by Erik Larson
These gaps in existing federal law, and the utter lack of uniform regulations governing most other aspects of firearms transactions, create insane juxtapositions of regulation and deregulation at those points where federal and state laws intersect. Guns Unlimited, as I’ve shown, played regional variations in the law to its advantage, selling customers a handgun in one jurisdiction, but completing the paperwork and delivering the weapon in another, less-regulated locale. In Maryland, state law requires that anyone who buys a handgun from a legitimate dealer must wait seven days before he can actually take possession of the gun; yet, as per federal law, if he buys that same gun from a private seller, say after seeing it advertised in the classified ads of his local newspaper, he can receive the gun immediately.
On December 14, 1992, Wayne Lo, a Montana boy attending Simon’s Rock College in Great Barrington, Massachusetts, bought a semiautomatic Chinese ancestor of the AK-47, called an SKS, simply by presenting his Montana driver’s license and plunking down $150. Before the McClure-Volkmer Act, he could not have bought the gun so readily. The Gun Control Act of 1968 had banned interstate sales. Even if Lo had established residency in Massachusetts, he still could not have walked away with the gun. Under Massachusetts law, he would have had to apply for a firearms identification card and wait thirty days for a background check. The McClure-Volkmer Act, however, allowed sales of rifles and shotguns to out-of-state buyers if the sale is conducted in accord with the laws of the buyer’s home state. Regulations in Montana are notoriously lax. Lo used the gun that night to kill a professor and a student, and to wound four others at the college. He had acquired the ammunition by mail directly from a North Carolina ammunition supplier. This transaction too was a dividend of the McClure-Volkmer Act, which repealed the Gun Control Act’s ban on interstate and mail-order sales of ammunition directly to consumers.
The lack of a uniform system of federal regulations allows traffickers to shop jurisdictions for the easiest commercial conditions. When South Carolina instituted its one-gun-a-month law, for example, Virginia became the number one source of crime guns found in the Northeast. Early in 1993, Virginia passed its own one-a-month law. Although the new law’s impact was not immediately apparent, it seemed certain to reduce the traffickers’ interest in Virginia. The trafficking will not stop, however. Just as many guns will make their way to the bad guys as ever before. The East Coast buyers will simply spend their money elsewhere, most likely Georgia, Ohio, and West Virginia.
That the nation needs a detailed, uniform code of firearms regulations ought to be, by now, beyond rational dispute. The fact is, many states have already passed firearms regulations far stricter than anything Congress has ever seriously debated. As of 1989, for example, twenty states already required that consumers first get some kind of license or purchase permit before acquiring a handgun; nineteen had a handgun waiting period ranging from forty-eight hours to up to six months.
The Second Amendment certainly poses no obstacle, despite the NRA’s rhetoric. As written in the Constitution, the full amendment reads: “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” The amendment may indeed guarantee individuals the right to bear arms. Then again, it may not. At this point, only a definitive ruling by the U.S. Supreme Court can resolve the matter. I for one remain intrigued by the “well-regulated” portion, which the NRA omitted when it displayed the rest of the amendment on the front of its Washington, D.C., headquarters. One gun-camp scholar has gone so far as to suggest that “well-regulated” means equipped with rifles that shoot straight. In his book, The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? David Kopel argues that “in firearms parlance ‘regulating’ a gun means adjusting it so that successive shots hit as close together as possible.” He writes that “ ‘regulated’ was an exhortation to competence, not an invitation to bureaucracy.” His conclusion, one he describes as “plausible,” is that a “well-regulated militia” meant “an effective citizen militia whose members hit their targets.” Kopel presents this notion three hundred pages into a detailed, heavily footnoted volume published by the Cato Institute that on first read may seem unbiased and almost scholarly. It is always important, however, to read anything on the gun debate carefully with an eye to capturing distortion and undisclosed bias. Kopel raises his true flag on page 152 where he cites research by “criminologist Paul Blackman.” Blackman may indeed be considered a criminologist in some circles, but he is also the NRA’s director of research. And Kopel, as I later found, is an NRA activist: and gun columnist. Nowhere, I might add, did the book divulge Kopel’s true identity.
I happen to side with established constitutional scholars who believe the document was designed to be applied at any time in the future with full relevance and authority to accommodate even such once-inconceivable developments as women’s suffrage and the abolition of slavery. I cannot help but wonder how James Madison would react upon reading a week’s worth of the Metro section of the New York Times, especially at year-end when the Times and most other big-city papers present their running tallies of the year’s homicides.
All the noise and dust generated by the debate over the true meaning of the Second Amendment obscures a fundamental question: Who cares? I recognize: that here I am inviting the NRA to do a little joyful editing and display this sentence in one of its ads or better yet in one of its emergency Minuteman mailings. (I say now, it’s okay, boys, you have my permission.) In fact, the Second Amendment does not, and never has, prohibited robust regulation of firearms, not even the NRA-conjured bogey, national registration of firearms.
Rather than viewing federal firearms regulation as the first step toward tyranny, as the NRA propagandists propose, we should see it as a means of ensuring that we can still enjoy the liberty we do have. We live now under the increasing restrictions of a particularly pernicious kind of tyranny that has sharply proscribed the contours of our lives. We do not go out at night without first considering the risks involved in doing so. Already many of us consider vast portions of America off-limits to us because of the potential for gun violence. We run red lights at lonely intersections. We choose our gas stations with care. We park as closely as possible to the entrances of our favorite malls. We avoid certain automated teller machines. When we pull up at our neighborhood 7-Eleven store, we look carefully through the display windows to see if the place is being held up. We do not intercede when we encounter an altercation among teenage boys because one or both may have a gun. We don’t dare yell at drivers who drive too fast through our neighborhoods. When our cars are hit from behind, we keep driving until we reach the nearest police station. In happier times this was called leaving the scene of an accident; now even my insurance company advises the practice.
Today when we send our kids off to school, we experience a brand-new kind of anxiety, the fear not that some bully will rough them up and steal their lunch money, but that they will be shot dead. What are we to advise our children today when they come home complaining of harassment by the school bully? Do we teach them how to fight, as Ward Cleaver might have taught “the Beave,” or do we buy them Kevlar vests and tell them to stay low? Should we buy our kids Raven pocket semiautomatics? A 1993 survey by Louis Harris found that four out of ten students said the fear of violence had sharply altered what they did with their free time and whom they picked to be their friends. These students lived in rural, suburban, and urban neighborhoods. Fifty-five percent said they wished their schools had metal detectors. In a related survey, Harris found that 59 percent of adults saw the dangers from guns as “serious” as or “more serious” than car crashes. Even the NRA’s rank and file seem troubled. Thirty-four percent of the NRA members captured in Harris’s survey agreed “young people’s safety is endangered by there being so many guns around these days.”
I read with rueful delight a 1993 cartoon by Mike Luckovich of the Atlanta Cons
titution, which showed an Arab terrorist squad in a bomb-packed car receiving some last-minute advice before heading for America. “Remember, carry a map. If you get lost, you may end up in a bad neighborhood. If someone rear-ends you, don’t get out. They may be armed carjackers. Keep your doors locked.…”
In 1975, a congressional subcommittee asked the NRA’s Harlon Carter if he felt it was preferable to allow felons, drug addicts, and the mentally ill to acquire guns, rather than to establish a means of checking the backgrounds of all buyers. Yes, Carter responded, it was “a price we pay for freedom.”
We are advised today by the NRA and the likes of Paxton Quigley not to fight like the devil to free ourselves from the new tyranny of the gun, but to arm ourselves. The more guns the better. To anyone raised in the Vietnam War era, surely, this position has a disconcertingly familiar ring. For what is the NRA doing but reshaping that sad old maxim “We must destroy the village in order to save it.”
We must endure tyranny—the new tyranny of the gun with its concomitant loss of dignity, honor, and compassion—in order to avoid tyranny.
I propose a five-part omnibus law that will use the word ban only once—yes, I apologize, I betray a rather antiquated bias here: I do happen to believe that silencers should be outlawed, even those registered by police and law-enforcement agencies. However hard I try, I simply cannot foresee a practical use for silencers that would conform to our society’s belief in due process and the rule of law.
If enacted in its entirety, with none of the almost-criminal loopholes that have marred existing laws, I guarantee my proposed regulations, which I like to think of as the “Life and Liberty Preservation Act,” would sharply impede the flow of guns to kids, felons, and irresponsible shooters, with no significant impact on those upright citizens who keep guns for self-defense, for plinking, or for hunting. If anything, today’s patchwork of laws has made things far more difficult for the legitimate shooters, something the shooters tend to blame on gun-control advocates, the media, and other “gun grabbers.” In fact, the blame belongs with the NRA itself, which bears so much responsibility for the disarray in firearms regulation that exists today.
I propose, for example, to abolish all barriers to the interstate transportation of firearms. Wouldn’t that be nice, those of you who hunt or who for professional reasons feel a need to carry a gun? (I refer here to private detectives, bodyguards, and the like, not hit men.) In fact, I suggest that the nation’s first step ought to be the wholesale repeal of every state, county, and municipal firearms regulation currently on the books. The NRA is quite right in pointing out, ad nauseam, that New York and Washington, D.C., have some of the toughest gun-control laws in America, and two of the highest per capita homicide rates. Erase these ineffective regulations—but immediately replace them with a formal, rational federal code that at last recognizes guns for what they are: the single most dangerous, socially costly, culturally destabilizing consumer product marketed in America.
Herewith, the Life and Liberty Preservation Act, its provisions divided into three parts governing the distribution, purchase, and design of firearms:
I. DISTRIBUTION
Any serious effort to halt the mass migration of weapons to illegal hands must first concentrate on the firearms distribution network, in particular, the role played by retail dealers. As things stand now, it is simply too easy to get a license to buy and sell guns. As a first step, Congress should repeal all provisions of the McClure-Volkmer Act, except the machine-gun ban.
The Life and Liberty Preservation Act would then:
♦ Sharply increase the cost of the basic gun-dealer license to $2,500 and designate this a one-time business-entry fee. This alone would sharply reduce the number of Americans who now hold Federal Firearms Licenses. At $30 the license has proven too tempting for would-be felons to pass up.
♦ Require that before receiving a license, a prospective gun dealer first present proof that he has met all local and state regulations governing the operation of a business. For example, he would be required to show proof that his dealership satisfied all local zoning requirements.
♦ Require every dealer to take a course designed to familiarize him with all federal firearms laws, with the ways in which buyers try to evade the laws, and with proper techniques for protecting firearms and ammunition from robbers and burglars. The law further would require that dealers demonstrate a basic working knowledge of firearms and firearms law by passing a licensing examination, as doctors and lawyers must. The dealer would have to attend a refresher seminar every three years to revalidate his license. These seminars would brief dealers on new changes in federal regulations, new court precedents, and the latest patterns in firearms trafficking.
♦ Provide, for the first time, an objective definition of what it means to be “engaged in the business” of dealing firearms. Any dealer who wished to retain his license would have to prove that in his first year of operation he had revenue from gun sales of $1,000 or more. As proof, he could simply file a duplicate of his dealership’s annual IRS filing.
♦ Establish a scale of penalties for failure to keep accurate records. If, for example, ATF discovered that a dealer had failed to record the disposition of firearms sought in three ATF traces conducted in any one year, ATF could immediately revoke his license, subject to administrative appeal. Any dealer who refused to cooperate with an ATF trace request, even once, would likewise lose his license.
♦ Require mandatory inspection of the business premises of all new licensees. The dealer’s license would remain provisional until the dealer passed such an inspection, or until six months had elapsed, whichever came first.
♦ Require that consumers who buy guns from private sellers fill out a form 4473, just as they would if buying from a licensed dealer. In this case the sellers would send a copy directly to their regional ATF office. (Notice I said regional office—the same place where multiple-purchase forms currently end up. I emphasize this to calm those who may be inclined to leap from their chairs and condemn this measure as an effort to build a central database of gun owners.) The actual transfer of the weapon would take place in the presence of a licensed dealer. Such a service would not be that different from the role now played by dealers who act as middlemen in mail-order sales of firearms. Consumers cannot receive mail-order firearms directly, but must designate a local dealer, who then formally transfers the weapon, keeps the form 4473, and records the transaction in his acquisition and disposition book. Dealers should not object to my proposal. The new purchaser is highly likely to turn around and buy ammunition and other accessories from the dealer.
♦ Require that ATF issue to licensed dealers a primary display license and a set of formal, embossed duplicates to be signed by the dealer and notarized before being mailed to the distributor. Distributors in turn would be required to verify the dealer’s license number and name before sending him any guns. A distributor would accomplish this by calling a toll-free number at ATF’s licensing center, punching in his own license number, waiting for a prompt, then entering the dealer’s number and name. A tone would signal that the license was valid. An ATF computer would keep a digital record of the call and file it for later retrieval when inspectors got around to doing their routine compliance audit of the distributor’s business. Manufacturers would likewise have to verify the license numbers of distributors.
The primary benefit of these distribution regulations would be to shrink the number of licensed dealers to a core group of those willing to take the time and energy to establish bona fide businesses. These dealers, in turn, would benefit from reduced competition and by capturing as customers those consumers who became kitchen-table dealers just to buy guns at wholesale prices. Dealers who remained in the business would have a greater incentive to keep good records and to turn away clearly questionable buyers. Private sellers too would be less inclined to sell their guns to such buyers. The measures, moreover, would greatly bolster the tracing network.
I
t would be unfair, of course, and exceedingly naive to expect that dealers would suddenly become priestly arbiters of firearms distribution, rejecting customers who looked felonlike or who sweated too much or whose eyebrows twitched a tad too often.
My law would at last remove from their shoulders the weighty burden of screening customers through a measure that many ardent gun owners tell me they would be more than willing to accept.…
II. PURCHASE
The Life and Liberty Preservation Act would require that all prospective gun buyers age twenty-one or over first acquire a license-to-purchase. Yes, we are talking here about licensing gun owners. To qualify for the license, each consumer would have to pass a criminal background check and take an ATF-certified course covering firearms law, the use of deadly force, and safe gun-handling, and including lectures on the most common forms of firearms accidents, the importance of cleaning a gun, and how best to keep that gun out of the hands of children. It would be nice, but certainly not mandatory, if such a course also included a film or some other means of demonstrating the damage real bullets do to real people. Scare films of the kind I envision here were a staple of driver’s education classes at my high school: one image, of bodies strewn around a head-on wreck caused by a drunk driver, stays with me even now just as vividly as ever.