I. Introduction and Indulgences
In what may be the understatement of a lifetime, I would like to point out that much has been said about politics in America. Often by Americans, and very often by foreigners, it has been pointed out that American politics for the last two or three decades almost entirely revolve around a few hotbutton issues, often to the point of unintentional self-caricature by all parties on all sides.
In fact, party lines these last few tens of years are drawn up on three issues, almost to the exclusion of all others. These three, the Holy Trinity of American Talking Points, are DRUGS, ABORTION, and GUNS (see fig 1 below). Party stance on anything outside of the trinity is seen by Americans as secondary at best, and the practical differences outside of the Sacred Three Questions are essentially nil.
| Party |
DRUGS |
ABORTION |
GUNS |
| Democratic |
YES |
YES |
NO |
| Republican |
NO |
NO |
YES |
| Libertarian |
YES |
YES |
YES |
Fig. 1 - Party Policies on the Holy Trinity
You will notice that these party policies appear to be highly polarized, with little chance of compromise due to glaring, direct incompatibility. If I might be indulged in a quiet snicker, it is a brilliant indictment of American society that the "Party of Yes", advocating more absolute freedom for individuals than any other save perhaps the Anarchist parties, is absolutely marginalized by all major political participants and pundits.
I could go on indefinitely with analysis, hair-pulling, and gnashing of teeth regarding the party structure of American politics. I would instead like the reader to keep it in mind as a lens though which to view the following proposals, which will outline a sane and reasonable system of gun control on a national level for the United States of America. Particularly try to note sticking points and objectionable items for each of the three parties above.
II. If it looks like a duck, and quacks like a duck, it might be a woodpecker in drag.
The current state of gun control in the United States is an incredible mismatch of federal and state-level legislation, riddled with special interests, strange loopholes, Constitutional infringement, bizarre interpretations, and in many cases, complete abandonment of the rule of law.
One could just as easily replace the words "gun control" in the preceding statement with a number of other things and have an equally factual result. The difference, of course, is that some things, like for example the number of seeds per square foot that a person can plant without qualifying for an agricultural exemption, have a lesser potential for human tragedy and societal impact than other things, like who is allowed to own what kind of weapons, and where they are allowed to take them.
As we focus on the who and what of gun control, let's immediately exclude a few items from discussion. While some Americans certainly advocate for unlimited private ownership of any weapon, there is no actual debate regarding the private ownership of things like hand grenades or artillery. Interestingly enough, it is in fact possible, if onerously regulated, difficult, and incredibly expensive, to own such things as a private citizen under current law, but explosives, field guns, and things like armed jet aircraft are not covered here.
Similarly excluded from this proposition are machine guns as currently defined under US law, which are rifles and pistols which are capable of automatic ("rapid fire") or burst fire. These are also legal for private ownership after passing an FBI background investigation, and either paying exorbitant prices due to the fixed pool of available registered machine guns, or getting a special dealer's permit and complying with all relevant federal and state laws. Ditto the above for Destructive Devices and Any Other Weapons, which other arcane classes of highly controlled and tightly defined weapons that fall under the same regulation and control as machine guns.
What this proposal covers is the kind of gun that in most places in the United States, anyone over 18 or 21 years old can walk into a sporting goods store and purchase. Basically, rifles and pistols that are single shot, bolt-action, or semiautomatic; revolvers, internal or removable magazine fed; and any caliber not defined as a Destructive Device or registered as a sporting caliber.
This is a very lawyer-looking definition. And for many people unfamiliar with guns, some of it may not make any sense. What's important to recognize is that this proposal is based on the actual function of guns, and not what they look like, or what accessories they have, or what country they're from. Ignorance of terminology and function are two major obstacles when discussing gun control with dirty pinko liberals. We'll talk more about problems with filthy neo-fascist conservatives later, but in general, pro-gun Americans have a better understanding of the guns themselves.
You'll notice that the word "assault rifle" doesn't appear in the definition above. That is because the term "assault rifle" has been diluted to the point of being meaningless in discussions on gun control. If you look at the litmus tests for what qualifies as an "assault rifle" or "assault weapon" in places that have Assault Weapon Bans (AWBs for short) they almost always resort to a fairly ridiculous feature count, or parts list. In other words, the ban will list a number of features, such as pistol grips, heat shields, foregrips, removable magazines, and other items, and then define an "assault weapon" as having some arbitrary number of those features. The major issue with a feature-based AWB is that the features are almost completely cosmetic or arbitrary.
In other words, if a gun looks like a military weapon, or looks scary, it is targeted for bans or restrictions regardless of its actual functional characteristics. In plainest language, that means that AWBs are more concerned with what a gun looks like than how good it actually is at damaging property and killing people.
As a great example of this, let's compare a standard AR-style carbine (AR for short) to an M14-style rifle (M14 for short). The AR is the US military's current standard issue rifle, and the M14 is its predecessor. In other words, both were originally developed to be and served as military weapons, and the designs were later modified to be legal for civilian ownership. That is, without the capability for rapid fire or burst fire - one shot per trigger pull.
This is why you hear the term "military-style" in the media when referring to ARs. The key word here is style, because the only similarity is the cosmetic styling.
Under a feature-list AWB, an AR is easily quite illegal. It has a pistol grip, a detachable magazine, a bayonet lug, a heat shield, the capability for a vertical foregrip, and a flash hider all as standard features. Most AWBs have a threshold of 2 features. A typical AR has 6.
The other rifle, the M14, is easily configured to pass almost any AWB in the history of United States gun legislation. In fact, as most commonly sold from the largest manufacturer, it has only 1 typical AWB feature: a removable magazine.
And here is where feature-based AWBs fall apart at the seams - the M14 is actually more accurate, more powerful, and capable of firing just as many shots in the same amount of time as the erstwhile illegal AR.
This is all a bit of a red herring anyway. The AR, and even AK-47 family of rifles can easily be configured to beat a feature-list ban. Believe it or not, there are a host of California-legal ARs, and California goes beyond a simple feature-based ban and additionally bans specific makes and models.
This is very important to note: Under the most comprehensive state level AWB ever enacted in the US, you can still buy a legal AR that is functionally identical to a banned AR.
In another absurdity of the law, a municipal AWB in Ohio which was lauded by gun control advocates as even more effective and comprehensive than California's famous tangleweb was rife with horrible issues due to a fundamental misunderstanding of basic gun knowledge. In the most glaring example, a pump-action shotgun, one used by literally tens of millions of Americans to hunt birds and deer, would be considered an Assault Weapon and a criminal offense to own if you were to screw on an extension to the feed tube, increasing the capacity of the shotgun from 4 shells to 5 shells.
You could, however, purchase the same model of shotgun with a factory-installed 7 shell capacity and it would be perfectly legal. Utterly identical to the "Assault Weapon" but with a higher shot capacity and not considered an "Assault Weapon".
Unfortunately scenarios like this are very common when attempting to ban or regulate synthetic and arbitrary classes of guns. What's the difference between a military sniper rifle and the most popular hunting rifle in America? What about the difference between a military combat shotgun and the most common hunting shotgun in America? The answer, in short, is who's behind the trigger and what they're using it for. Otherwise, the hardware is identical.
The argument could certainly be made that that must mean that these AWBs aren't comprehensive enough, but at that point you are talking about enacting blanket bans on all semiautomatic weapons - all couple hundred million of them already in existence.
Assault weapon bans are, in the famous American tendency to resort to car analogies, like trying to stop street racing by regulating what color cars are allowed to be, how many side view mirrors they can have, and the maximum noise permissible from the exhaust.
Or trying to ban driving because seatbelt laws haven't stopped hit-and-run drivers.
In fact, a National Institute for Justice study found that the 1994 Federal AWB "...has failed to reduce the average number of victims per gun murder incident or multiple gunshot wound victims."
III. The NICS Check and Black Helicopters
Depending on who you ask, November 1998 was the day that the gun-grabbers initiated Phase I of the New World Order's plan to disarm all patriots. Or you might hear that it was too little, too late. Either way, NICS was the implementation of language in 1993's Brady Handgun Violence Prevention Act.
Basically, the NICS - the National Instant Criminal Background Check System - is used by licensed firearms and explosives dealers to determine whether or not the person trying to buy a gun or explosive material is disqualified from doing so due to federal laws about who is allowed to own guns and explosives.
The NICS is used by about 30 states and at least 6 other jurisdictions, including US Territories and in the nation's capital. At the point of sale of a firearm, the dealer is required to collect certain information from the prospective buyer, verify some of it against their ID and other documents per federal and state law, and submit everything to the NICS system to get one of three answers - Proceed/Denied/Delayed. This is known as a "NICS check", and is done over the phone or online in a matter of minutes.
The FBI's statistics on the matter are inexact, but published figures are that out of approximately 100,000,000 NICS checks, there have been about 700,000 denials. These numbers do not indicate which denials were mistakes which were later resolved, and which were multiple attempts by the same person. Even assuming each attempt was by a unique individual and no mistakes were made (an incredibly dubious assumption) it puts the number of denials at less than one percent. This is interesting, but also does not give a full picture of how effective the NICS system may or may not be.
The document used to collect information by dealers is an ATF Form 4473. Form 4473 asks for several pieces of information about the buyer, including name, date and place of birth, physical characteristics, place of residence, and a litany of questions about firearms ownership eligibility.
This part of the NICS is the real meat and potatoes. Buyers are asked questions like "Are you a fugitive from justice?" and "Are you an alien illegally in the United States?" among others, such as previous felony convictions or other situations that disqualify people in the US from firearms ownerships, including "Have you ever been adjudicated mentally defective ... OR have you ever been committed to a mental institution?"
The 4473 also requires the seller to identify whether the gun being sold is a rifle, pistol, or other defined firearm. This is mostly because there are different age restrictions for rifles and pistols. Other information includes what type of ID was used, and whether or not the person is exempt from the NICS check due to having a state-issued permit that exempts them from such a check.
These exemptions are interesting. In some states, having a permit to carry a concealed weapon (CCW for short) exempts you from NICS checks since getting the CCW required a stringent FBI background check that exceeds the NICS requirements. Not many states have such exemptions, but some do.
Many hardcore opponents worry that the NICS combined with retained Form 4473s will be used to build a vast database of gun owners, and form the basis of a registry that could eventually be used to forcibly disarm the nation. The idea that such a database could be compiled as part of the NICS checks is not unreasonable, but it should be noted that such a database can only contain what is listed on the 4473, which is not really a lot of information, and not nearly enough to start kicking in doors with the National Guard to confiscate your walnut-stocked, jeweled action heirloom freedoms.
The idea that the NICS is a front for a massive secret registry of law-abiding gun owners is even less likely, almost laughable, when you consider that it isn't even particularly good at keeping track of who isn't allowed to own one. That is to say, there are probably more false negatives than there are false positives, due to the slipshod nature of reporting for much of the data that would make a person show ineligible on a NICS check.
Questions 11f, 11h, and 11i for example, dealing with ineligibility due to mental illness, restraining orders due to domestic violence, or misdemeanor convictions for violent crime. If everybody answered honestly, there would be no need for the NICS check, would there? There are two real reasons these questions (including the "are you an illegal alien or fugitive from justice") require an answer from the buyer, and they are the same two reasons that the US Customs and Border Patrol still asks you in black and white if you are a drug smuggler or a terrorist.
Reason #1: Some people actually get caught by admitting to it on a piece of paper.
Reason #2: Because if they catch you lying, it's another charge to hit you with later.
No, the real problem is that the agencies responsible for reporting information regarding questions 11f, h, and i are inefficient, slow, and sometimes downright dysfunctional. In many cases they are hobbled by political fighting at the state level, conflicting regulations, lack of enforcement authority for subordinate organizations, and bureaucracy the likes of which only the interfacing of state and federal government can produce.
This lack of performance in feeding the NICS system timely and pertinent information has been the direct cause of what the ATF lovingly calls "prohibited persons" being able to purchase firearms from licensed dealers. It has also been the cause of countless NICS Delays, where a person is not denied but not immediately approved, due to incomplete or faulty information. These holds can last anywhere from a few hours while a clerk finds a mistake in a string of numbers, to several months requiring background investigations and future use of a special identification number assigned to prevent confusion among other people who share a similar name or other identifying data.
Properly regulated and participated in, and universally applied, NICS checks could do miracles for controlling the acquisition of firearms by people who shouldn't have them. Unfortunately, NICS is far from perfect in its current implementation, largely due to toothless regulations compelling information gathering, Second Amendment paranoia, and the attendant political kerfuffle.
IV. Better than nothing, and significantly better than anything more.
So, absent sudden unanimous agreement that anybody should have any weapon they should choose to purchase, whether flintlock rifle or anthrax airburst, at prices decided by the free market, there are going to be restrictions on the right to bear arms by private citizens.
Our problem is restricting the right to bear arms in a way that is practical, logical, and effective while also preserving the rights of the several hundred million Americans who own an incredible variety of weapons for hunting, fishing, recreational shooting, self defense, collectors' value, and hobby tinkering, among probably hundreds of reasons.
It is pretty clear that gun bans, particularly Assault Weapons Bans and others styled after them, are a nightmare in terms of logic and effectiveness, and a complete affront to American liberty. And what, then, about the stunted NICS? What does it say about practical gun control when we can't even be bothered to properly enforce the excellent concept of a central registry of prohibited persons?
And what, too, about the vilified "gunshow loophole" or unregistered private party transfers, where private sellers and private buyers can bypass background checks and sell guns with even less legal oversight than a sack of potatoes?
Here is the proposal. Not a cure-all for gun control in America, but a cure-most. Sure to make the gorges rise on all sides of the debate, and therefore riotously fun to bring up in political discussions:
1. Enact legislation requiring states to provide timely and accurate reporting of prohibited persons to the NICS system, including timely and accurate reporting on previously prohibited persons who have had their rights restored, such as rights-restored felons, or mentally unfit people declared sound and whole.
The system is only as good as its data, and by providing clear legal requirements and penalties for noncompliance, we can ensure that the NICS system is up to date, correct, and as suited as possible for its purpose.
2. Require that NICS be maintained solely as a blacklist, and that all information collected about non-prohibited persons be completely destroyed after 1 year unless an individual is under active investigation for a firearms-related offense.
This ensures that law abiding firearms owners need not fear registries, confiscations, or other records of perfectly legal activities be kept or aggregated by an already nosy government.
3. Rigorously enforce current laws prohibiting the private transfer of firearms to prohibited persons. Ensure that local and state law enforcement authorities (State Patrol and/or County Sheriffs, Local LEO for short) have the means to process NICS checks, and are prohibited from keeping records of who requests them for longer than 1 year.
Wider availability of NICS checks, no fear of ending up on someone's personal naughty list, and stiffer enforcement of current penalties for transferring firearms to prohibited persons will create incentives for private sellers to require that private buyers complete the painless process with any available NICS processor, and bring a copy of the Form 4473 showing "Proceed" to the face to face sale.
4. Allow states the option to issue Purchase Permits at their own discretion, good for no more than 1 year, and requiring a NICS check as well as a criminal background investigation. These Purchase Permits will exempt the holder from NICS checks during the validity of the permit, and may be issued in conjunction with a state CCW as is currently the case in most states using the current exemption criteria.
Allowing people who frequently buy guns to submit to a thorough criminal investigation and final approval by a local LEO in order to avoid frequent NICs checks appeals to convenience and transparency, making people less likely to view the process as a hassle to be skirted or avoided, and reduces the load on the NICS system. Additionally, Local LEOs are most likely to know about disqualifying legal issues, such as domestic violence charges or restraining orders, that may not have fully propagated through the sometimes byzantine web of municipal, county, state, and federal records sharing systems.
V. We are doomed to a future of shrill, ineffective, gun-based panic.
America has a fetish problem.
We tend to fetishize objects associated with social or political issues as a way of coping with the complexities of the American way of life, and American political ideals. We call it a "Gun Problem" and argue back and forth about how many handles a gun should be allowed to have or whether or not we should have them at all.
The real issue is not that there are a lot of guns in America. In fact, trying to change that is not going to work at all. Even if, somehow, anti-gun groups could muster the political leverage to actually ban guns, even just semiautomatic guns, there are hundreds of millions of them to account for and no realistic way to seize them. And even if, somehow, magically, all of the guns in America disappeared overnight, they wouldn't be gone for long. Not with a border porous to hundreds of thousands of illegal aliens, and approximately 24 million pounds of marijuana in 2002 alone.
The real issue is keeping guns out of the hands of people who aren't supposed to have them. Absent some sort of Minority Report style telepathic crime prediction in place of a NICS check, there is no way to ensure that every single person who buys a gun won't use it criminally. But, we can certainly be doing better than we are now, particularly in regards to private sales, undetected straw man purchases, and effective access to background checks for private buyers and sellers.
Most unfortunately, there is no way to stop every bad thing from happening. Attempting to stop random mass shootings with illogical gun legislation is very obviously not the answer - something the NIJ reluctantly agreed on after careful analysis of actual data.
Perhaps you have been reading with a critical eye towards multifarious political outrage sure to accompany any public proposal approaching the one above. I certainly have. The hard left sees nothing being done to get guns of the streets, and the hard right sees nothing but unconscionable restrictions on the Second Amendment rights of free Americans. The Libertarians of course see nothing but more of the same government overreach, and the anarchists, well, if you can find any who aren't throwing firebombs or shivering on a failed commune somewhere, you let me know what they think.
Selected References
ATF NICS Statistics (PDF)
Prohibited persons list - ATF.gov
ATF Form 4473 (PDF)
Full text of the California Assault Weapons Ban
Full text of the 1994 Assault Weapons Ban
NIJ Study, "Impacts of the 1994 Assault
Weapons Ban" - (PDF)
Addendum for posterity - 26 March 2013:
In the wake of the Newtown shootings, another round of "Something must change for real this time" went screaming through the usual circles. President Obama called for gun control measures eerily similar to my proposals above, and I have been asked several times if I somehow got an advance copy through some kind of political plug-in. No, I didn't.
There were portions of the attempted gun control measures that went beyond my proposals - bans on large magazines and "assault weapons" - that I initially took as a good sign. My initial thought was that the anti-gun folks had put them there as an easy compromise, so the pro-gun folks could slice them off after a showboat debate or two, and in that fashion show how they're supporting "common sense gun control" while resisting the gun grabbers and hoplophobes.
To my brief surprise, it was more of the usual, with everyone focused on pretty much exactly what I said they would be... Mostly because that's all they ever are. So, despite the greatest opportunity since owning a piece of the Brooklyn Bridge, repeated fumbles by shrill paranoiacs and disconnected ban-alls have ensured that nothing changed. Nothing of substance has made it through the Congress.
Better luck next time.