Semi-closing the private sale loophole in the Brady Law

Update I’ll discuss this with John Hockenberry on The Takeaway (PRI/WNYC) Tuesday morning at 9:15 EST.

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BBC5 called me today – instead of calling someone who really understands either law or gun issues – to comment on the President’s about-to-be-issued proposal to make it harder to get a gun without going through a background check. (Clip here, starting about 1:18:30.) After I finished scrambling to figure things out, the story actually looked interesting, so here it is.

1. You can buy a gun in the U.S. unless you’re disqualified: by age, by a felony conviction or a domestic violence restraining order, or by a court commitment for mental incapacity or mental illness.

2. If you’re “engaged in the business” of selling firearms (that’s the statutory language), you need a license fom the Bureau of Alcohol, Tobacco, Firearms, and Explosives (still referred to as “ATF.” That makes you a “federal firearms licensee,” or FFL.

3. If you’re an FFL, anyone who wants to buy a gun from you must fill out a form and show identification, and you have to run that information through an FBI website called the National Instant Criminal Background Check System. If the background check shows that the would-be purchaser is ineligible, you can’t sell him a gun.

4. However, anyone is allowed to sell guns from his or her “private collection” without registering as an FFL. Such “private-party sales” do not require background checks. Many such transactions take place at gun shows; the exemption of private sales from background checks is often, though inaccurately, called the “gun show loophole.”

5. As far as I can tell, there is no published estimate of what fraction of guns used to commit crimes were privately purchased by ineligible buyers (as opposed to being legally purchased, stolen, or bought by an eligible purchaser and then illegally resold to an ineligible one). Data from the crime-gun tracing system would support such an estimate, but Congress has forbidden the Centers for Disease Control from doing such studies. (Phil Cook and colleagues surveyed prisoners in the Cook County jail; gun shows didn’t appear to be a significant source of guns for them.)

6. The statute doesn’t further define what it means to be “engaged in the business.” That definition exrists in ATF regulations, and is far from clear. If you have a storefront or buy at wholesale from manufacturers, you’re clearly “engaged in the business.” Otherwise, there’s no limit on how many guns you can sell or how much money you can earn as an unlicensed private gun seller.

7. The President proposed some time ago to eliminate the private-sale exemption and require that all gun transfers go through background checks (which FFL’s could provide on a fee-for-service basis). That policy, which used to be the official position of the NRA, has massive (approximately 90%) public support. But it now has the fervent opposition of the gun lobby, and is going nowhere in Congress.

8. Now the President plans (as Hillary Clinton had previously proposed) to tighten the definition of what it means to be “engaged in the business” of firearm sales, in order to require those who habitually buy and sell guns to get federal firearms licenses even if they don’t have storefronts. As FFLs, they would have the same obligation to do background checks that gun store owners now have. It’s not clear yet whether the new definition will be based on number of transaction, number of weapons, amount of revenue, duration in business, promotional activity (such as renting space at a gun show or swap meet or putting up an internet posting (e.g., eBay or Craigslist) or some formula involving several of those and perhaps other factors.

9. Since the current definition is a regulation, it can be changed without legislative action, but it still has to go through the process laid out in the Administrative Procedures Act: publication in the Federal Register of a Notice of Proposed Rulemaking, a sixty-day period for public comment, review of those comments by ATF, publication of a Final Rule, and (inevitably) a series of court challenges.

10. The general rule (laid down in Chevron v. NRDC) is that the courts will defer to administrative discretion as long as the rule embodies “a permissible construction of the statute.” That principle – plus the fact that the DC Circuit is no longer stacked with Republicans – ought to give the rule a good chance of being upheld. Whether the courts will put a hold on implementation of the new definition while the process drags on, or instead allow it to take effect at once, is harder to predict.

11. Congress can try to stymie the change in various ways, including putting a “no-funds” rider on an appropriations bill forbidding ATF to spend money on this specific rulemaking. So expect some political drama.

Substantively, making it a little bit harder for people with felony record to illegally arm themselves seems like a good idea, though it’s impossible to say how many shootings it would prevent. It wouldn’t do much about accidents, but you’d expect it to prevent some homicides and suicides. Politically, it seems extremely astute of the President to force the issue on the single gun-related question where the gun-control position enjoys the highest level of public support.

Update Garen Wintemute of UC Davis provides some data and analysis.

“Defensive gun use” in practice

Since when seconds count the police are minutes away, a brave and self-reliant West Virginia homeowner engaged in the sort of defensive gun use that proves the value of an armed citizenry. Seeing two strangers breaking into his shed, he acted like a real American and blew the perps away with a scoped rifle. (Remember, the best form of gun control is a steady aim.) He then called the police to report his heroic deed.

Alas for Rodney Bruce Black (and the two DOAs) he was – like Rick when he went to Casablanca to take the waters – misinformed. The shed was not, in fact, on Black’s property, but on the property the two dead men had just purchased. So now we have two corpses and one man in jail for murder.

Three queries for lawyers:

1) To what extent does the right to use deadly force to defend one’s home extend to out-buildings?

2) Am I correct in thinking that, for a householder dealing with an intruder, there is no legal obligation to make a verbal challenge before shooting?

3) Mistake of law is, of course, no defense. But mistake of fact is. Assuming what appears to be true – that Black had a good-faith, though mistaken, belief that he was defending his property – can he offer that as a defense and try to get what looks as if it will be a second-degree murder charge (though the news story reports that the arrest charge was first-degree, which doesn’t seem right in the absence of premeditation) broken down to manslaughter?

A new kind of arms race with the NRA

We need innovative strategies for gun policy–not (merely) new policy ideas, but new strategies to change the political dynamic to engage the silent majority more effectively on this issue. Over at CNN.com. my University of Chicago colleagues Ethan Bueno de Mesquita and Jens Ludwig offer an intriguing suggestion.

A key challenge for gun policy reflects the asymmetric passions of the two sides. The National Rifle Association and its allies hold unpopular views in the country at-large. Yet they want it more. They are more passionate, more organized, and more focused on promoting their agenda than the majority of Americans who oppose them. Link that with our legislative structures that magnify the influence of rural areas most likely to hold pro-NRA views, and you see where this is going.

Right now, because of Newtown and related atrocities, there is a window of opportunity for people who feel passionately on the other side. Yet we all know that this window of opportunity may quickly close. The public spotlight and the newspaper headlines will soon move to the debt ceiling or other matters. Americans will still be sad and angry about the continuing toll of gun violence. Yet these feelings are unlikely to translate into effective legislative action.

durbin presser

Unless that is, the more liberal side on gun policy finds new innovative strategies.

Over at CNN.com. my University of Chicago colleagues Ethan Bueno de Mesquita and Jens Ludwig offer an intriguing suggestion:

The key for gun control proponents is to figure out how to turn people’s willingness to take a single action in a moment into an effortless and sustainable long-term commitment.

Here’s one way to defeat the NRA: Ask people who are upset about this recent shooting to go online and sign up for automatic, monthly deductions to a fund devoted to breaking the grip of the NRA.

For every dollar the NRA spends in helping a political candidate, this new fund would spend $2 to help the opponent (whether in a primary race or general election). Many politicians are currently afraid that opposing the NRA would lead the organization to stop providing their campaigns with either cash contributions or in-kind support (such as advertisements and other forms of advocacy). Creating a fund that guaranteed a two-to-one match of NRA support — but for the other side, ideally who supports stronger gun control — would weaken the NRA’s political clout.

And how much should gun control proponents ask people to pledge? According to the Center for Responsive Politics, the NRA spent about $20 million on political activities in the 2012 election cycle; including a little more than $1 million on direct campaign contributions and around $8.5 million on independent campaigns in support of congressional candidates.

Will this work? I don’t know. There is a static quality to their analysis that bears watching. If liberal groups go head-to-head with the NRA, conservatives are sure to follow. A different kind of arms race may well ensue.

I hope Michael Bloomberg, George Soros, or some similar wealthy gun control advocate takes this seriously. Much conventional political conversation reflects the conventional wisdom of the 1990s: Gun control is simply too toxic. That may be an outdated view…. Continue reading “A new kind of arms race with the NRA”