Neither of the two main proposals now in Congress to expand background checks on gun sales likely would have prevented the shooters who carried out the attacks last month in El Paso and Dayton from buying their weapons.
Both men appear to have legally purchased the guns used, picking up their weapons from firearms dealers that must complete background checks, according to law enforcement officials.
A shooting spree along a highway in West Texas last month involved a different scenario. The 36-year-old suspected gunman who fatally shot seven people and wounded 22 others bought his gun in a private sale that allowed him to bypass a background check. Seth Ator, who was killed in a shootout with police, had failed a background check in 2014, according to media reports.
Many of the details of that private sale are not yet known, and some reports have suggested the gun may have been illegally manufactured. Depending on those details, it may have been blocked by one or both of the background check proposals up for debate — or it may be another example of the difficulty in crafting a law to prevent all scenarios.
As investigators dig in on that recent attack and President Donald Trump weighs whether he’ll throw his support behind any tougher gun policies, even advocates of expanding background checks remain divided over the best approach to closing loopholes.
For now, Senate Leader Mitch McConnell said Congress is in a holding pattern. “I still await guidance from the White House as to what [Trump] thinks he’s comfortable signing,” McConnell said this week.
Democrats have pushed for requiring background checks on virtually all gun sales or transfers, a proposal that cleared the House of Representatives earlier this year. The bill, known as HR 8, has some narrow exceptions for gifts to family members and transfers for hunting and target shooting.
Republican Sen. Pat Toomey of Pennsylvania has used his 2013 proposal expanding checks to all commercial gun sales as the template for swaying the White House and his GOP colleagues. That proposal, drafted with Democratic Sen. Joe Manchin of West Virginia, would require checks on sales at gun shows, through newspaper ads, or those advertised online. It allows for a broader group of private sales without background checks, allowing those transactions between family members, friends or other acquaintances.
As introduced, the Toomey-Manchin bill closes fewer loopholes than the Democratic bill, and weakens several other gun restraints. It was unsuccessful in clearing a procedural hurdle in the Senate in 2013.
While the president has not backed any of the proposals up for discussion, Attorney General Bill Barr has circulated a draft memo on Capitol Hill described as “consistent” with Toomey-Manchin in his meetings with GOP senators on potential gun legislation.
Toomey and his staff have compiled a list of eight shootings they say could have been prevented if his proposal had been in place. That tally includes the 2012 attack at a Pittsburgh hospital where John Shick, who failed a background check because he had been involuntarily committed to mental institutions, shot six people, killing one.
“There are many, many such cases, and it’s possible that the recent Odessa shooting could have been prevented as well,” Toomey told reporters earlier this month.
The Odessa shooting appeared to have spurred at least one of Toomey’s Republican colleagues, Sen. Lindsey Graham, to reconsider his position on expanding background checks to all commercial sales.
“The guy was mentally ill, could not get a gun when he went to the gun store because he was in the background system, bought a gun from a nonfamily, nonfriend person who was selling guns for money,” Graham said. “So I’d like to capture that transaction.”
Some Democrats and gun-control advocates, however, have criticized the Toomey-Manchin proposal, arguing that too many loopholes would remain, allowing for private sales without a background check. Asked for examples, several pointed to the Odessa shooting as one that remains an open question, adding that a lack of details in some cases make it hard to discern if they would be blocked or not.
David Chipman, a senior policy adviser with the Giffords gun-control advocacy group and a former special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, said even if the Toomey-Manchin proposal would have blocked the path that the Odessa shooter did use to buy his weapon, there would have been other potential avenues available under that bill, such as buying from a friend, that would not be available under a universal check system.
“HR 8 is constructed very clearly,” Chipman said, referring to the House-approved background check bill.
Toomey has said he’s open to changes to his 2013 proposal. The private negotiations that have been ongoing since the El Paso and Dayton shootings have not yet resulted in a new public draft, though he and other senators involved say they’re continuing to work toward a measure that could gain 60 votes in the Senate.
Background checks are likely to only be one piece of any proposal. Advocates for tougher gun laws say those laws can only do so much to prevent gun violence. They also call for proposals like extreme risk protection orders, also known as “red flag” laws, which would allow authorities to temporarily remove guns from someone believed to be dangerous to themselves or others.
Washington correspondent Laura Olson can be reached at 202-780-9540 or lolson@mcall.com.
