Want a common sense reform: do something else!

Highlights:

  • Stop the attempts to incrementally limit guns for everyone and focus on the right populations
  • Realize why these legislative attempts fail to adequately address the concerns of people on all sides of the debate
  • Proposed steps to make it easier for law abiding citizens to purchase firearms
  • Proposed restrictions to make it easier to prevent prohibited persons from easily purchasing weapons

After every mass shooting, there’s a call for some kind of reform. Typically, it’s mandatory background checkssecret lists or bans on certain firearms and now there has been a lot of talk about a proposal to start using secret lists created by unaccountable bureaucracies that deny due process, all in the name of safety and security. If we are going to open this conversation for reform up again, let’s not blow it by doing what we’ve done and expecting a different result.

I have watched both sides in the “debate” try to explain their positions, with very little willingness to agree on, well, anything. Some of this is because of a lack of knowledge of culture and terminology – if you don’t understand the terms of the debate, it can be infuriating when you call for a ban or restrictions on something that won’t actually make any difference or something far beyond what you actual mean to say. Let’s say your solution is a ban on “Assault Rifles”? Imagine someone calling for a ban on “attack dogs” after a pit bull is reported to have mauled someone. When someone asks, what is an assault weapon, they aren’t (merely) being snarky, they are asking the equivalent of “what is an attack dog”?

Details matter.

Perhaps the worst problem is the call for “common sense” proposals which tend to favor some kind of an incrementalist approach.

The simple logic behind the incrementalist approach is exactly what Mencken¹ warned us about. It goes something like this: If we can reduce the number of guns that flow into the hands of the public, some of those guns will not make their way to violent actors and lives will be saved. It’s a simple solution to a complex problem and people love simple solutions. I suppose by the same logic, stopping and frisking everyone on the street can also save lives, but disregarding the dubious constitutionality, we have seen that the approach has significant drawbacks and might not be making us any safer. Perhaps it’s time to learn from our mistakes?

There’s a palpable sense of frustration by many in the “we need common sense gun control” crowd that feel the pro-gun crowd won’t compromise on any laws. After seeing how current laws are enforced, I can’t blame people for a knee-jerk reaction against new laws. But, what if we could simultaneously make it easier to allow law abiding citizens to buy guns while making it more difficult for those not permitted to get them? Wouldn’t that seem to be a worthy compromise?

When polls show that over 90% of Americans favor background checks on all firearms, one can be forgiven if they are perplexed as to why such bills as the Manchin-Toomey amendment fail every single time that they are proposed. To understand why these compromise measures seem to keep on failing, you need to first understand the chief factors that derail gun control legislation.

The top reasons have to do with:

  • A belief that the government is going to use the new law to create a list or directory of who has arms.
  • A ban on certain types of weapons and / or confiscation
  • Taxes on law abiding owners and programs which create excess costs for firearms

It’s equally important (perhaps more so) to know something about the topic at hand. You simply cannot talk productively about guns without knowing the basics of function and terminology. Laws hinge on terms and definitions. If you want a law to be successful at solving a problem, knowing what the problem is and what the solution will do are crucial. By not understanding terms and definitions, you might be advocating for far more restrictive measures than you actually want, causing unnecessary backlash and eventual failure. I spoke with someone that seemed to hold pretty radical views on gun control until I realized that they didn’t know that the “AR” in AR-15 stood for Armalite (the company that developed it) and not “assault rifle”. Turns out that it dramatically changed his argument and what he thought was going to be banned. That little bit of knowledge made the conversation much better. Ignorance doesn’t help anything.

So if we aren’t going to go with an incrementalist approach of stopping as many guns as possible (in the hopes it does affects some of the people that commit violent crime), how about a more targeted response?

There’s a set of options that both sides could agree on and having sat in the middle talking about options with people on both sides, I’d like to share it and get your opinion.

Background checks (bear with me)

common argument says that background checks won’t work because criminals don’t follow laws and such legislation will add layers, not to mention costs to the already overburdened system of NICS (National Instant background Check System). They also complain about the ability of Government to have a list of guns, a veritable registry in order to confiscate them.

All three of the problems listed above are a road map to failure. Why can’t we implement a system for background checks that doesn’t have those problems?

If there was a way to make background checks cheaper, faster and more accurate, would you, the gun owner, be ok with it? What if there was no possibility of a registry, would you, the gun owner, be ok with that?

Before I go into the details, it may be helpful to understand how the current system works in order to see if a “different” system would be an improvement.

Where background check are currently required, you appear before a Federally Licensed Firearms Dealer (an FFL) and fill out the form 4473. They run into the back and call up NICS (they literally call unless your State provides a Point of Contact) and assuming you are permitted to purchase a firearm, you get an instant approval and the sale commences. This varies dramatically from how some private sales may work.

Let’s take the case of NJ (which is known for some fairly strong gun control provisions): In order to sell a handgun, you must go through an FFL using the procedure outlined above, but long guns may be sold through private sales. The seller asks the buyer to see proof he is able to purchase a firearm (namely that they have a Firearms ID Card) and there’s a form they fill out that isn’t actual submitted to anyone. Want to make sure that you aren’t selling a gun to a felon? Sorry, NJ won’t allow you to check if the FID card is valid and the Feds won’t let you run a NICS check.

Here is my proposal for universal background checks:

  • An online background check system (think eVerify, but for prohibited buyers)
  • No registration of firearms
  • Requirement for sellers to print and keep confirmation
  • Penalties for those that can’t prove they performed a check
  • Jail time for those that knowingly sell to someone on prohibited list

My first step would be to open the NICS background check system. Currently, the only people authorized to run a background check are Federal Firearms Licensed dealers (FFL’s). Running a check is mandatory for firearms purchased from those FFL dealers, but optional for many private sales. Even States with strict gun control laws (like New Jersey) permit no-background check sales for long arms (rifles, shotguns and AR15’s). People resist background checks for several reasons and they are worth noting: There are several transaction costs involved. For starters, you pay for your background check. There is also a “transfer fee” that is typically assessed in order to make it worth the while of an FFL to broker the transaction between two private parties. Many Americans live miles from the closest FFL and feel they shouldn’t be burdened with the time and effort it takes to travel just to buy a firearm. Besides, does it make much sense to add a $50 transfer fee from an FFL dealer 50 miles away in order to buy his third rifle for $100?

Every time you purchase a firearm from an FFL, they transmit your information and a serial number for a particular firearm. We can argue whether or not the government will ever use such a list to confiscate guns (I doubt it) or whether such lists are even Constitutional (I think they can be), but we cannot deny that there is a passionate segment of society committed to fighting any and all attempts to create such a registry. Some States, such as Florida write in their code that registries serve no valid law enforcement purpose. Maybe it’s worth pursuing the idea of background checks on their own. We have the internet and the ability to drastically reduce costs, so let’s put this all together.

  • NICS goes online and anyone can access the system to run a background check on a potential buyer.
  • In order to run the check, you’ll need the same personally identifying information that one would fill out on the 4473 form.
  • To prevent fraud and abuse, the only information one would receive is a single word: yes or no.
  • If I enter your info and receive a “yes”, I can commence the sale. If I get a “no”, I may not.

That’s it for step one of the process. I’d recommend such non-FFL background checks be required for every sale, but even a voluntary system would improve what we have now with very few drawbacks. The current state of gun sales in this Country is that upwards of 40% of sales already happen without a background check and it can only be a step in the right direction to make it easier to perform them. Gun owners want assurance they are not selling guns to those not permitted to have them.

The next step I would take would involve laws penalizing sales for which a check was not performed. After every sale, the seller would be required to keep proof that they ran the check on the buyer. If the police find that you sold a gun to someone that was not permitted to buy one, you would have a responsibility to show that you ran a background check. Cant show that you ran the check? You are liable for the illegal sale.

Safe Storage:

The next area I think can benefit from legislation is safe storage procedures. This is also an area where can find compromise. Gun owners want operable ready to use firearms. Gun control safety proponents want firearms locked away to prevent them from being discovered by children or prohibited users.

I would propose a simple rule that all firearms can either be on your person or required to be secured away from others. The NRA lists safe storage of firearms “so they are not accessible to unauthorized persons”, as one its rules. Let’s incentivize the safe storage of arms as a benefit to society. Tax credits towards gun locks and gun safes would be a good place to start. Let’s also hold people accountable for negligently leaving firearms where others find them and leave them alone when they keep and bear them.

Funding and Support:

No matter what rules we have in place, if the system doesn’t work and people can’t use it properly and efficiently, it will fail. Right now, the NICS background check system is broken in many ways. States do not enter information on mental health status for prohibited buyers. They don’t receive adequate funding. The appeal process is abysmal when it actual moves at all. These are issues that need a will among the people that are responsible for maintaining the systems. Pressure should be placed on those refusing to do their part.

UPDATE:

Tradeoffs

Talking to some people on the gun rights side, they are hesitant to want to advocate for new laws knowing how the old laws have been applied to them. I wrote a bit about some of the problem here and it’s worth a read to get a sense of the legitimacy behind this point of view. But they offered some tradeoffs that would be helpful:

  • Enable a type immunity from prosecution if someone used your former weapon for a crime (and you can supply the proof you ran the background check).
  • Change the current conceal carry scheme to permit licensed CCW holders to carry across State lines, removing the complicated patchwork of reciprocity agreements.

Update 2 (10/3/17): How would Background Checks work in practice?

I was asked how background checks would work in this kind of system. Imagine that Andrew goes to his local FFL and purchases a rifle.  Some time later, he decides to sell his rife to his friend Barry.  He is faced with this new requirement to either 1) run a background check, which is free and online that would tell him immediately if Barry was a prohibited purchaser or 2) skip the check and face penalties and jail time if it turns out that Barry was prohibited from owning guns. Under that scenario, when the costs associated with the check are negligible and the costs associated with skipping it could be catastrophic, what would Andrew opt to do?

That’s the design of the system.  To make people want to run checks.  Lots of them. The more checks are run, the safer we, as a society, become.

Is it possible that Andrew could skip it and they never trace his rifle back to him? Yea, I guess so.  But given the totality of the circumstances, what would you opt to do?  I’d run the check.

More Suggestions? Do you know something about the topic and have an idea for what can be done? What do you have in mind that doesn’t violate the three concepts above?

¹. H.L. Mencken once said: “For every complex problem there is an answer that is clear, simple, and wrong”..

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