Date: Wed, 21 Aug 1996 04:25:43 -0400 From: [E--rS--r] at [aol.com] Subject: Dismantling the Brady Law 1/2 Doctors for Integrity in Policy Research, Doctors for Responsible Gun Ownership, and the Lawyers Second Amendment Society have filed an amicus brief supporting the dismantling of the Brady Law. In the tradition of the "Brandeis Brief," we do not address the focused constitutional concerns, but address instead the public policy concerns. We cannot allow the Supreme Court to mistakenly imagine that the sky will fall if they dismantle the Brady Law (which, incidentally, was originally named for _Sarah_, _not_ Jim_Brady). We cannot allow the Supreme Court to imagine that a "compelling government interest" exists that overshadows our rights. Though _not_ the text of our brief, we offer the background research for your consideration and dissemination. DIPR, DRGO, & LSAS ********************************* Dismantling the Brady Law - No Public Policy Disaster Dispelling Common Misperceptions Guns in the hands of Americans are overwhelmingly a net benefit to society. To understand why dismantling the Brady Law is desirable - not a public disaster - it is crucial to first understand the enormous protective benefits of guns - the lives saved, the injuries prevented, the medical costs averted (because guns save lives and prevent injuries), and the property protected using guns. Evidence continues to accumulate showing that, rather than causing an "epidemic of violence," guns in the hands of good citizens reduce violence. Below we will point to the evidence that the Brady Law background check and waiting period do nothing significant to reduce violence or to ensure that guns are only in "good hands," but do impede the timely access of good citizens to needed protection. In hopes of weakening the Tenth Amendment challenge to the Brady Law "reasonable" background check requirement of Chief Law Enforcement Officers (CLEO), supporters of the Brady Law, with a wink and a nod, have suggested that in some cases a "reasonable" background check is no background check. We argue that such farcical perfidy cannot be suborned by the Court, particularly in view of the superior available option, computerized Instant Check of gun purchasers' backgrounds as currently exist in 28 states. Unlike the Brady Law's ridiculous requirement that CLEOs review available records (such records often constituting little better than outdated paper files in a shoebox), the Instant Check system relies upon current, computerized records. We point to the dramatic difference between the Brady Law's laughable prosecution and conviction record (during the first year of the Brady Law, 7 convictions in the entire nation) and the efficient sweep of computerized state Instant Checks of gun purchasers' backgrounds (between November 1989 and June 1996, 2,479 individuals were arrested - of which 304 were wanted persons - in one state alone, Virginia). We will demonstrate the duplicity of repeated claims that the Brady Law has prevented "Sixty thousand" - or even any thousands - of criminals from obtaining firearms. We provide this documentation with one purpose in mind - to show unequivocally that there is no compelling government interest in resuscitating the Brady Law. Far from a public policy disaster, dismantling the Brady Law is a public benefit. To place the specifics of Brady Law gun control in perspective, one must understand the larger perspective of gun control. As the newest piece of evidence supportive of that contention that guns in the hands of Americans are overwhelmingly a net benefit to society, a forthcoming study of 15 years' data by University of Chicago researchers shows that "1,570 murders; 4,177 rapes; and over 60,000 aggravated assaults would have been avoided yearly" if currently restrictive states would reform their laws to allow more mentally-competent, law-abiding adults to carry concealed handguns for protection outside the home.1 Though surprising to those who obtain their impressions of gun violence research from the print and broadcast lay press, the scholarly literature increasingly vindicates guns as "pathogens" of violence and exposes gun control as a "placebo" or "suicide pill" rather than a "cure" for gun violence.2 In fact, the strategy of gun control proponents to repackage gun control as a "public health" measure3 resulted because of the near unanimous recognition of the criminological scholarly literature that gun control was a failure as a crime or violence reductive measure.4 Stringent gun control does not and cannot be expected to keep guns out of the hands of the willful predators who ignore laws against drug trafficking, rape, and murder. By whatever increment any gun control measure inconveniences criminals, those criminals are not (the wishful and repeated claims of gun control advocates notwithstanding) "prevented from obtaining guns," they are merely displaced into the fast and uncontrolled illegal gun market. Predators who sell crack by the gram or heroin by the kilogram, can quickly and certainly find a black market gun and can certainly afford outrageous prices for such guns without any inconvenience of a background check or a waiting period any longer than a "cash and carry" transaction. Accordingly, gun control only impedes gun purchases by willingly compliant law-abiding citizens, the victims. In so doing, gun control is a counter-productive, even deadly, failure. Victim disarmament is not a policy that saves lives. To the extent that the Brady Law impedes the access of good citizens to the protection of guns, the Brady Law becomes only a comfort to criminals, an assurance of criminals' continuing job safety. The much ballyhooed "public health approach to gun violence" merely spins "new clothes [a lab coat] for the emperor" offering an insidiously amoral, value-neutral perspective on gun deaths. Because of Hippocratic Oath values, the medical and public health literature tallies the death of the crippled grandmother shot in the back by a gang-banging predator the same as it tallies the death of a predatory 24 year old, drug-trafficking "innocent child" (in the parlance of the American Academy of Pediatrics). Such predatory teens and young adults carry illegal guns obtained on the black market that are not subject to the Brady Law background checks or waiting periods. The medical/gun control advocacy literature5,6 shows that fully two-thirds of gun homicide "victims" are, in fact, drug dealers and their customers who wreak tremendous human and economic havoc upon society. Failing to account for this, the medical literature cannot and does not honestly assess these deaths. Whether measured in human or economic terms, our peer-reviewed cost-benefit analysis finds an overwhelming net benefit of guns in our society - overwhelmingly more lives and money saved using guns than are lost using guns.7 Without exception, review of all 14 studies of defensive gun use suggest that protective uses of guns by Americans number 1 to 2.5 million annually.8 The largest-scale, most comprehensive study of protective gun use, Kleck & Gertz's National Self-Defense Survey, suggests about 2.5 million protective uses by adult Americans against human attackers annually - lives saved, injuries prevented, medical costs averted, and property protected. Protective uses against animals and protective uses by teenagers or children were not included in this study. About 400,000 of these gun defenders believe that they would almost certainly have lost their lives if they did not have a gun for protection. Even if 90% of these gun defenders were mistaken, the number of lives saved using guns still outnumbers the lives taken using guns by thousands. In about 98% of these protective uses the gun is not even fired. In only about 0.1% (one-in-a-thousand) of the protective uses is the attacker killer.9 This exposes the fundamental flaw in the Centers for Disease Control (CDC)-sponsored research claiming that "a gun owner is 43 times more likely to kill a family member than an intruder"10 - gun defenders apprehend or repel attackers a thousand times as often as they kill them. The flawed and politicized nature of the CDC's much publicized research has been repeatedly exposed in the peer-reviewed and peer-acclaimed scientific literature11,12 and before Congress.13,14 In a front page investigation the Wall Street Journal of May 1, 199615 exposed the CDC's campaign of strategic lying regarding AIDS research. The CDC has waged a similar campaign of strategic lies regarding guns and violence. We present this data as background to generate healthy scientific - and legal - skepticism of the flawed and politicized "science" that has polluted the public debate, media, and common wisdom regarding guns in our society. Such rigorous objectivity is essential in examining the key point of this brief, our contention that the Brady Law is useless, perhaps even dangerously counter-productive. Piercing the False Claims of Brady Law Benefits Arguably the most prominent Brady Law supporter, President Clinton, stated "xSixty thousand people with criminal records have not been able to buy handguns because of the passage of the Brady Billx."16 and "It has made us a safer country."17 The President's remarks encapsulate all that is wrong with his and countless similar claims of Brady Law benefits because: * the GAO survey,18 the source of President Clinton's projected figure, stated that it's Brady Law sample data could not be projected to the nation at large as President Clinton has done to arrive at the "Sixty thousand" figure * the GAO survey shows that approximately half of the individuals fingered by Brady Law background checks are not individuals disqualified from gun ownership19 * data from the National Institute of Justice20 and from the Bureau of Alcohol, Tobacco and Firearms21 suggest that, of those actual criminals fingered by the Brady Law background checks, gun purchase was not prevented - criminals are merely displaced from the legal retail market into the illegal black market unaffected by the Brady Law * FBI Uniform Crime Report data from 1993 and 199422 actually show that the 22 states exempt from Brady Law provisions are safer than the 28 states subject to Brady Law provisions. We elaborate on each of these points. "GAO did not conduct a national survey of law enforcement officials.x Instead, GAO judgementally selected and surveyed 20 law enforcement jurisdictions (7 statewide and 13 local). The results of GAO's study, therefore, are not projectable to the universe of denials nationwide."[emphasis added]23 Unfortunately, the President and other Brady Law advocates ignore this important caveat from their own data source. Additionally, such claims of "Sixty thousand" depend upon denials in the entire nation, including the Brady-exempt states. How can Brady Law advocates honestly lay claim to the benefits obtained in states exempt from Brady Law provisions? The GAO survey found that approximately half of Brady Law background check denials, the so-called "criminals," are errors. Half of these Brady Law "criminals" are flagged due to administrative errors (such as forms prepared or mailed incorrectly, innocents whose names are similar to felons, non-disqualifying misdemeanor traffic convictions, or other trivial "crimes" such as fishing without a license and failure to license dogs). Even when considering the convicted felons accurately fingered by background checks, one must wonder what threat to society is the handgun of a former tax evader who paid her debt to society? or the handgun of the middle-aged, working father who forgot about his collegiate plea on "disturbing the peace" charges? Such crimes do disqualify gun ownership, but can Brady Law advocates honestly lay claim that such denials kept handguns out of the hands of criminals? or that such denials prevented crimes? Neither waiting periods nor background checks prevent criminals from acquiring guns. Data from the National Institute of Justice24 and from the Bureau of Alcohol, Tobacco and Firearms25 agree that approximately 7% of criminals' handguns are obtained from retail sources, so controls on retail gun sales cannot be expected to reduce criminals' access to guns much, if at all. Despite exaggerated claims by the administration and gun prohibition lobbyists26 of the success of the Brady Law, the Bureau of Alcohol, Tobacco and Firearms (BATF) has acknowledged that the little existent evidence is only anecdotal.27 Of the actual felons identified by Brady Law background checks during the first 1 1/2 years of the Brady Law, only seven had been successfully prosecuted (4 received probation and 3 received prison sentences of between 1 to 2 years). Even if we ignore noting that incarcerated criminals still obtain or improvise firearms, we are forced to note that the actual Brady Law criminals who are not incarcerated are merely displaced into the "black market." In such circumstance, the minimal expected benefit of the Brady Law diminishes to no benefit at all. President Clinton, himself a staunch defender of the Brady Law, admitted the Brady Law failure: "It is true that you can still buy an illegal gun with cash in the streets."28 The real purveyors of violence, the vicious predators with lifelong histories of violence to those around them (family, acquaintance, or otherwise), are the criminals untouched by the Brady Law or other gun laws except for penalty enhancements (when the gun charges are not plea bargained away by the prosecutor). A meticulous scholarly analysis published in The Journal of Criminal Law & Criminology29 reviewed these and other problems that expose the Brady Law as a political boon, but a public policy sham. There is no persuasive evidence that the Brady Law has made us safer. Prior to implementation of the Brady Law in 1993, FBI Uniform Crime Report data showed that, in the 24 states and the District of Columbia where laws existed to delay handgun purchases, violent crime was 34.6% higher, Robbery was 76.9% higher, Aggravated assault was 21.6% higher, and Homicide was 3.7% higher.30 Following the implementation of the Brady Law, FBI Uniform Crime Report data from 1993 and 1994 show that: * homicide dropped about twice as much in the 22 states exempt from the provisions of the Brady Law (a 7.3% drop from 1993 to 1994) in comparison with the 28 states subject to the provisions of the Brady Law (a 3.8% drop from 1993 to 1994). * total violent crime dropped exactly twice as much in the 22 states exempt from the provisions of the Brady Law (a 4.8% drop from 1993 to 1994) in comparison with the 28 states subject to the provisions of the Brady Law (a 2.4% drop from 1993 to 1994). * robbery dropped over three times as much in the 22 states exempt from the provisions of the Brady Law (an 8.8% drop from 1993 to 1994) in comparison with the 28 states subject to the provisions of the Brady Law (a 2.7% drop from 1993 to 1994). Since most high-crime states and the District of Columbia were exempt from Brady Law provisions, the Brady Law would not have been expected to have had an effect on these jurisdictions. Instead, the Brady Law imposed background check and waiting period requirements upon traditionally low-crime states - a priori reason to have low expectations for Brady Law results. Today the District of Columbia and most high-crime cities are exempt from the Brady Law waiting period. Ten such Brady Law-exempt/high-crime cities (New York City, Chicago, Los Angeles, Detroit, District of Columbia, Baltimore, St. Louis, Phoenix, Atlanta, Richmond) accounted for 23% of 1994 US homicides.31 "If it saves one life," but costs many lives, what then? The Brady Law is a failure and predictably so. Contrary to the pandemic of propaganda by the advocates of the Brady Law, dismantling the Brady Law will not result in an epidemic of violence or a public policy disaster. In formulating sound public policy, one cannot succumb to the seductive "if it saves only one life" lament as though it suggested some compelling government need, because the dozens of thousands of Brady Law background check errors and the waiting period have certainly denied timely access to the safest and most effective means of protection32 - a gun - to at least many innocent victims. [cont'd]