Introduction
Gun control legislation is a very controversial topic and one that has taken a lot of attention in both academic and public policy circles here in the United States for the past 20 or 30 years. One of the most powerful tools which people have discovered to dealing with the issue of controlling who should or shouldn’t have access to guns is through the creation of background checks. The purpose of background checks in a general sense is to allow for gun sellers and overseeing authorities to make sure that they are selling weapons to only those individuals who should be allowed to possess them. The main purpose of these background checks is to ensure that criminals, ex-convicts, people with mental illnesses and others don’t have quick access to guns. The argument is that these background checks are a way to prevent gun violence that keeps firearms out of the hands of those that should be the least qualified to have them. The strength of these arguments is powerful because they are backed up by evidence and the belief that public policy can be effective in dealing with social problems. Opponents of background checks most notably the National Rifle Association argues that increased laws such as gun control don’t much of anything to curb gun violence because criminals don’t care about laws and they do not purchase their firearms through reputable dealers.
These facts about how each side conceives guns and public policy are very important and they describe how each side views the conversation around background checks and how it should inform legislation and its role in stopping gun violence. The conversation surrounding gun control and especially the use and implementation in American politics are highly informed by two very opposed sides which have very different views about what role guns should have in American society. The NRA has led the fight against the expansion of gun control and they have been largely successful in creating a larger space for guns in America. The issue of background checks, their utility, implementation and the campaigns for and against them are very good ways to explore how policy is made in America.
Logic of Background Checks
Proponents of the use of background checks to deal with the problem of gun violence state that they are useful because they allow for the seller to make sure that they are selling weapons to only those individuals that should have guns. The logic of background checks is to primarily “regulate firearms transfers in such a way that ineligible persons will not even be able to obtain a firearm and therefore, will never have an opportunity to violate the criminal law” (Jacobs & Potter, 1995, p.94) These laws hope to control the sale of firearms to anyone under indictment or to felons, fugitives from justice, illegal narcotics users or dealers as well as those “adjudicated mental defective or someone who has been committed to a mental institution.” (Jacobs & Potter, 1995, p.94) These categories as well as the ones which Congress expanded in 1987, to include illegal aliens, those dishonorably discharged from the military, anyone who has renounced United States citizenship, and anyone subject to a restraining for domestic violence, harassment or stalking. (Jacobs & Potter, 1995, p.94) The idea of these laws is to strictly limit who should have the right to possess firearms and to ascertain if they are dangerous and to control the sale of firearms to anyone who should not be buying them. The goal of these background checks of trying to control the sale of guns to those who are most likely to commit crimes with them was well integrated into one of the most important pieces of gun control legislation ever passed the Brady Handgun Violence Prevention Act better known as the Brady Bill.
The Brady Bill’s provisions were primarily aimed to deal with the problem of trying to make it harder for criminals to get their hands on firearms which makes it easier to commit crimes. The aim of gun control legislation should be to deal with the problem of illegal gun traffic and to find methods to curb it. (Aborn, 1994, p.433) The way in which criminals exploited the weaknesses in the old system was by going to “jurisdictions with very weak or nonexistent gun control laws.” Then they proceed to “purchase handguns in bulk, using either straw purchasers or phony identification, and transport the weapons and ammunition to jurisdictions with very strict gun control laws.” (Aborn, 1994, p.433) The problem was that no legislation prevented this by requiring licensing of handgun purchase, the registration of sales or there should be any kind of the statutory limit on the amount of firearms or ammunitions being sold at any one time or the resale of these items. (Aborn, 1994, p.433) The Brady Bill was created in part to deal with these problems.
The problem of the illegal traffic in guns is a major one and something which has very far-reaching consequences and it is very hard to ignore from a public policy perspective. The passage of the Brady Bill and the activation of its second phase finally created a robust regulatory system to deal with the problem of gun trafficking. The bill does by creating a system of gun licensing and registration at the state level. The Brady Bill creates minimum standards that one needs to meet in order to get a state gun ownership license. There are four main criteria:
One must be 21 years old, needs to have a valid government form of identification, to have passed a background check, and the completion of a safety training course. (Aborn, 1994, p.434) Another important proposal made by the Brady Bill regards the purchasing of more than one handgun in a thirty-day period, which is also an effort to deal with the problem of gun trafficking and the lack of uniformity in the registration and licensing of gun owners and transactions. The Brady Bill was one of the most important pieces of gun control legislation passed in the United States in recent years and it has had an effect of creating a new, stronger regulatory environment in which both state and federal governments have a way of tracking these transactions. One way in which this has been done is by instituting a new mechanism for the conduct of background checks called the National Instant Background Check System (NICS). NICS went live on November 30, 1998, and at the time of the last operations report from 2014 it had conducted more than 200 million background checks done by both state and federal authorities and at that time it had rendered more than 1 million firearm denials. (Criminal Justice Information Services Division, 2015, pp.12-13) The simple fact that some many individuals are now being screened that weren’t before the passage of the Brady Bill is certainly encouraging. There is now a system of robust regulation and a strong emphasis on background checks as a way of attempting to stop gun violence and controlling who should be allowed to have access to guns, especially handguns. The Brady Bill has largely been successful because it has least created a regulatory environment which is much more adept at dealing with the problems posed by the challenges faced by a set of complex problems. This legislation has also created a much more robust system for dealing with gun trafficking and keeping guns out of the hands of those who shouldn’t have them in the first place.
The passage of the Brady Bill was a turning point in the discussion surrounding gun control legislation and the role of public policy in dealing with the problem. When a market such as the gun market goes unregulated it creates issues, especially because they allow for guns that could be used in the process of committing a crime to be transported from one jurisdiction to another. The Brady Bill was a very positive first step in dealing with the problem of gun violence and especially work on trying to build strong systems for future regulation. Background check legislation created by the Brady Bill was very good and a positive step forward by no means was it the end of the gun control conversation.
The background checks introduced by the Brady Bill were a significant victory for the supporters of gun control. It was a positive step towards creating a regulatory and legislative environment which at least allows for the passage of even stricter gun control legislation. Supporters of greater gun control have argued, according to Chemerinsky (2004) for
laws limiting ownership of guns by those subject to restraining orders in domestic relations cases, and a ban on assault weapons. Proposals for further control of guns include: universal background checks; a national registry for guns; more limits on the ability of those with a history of mental illness or violence to have guns; greater restrictions on particular types of guns and ammunition that are likely to cause grave harms; and more liability for gun manufacturers in civil cases. (pp.483-84)
These proposals for even stricter gun control than the ones implemented by the Brady Bill are all very much on the wish list of liberal politicians and advocacy groups that would like to bring about more gun control. These goals are admirable, but there seem to be incredibly large roadblocks to actually have any of these measures implemented, especially when there are much larger issues to deal with namely the quite sizable gun show loophole.
Problems with Gun Control Legislation.
The gun control legislation enacted by the Brady Bill was a very good positive step in creating regulations for the purchase and sales of guns in the primary, retail market but not in the secondary market or private party transactions. The private-party market is not regulated by the same rules as the retail market. Those attempting to buy guns from other individuals are not subject to the same background check process as those done through traditional retail channels. The major problem of this loophole created by the Brady Bill is that it creates an entirely parallel gun market which is mostly unregulated. Transactions made in the private party system “facilitate the diversion of guns from legal commerce into criminals’ hands.” (Wintemute, Braga & Kennedy, 2010, p.509) Although it is always illegal to sell guns to certain kinds of people those acting in the secondary market will most likely only not complete a sale if the “seller knows or has reasonable cause to believe that he or she is doing so.” (Wintemute, Braga & Kennedy, 2010, p.509) This loophole can easily be exploited and it is something which has created much worry among gun control advocates which has led them to the implementation of universal background checks.
Opposition to Background Checks.
The NRA is one of the most powerful lobbying groups in the United States and their primary issue is allowing for greater and freer gun ownership. One of the ways in which the NRA aims to do this is by allowing for as many people buy guns as possible and that is why they are against any major restrictions on gun ownership including background checks. There is an interesting consensus surrounding the reasoning for why the NRA thinks that legislation such as background checks is not very useful. The most important one of these arguments center around the fact that the majority of criminals don’t buy their guns legally through retail sources.
The NRA’s opposition to the Brady Bill and background checks is based on the fact that they believe that most guns used in crimes are not in fact bought in stores. The NRA’s opposition to the background provisions in the Brady Bill is built around a line of argument which tries to reduce the utility of those background checks by claiming that “criminals do not, to any appreciable degree, buy handguns from federally licensed firearms dealers.” (Henigan, 2009, Guns Don’t Kill People) Furthermore, the NRA was opposed not only opposed to background checks but to the entire idea of having any kind of database like the ones that was created by the NICS, although there was some political maneuvering on trying to create a similar piece of legislation outside of the Brady Bill by West Virginia Senator Harley Staggers. (Feldman, 2008, p.183) This shows that the NRA is still an organization which is political at its core and cares about how politics in Washington DC functions. They are a single issue organization but they understand political realities. The NRA’s argument is somewhat valid because it reinforces the thinking behind the weakness of the gun show loophole and the concept that there is, in fact, a very large secondary, mostly unregulated market in firearms. This argument provided by the NRA in opposition to background checks is strong because it at least recognizes the world as it is. The background checks introduced by the Brady Bill are a positive step forward by they are ultimately not enough because of organizations like the NRA, which attempt to weaken any substantive attempt to limit access to guns to those who should not have them. Additionally, there has been studies done by Ruddel and Mays (2005), Kleck and Patterson (1993), as well as Ludwig and Cook (2000) which strongly suggest that there is very little correlation between the implementation of background checks and any appreciable decrease in gun related homicides. Their reasoning is the same as the NRA’s, they argue that criminals likely don’t purchase their guns through licensed dealers who would even run a background check on them. These are strong arguments for not increasing gun control or the ineffectiveness of the current system which is beneficial to supporters of gun rights.
There is yet another powerful argument against increased background checks and gun control and that is a constitutional one. Barnett and Kates (1996) argue that within Second Amendment scholars and within the jurisprudence exists a consensus which affirms that “the Second Amendment establishes an individual right to bear arms, which is not dependent upon joining something like the National Guard.” (p.1141) This is a very strong argument for those supporters of a broad interpretation of the Second Amendment and those who are against expanded gun control or background checks. The US Constitution is as strong an argument which there is to support a position and opponents of background checks have both a substantial social science and legal argument which backs up their side. It has been shown that there doesn’t seem to be a large correlation between background checks and decreases in gun related homicides which are a strong a case against tougher gun control legislation as any other.
Conclusion
Both sides have some sort of claim to being correct when it comes to dealing with the problem of gun violence and how to deal with it. The biggest problem is the one created by the simple fact that the NRA is an incredibly effective organization because of its nature as a single-issue lobbying group which is incredibly active in state legislatures and actively supports the campaigns of those politicians that it deems to be against their main goals. (Cole, 2016) The inordinate power of the NRA in American politics weighs heavily on the discussion surrounding gun control and it is something which is very hard to ignore.
The Brady Bill was a positive step forward and it laid out a very good map for how to implement future background legislation. Is is undeniable that there should be some sort of action taken with events like last month’s Orlando shooting and many other examples still fresh on our minds. The conversation surrounding gun control will always be contentious but I think to some extent there is at last some consensus. No one wants to see criminals with guns and the Brady Bill and the system it created is very good at doing background checks regardless of certain limitations within the law like the gun show loophole.
References
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Barnett, R. E., & Kates, D. B. (1996). Under Fire: The New Consensus on the Second Amendment. Emory LJ, 45, 1139.
Chemerinsky, E. (2004). Putting the Gun Control Debate in Social Perspective. Fordham L. Rev., 73, 477.
Cole, D. (2016). Engines of liberty: The power of citizen activists to make constitutional law.Bottom of Form
Criminal Justice Information Services Division. "National Instant Criminal Background Check System (NICS) Operations 2014." National Instant Background Check System. Federal Bureau of Investigations, 2015. Web. 7 July 2016.
Feldman, R. (2008). Ricochet: Confessions of a gun lobbyist. Hoboken, N.J: John Wiley & Sons.
Henigan, D. A. (2009). Lethal logic: Exploding the myths that paralyze American gun policy. Washington, D.C: Potomac Books.Bottom of Form
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Wintemute, G. J., Braga, A. A., & Kennedy, D. M. (2010). Private-party gun sales, regulation, and public safety. New England journal of medicine,363(6), 508-511.
