The Road Less Traveled By

There’s an old adage, often used in the context of court verdicts or mediation decisions, that effectively states, “If neither side is particularly happy with the ultimate outcome, there’s a chance that the result was fair and feasible.”

Now, most assuredly, there are many circumstances where a middle-of-the-road approach is inappropriate.  When seeking justice in matters of violent crime, for example, there is no appropriate “both sides” standard where the public interest is served by splitting the difference between what the Prosecution the Defense wants.  The accused is either determined to be guilty or not.  (Although this doesn’t stop District Attorneys’ offices from the laughable practice of stacking indictments of manslaughter, murder, and more all together in the hopes of hedging their bets if a jury won’t convict on Murder 1 but may assent to a guilty determination for Man 2.)  But when the matter at stake isn’t one individual’s culpability but rather it’s a question of broad policy being debated, sometimes King Solomon can split the baby in the search for a practical solution.

 

As people on all sides of the issue of gun violence start clearing their throats across the country in anticipation of shouting past one another for a week given the recent shooting at Saugus High School, I felt like penning this brief blog post which is likely to please no one and will probably generate some disapproving clucks in the comments section of my YouTube channel or on Twitter or whatnot.  But remember, hey… if your idea appears “infeasible” to most folk, just call it an “innovative solution” to a “unique challenge” and hope no one notices.

 

Where the Discussion Typically Goes

 

I’m not going to do a deep dive into any of the following solutions, other than to describe in a few sentences why they are practically or politically worthless ideas and can gain no traction at the present time:

 

Banning Specific Guns – This is political death to any politician or party foolish enough to try.  The most popular firearms in America are the most maligned.  The AR-platform is the most popular rifle in this country.  The Glock 19 is the most popular pistol in this country.  The last massive ban in the 90s sent loads of centrists running toward the GOP, the effects of which we are still feeling and which in many ways led to the emergence of entrenched fascism in America today.

Restricting Magazine Capacity – Noncompliance and lack of efficacy are both points here, take your pick.  The only political way to even remotely imagine such a measure passing across the USA would include grandfathering existing magazines.  And magazines do not typically have serial numbers or date stamps.  Not only will the bulk of gun owners not comply, but fast reloading of smaller-capacity magazines results in the same capability in all modern firearms.

Buybacks – Whether mandatory or not, the Freakonomics researchers captured the statistical reality here with blistering perfection: “People are confused with respect to how dangerous a particular gun is… the typical gun buyback program I would guess saves approximately maybe 0.0001 lives.  And I think that’s being optimistic about the size of the effect.”  The audio of the episode is in the above link or you can read the full transcript here.  Humans are generally awful at risk assessment.

Licensing or Restrictions on Ownership – More on this below, because while it’s not a policy I would remotely support, it’s what I would predict as a tactic in the distant future that could, in theory, slowly reduce the overall numbers of guns in circulation and eventually more and more groups are going to jump on this as “the right approach” to America’s gun violence problem.

 

New Ways of Thinking

 

So, having offered my opinion regarding how and why most typical proposals which are ostensibly geared toward “reducing gun violence” are doomed to total inefficacy, what “new and innovative” (read: “probably infeasible but nonetheless interesting to talk about”) solutions would I choose to discuss today?  I have two, in fact…

 

Stop Rewarding Shooters – While the bulk of homicides involving firearms in this country are low-profile and often barely covered on the news (violent street crime at an individual level or intimate partner violence) it is undeniable that acts of domestic terrorism and other “mass shootings” (most particularly, school shootings) are sensationalized in the media and capture widespread national attention.  Indeed, it is often the explicit aim of many of these horrendous perpetrators to garner infamy and have their name and their image plastered across the news in the wake of their heinous actions.  Other nations (New Zealand, for example) have a policy of explicitly not granting this deeply-sought power to the monsters who want to write their names upon our history books in blood.  Now, here in the United States, a consequence of our First Amendment (the importance of which is paramount) is that legislative solutions to this issue would be unconstitutional.  That does not mean that it wouldn’t be a laudable goal for our society to try, however.  Journalists are not legally obligated to check facts or protect off-the-record sources, but on the whole our media landscape consists of professionals who respect such norms.  While it would be hard (and there is also the importance of striking a balance that also allows for learned commentary and analysis of what drove a particular act of violence) I believe that it would at least be feasible to experiment with keeping terrorists and mass shooters from achieving the fame that they so explicitly seek.

 

The Question of Background Checks – Many column inches are devoted to commentary that asserts overwhelmingly high public support for “universal” background checks for firearm purchases.  However, there’s a great dearth of specificity regarding how such a policy would be defined.  The bulk of resistance to background checks is often voiced by individuals who see them as a backdoor attempt to create widespread gun ownership registries, which across the globe throughout history have always become a tool to oppress law-abiding citizens and deny people (often under-represented minorities and people without significant political power) from the free exercise of the right of self-defense.  What most people really mean when talking about preventing firearm homicides, however, and what most people on all sides of the debate support could be worded as “preventing known violent criminals from acquiring firearms.”  And I do think that there is some room for progress and innovation here with regard to background checks.

Before I unpack my thoughts here, I should very clearly and unequivocally state that many of our current background check solutions are imperfect.  Not only are some individuals in our society improperly classified as prohibited persons (for reasons as silly of conviction of victimless crimes or as bigoted as being gender non-conforming) but the databases and lists used to determine firearm eligibility are horrifically opaque.  The proposal some time ago of “adding people from the no-fly list to the firearm prohibited persons lists” was among the worst schemes I’d seen in a while which would have only further undermined the whole matter.  In general, I only support prohibition of firearm ownership on the basis of either (a) criminal conviction in a court of law for a violent crime or (b) credible evidence entered into the public record of terroristic threats or a pattern of escalating unstable behavior and clear indicators of a propensity for violence toward others.

So, even if we agree that no list of prohibited persons is ever going to be perfect, I would hope that for the purposes of this discussion we can explore the idea that some form of disqualifying criteria could exist, that we could agree on it (more-or-less) as a society, and that there is no real defensible reason why such a list of prohibited persons should make use of “secret” information or be otherwise beyond review and straightforward correction if someone finds themselves improperly prohibited from exercising their constitutional rights.

 

OK, so let’s imagine society will make a stab at saying “these persons are known and established by evidence to be violent and should not own firearms.”  What happens next?  How is such a prohibition enforced?

Well, at present, in almost all circumstances, these prohibitions are enforced at time of sale.  All gun owners are likely quite familiar with filling out the BATFE Form 4473 and waiting while their FFL dealer either places a phone call or uses the web-based echeck system (in place since 1998) in order to perform what is known as a NICS check while the customer waits there in the shop, hoping to complete their transaction.  Each NICS check process results in the return of a status of Approved, Denied, or Pending and the generation of a hash code which is also returned to the dealer and which can be used for auditing purposes after the fact.  I (and many other gun rights advocates) find various faults with this process.  To list a few…

 

Time – It is not possible to “pre-check” oneself before attempting a firearm purchase.  The NICS system is only for FFL dealers who must go through a registration and fingerprinting process and have a certificate sent to them.  Their certificate lasts 12 months and their account must be used at least once in 30 days or it is automatically locked.  Furthermore, an FFL dealer can only perform a check on a completed Form 4473.  Dealers input their registration number into the system when running NICS checks.  All of this means that there is effectively no mechanism by which the average citizen may check their own name against the prohibited persons list.  Every gun sale introduces the concern that a database error or change of address may result in a denial (for opaque reasons) and oblige a citizen to put off their purchase, make further trips back to the store later, etc.

Cost – By law, it is unlawful to charge for a FBI NICS check.  However, FFL dealers almost always charge the public a “transfer fee” for any firearm ownership transferal.  And, as we saw above, dealers are only permitted to perform a NICS check on a completed Form 4473, during a firearm transaction.  Also, many states require dealers to use a State Police check system (for which there often is a fee) as opposed to the FBI’s national system.  Therefore, whether or not a check results in an instant Approval, customers are effectively always reaching for their wallets.  Beyond that, if an interstate purchase is being facilitated (from an internet auction site, for example) typically the item itself has also already been paid for and shipped to the dealer at the customer’s expense.  If the background check presents a problem, now a fully paid-for firearm sits in limbo, in the dealer’s shop, while the customer must figure out their next steps, possibly involving re-selling it (often at a loss) through this exact dealer.

Redress – As mentioned above, a rejection result from the NICS system affords very little information to the customer (or even to the dealer) and removing oneself from the list of prohibited persons if you are not, in fact, a criminal is not a clear process.  (A customer does have the right, however, to get a copy of the completed Form 4473 for their records — regardless of the NICS check result — which would include documentation of the echeck transaction hash.)

Records – And now we come to the biggest pain point of all, as far as firearm ownership rights are concerned.  By tying the background check process exclusively to transactions and transfers of firearms, the NICS system can be leveraged by government as something of a de facto firearm ownership registry.  While such records are not supposed to be maintained, staunch believers in civil liberties (myself included) are strongly opposed to affording the government any further means of building lists of gun owners (or likely gun owners) and this is what drives a considerable amount of the friction when expanded background checks are suggested.

 

So what would I propose?  Treat establishments that sell firearms much like establishments that sell alcohol or cannabis.

If an American walks into a bar and looks young, chances are high that they will be carded, either by a door bouncer or by the bartender.  After showing ID and establishing that they are 21 (a process that, in my view, should never involve anything saved in a database) then that person is considered acceptable to be in the establishment… whether or not they are actually consuming alcohol or cannabis.  It is not the government’s business to know if such a person is making one purchase, ten purchases, or zero purchases.

I would strongly support such a solution for firearm owner background checks… at gun stores, gun shows, and gun ranges:  establish that persons entering the premises are not violent criminals by means of a quick and free background check, unrelated to any Form 4733, at the main entrance and then leave them alone because society’s interests are already fully-served at this point.

Would this approach have some complications?  I won’t deny that the current architecture and layout of any number of gun shops and expo centers don’t lend themselves to easy throttling at the front door and foot traffic restriction of the kind I’m describing.  I also acknowledge that some establishments which sell guns also sell unrestricted items (accessories, hunting outfits, etc) and such a policy could have a business impact.  These and others would be genuine headaches in some instances.  But they are addressable problems in almost all cases.  And the end result would entail:

• Citizens would be free to run a NICS check on themselves before visiting an establishment where that is a condition of entry.
• Citizens affecting private transfers between one another would similarly be able to interact with the free and fast echeck system online.
• This enables genuine accomplishment of the “universal background checks” goal, which removes it as a political cudgel for anti-gun-rights groups to wield
• The government is actually hampered in any attempts to expand databases of gun ownership (given that, in my ideal world, the Form 4473 would only be kept in an FFL dealer’s records on premises and not tied to any background checks)
• Very likely, prohibited persons would be increasingly restricted or dissuaded from acquiring guns via the most available channels

 

Again, I want to specifically point out that I recognize how both of my above proposals are imperfect and could still be met with resistance.  But almost any presently-achievable solutions will be imperfect and a challenge to enact.  These two solutions might, at least, serve our societal need to “do something” without being outrageously unconstitutional, harmful, and ineffective in the process.

 

Looking Into the Future

 

Make no mistake… if the United States continues to be an aberration with respect to outsized figures of firearm violence compared to the rest of the developed world, more drastic and far-reaching proposals will continue to be offered up by politicians and these will continue to gain traction with the public.  While older folks who have enjoyed safe and legal gun ownership for decades will hate to hear this, the stark reality of society is that future generations get to dictate the world which they wish to inherit.  Youth today, who are growing up amid saturation media coverage about gun violence and who are seeing statistics that don’t seem to afford fast enough progress in the right direction will continue to support the erosion of gun rights unless we reverse those trends.  The writing is already clearly on the wall.

Do you want my prediction of the most likely way that gun rights could be chipped away in the future?  I predict that today’s youth movements — who want to target modern rifles and modern handguns most of all — may work toward adding self-loading guns as a new regulated/expanded classification under the National Firearms Act.  These folk won’t seek for such weapons to be banned outright, but rather to be treated like, say, machine guns under the NFA: the process for ownership (and, especially, transfer) could become so onerous that fewer and fewer Americans would think it worth the trouble.  Our presently ubiquitous AR-15 rifles and Glock pistols would then mostly change hands only via inheritance as opposed to purchase and sale.  Any firearms not properly registered during a period of amnesty and grandfathering might be owned illegally for quite a while, but concerns about penalty would result in most owners no longer taking such guns to public events (for fear of legal repercussion) and the sporting and competition shooting culture would dwindle rapidly.  If a policy like the one I am describing were to become law a decade from now, by mid-century the landscape of gun ownership in this country would be dramatically and most likely permanently changed.

And I’ll say it again: we don’t get to exercise exclusive control over the world that the next generation is going to inherit.

If we are truly serious about ensuring that firearm rights remain a part of American life well into our own golden years and beyond, we must focus on the very long game by educating and engaging the next generation of gun owners and also by supporting much broader initiatives aimed at deep, societal change in order to combat all kinds of inequality and suffering, of which gun violence is just one symptom.  As I mentioned above, most homicides are not mass shootings.  We know this.  But what the gun community often fails to acknowledge is that many, many murders in the United States are also not gang violence and drug-related killings but are part of a much wider spectrum of fights and arguments, often impacting communities who are already the most devastated by factors of socioeconomic oppression.  Violence and harm of all kinds are broad societal problems, and we as a nation must study and support broad societal interventions.

From programs of targeted intervention so that shootings can be prevented before someone reaches for a gun to increasing the robustness of our social safety nets so that extreme poverty and hopelessness about the future doesn’t continue to define so many communities to criminal justice reform so that hope exists for those who transgress in their youth… we must as a nation afford all people from all backgrounds a path that doesn’t lead simply to poverty or prison if they come from circumstances without abundant opportunity to become productive and healthy members of society.

 

You may think I’m some socialist extremist reading my concluding words there.  I do not think I am, but perhaps my final thoughts have turned off many in the gun community which I value.  “Universal Basic Income” may be as unpalatable a phrase as “Universal Background Checks” among a lot of firearm folk.  But mark my words: if we do not engage with society’s broader problems as we participate in meaningful and feasible new solutions to gun violence, the next generation will do so without our voices in the discussion.  And as much as you may have a distaste for ending cash bail or decriminalizing poverty, you’re going to hate the alternatives a whole lot more.

 

Stay safe out there, everybody.