Senators propose closing 'domestic violence loophole' after Texas shooting

Senators propose closing 'domestic violence loophole' after Texas shooting
© Greg Nash

A bipartisan duo in the Senate is writing legislation to require that the military report domestic violence convictions to the national background check system.

Sens. Jeff FlakeJeffrey (Jeff) Lane FlakeBiden nominates former Sen. Tom Udall as New Zealand ambassador Biden to nominate Jane Hartley as UK ambassador: report The Hill's Morning Report - Presented by Goldman Sachs - Voting rights will be on '22, '24 ballots MORE (R-Ariz.) and Martin HeinrichMartin Trevor HeinrichSenate panel advances controversial public lands nominee in tie vote A plan to address the growing orphaned wells crisis Schumer vows to only pass infrastructure package that is 'a strong, bold climate bill' MORE (D-N.M.) said the legislation, if it had been been in place, could have prevented Devin Kelley, the identified shooter in the massacre at First Baptist Church in Sutherland Springs, Texas, from getting a gun. 

"We are often asked after a tragedy like this, 'Why can't you do anything to fix it?' We are looking at specifically something that had it been followed this person would not have been able to obtain a firearm," Flake said.


Kelley received a “bad conduct” discharge from the Air Force after being court-martialed on a domestic violence charge. 

His conviction should have been reported to the FBI’s National Instant Criminal Background Check System (NICS), and could have prevented him from purchasing a firearm legally. 

But Air Force officials on Monday said the Holloman Air Force Base Office of Special Investigation did not enter Kelley’s information into the system.

Flake and Heinrich said it appears the military isn't currently reporting domestic assault charges because, they say, the Uniform Code of Military Justice only has a broader assault category and not specifically one for domestic assault.  

"It's quite clear it's because they don't classify domestic assault as you do in state court. They only have a classification for assault, that's a broader classification. I think it's quite clear that they simply weren't sending those assault records through to the NICS," Flake said. 

The senators said they found only one instance of the military reporting a domestic assault charge into the national background check system.


A separate proposal, enacted in the 1990s, from the late Sen. Frank Lautenberg (D-N.J.) bans individuals convicted of misdemeanor domestic violences charges from owning or buying a gun. 

"We have seen from the data that clearly the intent of the original Lautenberg amendment is not being implemented effectively," Heinrich said.

The press conference came after Flake caught criticism from Donald Trump Jr. over the legislation. 

"Incredibly proactive considering that law has been on the books since the mid 90s," Trump Jr. said on Twitter, replying to an announcement from Flake that he was working on the legislation.

After Flake said the bill was aimed at closing a "loophole," Trump Jr. added: "Wrong. Govt employees, like you, failed to do their job. He did a year for abuse & fracturing his kids skull. Should not have had a gun!"

Flake recently said he won't run for reelection next year. After the announcement, he gave a dramatic floor speech where he assailed President TrumpDonald TrumpTrump PACs brought in over M for the first half of 2021 Chicago owes Trump M tax refund, state's attorney mounts legal challenge Biden hits resistance from unions on vaccine requirement MORE and the changes he has brought to the Republican Party.

Senators are weighing their next steps in the wake of the shooting in Texas.

Sen. John CornynJohn CornynBiden's bipartisan deal faces Senate gauntlet Senate votes to take up infrastructure deal Biden officials pledge to confront cybersecurity challenges head-on MORE (R-Texas) said earlier Tuesday that he would introduce legislation aimed at bolstering information sharing with the national background check system. 

Heinrich said he had a preliminary talk with Cornyn and will be sharing the language of their legislation.