Since we are in the middle of a "national conversation" in regards to gun laws, I thought I would address the question of common ground. Clearly, we should all want our current gun laws to work, right? Obviously the gun control community should want the laws they worked so hard to pass to work as well as possible, right? Gun rights groups should want the same thing because it decreases the need for any further laws. So, what can be done to get the most effect out of the laws currently on the books?
1) Report ALL Instant Check Denials To Local Law Enforcement AND The BATFE - Prosecute Those Who Attempt To Illegally Buy Firearms
It is unbelievable that this is not happening, but believe it or not it isn't. That's right, even though it is a felony under federal law - and in many, if not most cases, state laws - local law enforcement is not informed of failed attempts by prohibited persons to buy firearms. Furthermore, this appears to be an extremely low priority for BATFE and the Department of Justice as well.
In case you are not familiar with the process, every person who attempts to buy a firearm must fill out ATF Form 4473. On that form are listed all of the reasons a person may be legally ineligible to own a firearm. The applicant must swear, under penalty of perjury, that each of them does not apply. The applicant must present ID, it is in their handwriting and their prints are all over the form. One would think that prosecution would be a slam dunk.
According to a study of Instant Checks done in 2005, of 8.3 Million checks done in that year, 66,700 were rejected. Of these, 46% were rejected for felony convictions or current charges, 15% were for convictions for domestic violence or a current restraining order, and the rest were for other reasons such as mental health commitments.
So, of 66,700 rejections, 61% - or about 41,000 - were attempts by criminals or people at risk of committing domestic violence who flat out lied on the form - which is a felony. How many were even referred to the Department of Justice for prosecution? Answer: 135, or .33%. There is no indication that this situation has changed
So a criminal risks no more than a 1 in 300 chance of being prosecuted if they try to illegally buy a gun from a licensed dealer. Why not try? Maybe you can slip through - and that leads us to our next point.
2) Make Sure That The Instant Check System's Database Is Accurate And Complete
There are serious concerns about the many prohibited persons not making it into the database. This was the case with the Virginia Tech shooting, the shooter was disqualified from owning firearms due to a past mental health commitment, but that fact was not in the database.
Mayors Against Illegal Guns has expressed this concern as recently as April 2012. Surprising to many readers, the NRA has long voiced similar concerns - about mental health, criminal conviction and restraining order reporting. After Virginia Tech, the NRA immediately called for a federal law mandating that all mental health commitments be reported to the FBI by the courts. This was done in the National Instant Criminal Background Check Improvement Act of 2008, which was supported by both gun rights and gun control advocacy groups. After the Sandy Hook shooting in December of 2012, the NRA called for a national "active" database of the severely mentally ill, so that it can be linked to the Instant Check database. 38 states already have such databases, and it would seem like a very good idea, so no one would be opposed, right?
Wrong. It turns out that there is a great deal of opposition from the mental health community. They are concerned about their patients being stigmatized.
So, here we have something that both sides actually agree on, but it is not happening. Why not?
3) Appoint A Non-Political Reformer To Head BATFE
The ATF is a disaster. It has been involved, and in most cases has been the cause of, too many Federal law enforcement scandals. Waco, Ruby Ridge, and now Fast and Furious. The culture there is toxic, going back as far as it's beginning as the "Prohibition Cops". Honest hard working agents have been punished for whistle blowing and have gone so far as to create a website where scandals can be reported upon anonymously. This is the agency that will be in charge of enforcing any new gun laws. When they punish their own agents for speaking the truth, it's easy to understand why gun owners are concerned about new laws and the agency that will enforce them.
ATF has been without a permanent director for years, due to NRA opposition. Why has the NRA been opposed? Simple, instead of appointing a tough, no nonsense director who will clean BATFE up and see that the gun laws are enforced, President Obama has appointed a series of anti-gun rights activists. The NRA has not been alone. These nominees have not even been able to get the support of the Democratic senators, let alone any Republicans.
The job of BATFE is to enforce the laws we have fully and fairly - not to drum up support for new laws while neglecting to enforce the ones on the books.
4) Rebuild Relationships With Firearms Dealers
The most important person in regards to keeping guns out of the wrong hands is the licensed gun dealer, commonly called a "FFL". A large percentage are retired law enforcement or military. Virtually none of them want to sell to criminals or the mentally ill. They are the people who spot "straw purchasers" and get them arrested by ATF using the "stall and call" method. They are also the people who frequently refuse to sell to someone because "something isn't right" about them. The FFLs are where the records are kept that enable the final step in gun tracing to take place. As one agent testified before congress, "FFLs make our cases for us".
Sadly, Fast and Furious has done much to damage these important relationships. Dealers were told to keep selling to criminals by ATF supervisors. When they expressed concerns about the sheer volume of guns they were being told to sell, and expressed concerns that people - US law enforcement in particular - might be killed with them, they were simply lied to. ATF supervisors told them that no guns were getting over the border and none were getting away. When the situation feared by both the gun dealers and many ATF agents actually happened, and a federal agent was killed with one of the guns, the ATF supervisors at fault actually had the gall to try to arrest the very gun dealers that they had ordered to sell the guns in the first place. Fortunately, the dealers had a massive amount of hard evidence to prove what really happened. Is it any wonder that dealers are distrustful of the agency?
5) Re-Establish ATF's "Operation Exile" And Institute It NATIONWIDE
Operation Exile, more accurately called Project Exile, began with a pilot program in Richmond Virginia. It was a program that put ATF agents along side local police to enable them to bring federal gun charges when criminals were found to be in possession of firearms. The mere possession of a single firearm by a convicted felon is itself a federal felony. Conviction on these federal charges results in up to a five year sentence, served not in a reasonably close state prison, but in a federal prison far from home and family (hence the "exile").
This program was supported by both the NRA and Brady, It was opposed by gun rights groups to the "right" of the NRA and some civil rights groups who thought it racist.
The results: 372 persons were arrested on federal gun charges, an unknown number of felons were "flipped", 300 more charged with state gun law violations, and 196 sentenced to an average of 55 months in federal prison. This, and an aggressive media campaign aimed at warning criminals about what would happen if they were caught with a gun, had a dramatic effect. Many drug dealers decided that it was a greater risk to carry a gun than not - and they stopped carrying firearms. There was also a significant drop in the murder rate.
There were plans to expand the program, but they were dropped. Lord knows why.
So, there you have it. Before we start a huge political battle that is likely to accomplish little, why not begin by doing the things that the major players on both sides agree on?
Or, from my perspective as a gun rights advocate: Why do we keep passing laws that we then fail to enforce so we can then say that they have failed and use that "fact" to pass more laws? In 40+ years of following this issue, I have seen this happen again and again. It's time to really do something: ENFORCE THE LAWS WE HAVE TO THE FULLEST.
UPDATE: We now have heard Pres. Obama's "executive orders" on gun violence. He only implemented two of my five points. First, he has moved to make the instant check database more accurate and second, he will be appointing a new ATF director - but we do not know what that directors agenda will be.
Other than "increasing the prosecutions of guns crime" there is no indication that the administration will begin prosecuting criminals who fail background checks. There is also no indication that the administration will re-institute "project exile" or rebuild broken relationships with gun dealers. One wonders why not?
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