Thursday, October 30, 2014

How Gun Control Advocates Can Get Expanded Background Checks - An Open Letter To The Center For American Progress

After reading your organization's document "A New Approach to Assault Weapons", I was impressed.  I believe that it deserves a thoughtful and constructive response.  So, although I am an only an individual gun rights advocate, I thought it well worth my time to respond and suggest some ways that you could move forward toward achieving some of your goals.

First, so you can know whom you are talking to, let me tell you a bit about myself and my positions on the issue.  I'm a retired minister who has followed the gun debate closely since 1968.  I'm also a former paramedic and police chaplain.  My views on gun laws are most closely aligned with the Second Amendment Foundation/Citizens Committee for the Right to Keep and Bear Arms.  I am an NRA member and agree with them on most issues, while disagreeing with them on some.  I am not supportive of the GOA because I see them as too extreme.  In other words, within the gun rights community, I am a moderate.

Here are some realities that we face in moving forward:

1) Politically and legally the gun rights movement is stronger than ever before.  As a result, most in the gun rights community see no reason to compromise.  The general attitude is that we can get all we want through the ballot box or the courts.  This may lessen a bit if Washington's I-594 passes, but it's still  going to be a reality for some time to come..

2) The above attitude is reinforced by the history of gun control law in the US. Gun owners tend to take a very long view.  The general attitude is, "We have been giving ground since 1934 while getting little to nothing in return.  We should not give anyone more unless we get something significant."

3) The only way you are going to get anything passed federally is with NRA support.  After Virginia Tech, the NRA stepped up and beat Brady to the punch in advocating a bill requiring states to report mental health commitments to the NICS background check system.  I supported them in this - but GOA and others attacked the NRA with a great deal of misinformation.  They spent millions defending their actions and still lost members who bought the GOA's line that the NRA had "sold out".  Frankly, if the current leadership were to back an expansion of current law without a significant gain for gun rights in return there would be another membership revolt as happened in the 1970s.  This is why getting NRA support for expanded background checks is so difficult - but not impossible.

The net effect of all of the above is that in order to get, say expanded background checks, you are absolutely going to need to give significant concessions. The aftermath of Newtown proves this.  There are measures that you could support that would - if included in a bill with expanded background checks - result in widespread support for the whole package both by individuals like myself and the NRA (CCRKBA already supports expanded background checks).  In fact, there are some that would be impossible for the NRA to resist.  I'll detail them later.  There is also a way to expand background checks that would not encounter nearly as much resistance, while still decreasing illegal transfers and allowing for easier prosecution of both prohibited persons and those who illegally transfer firearms to them.

Here's a brief outline of how you could proceed:

1) Step One: Reach out to gun rights groups and try to work together to get the things most of us already agree upon done.

2) Step Two: Decide which items on your wish list are achievable - which of them are gun rights advocates likely to accept IF they get something in return

3) Step Three: Decide which items on the gun rights wish list you can live with

4) Step Four: Sit down and hammer out a deal between both sides in private

5) Step Five: Jointly make the deal public and ask Congress to act

Step one: Reach out to gun rights groups and try to work together to get the things most of us already agree upon done.

One of the reasons that gun rights advocates are suspicious of gun control groups is that they seem to be opposed to using laws that are already in place.  If gun control groups began by proposing that both sides advocate for these measures, it would not only result in some positive things getting passed, it would serve to build trust between both sides.

The following non-controversial measures are examples of what I am talking about:

1) Fix the Federal Background Check System (NICS). This system is a classic example of "garbage in, garbage out".  In fact, it is so bad that the industry's trade group, the National Shootings Sports Foundation or NSSF, has been trying to get it fixed for years.  (See  At this point a convicted felon or a mentally ill person has about a one in three chance of passing the check.  Without question, this should be priority one for both sides.

2) Aggressively prosecute straw purchasers and require prison time for ALL those convicted. Advertise this widely. Too many straw purchasers are simply not prosecuted - and those that are seldom see the inside of a prison.  By definition, these people are generally law abiding and a creditable threat of prison will deter many.  NSSF and ATF have worked to fight straw purchasing with their "Don't Lie For The Other Guy" program.  More prosecutions with prison time for those convicted would do a great deal to deter straw purchasing.

3) Aggressively prosecute prohibited persons who attempt to buy firearms and fail the NICS check.  At this point someone illegally attempting to buy a firearm at a dealer and failing the NICS check has about a 1 in 300 chance of being prosecuted and a 1 in 1000 chance of being convicted.  The federal system does not even notify state and local authorities who might be able to bring charges under state laws - or in many cases simply violate their parole or probation.   This is in spite of the fact that the paperwork provides nearly all the evidence needed to convict.  With odds like these, prohibited have nothing to loose by trying to buy a gun at a dealer.  (Also, stop claiming that every NICS denial prevents a prohibited person from obtaining a firearm.  A large number are denied in error and over turned on appeal - and without prosecution the remainder are free to buy a firearm through illegal channels.)

The above measures would not only do a lot of good - without the passage any new laws - it would do a great deal to increase the likelihood of passing expanded background checks.  The attitude of many in the gun rights community is, "Why should we buy into new laws when the ones we have are not even being used?"  The lack of prosecution causes many to question if the motive for expanded background checks is really to keep criminals and the mentally ill from obtaining firearms - or is the motive something else, such as the creation of an underground registry.

4) Create an adequate system for screening possibly mentally ill persons by law enforcement in the field - and the temporary commitment of those who show signs of severe mental illness to mental health facilities.  Those who are found to actually be severely or violently mentally ill should be prohibited from buying, owning or possessing firearms and their names and identifying information entered into the NICS database.  The reality is that most of the mentally ill persons involved in high profile shootings passed background checks - even though they often had prior contact with law enforcement for bizarre or threatening behavior.  The best background check system in the world is totally ineffective if we do not identify the dangerously mentally ill.

5) Implement ATF's "Project Exile" nation wide.
While this was somewhat controversial, both in gun rights (NRA supported, GOA opposed) and civil rights circles - but it really worked well.   The system of embedding ATF agents in local police agencies and of threatening criminals carrying firearms with federal time, likely in a prison far from home (hence the name) proved effective at reducing the carrying of firearms by criminals such as drug dealers.

If both sides could work together on these issues, it would do a lot to build trust and set the stage for the next step.

Step Two: Decide which items on your wish list are achievable - which of them are gun rights advocates likely to accept IF they get something in return

Now let's look at your proposals:

"Require background checks for all gun sales"

This should be the easiest measure of all - especially since one of the "big three" gun rights groups, the Citizen's Committee for the Right to Keep and Bear Arms (CCRKBA), has and does support expanded background checks - as do I.
  They even helped write the failed Senate bill.  However, since then Michael Bloomberg has "poisoned the well" by pushing highly deceptive laws in both Colorado and Washington.

In both the Colorado law that was rammed through the legislature post Newtown and the Washington initiative (I-594) the term "transfer" is completely redefined. Under federal law and, until recently, every state law, a transfer was defined as a change in ownership.  Only then would a background check be required.  In the Colorado law and the Washington initiative a transfer is defined as any time a gun is handed to another person. 

A parallel that will help non-gun owners understand is that of vehicle registrations.  In every state, a registration change requirement is triggered when the ownership of the vehicle changes.  Imagine the uproar if allowing your friend to drive your car - with you as a passenger - required a trip to DMV, payment of a fee and potentially several days to process a change in registration.  This is exactly the effect of the Colorado law and Washington's I-594.

While it is true that there are specific exceptions, there are still many common and legal practices that would require a background check.  Let's consider what practices I-594, of passed, would criminalize:

a) I take you to the forest to go shooting.  I hand you one of my guns so you can shoot it under my direct supervision.  You hand it back to me so I can show you how to shoot it more accurately.  I demonstrate a better shooting position and hand it back to you so you can try shooting it again.  Under I-594, both of us have committed a felony.

b) A volunteer is conducting a Hunter Safety course - which is governed by international standards.  As required by these standards, he passes several safety checked firearms around the classroom so that the student can become familiar with the different types of firearms used in hunting.  Under I-594, unless the course is taught at a "licensed range" the instructor and every student have committed multiple felonies.   It is not even clear that teaching the class at a classroom on range property would be legal.

c) I take my 18-year-old son hunting with me.  Because he doesn't yet own a firearm, I let him use one of mine.  I decide to stay put, hoping the game will come to me - my son keeps looking.  We meet up later and he gives me my gun back.  Under I-594, both of us have committed a crime.

d) My son has small children.  He asks me if it is OK to keep his guns at my house - something recommended by my home state of California as a safety measure (and something I have done for my son).  He drops them off and later picks them up on the way to the range.  Under I-594, we have both committed felonies.

e) Years ago, I taught my daughter how to shoot and safely handle firearms.  One night a stalker tries to break into her apartment.  She asks to borrow one of my firearms.  I honor her request.  After buying her own gun (and passing a background check and waiting 30 days), she returns my firearm.   Under I-594, we have both committed felonies.  This would be legal even under my native California's restrictive gun laws, as long as the loan did not exceed 30 days. This would be ample time for her to obtain her own firearm.

f) You ask to see one of my guns because you are thinking of buying one and you want to see if it is a good "fit".  I open my gun safe and hand you the gun.  After you check it out you had it back to me.  You guessed it - under I-594, we both committed a felony.

g) My friend - whom I know to be safe and competent with firearms - offers to take our  teenage sons shooting in the woods.  I give permission.  We have both committed crimes.

h) Unbelievably, it would be illegal for one police officer to lend another police officer a firearm for off duty use, without a background check (and waiting period).  So, if a cop's only concealable handgun is in for servicing, he or she has to risk not carrying.  I sure hope they don't run into anyone they have arrested!

In fact, the Colorado law and I-594 law could backfire in a major way.  They invite gun rights groups to go for federal preemption of all gun laws, and provide the best argument for doing so I have ever seen.

These deceptive laws are why support among gun owners for expanded background checks has dropped like a rock - and without at least some support from gun owners (and likely some gun rights groups), nothing is gong to happen. 

Sadly, this massive and deceptive overreach has done a lot to poison the well on this issue. If a federal UBC bill is ever to be passed, other groups advocating them have to distance themselves from deceptive and Draconian measures like I-594 and make it clear that they only advocate background checks on SALES or other transfers of OWNERSHIP

When it comes to background checks, the devil is in the details.  I believe that the way to get "universal" background checks is to make them "optional".  Here's how it could work.

a) Create strict criminal liability for selling a firearm to a prohibited person.
This should be a "wobbler" - meaning that the violator could be charged with a felony or a misdemeanor at the discretion of the prosecutor for the first offense only.  Any additional offenses would be felonies with mandatory prison time.

b) Having a dealer do a NICS background check on the purchaser would exempt the seller from prosecution - even if the NICS check clears the purchaser in error.

c) Industry concerns would be addressed in the law.  Liability protection would be provided to the dealers doing background checks, etc.  The price charged for the background check would be controlled.  All FFLs would be required to do checks on private sales.

d) Open the NICS system to licensed collectors so they can do their own checks when selling to unlicensed persons.

So, how would this work in practice?

First, if I am absolutely sure that the person I am transferring the firearm to is not a prohibited person - I can simply give it to them. This takes care of family, close friends, etc.  It also goes a long way towards easing fears that background checks are just a cover for registration of all firearms.

Second, when selling to a stranger - or even a causal acquaintance - an honest, law abiding seller is going to do a NICS check through a dealer because not doing so risks criminal prosecution.  This takes care of sales where two people connect at a gun show, Armslist, etc.  Those who do these transfers without a NICS check under these circumstances would likely do so no matter what the law is, and could still be prosecuted.

Third, people who intentionally transfer firearms to prohibited persons could be more easily prosecuted because of the strict liability provisions.  Think about this for a moment.  These people are not going to do a check no matter what the law is.  They are already breaking the law now - and they will continue to do so.   The best we can do is to prevent honest people from unintentionally or carelessly selling to prohibited persons.

Such a law would be much easier to pass, and would provide just as much protection as a law requiring a background check on every transfer. 

Finally, I agree with Professor Adam Winkler of UCLA Law School, when he says that background checks are limited in their effectiveness. A failed check does not mean that the person who tried to buy a firearm illegally at a dealer will not succeed in buying one illegally on the "black market".    The most we can accomplish with background checks is to force such people into the underground market - unless we prosecute them for lying on the form, which I certainly advocate.  Even then, we can only discourage them from attempting to buy through legal channels.

"Require dealers to report multiple sales of long guns"

My suggestion here is more modest - but would likely accomplish just as much.  Simply change federal law so that centerfire semiautomatic long guns with removable magazines are treated in the same way as handguns.  Since it is semi-autos that cause the most concern, this would accomplish just as much and face less opposition.  A great deal of the opposition to the reporting now in effect in the Southwest is rooted in the fact that it was established via DOJ order, rather than by law.

"Equalize interstate sales of long guns and handguns (allow purchases in other states)"

While many gun rights advocates would support a change in the law to allow non-resident purchases, this proposal's requirement that ATF be notified on all of these sales is going to cause massive opposition.  When we see such a requirement, we tend to think "underground registry" - because more than one state has been caught using background checks to create them, even when this was illegal.

On the other hand, state notification is understandable - since several states (including mine) have registration requirements.  My suggestion here is to eliminate the ATF notification and only notify states that request it and have a registration requirement. This would allow states that register handguns to ensure that their residents comply with said registration requirements.  With these changes, this proposal would face little opposition.

Of course, the current ATF for notification on all sales of multiple handguns would remain in place, possibly with the additional requirement of notification of multiple sales of semi-auto long guns.

"Require federal firearms licenses for individuals that manufacture guns using 3D printers"

The way to get this passed is simple: License ALL home gun makers and allow owners of home made firearms to "occasionally" sell them.
This would be somewhat similar to the current licensing of collectors, which has worked very well for nearly 30 years.  Right now, while it is legal to make your own long gun - you can never sell or transfer it.  If we require a special license to make your own firearm, then makers should be allowed to sell or transfer them on an infrequent basis (not to exceed 3-6 sales per year).  This would likely be seen as a win-win by gun rights advocates.

"Bar possession and use of machine guns by individuals under the age of 16"

Of course, machine guns are highly regulated and few are in civilian hands.  For this reason, such a bill would not be a huge issue for most gun rights advocates.  However, lowering the age to 14 and adding appropriate height and weight requirements would lower opposition.  Personally, I think liability insurance companies are likely to take care for these problems without any new laws.   Having actually fired a fully auto weapon at a facility that does things correctly, I don't think that such a rule would significantly hurt their business.

"Require a permit for possession of assault weapons"

This is going to be the most difficult of all of your proposals to achieve - for many reasons.

First, most of us are quite confident that such firearms are clearly protected by the 2nd Amendment, for several reasons.  They are the most popular firearms in America - and thus fall under the "common use" provision, as outlined in Heller.  As you know, they are use less often in crimes than handguns - which SCOTUS found to be protected in spite of their high involvement in crime.  Next, the gun control side has constantly pushed the idea that the 2nd Amendment is about the militia.  In his dissenting opinion in Heller, Justice Blackman wrote that if the 2nd Amendment protected any kind of firearm, it protected the M16!  Why?  Simple: It is the lineal descendent of the musket.  It is the basic infantry weapon that most militia members would have brought with them when called into service.  I would not be inclined to support any ban on semiauto rifles - and I am part of the moderate wing of the gun rights movement.

Now, to be completely honest, there is one category of so called "assault weapons" that you might be able to ban: Pistol versions of rifles like the AK47 and AR15 are not in common use.  I do not know how often they are used in crimes - in fact I do not even think anyone keeps data on this.  It might be a good idea to track this.

Before we leave this topic, if you want to build bridges to even the moderate wing of the gun rights movement PLEASE STOP USING THE TERM "ASSAULT WEAPON".  Here's why:

1) It is a meaningless term that can be redefined over and over to include more and more firearms. Want proof?  Here in California Gov. Brown vetoed a bill last year that would have defined any semiautomatic rifle with a removable magazine as an assault weapon. 

2) There is no functional difference between semiautomatic removable magazine rifles classed as assault weapons and those that are not. Anyone who owns or has experience with both - as I do - knows this to be true.

3) The term assault rifle does have a specific definition: A semiauto rifle that fires an intermediate power cartridge, has a high capacity magazine and is selective fire semi and full automatic.  None of the so called "assault weapons" are selective fire - and therefore none are true assault rifles.  The term is used by gun control advocates in an effort to confuse people. Documents obtained from gun control groups indicate that they intentionally take advantage of the fact that many Americans do not understand the difference between a legal, semiauto rifle and a highly controlled machine gun. 

Put yourself in the place of a gun rights advocate.  Are you going to trust a group enough to sit down and hammer out a deal when that group is intentionally using deception against you?

Just be honest - what you want are controls on all semi autorifles.  Just admit it, and at least we will be able to honestly disagree with respect.  That said, I don't think that licensing is ever going to pass with the support of any of the gun rights groups.  However, if we could get on top of who is able to by them - through expanded background checks and increased enforcement - there would be less need for licensing.  Background checks remain your best and easiest target IF you can distance yourself from the deceptive systems in I-594 and the Colorado law.

3) Step Three: Decide which items on the gun rights wish list you can live with

Like gun control advocates, we have a list of things we would like.  Let me preface this by saying that in order to get what you want, you are going to have to offer something big - not something small.  The NRA leadership knows full well that they can and will be thrown out if whatever deal they make is considered a net loss.  It needs to be a win - win deal.

Here, as I see it, are the two things that would be considered "big" concessions by the gun rights community. Granting one of these would be enough to get UBCs passed with significant support from the gun rights side

Federal preemption of most state gun laws.  This would include laws on the sale, possession, and ownership of firearms.  If we set up a comprehensive federal background checks system, many of these laws would become redundant.  Additionally, many of these laws are likely to be lost to constitutional challenges in the next few years anyway - so trading then away makes sense.  Finally, preemption would find it's greatest support from gun owners in states with strict gun laws - where the NRA had many, many members - but would be opposed by NRA members in states with few gun laws.  If you want to cause conflict in the NRA, offering this deal would be a good way to do it.  In the end, they would likely support UBCs in exchange for preemption.

National Carry Permit Reciprocity
- Frankly, I think that this is another concession that has advantages for your side. This is a card that you will likely loose if you do not play it.  43 states are now "shall issue" or better, and although SCOTUS has not taken a carry case yet, circuit court splits will likely force them to do so soon.  The chance of total bans on carry or "may issue" systems surviving review is extremely low - and the states are rapidly working out reciprocity agreements.  Right now, this is a big deal.  A year or two from now it may be a mute point.  Second, by setting standards for permits subject to mandatory reciprocity you have an opportunity to raise training (and perhaps background check) standards in many states.   After 25 years and 43 states worth of experience, if licensed concealed carry were really as dangerous and counter productive as you wish it was, it would not have advanced to this point. It's time to give up on stopping it, and focus on how to improve it through better training standards, background checks, etc.

The following two issues are of a lower priority than the first two, but could be part of a deal:

Suppressor (Silencer) Reform
- Ironically, this is the one area in which US law is much more restrictive than laws in Europe.  In many areas of Europe these devices are required - while here we treat them in the same way as machine guns.  Increasingly suppressors are being seen as what they are: Safety devices.  Many states allow hunter to use them for just this reason.  Suppressors do not "silence" a firearm any more than a muffler silences a car.  Indeed, they are basically the same technology.  Under current law, purchasing a suppressor requires payment of a $200.00 transfer tax, a background check and a local law enforcement "sign off".  This last provision goes back to the 1930s when computerized records checks did not exist.  It is no longer necessary to contact local law enforcement to clear someone - but law enforcement in many communities simply deny all requests for sign offs, effectively allowing them to write their own firearms law.  Gun rights advocates are not arguing for complete deregulation - instead they are looking for the elimination of the local law enforcement "sign off" and a reduction in the transfer tax to $5.00 - the same as the transfer tax on short barreled rifles and shotguns.

Give the Firearms Owners Protection Act of 1986 teeth.  As you probably know, this law allows gun owners a form of "innocent passage" with firearms that may not be legal in the state they are traveling through PROVIDED that they are unloaded and in a locked case.  Gun owners should not be arrested while traveling in compliance with this law - but without any penalties NYC and Chicago routinely arrest travelers who have to claim their checked firearms.  This is in spite of the fact that the firearm is unloaded and in a locked case in full compliance with the law.  These cities bring charges knowing full well that they will end up being dismissed - of course only after the gun owner has paid thousand to tens of thousands in bail and attorneys fees.  In these cases, where the defendant was found to be in compliance, there should be a federally mandated penalty of at least three times the defendant's expenses.  This problem is so bad that the NRA has warned people traveling with firearms - such as competitive shooters and hunters - to avoid even being routed through NYC and Chicago airports.  As you might imagine, this can be both difficult and expensive.  This was part of the 2013 senate bill that did not pass.  Of course, if federal preemption is passed, this becomes a mute point.

4) Step Four: Sit down and hammer out a deal between both sides in private

I would suggest that you not make your first approach to the NRA.  I would approach the CCRKBA.  I would also suggest that you hammer out an initial deal with them and then bring in more groups on the gun control side and let CCRKBA bring in more on the gun rights side.  If the deal includes a huge win for gun rights and Universal Background Checks (UBCs) - it will be hard for the NRA to oppose the deal.

5) Step Five: Jointly make the deal public and ask Congress to act

If both sides in the debate back the proposal, getting it passed will be easy.  Sure, radicals on both sides may oppose, but the opposition of the GOA won't mean much if the rest of the gun rights movement is onboard.

Well, these are my suggestions.  I hope you found them helpful.  I would really like to see a "grand bargain" on gun control - and I think it is possible.  Please feel free to contact me.

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