|Facts and Policies
Responsible Limits on Gun Access and Use
Despite gun lobby claims that we already have too many gun laws, the reality is that gun sales and use are essentially unregulated. The Bureau of Alcohol, Tobacco, and Firearms (BATF), which issues federal firearms licenses (FFLs) to gun dealers, lacks both the authority and the resources necessary for vigorous enforcement. Consequently, licensed dealers can and do make questionable or clearly illegal sales with little fear of being discovered or punished. (See the Million Mom March Foundation's Policy Brief, Strict Oversight of the Gun Industry, for more discussion of this issue.) Most people, including those with violent criminal records, can legally buy as many guns as they like. Because the law also allows people without FFLs to sell guns with virtually no oversight, gun trafficking thrives. People who keep guns at home can store them unlocked, loaded, and within the reach of children, without fear of prosecution if someone is hurt or killed by a child who finds an improperly stored gun. All of these legal and practical loopholes allow any felon, trafficker, or child to get guns at will.
The Million Mom March Foundation believes that existing laws addressing gun access and use are far too weak. This Policy Brief describes current law, identifies some of its most significant flaws, and provides some examples of responsible limits on gun access and use.
Current Law Addressing Gun Access and Use
Most guns first reach the hands of consumers through gun dealers licensed by the BATF. Federal law requires licensed dealers to maintain records showing what guns they buy and what they do with them, although the BATF rarely inspects these records. Federal law also prohibits licensed dealers from selling any gun to anyone who they know, or reasonably should know, falls into one of several categories of prohibited purchasers. These categories include felons, fugitives, minors, people with domestic violence restraining orders against them, people with misdemeanor domestic violence convictions, habitual users of drugs or alcohol, and a few others.
A national instant check system (NICS) allows dealers to determine, at least in theory, whether someone who wants to buy a gun falls into one of the categories of prohibited purchasers. In most cases, the NICS system can approve a sale within minutes. Some states using this system allow people who pass the instant background check to buy guns immediately, without any waiting or "cooling-off" period. Some states use their own background check systems instead of the NICS, and many of these states require buyers to wait for three, five, or even ten days after purchase before picking up their guns.
Even without an FFL, a gun owner can legally sell guns from his "private collection" as long as these sales are "infrequent" (defined as six transactions per year). Federal law does not provide for any oversight of these private sales, although a few states require these transactions to be conducted through licensed dealers or law enforcement agencies.
Federal law allows legal purchasers to buy as many guns as they like, as often as they like. Dealers must report multiple purchases by a single buyer to the BATF, although no reporting will occur if the buyer gets guns from different dealers. The dealer must also report multiple sales to state or local law enforcement, but, because the gun industry fears any record keeping about gun ownership, these agencies cannot keep the reports for more than 20 days.
Federal and state laws also make it illegal to sell or possess some guns, particularly machine guns and some assault weapons. Machine guns must be registered with the BATF, and cannot be transferred without prior approval. The sale and possession of certain gun parts, like those which convert a semi-automatic gun to fully-automatic, are also prohibited.
Federal law imposes only minimal limits on access to ammunition. Ammunition sellers cannot sell to anyone who cannot legally buy a gun. The law also prohibits the sale of any ammunition to minors under 18, and of handgun ammunition to anyone under 21. However, some ammunition fits both handguns and long guns. The law allows a dealer to sell this ammunition to a minor if the dealer believes that the minor intends to use it with a long gun.
Federal regulation essentially disappears once a gun leaves the hands of the licensed dealer. Most of the "gun laws" referred to by the gun lobby are federal, state and local criminal laws barring the use of guns in the commission of crimes, the possession of handguns without a permit, the discharge of guns within city limits, and the possession of guns in protected areas like schools and airports. These laws focus on punishment, rather than preventing gun access.
What is Wrong With Current Law?
At first glance, federal gun laws may seem fairly comprehensive. Possession and sale of guns by certain people is illegal, some particularly dangerous guns and ammunition are not supposed to be sold or possessed by anyone, and no-one is allowed to provide guns or ammunition to minors, felons, or other prohibited purchasers. In fact, however, these laws, important as they are, are incomplete and ineffective. Prohibited purchasers can still get guns; people who should be prohibited purchasers can buy guns legally; buyers can get unlimited amounts of guns and ammunition; and gun owners are not required to store guns responsibly. Because of these flaws, too many people have access to too many guns.
Ineffective Restrictions on Access by Prohibited Purchasers
Although federal law prohibits certain categories of people from legally buying guns, and blocks tens of thousands of attempted purchases from licensed gun dealers every year, people in these categories still have easy access to guns. Poor oversight of gun sales, the existence of a vast illegal market, and flaws in the data used for background checks all weaken the ability of the law to prevent access by people who cannot legally buy guns.
One weakness in existing law is the poor oversight of sales. Although licensed gun dealers must keep records of all of their sales, their daily business is rarely, if ever, scrutinized by authorities. Knowing that they run little risk of getting caught, many gun dealers willingly engage in "straw sales." These transactions occur when a person who cannot legally buy a gun enlists someone else to buy one for him. Although these fraudulent transactions are often quite obvious to the dealer, the dealer has little incentive to refuse the sale as long as some legal buyer fills out the paperwork. If the gun is later recovered in a crime and traced, the dealer can point to a technically legal sale and claim ignorance about what the buyer did with the gun. Because the last legal purchaser of a gun bears no responsibility for its later misuse, there is little risk to the straw buyer in facilitating the fraud, and the prohibited purchaser gets his gun.
A second, related problem results from the fact that people who cannot legally buy guns can get them illegally through unregulated private sales. Every year, over back fences and at thousands of gun shows and flea markets nationwide, millions of private gun sales occur with no oversight. A few states require private sales to pass through licensed dealers or law enforcement agencies, ostensibly forcing the buyer to pass a background check and comply with any waiting period. But no state has a reliable way of identifying sales that occur without meeting these requirements. As long as private sales occur outside the legal distribution system, prohibited purchasers can easily buy guns without fear of detection.
Third, flaws in background check systems allow some prohibited purchasers to slip through. The accuracy of a background check depends on the quality of the information they use. Variations in state record keeping, delays in updating records, and other technical issues create gaps in the databases. The greatest likelihood of errors occurs with misdemeanor domestic violence convictions (which may take considerable time to identify), mental health histories (which some states do not report), and drug and alcohol addiction (which may exist without any formal record). The gun industry has exacerbated these problems by pushing, often successfully, for extremely rapid background checks that prevent thorough research into an applicant's history.
Inadequate Limits on Who Can Legally Buy Guns
Another serious problem with current law is that the list of prohibited purchasers is too narrow. Existing law allows many criminals, even people who have committed violent crimes, to buy guns legally. The law also allows people to buy guns with no training in gun safety, no experience in using guns, and no understanding of gun laws. None of these people should be allowed to buy guns, yet current law makes it legal for them to do so.
Although federal law prohibits purchases by convicted felons or by people with misdemeanor domestic violence convictions, people with other misdemeanor convictions, including violent criminals, can legally buy guns. Recent research from the Violence Prevention Research Program at the University of California at Davis demonstrates that handgun buyers with prior misdemeanor convictions are many times more likely than those with no such history to be arrested for crimes after purchasing a handgun.
Criminals are not the only people with inappropriate legal access to guns. Anyone who is not in a prohibited category can buy guns, without proving that they know anything about handling, using or storing a gun safely. Because we do not license gun owners the way we license motor vehicle drivers, gun owners do not have to know how to tell if a gun is loaded, how to use a manual safety, nor what to do if a chambered round fails to fire. They do not have to show that they know or understand gun laws, and they do not have to demonstrate any awareness of the many risks associated with bringing guns into the home. Although some states have adopted minimal screening systems for gun buyers, no state requires the applicant to demonstrate proficiency in handling, operating, or shooting a gun, and few test the buyer's knowledge of gun laws or gun safety.
No Limits on Bulk Purchases of Guns or Ammunition
Anyone who can legally buy a gun can buy as many as he chooses, at once or over time. Anyone at all, even people who cannot legally buy a gun, can, as a practical matter, buy as much ammunition as he wants. The law allows gun traffickers to supply illegal buyers, and lets those buyers keep their guns loaded.
The ability to buy guns in unlimited quantities promotes gun running from states with weak gun laws to states with stronger gun laws, and provides a continuous supply of guns to illegal markets everywhere. We know from past experience that responsible limits on legal purchases can affect the illegal distribution of guns. For example, in the 1980s, guns bought in bulk in Virginia, where gun laws were relatively weak, turned up regularly in crimes in New York, which had relatively strict gun laws. Virginia adopted a one-gun-a-month limit in 1993, which, according to research from the Center to Prevent Handgun Violence, dramatically reduced the flow of illegal guns into New York and other states. With no national policy limiting bulk purchases, however, gun traffickers simply relocated to other states and continued to sell guns illegally into New York. Because of the steady flow from other states, guns remain readily accessible to prohibited purchasers.
Prohibited purchasers can buy ammunition even more easily than they can buy guns. Ammunition sellers do not need an FFL, and are not required to keep any records. Ammunition buyers need never produce proof of age or identity, and minors can legally buy ammunition that fits in handguns. Many people load their own ammunition, and the sale of the necessary supplies is completely unregulated. Consequently, people can legally buy or make ammunition, no questions asked, for guns they cannot legally own.
Insufficient Restrictions on Access at Home
Surveys consistently indicate that gun owners often keep guns loaded and unlocked, and therefore easily accessible to children or other unauthorized users. Thousands of times a year, young people find those guns, pick them up, and kill or injure themselves or others in suicides, assaults and unintentional shootings. Yet federal law, and the law of most states, does little to require, or even encourage, responsible storage of guns in the home.
Some states have tried to convince gun owners to lock up their guns by imposing criminal penalties on an adult gun owner if a child finds and uses an unlocked gun. These laws, called "child access prevention" (CAP) laws, properly focus attention on the behavior of gun owners. But many gun owners reject the possibility that children will find or play with guns kept in the home, and do not believe the law will ever apply to them. When a gun owner's irresponsibility does cause a preventable tragedy, prosecutors are often reluctant to charge the gun owner with violating the CAP law. Few gun owners have ever been charged under these laws, in many cases because the laws allow considerable discretion in determining whether the gun was properly stored. Prosecutors have declined to charge gun owners who have left loaded guns on closet shelves, in unlocked briefcases, or under a blanket, on the basis that such storage was "reasonable." The absence of prosecution reinforces the belief of gun owners that their own bad decisions have no legal consequences, and reduces the likelihood of proper storage.
The gun industry further undermines the effectiveness of CAP laws by promoting the false notion that a locked gun will be inaccessible in an emergency. In fact, many gun locks and safes allow rapid access while providing a high degree of protection against unintentional or unauthorized use. Some new designs even allow a gun owner to store the gun loaded and ready to fire, while reliably preventing anyone other than the gun owner or other authorized user from firing the gun.
But the law does not require gun owners to use any such device, and in most places does not even require them to have such a device. Gun makers do not have to make locking devices available (although a few companies have begun to include locks with some guns), and gun dealers in most jurisdictions can sell guns without providing locks or safes.
What Are Responsible Limits on Gun Access and Use?
Existing laws fail to impose responsible limits on gun access and use. We can no longer tolerate policies that allow violent criminals, children, and people with absolutely no training to buy guns and ammunition. The following proposals address some basic national policies that we demand.
Licensing of Gun Owners or Buyers
Anyone interested in buying or owning a gun should have to pass tests at least as rigorous as those facing people who want to drive cars. A licensing system for gun owners or buyers would ensure minimal levels of competence before a person gets legal access to a gun. Licensing would also improve the accuracy of background checks at the point of purchase by providing better identification of the buyer. Applicants for a license would need to:
Registration of Handguns
Registration provides a mechanism for monitoring the flow of handguns in private hands. With appropriate follow-up, registration can prevent illegal transfers by making the registered owner responsible for what happens to his or her gun, and by forcing owners periodically to claim or disclaim responsibility for their guns. Registration also allows restriction of handgun ammunition to buyers who legally own a compatible handgun. A registration system would include:
Gun and Ammunition Purchase Limits
As long as people can buy unlimited quantities of guns and ammunition with virtually no scrutiny, the illegal supply of guns will remain well-stocked. Responsible limits on gun and ammunition purchases include:
No more than one gun a month for any buyer; Ammunition sales only by federal firearms licensees; Background checks for ammunition buyers; Ammunition purchases limited to ammunition compatible with a handgun registered to the buyer, or with a long-gun for which the buyer has proof of ownership.
Adoption and Enforcement of Strong Child Access Prevention (CAP) Laws
As noted above, CAP laws properly focus on the irresponsible behavior of gun owners when children gain access to improperly stored guns. These laws, however, are often weak and under- enforced. Strong, enforced CAP laws should include:
Stiff criminal penalties for adults who leave guns accessible to children, even if no injury results; Application in every case in which a minor up to age 18 is found in illegal possession of a gun; The loss of gun ownership privileges upon conviction; A high standard for responsible storage, including the use of a locking device or gun safe.
The Million Mom March Foundation believes that the prevention of gun death and injury requires responsible limits on access to handguns and how they are used. We need to pay much closer attention to who buys guns, how many guns people buy, and what happens to guns once the enter private hands. National licensing, registration, purchase limits, and storage laws will help prevent gun access and use by people who should not have guns or ammunition. Without these changes, the epidemic of gun trauma will continue.
Violence Policy Center, Gun Shows in America: Tupperware Parties for Criminals. Washington, DC, 1996.
Weil, DS, Knox, RC. Effects of Limiting Handgun Purchases on Interstate Transfer of Firearms. J.A.M.A. 1996; 275:1759-1761.
Wintemute, GJ, et al., Prior Misdemeanor Convictions as a Risk Factor for Later Violent and Firearm-related Criminal Activity Among Authorized Purchasers of Handguns, J.A.M.A. 1998; 280:2083-2087.