The Balancing Act of Gun Control

The Balancing Act of Gun Control How can we maintain our rights AND protect our lives? Aaron Capece and Jamie Dick Throughout this packet, we will examine the most widely debated topics, discussing each issue in its entirety. We then provide a range of potential solutions to the issue of gun violence. Each solution is unique and targets a different facet within the gun control debate. Gun Violence in the United States B etween the years of 2007 and 2011, firearms were responsible for 67.34% (46,313) of all homicides in the United States. For decades now the US has struggled to create a solution that would successfully decrease firearm violence. This is largely due to the extreme controversy that surrounds the gun control debate. The society of the US is divided in many ways, separated by what they believe is the source of firearm violence. Some people believe that assault weapons are responsible for this violence, pointing to the Sandy Hook shooting as an example of where assault weapons have caused mass destruction. Others claim that the current background check system is too weak, allowing dangerous people the opportunity to purchase firearms. They reference the Virginia Tech shooting as an example of why medical records should be included within the background check system. Even still, others believe that the gun show loophole is the main source of this gun violence, allowing individuals to circumvent the background check system all together. With all these people advocating for a different problem, and with each calling for a different solution, it is easy to see why this issue has yet to be resolved. Throughout this packet, we will examine the most widely debated topics, discussing each issue in its entirety. We then provide a range of potential solutions to the issue of gun violence. Each solution is unique and targets a different facet within the gun control debate. Proposed Executive Actions President Barack Obama has proposed 23 executive actions that would be implemented with the intention to reduce gun violence. Of these 23 executive actions, the five actions most applicable to our discussion are summarized below: Require federal agencies to make relevant data available to the background check system; improve incentives for states to share information with the background check system; address legal barriers, particularly those relating to the Health Insurance Portability and Accountability Act (HIPAA), that may prevent states from making information available to the background check system; review and possibly expand the categories of individuals prohibited from purchasing and owning a firearm; publish a letter from the ATF to federally licensed dealers providing guidance on how to run background checks for private sellers. In this issue: Implement an Assault Weapons Ban 2 Close the Gun Show Loophole 4 Improve the Background Check System 6 7

O PTION ONE Implement an Assault Weapons Ban WHAT IS AN ASSAULT WEAPON? An assault weapon is any semiautomatic weapon that possesses one or more of the following [military style] characteristics: pistol grip, forward grip, second pistol grip, collapsible stock, folding stock, thumbhole stock, bump stock, barrel shroud, threaded barrel, grenade or rocket launcher, revolving cylinder (shotgun), or bullet button. ARE THEY A PROBLEM? Yes Assault weapons have been used as the primary weapon in multiple mass shootings over the last twenty years. Specifically, these include: the Sandy Hook shooting, the Aurora movie theater shooting, the Columbine High School Massacre, along with 11 other mass-shooting cases. No The features that define a firearm as an assault weapon are purely cosmetic features, meaning they do not alter the firearm mechanically. In fact, the majority of them improve the firearm s accuracy, make the firearm easier to control, or enhance the safety of the firearm. POSSIBLE SOLUTION Based off the most recently proposed assault weapons ban: Introduce federal legislation that would ban the sale, transfer, manufacturing and importation of any semiautomatic weapon that possesses one or more military-style features. This legislation would exclude weapons used by the military and law enforcement, antique weapons, and any weapon that is lawfully possessed prior to this bill s enactment. WHY DO THIS? During the previous 1994 Assault Weapons Ban, the use of assault weapons in violent crimes had decreased by almost 67% prior to its expiration. This demonstrates that the 1994 ban was successful in reducing the amount of firearm violence due to assault weapons, an outcome that we would expect to see with the implementation of this new ban. WHY NOT DO THIS? The state of California has a similar assault weapons ban already in place; in 2010, assault weapons accounted for 5.1% of all firearms used in violent crimes in California. Non-assault weapon handguns, rifles, and shotguns accounted for the other 94.9% of firearms used in violent crime. This ban has only been successful at reducing the amount of firearm violence caused by assault weapons, not in decreasing the amount of firearm violence as a whole. 2

An Assault Weapon is: Any semiautoma c rifle that has one or more of the following: Pistol grip Forward grip Folding stock Collapsible stock Grenade/Rocket launcher Rocket launcher Barrel shroud Threaded barrel Any semiautoma c pistol that has one or more of the following: Threaded barrel Second pistol grip Barrel shroud Any firearm that has: Bullet Bu on Bump Stock Thumbhole Stock Any semiautoma c shotgun that has one or more of the following: Folding stock Collapsible stock Detachable stock Pistol grip Forward grip Grenade/Rocket launcher Rocket launcher Revolving cylinder Grenade/Rocket Launcher: A achment to a rifle or shotgun that can fire grenades. Purpose: Launch grenades or rockets with more accuracy, higher velocity, and to greater distances than a human could. Barrel Shroud: Covers the barrel of a firearm Purpose: Prevent the user from being burned by a hot barrel. Forward Grip: Located toward the front of the firearm Purpose: Gives the off hand something to hold, aiding in the maneuverability of the gun. Bullet Bu on: A bu on that, when pressed, releases the magazine from the firearm. Purpose: Allows for a fixed magazine to be replaced. Threaded Barrel: A barrel with a screw like pa ern at its end. Purpose: Allows for a achments such as a flash suppressor or sound suppressor. Thumbhole Stock: A hole located towards the front of the stock in which a thumb could fit through. Purpose: This design maximizes efficiency. Collapsible Stock: Stock that can be adjusted to fit the length of the user. Purpose: Allows for a secure fit of the firearm to the shoulder which ensures greater accuracy by not allowing the firearm to shi under recoil. Bump Stock: Uses the recoil of the firearm to fire mul ple shots in rapid succession. Purpose: Enables this process of rapid fire to occur. Folding Stock: A stock That can be folded to be parallel with the firearm. Purpose: Allows for ease of opera on in close quarters. Revolving Cylinder: Mul ple chambers that each hold a single bullet; these chambers rotate throughout the shotgun. Purpose: Allows the user to fire mul ple rounds without having to reload. Pistol Grip: Orients the hand in a ver cal posi on. Purpose: Allows for easy access and control of the trigger, magazine release bu on, and safety/fire 3

O PTION TWO Close the Gun Show Loophole WHAT IS THE GUN SHOW LOOPHOLE? In accordance with the Gun Control Act of 1968, you must obtain a firearms license through the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) in order to sell firearms. However a provision of this law allows for those who are not engaged in the business of buying or selling firearms, or who only make occasional sales within their resident state, to sell firearms without holding a federal firearms license. This is commonly referred to as the gun show loophole. Federal Licensees are required to: Conduct background checks through the NICS for every sale Maintain records on every transaction in an ATF-approved book (or computerized equivalent) Collect sales tax Understand and comply with all gun laws in every state Non-Federal Licensees are not required to: Conduct background checks through the NICS for any sale Maintain records for any transaction Collect sales tax Understand and comply with any gun laws in any state other than their own IS THIS A PROBLEM? Yes Over 27% of the guns involved in the ATF s criminal trafficking investigations were linked to trafficking by unlicensed sellers, and over 30% were tied to trafficking at gun shows - ATF At the Columbine High School Massacre the two killers bought their guns at a gun show from a non-licensed dealer Gun shows are the second leading source of firearms recovered from illegal gun trafficking investigations - ATF No Less than 1% of U.S. crime guns came from gun shows, with repeat offenders even less likely than first-time buyers to buy guns from any retail source Bureau of Justice Statistics Private sales at a gun show are no different in principle than private sales anywhere else outside the gun show setting. 4

POSSIBLE SOLUTION: STEP 1: Introduce legislation that would require all individuals who want to sell firearms at a gun show to hold a federal license or a provided alternative. STEP 2: Create an alternative to the federal firearms license through the ATF, known as the Personal Sales License (PSL). Who would be eligible? Individuals who are collectors or selling for personal use. How would you get one? There would be an application on the ATF s website where individuals could fill out their personal information, such as their name, address, date of birth, social security number, etc. Additionally, the individual would list the names and dates of the gun shows he is planning to attend, the number of firearms they are attempting to sell, as well as the type and serial number of each firearm. How would it work? This information would be listed on the license that the individual would receive. The license would only be valid at the gun shows registered on the application and would expire after the date of the last gun show listed. PSL requirements? With this license, dealers would be required to run background checks and keep records for every sale they make. They would also be required to comply with all state gun regulations, not just their own. WHY DO THIS? Closing the gun show loophole by requiring all dealers to possess either a federal firearms license or a personal sales license, subsequently requiring all dealers at guns shows to conduct background checks, will effectively decrease firearm violence. This will close off convicted felons, and others who cannot legally purchase firearms, from direct access to the purchase of firearms by requiring background checks for all potential buyers at a gun show. WHY NOT DO THIS? Individuals will now be forced to go through the steps of obtaining this license which may cause financial and/or other inconveniences. Additionally, having to disclose personal information such as address or social security number would invade an individual s personal privacy. Also, this program would require additional funding to be allocated to the ATF and with recent mandatory budget cuts this could prove difficult to sustain. 5

O PTION THREE Improve the Background Check System Who is prohibited from purchasing a firearm? Pursuant with the gun control act of 1968, the following factors would prohibit individuals from purchasing a firearm: Convicted of any felony punishable by imprisonment exceeding one year in length Fugitive from justice Unlawful user of or addicted to any controlled substance Illegal alien Dishonorably discharged from the Armed Forces Renounced their citizenship Subject to a court ordered restraining order Convicted of a misdemeanor crime of domestic violence Under indictment for a misdemeanor punishable by imprisonment exceeding two years in length Adjudicated as a mental defective Involuntarily committed to mental institution WHAT IS THE CURRENT BACKGROUND CHECK SYSTEM? Mandated by the Brady Handgun Violence Prevention Act of 1993, federally licensed dealers are required to conduct background checks on all prospective buyers in order to instantly determine if they are eligible to purchase firearms. Since 1998, they have used the FBI Criminal Justice Information Services Division s National Instant Criminal Background System (NICS). The NICS was developed and is maintained through a collective effort with the FBI, the ATF, the Department of Justice, and local and state law enforcement agencies. National Crime Information Center (NCIC) The NCIC maintains information on individuals who are subjects of protection orders or active criminal warrants, immigration violators, and others. How does the NICS work? When a background check is initiated, a name and descriptor search is conducted to identify any matching records in three databases managed by the FBI Criminal Justice Information Services Division. These databases are: Interstate Identification Index (III) The III maintains subject criminal history records. The Department of Homeland Security's U.S. Immigration and Customs Enforcement (ICE) also maintains a database that is accessed during the background check process. This database is searched for non-us citizens who are attempting to purchase firearms within the United States. National Instant Criminal Background System (NICS) Index The NICS Index collects and maintains information from local, state, tribal, and federal agencies pertaining to individuals prohibited from possessing a firearm pursuant to federal and state law. 6

IS THERE A PROBLEM WITH THE CURRENT SYSTEM? Yes Federal law does not require states to make mental health information available to the federal or state agencies that perform background checks. As a result many states fail to report to the NICS all relevant health information, such as mental illness or drug use, which would prohibit individuals from purchasing a firearm. The Tucson, Arizona shooter, Jared Loughner, had been previously cited for possession of drug paraphernalia, which would have prohibited him from purchasing a firearm; however his records were never reported to the NICS. Similarly the Virginia Tech shooter, Seung-Hui Cho, was diagnosed with severe depression and selective mutism (an anxiety disorder) during his teenage years; again this information was never reported to the NICS, allowing Cho to legally purchase the firearms he used during the Virginia Tech shooting. No In 2012 alone, the NICS processed a total of 8,725,425 transactions and denied 88,479 in accordance with the Gun Control Act of 1968. Additionally, the NICS Index recently expanded to include state-prohibiting records. As of 2012, the NICS Index records totaled over 8.3 million, an increase of more than one million records over 2011. Currently, the NICS Section have initiated an outreach program in order to connect with local, state, tribal and federal agencies regarding the public safety value of sharing criminal history and related records with the NICS. As a result of the information-sharing commitment between the NICS and numerous local, state, tribal, and federal agencies, 47,675 dispositions (outcome of a court case, i.e. guilty ) have been obtained by the NICS in 2012. POSSIBLE SOLUTION Introduce legislation that would require states to submit all records and dispositions regarding mental health information and drug use history to the NICS Index. WHY DO THIS? By requiring mental health information and drug use history to be included within the NICS and therefore referenced during the background check process, persons with a history of either would now be barred from purchasing any type of firearm. This would be successful in decreasing firearm violence because unstable people would now no longer have direct access to the purchase of firearms. The shooters responsible for both the Virginia Tech shooting and the Tucson, Arizona shooting would not have been able to legally obtain the firearms that they did. WHY NOT DO THIS? Requiring states to submit mental health information would be a direct violation of the Health Insurance Portability and Accountability Act s (HIPAA) Privacy Rule, which all private and state (individual or group) insurance plans must follow. Material protected under HIPAA s privacy rule specifically includes demographic information such as past or present, physical or mental health conditions. Any violation of this rule can cause up to $100,000 in fines combined with a one year prison sentence. 7

SUMMARY OPTION ONE The Balancing Act of Gun Control How can we maintain our rights AND protect our lives? In an attempt to decrease gun violence in the United States, the government could implement an assault weapons ban that would ban all firearms possessing any of the following military-style characteristics: pistol grip, forward grip, second pistol grip, collapsible stock, folding stock, thumbhole stock, bump stock, barrel shroud, threaded barrel, grenade or rocket launcher, revolving cylinder (shotgun), or bullet button. This could be effective in decreasing firearm violence caused by assault weapons, much like the 1994 assault weapons ban. On the flip side, it may only decrease violence produced by assault weapons and have no significant effect on lowering gun violence as a whole. OPTION THREE The current background check system, the National Instant Criminal Background Check System (NICS) is maintained by the FBI s Criminal Justice Information Services Division. The NICS references four databases during its background check process known as the National Crime Information Center, the Interstate Identification index, the National Instant Criminal Background System Index, and the Immigration and Customs Enforcement. In order to decrease gun violence in the United States, legislation could be proposed requiring all mental health and drug use records be submitted to the NICS Index to be referenced during the background check process. This would insure that persons with a history of drug use or mental health issues would be barred from purchasing firearms. However, the Health Insurance Portability Act s (HIPAA) Privacy Rule protects mental health Information, from being shared; therefore mandating that information be submitted to the NICS Index in order to be referenced during a back ground check would be a violation of HIPAA s privacy rule. OPTION TWO The gun show loophole refers to individuals that sell firearms at gun shows, and because these individuals are not engaged in the business of selling firearms, they are not required to conduct background checks or other processes that a federally licensed dealer is required to do. In an effort to close the gun show loophole, the ATF could create an alternative to the federal firearms license for personal dealers to hold. In collaboration with the ATF, the United States government could require all dealers at gun shows to hold a federally issued license. This would stop felons, and other persons who would not pass a background check, from being able to legally bypass the background check system. However, this may impose a financial inconvenience on these personal sellers or be considered an invasion of their personal privacy. Jamie Dick Aaron Capece 8