The Newtown elementary school massacre has finally sparked a discussion about what to do about the 80 gun deaths in America each day, seven of which are children.
But the dialogue remains constrained, as if we know we have to talk about gun control but we’re still afraid the National Rifle Association (NRA) will scold us as anti-freedom oppressors or start shooting. Beyond the obvious—banning assault weapons and limiting the size of gun clips—there is little information or analysis about concrete reforms that could make a difference. We’re still shying away from basic issues like how criminals, youths, and mass murderers get guns, why existing laws don’t seem to provide rudimentary safety, and why so little attention is paid—and so little responsibility ascribed—to the purveyors and profiteers of the gun industry.
Gun crimes are usually discussed as if the transactions and guns involved are illegal, but the truth is that most guns that end up being used in crimes are obtained legally. The problem is not illegal guns, but the essentially unregulated market in devices designed to kill.
Federal law and the laws of most states allow anyone who can pass a Brady Act record check to walk into a gun store and leave with as many guns as they can pay for. The guns are not registered, and purchasers don’t need a license. Beyond the initial check, federal and most state laws allow gun owners to go on their way. Since the Brady Act covers only federally licensed firearms dealers, purchasers who are not licensed dealers can legally resell or transfer ownership without doing a record check and without reporting or registering the change of ownership. This is the “gun-show loophole,” which opens the door for “straw purchases”—those with no criminal record buying for someone who does. Forty percent of gun purchases and 80 percent of guns used in crimes are obtained in this way.
Some states limit aspects of this essentially open market. A Pennsylvania law channels resales through licensed dealers, but provisions inserted at the NRA’s behest make the law nearly impossible to enforce. This is a typical NRA strategy—proposing and supporting meaningless or gutted laws, then publicly arguing that all we need is to enforce them.
Because owners don’t have to register guns or report transfers of ownership or thefts, law enforcement has no effective way to protect us or to identify who owns a particular gun. Federally licensed firearms dealers must report large-quantity sales to the Bureau of Alcohol, Tobacco, Firearms and Explosives(AFT), but authorities can do nothing unless they monitor the purchasers and catch them doing something illegal, which requires an inordinate expenditure of time and resources.
This is not a serious regulatory scheme for protecting the public, but a gun-industry-driven marketing system that maximizes sales. The unsurprising result is something we know all too much about—easy access for anyone who wants a gun, and for those so inclined, the capability to rather effortlessly inflict death and misery.
Regulations should respond to the specific inadequacies of the gun regulatory system: no Brady Act record checks for almost half of buyers, no records on guns and owners, unlimited quantities of guns and ammunition, no meaningful regulation of sales or re-sales by non-dealers, domestic availability of war weapons, and excessive bullet clips. Reforms have the best chances of adoption if they also respect the rights of law-abiding Americans to own some guns for self-defense and hunting, and are strategically chosen with attention to the politics and culture of guns in America.
Because state laws regulating guns are often undermined if other, particularly bordering, states have looser or no regulations, the most significant results would come from national regulations. The following concrete reforms address the inadequacies of the current system:
1. Require a Brady Act record check for all transfers of guns, and improve the record database and retrieval system. This closes the gun-show loophole.
2. Consider additional prohibitions. Rates of gun homicide perpetrated by 18-20 year olds are extraordinarily high. Federal law allows 18-20 year olds to buy and possess guns (although it prohibits licensed dealers from selling to them). Only five states currently prohibit gun ownership or possession for anyone younger than 21, although all 50 states prohibit them from consuming alcohol. Other or broader prohibitions should also be examined based on, for example, conviction of some misdemeanors in addition to felonies, drug abuse, and mental illness.
3. Register guns and license gun owners. This has shown benefits according to studies of states that have adopted it. Requiring notice of any transfer or theft yields a database that would greatly assist law enforcement and promote responsible ownership, although it raises some privacy concerns.
4. Limit the quantity of purchases of guns and ammunition. One-gun-a-month limits have been enacted by some states, and they only look like a reform because much larger purchases of guns are now common. Legitimating purchases of 12 guns a year every year encourages a level of ownership that has no legitimate purpose. Limits should be set, but at some reasonable level that respects ownership for self-defense and hunting.
5. Ban some guns and ammunition, and require safety and storage features. There is simply no legitimate reason for domestic availability of assault weapons and large clips like those used in Newtown and other recent massacres. Inexpensive design and storage requirements can reduce accidents and accessibility.
6. Establish clear and enforceable criminal offenses related to guns. For example, current federal law and the laws of most states leave law enforcement without a clear or easily enforceable straw-purchasing offense.
7. Repeal the federal and state statutory mess resulting from NRA domination of Congress and many state legislatures, which currently undermines law enforcement and public safety. On the federal level, this should include the prohibition on releasing ATF data; the immunity that protects the gun industry from civil liability for wrongdoing, which was adopted in response to lawsuits by 40 cities and one state (disclosure: I conceived and sometimes litigated the lawsuits); the exclusion of guns and ammunition from the Consumer Products Safety Commission, so the commission cannot investigate, for example, ammunition that blows up in the hands of gun owners; and the recent relaxation of regulations governing manufacturers and dealers (for instance, gun manufacturers can only be subjected to an inspection once a year). On the state level, the NRA has gotten 40 state legislatures to ban (“pre-empt”) local regulation of guns, which has prevented cities and towns from adopting regulations based on their particular circumstances. These should be repealed.
There are three main obstacles to such reforms: the Supreme Court, the NRA, and the politics of guns.
The Supreme Court did not recognize any individual right to gun ownership until the 5-4 decision in Heller v. District of Columbia just a couple of years ago. Previously, the Court relied on the specific language of the Second Amendment to limit gun ownership related to militias. Since we don’t have anything like state militias anymore, the amendment was, like the Third Amendment banning quartering of troops in peoples’ homes, outmoded and of little current effect. In Heller, the majority—comprising the Court’s conservatives—adopted a sweeping new, activist interpretation that transforms the Second Amendment into a general protection of the right to self-defense. This despite the fact that self-defense was already well protected then and is now by state and federal law.
In any event, Second Amendment rights, like all constitutional rights, are not absolute. The court definitively overturned only complete bans on possession of handguns in the home for self-protection. And it explicitly left considerable room for constitutional regulation of guns. This opening, and the possibility that the Court will change in the direction of gun regulation after Newtown or with new appointments by a re-elected President Obama, means that many regulations short of prohibition may be found constitutionally valid. Unreliable predictions of constitutional invalidity based on Heller should not limit long-overdue regulation.
The other obstacles to reform are the NRA and the politics of guns. The considerable power of the NRA is not only a function of abundant funding, effective political strategy, and not-so-veiled threats of violent retaliation. Other rich, politically astute, and no less unscrupulous lobbies don’t do nearly as well. Lead paint, asbestos, and Monsanto’s PCBs got banned; tobacco is seriously regulated. Guns exact as great a toll as any of them, but the difference is that some guns also have legitimate uses, namely self-defense and hunting. Most significantly, many Americans identify guns with our highest ideals—freedom, liberty, and, for some, patriotism—and are at least suspicious of gun regulation.
These associations can seem misplaced, if not perverse, for those of us who didn’t grow up around guns and who see a compelling need for their regulation. But we dismiss this point of view at the risk of conceding defeat on gun regulation. Gun-control advocates should respect those who hold these views, which usually take a more moderate form than the extreme NRA version, and respond strategically. Polls show even NRA members want more regulation. The NRA manipulates the moderate version with slippery-slope arguments and paranoid fantasies of the government disarming all Americans.
The task for those who favor regulation is to focus on the divide between gun moderates and extremists with respectful, common-sense appeals, emphasizing the innocent lives being lost daily and the importance of responsible gun ownership. The problem is not just one or a series of attacks, but daily murders and injuries that can at least be rendered less frequent without any threat to sensible and responsible gun ownership.
Finally, in 2004 Congress let the assault weapons ban expire—a ban on the type of weapon used in the Newtown massacre. That’s only a recent example in a reprehensible legislative record characterized by NRA dominance. But we are currently in the most opportune period for gun reform in the last several decades, mainly because of the heightened disgust generated by the Newtown massacre. The NRA’s stance that, as always, the solution is more guns as well as Vice President Joe Biden’s forthcoming taskforce recommendations could help spur gun reform. But it will take an extraordinary, sustained effort.
The lives lost to guns, as well as the economic costs and the damage to the nation’s social and moral core, should no longer be regrettably normal features of American life. It’s time for our political leaders to pay attention and act with conviction and courage.
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