Newsgroups: talk.politics.guns
From: [l v c] at [cbnews.cb.att.com] (Larry Cipriani)
Subject: Re: Brady Bill
Date: Fri, 10 Dec 1993 15:40:43 GMT
I've sent this to Jeffery and am posting it for anyone else who may
be interested.
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INDEPENDENCE ISSUE PAPER
No. 4- 91 Independence Institute, 14142 Denver West Parkway #101 Golden, CO
80401 (303) 279-6536
------------------------------------------------------------------------
Note: The Independence Issue Papers are published for educational purposes
only, and the authors speak for themselves. Nothing written here is to be
construed as necessarily representing the views of the Independence Institute
or as an attempt to influence any election or legislative action.
------------------------------------------------------------------------
March 25, 1991
WHY GUN WAITING PERIODS THREATEN PUBLIC SAFETY
By David B. Kopel
Executive Summary
'Honey, I forgot to duck.' Remember the day Ronald Reagan was shot? The
President, grinning up from his hospital bed on March 30, 1981, was able to
joke about a gunman's attempt on his life. But his press secretary, James
Brady, fared much worse; shots from the same pistol left him permanently
disabled. The nation was shocked, the gun control movement galvanized.
This month's observance of ten years since the day Reagan and Brady were
shot by John Hinckley is an occasion for renewed consideration of what can
realistically be done to keep firearms from falling into the wrong hands and
being used for the wrong purposes.
The leading proposal before Congress and state legislatures is to
require that any retail purchase of a handgun be preceded by a waiting
period, during which a background check on the purchaser's criminal and
mental record could be conducted.
A waiting period has strong initial appeal. The tradeoffs appear
positive: relatively small costs in exchange for significant gains in public
safety.
But an exhaustive study of the issue by attorney and gun control expert
David Kopel concludes that this perception is misleading. When all the
evidence is dispassionately weighed, all the consequences traced, Kopel finds
that there is a very real possibility that gun waiting periods *threaten*
public safety.
The reason: law enforcement resources diverted and law-abiding citizens
disarmed. Proponents are doubtless right in saying that a federally imposed
waiting period would save at least one life somewhere, the author concedes.
But he says that is beside the point if America as a whole would be
marginally less secure against crime, violence, and fear as a result of the
new restriction. Kopel's research and analysis show why the waiting period's
vast cost is likely to more than cancel its apparent benefits.
Advocates of the waiting period use the Hinckley case as a symbol,
opinion polls to suggest momentum, criminological studies and state
experience for empirical validation. None of the four stands up to scrutiny,
however. The proposed law would not in fact have halted purchase of the gun
used to shoot Reagan and Brady. Polling results turn out to be flawed and
mixed. No criminologist has shown that waiting periods work. California
and other states with waiting periods show only a minuscule arrest rate
and widespread unfairness to the law-abiding.
There is shock value in the scenario of guns "too easily bought" by drug
dealers, psychotic killers, persons bent on killing a spouse or themselves,
or purchasers intending to use them in hot blood. Yet hard data and common
sense show little benefit from a waiting period even in such lurid
situations.
Against the meager-to-nil impact of waiting periods on crime control
must be set their clearly negative impact on the average American's ability
to count on police protection or protect himself.
Specifically: Is it desirable to have law enforcement agencies bogged in
a vast new paperwork morass and harried with lawsuits over insufficient
background checks? To have a threatened person face dangerous, sometimes
indefinite, delays in obtaining a self-defense gun? To set in place a
mechanism for *de facto* universal gun registration and a political stepping
stone to outright gun prohibition? To legislate in disregard of the "no prior
restraints" and "least restrictive means" principles that should safeguard
not only the Second Amendment, but the whole Bill of Rights? All these are
foreseeable effects of the proposal.
Alternatives to the waiting period proposal might include a
Virginia-style instant phone check on the purchaser's background, creation of
a firearms owner ID card, or adding one's fingerprint to a computerized
driver's license (the so-called 'smart card'). These measures are preferable
in many respects, since they are at least as effective as waiting periods at
disarming criminals, and are less likely to be used to disarm citizens. Yet
these alternatives, like the waiting period, are subject to evasion by
criminals and abuse by government administrators, and create serious risks of
privacy violations.
Ultimately, the Kopel study concludes, practicality and
constitutionality are best served by strategies that aim to cut gun crime not
by targeting the legitimate retail firearms trade, but instead by aiming at
the black market where most criminals get most of their guns.
Copyright 1991 -- Independence Institute
INDEPENDENCE INSTITUTE is a nonprofit, nonpartisan Colorado think tank. It is
governed by a statewide board of trustees and holds a 501(c)(3) tax exemption
from the IRS. Its public policy focuses on economic growth, education reform,
local government effectiveness, equal opportunity, and the environment.
PERMISSION TO REPRINT this paper in whole or in part is hereby granted,
provided full credit is given to the Independence Institute.
DAVID B. KOPEL is an environmental lawyer and also an associate policy
analyst with the CATO Institute, a Washington, D.C. think-tank. He belongs to
the Independence Institute's group of newspaper and radio commentators, and
also speaks frequently on behalf of the American Civil Liberties Union of
Colorado speakers bureau.
EDITOR of the Independence Issue Paper Series is John K. Andrews, Jr.,
President of the Institute.
INDEPENDENCE ISSUE PAPER
No. 4-91 Independence Institute *, 14142 Denver West Parkway #101 Golden,
CO 80401 (303) 279-6536
------------------------------------------------------------
Note: The Independence Issue Papers are published for educational purposes
only, and the authors speak for themselves. Nothing written here is to be
construed as necessarily representing the views of the Independence Institute
or as an attempt to influence any election or legislative action.
-------------------------------------------------------------
March 25, 1991
WHY GUN WAITING PERIODS THREATEN PUBLIC SAFETY
By David B. Kopel
CONTENTS
I. JOHN HINCKLEY ....................................................... 2
Handgun Control, Inc. claims that a waiting period and background
check "certainly" would have stopped John Hinckley, who attempted
to assassinate President Reagan. Yet Hinckley had no felony record,
and no public record of mental disability. HCI asserts that
Hinckley was not a resident of Texas, the state where he bought the
gun, and that a background check would have revealed that he was
illegally buying a handgun in state where he was not a resident.
The evidence indicates that Hinckley was a legal Texas resident. In
any case, HCI's proposed background check involves only criminal
and mental records, and not an address check. Accordingly, it is
very unlikely that the background check would have affected
Hinckley.
II. PUBLIC AND POLICE OPINION .......................................... 7
A. POLICE ......................................................... 7
B. PUBLIC OPINION POLLS ............................................ 10
Polling data show that large majorities of American citizens, as
well as of big-city police chiefs, favor a waiting period. Polls
of command-rank officers find them skeptical about waiting periods.
For all the polling, flaws in the wording of the questions probably
exaggerates the extent of public support and command-rank police
hostility. In any case, polls are poor guides to public policy,
particularly when Constitutional rights are involved. The reflexive
hostility of some police officials towards the Second, Fourth, and
Fifth Amendments to the Constitution should not be entitled to much
weight in the deliberative process.
III. CRIMINOLOGICAL STUDIES ........................................... 12
Criminologists of every persuasion have examined waiting periods,
and not one has found statistically significant evidence that
waiting periods are effective. Studies of felony prisoners show
that virtually none of them obtain crime guns by personal over the
counter purchase, the only kind of criminal gun acquisition that a
background check could stop.
IV. THE WAITING PERIOD (IN)ACTION ...................................... 15
Although no evidence ties waiting periods to reduced crime rates,
the experience of states with waiting periods shows about only a
small percentage of retail gun buyers are denied because of
criminal records. Of these, about 1% are deemed worth arresting.
The number of people who are illegally or arbitrarily denied their
right to bear arms by abuse of a background check system is about
as large as, and sometimes far larger than, the number of criminals
denied.
V. PARTICULAR TARGETS OF WAITING PERIODS ............................ 19
A. DRUG DEALERS .................................................... 19
B. HOMICIDAL MANIACS .............................................. 20
C. SUICIDES ...................................................... 21
D. DOMESTIC HOMICIDES ............................................. 21
E. PEOPLE IN NEED OF "COOLING-OFF ............................... 21
F. SUMMARY: WHAT BENEFITS CAN BE EXPECTED FROM A
WAITING PERIOD? .............................................. 22
The suggestion that people who transact in illegal drugs could be
denied firearms under any gun control system is patently silly.
Psychotic mass murderers have repeatedly bought guns in states with
waiting periods. There is no evidence that waiting periods prevent
suicides or domestic homicides. Hardly any crimes could even
theoretically be prevented by a "cooling off" period.
VI. PROBLEMS CAUSED BY A WAITING PERIOD ............................. 23
A. THE DRAIN ON POLICE RESOURCES ................................. 23
B. LAWSUITS AGAINST THE POLICE .................................. 24
C. COVERT REGISTRATION ............................................ 25
D. PRIVACY OF MEDICAL RECORDS .................................. 25
E. DENIAL OF ABILITY TO OBTAIN A GUN ................................ 26
F. FINANCIAL HARDSHIPS .............................................. 29
G. THE DATA QUALITY PROBLEM ..................................... 30
H. A STEP TOWARDS PROHIBITION ....................................... 31
Substantial police resources are inefficiently diverted from street
patrol to desk work. A background check consumes about $40,000 in
police salary for every arrest it produces. Resources may be
further consumed by lawsuits regarding allegedly insufficient
background checks. Waiting periods prevent a person from acquiring
a gun for several days, and if implemented improperly (as they
often are) waiting periods may result in total denial of a
person's legitimate right to bear arms. The diversion of police
resources, coupled with the interference with the acquisition of
self-defense guns, may mean that a waiting period would cause a net
loss of lives.
VII. CONSTITUTIONAL ISSUES ............................................ 32
A. PRIOR RESTRAINTS ON CONSTITUTIONAL RIGHTS .......................... 33
B. BALANCING TESTS ................................................... 34
C. FEDERALISM ......................................................... 34
Waiting periods are a prior restraint on the exercise of
Constitutional rights. The very point of basic rights like free
speech, or free exercise of religion, or the right to keep and bear
arms, is that a citizen does not need to ask for government
approval to exercise those rights. Waiting periods, because of
their inefficacy and potential for abuse, are not the least
restrictive means of attacking gun crime without interfering with
the right to bear arms. A federal waiting period violates the 10th
Amendment by forcing state officials to perform background checks.
VIII. ALTERNATIVES .................................................... 36
A. "INSTANT" CHECKS ................................................. 37
B. FIREARMS OWNERS IDENTIFICATION CARDS ............................. 39
C. SMART CARDS ....................................................... 40
D. ANTI-CRIME ALTERNATIVES THAT DO NOT INFRINGE CIVIL
LIBERTIES ...................................................... 41
There a number of alternatives that -- while clearly superior to
the waiting period -- do not represent good policy choices in
themselves. The Instant Telephone Check and the 7 day waiting
period/background check both use the same (often inaccurate)
database; the Instant Check has the obvious advantage of being
speedy, and not interfering with expeditious acquisition of a
self-defense gun. Firearms Owners Identification Cards take a long
time to obtain initially, and serve as a basis for gun-owner
registration and overly broad fingerprinting of the general
population. Turning drivers licenses into 'smart cards' also
requires citizens to submit fingerprints to the government in order
to exercise their Constitutional rights. The most effective way to
deal with criminals possessing guns is to better enforce laws
regarding criminal gun acquisition and to target the black market
trade that supplies the gigantic majority of criminal guns.
Researchers from the National Institute of Justice have suggested
several possibilities to directly attack the black market; none of
the NU proposals interferes with Constitutional rights.
IX. CONCLUSION ........................................................
INTRODUCTION
Waiting periods: Many states already have them; most national police
organizations, most people, and most gun owners are for them. In the 1970s,
even the National Rifle Association supported the idea of a carefully-crafted
state waiting period. So who could be opposed?
This paper suggests that sometimes a majority of NRA members, a majority
of gun owners, and even a majority of all the people may not always be right.
Waiting periods come in two basic shapes. The 'limited' waiting period
is a relatively short wait for retail hand gun purchases. Proposals for such
a law have attracted many cosponsors in Congress, and lost by margins that
(while not narrow) are far from the landslides usually thought to be the
National Rifle Association's norm in crushing gun control. The wide support
for a limited handgun waiting period in Congress reflects the growing
persuasiveness of Handgun Control, Inc., the anti-gun lobby.
The more comprehensive waiting period applies to all guns, including
long guns, and applies to all transfers, including gifts between family
members. The wait itself is much longer. The comprehensive wait is also
supported by Handgun Control, Inc. (HCI). HCI has persuaded legislatures in
California, Connecticut, and Rhode Island to adopt a comprehensive wait,
supplanting the existing limited handgun wait in those states.
Although HCI backs the new comprehensive waits in California and other
states, the ultimate goal is an even stronger comprehensive wait. In 1990,
Colorado State Senator Pat Pascoe introduced a waiting period bill which HCI
Chair Sarah Brady called "everything on my wish list."[1] The bill provided:
* As in California, a comprehensive background check and waiting period
on both handguns and long guns, for all transactions, including intrafamily
gifts. Each gun purchase would require a background check of up to two
weeks, _followed_ by a waiting period of one week. An applicant would then be
given a permit to purchase, good for 60 days.
* The applicant would pay a fee of up to $20 for each purchase permit.
* There would be no exception for a person who needed a firearm for
self-defense. In fact, even if the police strongly wanted the citizen to
acquire a gun because of imminent deadly threats, a one week delay would
still be mandatory.[2]
Presently the only state with a law that is more severe than Colorado's
very strict proposal is New Jersey.
The waiting period concept (both limited and comprehensive) reflects the
belief that there should be a police check before a person buys a gun. In the
form of an instant telephone check, the National Rifle Association is
essentially willing to accept the police assent principle, providing the
system is structured properly. The instant check is currently in effect in
Virginia, with few apparent problems (and some successes) so far. Handgun
Control, Inc. accepted the instant check in Virginia, and opposed it in Ohio.
Since the instant telephone cheek is sometimes offered as an alternative
to the waiting period, the telephone check is discussed in this paper. Other
regulatory alternatives to a waiting period are also considered.
The paper discusses the following issues: Would a waiting period have
stopped John Hinckley? What do the polls of police and of citizens say about
waiting periods, and what implications should be drawn from the results? What
have the criminologists learned about waiting periods? What good have they
done in states where they already exist? If a waiting period could save at
least one life (and it certainly would) isn't it a good idea? What are the
disadvantages and risks of waiting periods and other police permission
systems like the instant telephone check? Are there meritorious alternatives
to waiting periods? The paper also offers suggestions about how a waiting
period should be structured, if a legislature elects to enact one.
The views of Handgun Control, Inc. on waiting periods and gun control
are discussed throughout, because, as HCI puts it, the waiting period is the
group's 'flagship' bill and HCI is by far the most important gun control
lobby.
1. JOHN HINCKLEY
Synopsis: Handgun Control, Inc. claims that a waiting period and
background check 'certainly' would have stopped John Hinckley, who
attempted to assassinate President Reagan. Yet Hinckley had no
felony record, and no public record of mental disability. HCI
asserts that Hinckley was not a resident of Texas, the state where
he bought the gun, and that a background check would have revealed
that he was illegally buying a handgun in state where he was not a
resident. The evidence indicates that Hinckley was a legal Texas
resident. In any case, HCI's proposed background check involves
only criminal and mental records, and not an address check.
Accordingly, it is very unlikely that the background check would
have affected Hinckley.
The national waiting period is commonly known as 'the Brady Bill.' Its
supporters named it after Sarah Brady, the Chair of HCI. To many people, the
fact that a waiting period would have stopped John Hinckley from shooting
President Reagan and crippling his Press Secretary Jim Brady is reason enough
to enact such a law.
Both the perpetrator and the main victim of Hinckley's attack agree that
a waiting period would have prevented the crime. Currently under indefinite
commitment to St. Elizabeth's mental hospital in Washington, John Hinckley
has petitioned to be allowed access to reporters so that he can speak out for
handgun control and for a waiting period. Hinckley explains that he was in
"a valium depression" when he acted, and a waiting period might have given
his better self time to reassert control. But in fact, Hinckley bought the
assassination gun in October 1980, months before the assassination attempt.
A wait would obviously have had no impact.
Legislators usually pay little attention to the policy suggestions of
the criminally insane. The more persuasive spokesperson for the waiting
period is Sarah Brady, wife of the man crippled by Hinckley. "Had a waiting
period been in effect seven years ago, John Hinckley would not have not have
had the opportunity to buy the gun he used" says Mrs. Brady.[3]
Mrs. Brady bemoans the fact that Hinckley was able to buy the gun with
no waiting period to see if he had a criminal or mental illness record.[4]
But Hinckley had no public record of mental illness; hence a mental records
check would have done no good. [5]
As for a criminal records check, a police background check was run on
Hinckley a few days before he bought the gun, and nothing turned up. Hinckley
was caught trying to smuggle a gun aboard a plane on October 9, 1980, in
Nashville. His name was run through the National Crime Information Center,
which reported, correctly, that he had no felony convictions in any
jurisdiction. He was promptly released after paying a fine of $62.50 and
pleading guilty to a misdemeanor.[6]
Although Mrs. Brady complains about the lack of a criminal/mental check
on Hinckley, she does not explicitly affirm that such checks would have
affected him. Instead, Mrs. Brady's detailed explanation involves Hinckley's
residence status.
On October 13, 1980, John Hinckley walked into Rocky's Pawn Shop, in
Dallas, Texas, and walked out shortly thereafter with two .22 caliber RG
revolvers. As with the retail purchase of any gun, the gun dealer was
required to complete a federal form which listed Hinckley's address. Because
Hinckley was buying two guns in the same five-day period (in fact, at the
same moment), the dealer also filled out another federal form. That federal
form was sent to the local office of the Bureau of Alcohol, Tobacco and
Firearms.
By federal law, the dealer was required to verify that Hinckley was a
resident of Texas, the state in which he was buying the handgun. When asked
for identification, Hinckley offered his Texas driver's license.[7]
Mrs. Brady details how a background check might have helped: "He lied
about his address and used an old Texas driver's license to purchase that
revolver. He was not a Texas resident. A police check would have stopped him
from buying a handgun in Texas."[8] As she puts it, "He lied on his purchase
application. Given time, the police could have caught the lie and put him in
jail."[9]
Accordingly, Mrs. Brady states: "A simple check would have stopped him
.. John Hinckley might well have been in jail instead of on his way to
Washington."[10] Indeed, her assurance that the waiting period would have
stopped Hinckley is often unequivocal: "There's no doubt that he would not
have been able to purchase that gun."[11] Or, "John Hinckley would never
have walked out of that Texas pawnshop with the handgun that came within
an inch of killing Ronald Reagan."[12]
But the facts are hardly as clear-cut as Mrs. Brady asserts.
Hinckley moved around a great deal, from one Texas address to another.
The Lubbock address he listed on his federal gun form (the address for a
rooming house) was different from both his driver's license address and his
address in the then-current Lubbock phone book.[13] Of course moving
frequently is not a federal crime. Because the only purpose of the driver's
license is to prove residence in the state, there is no federal requirement
that a handgun purchaser reside at the street address shown on his license,
as long as the address is in the same state. Even if Hinckley had
deliberately made a false statement about his address, the act would not have
been illegal; a false statement on the federal form is illegal only if it
relates to the purchaser's eligibility.[14] While a person's state of
residence does relate to eligibility, address within that state does not.
In other words, Hinckley's purchase would have been illegal under
federal law only if he was not a resident of Texas. Merely offering a Texas
driver's license with a street address that was no longer current and was
different from the address put on the federal form was not in itself illegal.
Was Hinckley a Texas resident? Contrary to what Handgun Control implies,
it has never been determined that Hinckley was not. During, the previous
summer, he had attended both summer sessions at Texas Tech in Lubbock.
According to federal rules, a university student is considered a resident of
the area where he attends school, and may purchase firearms there.[15]
Notably, when Hinckley was arrested in Nashville (a few days before he bought
the handguns), he identified himself as a Texas resident.
Significantly, Hinckley, after the assassination attempt, was the
subject of an intensive federal investigation. The federal government used
every resource possible to ensure Hinckley's conviction. Notably, Hinckley
was not charged with illegally purchasing the handguns in Texas. Had the
prosecutors believed that Hinckley was guilty of an illegal gun purchase, the
charges would likely have been brought. After all, Hinckley would then have
had to convince a Texas jury that he was insane not just on the day of the
assassination, but six months beforehand.
If the full resources of the Department of Justice did not find enough
evidence even to charge Hinckley with an illegal gun purchase, it is not
realistic to claim that a 7-day background check would have found the exact
same transaction illegal.
Moreover, law enforcement authorities already had an opportunity to run
a check on Hinckley. Because Hinckley bought two handguns on the same day,
his purchase was immediately reported to the Bureau of Alcohol, Tobacco and
Firearms, as required by federal law. BATF reportedly runs name checks as
standard procedure, but does not run detailed background checks on multiple
handgun purchasers (such as Hinckley) even though it has the legal authority
to do so. Perhaps BATF has concluded that the expense of running the
checks exceeds the likely benefits.
Let us hypothesize the fact that Mrs. Brady assumes (but for which the
Justice Department apparently had no evidence): Hinckley was no longer a
Texas resident. Assume that the address listed on the federal form was false.
Would the assassination have been prevented by a background check? Almost
certainly not.
How would the police have found Hinckley's "lie"? If they had looked in
the phone book, they would have seen Hinckley listed as a Lubbock resident.
To ascertain that Hinckley did not reside in Texas, the police would have had
to visit his purported residence at least once. Since many police departments
do not have the time to visit the scene of residential burglaries, it is not
realistic to assume that they would have bothered to verify the address
listed on Hinckley's residence.
Most importantly, the police never would have found the "lie" about
Hinckley's address, because they would not be checking addresses. Under the
Brady Bill (and the similar state proposals), the police would not be
verifying anyone's address. The Brady Bill does not discuss any kind of
address/residence check. As one of Handgun Control's key Congressional
supporters explicitly insisted during the debate on the 1988 proposal, "The
'investigation' is limited to the review of police and court records.-"[16]
Thus, at the same time that Handgun Control's Congressional forces were
reassuring Congress that the "Brady bill" involved solely a criminal/mental
records check, and not an address or other check, Mrs. Brady was imploring
the public to support her bill because an address check would have stopped
John Hinckley.
Assume that, despite the evidence to the contrary, Hinckley actually was
not a Texas resident, and further assume that the Texas police would have
found it worthwhile to do what the federal BATF did not, and run a background
check; and further assume that although the background check was intended to
be run according, to HCI's description, and to apply only to criminal/mental
records, the Texas police would have expanded the background check and tried
to verify Hinckley's address; and additionally assume that the police would
have committed the manpower necessary to verify that Hinckley was not a Texas
resident. If all these assumptions are valid (and if any one of the
assumptions were incorrect, Hinckley clearly would not have been stopped),
would Hinckley have been stopped? Perhaps.
Assuming the police found that Hinckley was trying to make a purchase
without the proper residency status, would they have arrested him for that
offense? Would he have been imprisoned for more than a day, if that long?
Only a few days before Hinckley bought the Texas guns, he had been caught
attempting to smuggle a gun onto a plane, and had been released from custody
almost immediately, having pleaded guilty to a misdemeanor. Unless Hinckley
were imprisoned for a term of years for the out of state gun purchase, he
would have speedily been back on the streets. He could have taken any of
the other handguns which he owned, and gone on to Washington for the
assassination with one of them. (Among the guns he could have used was
the .38 special he bought in Colorado, in full compliance with the law.
Had he used that gun, rather than the .22 from Texas, President Reagan
and Mr. Brady would likely have been killed.)[17]
Handgun Control, Inc's version of the assassination is false in other
details as well. For example, one Handgun Control, Inc. advertisement depicts
Mrs. Brady saying "A $29 dollar handgun shattered my family's life."[18]
Actually, Hinckley's gun cost $47.[19] The difference is of no real
importance, except that it shows the Handgun Control copywriters to be
unwilling to offer a truthful presentation of even the most basic facts of
the case.[20]
Handgun Control, Inc. and Sarah Brady have garnered substantial press
support by claiming that the "Brady Bill" would have stopped John
Hinckley.[21] Indeed, the strength of the push for the waiting period is very
largely based on Sarah Brady and her assassination story. Sarah Brady heads
Handgun Control, Inc., and HCI's fund-raising letters are mostly personal
testimonies by Mrs. Brady and her husband. The image of a man crippled by an
assassin, but who could have been saved by "The Brady Bill" is compelling to
press and politicians alike.
To say the least, the evidence suggesting that a waiting period would
have stopped John Hinckley is underwhelming. Yet Mrs. Brady insists: "[T]his
shooting could have been prevented if legislation such as that proposed here
had been in force in 1981."[22] The unequivocal assertion is, in light of
the facts, quite close to a fraud. Only a very unlikely set of events would
have enabled police armed with a "Brady Bill" to stop John Hinckley. It is
perfectly proper for victims of gun crimes to campaign for gun control. They
should do so truthfully.
II. PUBLIC AND POLICE OPINION
Synopsis: Polling data show that large majorities of American
citizens, as well as of big-city police chiefs, favor a waiting
period. Polls of command-rank officers find them skeptical about
waiting periods. For all the polling, flaws in the wording of the
questions probably exaggerates the extent of public support and
command-rank police hostility. In any case, polls are poor guides
to public policy, particularly when Constitutional rights are
involved. The reflexive hostility of some police officials
towards the Second, Fourth, and Fifth Amendments to the
Constitution should not be entitled to much weight in the
deliberative process.
A. POLICE
Handgun Control, Inc. and its Congressional allies claim that a waiting
period is supported by "every major police organization" in the country.[23]
The assertion is based on a selective definition of "major police
organization." The American Federal of Police, with 103,000 members, is the
second-largest rank and file police organization in the United States, and is
headed by Saginaw County Deputy Dennis Ray Martin, who has won awards from
President Bush for anti-drug work. Martin and the American Federation of
Police oppose a waiting period. The National Association of Chiefs of Police,
with 10,000 members, is the second-largest command rank organization in the
United States. It opposes a waiting period. Apparently neither of these
organizations, being merely the second-largest in their field qualifies as a
"major police organization."[24]
Many important police organizations do support a waiting period.[25] Yet
very few of these police organizations have actually bothered to ask the
police what they think. One group that did ask was the Police Executive
Research Forum (PERF), a Washington think tank comprising about 500 present
and former big-city police executives. PERF's membership poll found 92% in
favor of a national seven-day waiting period for handguns, and 6%
opposed.[26] Thus, among big-city police chiefs, support for a waiting period
is nearly unanimous.
The National Association of Chiefs of Police (NACOP) conducts annual
national surveys of the opinion of command rank police officers. The survey
is sent to all known commanders, not only NACOP members. In the 1989, the
waiting period questions and responses were:
"Do you believe that a waiting period to purchase a handgun or any type
of firearm will have any effect on criminals getting firearms?" Yes --
29.1%; No -- 70.9%.
"The 'Brady Bill' offers a national 7 day waiting period that gives
local police or sheriffs an option to check for previous criminal
activities, possible drug or alcohol dependency and mental instability.
Do you think you would be able to conduct such an investigation in a 7
day period?" Yes -- 44.7%; No -- 55.3%.
"Some states have longer waiting periods and some less. Would you agree
that it should be a state mandated law rather than a federal regulation
as regards to firearms purchase requirements?" Should be State --
62.7%; Should be Federal -- 37.3%.[27]
In 1990, the questions and answers were:
"Do you believe that a waiting period to purchase a handgun or any type
of firearm will have any effect on criminals getting firearms?" Yes --
23.9%; No -- 76.1%.
"Do you believe that in the national 7 day waiting period proposed
before Congress (Brady Bill) that you can fully determine that the
applicant has no criminal record; is not mentally unsound; or is an
abuser of drugs or alcohol?" Yes -- 14.4%; No -- 85.6%.
"No funds to carry out this 7 day 'investigation' are provided in this
Bill for police. Do you believe that your department has the manpower to
conduct this investigation without taking patrol officers off the
street?" Yes -- 10.6%; No -- 89.4%.
"There is no provision to protect you from a lawsuit in the event that
you approve (after 7 days) an applicant who is a criminal, may be
mentally unsound, or a drug or alcohol abuser. Do you believe that the
'Brady Bill' may leave you open to a future civil lawsuit?" No -- 10.2%;
Yes -- 89.8%.[28]
While the NACOP polls are interesting evidence regarding police opinion,
they must be interpreted cautiously. Although every fact stated in the NACOP
questions is true, the tone of some of the questions was slanted against the
waiting period. A graphic example of a pollster's ability to elicit different
responses by slight changes in the question is shown in the contrasting 1989
and 1990 answers on whether 7 days was enough time to complete the background
check. In 1989, 55% said that 7 days would not be long enough. In 1990, the
question was revised to ask if the background check could be fully completed
in 7 days, and the time question was followed by a question which noted
that no extra funds for the check would be available. For the 1990 survey,
the number of respondents who said that 7 days was not long enough shot
up to 86%.
In both the 1989 and 1990 surveys, the questions about waiting periods
affecting criminals were phrased in a neutral way. But the 1990 questions
regarding police civil liability clearly did, like the Gallup poll on waiting
period, elicit a particular response. Notably, the neutral questions (about
waiting, periods affecting criminals) drew responses of about 70-76% negative
on the waiting period, while the most biased question (about civil
liability), drew about a 90% negative.
Accordingly, NACOP's most extreme figures, of 90% command rank hostility
to the waiting period, are likely too high, for the same reason that Gallup's
91% pro-wait figures for the general public is too high. (The Gallup poll is
discussed below.) The NACOP survey does seem to indicate that a majority of
command rank officers (perhaps something less than 70%) are skeptical about
waiting periods. The most definite conclusion that can be drawn from the
NACOP and PERF surveys is that Handgun Control's claim to have the
near-unanimous support of the police is true only for major urban chiefs.[29]
A large number of working officers seem to agree with Willis Booth, a
former police chief, and Executive Director of the Florida Police Chiefs
Association: "I think any working policeman will tell you that the crooks
already have guns. If a criminal fills out an application and sends his
application... he's the biggest, dumbest crook I've ever seen."
Put aside the evidence, regarding police opinion, and hypothesize that
every police chief in the United States supported a national waiting period.
Should their position determine the law?
The opinion of police chiefs is not the arbiter of our Constitutional
rights. Some police executives criticize the exclusionary rule; they claim
that a strong Fourth Amendment causes crime. Some police executives criticize
the *Miranda* decision, and claim that a strong Fifth Amendment causes crime.
Many police executives say that a strong Second Amendment causes crime. In
every case the executives are wrong.[30]
Police chiefs are, after all, not generally renowned for their regard
the Constitution. As the NACOP polling indicates, huge majorities of command
ranks favor sharp limits on death penalty appeals, draconian drug laws, and
widespread drug testing.
Likewise, self-proclaimed allies of law enforcement have eroded their
credibility by supporting bans on "plastic guns" (which do not exist) or by
claiming that a law which lets a Pennsylvania hunter drive to Maine without
obtaining a New York gun permit would threaten the lives of police
officers.[31]
In short, the reflexive hostility of some police officials towards the
Second, Fourth, and Fifth Amendments is not entitled to much weight in the
deliberative process.
Why does the waiting period have nearly unanimous support among big-city
police executives? While it is true that some big-city chiefs (such as Ari
Zavaras of Denver and Joseph McNamara of San Jose) are ardent enemies of the
right to bear arms, not all chiefs are out to destroy gun ownership. One
reason for supporting the waiting period is its intuitive appeal; at first
glance, it seems like a way to interdict at least some criminals, without
interfering with legitimate gun owners.
Perhaps another reason that some police chiefs favor the waiting period
is that police chiefs, like any other administrators of large government
offices, often seek to expand their official power. From the perspective of
a police administrator, more power may mean more officers performing
administrative tasks and supervising more transactions by the citizenry. The
same mentality leads to the creation of paperwork empires in the Pentagon or
in the Hubert H. Humphrey building, even if the emphasis on paperwork hinders
the agency's performance of its assigned mission.
B. PUBLIC OPINION POLLS
The Gallup Poll reports: "91% of Americans Favor Brady Amendment."[32]
If the polls are for it, who can be against it?
One reason to be cautious about polls is that the bias of the pollster
can skew the poll. By modifying the wording of a question, "You can come up
with any result you want," says Peter Hart, pollster for the Dukakis
campaign.
The Gallup poll about waiting periods posed the question in a way that
assumed the waiting period really would help the police keep guns away from
illegitimate persons: "Would you favor or oppose a national law requiring a
seven-day waiting period before a handgun could be purchased, in order to
determine whether the prospective buyer has been convicted of a felony or is
mentally ill."[33] As discussed below, the criminological and real-world
evidence on waiting periods shows that they do virtually no good in keeping
illegitimate users from getting guns; criminals do not buy guns in gun
stores.
Most people are for something that works. If the question assumes that
a waiting period would work, it is bound to receive nearly unanimous support.
But the real question is whether waiting periods work as well as Gallup
assumed they do. The most important reason polls should not always prevail
is because the Constitution does not depend on polls. Violating the
Constitution can be a popular thing. By huge majorities, Americans would
favor all of the following:
* Banning use of civic auditoriums by atheists, or by people denouncing
the government, or by patriotic groups advocating war against a foreign
enemy;
* Using a federal censorship board to decide which television shows are
permissible;
* Infiltrating non-violent dissident groups with FBI agents.[34]
Every one of those popular ideas would violate the Constitution. The
precise reason for putting certain fundamental rights in the Constitution is
to protect them from transient majorities. [35]
No measure could have been more unconstitutional than herding American
citizens of Japanese descent into concentration camps during WWII. Public
opinion and the press almost unanimously favored this repression, despite the
total lack of evidence that these Americans were disloyal.
Even though the public sometimes backs unconstitutional measures, the
public still has the common sense to know that the Constitution is more
important. One survey asked: "Suppose the President and Congress have to
violate a Constitutional principle to pass an important law the people
wanted. Would you support them in this action?"
* 28% said yes, "because the Constitution shouldn't be allowed to stand
in the way of what the people need and want."
* 49% said no, "because protecting the Constitution is more important to
the national welfare than any law could possibly be."[36]
Finally, while the majority of the public does favor a waiting period
(although probably by less than the 91% majority found by Gallup's biased
question), the public opposes "a law giving police the power to decide who
may or may not own firearms" by a 68% to 29% margin.[37] Accordingly, if a
waiting period were conducted within the limits implied in the Gallup poll
(every legitimate owner got the gun in no more than seven days), the public
might well support a waiting period. But if waiting periods turned out to
give police the opportunity to interfere with citizens' right to buy
firearms, the large majority of the public would oppose a waiting period. As
detailed below, waiting periods in practice often lead to the kinds of police
abuses which the public overwhelmingly opposes.
III. CRIMINOLOGICAL STUDIES
Synopsis: Criminologists of every persuasion have examined waiting
periods, and not one has found statistically significant evidence
that waiting periods are effective. Studies of felony prisoners
show that virtually none of them obtain crime guns by personal
over the counter purchase, the only kind of criminal gun
acquisition that a background check could stop.
"Virtually every study ever conducted proves that where there are local
or state laws requiring a waiting period and background check, handguns are
harder to obtain by those who are prone to misuse them," claims Handgun
Control, Inc.[38] The claim is false. Every study of waiting periods has
found no evidence that they are effective. There is not a single study
published in any academic journal which concludes waiting periods are
effective. The results show just the opposite.
Professor Matthew DeZee states: "I firmly believe that more restrictive
legislation is necessary to reduce the volume of gun crime." Yet his
comparative study of state laws, including waiting periods, found "The
results indicate that not a single gun control law, and not all the gun
control laws added together, had a significant impact...in determining gun
violence. It appears, then, that present legislation created to reduce the
level of violence in society falls short of its goals ... Gun laws do not
appear to affect gun crimes."[39]
Professors Joseph P. Magadinno and Marshall H. Medoff, both of
California State University, Long Beach, performed two studies of waiting
periods at the state level. The first study, using data from 1979 and
previous years, compared the 1979 robbery and homicide rates in states that
had waiting periods with states that did not. The study also looked at
changes in the robbery and homicide rates in states which had recently
changed their laws regarding firearms sales. Both aspects of the study found
that there was no correlation between waiting periods and lower homicide or
robbery rates.[40]
The second Magadinno-Medoff analyzed state gun laws and rates of
homicide, robbery, and aggravated assault in 1960 and 1970. The results were
consistent with the hypothesis that stricter state gun control laws have no
impact on crime.[41]
When the U.S. Senate Judiciary Committee investigated the issue, the
Committee found no evidence that waiting periods affect crime. There was no
correlation between a waiting period and lower crime rates.[42]
Duke University's Philip Cook, who is generally supportive of gun
control, explains why there is no apparent statistical impact:
[W]e suspect that most felons and other ineligibles who obtain guns do
so not because the state's screening system fails to discover their
criminal record, but rather because these people find ways of
circumventing the screening system entirely ... Under these
circumstances, developing a more intensive and reliable screening
process is probably not worth the additional cost...It is known that
such screening systems are widely circumvented and, furthermore, that
state criminal record files are sufficiently incomplete that a felon who
did choose to submit to the required police check before buying a
handgun would have a sporting chance of having his application
accepted.[43]
Assistant Attorney General John Bolton observes, "Those persons with a
criminal record who are prohibited from purchasing a handgun are the ones
most likely to obtain false identification documents to support a new
name."[44]
Of course the Magadinno-Medoff, Senate Judiciary, and DeZee studies do
not completely destroy the case for a waiting period. It might be that state
waiting periods have a small impact on crime, even if that impact is too
small to be statistically significant. Moreover, even if state waiting
periods were acknowledged as demonstrable failures, it might be that a
federal wait would be effective.
Under the Carter Administration, the National Institute of Justice
offered a grant to the former president of the American Sociological
Association and two colleagues to survey the field of research on gun
control. Peter Rossi and his coauthors Jim Wright and Kathleen Daly began
their work convinced of the need for strict national gun control. Indeed,
Wright had already written about the need for more control. After looking at
the data, however, the three researchers found no convincing evidence that
gun control curbs crime. [45]
A few years later, Wright and Rossi conducted another National Institute
of Justice study, this one of the gun use patterns of criminals. They
interviewed prisoners in ten state systems. The study confirmed that many
criminals are indeed frightened of armed citizens. [46] Notably, the second
National Institute of Justice study discovered that felons in states with
strict laws found obtaining a gun no more difficult than in states with more
moderate laws. Almost all felons, regardless of the severity of their state's
laws, reported that they would have little or no difficulty obtaining a gun
soon after release.
Wright and Rossi asked the prisoners where they obtained their last
handgun, and 21% replied at a gun store. Hence, HCI argues, a waiting period
and background check would affect a significant figure of gun crimes. But
Wright and Rossi disagree with HCI's interpretation of their data. They
write:
One might as a matter of federal policy require that every firearms
transaction be reported to the cognizant authorities, and the
appropriate criminal records check undertaken; but one quickly
senses that this measure would have little or no effect on the
criminal users whom we are trying to interdict and a considerable
effect on legitimate users .... The ideal gun crime policy is one
that impacts directly on the illicit user but leaves the legitimate
user pretty much alone. [47]
Careful analysis of the Wright-Rossi data shows that far less than 21%
of criminal gun users would be affected by a background check. The 21% who
obtained their last crime handgun at a gun store included 5% who had obtained
the gun by theft, rather than by purchase. Of the 16% who had obtained the
gun by purchase, at least some likely did not have disqualifying criminal
records at the time of purchase.
Further, not all of the guns acquired by criminals are acquired for
crime. (Many criminals live in neighborhoods with other criminals, and hence
own guns for defense.) The more likely a felon was to be a serious gun
criminal, the less likely he was to have acquired a retail gun. For example,
of the criminals who specialized in unarmed crime, 30% obtained their most
recent handgun at a store (by purchase or by theft). Of the "handgun
predators" who specialize in handgun crime, only 7% had gotten a handgun from
a store. For criminals as a whole, of the guns that had been obtained "to use
in a crime," 12% came from a store.[48]
Since about one-fourth of the handguns from stores were stolen from
stores, only about 9% of handguns obtained to use in a crime, (and about 5-6%
of handguns obtained by handgun predators) came from a retail purchase. Nine
percent or even five percent still seems to be a significant number of
criminals buying guns in gun stores. But Wright and Rossi explain that their
data:
does not imply that the men in question themselves simply walked into a
gun shop and bought themselves a gun, in direct defiance of the Gun
Control Act of 1968. In many cases, these purchases would have been
made in the felon's behalf by friends or associates with "clean"
records, which is, to be sure, still quite illegal. Although, we asked
these men where and how they had obtained their most recent guns, we
did not ask who, exactly, had obtained them.[49]
Assuming that only half the purchases were made by legal surrogates, the
background check is entirely irrelevant to 95-98% of crime gun acquisitions.
The large majority of all gun acquisitions are by people who already own
a gun. If the pattern also holds true for criminals, then the background
check would impact only a fraction of the already tiny percentage of
criminals who personally buy guns at retail. In other words, of all guns
acquired for crime, only about 0.5% to 2% are personally bought at a retail
outlet by a person with an existing criminal record who does not already have
another gun.[50]
The basic problem with waiting periods is shown by a Bureau of Alcohol,
Tobacco and Firearms study of gun dealer sales in Des Moines and Greenville.
The study found that about one to two percent of sales were to dangerous
criminals.[51] In short, waiting periods have no statistically noticeable
impact on any type of crime because only a tiny fraction of crime guns
are purchased at retail by ineligible buyers.
Waiting periods have existed in some states for over half a century. Yet
after all this time, there is not a single criminological study ever
published which shows waiting periods to have any beneficial impact. While
the researchers who have studied waiting periods have very diverse views on
the gun debate in general, all researchers have concluded that there is no
evidence that waiting periods cause any statistically significant benefits.
IV. THE WAITING PERIOD (IN)ACTION
Synopsis: Although no evidence ties waiting periods to reduced
crime rates, the experience of states with waiting periods shows
only a small percentage of retail gun buyers are denied because of
criminal records. Of these, about 1% are deemed worth arresting.
The number of people who are illegally or arbitrarily denied their
right to bear arms by abuse of a background check system is about
as large as, and sometimes far larger than, the number of criminals
denied.
Although the academics have never found any statistically significant
effect from waiting periods, it would be incorrect to" conclude that waiting
periods accomplish nothing. The following section reports results in several
jurisdictions that already have waiting periods. The particular jurisdictions
discussed were selected because: 1. The police have compiled and released
data for that jurisdiction; and 2. The jurisdiction is cited as a success
story by Handgun Control, Inc; 3. Data is available to test the veracity of
the figures from the police or HCI. The data shows that: 1. Some people with
criminal or mental records do attempt retail gun purchases, and are stopped
by a background check; 2. Handgun Control, Inc. consistently overstates the
efficacy of the background check in its model jurisdictions.
California: Officials state that their background check for handguns
interdicted 1,900 illegal purchases in 1989.[52] Nevertheless, California's
handgun homicide rate rose 21% from 1979 to 1988, even as gun laws grew
tighter.[53] California has no appeals process, so it is impossible to
determine how many of the denials are proper. As discussed below, the
California waiting period forms have been used to build a government
data-base of gun owners.
About 10% of California's 300,000 "assault weapon" owners have
registered their weapons, as required by law. The group that complied with
the retroactive registration law surely qualifies as a highly law-abiding set
of people. Yet this group of highly law-abiding gun-owners, when they attempt
to buy a new rifle or pistol following California's 15-day waiting period,
find that the California Department of Justice has put a 1 to 4 month hold
on their application, because they are registered "assault weapon"
owners. [54]
A Los Angeles City Councilman, noting the thriving market in stolen
Rolex watches, has suggested that all Rolex watches be registered, and a
five-day waiting period be imposed on transfers of second-hand Rolexes. The
Rolex waiting period has been ridiculed by most other Los Angeles
politicians, and written up in the national press as another instance of
California silliness. It might be asked why so many people who dismiss the
idea that registration and a waiting period would affect the criminal sale of
Rolex watches think that registration and a waiting period would affect the
criminal sale of firearms.
Broward County, Florida: Handgun Control correctly notes that in
1984-85, 37 persons were kept from buying guns by the county's ten waiting
day period (which has since been preempted by state law).[55] Handgun Control
fails to point out that nearly half of the rejections were for unpaid traffic
tickets or similar offenses which do not legally disqualify Floridians from
gun ownership.[56] HCI also fails to point out that gun suicides actually
increased after the waiting, period was implemented.
Columbus, Georgia: HCI claims that the city's 3-day wait catches two
felons a week trying to buy handguns.[57] HCI exaggerates the rate four-fold,
and implies that the numbers relate to arrests, rather than merely to
denials.[581
Illinois: Prospective gun purchasers must obtain a Firearms Owners
Identification card (FOID), which is valid for five years. There are about
5,000 applications every week for the card. Over the weekend, a list of
applicants is run through the state Department of Mental Health, revealing
about 10 applicants who are ineligible to buy because of mental
disability.[59] Illinois' automated licensing system often takes 60 days to
authorize a clearance.[60]
Illinois issues FOID cards to about 78% of applicants. Another 17% are
issued a card after following up an initial rejection, for a total of about
200,000 FOID cards issued annually. Around 5% of applications are ultimately
rejected. In 1988, there were 2,470 persons (about 2.5% of applicants) denied
an FOID card on the basis of felony convictions, and 779 previously-issued
cards were revoked due to felony convictions.[61]
The most thorough study of the Illinois system was conducted by
Professor David Bordua. Happily, "the system was run with real attention to
due process protections for firearms owners." Unfortunately, "even its
administrators were not convinced it was effective." The system, which costs
over a million dollars a year to process, was summarized as "inherently
weak."[62]
Maryland: About 700-800 of every 20,000 applicants a given year are
denied. (The waiting period/police permission applies to all handguns and to
long guns considered "assault weapons.") According to state police testimony
before a Congressional subcommittee, the hundreds of denials typically lead
to only a handful of prosecutions.[63]
Notably, 78% of appeals result in a reversal of the initial denial by
the police.[64] The success rate on appeals likely understates the police
error rate in initial denials. Many people who have been improperly denied
may have neither the finances nor the energy to pursue an appeal. (Similarly,
the ACLU indicates that only a minority of people improperly denied welfare
benefits appeal.)
Although the waiting period is by statute supposed to last only one
week, the police may take longer, and gun shops will not release the firearm
until the police have completed their review.
New Jersey: Firearms laws in New Jersey are the strictest of any
American state. Handgun Control states that "10,000 convicted felons have
been caught trying to buy handguns."[65] The cost to legitimate gun owners
has been severe. The number of New Jersey citizens arbitrarily denied the
right to possess arms under the New Jersey law is almost as large as the
number of criminals who were prevented from law-abiding transactions.[66]
About one-quarter of the rejections in New Jersey are based on the hunch of
police that it would not be a good idea for a person to own a gun, rather
than on any specific disqualifying criterion.[67] Although New Jersey law
requires that the authorities act on gun license applications within 30 days,
delays of 90 days are routine; some applications are delayed for years, for
no valid reason.[68]
The cost to the non-gun-owning citizens of New Jersey has also been
severe. The New Jersey licensing system is so expensive that it costs
$4,442.13 (more than the salary of a state trooper for one month) for each
denial based on criminal, mental, or alcohol abuse records.[69] It might be
that the resources diverted into the licensing system might have saved far
more lives if they had been spent on putting state troopers on patrol,
instead of putting troopers behind a desk.
The overall crime rate and the gun crime rate in New Jersey has remained
consistent with the rate in other states in the region, even though none of
them imposes gun controls as strict as New Jersey's.
Pennsylvania: In Pennsylvania, handgun buyers face a 48 hour waiting
period (72 hours in practice), during which local police or sheriff may
conduct a check.[70] After the buyer picks up the handgun, the transaction
record is sent to the state police firearms unit, which checks the name
against a list of violent felons. Data for the first check by local police is
kept at the county level, so there are no comprehensive figures available.
In addition to checking the approximately 130,000-150,000 handgun
transfers that occur in a year, the state police are also automating their
old records of firearms transfers (which date back to 1931), and checking the
old names against the same list of violent felons. In 1988, the state police
performed about 230,000 total records checks, resulting in about 80 "hits."
When a "hit" is found, state troopers are sent to confiscate the gun,
and the local district attorney may bring charges for unlawful gun possession
by a felon. Ms. Sharon Crawford, head of the state police firearms unit,
recalled only one case in her memory where a person had committed a crime in
the two to three week interval between taking possession of the gun and the
arrival of the state trooper, or had refused to hand the gun over to the
trooper. In the one case, the person had shot (not fatally) someone else
during an argument.
The explanation for the generally peaceful behavior of the persons caught
with illegal guns is that the purchases were not with the intention of use in
a crime, but rather were self-defense and/or hunting purchases by persons who
did not realize they were ineligible or who hoped to slip through the
system.[71]
The Pennsylvania data validates the findings by Wright and Rossi: there
are many attempted and/or completed firearms acquisitions by ex-felons that
are unrelated to any effort to use the gun in a crime. Accordingly, the
number of crimes prevented by a system that keeps ex-felons from buying guns
in stores is likely to be significantly less than the number of ex-felons who
are caught buying guns. (All this is not to say that the "felon-in-
possession" cases should not be prosecuted or taken seriously; the point is
simply that most attempted acquisitions were not for a criminal purpose.)
It would not be correct to use the Pennsylvania state data to conclude
that background checks are pointless. The data above refers only to the state
police check of names against violent felony convictions. The data do not
show what impact the first check, by the local police, has had. It might be
that most felons buying guns for crime are stopped at the local level, and
are hence never checked by the state system.
Virginia: In 1989, Virginia enacted an instant telephone check, with the
consent of both HCI and the NRA. About 16 to 20% of phone applications result
in a "hit," requiring the rejected applicant to submit fingerprints to the
police to prove his non- criminal identity.[72] The ultimate denial rate of
about 1/2% to 1% is the same as in other states with longer waiting periods.
The first year the check was in effect, there were 540 denials, leading to
arrest of 7 fugitives, including one wanted for murder.[73] (There was also
at least one false arrest.) The Virginia system required 16 new full-time
state employees, and $391,000 in annual operating costs.[74] Because the
Virginia system appears to be working reasonably well, it is touted as model
by many right-to-bear arms advocates.
In sum, the evidence shows that a permission system does result in some
denials, at least half of which turn out to be incorrect. Even for the
denials that are correctly applied to ineligible purchasers, it is not
correct to assume that the denial has thereby prevented a crime. Virtually
no-one who intends to commit a gun crime buys from a gun store. Ineligible
people do sometimes attempt retail transactions, but that act is hardly proof
that they intended a crime.
Of the people who are rejected by permission systems, a mere 1% are
arrested.[75] In other words, where a permission system is in effect, about
1 in 10,000 applicants turns out to be a criminal who is arrested. A success
rate of one true "hit" for every 10,000 searches is, literally, not much
better than the odds of finding a needle a haystack -- and is not
cost-effective method of catching needles.
V. PARTICULAR TARGETS OF WAITING PERIODS
Synopsis: The suggestion that people who transact in illegal drugs
could be denied firearms under any gun control system is patently
silly. Psychotic mass murderers have repeatedly bought guns in
states with waiting periods. There is no evidence that waiting
periods prevent suicides or domestic homicides. Hardly any crimes
could even theoretically be prevented by a "cooling off" period.
A perfect waiting period or other permission system would not even
stop criminals from getting even retail guns. False
*identification is not hard to procure. And although a fingerprint
or other biometric check would defeat false identification, most
criminals would still likely know someone without a felony record.
The surrogate buyer could still buy a gun for a criminal at retail.
Although waiting periods might have little impact on the average street
criminal, it is sometimes suggested that waiting periods might deter
particular kinds of gun misusers.
A. DRUG DEALERS
In 1988, Handgun Control, Inc. attempted to hang its national waiting
period on the drug bill, under the theory that the waiting period would
disarm narcotics distributors. HCI still continues to promise that a waiting
period will help take guns away from drug dealers.[76]
It stretches credulity to promise that any kind of gun legislation,
including a waiting period, would have the slightest impact on drug dealers.
Dealers, being expert in the black market, would have the readiest access to
false identification, and to underground supplies. They are the last people
gun control could impact.
Drug dealers obviously cannot count on the police or the courts for
protection from violence. Because of this, and because dealers are a valuable
robbery target, it would virtually be suicide for them not to carry a
gun.[77]
In addition, drug dealers cannot use normal legal and social commercial
dispute resolution mechanisms. Like the gangsters of alcohol prohibition
days, drug dealers need guns to protect their business's income and
territory. Thus, many drug dealers must own a gun for their lives and their
livelihood.
No matter how scarce guns become for civilians, there will always be one
for a criminal who can pay enough. Street handguns now sell for less than
$100. If the price went up to $2,000, dealers would still buy them, because
dealers would have to. Spending a few hours' or days' profits on
self-protection is the only logical decision for a dealer. Can anyone really
believe that an individual who buys pure heroin by the ounce, who transacts
in the highly illegal chemicals used to produce amphetamine, or who sells
cocaine on the toughest street-corners in the worst neighborhoods will not
know where to buy an illegal gun?
B. HOMICIDAL MANIACS
Patrick Purdy, who killed five children in Stockton, California, bought
five guns over the counter in California, despite the state's strict 15-day
waiting period. Laurie Dann bought a handgun and shot up a second grade
classroom in Illinois, killing one child, wounding five, and then killing
herself despite that state's requirement that all gun owners be licensed, and
still undergo a waiting period before each firearm acquisition.[78] Mark
David Chapman, John Lennon's assassin, bought a handgun in Hawaii, a state
with one of the strictest waiting periods in the nation. Canada has a
nationwide licensing system, yet a deranged man was able to buy a rifle with
which he shot and killed 14 women in December 1989.[79] Criminals like Eugene
Thompson (a felon and a cocaine addict who shot up a Denver suburb in March
1989) do not buy guns legally; they steal them. The criminally insane are
criminally insane day off and on for years and years, not just for the three
weeks covered by a waiting period. They periodically consult psychiatrists
and acquire firearms without immediately or soon thereafter perpetrating
crimes of insanity.
The latest claim that a waiting period would have stopped a maniac
involves a mental patient who bought a gun in an Atlanta suburb without a
wait, shot up shoppers at Atlanta's Perimeter Mall, killed one of them, and
wounded four others. DeKalb County promptly approved a 15 day waiting
period.[80] Handgun Control's national fund-raising claims that the killer
would have been stopped had a waiting period been in effect.[81] The claim is
false; the killer's record of mental disorder was entirely private, and he
had never been adjudicated mentally incompetent, or involuntarily committed.
C. SUICIDES
There are simply too many ways other ways for people to kill themselves.
After Canada implemented a national licensing system in 1978, its gun suicide
rate did drop[82]; but the overall suicide rate remained the same.[83] Japan
almost totally bans guns, but suffers a suicide rate twice the U.S.
level.[84]
D. DOMESTIC HOMICIDES
Many handgun control advocates assume that a waiting period would
prevent "impulse killings."[85] But most domestic killings occur at night,
when gun stores are closed. Most perpetrators are intoxicated with drugs and
alcohol, and thus legally forbidden to buy a gun anyway. The image of a
murderously enraged person leaving home, driving to a gun store, finding one
open after 10 p.m. (when most crimes of passion occur), buying a weapon, and
driving home to kill is a little silly.[86] In any case, husbands who kill
wives rarely use guns. Wives who kill husbands do often use guns, and are
usually defending themselves or their children against felonious attacks.[87]
E. PEOPLE IN NEED OF "COOLING-OFF"
Criminologist Gary Kleck points out that for a "cooling-off" period to
prevent homicide, a number of conditions must be fulfilled: 1. The gun the
killer used was the only one he owned, or the only one he could have used in
the crime; 2. The killer acquired the gun from a source that would be
expected to obey gun control laws (a licensed dealer); 3. The gun was
purchased and used in the homicide in a time period shorter than the
"cooling-off" period. Discussing an analysis of 1982 Florida homicides, Kleck
found that 0.9 % (about 1 in 100) homicides fit all three criteria. He
estimated that nationally about 0.5% (1 in 200) would fit all three criteria.
Nevertheless, Kleck suggested that a waiting period would not prevent even 1
in 200 homicides. For the homicide to actually be prevented, several other
conditions would all have to be fulfilled: 1. The killer was the kind of
person who would not have been willing to kill even after waiting; in other
words, the killing was an isolated act, rather than the culmination of a long
history of assaults by the killer; 2. The killer would not have acquired and
successfully used a gun that did not require cooling off (such as a long gun,
in most states); 3. The killer would not have been able to complete the
homicide with any weapon other than a gun; 4. The killer would not have been
able or willing to obtain a gun from a non-retail source. Considering all the
necessary criteria, Kleck did not find any Florida homicides which a
cooling-off period clearly would have prevented. [88] While supporting a
background check, Kleck concluded that a cooling-off period would in itself
do no good. Hence, he thought the waiting period to offer no advantage over
the instant check.
F. SUMMARY: WHAT BENEFITS CAN BE
EXPECTED FROM A WAITING PERIOD?
New York City Mayor David Dinkins asserts that "The Brady Bill could
save thousands of lives in its first year."[89] Although many credulous New
Yorkers believed their Mayor, and flooded House of Representative Speaker Tom
Foley's office with phone calls demanding passage of the waiting period,
there is not a serious criminologist in the United States who thinks the
Mayor's assertion has any basis in reality.
A perfect waiting period or other permission system would not even stop
criminals from getting retail guns. False identification is not hard to
procure. And although a fingerprint or other biometric check would defeat
false identification, most criminals would still likely know someone without
a felony record. The surrogate buyer could still buy a gun for a criminal at
retail.
When pressed for whether the waiting period will deprive criminals of
guns, HCI demurs, but expresses confidence that a waiting period will make
gun acquisition more troublesome for criminals.[90] Likewise, the federal
Task Force which studied background checks acknowledges that even a perfect
felon identification system would not keep most felons from acquiring
firearms,"[91] but nonetheless supported a permission system, hoping that by
forcing some criminal buyers onto the black market would leave them less able
to obtain high-quality firearms.[92]
But would a waiting period or other permission even inconvenience
criminals, considering that hardly any of them obtain crime guns through
dealers anyway? Moreover, the current black market supplies even fully
automatic firearms, which have been under a strict federal licensing system
since 1934, and have been illegal to manufacture for civilians since 1986. If
the black market can supply machine guns, it is doubtful that it cannot
supply other high-quality weapons.
Still, as Professors Cook and Blose point out, there must be at least a
few inexperienced or impecunious criminals for whom even a porous permission
system would delay gun acquisition for at least some period. Moreover, the
waiting period, simply because it will reduce gun sales to legal purchasers
(see below) would reduce the number of guns in circulation. It seems likely
that one of those unbought guns might one day have been part of a suicide or
homicide or accident that might not otherwise have occurred.
Proponents of permission systems say that they will be successful if
they save a single life.[93) It seems clear that a waiting period or other
permission system would, inevitably, prevent at least one firearms fatality.
Even if a waiting period would have no discernable impact on crime in
general, it would save at least one life. Is it therefore a good idea? The
next part discusses that question.
VI. PROBLEMS CAUSED BY A WAITING PERIOD
Synopsis: Substantial police resources are inefficiently diverted
from street patrol to desk work. A background check consumes about
$40,000 in police salary for every arrest it produces. Resources
may be further consumed by lawsuits regarding allegedly
insufficient background checks. Waiting periods prevent a person
from acquiring a gun for several days, and if implemented
improperly (as they often are) waiting periods may result in total
denial of a person's legitimate right to bear arms. The diversion
of police resources, coupled with the interference with the
acquisition of self-defense guns, may mean that a waiting period
would cause a net loss of lives.
Severe problems with the data quality of existing criminal
justice records will result in large numbers of false denials,
requiring the victims to undergo a lengthy process to prove that
they are not criminals. An initial denial stands only a 50% chance
of being accurate and proper.
Moreover, waiting periods may provide a mechanism for gun
registration, erode the confidentiality of medical records, and
work a substantial financial hardship on the firearms dealers and
users. Advocates of gun prohibition see waiting periods as a useful
first step towards their ultimate goal.
A. THE DRAIN ON POLICE RESOURCES
Police resources are finite. The question is not whether a waiting
period would save one life, but whether other uses of the police resources
spent administering a waiting period might save more lives if used elsewhere.
Under a national comprehensive waiting period, the drain on police
resources would be staggering. There are approximately 7.5 million firearms
transactions annually.[94] If a waiting period were to be rigorous enough to
stop future Hinckleys, it would have to include in-person address
verification. (See Part I, above.) How many hours would it take for a
policeman run a national criminal records check, and to visit the home of
every person who applied? One hour, at the very least. That would be 7.5
million police hours spent checking up on honest citizens, instead of looking
for criminals. In the haystack of applications by honest citizens, police
would search for a few needles left by the nation's very stupidest criminals.
Looking for crime, police officers would be directed into a paperwork
enterprise particularly unlikely to lead to criminals. Would not all those
millions of police hours be better spent on patrol, on the streets instead of
behind a desk?[95]
According to the Task Force, implementing a national comprehensive
permission system would require the FBI to hire 395 additional clerical
employees to process the requests for fingerprint card readings for the
(approximately) 725,000 citizens who would be denied permission to
purchase because they have the same name as a criminal, or because police
records noted an arrest but not a subsequent acquittal.
A national waiting period and background check could cost from tens to
hundred millions of dollars.[96] Applying the 1 arrest per 10,000 applicant
review figure, each arrest would cost approximately 40,000 dollars, or the
one-year salary of a full- time, fairly senior police officer.[97]
Such profligate use of police manpower is an impediment to crime
control. One useful modification to existing waiting periods would be to
exempt persons who already have a gun. (Proof of lawful purchase of another
gun might suffice for the exemption.) After all, a person who buys a second
revolver is hardly more dangerous than a person with only one gun.
The waiting period is an impediment to effective law enforcement in a
more subtle way also: Local politicians who are failing to take effective
steps to control crime use the campaign for a national waiting period as a
tool to divert the attention to the national scene away from local law
enforcement. For example, after Utah tourist Brian Watkins was stabbed in a
New York City subway in the summer of 1990, New York Mayor Dinkins announced
that the what was needed to stop New York City crime was a national gun
waiting period, or even gun prohibition. The Mayor now makes the can for a
national "Brady Bill" the centerpiece of his response to publicized shootings
in New York, regardless of whether evidence indicates that a waiting period
would have had an effect on the particular shooting.[98]
B. LAWSUITS AGAINST THE POLICE
At a time when local police resources are already stretched thin, the
national waiting period bill imposes very substantial paperwork and manpower
requirements on most police forces in the country. The bill claims it is
cost-free, because the background check would be optional. But the bill's
prime lobbyist, Handgun Control Inc., has already announced that its legal
defense fund will sue police departments that do not implement the background
check.[99] Much to the delight of Handgun Control, a woman has already won
$350,000 from the city of Philadelphia for not conducting a thorough enough
background check of a man who killed her husband.[100]
In this regard, it is astonishing that persons who claim to speak for
the nation's police want a law to make police departments everywhere
vulnerable to a brand new form of tort litigation.
C. COVERT REGISTRATION
Waiting periods and other permission systems can operate as de facto gun
registration. Once the police are told who is applying to buy a gun, they may
simply add that person's name to their list of gun owners, as is the practice
in New Jersey, New York and other states. The California Justice Department
has used the waiting period, without statutory authorization to do so, to
compile a list of a handgun owners.[101] In Oregon, the police are allowed to
retain handgun purchase records up to five years.
One attempted solution to problem of covert registration is to require
the police to destroy the purchase application records. The national waiting
period bill purports to require record destruction, but does not really do
so.[102] Moreover, not even the toughest language in a federal bill could
compel a state officer to destroy records, because Congress has no authority
to compel an act by a state or local officer which is not required by the
U.S. Constitution.[103]
Under neither proposed federal nor existing state systems is the
pretence of required destruction backed up by meaningful enforcement. Police
who keep illegal records are subject to no penalties or civil liability.
Significantly, the practice of making daily computer back-up tapes means that
even if original records are destroyed, back-up records will still exist.
Precisely because most waiting periods amount to covert registration,
many otherwise law-abiding gun owners will resist them.[104] The principal
objection of Constitutionalists to gun registration is that it has frequently
been a prelude to and a tool for gun confiscation.[105] Additionally, the
government has no authority to register people merely for exercising their
Constitutional rights.[106] In states where waiting periods already exist,
the legislature should specify liquidated damages against officials who
illegally compile registration lists. In cases of intentional wrong-doing,
criminal prosecutions, similar to existing criminal prosecutions for federal
Privacy Act violations, should be allowed.(107]
D. PRIVACY OF MEDICAL RECORDS
The vast majority of people with mental illnesses, such as John
Hinckley, never enter state treatment systems. Pressure will inevitably build
to end the confidentiality of private medical records, so the police can
check those records as well. In California, legislators enacting a
comprehensive waiting period were told that mental health records would be
kept fully confidential. But the same year the law was enacted, the
California Department of Justice began ordering public and private mental
health clinics to report their clients to the state, which puts them in a
database along with felons that is usable by the police. Included in the
database are non-violent persons who have voluntarily checked themselves into
private facilities for problems such as anxiety or stress.[108] A number of
jurisdictions already require purchasers to waive the confidentiality of
their medical or mental health records.[109] Illinois queries, "Are you
mentally retarded?"[110] New Jersey asks the McCarthy-style question "Have
you ever been attended, treated or observed by any doctor or psychiatrist
or at any hospital or mental institution on an in-patient or out-patient
basis for any mental or psychiatric condition?" The State also inquires,
"Do you suffer from a physical defect or sickness?"[111] The mother
who consulted a psychiatrist on one occasion because her son had died
must confess herself to the New Jersey police, upon pain of criminal
prosecution.[112]
And it is not only the government that can use firearms background
checks to disclose private medical information. An employer can conduct
inexpensive inquiries into the mental health records and criminal background
of prospective or current employees by ordering them to produce proof that
they are eligible to buy a gun, and hence have no mental or criminal record.
Some employers in Illinois use this tactic.
E. DENIAL OF ABILITY TO OBTAIN A GUN
A waiting period provides anti-rights police administrators with an easy
opportunity for abuse. In New Jersey, the police often simply refuse to
process gun purchase applications.[113] In cases of budgetary constraint,
firearms applications may suffer inordinate or even permanent delays.[114]
Although a statute may specifically limit the reasons for disqualifying
a buyer, police may disqualify for other, illegal reasons. In Maryland, where
an appeals process exists, the police are over-ruled on 78% of appeals.[115]
Indeed, many of the police departments which most vociferously champion
"reasonable" gun controls routinely abuse those controls once enacted. The
St. Louis police have denied permits to homosexuals, nonvoters, and wives who
lack their husband's permission.[116] Although New Jersey law requires that
the authorities act on gun license applications within 30 days, delays of 90
days are routine; some applications are delayed for years, for no valid
reason.[117] Mayor Richard Hatcher of Gary, Indiana, ordered his police
department not to give license application forms to anyone.[118] The Police
Department in New York City has refused to issue legally-required licenses,
even when twice commanded by appeals courts to do so. The Department has also
refused to even hand out blank application forms.[119]
Most police, fortunately, are law-abiding, and would not engage in the
abuses typical in New York City and Maryland. Nevertheless, even in
law-abiding jurisdictions, the waiting period, by definition, delays for a
number of days a citizen's acquisition of a firearm. For a hunter planning a
trip next month, the delay is inconsequential. For a young woman being
threatened by an ex-boyfriend, the delay may be fatal.
Simply put, seven days is too long for a woman whose ex-boyfriend is
promising to come over and batter her. Seven days is too long for families
when a burglar strikes three homes in a neighborhood in one week, and may
strike that night. Twenty-four hours is too long to wait when the Gainesville
serial murderer is loose, and every woman is a potential victim.
The issue is not hypothetical. In September 1990, a mail carrier named
Catherine Latta of Charlotte, North Carolina, went to the police to obtain
permission to buy a handgun. Her ex-boyfriend had previously robbed her,
assaulted her several times, and raped her. The clerk at the sheriff s office
informed her the gun permit would take two to four weeks. "I told her I'd be
dead by then," Ms. Latta later recalled. That afternoon, she went to a bad
part of town, and bought an illegal $20 semi-automatic pistol on the street.
Five hours later, her ex-boyfriend attacked her outside her house, and she
shot him dead. The county prosecutor decided not to prosecute Ms. Latta for
either the self-defense homicide, or the illegal gun.[120]
In 1985 in San Leandro, California, a woman and her daughter were
threatened by a neighbor. Instead of being able immediately to obtain a
handgun for self-defense, the woman had to wait 15 days. The day after she
finally was allowed to pick up her gun, the neighbor attacked them, and she
shot him in self-defense. Had the man attacked 14 days after his initial
threat, rather than 16 days after, the woman and her daughter would have been
raped. Of course the state of California would have denied liability, as it
has repeatedly denied liability for its failure to protect citizens against
specific threats from specific criminals.
The national waiting period proposal does allow a waiver of the 7-day
wait if the locality's chief law enforcement official (or his designee)
issues a written order stating that immediate purchase is necessary to
protect the life of the gun purchaser or someone in her household.[121] In
practical terms, it is very doubtful that a potential crime victim
(particularly the poor and minorities who are the victims of most violent
crime), will be able to obtain a rapid appointment with the police
administrator who will issue a gun authorization. If the administrator is out
of town, or busy, or uninterested, the victim is out of luck. And if the
potential victim is receiving threatening phone calls that deal only with
rape, aggravated assault, or mayhem, even a sympathetic police chief cannot
issue an exemption, since there is no threat to the victim's life.
Some of the people killed by a waiting period could, ironically, be
people who have volunteered to defend the United States. Members of the armed
forces are allowed to carry personal handguns as sidearms, if they so choose.
Many infantry grunts might want a Colt .45 or a Glock 9mm on their hip, in
case their government-issue M-16 rifle jams in a firelight. Television
stations in Texas and Alabama reported high levels of sales of 9 millimeter
handguns to servicemen shipping out to Saudi Arabia. But in states like
California, with a minimum wait of 15 days, the short period between
notification of call-up and departure date is not enough time for a soldier
to be cleared by the firearms control apparatus. As a result, soldiers from
California and similar states were placed in greater peril.[122] Happily,
the rapid collapse of the Iraqi army reduced the importance of back-up
sidearms.
As the Fifth Circuit Court of Appeals has held, "the right to defend
oneself from deadly attack is fundamental."[123] A waiting period puts that
fundamental right on hold.[124]
A person who is falsely imprisoned by the state can get out of jail a
week later, with perhaps no permanent harm done. Newspapers which libel a
person by mistake can always publish corrective stories the next day. A
person who is denied the right to bear arms for a week may, at the end of the
week, be dead. A deprivation of even 24 hours of the means to self-defense
may mean a deprivation of life itself.
Of course the number of persons who would be killed or injured because
of the waiting period would be small, so small as to be statistically
unnoticeable. But so would the number of persons saved by a waiting period.
Proponents of a waiting period have not carried the burden of demonstrating
that a waiting period would be a net saving of lives, taking into account the
people who die because they cannot defend themselves, and taking into account
the diversion of police resources away from street patrol.
To reduce the abuses and injuries that waiting periods could cause, a
number of prophylactic measures make sense: Any waiting period should have an
explicit appeals process. At the appeal, the government should have the
burden of proving that the citizen is not entitled to possess a firearm.
Normal rules of evidence should apply, and citizens should not be victimized
by anonymous rumors and other sorts of hearsay evidence. Citizens who are
victorious in their appeal should be entitled to attorney's fees.
Moreover, any person injured by the failure of police to properly and
promptly approve an application should have a right to sue for damages. (When
a person is killed because the police failed to act, the survivors would have
the right to sue.)
Under the legal doctrine of sovereign immunity, the police have no duty
to protect any individual citizen from crime, even if the citizen has
received death threats and the police have negligently failed to provide
protection.[125] In cases where the government affirmatively interferes with
a person's ability to protect herself (the interval between an application to
purchase a firearm and approval), the doctrine of sovereign immunity should
not apply. The government should not be able to strip a person of her right
to defend herself, and then assert that it has no responsibility for the
consequences.
F. FINANCIAL HARDSHIPS
Almost all waiting period/permission systems require the firearms
purchaser to pay the entire cost of the system. It is Constitutionally odious
to make people pay the government so the government can satisfy itself that
they are fit to exercise their Constitutional rights. The young woman in the
ghetto who needs an inexpensive handgun for self-defense, or the young man in
Appalachia who wishes to hunt squirrel with a .22 rifle are not the cause of
the crime problem. Even an $8 fee may drive the cost of their $50 gun out of
reach.
For all firearms purchasers, not just poor people who need a defense
gun, a waiting period requires an additional trip to the firearms store, more
time spent by the clerk at the store, lost sales due to people who do not
have the time to make repeated trips, and a host of other transaction costs.
For a person who lives in a small town, and needs to make a long trip to get
to a store with a good selection of merchandise, the inconvenience can be
substantial.
The waiting period severely impacts firearms dealers and manufacturers.
The reason is that most guns are bought by persons who already own guns,
often as an impulse addition to a collection. If two trips to the store are
required, the buyer often loses interest in the sale. For example, the number
of handgun sale records reviewed by the Pennsylvania state police is
one-third less than the number of handgun purchase applications. Most of the
drop-off is caused by potential purchasers who, after a few days, decide not
to buy the gun.[126]
The waiting period also indirectly impacts government resources. A
substantial decline in firearms sales mean a substantial decline of several
hundred million dollars in firearms excise taxes, and perhaps also a
substantial decline in revenue for wildlife commissions.[127]
From a criminal justice standpoint, the loss of gun sales is
inconsequential. The fact that a person who already legally owns three guns
ends up not buying a fourth does not make him more vulnerable to crime, nor
does it make him more dangerous to the public. (There is no correlation
between gun density and gun crime.[128])
The loss in sales, irrelevant to the crime issue, is very harmful to
retailers and manufacturers. Automobile dealers, liquor stores, and tobacco
outlets all sell products that kill many people, but they are not burdened
with a rule that makes lawful users make repeated trips for the same
transaction.
It should be emphasized that substantial burdens on firearms owners and
the firearms industry might well be justified if tangible benefits resulted.
But as the evidence discussed above indicates, waiting periods simply do not
prevent guns from coming into the wrong hands.
G. THE DATA QUALITY PROBLEM
The existing state of criminal records in most jurisdictions is simply
too primitive to support a background check that is part of a waiting period
(or part of an instant telephone check).
The FBI "estimates that approximately one-half of the arrest charges in
their records do not show a final disposition."[129]
Only 40% to 60% of the nation's felony records are automated.[130] Many
states do not have fully automated criminal records name indexes.[131] Many
indexes are not currently searchable by information submitted from the
outside, such as telephone lines or computers. In some states, the same
master index (such as a fingerprint index) that contains all felons will also
include child care workers, various license holders, and firearms permit
holders.[132]
For citizens regarding whom false information has been incorrectly
recorded on a "rap" sheet, there is no remedy. Courts have held that even
after an acquittal or dismissal of charges, a person has no Constitutional
right to have an arrest purged from his record.[133] (It should be noted that
racial minorities are disproportionately victimized by arrests that do not
prove worthy of a conviction.)
According to the Department of Justice study, performing a reliable
background check under current data quality conditions would take 30 days.
The Department found that shorter background checks (such as one week or
three weeks) were no more reliable than instant checks. That conclusion is
consistent with opinion in the police surveys, which shows most command rank
officers do not believe that seven days would give them enough time to do a
background check.[134]
Because of the severe problems with the existing data quality, the
Department of Justice Task Force concluded: "[A]pproximately 50% of the cases
where persons appear to have a criminal history record based on an initial
name search are eventually found to be false hits ... Indeed, in many
(perhaps most) cases an initial indication of a criminal record would
eventually be shown to be untrue because it resulted from misidentification
with someone else with a common name and date of birth." As a result, only
84-88% of gun purchasers would be able to pass an initial check.[135]
If there were a national comprehensive check, approximately 725,000
persons a year would be falsely denied under either the waiting period or the
instant telephone check.[136] The 725,000 faced with false denials would then
have to prove their innocence by being fingerprinted, and entered in a data
base of eligible gun buyers. The "secondary verification process" (proving
their non-criminal identity to the police) that would take four to six
weeks.[137]
The list of people processed through secondary verification would be
another basis for gun registration.
Accordingly, a minimum condition for any kind of background check system
should include the establishment of a data base consisting only of convicted
felons and other ineligibles.
H. A STEP TOWARDS PROHIBITION
Why waiting periods? It is understandable why many legislators would be
attracted to an idea that, at first glance, seems eminently plausible. Many
legislators accept the reasoning "guns don't kill people; people kill
people." So instead of controlling guns (through gun registration), why not
control people who may abuse guns?[138]
But the anti-gun lobbies, being expert in the issue, know better. They
know the facts of the Hinckley assassination. So why do they support a
waiting period?
The National Coalition to Ban Handguns [recently renamed the Coalition
Against Gun Violence] candidly admits that gun controls do nothing to prevent
criminals from obtaining guns.[139] The CAGV believes that criminals are not
the issue; handguns have no place in civilian hands. Moderate controls over
handguns are a step toward to a ban. Policy statements distributed by the
NCBH forthrightly admit as much.[140]
Even in the most academic settings, the question may come down to
whether a person is "for" guns or "against" them. At a debate at the American
Society of Criminology Conference in November 1989, the participants were
asked what number of lives saved would be necessary for them to consider a
waiting period worthwhile. Both sides of the debate agreed that the number of
lives saved was not determinative of their positions. Dr. Paul Blackman, the
National Rifle Association replied that he thought the waiting period might
end up with a net cost of lives. He also stated that alcohol Prohibition had
saved lives, but still was not a good idea. Darrel Stephens, Executive
Director of the Police Executive Research Forum, replied that he would still
favor a waiting period even if it were proven not to save any lives. He
reasoned that the extra effort required to purchase a gun would convince some
people not to buy a gun, and less guns in civilians hands would be good in
itself.[141]
What about Handgun Control, Inc., the more powerful of the two major
anti-gun lobbies? Their stated motto is merely "Keeping handguns out of the
wrong hands. But their agenda is prohibition. HCI's former Chairman has
stated that he favors intermediate control as a waystation to near-total
handgun prohibition.[142] The organization supports handgun prohibition as a
policy matter.[143] As one of HCI's Congressional allies acknowledges, the
7-day handgun wait "is not really enough, but it is a start."[144]
What good does a waiting period do for the goal of handgun prohibition?
Waiting periods facilitate gun registration, which HCI praises as a prelude
to gun prohibition.[145] The national waiting period proposal includes a
number of subtle provisions which facilitate prohibition: an anti-gun police
chief could indefinitely delay a purchase application by refusing to mail
back acknowledgement of receipt of the application; and the definition of
"handgun" is elastic enough to include a number of long guns. [146]
As discussed above, waiting periods sharply reduce gun sales. While
there are no anti-crime benefits, HCI sees reduced sales (rather than just
reducing uncontrolled sales) as good in itself, and a necessary precondition
to prohibition.[147]
Most importantly, the waiting period is social conditioning. It sends
the message that citizens do not possess a right to bear arms, but merely a
privilege dependent on police permission.[148]
VII. CONSTITUTIONAL ISSUES
Synopsis: Waiting periods are a prior restraint on the exercise of
Constitutional rights. The very point of basic rights like free
speech, or free exercise of religion, or the right to keep and bear
arms, is that a citizen does not need to ask for government
approval to exercise those rights. Waiting periods, because of
their inefficacy and potential for abuse, are not the least
restrictive means of attacking gun crime without interfering with
the right to bear arms. A federal waiting period violates the 10th
Amendment by forcing state officials to perform background checks.
Is a federal waiting period Constitutional? The issue has been never
been directly tested in court. State waiting periods are common, but the
prevalence of a practice is no guarantee of its Constitutionality. Racial
segregation, after all, was the norm in most of the U.S. for the century
after the Civil War, even though the Constitution forbade it.
One view of Constitutional interpretation was articulated by Justice
Black. He viewed the Constitutional prohibitions literally. For example, he
took the First Amendment's command "Congress shall make no law respecting the
freedom of speech..." to mean that Congress could pass no law regarding free
speech. Justice Black viewed the Second Amendment with a similar literalness:
"its prohibition is absolute."[149] The more prevalent view, however, is that
no Constitutional provision is absolute.
Regardless of which view is adopted, the most appropriate guide for
analysis of the Second Amendment is the First Amendment. Of the entire Bill
of Rights, only the First, Second, and Third Amendments guarantee particular
substantive rights.[150] Amendments Four through Eight are due process
requirements for the government to obey, while Amendments Nine and Ten are
non-specific reservations of rights. The Supreme Court has indicated that the
First and Second Amendments should be interpreted according to the same
principles.[151] Indeed, it is necessary to interpret the Second Amendment
with just as much vigor as the First in order to obey the Court's command
that all Constitutional rights must be treated with equal respect, with no
right being particularly favored or disfavored.[152] And of course all
Constitutional rights must be broadly construed.[153]
A. PRIOR RESTRAINTS ON CONSTITUTIONAL RIGHT'S
While the First Amendment protects freedom of speech, there are
legitimate debates about what kinds of communication are considered "speech."
Pornography, picketing, price-fixing, and perjury are activities which, at
least arguably, are not included within the freedom of speech. Likewise, the
right to bear "arms" is sometimes said not to apply to machine guns,
nunchakus, brass knuckles, switchblades, or anti-aircraft rockets.
For communication that is clearly within the freedom of speech (such as
political commentary), the single clearest principle is that prior restraints
are virtually never lawful. While the government (through laws against libel
or against criminal incitement) may punish speech after it occurs, the
government may almost never impose a prior restraint by requiring a person
receive permission before speaking.[154]
The various police permission proposals destroy the normal presumption
of innocence and impose prior restraints. A person is forbidden to exercise
her right to bear arms unless the police satisfy themselves that the person
is not guilty.[155] Citizens who wish to protect themselves should not have
to wait to receive police permission. The very point of basic rights like
free speech, or free exercise of religion, or the right to keep and bear
arms, is that a citizen does not need to ask for government approval to
exercise those rights.[156]
A judicial decision permitting a prior restraint on the right to bear
arms would inevitably endanger the right to abortion. If prior restraints and
waiting periods on the right to bear arms are allowed, why not require women
who need an abortion to submit to a waiting period, pass a simple test on the
nature of fetal life and risks of abortion, and obtain permission from a
local health agency?
The chance that any given person acquiring gun by any method, including
by theft, will perpetrate a homicide is 1 in 3,000. In future years, a
legislature dominated by pro-life forces could point out that a woman seeking
an abortion does so with the intention of killing the fetus. If a chance of
a killing smaller than 1 in 3000 justifies a prior restraint, then surely
the certainty of a killing in case of abortion would also justify a prior
restraint.
B. BALANCING TESTS
Another principle, originally developed under First Amendment analysis,
but now considered to have general applicability, is that of "least
restrictive means." When the government regulates Constitutionally-protected
activity (such as speech or interstate commerce), even if the government is
pursuing a substantial purpose:
that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgement must be viewed in light of less
drastic means for achieving the same basic purpose.[157]
Courts have directly applied the principle to strike down infringements on
the right to keep and bear arms.[158]
Because a waiting period is so patently ineffective, it is not the least
restrictive means to achieve the substantial government interest in reducing
gun misuse. The waiting period fails the less restrictive means test because
it imposes a broad restriction on all firearms purchases (or all handgun
purchases for a limited wait) that is not narrowly tailored. There are a
large number of less restrictive methods the government might adopt,
discussed below in Part VIII, to reduce gun misuse.
C. FEDERALISM
Handgun Control, Inc. claims that 22 states have waiting periods. The
statement is not completely accurate. The majority of American states impose
no major restrictions on firearms purchases in addition to those under
existing federal law. Federal law requires the purchaser of any gun to fill
out a form which is permanently retained by the dealer, and is available for
inspection by federal authorities. Some states require handgun purchasers
(or all gun owners) to obtain a license. Once granted a license, the
license-holder may obtain an unlimited number of firearms of all types
without further approval, for as long as the license is valid (for life, or
a term of one or more years).[159] South Carolina runs a background check
after the person has picked up the gun.[160] Wisconsin has a two day waiting
period, but no background check.[161]
Only 16 states actually have a system like what is proposed by Handgun
Control, Inc. as a federal law, and pushed by HCI in the state legislatures:
a statute requiring individual police permission for every single handgun
purchase. In four of those states (Pennsylvania, Oregon, Indiana, and
Washington), a person who holds a permit to carry a concealed firearm is
exempt from the waiting period; the police are statutorily required to
grant concealed carry permits to all citizens unless there is a particular
legal disability. Connecticut exempts from its wait anyone with a state
hunting or local gun license, and allows transfers in less than 14 days if
approval is granted earlier.[162] Tennessee also allows an instant
transaction if the police approve, and in some rural counties, the waiting
period is not enforced. Of the 12 states that require handgun purchasers to
receive individual permission for each purchase under all circumstances, 3
have a waiting period shorter than the 7-day standard commonly proposed.[163]
Thus, the 7-day waiting period for every handgun purchase proposed by Handgun
Control is more severe than the existing laws in 41 of the 50 states.
Forty-one of the fifty states have decided not to implement laws as
severe as the proposed uniform 7-day wait. Sometimes the federal government,
viewing a growing trend in the states, makes the progressive state
legislation into federal law. It cannot be said that there is a national
trend in favor of waiting periods. It is true that some states that already
had waiting periods for handguns have extended them to long guns.[164] (The
move is logical, since long guns, especially shotguns, are so much deadlier
than handguns.)[165] Similarly, Florida, which already allowed counties to
have limited 3-day waiting periods, voted in November 1990 to make the wait
state-wide. The new Florida law had several provisions which made it more
palatable to supporters of the right to bear arms; the law provides for a
wait only, with no background check or police permission. Persons with
handgun carry permits (which are required by law to be issued to all
qualified applicants) are exempt from the wait. As a state constitutional
amendment, the Florida wait prevents the state legislature from enacting
stricter gun laws.
In states that do not already have waiting periods, there has been no
willingness to adopt one. In the last decade, not one state without a waiting
period has added one. Even Ohio, the home state of both sponsors of the
federal waiting period, has repeatedly rejected a waiting period.[166]
Indeed, the large majority of states, through preemption laws, have forbidden
or abolished local waiting periods.[167]
It is sometimes asserted that the lack of a waiting period in some
states makes enforcement of the law impossible in states that have one.[168]
But ever since the federal Gun Control Act of 1968, citizens are only
permitted to buy handguns in the state where they reside. If a Marylander
wished to evade his state's 7-day wait, and buy in a state without a wait
(such as West Virginia), he could not do so without providing proof that he
was a resident of the other state. Only persons possessing false
identification could evade the background check in one state.
When faced with the federalism argument, some supporters of a national
waiting period reply that the proposals merely allow the choice of a
background check. States already have that choice, of course. The state
legislature of Iowa could enact a background check if it wished; it does not
need the assistance of the federal government to have a "choice." Besides, as
discussed above, Handgun Control, Inc. has already announced it will sue
police departments that do not "choose" to conduct a background check.
Because of HCI's lawsuit strategy, the seven-day wait would in practice be
mandatory -- even though the large majority of states have apparently decided
that public safety is enhanced if their citizens can acquire the means of
self-defense in less than a week.
Since the net effect of Handgun Control's strategy would be to impose on
state officials a federal obligation to conduct a background check, the
national waiting period is an unconstitutional exercise of Congressional
power. As the Supreme Court has ruled: "the Federal Government, under the
Constitution, has no power to impose on a State officer, as such, any duty
whatever, and compel him to perform it; for if it possessed this power, it
might overload the officer with duties that would fill up all his time, and
disable him from performing his obligations to the State, and might impose on
him duties of a character incompatible with the rank and dignity to which he
was elevated by the State."[169]
The Supreme Court's concerns are particularly apt in the case of the national
background check. The mandatory check would require each state to assign some
number of police officers or other employees (ranging from a few dozen in a
small state doing a retail handgun-only check to several hundred in a large
state under HCI's comprehensive check) to the job of checking the backgrounds
of its citizens. Although the state legislature would have preferred to
devote the time of its employees to the more urgent task of fighting
criminals, the federal government would force the state to use its own
resources to process paperwork from honest citizens.
The national waiting period violates, at the very least, the spirit of
the Tenth Amendment.[170]
VIII. ALTERNATIVES
Synopsis: There a number of alternatives that -- while clearly
superior to the waiting period -- do not represent good policy
choices in themselves. The Instant Telephone Check and the 7 day
waiting period/background check both use the same (often
inaccurate) database; the Instant Check has the obvious advantage
of being speedy, and not interfering with expeditious acquisition
of a self-defense gun. Firearms Owners Identification Cards take a
long time to obtain initially, and serve as a basis for gun-owner
registration and overly broad fingerprinting of the general
population. Turning drivers licenses into "smart cards" also
requires citizens to submit fingerprints to the government in order
to exercise their Constitutional rights. The most effective way to
deal with criminals possessing guns is to better enforce laws
regarding criminal gun acquisition and to target the black market
trade that supplies the gigantic majority of criminal guns.
Researchers from the National Institute of Justice have suggested
several possibilities to directly attack the black market; none of
the NU proposals interferes with Constitutional rights.
Henny Youngman was once asked how he liked his wife. "Compared to what?"
he replied. There are a number of alternative controls on retail gun sales
that, compared to a waiting period, are quite attractive.
If the only issue to be decided is what kinds of restrictive controls on
retail gun sales are best, all of the alternatives detailed below compare
favorably to the waiting period. They are just as effective at stopping legal
purchases by ineligible buyers as a waiting period would be. Because the
alternatives do not give the abusive administrators an easy opportunity
maliciously to block every retail transaction, these alternatives are much
less likely to result in wholesale denials of the right to bear arms, and
hence less likely to threaten public safety. At the same time, they consume
police resources at a rate equal to or significantly less than the rate at
which a waiting period would consume police resources. Hence, the
alternatives are clearly superior to a waiting period from all perspectives.
On the other hand, if the question is not how to further restrict retail
gun sales, but instead if any such restrictions would be worthwhile, none of
the alternative controls appear satisfactory. Like a waiting period, the
alternative controls on legitimate sales can be evaded, and will likely do
virtually nothing to disarm criminals. And while the alternative controls are
not as dangerous to civil liberties as is a waiting period, the alternatives
still pose some danger.
The most effective way to promote public safety and preserve civil
liberties is to crack down on the black market that supplies criminal guns.
A number of approaches for attacking the black market are suggested below.
A. "INSTANT" CHECKS
One alternative to waiting periods is an "instant telephone check." The
first state to enact such a check was Virginia; and Florida and Delaware have
recently followed suit. When a Virginia gun dealer sells any handgun or
certain long guns to a Virginia resident, the dealer calls a toll-free number
at state police headquarters, to verify that the purchaser has no legal
disqualification. If everything proceeds properly, the sale can be
consummated with no more delay than a credit card check might entail.
Support of an instant check is widespread. Criminologists and legal
scholars such as Gary Kleck, Don Kates, and Robert Cottrol who are generally
skeptical of gun prohibition support the instant check system. Even big-city
police chiefs who generally agree with Handgun Control, Inc., split from that
group in preferring the instant check over a national firearms identification
card.[171] The National Rifle Association also supported the instant
telephone check in Virginia.
In terms of sorting out ineligible buyers, the instant check is just as
effective as a 7-day waiting period, according to the Department of Justice
Task Force, and for that reason is supported by Attorney General.[172]
Unfortunately, in terms of preventing incorrect denials of the right to bear
arms, the instant check is just as bad as the waiting period. Because the
data quality for instant checks is, according to the Task Force, equivalent
to that for a one or three week background cheek, only 84%-88% of applicants
will be initially allowed to purchase if there were a national instant check.
The unlucky remainder must go through a secondary verification process (such
as submitting fingerprints at state police headquarters) that would take
several weeks.[173]
Of course a criminal can evade an "instant" check just as easily as he
can evade any other check. All he needs is a fake driver's license with
another name. Since false social security and alien registration cards may
sometimes be bought for as little as $35,[174] and since those cards are
usually sufficient to obtain a driver's license, the instant check is likely
to be just as porous as longer checks. The instant check, therefore, like the
waiting period, could be evaded by anyone with false identification.[175]
For the purchasers who are rejected initially, fingerprint checks might
be required to verify their identity. It is estimated that, if the instant
check were national and comprehensive, the FBI would need 395 new clerical
employees and 8,000 more square feet of office space to process the
fingerprint work.[176] Given the limited efficacy of any police permission
system, it might be considered whether 395 additional FBI employees might be
better employed at projects focused on criminals, rather than on law-abiding
citizens.
An instant check will cost between $7.07 and $9.39 per purchase.[177]
For a person buying a high-quality target pistol, the cost is hardly
noticeable. For a poor person buying a $40 used revolver for self-defense,
the cost is considerable. The cost could be justified, if it yielded
important benefits.
Significantly, the instant check is subject to the same problem of
creating a gun and gun-owner registration system as is a waiting period. As
the Task Force observes, "Any system that requires a criminal history record
check prior to purchase of a firearm creates the potential for the automated
tracking of individuals who seek to purchase firearms."[178] If a transaction
number must be placed on the dealer gun sale form (to prove he made the
check), and if the state retains its own record of transaction numbers, the
record-keeping could easily be perverted into gun registration.
At the least, any instant check system should include protections to
absolutely bar gun-owner record retention, and should specify that if
computer or other failure prevents the police from approving the sale, the
sale should be delayed no more than 24 hours.
The instant check is clearly preferable to a waiting period. The instant
check uses the same criminal/mental data base as would a waiting period, and
would therefore be equally effective in denying ineligible buyers. Bemuse the
large majority of sales would be approved on the spot, abusive administrators
would have much less of an opportunity to interfere with the right to bear
arms. It is true that an instant check eliminates the "cooling off" feature
of a waiting period; but as discussed above, the number of crimes that could
be prevented by "cooling off" is very, very small. The loss to public safety
from the elimination of the "cooling off" period is more than offset by
allowing persons who need a gun for immediate self-defense to get one,
and by substantially reducing the numbers of arbitrary denials of firearms
purchases.
B. FIREARMS OWNERS IDENTIFICATION CARDS
One suggested alternative to waiting periods for each firearm purchase
is the creation of a Firearm Owners Identification Card (FOID). A person
applies once for FOID card and submits her fingerprints to the authorities;
after a four to six week review process, the person is granted a card which
allows her to make unlimited purchases, with no further approval, as long as
the card remains valid. (The card might expire after one year, or three
years, or be valid for life.) Massachusetts and Illinois are among the states
currently using a FOID system. Faced with the choice between the instant
telephone check and the FOID card, Handgun Control, Inc. prefers the FOID
card.[179]
The Task Force suggests that each FOID card would cost $30.
Approximately 1,700 new FBI employees would be required to process the
necessary fingerprint checks of FBI files. According to the Task Force, the
FOID card, taking up to six weeks to process, would be substantially more
accurate than an instant check or a short waiting period.
As with the instant check or the waiting period, the list of FOID owners
would be a de facto registration list of gun owners. The more serious civil
liberties problem, however, involves massive fingerprinting.
The National Association of Police Organizations favors the collection
of fingerprints of gun owners as the first step towards a comprehensive
fingerprint system: "Hence the development of such an integrated national
fingerprint system should be considered not merely for its benefits in
connection with felon identification concerning firearms purchases but also
in connection with improving law enforcement in general."[180]
The American Civil Liberties Union states "limited criminal history
record checks, with fingerprint cards, are justified in certain licensing and
employment situations. However, we oppose routine fingerprinting of all
individuals who seek to buy firearms as an intrusion into privacy that cannot
be justified by the minuscule benefit that may be achieved...."[181] Of
course the ACLU's principle should also apply not only to proposed national
fingerprint proposals, but also to the current practice in states such
as New York and Illinois which routinely fingerprint the large fraction
of the population which exercises its right to bear arms.
The same arguments that lead one to reject a national or identity card
apply to federal gun licensing through a FOID. A national licensing system
would require the collection of dossiers on half the households in the United
States (or a quarter, for handgun-only record-keeping).
Implementing national gun licensing would make introduction of a
national identity card more likely. Assuming that a large proportion of
American families would become accustomed to the government collecting
extensive data about them, they would probably not oppose making everyone
else go through the same procedures for a national identity card.
Although the problem of illegal immigration is immense, Congress has
repeatedly rejected calls for a national ID card. The same reasons that
impelled Congress to reject that national ID card should impel Congress (and
the states) to reject large steps towards such a card.
C. SMART CARDS
Another suggestion for screening of firearms purchasers has been the
development of "smart" cards. As the Task Force explains, "every adult would
carry an identification card issued by the state of residence, such as a
driver's license, that would have electronically imprinted identifying
information."[182] An instant fingerprint check in gun stores will within a
few years be technologically feasible.[183]
The Smart Card seems to pose no serious problems from a pure Second
Amendment viewpoint. There would be no false denials, since the cardholder
would not be confused with other people with similar names and birth dates.
There would be hardly any delays in purchases, since almost everyone would
have a smart card.[184] There would be less risk of creating a gun
registration system, although some states would be tempted to include gun
registration data directly on the smart card.
Nevertheless, civil libertarians (including those with no interest in
the gun issue) should oppose the smart card for the same reason that they
oppose a firearms owners identification card (FOID). Both smart and FOID
cards are a huge step towards a national identity card. Smart/FOID cards
would of course be introduced with the assurance that they would only be used
for limited purposes. But the Social Security Number, it was promised, would
only be used for Social Security; today, the SSN is in effect a mandatory
universal identification number, demanded by all levels of government and by
businesses.
The National Rifle Association rejects the idea that persons who fill
out the federal gun purchase form (form 4473) should be required to affix a
fingerprint: "Exercise of a constitutional right cannot be conditioned on
making fingerprints available to the police."[185] Indeed, the Supreme
Court has held that Constitution forbids states to collect fingerprints of
people merely because they exercise their Constitutional rights.[186] But the
smart card requires a citizen to offer his fingerprint for government
approval before exercising his right to bear arms.
The instant driver's license fingerprint scan offers few anti-crime
advantages over the instant telephone check. Both can be evaded with false
identification. (In the case of the fingerprint scan, the criminal just makes
sure to have someone else's print placed on his fake driver's license.)[187]
The instant fingerprint scan proposal would result in every state having a
fingerprint of all of its adult citizens. It is questionable whether states
currently ought to be fingerprinting citizens who obtain drivers' licenses.
It is repugnant to federalism to force states to erode the privacy of their
citizens by forcing the states to collect fingerprints.
Like the FOID card, the smart card looks handsome when compared to the
waiting period, since it is more effective in denying ineligible buyers, and
is less suspectable to repeated abuse by anti-gun administrators. But
standing on its own, the smart card fails important civil liberties tests.
D. ANTI-CRIME ALTERNATIVES THAT DO NOT INFRINGE CIVIL
LIBERTIES
If the goal is really to keep felons from obtaining guns (rather than
imposing gun control on honest citizens for its own sake), then the focus on
retail sales in entirely misplaced. Hardly any felons buy crime guns in
stores; almost all of the guns come from the underground market. A system
aimed at disarming criminals should aim primarily at the black market.
The National Institute of Justice authors, Wright and Rossi, suggest
"stiff penalties for firearms transfers to felons whenever these were
detected and, in the same framework, stiff penalties for the crime of gun
theft."[188] Enhanced penalties for transfers to felons were added to federal
law in 1986, and should be added to state laws as well. To assist
prosecutions of gun theft, states should follow Virginia's lead, and make
sale of a stolen firearm a special, serious offense.[189] In many states, the
theft and sale of $75 gun amounts to only petty larceny. Selling a "hot" $75
pistol should be a more serious offense than selling a "hot" $75
toaster-oven.
Other ways to keep criminals away from guns include closer monitoring of
parolees and probationers, and more intensive crackdowns on fencing
operations for stolen firearms. State or federal strike forces aimed directly
at gun-runners might be introduced or augmented. To deal with the rare cases
of criminals with non-false identification buying guns at retail, police
departments could distribute wanted posters and/or gun felon lists to
gun stores.[190]
Funding for any of the above programs should come from the same general
revenues that support all law enforcement, or from a special assessment on
convicted gun felons.[191] Persons exercising their Constitutional right to
bear arms should not be forced to pay a special tax to support enforcement
efforts against gun criminals, any more than camera owners or magazine
readers should be taxed to pay for enforcement of child pornography laws.
IX. CONCLUSION
One night a man was walking down the street, and saw his friend crawling
on the sidewalk, near a lamppost. The friend explained that he was looking
for his wallet. The man got down on his knees, and helped the friend look.
After about 15 minutes, the man said "I don't think your wallet is anyplace
near this lamppost."
"Of course it isn't," the friend replied. 'It fell out of my pocket over
there, in that dark alley."
"Then why are you *looking all the way over here, by the lamppost?" the
man asked.
"Because the light is so much better over here."
Where should police officers look for armed criminals? In the dark
alleys and black markets where criminals sell guns? Or behind a desk, where
the light is better, so they can examine paperwork filled out by law-abiding
citizens?
Especially when a legislature is considering laws that impact
fundamental rights, it is improper to pass legislation simply because "it
might help a little" or "it won't do much harm." Proponents of a new law have
the burden of proving that their new law will accomplish a significant
positive good. The burden is all the higher when proposed legislation affects
a significant number of people, and waiting periods regulate the 50% of
American households that choose to possess firearms. Proponents of a waiting
period have failed to carry their burden of persuasion.
The criminological evidence is solidly against the waiting period. Most
police do not favor the waiting period, and even if they did, their opinions
do not over-ride Constitutional commands. While the Constitutional question
is not at all well-settled, analysis of core Constitutional principles
suggests that a waiting period cannot pass muster under the bar on prior
restraints or the requirement of "least restrictive means."
Of all the proposals for increased restrictions on retail firearms
sales, the waiting period scores last in terms of disarming criminals, and
first in terms of threatening the exercise of the right to bear arms.
Alternative restrictions share many of the waiting period's defects. At the
federal level, all of the proposals violate the spirit of the Tenth Amendment
guaranteeing state autonomy. All of the proposals facilitate gun
registration. All of the proposals force a citizen wishing to exercise her
right to bear arms to receive, at least once, permission from the government.
The waiting period gives abusive administrators a chance to interfere with
every firearms transaction, while the alternatives allow interference with
some transactions. In terms of fighting crime, all of the proposals are
essentially trivial. They will force police officers to carry out a
surveillance of ordinary citizens that will almost never result in the arrest
of a criminal.
The strongest evidence against a waiting period comes from the
copywriters of Handgun Control, Inc., the lead proponent of the bill. They
have chosen to build their case on a misrepresentation -- the empirically
false claim that a waiting period would have stopped John Hinckley. If
Handgun Control, Inc's most compelling argument is false, why should
legislators or other citizens believe HCI's other assertions? Why should the
public accept controls like waiting periods which are designed as
intermediate steps towards prohibition? Why should Americans accept
alternatives like instant telephone checks or smart cards which -- although
better in every respect than waiting periods -- fail to eliminate the civil
liberties problem created by forcing people to risk being put on a government
list because they exercise their rights.
The premise of the waiting period -- and of most suggested alternatives
-- is that citizens can be required to ask police permission before
exercising their rights. But the Constitution does not create a privilege to
possess "sporting" guns. The Constitution recognizes a fundamental human
right to keep and bear arms.[192] And that is why waiting periods, besides
being ineffective, are illegal and immoral.
1. Sarah Brady said Pascoe's bill is "everything on my wish list that I've
been wishing for a federal level." Gary Massaro, "Brady's Appeal for
Gun-Control," _Rocky Mountain News_, Jan. 26, 1990.
2. Senate Bill 90-93, Colorado Senate, 57th General Assembly, Second Regular
Session (1990).
3. Mrs. Brady quoted in Sam Meddis, "Petitioners Taking Aim at Gun Laws,"
_USA Today_, July 20, 1988.
4. Mrs. Sarah Brady, Testimony before House of Representative Judiciary
Committee, Oct. 28, 1985, quoted in _Congressional Record_, Feb. 5, 1987,
p. S.792.
5. James Brady, Fund-raising letter for Handgun Control, Inc., "Wednesday
morning" (summer 1990), p. 1: "John Hinckley - a man with a history of mental
problems - purchased an easily concealed handgun." Most recipients of the
fund-raising letter are not aware, as Mr. Brady surely must be, that no
background check could have discovered Hinckley's entirely private record of
consultation with mental therapists. The fund-raising letter, which
includes substantial portions of Mr. Brady's standard testimony before
Congressional committees, is hereinafter cited as James Brady Fund-raising
letter.
6. Hinckley transcript, pp. 1489-1559; Opposition to Defendant's Motion for
Bail. He also forfeited the guns he had been attempting to carry onto the
plane.
7. Texas driver's license #9457099, issued to John W. Hinckley, Jr., 1612
Avenue Y, Lubbock, Texas. Hinckley trial pp. 1751-52.
8. Sarah Brady, "How to Deter Future Hinckleys," _New York Times_, Nov. 8,
1985. Also: Barbara Lautman, HCI Communications Director, "Only the Criminals
Are Hurt By Waiting," _USA Today_, May 26, 1987, p. 12A; Handgun Control,
Inc., "Briefing Paper on the Brady Amendment" (1988): "Had a waiting period
been in effect and a background check undertaken, it could have been
determined that Hinckley committed a felony by lying about his address on the
federal forms and he could have been stopped." Ohio Senator Metzenbaum (the
lead Senate sponsor of the waiting period) claims that Hinckley submitted "a
defective driver's license." Sen. Metzenbaum, _Congressional Record_, Feb.
4, 1987, p. S792.
9. Advertisement, "A $29 handgun shattered my family's life." _The New
Republic_, July 18, 1988, inside front cover. Also, same advertisement, _New
York Times_, August 1, 1988, p. 1. Rep. Edward Feighan (House sponsor of
waiting period), "Feighan Introduces Bill to Deter Criminals and Save Lives,"
Press Release, February 4, 1987: "One check would have told a Texas dealer
that John Hinckley was using a false address and could have prevented him
from purchasing a handgun."
10. Mrs. Sarah Brady, Congressional testimony, quoted in "Flagship Bill
Introduced," _Washington Report_ (Handgun Control, Inc. newsletter), Spring
1987, pp. 1-2.
11. "Brady Backs a Wait on Handgun Sales," _USA Today_, June 17, 1987, p.
2A.
12. Advertisement, "A $29 handgun shattered my family's life." _The New
Republic_, July 18, 1988, inside front cover. Also, same advertisement, New
York Times, August 1, 1988, p. 1.
13. Southwestern Bell, _Lubbock-Slaton Telephone Directory_ (November, l979)
(listing "John W.Hinckley ... 409 University Av.").
14. 18 United States Code SS 522(a)(6).
15. ATF Rul. 80-21, reprinted in Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, _(Your Guide to) Federal Firearms
Regulation_, 1988-89, ATF P 5300,4 (6-88), p. 73.
16. Rep. James Sensenbrenner, Jr. (R-Wisc.), "Fact Versus Fiction on the
Brady Amendment," August 11, 1988 (part of "Dear Colleague" letter titled
"NRA Shoots Self in Foot"), p. 2.
17. Shots from a .38 caliber are almost twice as likely to kill as .22
calibre attacks. Franklin Zimring, _The Medium is the Message: Firearms
Caliber as a Determinant of Death from Assault_, 1 Journal of Legal Studies
97 (Jan. 1972).
The campaign Mrs. Brady and HCI wage against "Saturday Night Specials"
(cheap handguns like the RG .22) is particularly odd in light of the fact
that Hinckley owned guns more powerful than a "Saturday Night Special," and
had a ban on "Saturday Night Specials" been in effect, Hinckley would not
have been able to buy the cheap handguns in Texas, and probably would have
used the higher-quality (and deadlier) handguns.
18. Advertisement, "A $29 handgun shattered my family's life." _The New
Republic_ July l8 1988, inside front cover. Same advertisement, _New York
Times_, August 1, 1988, p. 1. See also James Brady Fund-raising letter, p. 1:
"That shot - from a $29 Saturday Night Special - changed my life..." Also,
Sarah Brady: "Nine years
ago, I got thrown into the issue when John Hinckley bought a $29 handgun in
Dallas," in Peter Nye, -National Gun-Control Position," _The National Voter_
(League of Women Voters), October/November 1990, p. 5.
19. "Gun Used to Shoot Reagan called a $47 'Saturday Night Special',"
_Baltimore Sun_, March 31, 1981 (reporting testimony of federal agents based
on their examination of the purchase record for the transaction involving
Hinckley). See also, Pete Earley, "The Gun: A Saturday Night Special From
Miami," _Washington Post_, March 31, 1981: "[W]hen model RG14 finally reaches
the public, its price tag is about $47.50 - one of the cheapest pistols
available." (article about model of gun used by Hinckley).
20. Mrs. Brady also offers diverse stories about her own involvement in the
anti-gun crusade. In a November 1985 _New York Times_ op-ed, she explained
her involvement as directly triggered by NRA's attempt to repeal federal gun
control through the McClure-Volkmer bill:
Last July, the Senate passed the McClure-Volkmer bill, which would make
it even easier for the kind of tragedy that struck down my husband to
happen again. This bill would severely undermine federal gun laws by
allowing anyone to buy a handgun across state lines, by limiting
Government inspections of gun dealers' records and by repealing certain
handgun record-keeping requirements. I decided I had to do more than
think about the problem.
Sarah Brady, "How to Deter Future Hinckleys," _New York Times_, Nov. 8, 1985
(>emphasis added<).
As a New York Times reporter described it:
>Mrs. Brady first enlisted in the fight for gun control in the summer
of 1985< when it appeared that the Senate was about to adopt a measure
backed by the NRA that was designed to weaken the 1968 Gun Control
Act.
"It just enraged me," she recalled of the effort to alter the
comprehensive law...
Barbara Bamarekian, "Fighting the Fight on Gun Control," _New York Times_,
Feb. 10, 1987, p. B 10.
But another newspaper states that Mrs. Brady has actually been an
anti-gun activist since 1973, not since 1985, as she twice claimed in the
_New York Times_. According to a _USA Today_ profile, "Sarah Brady has spent
nearly a third of her life arguing for tougher gun laws ... Brady, daughter
of an FBI agent, >began her fight for stronger gun laws in 1973<, when she
tried to ban Saturday Night Specials..." "Brady Backs a Wait on Handgun
Sales," _USA Today_, June 17, 1987, p. 2A (>emphasis added<).
In light of Mrs. Brady's deceptions about matters large and small, her
attack on the NRA, "I think they tend to prevaricate quite often" seems a
case of the pot calling the kettle black. ABC News/Time Forum, January 24,
1990, show #ABC-11, transcript.
It is also ironic that she congratulates herself: "I have tried very
hard not to make it an emotional issue because I think that is what the gun
lobby has done." _New York Times_, Feb. 10, 1987. A reader of Handgun
Control's late 1990 fund-raising letter might find the rhetoric somewhat
emotional:
_[Y]ou_ are at risk. _You_ are in danger of also becoming a victim of
the senseless handgun violence ... _[S]top_ our insane national handgun
war ... Frankly, what makes me livid is that the NRA opposes the Brady
Bill because they claim it's an inconvenience ... For their convenience,
I experience pain - sometimes so intense I cry ... I need help getting
out of bed, help taking a shower, help getting dressed and, damn it,
even help going to the bathroom ... _The_NRA_lobbyists_can_go_to_
_hell!_ ... [T]he NRA lobbyists scream FOUL! ... But the mighty NRA
roars NO! And the cowards in Congress cringe! ... I desperately need
your help. James Brady Fund-raising letter (emphasis in original).
21. For example, Hank Johnson, Executive Editor, "Making a Case for Gun
Control," _Athens Daily News_ (Georgia), September 16, 1990 ("Had such a
waiting period been in effect when John Hinckley walked into a Dallas pawn
shop ... he could have been stopped.")
22. Sarah Brady, Vice Chair, Handgun Control, Inc., Statement (press
release), February 4, 1987, p. 1.
Presumably she meant to say "1980."
23. Handgun Control, Inc., "Briefing Paper on the Brady Amendment" (1988);
Rep. Feighan (sponsor of waiting period), remarks, _Congressional Record_,
September 15, 1988, p. H7636.
24. The National Sheriffs Association, which currently supports the waiting
period, certainly qualifies as a major law enforcement organization, since it
is the largest group of sheriffs in the United States. Interestingly, Handgun
Control, Inc. claimed in 1988 to have the support of "every major law
enforcement organization,"
even though in 1988 the NSA had voted not to support a waiting period.
Apparently when the NSA later changed its mind and supported Handgun Control,
the NSA then qualified as a "major police _organization."
Both NACOP and AFP are for-profit organizations, and are associated with
retired police chief Gerald Arenberg, who is also associated with other
for-profit organizations. Handgun Control, Inc., sometimes _.announces this
fact as if it somehow delegitimizes the NACOP and AFP - although the more
than 100,000 law enforcement officers who have joined these organizations
apparently do not agree. Perhaps no major law enforcement organization has
been more tainted by financial impropriety than has the International
Association of Chiefs of Police, a strong supporter of the waiting period;
the questionable financial practices of IACP's former leadership should
certainly not disqualify it as a voice for its members. A fortiori, the
for-profit status of _NACOP and _AFP, untainted by any hint of scandal,
should not disqualify these groups as police voices.
25. The Federal Law Enforcement Officers Association, Fraternal Order of
Police, International Brotherhood of Police Officers, International
Association of Chiefs of Police, Major Cities Chief Administrators, National
Association of Police Organizations, National Organization of Black Law
Enforcement Executives, National Sheriffs Association, National Troopers
Coalition, Police Executive Research Forum, Police Foundation (a think-tank),
and Police Management Association. _Congressional Record_, Sept. 15, 1988, p.
H 7639; Handgun Control, Inc., "Briefing Paper on the Brady Bill," p. 2.
26. "What PERF Members Think About Police Education, Assault Weapons, Toy
Guns, Etc." _Subject to Debate_ (PERF newsletter) March/April 1989, p. 1. It
cannot be said that PERF has done an outstanding job of informing its members
of the technicalities of the firearms debate. Ninety-four percent of PERF
members favored a ban on nondetectable weapons, apparently unaware of
testimony from the Bureau of Alcohol, Tobacco and Firearms and from the
Federal Aviation Administration that there was no such thing as an
undetectable weapon currently in existence or technologically feasible in the
foreseeable future.
27. National Association of Chiefs of Police, "American Law Officers Survey
for 1989." The NACOP survey was sent to 16,259 command officers, and 16%
responded. The 16% represented departments which employ 172,355 officers.
Both the NACOP and the PERF surveys were conducted by mail, and response
was voluntary. Because the surveys were not conducted by random sampling, it
is not possible to assign a confidence interval to either survey.
Accordingly, it is statistically possible that either or both of the surveys
is not a correct measure of its population's opinion.
On the other hand, it seems very possible that both PERF and NACOP were
accurate measures. The responses to other questions in the surveys revealed
results that would be expected of the sample populations. The big-city chiefs
(PERF), favored: educational requirements for entry-level police (77%); an
"assault weapon" ban (76%); funds for drug research (85%); and collection of
data on hate crimes (78%). Likewise, the NACOP survey found results that are
consistent with the expected conservative orientation of national police
commanders as a whole: belief that the death penalty deters crime (93.8%);
opposition to drug legalization (94.4%); belief that "the courts are too soft
on criminals in general" (95.6%), and belief that their department was
undermanned (87.3%).
In any case, it is doubtful that Handgun Control, Inc. would criticize
the NACOP survey, since NACOP's survey methodology is the same as PERF'S, and
Handgun Control cites the PERF survey in its own informational literature.
Handgun Control, Inc., "Waiting Periods Work."-
28. National Association of Chiefs of Police, "American Law Officers Survey
for the Year 1990." The NACOP survey was sent to approximately 16,000 command
officers, and 10% responded. See the previous endnote for caveats regarding
the response rate.
29. Handgun Control, Inc. claims that the NRA has lost police allies because
it has "gone off the deep end" by opposing reasonable gun controls.
Interestingly, when HCI tried its "deep end" advertisement in Police
magazine, the magazine received mail "unrivaled by any subject in the last
two years," most of the writers saying they didn't like the contents of the
ad one bit." Police's editor composed an editorial condemning Handgun Control
Inc., defending the NRA, and warning that "HCI is trying to erode the Second
Amendment." F. McKeen Thompson, "Readers Respond to HCI . . . And We Agree,"
_Police_ (The Law Officer's Magazine), vol. 11, no. 12 (December 1987), p. 4.
In any case, the NRA is not the only group to lose friends over its
extreme stands. On most issues, the Fraternal Order of Police is a staunch
ally of Handgun Control. (The FOP leadership switched sides on the gun debate
in anger over the NRA's stand on armor-piercing bullets.) But when Handgun
Control helped push the New Jersey legislature to enact a bizarre and
overbroad "assault weapon" ban (it even applied to BB guns), the local
chapter of the Fraternal Order of Police strongly opposed the law.
Apparently, the FOP did not agree with HCI that BB guns should be confiscated
as assault weapons. Dewey R. Stokes, "Major Issues Face FOP," _National FOP
Journal_, Summer 1990, p. 4 (describing FOP stand in New Jersey, and national
FOP support for New Jersey's opposition).
30. Regarding the criminal procedure amendments to the Constitution, only a
small percent of cases are not prosecuted or are reduced to lesser charges
because of the rules against illegally seized physical evidence and coerced
confessions. Peter F. Nardulli, "The Societal Cost of the Exclusionary Rule:
An Empirical Assessment," 1983 _American Bar Foundation Research Journal_
(1983): 585-6 10; Thomas Y. Davies, "A Hard Look at What We Know (and Still
Need to Learn) about the 'Costs' of the Exclusionary Rule: The NLJ Study and
Other Studies of 'Lost' Arrests," 1983 _American Bar Foundation Research
Journal_ (1983): 611-90; "Legal Safeguards Don't Hamper Crime-Fighting,"
_National Law Journal_, December 12, 1988, p.5: Six-tenths of one percent to
2.35% of cases are dismissed because of bad searches; in a survey of
prosecutors, 87% said that 5% or less of their cases were dismissed because
of Miranda problems.
31. See for example the remarks of Rep. Mel Levine (D-Calif.), _Congressional
Record_, April 10, 1986, p. H1746 (allowing interstate transportation of
handguns for sporting purposes will cause 'mayhem ... on our streets..and
further handicap law enforcement efforts to control handgun crime."); remarks
of Rep. Howard Wolpe (D-Mich), ibid. ("[T]he police in my district are
concerned that the _Volkmer substitute would add considerably more peril to
their job than already exists.")
32. "91% of Americans Favor Brady Amendment," _Subject to Debate_, Nov./Dec.
1988, p. 10.
33. _Subject to Debate._
34. Polling data from Herbert McClosky & Alida Brill, _Dimensions of
Tolerance: What Americans Believe About Civil Liberties._ (New York: Russell
Sage Foundation, 1988).
35. "It established some rights of the individual as unalienable and which
consequently, no majority has a right to deprive them of." Albert Gallatin,
Congressman and Cabinet officer of the early American Republic, quoted in
Richard E. Gardiner, "To Preserve Liberty: A Look at the Right to Keep and
Bear Arms," 10 _Northern Kentucky Law Review_ 63, 79n. (1982).
36. McCloskey and Brill.
37. Wright, Rossi, and Daly, pp. 223-35.
38. Sarah Brady, Fund-raising letter for Handgun Control, Inc., "Wednesday,-
(no date, 1988).
39. Matthew DeZee, "Gun Control Legislation: Impact and Ideology," _Law &
Policy Quarterly_ 5 (July l983): 363-79. Although DeZee stated that he
supported stricter gun laws, he did not offer any proposals.
40. "Homicides, Robberies and State "Cooling-Off' Schemes," in ed. Donald B.
Kates, _Why Handgun Bans Can't Work_ (Bellevue, Wash: Second Amendment
Foundation, 1982), pp. 101-12.
41. "An Empirical Analysis of Federal and State Firearms Control Laws," in
_Firearms and Violence: Issues of Public Policy_ (Cambridge, Mass.:
Ballinger, 1984): 225-58 (the study also found no perceptible impact on crime
or gun acquisition from the federal Gun Control Act of 1968).
42. Report on the Federal Firearm Owners Protection Act, S. Rep. no 3476,
97th Cong., 2d sess. (1982), pp. 51-52..
43. Philip. J. Cook & James Blose, "State Programs for Screening Handgun
Buyers," _Annals of the American Academy of Political Science_ 455 (May
1981), pp. 88-90. Although skeptical about screening systems as a panacea,
Cook and Blose still favor screening since it might increase the marginal
price or time needed to obtain a gun for inexperienced criminals (such as
teenagers), and might keep weakly-motivated criminals from obtaining guns at
all. Ibid., pp. 90-91.
Although Cook and Blose do not offer evidence, their intuition about
possible benefits is not implausible. But since waiting periods and other
screening systems do not show any statistical effect, it must be that the
number of criminals actually affected is fairly small. Parts IV and V below
discuss how the potential benefits of a waiting period compare to the
potential harms.
One study I have cited in earlier works (Cato Institute and Senate
Testimony, both 1988) for the inefficacy of gun control is Douglas Murray,
(1975). My citation to Murray was an error. As Wright, Rossi, and Daly point
out, Murray's statistical model has a design flaw which minimizes any
possible relationship between gun laws and gun crime.
44. Assistant Attorney General John R. Bolton, Letter to House Judiciary
Chairman Peter Rodino, March 19, 1986.
45. James Wright, Peter Rossi, and Kathleen Daly, _Under the Gun: Weapons,
Crime and Violence in America_ (Hawthorne, N.Y.: Aldine, 1983).
46. James Wright and Peter Rossi, _Armed and Considered Dangerous: A Survey
of Felons and Their Firearms_ (New York: Aldine, 1986). Three-fifths of the
prisoners studied said that a criminal would not attack a potential victim
who was known to be armed. Two-fifths of them had decided not to commit a
crime because they thought the victim might have a gun. Criminals in states
with higher civilian gun ownership rates worried the most about armed
victims.
47. _The Armed Criminal in America_, p. 46 (report to National Institute of
Justice; later republished as Armed and Considered Dangerous).
One of the authors, Professor James Wright nevertheless sees little
disadvantage in a waiting period. He calls it "a reasonable precaution" and
argues "Few legitimate purposes to which a firearm might be put are thwarted
if the user has to wait a few days, or even a few weeks, between filing the
application and actually acquiring the weapon." James D. Wright, firearms
chapter in ed. Joseph F. Sheley, _Criminology_ (Wadsworth Pub., 1991), p.
442. Professor Wright's view seems to be that while the waiting period, like
any screening system, might yield only small benefits, it is worthwhile
because it exacts virtually no costs. The counter- argument that the waiting
period's small benefits are outweighed by the damage it does to public safety
is discussed below. Professor Wright's assumption that a waiting period
"leaves the legitimate user pretty much alone" is true in theory but not in
fact; as detailed below, a waiting period can be and often is
administratively abused and made into a prohibition.
48. Wright & Rossi, pp. 181-87.
49. Ibid, p. 188, n. 3.
50. There is of course some value in keeping a criminal from obtaining a
second gun or a better gun, but the process would be unlikely to stop a
criminal from perpetrating a given armed crime.
51. Bureau of Alcohol, Tobacco and Firearms, Assistant Director of Criminal
Enforcement, Memorandum to Director, July 10, 1975 (Greenville survey; of
20,047 names submitted to FBI for record checks, 68 had felony convictions;
of those, 41 had not been represented by counsel at their conviction or who
committed crimes in the distant past; twenty-seven buyers were prosecuted)
(of the 1.3% of buyers selected for prosecution, .9% had non-violent felony
convictions, and .4% had violent convictions). Bureau of Alcohol, Tobacco and
Firearms, Assistant Director for Criminal Enforcement, memorandum to
Director, May 8, 1975 (of 374 records checked, 39 were purchasers with felony
records who were not appropriate for prosecution because of age or
non-violent nature of felony; six purchasers were prosecuted).
52. Douglas A. Blackmon, "Gun Sale Limits Don't Cut Crime, Experts Say,"
_Atlanta Journal & Constitution_, May 29, 1990, p. A-9. The numbers for
previous years were: for 1981, 1365; for 1982, 1009; for 1983, 1148; for
1984, 1349; for 1985, 1413; for 1986, 1515. Anita Lagunas, Supervisor,
Firearms Control Unit, California Attorney General, Letter to Richard
Gardiner, National Rifle Association, March 23, 1987.
53. California Board of Criminal Statistics, in Blackmon.
54. William Davis, "Gun Law Backfires," _Los Angeles Daily News_, Mar. 4,
1991 (letter to the editor from law enforcement officer and licensed federal
firearms dealer whose application was put on hold).
There are also reports that all "assault weapon" registrants have been
placed in police computer lists of persons who pose a special hazard.
California's practice of enforcing its laws with special severity against
persons who are especially law-abiding makes the registrants seem naive, and
seems to vindicate the intuitive distrust of gun registration felt by most
gun-owners.
55. Handgun Control, Inc., "Briefing Paper."
56. "Gun Control: It Threatens the Right People," _Tallahassee Democrat_,
February 1, 1985 (In six month period since waiting period went into effect,
37 of 1,425 applicants were denied; of the 37, 14 were denied for outstanding
arrest records for traffic offenses and other misdemeanors).
57. Handgun Control, Inc., "The Case for a Waiting Period."
58. In response to a letter from the NRA requesting information about the
Columbus waiting period, the police department analyzed its records and found
that in the period January 1, 1985 through July 22, 1985, thirty of the 1,419
handgun purchase applications had been refused. Due to man-hour limitations,
the department was not able to provide data for other periods. G.J. McCain,
Major, Bureau of Support Services, Columbus Police Department, letter to
Richard Gardiner, National Rifle Association, September 12, 1985. Of the 32
denials, seven were because of outstanding warrants, four were due to
marijuana cases, three for other drug cases, thirteen were for felony
convictions other than marijuana, and five were due to age.
59. Bureau of Justice Statistics, _Identifying Persons, Other than Felons,
Ineligible to Purchase Firearm: A Feasibility Study_ (May 1990) (report
performed under contract by Enforth Corporation, Cambridge, Massachusetts),
p. 25.
60. Pete Shields, _Guns Don't Die-People Do_ (New York: Arbor House, 1981),
p. 83.
61. Task Force, p. 86.
62. David Bordua, "Operation and Effects of Firearms Owners Identification
and Waiting Period Legislation in Illinois," (University of Illinois:
unpublished paper, 1985).
63. Sgt. R.G. Pepersack, Sr., Maryland State Police, Commander, Firearms
License Section, written testimony and oral questioning before United States
Senate Committee on the Judiciary, Subcommittee on the Constitution,
regarding S. 466, "Handgun Violence Prevention Act," June 16, 1987 (In 1986,
there were 20,704 applications, 1,102 initial disapprovals, 370 approvals
granted upon appeal, and 14 currently active cases involving an applicant who
had a conviction of a crime of violence, of which 5 or 6 had been selected
for prosecution for attempting an illegal purchase.)
64. Pepersack, p. 2 (of 471 appellants in 1986, 370 [78%] were ultimately
approved).
Because so many initial denials are overturned, it is misleading for
Handgun Control, Inc. to characterize the entire total of initial denials as
"people who were trying to purchase handguns illegally." "The Case for a
Waiting Period."
65. "The Case for a Waiting Period." Also, "Flagship Bill Introduced,"
_Washington Report_ (Handgun Control, Inc. newsletter), Spring 1987, p. 1.
66. From 1966 (when current controls were enacted) until June 1988, there
were 1,153,400 applications for either a permit to purchase a handgun or a
firearms identification card. Of those applications, 29,850 (2.5%) were
denied. According to reporter Eugene Kiley, of the _Bergen Record_, the state
police conducted a random survey of 507 applicants in 1985. Applying the
percentages from the 1985 survey to the data as a whole leads to the
following breakdowns for the denials:
Reason Percent Number
Criminal Record 29% 8,366
Falsifying Application 35% 10,097
Public Health, Safety & Welfare 20% 5,770
Mental or Alcoholic 7% 2,020
Insufficient Reason to issue 6% 1,731
In other words, the total denials for actual danger (8,366 criminal
record, plus 2,020 mental or alcoholic = 10,386) uncomfortably close to the
number of denials for patently arbitrary reasons (5,770 public health, plus
1,731 insufficient reason = 7,501). If the denials based on falsifying
application (10,097) are also considered arbitrary (since the category does
not include falsifications relating to criminal, mental, or alcoholic
ineligibility), the number of arbitrary denials significantly exceeds the
number of legitimate denials.
67. Ibid.
68. Statement of Robert F. Mackinnon, on behalf of the Coalition of New
Jersey Sportsmen, before the House Committee on the Judiciary, on Legislation
to Modify the 1968 Gun Control Act, part 2, serial no. 131, 99th Congress,
1st and 2d sess., Feb. 27, 1986 (Washington: Government Printing Office,
1987), p. 1418.
For example of the New Jersey law in operation, see W. Peter Haas,
Chairman, Public Safety Committee, Borough of Mountain Lakes, letter to
Police Chief Joseph Spinozzi, July 29, 1968 ("it is my opinion that you as
Chief of Police of our Borough deny any applications for any type for weapons
permits. You may accept the application and fully process that application to
the point of approval or disapproval, then disapprove and notify the
applicant of your decision and their recourse through the County Court ---
Article 4 Section 2A: 151-33 (d) ... authorizes the disapproval of any person
where the issuance would not be in the public interest or welfare. It is my
belief that it is not in the public interest to issue permits...")
69. Each application takes about four hours to process. Colonel Clinton
Pagano, testimony before the New Jersey Assembly Law and Public Safety
Committee, hearing on A. 594, February 1988. If one assumes that each man
hour costs the state of New Jersey ten dollars, the licensing system has cost
New Jersey $46,136,000. (The figure is in 1988 dollars, and based on the
figure of 1,153,400 total applications in 1966-88, cited in the previous
endnote.) There have been 10,386 denials based on criminal, mental,
or alcohol records (see previous endnote), and dividing the number into the
total dollar cost yields the cost per denial of $4,442.13.
70. The dealer must report the sale to local police within 6 hours. The
police have 48 hours to veto the sale, but in practice dealers generally wait
72 hours, to be sure to avoid liability for a sale in an ineligible person.
Weekends and holidays do not count for purposes of the 48 hour computation.
Police believe that the law requires all private transfers to be routed
through retail dealers, so that police can perform the check, but the
requirement, if it exists, is widely ignored.
All information regarding Pennsylvania comes from the author's August
28, 1990 telephone conversation with Ms. Sharon H. Crawford, head of the
state police firearms unit, in Harrisburg.
71. A good number of "hits" are based on felony convictions from many years
before, or on a conviction of aggravated assault, which some people
(negligently) do not realize is a disqualifying felony.
72. Task Force, p. 87.
73. Blackmon.
74. Task Force, p. 89.
75. In Virginia, 8 of 673 ineligibles (1.2%) were arrested. Handgun Control,
Inc., "The Case for a Waiting Period" (1990). See also the Maryland date
discussed above.
76. James Brady Fund-raising letter, p. 3: "Seven days to help police thwart
a purchase by a drug dealer."
77. As Sterling Johnson, New York City's former special narcotics prosecutor
acknowledged, "You either have to protect yourself with a gun or get out of
the (drug) business." Anthony M. DeStefano, "City Teens: Armed and
Dangerous," _New York Newsday_, Sept. 24, 1990, p. 30.
78. Blackmon.
79. "Killer Fraternized with Men in Army Fatigues," The Globe and Mail_,
December 9, 1989; "Killer's Letter Blames Feminists," The Globe and Mail,
December 9, 1989.
To be precise, Canada does not have a formal waiting period. In 1978,
Canada implemented a national law which required police permission for every
handgun purchase, and a one-time License (good for five years) for long gun
purchases. The license application requirement served, in effect, as a
waiting period for most first-time gun purchasers.
80. Blackmon.
81. James Brady Fund-raising letter.
82. Elisabeth Scarff, Decision Dynamics Corporation, _Evaluation of the
Canadian Gun Control Legislation_ (Ottawa: Canadian Government Publishing
Centre, 1983) (prepared for the Solicitor General of Canada), pp. 5, 29.
83. A study of Toronto indicated that the gun laws decreased firearms suicide
by men, but "the difference was
apparently offset by an increase in suicide by leaping." Charles L. Rich,
James G. Young, Richard C. Fowler, John Wagner, Nancy A. Black, "Guns and
Suicide: Possible Effects of Some Specific Legislation," _American Journal of
Psychiatry_, 147 (no. 3, March 1990), p. 342.
84. World Health Organization, _World Health Statistics_, 1984 (Geneva:
W.H.O., 1984), pp. 183, 189; United States Bureau of the Census, _Statistical
Abstract of the United States_, 1989 (Washington: Government Printing Office,
1989), p. 820.
85. "Legislature: Pass Handgun Law," Denver Post, January 24, 1975.
86. David Hardy, "Legal Restrictions on Firearms Ownership as an Answer to
Violent Crime: What Was the Question?" _Hamline Law Review_ 6 (July 1983):
404. It might be wondered if lives would be saved if homicidally enraged
husbands "cooled off" while driving around at night look for open firearms
dealers willing to sell to drunken and agitated customers, rather than
staying home and finding alternative weapons.
87. In a Detroit study, 75% of wives who shot and killed their husbands were
legally defending themselves or their children against illegal attacks. The
figure for Miami was 60%, and for Houston, 85.7%. "[W]hen women kill, their
victims are ... most typically men who have assaulted them." Martin Daly and
Margo Wilson, _Homicide_ (New York: Aldine, 1988), pp. 15, 200, 278.
Saunders, "When Battered Women Use Violence: Husband Abuse or
Self-Defense," _Violence and Victims_ 1 (1986), p. 49; Barnard et al, "Till
Death Do Us Part: A Study of Spouse Murder," _Bulletin of the American
Academy of Psych. and the Law_ 10 (1982): 271; Donald T. Lunde, _Murder and
Madness_ (San Francisco: San Francisco Book Co., 1976), p. 10 (in 85 % of
decedent-precipitated interspousal homicides, the wife kills an abusing
husband); E. Benedek, "Women and Homicide," in ed. Bruce Danto, _The Human
Side of Homicide (New York: Columbia, 1982).
It is sometimes suggested that the abused woman is to blame for not
leaving the relationship. Many women do leave, only to be followed and killed
by their former mate.
See generally Lenore E. Walker, _Terrifying Love: Why Battered Women
Kill and How Society Responds_ (New York: Harper and Row, 1989); Cynthia K.
Gillespie, _Justifiable Homicide: Battered Women, Self-Defense, and the Law_
(Columbus: Ohio State University Press, 1989).
88. Gary Kleck, _Guns and Violence_ (Hawthome, New York: Aldine, 1991,
forthcoming) chapter 8. The study of 1982 data Kleck reviewed is Ted
Mannelli, "Handgun Control," Report to the Executive Office of the Governor,
State of Florida (Tallahassee: University of Florida, 1982) (unpublished).
89. "Excerpts from Dinkins's Address: Mobilizing to Fight Crime," _New York
Times_, October 3, 1990, p. B2.
90. Eric Stenson, "Laws Limiting Access to Guns Putting Dent in NRA's Clout,"
Asbury Park Press, Aug. 5, 1990.
91. 54 Fed. Reg. 43532,
92. Task Force, p. 24.
93. For example, the Lakewood, Colorado, police chief defended the Pascoe
21-day comprehensive wait: "If we can save one life, it's worth it." Also,
Richard Boyd, President of Fraternal Order of Police, quoted in "Two Sides
Spiritedly Debate Bill on Gun-purchase Waiting Period," _The Capital Times_
(Madison, Wisc.), June 18, 1987; Rep. Edward Feighan (House sponsor of
waiting period), "Feighan Introduces Bill of Deter Criminals and Save Lives,"
Press Release, February 4, 1987 ("If this bill can save even one life, which
I know it can, Congress should act on it now."); Fraternal Order of Police:
"If the seven-day waiting period will save just one life - the life of a law
enforcement officer or a citizen - then [Congress's] work will be successful.
- quoted in Handgun Control, Inc., "Waiting Periods Work."
If the criteria for legislation is whether it will save a single life,
legislatures would also want to consider a ban on new private swimming pools
and on cigarette lighters, as well as a reduction of the speed limit to 15
m.p.h. There is of course no Constitutional right to swim or light fires or
drive at a particular speed; and pools, cigarette lighters, and cars are not
usually considered useful for self-defense. Cars kill many more people than
guns. Cigarette lighters cause more fatal accidents for children than do
guns. (In 1984, the number of accidental deaths from all types of guns for
children under the age of 5 was 34, while that same year 90 children aged 0-4
were killed by cigarette lighters. Centers for Disease Control, "Mortality
and Morbidity Weekly Report," March 11, 1988, p. 145; _Consumer's Research_,
May 1988, p. 34.)
94. Bureau of Alcohol, Tobacco and Firearms cited in Task Force on Felon
Identification System, _Report to the Attorney General on Systems for
Identifying Felons Who Attempt to Purchase Firearms_ (Washington: Department
of Justice, October 1989), p. 34 [hereinafter "Task Force].
The Task Force was chaired by Assistant Attorney General Richard B.
Abell, and included the Bureau of Alcohol, Tobacco and Firearms; the Bureau
of Justice Assistance; the Bureau of Justice Statistics; the Federal Bureau
of Investigation; the Immigration and Naturalization Service; the National
Institute of Justice; and the U.S. Marshals Service.
95. The current federal proposal applies only to retail handgun sales,
reducing the number of transactions the police have to check down to "only"
two and a half million. Since the anti-gun lobby has already pushed several
states to include long guns in the waiting period, and pushed California to
include even gifts between family members in the waiting period, it is
appropriate to consider cost estimates for waiting period schemes on the
ultimate system that will be implemented, rather than on what is proposed as
a "first step."
One way to reduce the number of required checks by the police would be
to exempt low-volume firearms dealers (50 or less sales per year) from the
required check. Most such dealers sell only to persons they already know
(such as members of their shooting club) and therefore, in effect, perform
their own background
check prior to sales.
The New York City system takes the equivalent of almost 100 full time
personnel. Research Associates Inc., A Preliminary Cost Analysis of Firearm
Control Programs_ (Silver Spring, Maryland: R.A.I., 1968), prepared for the
National Commission on the Causes and Prevention of Violence, pp. 23, 27-29.
In Washington, D.C. the firearms ballistic lab is so underfinanced that
it is nearly two years behind in providing ballistic analysis of firearms
used in crimes. Sari Horwitz, "Caseload Weighs Down D.C.'s Ballistics Lab,"
_Washington Post_, March 8, 1989. Given that Washington, D.C. spends more per
capita on
police than any other city in the United States, and given the utter failure
of the police department to meet even minimal standards in protecting public
safety, it is disheartening to see Washington, D.C.'s current police chief
spending his time lobbying for a national waiting period, which would impose
significant manpower and paperwork costs on other police departments.
96. The Department of Justice Task Force did not specifically analyze the
cost of a 7-day waiting period, since the Task Force found that such a wait
would be no more effective than an instant check. The Task Force did analyze
the cost of a Firearms Owner Identification card, under which a card good for
three years would be issued, allowing unlimited purchases after an initial
background check lasting 30 days. Since the FOID system would not require
repeated checks for the same person buying several guns, the FOID system
would likely cost significantly less than a waiting period. The Task Force
estimated the start-up cost of FOIDs at $148-153 Million, and the annual
operating costs at $136-161 million. Task Force, p. 106.
The cost estimate makes the assumption that most jurisdictions would
undertake the "voluntary" background check out of fear of being sued by HCI.
If the check were truly voluntary and most police departments declined to
perform it, the additional costs of the law would be small.
In any case, the total costs of the "Brady Bill" are nowhere near the
"billions" which the NRA cited as the upper cost range in its 1988 campaign
against the bill. A figure of billions would only be justified only by
combining the costs for several years of operation of the bill. A national
check on every gun transfer, retail and private, long gun and handgun, might
well cost billions. Even though the comprehensive billion-dollar check seems
be to the long-term goal of Handgun Control, Inc., there is no current
national proposal to that effect.
For an instant telephone check, the Virginia police had requested an $8
per transaction fee to cover costs. If costs in other jurisdictions are about
the same, a national check for retail handgun sales would cost about $20
million ($8 x 2.5 million sales). A national check on all gun transfers would
be about $60 million ($8 x. 7.5 million transfers).
97. The cost analysis improves if one assumes that in addition to leading to
the arrest of one criminal, the 10,000 background checks and cooling off
periods prevented several people without criminal records from obtaining guns
that they would have used in crime or a suicide attempt. See the discussion
in Part III for the expected very small size of those groups.
98. For example, David Seifman, "City's Latest Crime Shocker Fails to Stir
Mayor's Anger," _New York Post_, Sept. 5, 1990, p. 4; Donatella Lorch, "Girl
is Killed by Stray Bullet in Brooklyn," _New York Times_, Sept. 24, 1990, p.
A1 (Although the newspapers did not report that the gun involved as a "bad"
gun like a "Saturday
Night Special" or an "assault weapon," the Mayor stated: "Her death leaves me
grief stricken and outraged ... at the failure of our state and federal
governments to bring an end to the manufacture and distribution of these
tools of death."); "Excerpts from Dinkins's Address: Mobiizing to Fight
Crime," _New York Times_, Oct. 5, 1990, p. B2 (The speech concluded "we ache
for the protection that only a federal law can give us - the Brady Bill." He
implored New Yorkers to call U.S. House Speaker Foley to demand passage of
the "Brady Bill," "which could save thousands of lives in its first year,
including yours.")
99. N.T. "Pete" Shields, fund-raising letter for Handgun Legal Action Fund,
"confidential, Wednesday morning" (1988), pp. 2-3. See _Warren v. District of
Columbia_, 444 A.2d 1 (D.C. App. 1981). Unfortunately, after police
departments begin complying with the paperwork rules, citizens who are
victimized by crime will have no right to sue the police chiefs for putting
their officers behind a desk, instead of on anti-crime patrol.
100. Eileen Welsome, "Killing Spree Leads to Talk of Gun Control,"
_Albuquerque Tribune_, n.d; Shields, fund-raising letter (1988), p. 3.
101. "Background Checks Done Strictly by the Book," _San Diego Union_,
February 21, 1990 ("We have an archive where keep all those records,
alphabetized by the gun owners' names," said Entricon. [Justice Department
official]).
102. The 1991 version of the national police permission bill, H.R. 7,
explicitly states that it imposes no obligations on law enforcement
officials. SS (a)(2).
103. _Puerto Rico v. Branstad_, 483 U.S. 219 (1987).
Of course Congress could compel destruction of registration records if
it made a finding that gun registration violates the Second Amendment.
Congress has the power under the section five of the Fourteenth Amendment to
outlaw state violations of Constitutional rights. Logical consistency would
mandate that the registration ban apply to other state and local gun
registration as well.
104. Registration is routinely flouted. In Illinois, for example, a 1977
study showed that compliance with handgun registration was only about 25
percent. Donald B. Kates, "Handgun Control: Prohibition Revisited,"
_Inquiry_, December 5, 1977, p. 20, n. 1. Compliance with retroactive
registration of semiautomatics in Boston
and Denver has been about 1%. About 10% of California's 300,000 "assault
weapon" owners registered as required by law.
105. Registration lists facilitated gun confiscation in Greece, Ireland,
Jamaica, and Bermuda. B. Bruce-Briggs, "The Great American Gun War," _The
Public Interest_, (Fall 1976), p. 59; Kates, Why Handguns Bans Can't Work, p.
16.
The Washington, D.C., city council considered (but did not enact) a
proposal to use registration lists to confiscate all shotguns and handguns in
the city. When reminded that the registration plan had been enacted with the
explicit promise to gun owners that it would not be used for confiscation,
the confiscation's sponsor retorted, "Well, I never promised them anything!"
"Wilson's Gun Proposal," _Washington Star-News_, February 15, 1975, p. A 12;
Lawrence Francis, "Washington Report," Guns & Ammo, December 1976, p. 86.
The Evanston, Illinois, police department also attempted to use state
registration lists to enforce a gun ban. Paul Blackman, "Civil Liberties and
Gun-Law Enforcement: Some Implications of Expanding the Power of the Police
to Enforce a 'Liberal' Victimless Crime," Paper presented at the annual
meeting of the American Society of Criminology, Cincinnati, 1984, p. 14. In
1989, the Illinois Legislature considered a proposal to confiscate
semi-automatics, using the existing gun registration forms to find out where
to round up the guns.
When Illinois Firearms Owners Identification Cards were first issued,
persons with a felony conviction were eligible to possess a firearm if the
conviction was more than 5 years in the past. Later, the Illinois legislature
rectroactively changed the bar date to 20 years. Registered owners who had a
felony conviction
more than 5 years old and less than 20 had their guns confiscated. Since
there are always proposals to expand the class of prohibited persons (such as
barring all persons with even single misdemeanor drug or violent offense,
no matter how long ago), and always proposals to confiscate various
lawfully-acquired types of weapons, many gun-owners are leery of being placed
on any kind of government list -- even if they are in full compliance with
the (current) law.
For more on registration, see note 52 and accompanying text.
106. The Supreme Court has ruled that the Constitution prohibits the
government from registering purchasers of newspapers and magazines, even of
foreign Communist propaganda. _Lamont, DBA Basic Pamphlets v. Postmaster
General_, 381 U.S. 301 (1965). The U.S. Post Office intercepted "foreign
Communist propaganda" before delivery, and required addressees to sign a form
before receiving the items. The Court's narrow holding was based on the
principle that addressees should not have to go to the trouble of _filling
out a form to receive particular items of politically oriented mail. Since
the Post Office had stopped maintaining lists of propaganda recipients before
the case was heard, the Court did not specifically rule on the list-keeping
practices. One may infer that the Post Office threw away its lists because it
expected the Court would find them unconstitutional. See also _Thomas v.
Collins_, 323 U.S. 516 (1944) (registration of labor organizers).
107. 5 United States Code SS 552a(i)(1).
108. Carl Ingram, "Gun Law Forces Mental Hospitals to Name Patients," _Los
Angeles Times_, Feb. 7, 1991.
109. For example, Arlington, Virginia, requires handgun applicants to
"authorize a review and full disclosure of all arrest and medical psychiatric
records. Form 2020-63 (Form 4/88).
110. State of Illinois, Department of Public Safety, Firearm Owners
Identification Application, question 9, FOID-1.
111. State of New Jersey,"Application for Firearms Purchaser Identification
Card," form STS - 3 (rev. 9-1-79).
112. A number of studies have argued that former mental patients are no more
prone to commit violent crimes than is the public as a whole. U.S. Senate
Subcommittee on the Constitution, Judiciary Committee, "Hearings on the
Constitutional Rights of the Mentally Ill," 91st Congress, 1st & 2d sessions
(Washington: 1977), p. 277;
B. Ennis, _Prisoners of Psychiatry_ (1970), pp. vi, 225; G. Morris,
"Criminality and the Right to Treatment," in _The Mentally Ill and the Right
to Treatment" (1970), pp. 121-24; Livermore, Malmquist, & Meehl, "On the
Justifications for Civil Commitment," 117 _University of Pennsylvania Law
Review_ 75, 83 n.22 (1969), all cited in David T. Hardy & John _Stompoly, "Of
Arms and the Law," 51 _Chicago-Kent Law Review_ 62, 97 (1974).
Some studies have suggested that committal decisions are often unfair
and incorrect. A. Wiley, "Rights of the Mentally Ill," p. 11; Ennis, p. vii.
113. Rep. Marlenee, _Congressional Record_, Sept. 15, 1988, pp. H7643-44.
114. For several mouths in 1970, the F.B.I. ran out of funds to process state
requests for fingerprint checks. Some New Jersey chiefs of police stopped
processing firearms permit applications, and told gun applicants to sue in
court to obtain a license. J. Edgar Hoover, Director, Federal Bureau of
Investigation, Letter to All Fingerprint Contributors, May 21, 1970; Joseph
Santiago, "Chief Balks On Permits For Guns,- _The Record_, July 10, 1970;
John Spencer, "Registration of Guns Becomes Prohibition of Guns," letter to
the editor), _The
Record_, n.d. (written Aug. 27, 1970).
115. Testimony of Sergeant R.G. Pepersack, Md. St. Police Commander, Firearms
Lic. Sect., before Subcomm. on the Const., June 16, 1987.
116. Donald B. Kates, "On Reducing Violence or Liberty," _Civil Liberties
Review_, (American Civil Liberties Union) August/September 1976, p. 56.
117. Statement of Robert F. Mackinnon, on behalf of the Coalition of New
Jersey Sportsmen, before the House Committee on the Judiciary, on
_Legislation to Modify the 1968 Gun Control Act_, part 2, serial no. 131,
99th Congress, 1st and 2d sess., Feb. 27, 1986 (Washington D.C.: Government
Printing Office, 1987), p. 1418. According to the Department of Justice Task
Force, the typical delay in New Jersey is 6 to 10 weeks. Task Force, p. 84.
118. For a variety of cases of lawless enforcement of the gun laws, see
_Motley v. Kellogg_, 409 N.E.2d 1207 (Ind. App. 1980) (police chief "denied
members of the community the opportunity to obtain a gun permit and bear arms
for their self-defense"); _Schubert v. DeBard_, 398 N.E.2d 1339 (Ind. App.
1980) (police determination that self-defense did not constitute "good
reason" for gun permit voided by court); _Buffa v. Police Dept. of Suffolk
County_, 47 A.D.2d 841, 366 N.Y.S.2d 162 (2d Dept. 1975) (mere "withdrawal of
police approval" was insufficient grounds to revoke license); _Storace v.
Mariano_, 35 Conn. Sup. 28, 391 A.2d 1347, 1349 (1978) ("in my opinion, he is
an unsuitable person to carry a gun" was not a suitable reason for denying a
permit); _Salute v. Pitchess_, 61 Cal. App. 3d 557, 132 Cal. Rptr. 345, 347
(2d Dist. 1976) (sheriffs unilateral
determination "that only selected public officials can show good cause for a
permit" was illegal); _Schwanda v. Bonney_, 418 A.2d 163, 165 (Me. 1980)
(voiding police effort to impose criteria not based on statute); _Iley v.
Harris, 345 So.2d 336, 337 (Fla. 1977).
119. For some examples of the New York City Police Department's flagrant
abuse of the statutory licensing procedure, see: _Shapiro v. Cawley_, 46
A.D.2d 633, 634, 360 N.Y.S.2d 7, 8 (1st Dept. 1974) (ordering N.Y.C. Police
Department to abandon illegal policy of requiring applicants for on-premises
pistol license to demonstrate unique "need"); _Turner v. Codd_, 85 Misc. 2d
483, 484, 378 N.Y.S.2d 888, 889 (Special Term Part 1, N.Y. County, 1975)
(ordering N.Y.C. Police Department to obey _Shapiro_ decision); _Echtman v.
Codd_, no. 4062-76 (N.Y. County) (class action lawsuit which finally forced
Police Department to obey _Shapiro_ decision).
Also: _Bomer v. Murphy_, no. 14606-71 (N.Y. County) (to Compel
Department to issue blank application forms for target shooting licenses);
_Klapper v. Codd_, 78 Misc.2d 377, 356 N.Y.S.2d 431 (Sup. Ct., Spec. Term,
N.Y. Cty.) (overturning refusal to issue license because applicant had
changed jobs several times);
_Castelli v. Cawley_, New York Law Journal, March 19, 1974, p. 2, col. 2
(Applicant suffered from post-nasal drip, and repeatedly cleared his throat
during interview. His interviewer "diagnosed" a "nervous condition" and
rejected the application. An appeals court overturned the decision, noting
that the applicant's employment as a diamond cutter indicated "steady
nerves.")
120. Gary L. Wright, "Woman Won't Be Charged: Boyfriend's Slaying Ruled
Self-Defense," _Charlotte Observer_, October 3, 1990.
121. H.R. 7, SS (a)(1)(B).
122. Robert E. McSherly, Jr., letter to the Editor of _Orange County
Register_, reprinted in Gun Owner's ACTION Committee, _We The People_
(newsletter), September 1990, p. 7.
123. _United States v. Panter_, 688 F.2d 268, 271 (5th Cir. 1982).
124. Notably, many gun control activists do not consider self-defense
legitimate. The United Methodist Church, which founded the National Coalition
to Ban Handguns, and whose Washington office building also houses the NCBH,
declares that people should submit to rape and robbery rather than endanger
the criminal's life by
shooting him. Methodist Board of Church and Society, "Handguns in the United
States" (pamphlet); same statement in Rev. Brockway, "But the Bible Doesn't
Mention Pistols," _Engage-Social Action Forum_, May 1977, pp. 39-40. The
Presbyterian Church, another affiliate of the National Coalition to Ban
Handguns, supports a complete ban on handguns because it opposes "the killing
of anyone, anywhere, for any reason," including defense of others against a
life-threatening attack. Rev. Young, Director of Criminal Justice Program for
Presbyterian Church, testifying in 1985-6 Hearings on Legislation to Modify
the 1968 Gun Control Act, House Judiciary Committee, Subcommittee on Crime,
vol. 1, p. 128. The _Washington Post_ condemns "the need that some homeowners
and shopkeepers believe they have for weapons to defend themselves" as
representing "the worst instincts in the human character." Editorial, "Guns
and the Civilizing Process," _Washington Post_,
September 26, 1972.
125. See, for example, _Bowers v. DeVito_ 686 F.2d 616 (7th Cir. 1982) (no
federal Constitutional requirement that police provide protection);
_Calogrides v. Mobile_, 475 So. 2d 560 (Ala. 1985); Cal. Govt. Code SSSS 845
(no liability for failure to provide police protection) and 846 (no liability
for failure to arrest or to retain arrested person in custody); _Davidson v.
Westminster_, 32 Cal.3d 197, 185 Cal. Rep. 252; 649 P.2d 894 (1982); _Stone
v. State_ 106 Cal.App.3d 924, 165 Cal. Rep. 339 (1980); _Morgan v. District
of Columbia_, 468 A.2d 1306 (D.C.App. 1983); _Warren v. District of
Columbia_, 444 A.2d 1 (D.C. App 1981); _Sapp v. Tallahassee_, 348 So.2d 363
(Fla. App. 1st Dist.), _cert. denied_ 354 So.2d 985 (Fla. 1977); Ill. Rev.
Stat. 4-102; _Keane v. Chicago_, 98 Ill. App.2d 460, 240 N.E.2d 321 (1st
Dist. 1968); _Jamison v. Chicago_, 48 Ill. App. 3d 567 (1st Dist. 1977);
_Simpson's Food Fair v. Evansville_, 272 N.E.2d 871 (Ind. App.); _Silver v.
Minneapolis_ 170 N.W.2d 206 (Minn. 1969); _Wuetrich v. Delia, 155 _N.J.
Super. 324, 326, 382 A.2d 929, 930, _certif. denied_ 77 N.J. 486, 391 A.2d
500 (1978); _Chapman v. Philadelphia_, 290 Pa. Super. 281, 434 A.2d 753
(Penn. 1981); _Morris v. Musser, 84 Pa. Cmwth. 170, 478 A.2d 937 (1984).
The law in New York remains as decided by the Court of Appeals the 1959
case _Riss v. New York_: the government is not liable even for a grossly
negligent failure to protect a crime victim. In the _Riss_ case, a young
woman telephoned the police and begged for help because her ex-boyfriend had
repeatedly threatened
"If I can't have you, no one else will have you, and when I get through with
you, no-one else will want you." The day after she had pleaded for police
protection, the ex-boyfriend threw lye in her face, blinding her in one eye,
severely damaging the other, and permanently scarring her features. "What
makes the City's position
particularly difficult to understand," wrote a dissenting opinion, "is that,
in conformity to the dictates of the law, Linda did not carry any weapon for
self-defense. Thus, by a rather bitter irony she was required to rely for
protection on the City of New York which now denies all responsibility to
her." _Riss v. New York_, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 806
(1958).
Ruth Brunell called the police on 20 different occasions to beg for
protection from her husband. He was arrested only one time. One evening Mr.
Brunell telephoned his wife and told he was coming over to kill her. When she
called the police, they refused her request that they come to protect her.
They told her to call back when he got there. Mr. Brunell stabbed his wife to
death before she could call the police to them that he was there. The court
held that the San Jose police were not liable for ignoring Mrs. Brunell's
pleas for help.
_Hartzler v. City of San Jose_, 46 Cal. App. 3d 6 (1st Dist. 1975). The year
after winning the _Hartzler_ case, the San Jose government appointed Joseph
McNamara Police Chief. Chief McNamara has since become the leading police
spokesman for HCI.
126. The 1/3 figure comes from the author's conversation with Ms. Sherman,
head of the Pennsylvania state police firearms unit, cited above. Part of the
1/3 drop-off may be caused by people who are disqualified by the local police
background check, but (based on data from other states) ineligible buyers
only account for, at most, a few percent of buyers. The rest of the 1/3
drop-off, therefore, is best explained by buyers changing their mind, as
would buyers of virtually every product, if forced to make two trips for a
single purchase.
127. Research Associates, Inc., p. 34 (A firearms control program that
substantially reduced gun sales would result in a tax revenue loss, in 1968
dollars, of over one hundred million dollars.)
128. Gary Kleck, "The Relationship Between Gun Ownership Levels and Rates of
Violence in the United States," in ed. _Donald B. Kates _Firearnu and
Violence: Issues of Public Policy_ (Cambridge, Mass.: Bailinger, 1984):
99-132.
129. Task Force Draft, 54 Federal Register 43528, Oct. 25, 1989.
130. Task Force, p. 10.
131. Eleven states do not have automated records. Ten other states have less
than 65% of their records automated. Task Force, p. 8.
132. "Testimony of Gary L. Bush Chairman, Search Group, Inc., Before the
Subcommittee on Crime of the House Judiciary Committee," January 25, 1990,
p. 14.
133. _Hammons v. Scott_, 423 F. Supp. 618 (N.D. Cal. 1976); _Rowlett v.
Fairfax_, 446 F. Supp. 186 (W.D. Mo. 1978).
134. See the National Association of Chiefs of Police surveys discussed in
Part II.A above. See also the testimony of David Hall, undersheriff of Lake
County, Florida:
Q. Can't you do one in seven days? Would you be able to do it?
Hall: It would be a very cursory check.
Q: Would you be satisfied with that kind of check ... ?
Hall: No, sir, I personally wouldn't feel comfortable with it.
State of Florida, Commission on Assault Weapons, _Report_ (May 18, 1990),
transcript of hearings on February 5, 1990, p. 9.
135. 54 Fed. Reg. 43545.
136. The figure is based on the BATF estimate of 7.5 million firearms
transactions per year, and the Task Force estimate of an initial "hit" rate
of 12 to 16% of applicants.
137. Task Force, p. 15.
138. Rep. Dan Lungren, _Congressional Record_, Sept. 15, 1988.
139. As Josh Sugarman, former communications director for the Coalition
Against Gun Violence, wrote in the _Washington Monthly_: "handgun controls do
little to stop criminals from obtaining handguns." Josh Sugarman, "The NRA Is
Right: But We Still Need to Ban Handguns," _Washington Monthly_. Sugarman
authored the November 1988 strategy memo suggesting that the press and the
public had lost interest in handgun control. He counseled the anti-gun lobby
to switch to the "assault weapon" issue, which the lobby did with
spectacular success in 1989.
140. National Coalition to Ban Handguns, "Twenty Questions and Answers" (no
date), question 8 ("Banning 'Saturday Night Specials' would be a useful first
step towards an ultimate solution.")
141. The author was a member of the panel that questioned the two debaters.
142. Founding Chair Pete Shields explained his strategy for prohibition: "The
first problem is to slow down the number of handguns being produced and sold
in this country. The second problem is to get handguns registered. The final
problem is to make possession of all handguns and all handgun ammunition --
except for the military, police, licensed security guards, licensed sporting
clubs, and licensed gun collectors -- totally illegal." Richard Harris, "A
Reporter at Large: Handguns," _New Yorker_, July 26, 1976, p. 58.
143. Handgun Control, Inc. has supported bills like the Russo bill in New
Jersey to outlaw all handgun sales or transfers, and require that handguns be
handed over to the police upon the death of their owner. HCI endorses the
laws in Chicago and Washington, D.C. which prohibit the lawful acquisition of
handguns. Handgun Control, Inc., "Fact Card." District of Columbia Code SSSS
6-2132(4) and 6-2372.
144. Rep. Trafficant, _Congressional Record_, Sept 15, 1988, p. H7644.
145. See note 142.
146. H.R. 7, SSSS (a)(1)(A)Cii)(I) (a sale may proceed only if "the
transferor has received written verification that the chief law enforcement
officer has received the statement"); (a)(2) ("Paragraph (1) shall not be
interpreted to require any action by a chief law enforcement which is not
otherwise required."); (b) ("The term 'handgun' means - (A) a firearm which
has a short stock and is designed to be held and fired by the use of a single
hand"). The HCI handgun definition could be read to apply to rifles or
shotgun that have folding stocks and extended pistol grips.
147. See note 142. "And most importantly, you've helped us hurt the NRA and
its friends in the handgun industry in the wallet, where it counts - and a
10-year low in new handgun sales proves it!" Sarah Brady, Fund-raising letter
for Handgun Control, Inc., "Monday" (1988), p. 2.
148. Representative Hughes of New Jersey, a prime sponsor of the waiting
period, calls himself a sportsman, and claims to protect "the privilege of
owning weapons in this country." Congressional Record_, Sept. 15, 1988, p.
H7654. Of course what makes this country different from other countries is
that gun ownership is an explicit right, not a privilege.
149. Speaking before a New York University Law School audience, Justice Black
said: "Although the Supreme Court has held the Amendment to include only arms
necessary to a well-regulated militia, as so construed, its prohibition is
absolute." Hugo L. Black, "The Bill of Rights," 35 New York University Law
Review 865, 873 (1960).
In _United States v. Miller_, the Court held that only arms useful to a
well-regulated militia were protected by the Second Amendment. Seeing no
military utility to a sawed-off shotgun, the Court upheld a strict federal
licensing system.
As for the meaning of "a well-regulated Militia," the Court noted that
to the authors of the Second Amendment, "The Militia comprised all males
physically capable of acting in concert for the common defense. ...
Ordinarily when called for service these men were expected to appear bearing
arms supplied by themselves and of the kind in common use at the time" 307
U.S. 174, 179 (1939).
150. Amendment 1: "Congress shall make no law respecting and establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the government for a redress of grievances."
Amendment II: "A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be
infringed."
Amendment III: "No Soldier shall, in time of peace be quartered in any
house, without the consent of the Owner, nor in time of war, but in a manner
to be prescribed by law."
The third Amendment, having hardly ever been breached, has developed
little case law.
151. In _United States v. Verdugo-Urquidez_, The Court ruled that the Fourth
Amendment "right of the people to be secure in their persons, houses, papers,
and effects" applied to the same group protected by the Second Amendment
"right of the people to keep and bear arms" and the First Amendment "right of
the people peaceably to assemble." In every case, said the Court, the "right
of the people" refers to individual citizens of the United States. 110 S.Ct.
1056, 108 L.Ed. 2d 222 (1990).
In _Konigsberg v. State Bar of California_, the Court rejected Justice
Black's absolutist approach to Constitutional interpretation. The Court noted
that the First Amendment on its face was absolute, and the Second Amendment
contained an "equally unqualified command." Nevertheless, both Amendments
were subject to reasonable limitations. 363 U.S. 36, 51 n. 24 (1961).
152. "Each establishes a norm of conduct which the Federal Government is
bound to honor -- to no greater or less extent than any other inscribed in
the Constitution. Moreover, we know of no principled basis on which to create
a hierarchy of Constitutional values..." _Valley Forge Christian College v.
Americans United For Separation of Church and State, Inc._, 454 U.S. 464, 484
(1982).
See also _Ullman v. United States_, 350 U.S. 422, 426-29 (1956): "As no
constitutional guarantee enjoys preference, so none should suffer
subordination or deletion...To view a particular provision of the Bill of
Rights with disfavor inevitably results in a constricted application of it.
This is to disrespect the Constitution."
153. _Byars v. United States_, 273 U.S. 2_8, 32 (1927); _Fairbank v. United
States_, 181 U.S. 283 (1901).
154. _New York Times v. United States_ 403 U.S. 713, 714 (1971);
_Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); _Bantam
Books v. Sullivan_, 372 U.S. 58, 79 (1963); _Near v. Minnesota_, 283 U.S.
697, 716 (1931) ("Liberty of the press has meant principally, although not
exclusively, immunity from prior
restraint or censorship.")
155. Rep. Bosco derides the quaint notion that "gun purchasers in America
should be considered innocent until they prove themselves guilty."
_Congressional Record_, Sept 15, 1988, P. H7651.
156. The right to bear arms obviously includes the right to purchase them,
just as the right to free speech includes the right to purchase printed
matter.
157. _Shelton v. Tucker_, 364 U.S. 479, 488 (1960). See also _Schneider v.
State_, 308 U.S. 147, 161, 165 (1939); _American Communications Association
v. Douds_ 339 U.S. 382 (1950); _Louisiana ex rel. Gremillion v. NAACP_, 366
U.S. 293 (1961); _NAACP v. Alabama_, 377 U.S. 288, 307-8 (1963); _Talley v.
California_, 362
U.S. 60 (1960); _Dean Milk v. Madison_, 340 U.S. 349 (1951).
158. "[T]he legitimate governmental purpose in regulating the right to bear
arms cannot be pursued by means that broadly stifle the exercise of this
right where the governmental purpose can be more narrowly achieved." _State
ex rel. Princeton v. _Buckner, 377 S.E.2d 139, 144 (W.Va. 1988). See also
_City of Lakewood v. Pillow_, 180 Colo. 20, 501 P.2d 744, 745 (Colo. 1972)
(voiding ban on gun sales within city limits and a requirement that persons
carrying firearms be licensed: "Even though the governmental purpose may be
legitimate and substantial, that purpose cannot be pursued by means that
broadly stifle fundamental personal liberties when the end can be more
narrowly achieved.")
159. Some states with a license system are Indiana (license for handguas
valid for 4 years); Iowa (handguns, 1 year); Massachusetts (all guns,
lifetime); Minnesota (handguns, 1 year).
160. Pennsylvania runs a state records check after the person picks up the
handgun following a 48 hour wait. Task Force, pp. 82-83.
161. Task Force, p. 83.
162. Rep. Kennelly, _Congressional Record_, Sept. 15, 1988, p. H7650.
163. The states with waiting periods for each handgun purchase are listed
below. In some cases, the time period is not a minimum waiting period, but
the maximum time the police are allowed to process an application for a
permit to purchase a handgun [the time limits are not always observed, see
Parts IV and V above]:
Alabama (2 days); California (all guns, 15 days); Connecticut (all guns, 14
days); Hawaii (handguns, 15 days); Maryland (handguns and "assault weapons,"
7 days); Michigan (handguns); Missouri (handguns, must issue within 7 days);
New Jersey (all guns, 30 days); New York (handguns, 180 days); North Carolina
(handguns, 30 days); Oregon (handguns, 15 days); Pennsylvania (handguns, 2
days); Rhode Island (all guns, 7 days); South Dakota (handguns, 2 days);
Tennessee (handguns, 15 days); Washington (handguns, 5 days); Wisconsin
(handguns, 2 days). _Identifying Persons, Other Than Felons_, p. 114,
exhibit B.4 (and updated to account for 1990 changes in state laws).
164. California and Rhode Island in 1990. Maryland extended its wait to
"assault weapons" in 1989.
165. "At close range, the shotgun is the most formidable and destructive of
all arms ... Unlike bullets, shotgun pellets rarely exit the body. Therefore,
the kinetic energy of wounding in shotguns is usually equal to the striking
energy... all the kinetic energy is transferred to the body as wounding
effects." Vincent J.M. DiMaio, _Gunshot Wounds: Practical Aspects of
Firearms, Ballistics, and Forensic Techniques_ (New York: Elsevier, 1985),
pp. 182-83.
"Shotgun injuries have not been compared with other bullet wounds of the
abdomen as they are a thing apart... [A]t close range, they are as deadly as
a cannon." R. Taylor, "Gunshot Wounds of the Abdomen," _Annals of Surgery_
177 (1973): 174-75.
166. The lead sponsors are Rep. Feighan in the House and Sen. Metzenbaum in
the Senate.
167. Forty-one states have some form of preemption. Of the 41, 36 are by
statute, and 5 by judicial decree. Some of the preemption states (such as
Massachesetts) allow local gun controls if the state legislature approves
them; some other preemption states (such as Massachussetts) allow local gun
controls if the state legislature approves them; some other preemption states
(like Virginia) have grandfathered in reflective local ordinances.
168. Rep. Hoyer (Maryland), _Congressional Record_, Sept. 15, 1988, p. H7640.
169. _Kentucky v. Dennison_, 65 U.S. (24 How.) 66, 107-8 (1860) (state
official's refusal to deliver escaped slave under federal Fugitive Slave
Act).
170. The Tenth Amendment reserves state authority regarding powers not
delegated the federal government: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people."
171. Members of the Police Executive Research Forum (a think-tank for major
urban police chiefs) supported an instant check over a firearms license card
by a margin of 49% to 46%. Task Force, p. 113; Police Executive Research
Forum, Comments on Justice Department"s "Draft Report on Systems for
Identifying Felons Who Attempt to Purchase Firearms,- July 26, 1989, p. 2.
172. The Attorney General of the United States insists that any verification
system for firearms purchasers be at the point of sale, without further
delays; he reasons that any check that would be significantly more accurate
would take a month, and "Such a delay would impose an unreasonable burden on
legitimate gun purchasers." Richard Thornburgh, Attorney General, Letter to
Dan Quayle, November 20, 1989, p. 2; _Identifying Persons, Other than
Felons_, p. 91.
173. In Florida, where an instant check began a few weeks before the
publication date of this monograph, a man was denied the right to purchase
because the police computer located a 10-year-old outstanding bench warrant-
The warrant turned out to be for a lawsuit involving a bad check; the man had
never even been told
that a lawsuit had been filed against him.
174. "U.S.'s Barriers to Employment Are Not Stopping the Influx", _New York
Times_, October 9, 1989, p. A13 (quoting I.N.S. assistant district director
for investigation for Los Angeles. Several illegal workers said that a good
set of papers cost $300.)
175. 54 Fed. Reg. 43537.
176. Task Force, p. 40.
177. Task Force, p. 39.
178. 54 Fed. Reg. 43546.
179. Handgun Control, Inc., letter to Walter Barbee, Office of the Assistant
Attorney General, July 26, 1989.
180. Comments to the Task Force.
181. Comments to the Task Force.
182. 54 Fed. Reg. 43530.
183. William S. Sessions, FBI Director, "The FBI and the Challenges of the
21st Century," _FBI Law Enforcement Bulletin_, January 1989, p. 3 (near-term
feasibility of instant fingerprint readers in police cars).
184. People without driver's licenses or other official identification might
face delays if such a card were mandatory for a purchase. Currently firearms
dealers may sell to someone whose identity they have verified, and
verification may include personal knowledge. Currently, a small dealer can
sell to a friend even if the friend does not present official identification,
since the dealer knows the purchaser's bona fides based on personal
knowledge.
185. National Rifle Association, "Comments of the National Rifle Association
of America, Inc. on Draft Report for Identifying Felons Who Attempt to
Purchase Firearms," (July 26 1989), p. 30.
186. In _Schneider v. State_, 308 U.S. 147, 164 (1939), the Court voided a
New Jersey law requiring pamphieteers to undergo a "burdensome and
inquisitorial examination, including photographing and fingerprinting." New
Jersey, noted for its disdain of Second Amendment rights, apparently needs to
be repeatedly reminded to obey the First Amendment as well. Despite the plain
language of _Schneider_, a New Jersey township enacted a law requiring
political canvassers to be fingerprinted. A federal appeals court found the
fingerprinting, "stigmatizing, and an inappropriate burden on their right to
do political work." _New Jersey Citizen Action v. Edison Township_, 797 F.2d
1250, 1262-65 (3d Cir. 1986), _cert. denied_, 479 U.S. 1103 (1987).
187. As the Task Force explained, "the biometric card does not solve the
problem of individuals using fraudulent "breeder" documents, such as birth
certificates, to obtain the biometric ID card."
188. Wright & Rossi. 191.
The "McClure-Volkmer" firearms law reform in 1986 enhanced penalties for
gun transfers to felons. 18 United States Code SS 922(d).
189. Virginia Code SS 18.2.-108.1 (1988).
190. The measure would be Constitutional according to the principles of _Paul
v. Davis_, 424 U.S. 693 (1976) (distribution of names and photos of "active
shoplifters" to retail stores).
191. 18 United States Code SS 3013.
192. _United States v. Cruikshank_, 343 U.S. 542, 551-53 (1876). The Court
stated that the rights to peaceably assemble and to keep and bear arms were
not created by the Constitution, but merely recognized in the document Those
rights, the Court said, were not dependent on the Constitution for their
existence, but were found "wherever civilization exists."
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Larry Cipriani -- [l v cipriani] at [att.com] or attmail!lcipriani