the federal government has the authority to compel states to share those records. They said Congress can provide financial incentives – both payments and penalties – to encourage such reporting. But a federal mandate would likely prove unconstitutional.
"The question is, even if you do pass this at a federal level, can you force the states to do it?" Josh Horwitz, executive director of the Coalition to Stop Gun Violence, asked Friday. "It will be a difficult sell without enumerated power."
Under current law, states are encouraged, but not obligated, to report certain red-flag cases to the National Instant Criminal Background Check System (NICS), an FBI database through which licensed gun dealers are required to screen potential buyers to weed out prohibited people. Felons, illegal immigrants, fugitives and the severely mentally ill – among others – are barred by federal law from buying and owning guns.
But Graham suggested there are compelling reasons for Congress to try to make state reporting mandatory. He cautioned that there are state sovereignty concerns to be wary of, but suggested those could be overcome for the sake of public safety. Graham, a member of the Senate Judiciary Committee who has long-opposed tougher gun laws, said he wants to bounce the idea off of his Senate colleagues before floating any specific proposals.
"I’ve got to see what the market would bear there," he said.
The comments mark something of a shift for Graham, who on Wednesday led a bipartisan group of senators in introducing legislation designed to plug the enormous holes in NICS. The proposal clarifies which cases of mental illness disqualify people from buying guns, but provides little enticement for states to submit their records to the FBI. Instead, Graham noted that South Carolina lawmakers are taking steps to make that reporting mandatory, "and I would urge every state to do that," he said.
The voluntary system has created enormous discrepancies between the states when it comes to NICS reporting. Virginia, for instance, had submitted 180,338 mental health records to the FBI through Oct. 31 of last year, according to Mayors Against Illegal Guns (MAIG), an advocacy group. Meanwhile, 13 states have disclosed fewer than five records. Rhode Island has submitted zero.
The reporting gaps are starting to gain notice on Capitol Hill.
"In Arizona, there are more than 120,000 mental health records – these are records of people who have been adjudicated at the state level – and these are not part of the NICS system," Sen. Jeff FlakeJeffrey (Jeff) Lane FlakeFlake donating unused campaign funds to Arizona nonprofit focused on elections: report Biden nominates former Sen. Tom Udall as New Zealand ambassador Biden to nominate Jane Hartley as UK ambassador: report MORE (R-Ariz.), a co-sponsor of Graham's mental health bill, said Wednesday. "There's something wrong when that is the case."
Still, there is broad recognition that Congress is limited in its powers to acquire records from the states.
Horwitz compared the issue to past federal efforts to have states increase the drinking age, reduce speed limits, or – most recently – create health insurance exchanges under President Obama's healthcare law. In all those cases, the federal government was powerless to compel those changes, but instead established a system of carrots and sticks that was largely successful in bringing those reforms about.
A 2008 law, passed in the wake of the Virginia Tech massacre, attempted that strategy, hitting states that fail to report to NICS at least 50 percent of relevant records with a 3 percent cut in certain federal law enforcement grants. But gun-control advocates say those figures are too small to compel broad changes, and Sen. Charles SchumerChuck SchumerSenators weigh future of methane fee in spending bill Biden hopes for deal on economic agenda before Europe trip The Senate is setting a dangerous precedent with Iron Dome funding MORE (D-N.Y.) has pushed legislation to hike both the reporting requirement and the grant penalty. His bill has gone nowhere.
Complicating the issue for gun-control advocates, a 1997 Supreme Court case, Printz v. U.S., found that provisions of the Brady Handgun Act requiring local law enforcers to perform background checks on prospective gun buyers violated the 10th Amendment. The high court did not consider the issue of mandatory reporting to NICS, but experts expect a similar decision if they did.
"It's not like no one thought about it," Horwitz said. "But what power does the federal government have to tell the states what to do?"
A number of lawmakers aren't interested in mandatory reporting in any event. The office of Sen. Mark BegichMark Peter BegichAlaska Senate race sees cash surge in final stretch Alaska group backing independent candidate appears linked to Democrats Sullivan wins Alaska Senate GOP primary MORE, a co-sponsor of Graham's proposal, said the Alaska Democrat "believes there are ways we can strengthen the current system without imposing new laws or mandates to states."
The office of Sen. Mark PryorMark Lunsford PryorBottom line Everybody wants Joe Manchin Cotton glides to reelection in Arkansas MORE (D-Ark.), still another backer of the Graham bill, echoed that message, saying Pryor "thinks it should be up to the states."
"His hope is that if there’s a clear definition that states will begin to supply this information [voluntarily]," spokeswoman Lucy Speed said in an email.
Meanwhile, Schumer's push to win bipartisan support for his bill to expand background checks hit a wall this week when Sen. Tom CoburnThomas (Tom) Allen CoburnBiden and AOC's reckless spending plans are a threat to the planet NSF funding choice: Move forward or fall behind DHS establishes domestic terror unit within its intelligence office MORE (R-Okla.) appeared to walk away from the table. Schumer, however, wasn't discouraged Thursday, saying there are "a lot of people who are interested" in continuing the effort.
"We're moving forward and – who knows? – maybe Tom Coburn and us will come to an agreement at some point," he said. "Things are still very much in play."
Schumer said the Senate is still on track to bring gun legislation to the floor in the first week of April.