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Posted 6/21/16
A “BAN” IN NAME ONLY
Pretending to regulate only makes things worse
For Police Issues by Julius (Jay) Wachtel. It’s as certain as taxes, and even less appetizing. We mean, of course, the incessant yammer by political candidates. One topic that inevitably worms into the discussion is guns. Here is an extract from Hillary Clinton’s CNN interview on June 13, one day after Omar Mateen, 29, mowed down forty-nine persons at an Orlando nightclub using a SIG Sauer MCX .223 caliber semi-automatic rifle and a 9mm. pistol:
We know the gunman used a weapon of war to shoot down at least fifty innocent Americans, and we won’t even be able to get the Congress to prevent terrorists or people on the no-fly list from buying guns. This is totally incomprehensible, and we’ve got to get back to into common-sense gun safety….We did have an assault weapons ban for ten years and I think it should be reinstated.
Here’s what her husband had to say about this the next day:
All I know is this. We had a 10-year ban on assault weapons. And that was passed while I was President. I signed it and we pushed hard for it. And no small number of members of Congress lost their jobs because they voted for that and what was then a comprehensive background check law. We had a 33-year low in the gun death rate and a 46-year low in total illegal deaths by gun homicides. In other words, it worked pretty well.
Click here for the complete collection of gun control essays
If anything, our former President seemed even less concerned about the facts than his wife. As everyone who keeps tab on such things knows, the so-called “Great Crime Drop” was already well in progress in September 1994, when the assault weapons ban was enacted. Indeed, after peaking in 1991, national violence and homicide rates began a pronounced, multi-decade plunge. (Unfortunately, some cities got left out. See “A Tale of Three Cities” and “Location, Location, Location.”)
 
Well, maybe the assault weapons ban didn’t set off the drop. Couldn’t it have sped things along? In a word, no. You see, there really was no “ban.” Title XI of H.R.3355, the Violent Crime Control and Law Enforcement Act of 1994 had three main provisions:
1. Nine specifically named weapons, or “copies or duplicates” thereof, could no longer be produced for sale to civilians. One was the Colt AR-15. And here it is:
2. All other semi-automatic firearms with detachable ammunition magazines could continue to be manufactured and sold to ordinary Joes and Janes as long as they didn’t have two or more of certain external features such as a folding stock, bayonet lug, a pistol grip “that protrudes prominently,” and a flash suppressor. In other words, a bayonet lug is OK, but that’s it! Here’s Colt’s reworked rifle. Can you spot the changes?
3. Ammunition magazines that held more than ten rounds could no longer be manufactured for sale to civilians.
Gun makers and enthusiasts yawned. First, guns and magazines already in circulation could continue to be possessed and transferred, ad infinitum. Even better, manufacturers only had to make cosmetic changes (ditch that nasty, “prominent” handgrip) to keep making and selling guns that were functionally identical to those on the banned list. So that’s what they did. Colt rebranded the AR-15, stripped it of a few external baubles such as the flash suppressor, and returned it to production. Thanks to the loopholes purposely built in to the law, things quickly went back to what passes for normal in gun-land.
Anti-gun groups who labored for the law’s passage tried to put the best face on it. On the day of the law’s enactment the executive director of the Violence Policy Center characterized the so-called ban as “an island of regulation in a vast sea of laissez-faire production. The question remains how effective it will be and how creative the industry will be in trying to work around the definitions.” A decade later, as the ban (it had a ten-year Sunset clause, and wasn’t renewed) mercifully came to an end here’s what the VPC had to say:
The 1994 law in theory banned AK-47s, MAC-10s, UZIs, AR-15s and other assault weapons. Yet the gun industry easily found ways around the law and most of these weapons are now sold in post-ban models virtually identical to the guns Congress sought to ban in 1994. At the same time, the gun industry has aggressively marketed new assault-weapon types such as the Hi-Point Carbine used in the 1999 Columbine massacre that are frequently used in crime. Reenacting this eviscerated ban without improving it will do little to protect the lives of law enforcement officers and other innocent Americans.
Gun enthusiasts still make fun of the ban. Here are a couple recent posts from an AR-15 forum:
“All the AWB did was ban ‘scary looking’ features.”
“I guess it also shows that whatever law they come up with short of banning all firearms, manufacturers can and do design their way around such laws.”
Exactly.
Could a weapons ban with real teeth be useful? Perhaps – but it would have to attend to two things: lethality and availability. As to the first, it may be possible to devise a scoring system that takes characteristics such as ballistics, rapid-fire capability, lack of recoil, accuracy and portability into account. For example, because of their extreme velocity, .223 caliber rounds commonly used in AR-15 style firearms cause especially devastating injuries. Not only are bullets far more likely to fragment inside the body, but on penetration they create temporary wound cavities as much as 12.5 times the diameter of the projectile (from Vincent Di Maio, Gunshot Wounds, extract here.)
Say that we miraculously obtain agreement about lethality. What about availability? So many highly lethal firearms are in circulation that allowing them to remain in civilian hands would defeat a ban’s purpose. What have other democracies done? In the Hungerford Massacre of 1987, a 27-year old British subject gunned down sixteen persons with a handgun and two rifles. Great Britain promptly responded with the “Firearms (Amendment) Act 1988,” banning all semi-automatic rifles beyond .22 rimfire. After the Dublane school massacre of 1996, in which a man armed with four handguns killed sixteen children and a teacher, Great Britain essentially banned handguns. In both cases the restrictions weren’t simply “imposed” but enjoyed widespread public support.
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Laws supposedly manifest a people’s sense of right and wrong. Alas, we’re not Britannia, where a sense of community still prevails. Instead of reflecting a considered moral position, the cynically-crafted assault weapons ban capitulated to commercial and enthusiast interests, leaving any notions of a social contract in the dust. In America’s polarized climate, where moral reasoning plays second fiddle to egoism and self-indulgence, any gun laws that might come out of the Orlando massacre would probably be watered down to meaninglessness.
Thanks to the proliferation of ever-more lethal hardware, our expectations about public life and public space have dramatically changed. Who would have thought that cops would need armored cars? What’s badly needed isn’t more lawmaking – it’s a national conversation about where we are as a people – and, just as importantly, where we’d like to be.
Incidentally, if you’re in the mood for a bit more scolding, click here.
UPDATES (scroll)
7/30/22 With two “Reds” in favor, and five “Blues” opposed, the House narrowly passed an assault weapons ban (217-213). It is slightly stiffer than the lapsed measure, as it bans rifles with detachable magazines that have only one special feature (a pistol grip, forward grip, folding stock, grenade launcher, barrel shroud or threaded barrel) instead of two. Semi-auto rifles with fixed magazines that can accept more than 15 rounds are also banned. It is expected to fail in the Senate. Bill text
7/21/22 Testifying before the U.S. Senate Judiciary Committee about the massacre in Highland Park, the city’s mayor, Nancy Rotering, who was present during the shooting, urged the enactment of a new Federal assault weapons ban. She also voiced support for Red-Flag laws, national background checks, bans on large-capacity magazines, and reduced immunity for gun dealers. Testimony
7/7/22 At a political gathering in Highland Park (IL) two days after the July 4th. massacre, Vice President Kamala Harris urged that Congress “have the courage to act and renew the [Federal] assault weapons ban.” She also called for repeal of the Federal 2005 “liability shield” which prohibits lawsuits against the firearms industry for gun misuse. Illinois Governor J.B. Pritzker recently called for a statewide assault weapons ban, which Illinois does not have. (Highland Park passed one in 2013.)
8/16/21 On August 12 a 22-year old British man obsessed with the “incel” movement used a shotgun to kill five persons, including his mother, and wound two others. Allegations that he committed an assault led London police to take his gun away in December 2020, but they returned it a month ago. According to the media, the lethal spree was Great Britain’s “first mass shooting in more than a decade.”
6/22/21 A Ninth Circuit panel stayed the San Diego Federal judge’s decision to throw out California’s assault-weapons ban until the full Circuit rules on other pending challenges to the law. Among these is Duncan v. Bonta, in which a Ninth Circuit panel invalidated a ban on large-capacity magazines.
6/5/21 Ruling that “no legislature has the constitutional authority to dictate to a good citizen that he or she may not acquire a modern and popular gun for self-defense,” San Diego, Calif. Federal judge Roger Benitez threw out California’s assault-weapons ban, which prohibits semi-automatic rifles that hold more than ten rounds or those that accept external magazines and have features such as a pistol grip. Judge Benitez stayed his ruling for thirty days to allow for an appeal. Miller v. Bonta
3/14/19 Ruling against Bushmaster, the manufacturer of the AR-15 used in Sandy Hook, the Connecticut Supreme Court decided that Federal Law which shields gun makers from responsibility for their products’ misuse does not bar lawsuits under a state law that prohibits “harmful marketing” practices; in this case, promoting the weapons’ use for “offensive military style combat.”
1/3/19 Several mass shooters bought their guns and ammo on credit. Omar Mateen got started on his purchases twelve days before the shooting. He wound up spending nearly twenty thousand dollars on guns and ammo using six credit cards. He worried that the authorities might be informed about the purchases, but the credit card issuers paid no heed.
9/11/18 A JAMA study that compared 248 “active shooter incidents” during 2000-2017 revealed that those involving semi-automatic rifles led to significantly more persons wounded, killed, and either wounded or killed. Percentage of those shot who died did not significantly vary.
3/11/18 In the New York Times and Washington Post, illustrated features about the grievous damage inflicted on the human body by ultra high-velocity projectiles such as those fired by AR-15 style rifles.
11/9/16 A 45-year old “gun fanatic” on a “cocaine binge” randomly fired on passers-by in his residential neighborhood, killing one person and critically wounding two, then fired about 20 rounds from an assault-style rifle at responding officers. Officers in an armored vehicle later found him dead.
11/5/16 A troubled middle-aged Iowa man used a .223 rifle to shoot and kill two Iowa police officers, one in Urbandale, the other in nearby Des Moines, during the early morning hours of November 3. Both officers were approached as they sat in their patrol cars, which were riddled with bullets.
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Posted 3/4/16
BY HOOK OR BY CROOK (Part II)
Smart enforcement could “make communities safer” even if new laws are out of reach
For Police Issues by Julius (Jay) Wachtel. In January the President announced he was taking executive action to stem gun violence. His plan has four objectives. First and most importantly, guns will be kept from falling into the wrong hands by increasing the proportion of transfers that go through licensed dealers, which, unlike casual “traders,” must perform background checks. Still, the ambiguous legal definition of “dealing” in firearms won’t change. ATF will reportedly distribute brochures at gun shows setting out its interpretation of the law. We felt that while some traders might reduce their volume or stop altogether, vague threats are unlikely to have much effect on gun trafficking.
This week we’ll take a closer look at the President’s remaining objectives:
- Make our communities safer from gun violence
- Increase mental health treatment and reporting to the background check system
- Shape the future of gun safety technology
To make communities safer President Obama proposed increasing ATF by two-hundred special agents and investigators in his FY 2017 budget. It’s a modest increase, as the agency had about 2,490 special agents and 780 licensee investigators in FY 2014. Still, two-hundred is better than no-hundred.
Say that the increase goes through (unlikely, but sometimes miracles do happen.) How can we get the biggest bang for the buck? In line with the President’s first goal, ATF could turn up the heat on unlicensed gun sellers. But there’s a better approach. ATF has projects around the U.S. that trace guns recovered by police to their first retail dealer. Criteria such as quantity purchases, purchases in one state and recovery in another, and brief lag between sale and seizure, have been used to initiate many significant trafficking cases. Following the trail of guns picked up on the street is also a politically savvy approach. Who could object?
Click here for the complete collection of gun control essays
Can recovery-based trafficking investigations make communities safer? A program conducted in Southern California during 1992-1995 yielded 28 criminal cases, with diversions ranging all the way to more than three-thousand guns.
Last week a Kansas man was served with a restraining order at the industrial plant where he worked. According to his former girlfriend, Cedric Ford, 38, was “an alcoholic, violent, depressed, it’s my belief he is in desperate need of medical and psychological help!” Ford abruptly left work, then returned with an assault rifle. He opened fire, killing three and wounding fourteen others before a police officer shot him dead.
Ford’s rampage is the most recent of a seemingly never-ending stream of mass shootings. Three years ago “60 Minutes” aired an episode about such events. Most of the gunmen – and they always seem to be men – had serious mental problems. In late 2014, after a massacre by a mentally disturbed 22-year old who killed six and wounded fourteen near a university campus, California enacted a statute that empowered police and family members to obtain a restraining order against someone thought to be a threat, barring their possession of firearms for twenty-one days. But under Federal law, even a diagnosis of mental illness is insufficient to bar the purchase or possession of a firearm:
18 USC 922(g)(4): It shall be unlawful for any person who has been adjudicated as a mental defective or who has been committed to a mental institution to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (Emphasis ours)
According to ATF, “adjudicated” means a formal finding by a “court, board, commission or other lawful authority” that a person’s mental condition makes them a danger to themselves or others or renders them unable to manage their own affairs.
Adjudicated mental defectives are supposed to flagged in the gun background check system maintained by the FBI. In many States that happens infrequently, inconsistently, or not at all. On April 16, 2007 Sung Hui-Cho shot and killed 32 persons and wounded 17 with two pistols that he bought at gun stores. Cho was previously ruled mentally ill by a judge, but Virginia never flagged him in the database. President Obama’s executive order seeks to remedy such lapses, in part by addressing privacy laws that dissuade jurisdictions from reporting their adjudicated mentally ill. In addition, the Prez would have Social Security report beneficiaries who are mentally unqualified to acquire and possess firearms.
Perhaps surprisingly, not everyone shares these concerns. Advocates for the mentally ill worry that new gun possession rules might unfairly stigmatize persons with mental problems. Their views are reflected in an academic paper posted on the National Institutes of Health website, which characterizes mass shootings as “anecdotal distortions of, rather than representations of, the actions of ‘mentally ill’ people as an aggregate group”:
Our brief review suggests that connections between mental illness and gun violence are less causal and more complex than current US public opinion and legislative action allow…That is to say, gun violence in all its forms has a social context, and that context is not something that “mental illness” can describe nor that mental health practitioners can be expected to address in isolation.
Then there’s Congress. On the one hand, one day after the San Bernardino massacre, Rep. Paul Ryan (R-Wis.) agreed that “people with mental illness are getting guns and committing these mass shootings.” On the other, he instantly rejected calls for toughening background checks. He even swatted away a move that would have flagged persons on no-fly lists, suggesting it violated due process. Legislative proposals in both areas were simultaneously rejected in the Senate.
Finally, President Obama directed the Government to “conduct or sponsor research into gun safety technology that would reduce the frequency of accidental discharge or unauthorized use of firearms, and improve the tracing of lost or stolen guns.” He is in effect plugging so-called “smart” or “personalized” guns, which, like the ideal pooch, respond only to commands from their owners.
There are several ways to personalize guns. Radio-frequency chips enable locked firing mechanisms when they receive a coded signal from, say, a wrist band. Unlocking can also be accomplished biometrically; for example, by scanning one’s palm or fingertips. A more sophisticated technique involves measuring one’s grip. And so on. Proponents see the benefits as obvious. Stolen smart guns can’t be readily reused. Cops, householders and CCW permittees can’t be shot with their own weapons. Children can’t misuse family guns. And so on.
But technology is tricky. Firearms are, first and foremost, mechanical contraptions. Recognition and blocking mechanisms would have to endure the phenomenal forces generated by the firing process. Smart guns used for self-defense or by police would have to correctly identify their authorized users and function perfectly even during physical combat, like rolling around on the ground. Even if such perfection is realized, gaining measurable benefits would require that we convince ordinary gun owners to trade in their toys. Unless the Prez wields a cudgel far more substantial than an executive order, that seems pretty far-fetched.
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This brings us to the blessed end of the second (and final) part of this series. In Part I we suggested that pressuring casual gun traders to get licensed or stop selling guns would have little effect on gun misuse. Here we found a little more to cheer. Expanding ATF’s ranks could be a positive move, especially if additional resources are devoted to combatting firearms trafficking. Tightening restrictions on gun possession by the mentally ill could also be worthwhile. Alas, to be effective it would require passing new gun laws, a practical impossibility at the Federal level. As for “smart guns,” they seem at best a fanciful distraction.
Meanwhile, the carnage continues.
UPDATES - PARTS I AND II (scroll)
6/25/22 Passed in the wake of recent massacres, the “Bipartisan Safer Communities Act” was signed into law. It enhances background checks to include juvenile records, helps fund State “Red Flag Laws” and mental health programs, includes “boyfriends” in the definition of domestic partners who may be barred from having guns, and specifically prohibits “straw” purchases (i.e. buying guns on behalf of unqualified persons). It does not create waiting periods or ban assault weapons.
3/25/22 In violence-racked Columbus, Georgia, a 32-year-old woman went to a gun store to buy a pistol. “Youth do not respect older people. Today, the young are wicked,” said the Black single mother. A friend was recently robbed, and the hairstylist, who carries tips, wants a CCW license. That may soon be unnecessary, as a bill to allow permitless carry will likely soon head to the Governor’s desk. Meanwhile residents keep stocking up. Last year the state’s second-largest city recorded 63 murders. And as gunfights proliferate, stray bullets have killed children in cars and old men on the sidewalk.
3/22/22 Indiana Governor Eric Holcomb signed House Bill 1296, making his state the twenty-fourth to allow persons over 18 years of age who are neither felons nor dangerously mentally ill to carry handguns, concealed or not, without a permit. As in other States where permit-less concealed carry has been approved, Indiana’s police superintendent and its police chiefs association objected.
3/21/22 An exchange of gunfire between two thus-far unidentified persons at a car show in a small Arkansas town killed one bystander and left twenty-seven others wounded. Organized by the Hood-Nic Foundation, the yearly event includes stage performances and acts as a fund-raiser for local students. It’s held in Dumas, population about 5,600, with 27% living in poverty. Arkansas, which earns an “F” from Giffords, allows unlimited gun carry and had America’s ninth-highest gun death rate in 2019.
Effective in June, adult residents of Ohio will be allowed to pack concealed handguns, no training or permit required. A similar measure was just signed into law in Alabama. It will take effect in January. Both laws were opposed by gun-control and law enforcement groups. Police particularly objected to the Ohio measure, which states that armed persons need not “promptly inform” officers that they’re packing. In all, twenty-three States have passed laws allowing concealed carry without a permit.
9/10/19 Seth Athor, 36, the Texas man who shot and killed seven and wounded twenty-two with an AR-15 type rifle, was turned away by a gun store in 2014 because of a prior mental commitment. So he turned to a private seller, who is now being investigated for unlicensed dealing.
5/14/18 According to the L.A. Times nine states now have “red flag” laws that authorize courts to order the seizure of guns from persons who are at risk of hurting themselves or others. Five of these laws were passed since the Florida school shooting.
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Posted 2/7/16
BY HOOK OR BY CROOK (Part I)
In a last-ditch effort to stem gun violence,
a frustrated Prez turns to executive action
For Police Issues by Julius (Jay) Wachtel. Sometimes it would be nice to be proven wrong. Back in ’08, only days after the election, we predicted what then seemed obvious: that for the foreseeable future, gun control was indeed “dead”:
In this badly divided nation firearms have been a surrogate in a culture war that’s replayed every four years. When President-elect Obama criticized our tendency to “cling” to guns and religion he got it perfectly right. It was an amazingly insightful and honest comment that he will never repeat in public, and which he will never, ever try to express through meaningful gun control legislation.
According to the Centers for Disease Control, there were 21175 gun suicides and 11208 gun homicides in 2013. More than five-hundred additional fatalities were caused by an accidental discharge. And while gun deaths are down from their peak during the crack-crazed decades of the eighties and early nineties, the toll remains by any measure deplorable. (The FBI recently announced that during the first six months of 2015 violent crime mostly increased, and in some geographical areas, significantly.) Yet, despite widespread public support for preventive measures such as extending background checks to cover private sales, Congress has rebuffed all attempts to intervene. Even after the massacre of fourteen innocent persons by a pair of assault-rifle toting domestic terrorists, legislators have steadfastly refused to consider bringing back the (admittedly toothless) assault weapons law.
Click here for the complete collection of gun control essays
With the Feds out of the picture, movement on gun control has been up to States and localities. Aside from a few isolated exceptions, they’ve addressed the carnage by further deregulating gun acquisition and possession. What happened last year is instructive. In line with the “good guy with a gun” fiction, Kansas, Maine and Mississippi passed laws allowing concealed carry without a permit, while a host of other states, from Georgia to Texas, liberalized the issuance of concealed carry permits and expanded the places where guns could be covertly toted to include parks, schools and universities.
Last month the Prez said “enough.” Since Congress is unlikely to consider let alone pass gun control legislation during an election year, he turned to his sole remaining option: executive action. A detailed press release set out four objectives:
1. Keep guns out of the wrong hands through background checks
2. Make our communities safer from gun violence
3. Increase mental health treatment and reporting to the background check system
4. Shape the future of gun safety technology
Natch, “the Devil is in the details.” So let’s take it one goal at a time.
First, and most importantly, the proposal intends to “keep guns out of the wrong hands” by reducing the number of guns that are acquired sans background check. Under Federal law only licensed gun dealers must run prospective buyers through a criminal record check. In most States it’s perfectly legal for unlicensed persons whose activities don’t amount to “dealing” to sell and trade guns, no reporting, record checks or other paperwork required. In effect, the only way to increase the proportion of vetted gun transfers is to bring more gun sellers into the fold of licensees:
Clarify that it doesn’t matter where you conduct your business – from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks…
What does it mean to be “in the business of selling firearms”? Pop a Dramamine(r), then check out what the law has to say:
18 USC 921 (a) (11) The term “dealer” means: (A) any person engaged in the business of selling firearms at wholesale or retail…
18 USC 921 (a) (21) The term “engaged in the business” means: (C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms…
18 USC 921 (a) (22) The term “with the principal objective of livelihood and profit” means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection…
Unlicensed gun dealing is a straight felony, punishable by up to five years imprisonment (18 USC 924 [a][1][D]). In your blogger’s experience as an ATF agent and supervisor, it would be an understatement to say that the statute is sparingly applied. Given the hobbyist exception and absence of a numerical threshold, the wiggle room of just what it means to be a gun dealer makes agents reluctant to investigate and prosecutors loath to file unless firearm quantities are substantial and there is demonstrable harm. Evidence that an unlicensed suspect bought (or, even better, used confederates to buy) dozens of guns from licensed dealers or at gun shows, resold them, and that some were promptly recovered from evildoers by police would form an acceptable case. Anything much short of that is unlikely to be prosecuted.
That’s not to say that viable cases are rare. Gun trafficking, as we’ve pointed out in the posts and articles referenced below, is a widespread problem. In locally-brewed schemes, street dealers use straw buyers to acquire guns for resale to thugs and underage persons. Often there is an interstate aspect. Trafficking rings patronize gun dealers in States with permissive laws (say, Arizona, which allows private persons to buy as many handguns as they wish, cash-and-carry) and resell guns, at great profit, in neighboring States with strict gun laws (say, California, which limits handgun purchases to one a month and has a ten-day waiting period.)
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Trafficking schemes cause serious harm. Yet they are unlikely to be discouraged by the President’s actions, which cannot alter the ambiguous definition of “being in the business.” True enough, a core function of any law is to deter those who would be deterred, so jawboning might have some value. While real traffickers are unlikely to be scared straight, casual traders might cut back. Maybe a few more guns will go through normal channels and be subject to a record check. Maybe that will discourage some evildoers from getting a gun. Maybe.
Well, we’ve scoured the President’s first objective. Part II will cover the three that remain. Check back soon!
FOR UPDATES SEE PART II (ABOVE)
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By Hook or by Crook (Part II) Half-Hearted Measures Modernization or Emasculation?
Gun Show and Tell Where do They Come From? Long Live Gun Control Gun Control is Dead
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