|Facts and Policies
Strict Oversight of The Gun Industry
The gun industry enjoys a privileged position as America's least regulated commercial enterprise. Gun makers design, manufacture, market, and distribute their products, the only consumer products specifically designed to kill people, with insufficient oversight. Consequently, gun makers routinely fail to include basic safety features into their products. Companies make and sell junk guns, which have inferior materials, construction and design features, and military-style assault weapons, which do not belong in civilian hands. Some companies highlight features of their guns that have particular appeal for criminals, while the industry as a whole deliberately seeks to recruit children as customers. Some distributors and dealers sell guns to people who cannot legally buy them, or who clearly intend to resell them illegally on the street. Meanwhile, the industry vigorously, and often successfully, resists every effort to establish even minimal regulatory controls.
The Million Mom March Foundation believes that the gun industry's gross irresponsibility must stop, and that it will not stop without strict oversight. This Policy Brief describes the industry's current regulatory status, points out some of the most glaring gaps in supervision, and presents some options for responsible oversight of the gun industry.
How is the Gun Industry (Un)Regulated Today?
The gun industry includes four main elements: manufacturers, importers, distributors, and dealers. Manufacturers design, produce and advertise guns, most of which they sell to distributors. Importers bring foreign-made guns into the United States to sell here, also mainly to distributors. Distributors sell only to licensed dealers, but some are more careful than others about determining the appropriateness of selling to a given potential buyer. Dealers buy guns from distributors and sell them to consumers. Dealers can operate from any fixed location, including a residence if permitted under local zoning laws.
The federal government, through the Bureau of Alcohol, Tobacco, and Firearms (BATF), issues licenses for manufacturers, importers and dealers of firearms. Distributors get the same license as dealers. The license fee for a manufacturer or importer is $50 per year. The fee for dealers is $200 for three years, with 3-year renewals available for $90. In addition to the fee, applicants must submit fingerprints and a photograph. To qualify for a license, the applicant must be at least 21 years old and must not be prohibited from buying a firearm. All applicants go through a background check to determine if they have any felony convictions, are fugitives from justice, or are subject to restraining order. If the background check identifies any of these conditions, the BATF will deny the application. Other grounds for denial include a history of mental illness and habitual use of alcohol or drugs. Today, over 90,000 people have federal firearms licenses (FFLs).
Federal law prohibits the mailing of guns to anyone without a license, and prohibits the sale of handguns to anyone, other than a licensed dealer, who is not a resident of the state in which the sale is made. Licensed manufacturers, importers and dealers can receive firearms through the mail, and can ship them to other licensees.
Federal regulations require manufacturers and importers to mark each gun with a serial number, model, caliber, name of the manufacturer or importer, and the city and state or country of origin. Importers also must certify to the BATF that any guns they wish to import are "particularly suited for or readily adaptable to sporting purposes." The BATF has established criteria for determining whether foreign-made handguns meet this requirement. These criteria, which include minimal design and size requirements, prohibit the importation of junk guns but do not apply to guns made in America.
Federal law also restricts the manufacture or sale of certain kinds of guns, including, among others, some assault weapons and fully-automatic machine guns. Machine guns must be registered with the BATF, and cannot be transferred without prior approval.
Finally, federal law requires manufacturers, importers and dealers to maintain certain records showing when and to whom they sell guns. These records are subject to inspection by law enforcement personnel, and must be kept for as long as 20 years, depending on the type of record. When a licensee goes out of business, he or she must deliver all of the records to the BATF. Licensees also must report multiple sales, defined as the sale of two or more guns to any one person within a five-day period, to the BATF. Other than the out-of-business records, multiple sales reports, and trace reports, the federal government does not maintain any independent record of gun sales.
If a licensee is caught violating any of these rules, the BATF can revoke the license, or can deny an application to renew it. In most cases, licensees do not face criminal penalties for noncompliance.
What Oversight is Missing?
As the preceding discussion demonstrates, federal oversight of the gun industry focuses primarily on record keeping, and not on the behavior of industry participants. The federal government pays virtually no attention to the design, manufacture, or marketing of guns. The two agencies with potential jurisdiction over these matters, the BATF and the Consumer Product Safety Commission (CPSC) currently lack the authority to address them. This lack of federal supervision of the gun industry allows several dangerous conditions to persist.
No Safety Standards
The BATF, which oversees the administrative regulations describe above, is a branch of the U.S. Department of the Treasury. Its primary mission is the collection of federal taxes, and its oversight and enforcement activities focus on ensuring proper payment. Although BATF also performs some important crime-solving functions, like using its access to sales records to trace crime guns, it lacks the authority to establish product safety standards. Similarly, with a few narrow exceptions, BATF cannot regulate the sale of accessories that enhance the lethality of guns.
The CPSC, created in 1972 by the Consumer Product Safety Act (the Act), monitors threats posed to consumers by dangerously designed or manufactured products. The Act defines the CPSC's jurisdiction broadly, giving the agency regulatory authority over nearly every consumer product. The Act expressly exempts several products from the CPSC's reach, including tobacco, motor vehicles, pesticides, aircraft, boats, food, drugs, medical devices and cosmetics. Each of these products, except tobacco, falls within the regulatory authority of another agency, and tobacco may soon come under the jurisdiction of the Food and Drug Administration.
However, the Act also exempts "any article which, if sold by the manufacturer, producer or importer, would be subject to the tax imposed by section 4181 of the Internal Revenue Code. . ., or any component of any such article." This convoluted exemption, the only one that does not clearly name the exempt product, refers to guns and ammunition. Because of this hidden exemption, the CPSC has no power to consider consumer protection standards for guns or ammunition.
Without standards, gun makers, even those generally viewed as "reputable," pay virtually no attention to the harm caused by dangerous designs and poor construction. Many design flaws, most of which can be fixed with minor modifications, contribute to the toll of gun-related injury and death. Some guns fire if they are dropped or bumped, because they lack a simple device, available for decades, that prevents discharge unless the trigger is pulled. Other guns, even some used by law enforcement agencies, fire with the slightest touch of the trigger, resulting in unintentional shootings. All semi-automatic pistols can have an unseen round in the chamber, yet very few include a device indicating that the chamber is loaded. Some guns are made with inferior materials that are too soft or weak to withstand the forces generated during use, posing a risk of serious injury to the user as well as to others. Dozens of lawsuits against these manufacturers have resulted in millions of dollars in settlements, but the terms typically include a gag order prohibiting any public disclosure of the details, and the payments are usually covered by insurance policies. Consequently, many manufacturers keep making dangerous guns.
Limited Distribution Control
Current regulations generate reams of paper without providing any real supervision over the stream of gun commerce. Three major limitations of the current system inhibit our ability to monitor precisely who sells what guns to whom, and under what conditions.
First, at the behest of the gun lobby, Congress has denied the embattled BATF the resources necessary to supervise the millions of transactions generated by tens of thousands of licensed dealers and hundreds of manufacturers and importers. For example, although federal law allows the BATF to inspect the sales records that dealers must maintain, the strapped agency can afford to visit only a small fraction of licensed dealers each year. In part because of concerns about the cost of appeals, the agency only rarely punishes violations discovered during these infrequent inspections.
Federal law allowing sales by non-dealers at gun shows exacerbates the BATF's resource problems. The BATF cannot possibly monitor the millions of transactions taking place between private citizens, either individually or at thousands of gun shows every year. Because most states leave private sales unregulated, these sales occur with absolutely no oversight. The seller does not have to keep any record of the transaction, the buyer does not have to go through a background check, and there is no way to identify or deter illegal sales to prohibited purchasers. This unregulated secondary market is an important source of guns for people who cannot legally buy them. (See the Million Mom March Foundation Policy Brief, Responsible Limits on Gun Access and Use, for more discussion of this issue.)
Second, the limited qualifications necessary to get a federal firearms license allow virtually anyone with two hundred dollars to buy and sell large quantities of guns. Current law provides no reliable mechanism for rapidly identifying manufacturers or dealers who routinely make illegal sales, or for discovering individual illegal sales quickly. Accordingly, thousands of guns each year flood the illegal market, where they cannot be monitored. Without stricter supervision and tighter controls over the legal chain of distribution, we cannot stem this illegal flow of guns into the underground market.
Third, the gun lobby's fear of governmental oversight has led Congress to prohibit the BATF from maintaining a registry capable of tracking the movement of individual guns. BATF also cannot maintain detailed records about the guns sold by an individual dealer until that dealer goes out of business. Much information never gets released to the public, and the information that does see sunlight lacks detail. So we know very little about the relationships among manufacturers, gun types, sales practices, and deaths and injuries. (See the Million Mom March Foundation Policy Brief, Tracking the Problem of Gun Trauma , for more discussion of this issue.)
No Marketing Restrictions
The Federal Trade Commission (FTC) has the authority to regulate the advertising claims made by gun makers. Many gun makers state or imply in the their advertisements, contrary to the available data, that handguns in the home increase the safety of families with children. Other ads target women, encouraging them to buy guns for protection, although the data strongly indicate that the presence of a gun in the home is a risk factor for domestic violence homicides of women. Despite repeated requests for action, including a formal petition filed by the Center to Prevent Handgun Violence in 1996, the FTC has never investigated the validity of these claims. The gun industry also recruits children into the market, recognizing with remarkable candor that its long-term profitability depends upon getting our kids interested in guns. Some companies have designed guns specifically for use by children, and have promoted them in magazines written for young people.
Monitoring the Gun Industry
We can no longer tolerate the regulatory vacuum that has allowed the gun industry to thrive while we endure an epidemic of gun-related injuries and death. We must, at the very least, subject the gun industry to the same kind of oversight that we impose on every other industry. The following proposals address some basic national policies that we demand.
Establish Federal Authority to Create Consumer Product Safety Standards
We must give a federal agency regulatory power over the design and manufacture of guns and ammunition. Proposals to create regulatory authority in the CPSC or the BATF have arisen in recent years, but the gun lobby has succeeded in killing them. If one of these agencies, or a new agency, had the authority to treat guns and ammunition like every other product sold in America, deaths and injuries caused by unregulated design and manufacturing could be substantially reduced. Wherever such authority ultimately resides, all guns and ammunition should meet at least the following product safety standards:
We need much tighter rules covering the distribution system, and the means to enforce them. The following policies would help improve the regulation of distribution:
These and other improvements will help reduce the flow of guns into the illegal, underground market.
Control the marketing of guns to children and criminals
We must stop the gun industry from promoting gun use among children and criminals. Strategies to accomplish this include the following:
The Million Mom March Foundation believes that the unregulated gun industry bears substantial responsibility for the epidemic of gun trauma. Responsible oversight, like the proposals described in this Policy Brief, can help reduce gun deaths and injuries. It is time for America to join every other developed nation in standing up to this dangerous enterprise.
Vernick, JS, Teret, SP, Webster, DW. Regulating Firearm Advertisements That Promise Home Protection: A Public Health Intervention. JAMA 1997. 277:1391-1397.
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Bailey J, et al. Risk factors for violent death of women in the home. Arch. Int. Med. 1997. 157:777-782.
Violence Policy Center, Eddie Eagle: Joe Camel With Feathers. Washington DC: Violence Policy Center, 1998.