Want To Keep Guns Out Of The Wrong Hands? Check The 3rd Grade.


While the gun violence community (GVP) approaches the question of reducing gun violence from many different perspectives, there does seem to be a basic consensus around the idea that the 120,000+ gun injuries (more than 35,000 fatal) suffered each year by Americans can be substantially lessened by keeping guns out of the ‘wrong hands.’  This basic approach was embodied in the first, major effort at gun regulation, the Gun Control Act of 1968 (GCA68), which stipulated that certain individuals who were felons or fugitives, among other unsavory types, shouldn’t be allowed to get their hands on guns.

voting            Over the years a few more ‘wrong hands’ categories have been added to the list, as well as attempts to make it more difficult for wrong-handed people to get access to guns which, in case you hadn’t noticed, is what was behind the FBI-NICS background check system implemented under the Clinton Administration and has become the great GVP battleground over the extension of background checks to secondary sales.

Despite the stupidities of Gun-nut Nation regarding the uselessness of background checks, I’m willing to bet that the NICS system has probably been somewhat responsible for the more than 50% decrease in gun violence between 1995 and 2005, but while the system has become more efficient over the last ten years and secondary background checks are now conducted in 20 states, the overall rate of gun violence has plateaued over the last ten years and now appears to be edging back up.  So perhaps it’s time to re-examine the entire ‘wrong hands’ approach to dealing with gun violence, if only because more ‘bad hands’ seem to be getting their hands on guns every year.

The basic assumption that lies behind ‘wrong hands’ is the idea that people who behave in violent ways will become even more violent if they get their hands on a gun.  But the problem is that even if we had airtight reporting of all criminal behavior, even if the NICS database contained an absolutely complete and comprehensive list of everyone convicted of a violent crime, particularly crimes related to domestic abuse, these records only reflect the behavior of adults, which is way too late to predict who might be a threat to themselves or others when/if they got their hands on a gun.

The life-cycle of gun access has been studied by some of our most eminent public health and criminology researchers and they all agree: guns start showing up in the ‘wrong hands’ beginning around age twelve.  Because a real gun in the hands of any twelve-year old is, by definition, a gun in the ‘wrong hands,’ but that’s when they start showing up.  And the kid who starts carrying a gun to show off at twelve will be carrying it to use it when he’s sixteen. And he will have used it or had another gun used against him over the next ten years.  The studies that confirm the recidivism of gun violence by perpetrators and victims are conclusive in this respect.

But here’s the problem. By the time the kid with a gun reaches the age of sixteen, he no longer can be found.  And he can’t be found because he dropped out of school at age fourteen.  And now he’s wandering the nabes or the hood and he supports himself by doing things that require carrying or using a gun.  The city of Springfield, MA has a gun-homicide rate more than three times the national rate.  It also has a school drop-out rate of 40%. Who’s watching these kids?  Nobody’s watching these kids.

Youngsters don’t wake up one day in the 9th grade and announce they are quitting school.  These are kids with all kinds of behavioral and learning issues which appear by the 2nd or 3rd grade.  And then, ten or fifteen years later, they get shot or go to jail for shooting someone else.  Want to keep guns out of the ‘wrong hands?’ Those hands are attached to someone jumping around in the classroom right down the hall.


Ending Gun Violence Means Understanding Gun Violence And Here’s A Good Start.

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So now we have the second report in as many weeks that strongly points to the connection between gun violence and gun laws; i.e., less of the latter produces more of the former.  The first report came from the Center for American Progress (CAP) which found that states with fewer legal restrictions on guns have higher rates of gun violence; now we have another report issued by New York State’s Attorney General, Eric Schneiderman, which shows that states with lax gun regulations also export more crime guns to other states, hence raising gun violence rates in states which often have very strict and comprehensive controls.

gun-violence           So the bottom line is that states that do not view guns as a threat to community safety not only make their own communities less safe but also help to make communities elsewhere dangerous as well.  And if you believe that this is in any way a new discovery, let me take you back the passage of the Federal Firearms Act in 1938.  The FFA38 was actually the second gun bill passed during the presidency of Franklin Roosevelt, the first being the 1934 law that regulated sale and ownership of full-automatic weapons and sawed-off shotguns whose use became the staple of Hollywood gangster movies then and now.

The 1938 law moved the Federal government into gun regulation big-time, because it focused not on the control of these somewhat exotic and relatively unusual (and relatively expensive) machine guns, but established the regulation of standard, run-of-the-mill handguns and long guns which could be found in probably a majority of American homes. Moreover, the basic components of the 1938 law, even though much of it was revised by the Gun Control Act of 1968, created the regulatory environment which exists to the present day. To wit:

After 1938, anyone who wanted to be in the business of selling firearms, as opposed to simply collecting and transferring personal guns, had to acquire and operate the business with a federal firearms license issued by the Treasury Department.  Why the Treasury Department?  Because the license cost one buck, and anyone who paid anything to the U.S. Government paid to the U.S. Treasury.  The law also made it illegal if a felon, fugitive, or anyone ‘convicted of a crime of violence’ received a gun and, most important, required that federally-licensed gun dealers only transfer guns to individuals who were residents of the same state in which the dealer sold guns. The law was later revised to exempt long guns from the in-state purchase requirement (hence Lee Harvey Oswald was able to purchase and directly receive a rifle from a sporting-goods dealer in Chicago) but the requirement that handgun sales be limited to in-state transfers remained law from then until now.

Why has the government always required that handgun ownership be more rigorously regulated than long guns?  Because the basic purpose of federal gun regulations is to “provide support to Federal, State and local law enforcement officials in their fight against crime and violence.” So says the Gun Control Act of 1968, a law which, incidentally, was supported by the NRA.

Note that neither the 1938 gun law nor the law passed thirty years later or, for that matter, the third big law passed in 1994 attempted to regulate guns per se; all three laws were attempts to break the connection between guns, crime and violence by defining which individuals could acquire guns. But none of these laws defined gun violence for what it really is.

Gun violence is a pathogen and most pathogens spread through human contact, which is certainly the case with the pathogen caused by guns.  We still don’t know exactly how, when or why this human contact takes place, but the reports issued by CAP and New York’s AG provide a good start. They also provide valid methodological templates to be used for further research. In sum, these reports deserve to be read, discussed and their value applauded and understood.



Once Again The ATF Celebrates Much Ado About Nothing.

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It’s been a quiet few days in the gun violence world.  According to our friends at the Gun Violence Archive, since Friday there have only been 200+ shootings resulting in 59 deaths and 144 injuries, what Ralph on The Honeymooners would call a “mere bag of shells.”  But I was rescued by the ATF which issued a press release touting the work of its National Tracing Center (NTC) in tracing guns picked up overseas in the Caribbean, Mexico, Canada and several Central American countries.  To quote the ATF: “Firearm trace data provides valuable investigative leads and specific trend data for our international partners.” Maybe some Mexican police agency will ask the ATF to trace one of the AK-47’s that the ATF shipped to Mexico between 2006 and 2011, of which at least one thousand are still floating around.

atf           The truth is that the ATF does very little to fight illegal guns except pat itself on the back.  And one of its most common back-patting activities involves the tracing of so-called ‘crime’ guns.  The ATF has been promoting its prowess in gun tracing since the licensing of commercial firearms sales was placed under its jurisdiction by the Gun Control Act of 1968.  And over the years, this tracing activity has yielded, according to the ATF, “critically important information” about the origins of millions of ‘crime’ guns.  In 2014, the ATF was able to identify the origin of 174,000 guns – do the arithmetic as Bill Clinton would say, and that adds up to at least a couple of million guns over the last forty-seven years.

The ATF has used this miasma of data to promote to build a basic argument about the commerce in crime guns.  I am referring to the notion, repeated ad nauseum by every GVP activist group and GVP-leaning politician, that gun ‘trafficking,’ (i.e., the illegal movement of guns from one location to another) is a major factor in gun violence and needs to be curbed. So I looked at the ATF report which, based on the data generated by the NTC, details the origin of all the traced guns in Massachusetts, which is where I happen to live.  In 2014, the NTC was asked to run 1,538 traces of which they could only identify the origin of 979 guns. Of those 979 guns, it turns out that 676 were initially purchased in MA and the surrounding, contiguous states.  And all those guns that get trafficked up the I-95 ‘pipeline?’  They accounted for roughly 15% of guns traced in MA. Gee, what a surprise that most of the crime guns in my state came from places which are. at most, a half-hour’s car ride away.

Of course the ATF says they are hamstrung in their efforts to do even more in their unrelenting battle against gun trafficking because they can’t look at how guns move from hand to hand since they can only check a dealer’s gun log which records the very first sale. And this lie is then innocently repeated by GVP advocates who really do want to see an end to the traffic in illegal guns. And why is it a lie? Because the ATF just issued a ruling defining how dealers can keep their records of acquisitions and sales electronically, which means the ATF can easily find out not just the first time that a gun was sold, but every time it was sold in a gun shop. And guess what? In my shop upwards of 40% of my guns were used, and these used guns had previously been sold by me or by some other dealer down the road.

It doesn’t take a rocket scientist to figure out how to search an Excel spreadsheet by any unique identifier and thus gain a much clearer picture on the history of a gun picked up at the scene if a crime. The boys in Fairfax must get a good laugh when they consider the behavior of the agency that regulates guns.

Comment On The Always Saddening Anniversary Of The Death Of Dr. King.


Is there the slightest possibility that two political scientists at the University of Illinois just happen to have discovered a possible link between racist attitudes and pro-gun sentiments at the same time that the most successful Republican presidential campaign rests on racial slurs directed at immigrants and a fervent love of the 2nd Amendment?  There has been a vaguely disguised racist appeal to much of the pro-gun rhetoric that links the value of gun ownership to personal protection against crime, some of it not so vague, but now that the Trumpster has made racism a genuinely acceptable rhetorical form during his campaign stops, it figures that some folks on the ‘other side’ of the gun debate would step up the rhetoric as well.  The result is a study which purports to prove that “racial prejudice colors all aspects of the debate regarding gun policy,” and that whites are susceptible to “the emotional and persuasive power of gun rights messaging which invokes the white, gun-carrying every-person who defends home and Democracy against (nonwhite) bad guys.”

The authors of this study define racist attitudes as the “politics of resentment,” which basically means a reaction by whites to what they perceived as the government conferring special privileges on blacks.  In particular, these so-called racially-based privileges included integrating schools and public facilities, preferential treatment in hiring, expanded welfare, in other words, the panoply of government programs which accompanied the elimination of legal Jim Crow in the decades following World War II. In that respect, the notion of gun ‘rights’ as an expression of hostility to government programs followed from taxpayer ‘rights’ that opposed welfare, homeowner ‘rights’ that opposed equal housing, and victims ‘rights’ that came down against more liberal treatment of criminal offenders; i.e., criminals who just happened to be blacks.

At this point the narrative of the article begins to wobble a bit, primarily because the authors veer off into a discussion of how the NRA changed from supporting gun-control laws in the 60s to taking a much more aggressive anti-government tone after the 1977 Harlon Carter putsch.  And the idea that the NRA was a believer in gun control until the Republicans began to develop a Southern base has remained part-and-parcel of virtually every discussion about guns, politics and race. And of course we all know, or at least we think we know that since liberals tend not to like guns, by definition the growth of an active, pro-gun movement led by the NRA and a shift towards the right by the GOP have gone hand-in-hand.

If you take a look at the votes that were cast in Congress for GCA68, the first significant gun-control legislation, the ‘nay’ votes in both the House and the Senate were cast overwhelmingly by the same members of Congress who voted against the civil rights bill in 1964 and the voting rights bill in 1965.  That the NRA was not yet poised to take advantage of the South’s resistance to federal “encroachments” did not in any way alter the fact that the South as a region had always been a gun-rich zone.  What drove pro-gun sentiment in the South was not racism per se, but the extent to which gun-control laws were seen as being forced on the South by the same liberal government that was using law to wipe away the vestiges of Jim Crow.

Gun ownership as an affirmation of racialist attitudes is certainly at play with the same extreme, political ideas that pop out of the mouths of Cliven Bundy and other militia fools and jerks. But I think it’s a little too simplistic and, in fact, somewhat quaint to assume that the emotions driving the gun debate from the pro-gun side largely stem from thoughts and angers about race. The real question we need to ask on this, the 48th anniversary of the shooting death of Dr. King, is what role does violence play in our everyday emotions and affairs?  After all, no violence, no need for guns.



Do You Really Think The NRA Supports The 2nd Amendment To Keep Us Free? Think Again.

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One of the reasons often advanced to explain the success of the NRA in promoting pro-gun attitudes and laws is something known as the “intensity gap.”  According to this argument, the NRA wins because their supporters are more committed, more dedicated and more fiercely loyal to the organization and its goals, as opposed to the GVP movement whose supporters are only driven to express their support for more gun control after a mass shooting or other high-profile violence involving guns.

The latest iteration of this argument is the handiwork of Professor Gary Gutting, whose op-ed appeared today in The New York Times.  Gutting, who teaches philosophy at Notre Dame, claims that the GVP movement should borrow the energies and viewpoints of recent anti-racist efforts like Black Lives Matter who have successfully enlisted black and white support by pointing out the basically racist nature of police (and civilian) shootings of inner-city blacks.  He further argues that white antipathy towards racism would counteract the intensity that gun owners exhibit whenever they feel that the 2nd Amendment is being attacked, an intensity based on America’s fear of ‘tyranny’ which explains the strong support for 2-A rights.

Gutting may or may not be correct in asserting that Black Lives Matter has tapped into a concern held by white liberals about violence and racism directed at blacks, but his attempt to build a case for the NRA’s anti-tyranny argument through support of the 2nd Amendment is just dead wrong.  The NRA doesn’t promote itself as an anti-tyranny organization pari passu, it promotes the anti-government position only when the government is in the hands of what Fox News calls ‘the Left.’ Ever hear Dana Loesch, Sarah Palin, Wayne LaPierre or any other pro-gun noisemaker talk about the gun-control law that Governor Ronald Reagan signed that mandated, among other things, a fifteen-day waiting period for the purchase of handguns in the Golden State?

Know which members of Congress voted against GCA68?  Virtually the same southern federal office-holders who voted against GCA68 also voted against the Voting Rights Act of 1965.  And they voted the same way for the same reason: both were instances in which Northern liberals passed laws to teach Southern whites how to behave.  If anyone believes that the current opposition to gun control is anything other than a reprise of the conservative-liberal battle over states’ rights as it originally played out during the struggle over civil rights, think again. The NRA can tell you that gun control today leads to gun confiscation tomorrow, but from 1939 (Miller v. United States) until 2008 (District of Columbia v. Heller) we had plenty of liberals running the federal government and passing gun-control laws. Meanwhile, not a single gun was ever confiscated from a law-abiding gun owner.  Not once.

2A             I’m also confused, frankly, by Gutting’s pronouncement that the GVP movement lacks the intensity that’s found among followers of the NRA.  That’s a rather shop warn view of things lately owing largely to a bunch of street-wise, energetic and savvy woman both in leadership and grass-roots positions who have levelled the advocacy playing field to a degree not previously seen.  If there’s an intensity gap about gun violence nowadays, I perceive it more as a gender gap within the GVP movement itself.  But as in so many other things, the men (like myself) tend to sit back, watch the sports on a widescreen, pop a few tops and let the women do the work.

What moved America on civil rights were pictures of blacks being hosed, beaten or worse when they sat at segregated lunch counters, enrolled in all-white schools or stood fast against Sheriff Connor at the Selma Bridge.  What has moved Americans to rally against gun violence is the carnage at San Bernardino, Umpqua and Sandy Hook. Racism and gun violence are cut from the same cloth. There’s no reason why we need to borrow the outrage against one to be outraged at the other.


In The GVP-NRA Contest, GVP Will Win.


I have been involved in the gun business since 1965, which is longer than most of the people have been alive who follow me here and on Huffington Post.  And that is because in 1965 I went down to North Carolina to work for my great-Uncle Ben who owned something called the Imperial Metal Products Co., where he manufactured a little 22-caliber revolver called the IMP.  The gun held five rounds but the effective capacity was far less, because by the third shot either the 2-inch barrel would fall off or the cylinder would crack in half.  This Saturday Night Special sold for about thirty bucks in pawn shops all over the South, and when GCA68 ended Ben’s life as a gun maker he became the Smith & Wesson law enforcement distributor for North Carolina and sold plenty of better-made revolvers to the cops.

gun free              So there’s very little about guns and the gun business that I don’t know, and in that regard when I say that the GVP movement is soon going to eclipse the NRA, it’s not a feeling based just on hope or whimsy, it reflects what I have seen and heard over the past fifty years. The truth is that when it comes to guns as an issue of public safety, until the last couple of years the NRA had the playing field all to itself.  Every once in a great while there would be a little public dust-up, like after good ol’ Charlie Whitman climbed the Texas Tower in 1966 and killed or wounded more than 45 people in a 90-minute spree.  Or again in 1969 when the cops and the Black Panthers in Los Angeles exchanged several thousand rounds of gunfire from which, unbelievably, no one was killed. But the deliberations leading up to GCA68 hardly, if ever made front-page news, and even the gun bills passed by Clinton in 1994 were hardly front-page stories except perhaps on the day of the votes.

Now don’t get me wrong.  I’m not saying that the NRA is a paper tiger that will roll over and play dead every time a new GVP initiative comes down the line.  To the contrary, since the mid-90’s the gun gang has scored some notable victories, in particular a rewriting of CCW laws in nearly every state, a law gagging doctors in Florida and three other states, and a public mood shift towards more support for 2nd Amendment rights.  And of course let’s not forget the biggest victory of all, namely the 2008 Heller decision by gun-nut Scalia which says that the 2nd Amendment protects private ownership of guns once and for all.

Notwithstanding the above, I still believe that the GVP’s time has come.  First, anyone who pretends that GVP is not a strong, widespread and growing grassroots movement is either a pro-gun sycophantic noisemaker paid to say otherwise, or is blind, deaf and dumb. And let’s not forget that much of the GVP organizational activity has only been spurred since the massacre at Sandy Hook. Second, for the first time in all time we have a national Presidential candidate who is not only calling for a national GVP movement, but promises to lead it if she is elected in 2016.  And let’s not forget the remarkable GVP ads that ran yesterday during NBA games.  Nothing the NRA will ever push out on its silly video channel will ever achieve even a fraction of the audience that heard Carmelo Anthony or Chris Paul.

Last week the NRA put out a statement reminding its members that Obama, Hillary, The New York Times and every other liberal politician and publication is basically anti-gun.  They have been running this same message for the last twenty years.  But often there hasn’t been much of a response from the other side.  For the first time in my 50 years of watching the gun industry, the GVP message is loud, continuous and clear.  And it’s going to get louder, of that I’m sure.


Dana Loesch Opens Her Mouth About Guns And Gets It Wrong Again.

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When the NRA has to join forces with the paranoid fantasists who shoot their mouths off on The Blaze, you know that a decision has been made by the folks in Fairfax to abandon even a shred of reality-based discussion in order to hold onto their ever-dwindling base.  And like it or not, the number of Americans who own guns keeps dropping, which means that in order to sell more guns, a way has to be found to convince current gun owners to buy more, and more, and more.  And the game plan that has always worked in this regard is to sell the idea that Armageddon in the form of gun confiscation is right around the corner or lurking down the block.

The most successful use of this strategy occurred over the last seven years due to the fact that our President made no bones about the fact that he was, generally speaking, anti-gun.  So it was easy for the gun industry to remind its supporters that Obama was the tenant at 1600 Pennsylvania Avenue, a conclusion that spoke for itself.  Of course the problem now is that he can’t run again; but until January 20, 2017 we can remind the gun folks that he’s still capable of doing terrible things.

loeschnranews               And who better to push the most conspiratorial argument from this point of view than Dana Loesch, who got going as a right-wing noisemaker promoting her own, nutty view of the world on The Blaze, but has now been hired by the NRA.  And her inaugural video, which floated onto YouTube yesterday, is a combination of conspiracy, fear-mongering and downright falsehoods that could put even the most ardent conspiracy theorists (I’m thinking of Jade Helm, for example) to shame.

The only statement in Dana’s entire spiel that even remotely aligns with the truth is when she says early on that Obama is considering using Executive Orders to expand government regulation over guns.  In fact, the Kenyan has made it clear that he is looking at options to close some loopholes which, under current gun laws, let individuals transfer large quantities of guns without undergoing NICS-background checks.  And what this would amount to is making a clear distinction between the gun owner who buys, sells or transfers guns from time to time because he’s a hobbyist and he just enjoys fooling around with guns, as opposed to the guy who brings 50 ‘personally-owned’ handguns into a gun show, sells these guns and then restocks his inventory to sell more guns for profit at the next show.  I’m not saying that a gun transferred without a NICS-background check is necessarily going to wind up in the ‘wrong hands.’  But you don’t have to be a rocket scientist to figure out that someone who can’t pass a background check today still won’tencounter any great difficulty if he wants to get his hands on a gun.

So here’s how Dana puts it: “You see, the President could use his pen to require that even the simplest transfer of a firearm between family members, like if my husband handed a rifle to his oldest son, be treated in accordance with FFL requirements.” She then goes on to paint a frightening picture of the ATF coming into the home of every gun owner, kind of a throwback to Wayne-o’s calling the ATF ‘jack-booted thugs,’ in a fundraising letter sent to the membership in 1995.

This extraordinary mangling of gun law, you should know, comes out of the mouth of someone who claims to have written a book about guns and Constitutional law.  But the fact is that the entire FFL system, as defined by GCA68, has nothing to do with personal transfers at all.  Dana obviously doesn’t know the difference between personal transfers on the one hand and business transactions on the other.  But why should she care? Do you honestly believe that anyone who takes her rubbish seriously is interested in an evidence-based discussion about guns?

Here’s A New Approach To Gun Violence: Get Rid Of The Second Amendment.


If you want to prove you’re a real gun nut, the way to do it is to refer to yourself as a “Second Amendment absolutist.”  Now in fact that phrase has no real meaning at all, at least not in any legal sense, but it’s a way of identifying with the group that went nuts at the 2000 NRA meeting when the words ‘not from my cold, dead hands’ were intoned by then-NRA President Charlton Heston, whose movie career was just about over except for a bit part in Bowling for Columbine where Michael Moore tried, unsuccessfully, to pester him to death.

As far as I can figure out, to be a Second Amendment absolutist means that government cannot pass any law that would keep American citizens from getting their hands on guns.  Which means bye-bye background checks, bye-bye permit-to-purchase requirements, bye-bye waiting periods and, most of all, bye-bye to any restrictions on walking around with a gun.  It also goes without saying that there wouldn’t be any attempts to restrict the types of guns.  Well, maybe we’d let the government continue to regulate full-auto guns, if only because these items fall into the category of military, rather than civilian small arms. Otherwise, if you can pull the trigger and the gun goes bang only once, you can own and carry anything that you want.

heston               What the gun nuts really want is a legal system which, when it comes to small arms, really doesn’t operate at all.  Which is why I find a new effort to abolish the 2nd Amendment a very interesting response to the absolutist point of view. Because while the absolutists want the amendment ignored, the abolitionists want it to disappear which, to all intents and purposes, amounts to the same thing.  The difference, of course, and the difference is crucial, is that the absolutists want limitless Constitutional protection for their gun-nuttery; the abolitionists know that getting rid of the 2nd Amendment will go a long way towards getting rid of the guns.

Ironically, this was somewhat the state of affairs after the SCOTUS handed down its previous 2nd Amendment decision known as United States vs. Miller in 1939.  In this case, which involved transporting a sawed-off shotgun across state lines, the Court held exactly the opposite from the way it ruled in 2008, namely, that the Constitution did not protect the private ownership of guns. But interestingly, for at least fifty years following Miller, there was little, if any legislative activity involving gun ownership, and even the landmark GCA68 law which got the Feds into gun regulation big-time, didn’t really touch on Constitutional issues at all.  It wasn’t until the Clinton Administration passed two gun laws (Brady and Assault Weapons) in 1994 that arguments over the 2nd Amendment began to heat up, leading eventually to the 2008 decision – a history that is covered thoroughly by Adam Winkler in his well-written book.

The reason I am so taken with this new effort to abolish the 2nd Amendment is that the gun-control community has always been somewhat ambivalent about the statute and, if anything, has found it necessary to defend the amendment from a liberal point of view.  In fact, the debate that led up to the 2008 decision was inaugurated by a pro-2nd Amendment article written by a liberal legal scholar, Sandy Levinson. His 1989 article, “The Embarrassing Second Amendment,” called upon liberal legal circles to support the amendment because, like free speech supporters who argued in favor of the Klan, the Constitution protected the bad along with the good.

Ever since Levinson, liberals have fallen over themselves to proclaim their devotion to the 2nd Amendment while, at the same time, invariably calling for more regulation of guns.  But I don’t see how the constitutionality of gun ownership has anything to do with the 100,000 people injured and killed each year with guns.  Sorry, but the kids and teachers in Sandy Hook would be alive today if Adam Lanza had to leave his gun ‘rights’ at the front door.

The Center For American Progress Has Some Good Ideas To Help Obama Define Who’s Really Dealing In Guns.

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This week the Center for American Progress issued a report recommending changes in the definition of being engaged in the business of selling guns. Clarifying what constitutes dealing in firearms would bring more gun transactions under the purview of the ATF and thus create more barriers to guns moving from one person to another without a NICS-background check.  The CAP report is a response to President Obama’s announcement after Roseburg that he might invoke executive authority to redefine how many gun transactions would demonstrate an ongoing business activity, as opposed to simply owning or collecting guns.

cap logo                Gun dealers have been regulated by the Federal Government since 1938 when a law was passed that required dealers to purchase a Treasury license for one dollar and follow some simple rules whenever they transferred a gun, namely, verifying that the individual to whom they delivered the gun lived in the same state where the dealer was located.

The 1938 law was completely revamped and the scope of government gun regulation widened to an unprecedented degree by the Gun Control Act of 1968.  Now dealers were not only required to verify the age and address of the customer, but also to verify that the prospective gun owner was not a member of various prohibited categories; i.e., felon, drug addict, fugitive, mental defective, and so forth. A gun dealer had no way of checking the veracity of such information, but at least there was a document on file for every over-the-counter sale.

Verifying whether an individual was telling the truth about his fitness to own a gun was what lay behind the Brady Bill passed in 1994.  In lieu of a national waiting-period on all gun purchases was a provision that required every federally-licensed dealer to contact the FBI who then verified that the customer was telling the truth.  But in order to access the FBI examiners, you had to be a federally-licensed dealer.  No federal dealer’s license, no contact with NICS.  Which is where the whole notion of ‘loopholes’ in the gun-licensing system came from; which is what Obama would like to close. And the easiest way to close the loophole, or at least make it smaller, is to define the word ‘dealer’ in a way that requires more people to become FFL-holders if they want to buy or sell guns.

The CAP report is a judicious and careful attempt to set out some criteria that could be used to determine who is really engaged in the business of selling guns.  It does not recommend any specific amounts of guns that might be transferred nor how much money someone needs to earn over any given period of time.  Rather, it looks at how various states define commercial enterprises and whether such definitions would be a useful guide to creating a more realistic way to establish that someone is going beyond just collecting or owning guns.

What the report doesn’t mention is that if the FFL imposes some sort of uniformity over dealers at the federal level, when we look at how states license gun dealers, there’s no uniformity at all.  Every state collects sales taxes, every state imposes and enforces other business regulations, but when it comes to guns, most states simply place the entire regulatory burden on the Feds and the ATF.  In order to receive an FFL, the prospective dealer must send a copy of the license application to the local cops, but if the particular locality doesn’t have any local laws covering gun dealers, the local gendarmerie could care less.

I hope the CAP report will be taken seriously by the President before he issues an Executive Order that more clearly defines what it means to engage in the commerce of guns.  I also hope he won’t publish an Executive Order that places more unfulfilled regulatory responsibilities on the ATF and provokes the usual ‘I told you so’ from the pro-gun gang. If it were up to that bunch, there would be no gun regulations at all.

The Gun Guys Win An Important Court Case – But I’m Not Sure Anyone Loses.

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In what could turn out to be the most important legal decision since the SCOTUS affirmed private gun ownership as a Constitutional right in 2008, a Federal District Judge in Texas, Reed O’Connor, has just issued a ruling which basically invalidates, actually it really demolishes the entire Federal gun regulatory infrastructure that has been growing and growing since the feds got into the business of regulating gun ownership back in 1938.  The 1938 law not only set licensing standards for gun dealers, but also required that dealers and gun customers reside in the same state.  Congress re-visited the law in 1968 and at that time not only defined certain groups of ‘prohibited persons’ who could not purchase guns, but ultimately granted ATF the authority to manage the whole regulatory system from end to end.

The ban on requiring gun purchasers to only patronize dealers in their home state was partially lifted in 1986 with a further revision of the law that allowed individuals to purchase long guns in states other than where they lived, but the limitation on in-state handgun purchases remained in effect until Judge O’Connor found that it not only violated the 2nd Amendment’s right to bear arms, but was also an unreasonable limitation on interstate commerce and trade.

atf                What O’Connor pointed to in his decision to allow interstate purchase of handguns was the implementation of the Brady bill, which requires all gun dealers to perform a background check (NICS) at the point of sale before transferring a gun.  And since any dealer, no matter where he’s located, can perform such a NICS check, what rationale could still exist for forcing a buyer to only do business with a dealer in his own state?  And while the whole purpose of the in-state purchase requirement was to make it more difficult for the ‘bad guys’ to get their hands on a gun such as by crossing the Potomac River to go from gun-nasty District of Columbia to gun-friendly Virginia, the whole regulatory system, as O’Connor pointed out, regulates purchases by the ‘good guys,’ who aren’t buying guns for the wrong reasons anyway.

Unfortunately for gun nuts like myself and the two gun buyers who brought this suit in Federal court, I have a strong feeling that Judge O’Connor’s decision will be overturned either at the Circuit level or if the case goes up to the Supreme Court.  Because if this ruling were allowed to stand, it would throw open the whole issue of whether the feds should be regulating gun ownership at all.  And while folks who believe that regulating guns is an essential requisite for the ongoing effort to reduce gun violence, I can tell you that, opinion polls notwithstanding, there’s not a single gun guy out there who would be at all upset if he never had to fill out another ATF form 4473 (which is how the background check is performed.)

The other problem with O’Connor’s ruling is that some of the reasons proferred for his decision seem to be quite a reach.  He criticized the government, for example, for using data from the 1968 GCA to support the idea that the current ban on interstate handgun sales should be allowed to stand, but he has to know that more recent data shows exactly the same thing.  And while this is the first court test on government gun regulation in which the decision was based on strict, rather than intermediate scrutiny (meaning that the law in question has to respond exactly to whatever issue is being addressed), O’Connor’s argument will probably not displace the government’s ability to show a “compelling interest” in the regulation of guns.

This decision does not throw into question recent efforts to promote comprehensive background checks at the state, rather than the federal level.  If anything, it forces us to ask whether a national regulatory system outdated by advances in technology serves any useful purpose at all.  That’s a conversation we should always be willing to hold – and not just when it concerns guns.

Gun trafficking

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