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January|February 2003
Almost Infamous By John Swansburg
A Lawyer's Limits By Jonathan L. Hafetz
Block Sender By Beth Taylor
Lone Star By Jordan Smith
Neolawisms By Adam Hanft
Off Target By James B. Jacobs
New War, Old Law By Stéphanie Giry

Off Target

Gun control advocates miss the point: Laws won't keep guns out of the wrong hands.

By James B. Jacobs

What is the problem for which gun control is the solution? Not the total number of gun deaths in America. Most deaths from guns occur in suicides, rather than accidents or homicides. In 1999, for example, there were 17,400 firearm suicides but only 9,000 firearm homicides. Year after year, firearm suicides outnumber firearm homicides and fatal accidents combined. But while most gun suicides are tragic, they aren't obviously a failure of gun control. If access to guns were behind the suicide rate, we would expect the United States to be among the leaders in suicide. In fact, the American suicide rate is in the middle of the pack for industrialized nations, lower than the rates for, among others, Canada, Germany, and France.

So if suicide isn't part of the problem, what is? Perhaps fatal accidents are, but the numbers for gun accidents are modest. In 1997, guns accounted for less than 2 percent of accidental deaths in this country. (Cars, by contrast, were responsible for roughly 50 percent.) Only 40 children under age 5 died in firearm accidents that year, compared with 600 who died in drownings. What's more, accidental deaths by firearms have been decreasing for decades, despite a steady increase in the number of firearms in private hands.

All this suggests that the case for gun control should center on the use of guns in violent crimes, particularly homicides. In 1999, for example, over 9,000 of the 14,000 homicides in the United States were committed with a gun. That's a big number, though not as big or dramatic as the figure cited by gun control proponents, which combines annual homicides, suicides, and accidents.

Even when we turn our attention to violent crime, however, it's clear that there is more going on than unchecked access to guns. The United States has much more violent crime, with and without firearms, than other Western democracies. America, it seems, has a disproportionate penchant for violence. (But not lawlessness: Our property-crime rates, for example, are no higher than Britain's or Australia's.) And those who see homicide chiefly as a gun problem gloss over the distinctly American social landscape—with its vast income inequalities, legacy of racial oppression, and enduring frontier mentality—responsible for the conditions in which violence thrives. Consider that our rape, robbery, and assault rates are much higher than those in other countries, yet only modest fractions of these crimes are committed with guns (1.4 percent for rape, 21.5 percent for robbery, and 22.7 percent for aggravated assault). Nine in ten violent crimes are committed without any weapon at all.

Guns play a large role in homicides, but they also play a large role in American life more generally. There are 250 million firearms in private hands in the United States, and the arsenal is growing by about 4.5 million new firearms each year. Two in five households have a gun. Last year, surveys estimated there were 14 million hunters above the age of 16 in the United States, to go with the 12.7 million who claimed to participate in target shooting. (By comparison, 11.2 million Americans play tennis, 15.6 million play softball, and 22.5 million jog for recreation.)

Guns are also a significant business: There are 191 firearms manufacturers, ranging from the largest, Smith and Wesson, to many small firms; these companies employ about 11,000 people and generate sales of $3.5 billion per year. Of the 250 million firearms in private hands, two-thirds are rifles and shotguns. Yet firearm crimes almost always involve handguns. There is good reason to think of the gun problem more narrowly as a handgun problem.

Right now, the practical effect of gun control is severely limited. In exempting a large portion of gun sales under the current laws, the regulatory system—including the highly touted Brady Law—defeats its own best efforts. Purchases made through Federal Firearms Licensees (FFLs) are heavily regulated, but purchases from private individuals are not. The result is analogous to a house with six deadbolts on the door and an open window. As long as casual or occasional gun sellers haven't declared themselves FFLs, there is no federal requirement that they run background checks on potential buyers or keep records of their sales. No federal law would stop them from using a classified ad that read, "Gun for sale: no background check required." It should come as little surprise that most criminals get their guns either via the secondary (non-FFL) market or at gun shows.

Even when background checks are performed, they fall well short of the stated ambition of the law. The Brady system relies on the National Instant Criminal Background Check System (NICS), a federally administered database, which fails to cover many groups for whom guns are ostensibly off limits. No comprehensive lists exist for current drug addicts, mental patients, domestic abusers, or illegal aliens—all of whom are "excluded" from owning weapons by the Brady Law. Creating such lists would be expensive or, more likely, impossible. Their availability would violate privacy concerns.

If the law doesn't require background checks at gun shows, then criminals know that it's at gun shows where they should get their guns. If the law "forbids" selling guns to categories of people, but provides sellers no way to ascertain whether buyers fall into many of these categories, it serves only as political agitprop and not as policy. But expanding the law would be hard. Even after the Columbine massacre, the U.S. Congress would not pass the Gun Show Accountability Act (GSAA), a bill requiring background checks on all firearms sales at gun shows. That refusal was a strong reminder of the unwelcome status of gun control in American politics. Yet if the GSAA is an end in itself, it is hardly worth the effort. What's the purpose of requiring non-FFLs to put their customers through a background check at a gun show, but nowhere else? Criminals could just wait until after the gun show was over and buy their guns in the parking lot.

Proponents of gun control attempted to address these concerns with "Brady II," the popular name for an omnibus bill that has been languishing in Congress since the mid-1990s. Brady II seeks to cover all handgun transfers by requiring that gun purchasers be licensed and trained to use firearms safely, with local government asked to carry out these tasks. But in 1997, the U.S. Supreme Court declared in Printz v. United States that the federal government cannot compel state or local agencies to enforce a regulatory scheme, which almost certainly renders this tactic unconstitutional. A post-Printz version of Brady II would need to rely exclusively on the Bureau of Alcohol, Tobacco, and Firearms (BATF) or some other federal agency. Federal employees would issue (and revoke) licenses and keep records on all FFL and non-FFL handgun transfers.

Brady II acknowledges that an effective licensing system must be backed up by a comprehensive registration scheme. That way, authorities would be able to hold sellers accountable when their guns turned up in the wrong (i.e., unlicensed) hands. Brady II doesn't contain the words "national handgun registry," but that's what the bill would establish. It would expand the paper trail on every handgun by requiring the manufacturer and all subsequent sellers or transferors to fill out a registration form.

The full effect of Brady II would be to create a regulatory system for owning guns like the one now in place for driving cars. The DMV analogy is a good indication of the cost of this kind of program—every county in the United States has a DMV—but not necessarily of its effectiveness. The foremost goal of gun licensing is prevention—keeping guns out of the wrong hands —rather than punishment. But that's not the way the driver licensing system operates. It weeds out practically no one in advance; it has teeth only after a driver demonstrates dangerousness by violating a motor vehicle law or, more likely, after a series of violations.

The major impediment to making a national handgun registry work is obtaining compliance from present gun owners. A registry would mean little unless nearly all of the 250 million guns currently in circulation were listed with the government. In recent years, several states passed laws mandating the registration of assault rifles. For reasons ranging from ideology to laziness, these laws have been overwhelmingly ignored. A black market would invariably crop up where unregistered guns could be peddled. Moreover, unlike with cars—where drivers without license plates can be easily spotted by police—those who chose to carry around an unregistered gun would likely go undetected until after they committed a crime. So even if we overcame the political, logistical, and financial obstacles to passing the GSAA, extending background checks to the secondary market, and creating a national gun registry and licensing system, the question remains: Would a new generation of criminals find it difficult to obtain unregistered handguns? And would the gains in controlling guns be worth it?

The crime-solving potential of a registry and licensing system is diminished by a few realities. If a gun is recovered at a crime scene, it is usually because the police have arrested the person holding it. A savvy criminal can defeat a tracing system by filing down the serial number. Even if new technology, like a computer chip containing a serial number, could prevent destruction of a gun's identity, it would be possible to wipe out the serial numbers of handguns manufactured before the new technology was available. Criminals would still be able to use the millions of guns already in circulation. And handguns can last up to 100 years.

Where does that leave us? Prohibition of civilian ownership of firearms is not a feasible option. To the extent that it remains on the agenda at all, its effect is counterproductive. As long as gun owners believe that gun control advocates want to prohibit civilian ownership, they will resist all handgun measures, seeing them as part of a step-by-step march toward prohibition and confiscation.

Gun "control" should be about reinforcing a norm of responsible gun ownership and use. We should approach the issue with the same mindset with which we approach alcohol consumption and driving, where we talk about "responsible drinking" and "safe driving." Here's a modest set of proposals to augment the current system built around Brady.

Ballistics fingerprinting—requiring manufacturers to test-fire new guns and supply the government with samples of the bullets and shell casings—is worth trying because the implementation and enforcement costs are low. Criminals could learn to defeat this system by altering the gun barrel with an instrument, but the system could prove useful. Restricting handgun sales to one handgun per buyer each month makes sense for the same reason. Very few legitimate users would be inconvenienced by that limit. Brady II would require such laws, and perhaps they would keep black marketeers from stockpiling guns quickly.

A waiting period could prevent a person in a murderous rage from running out of the house and, on the spot, purchasing a firearm from an FFL, then rushing back home to use it. Gun control advocates should also try to repeal the so-called "shall issue" laws. These state laws grant permits allowing practically any citizen without a criminal record to carry a concealed weapon in public. If anyone can legally carry a firearm, the police have no probable cause to stop a person they believe is armed.

By far the easiest way to strengthen firearms policy in the United States is to provide severe punishment for every defendant who uses a gun to commit a crime. There are no interest groups that oppose tough treatment for gun offenders. The NRA, the police, and victims' groups all support long prison terms for individuals who commit crimes with guns. If the laws about illegal possession of a firearm are viewed as too harsh and are not enforced, it makes sense to relax them: A modest punishment routinely enforced is better than a draconian threat rarely applied.

Even without a major gun initiative, there is reason to be optimistic about our potential to reduce crime. Violence has decreased dramatically in the United States, against a backdrop of increasing gun ownership. This tells us that the accessibility of firearms is not the most important factor driving gun crime. Instead of being distracted by proposals that focus narrowly and unrealistically on guns, policymakers should now look to the other anti-crime strategies and the social welfare policies that might be contributing to this unprecedented decrease in violent crime and gun crime. Scant attention is paid to the novel strategies to reduce violence being tried throughout the country: anti-bullying programs in schools, for example, and comprehensive state-funded counseling for dysfunctional families. We need to reduce the devastating amount of violence in poor inner-city neighborhoods by working to rebuild them physically and socially. That's a difficult task, but we would have more resources to devote to it if we weren't distracted by the false promise of gun control.

James B. Jacobs is the Warren E. Burger Professor of Law and the Director of the Center for Research in Crime and Justice at New York University School of Law. His latest book is Can Gun Control Work?, recently published by Oxford University Press, from which this piece is adapted.

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