(This is an edited excerpt from an article that originally appeared on Scott Bradford: Off on a Tangent in 2013.)
There is always a lot of talk about gun control legislation in the aftermath of each horrific mass shooting incident. This is a natural response to such a senseless tragedy. We want to do something to prevent it from happening again. I sympathize with this feeling; I feel it too.
We tend to think in terms of government action…so when we see a social problem that needs to be fixed, we often expect the government to do something about it. And because so much of the news cycle is dominated by the activities of the federal government, we too-often expect Washington to step in when our local statehouses (or county seats) might be a better place to start.
We need to remember some of the founding doctrines of the American republic: First, government is a necessary evil, and should only be used to solve problems when they cannot be solved some other way. Second, when government must be used to solve a problem, we must try to solve it at the state and local levels, and only defer to the national government in its specific areas of responsibility (U.S. Constitution, Article 1, Section 8).
When we consider gun control proposals, we need to bear in mind that we’re not talking about health care, or immigration policy, or automotive safety standards. No, we’re talking about a human right, and one of the enumerated civil rights from the Bill of Rights. More on this on the page that deals with the right to defend life, liberty, and property.
We need to consider all gun control proposals in this light. Just because a proposal might reduce gun violence is not automatically a reason to make it the law. We also have to weigh the impact that law might have on innocent citizens, and how it might impact their exercise of a human right.
We also need to avoid the temptation to over-simplify the problem. Violence isn’t caused by firearms. No gun ever leaped from its safe, pointed itself at somebody, and fired. Every gun crime — every murder, every assault, every threat, and, yes, every gun accident — happened because a person did something wrong. Demonizing the tool is a cop-out. Yes, an argument can be made that guns make certain crimes easier. And an argument can also be made that gun crimes and accidents are more likely to result in death than, say, knife crimes and accidents. These are fair arguments, and they should be weighed accordingly in our consideration of these proposals. But in the end, limiting or eliminating a particular tool cannot and will not eliminate some individuals’ tendencies toward violence or irresponsibility.
When it comes to gun legislation, we need to set reasonable goals and express them clearly. Let’s be crystal clear here: The goal should not be to simply ‘reduce gun violence’ or ‘reduce gun crime.’ The goal must be to reduce all violence, and all crime. If your stated goal is to reduce gun murders, maybe strict gun laws will work. But if we successfully reduce gun murders without reducing the overall murder rate, that’s not really success. The murder victim doesn’t care whether he was killed with a gun, knife, hammer, car, poison, anvil, or blow-dart. Neither should we.
So with all of that in mind, let’s look at a few specific gun law reforms that were proposed by President Obama in 2013.
Universal Background Checks
All federally licensed firearms dealers are required to run a prospective gun-buyer’s information through the National Instant Criminal Background Check System (NICS) to determine whether they are eligible to buy a gun. This applies both to retail and gun-show sales made by a licensed dealer. These checks generally take only minutes, and do not unduly interfere with citizens’ rights. Gun sales between individuals — either at gun shows or privately — are unregulated, which is what people mean when they refer to the ‘gun show loophole’ (which is neither limited to gun shows, nor is it a ‘loophole’).
There have been calls to require background checks on these kinds of private sales, with some exceptions for transfers between family members (e.g., inheritance) and temporary transfers for hunting and sporting purposes. Since it is clearly in the public interest that felons and the mentally ill not have access to firearms, and the NICS background check system does not unduly burden firearms purchasers, I support universal background checks (with four reservations described below).
My first reservation is that, with regard to gun shows, a mechanism should be provided by which attendees can pass a background check and receive a certificate allowing them to make purchases within the show (whether from licensed dealers or individuals), or even for the next week or two. Purchasers should not have to go through repeated checks at each purchase point.
My second reservation is that, since private sales will need to go through licensed dealers [because they are the ones with access to NICS], the cost of private firearms sales will increase. This should be mitigated by a hard limit on how much dealers can charge for performing a NICS background check in the $10-20 range.
My third reservation is that exceptions for transfers between family members must be robust and broad, although it would be acceptable to also include stiff penalties for somebody who transfers a firearm to a family member they know or suspect is ineligible to purchase one.
My fourth reservation is that the NICS must not keep any record of who had their background checked or how many times it was done (due to the Second Amendment chilling effect of a permanent record).
NICS Reporting by States
The states are responsible for submitting criminal and mental health information to NICS, and the system is only as good as the information submitted to it. Although the system is fairly effective at disallowing firearms sales to convicted felons, it is much more ‘hit and miss’ with regard to mental health issues and other legal impediments to firearms ownership.
For example, Seung-Hui Cho — the Virginia Tech shooter — purchased his guns after passing a NICS check, even though he had well-documented mental issues. And too many other mass shooters had well-known issues, history of domestic abuse, or even criminal convictions…but passed the NICS check anyway.
The NICS system has not been shown to unduly burden law-abiding citizens, and it serves an important public function (keeping firearms out of the hands of those legally ineligible to have them). But there have been too many failures to catch people who rightfully should not have been allowed to buy guns. I support major improvements to the NICS reporting requirements (with two reservations described below).
My first reservation is that we shouldn’t just do some back-handed incentivizing to “encourage” the states to submit information to NICS…Congress should simply require it. No need to beat around the bush. This is an important national security and human rights issue and there is a valid federal authority to impose it upon the states, and the states have (unfortunately) proven they cannot be trusted to do this on their own.
My second reservation is that we need to be very careful with the mental health components. No doctor or mental health official should be able to arbitrarily declare a U.S. citizen ineligible to exercise their Second Amendment rights. This kind of a restriction on individual liberty must be adjudicated very seriously — used sparingly, and only in the most serious of situations.
After a doctor or mental health official judges somebody ineligible to purchase a firearm, that recommendation must be reviewed and approved by a judge before that person’s name is submitted to NICS. There must also be clear, robust avenues for appeal.
“Assault Weapons” Bans
The so-called “assault weapons” ban that was in effect from 1994 to 2004 was utter nonsense, and it had no discernible impact on violence or crime in the United States. Many supporters of gun control continually propose bringing back this ban and even “strengthening” it. But these bans are based on nothing more than how a firearm looks and what accessories an owner wishes to fasten to it.
As such, “assault weapons” bans are meaningless feel-good measures. We already know they won’t accomplish anything — in part because we already tried them, and in part because we know that there is no actual functional difference between an “assault weapon” and your average hunting rifle.
It is often said that “nobody needs an assault weapon,” which may be true, but lack of “need” is not sufficient reason to limit a human right. I don’t “need” this web site either, but I have the right to publish it none-the-less. I strongly oppose “assault weapons” bans.
Like the “assault weapons” ban, a magazine limit might sound pretty reasonable on its face…but it isn’t.
First and foremost, the only justification for this limit is the argument that “nobody needs more than ten rounds.” As mentioned before, we don’t confer civil liberties on the basis of “need” — nor should we. Furthermore, there are plenty of real-world defensive situations when more than ten rounds would be necessary. In multiple-attacker situations, expending ten rounds is a real possibility (especially given that even trained law enforcement officers don’t hit their target every single time). Even in single-attacker situations, certain drugs can limit an assailant’s pain response and allow him to continue an attack even after being shot ten times.
A ten round limit will have little impact on mass shooters, who will simply carry multiple magazines and change them as necessary (losing only a few seconds in the process). But for citizens exercising their self defense rights, who are much less likely to carry backup magazines and much less likely to be thinking methodically in a defensive situation, it would significantly reduce their capability. Some who support such a limit claim that magazines with more than ten rounds serve no defensive purpose; if that is true, why do law enforcement officers — who also carry guns for self defense purposes — insist on being exempted? In a truly free country, there cannot be a double standard between the defensive tools that state officials can use to protect their lives, and the defensive tools that average citizens can use to protect theirs.
Although a ten round magazine limit may have a very small positive effect in rare mass-shooting situations, it is far outweighed by the negative impact on millions of citizens who wish to exercise their self defense rights. I oppose magazine limits, especially those that set a limit below twenty. At least a twenty (or better, thirty) round limit would keep most standard home and personal defense pistols on the legal side of the line.
Some criminals use “straw purchases” to obtain firearms. This is where somebody who can pass a NICS check purchases one or more guns, and then immediately hands them over to somebody who would not be able to pass the background check.
Believe it or not, straw purchases aren’t actually illegal. Those who do it can only be charged with minor paperwork violations. I support efforts to decisively outlaw this kind of evasion of the NICS background check…although requiring background checks for all non-family transfers would make this unnecessary. I also support making it a crime to transfer a firearm to anybody you know or suspect would be ineligible to purchase one themselves.
Gun Violence Research
It is currently against the law for U.S. scientific and research agencies like the Centers for Disease Control (CDC) to advocate or promote gun control…as it should be. We wouldn’t accept federal agencies advocating for “web site control” or “religion control,” since federal agencies should not be advocating any restrictions on human rights.
However, some have broadly interpreted this law to mean that the CDC can’t conduct any research on gun violence. This defacto moratorium on gun violence research doesn’t help anybody. I support ending this restriction (with a reservation described below).
My reservation is that, although the CDC and other agencies should be permitted to research gun violence, we must uphold the intent of the law that led to this moratorium in the first place. Federal agencies must never advocate for restrictions on our rights. While we should clarify that agencies can research the topic, we must leave in place the underlying restriction against gun control advocacy.
Mental Health Reform
There is a serious need to reform how the United States deals with (or, rather, fails to deal with) mental illness. This is mainly a state-level initiative, although it does have some nexus to national security and human rights, and therefore warrants some federal involvement.
The main thing we need to change is that we need to commit people against their will when they pose a recognizable danger to themselves or others. We used to do this, but well-intentioned reforms in the 1980s ended up putting the severely mentally ill out on the street and seriously limiting the definition of the “danger to themselves ore others” standard, which is, in name at least, still in effect. In reality, people can be committed when they make direct threats of harm, or by their own free choice, but that’s about it.
The first thing we need to do is clarify that somebody is a danger to themselves in some cases where they aren’t actively threatening to harm themselves. Choosing to live in a box or small tent under a bridge is dangerous. Many homeless people are homeless because they have serious, untreated mental illness, and society’s response — offering them some shelters and meals if they want them and then letting them go on their way — isn’t actually solving anything. We can’t just hope that they decide to seek help on their own, because the same illness that makes them unable to work often also renders them unable to seek mental health treatment
We must also realign our idea of what poses a danger to others. Somebody can be a danger without having made direct threats, and without having committed actual acts of violence. Somebody who keeps saying they want to kill people is a threat, whether or not they have threatened a specific individual or taken any actual steps to cause harm. How many shootings and other violent crimes have happened after the perpetrator had a long list of known social and mental health problems that weren’t dealt with?
We need to move back toward a system where people with severe mental illness get the help they need. This system does, however, need robust protections against unjust imprisonment and to ensure quality of care and prevent abuse. But we have to do better in this area…not just because of gun violence, but because of homelessness and other social ills that have a direct connection to mental illness.