SOURCE: AP/Jessica Hill

Law-enforcement officials stand outside Riverview Gun Sales, December 20, 2012, as authorities raid the store in East Windsor, Connecticut.

Endnotes and citations are available in the PDF version of this issue brief.

Every year tens of thousands of guns are discovered to be missing from the inventories of federally licensed gun dealers. Guns that go missing from dealer inventories, whether they are stolen, illegally sold without proper documentation, or misplaced due to negligent recordkeeping, pose two main risks to public safety:

1. Guns stolen from dealers often end up in criminal hands. Following a two-year study of gun-trafficking investigations, the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, reported that 14 percent of gun-trafficking investigations involved guns stolen from gun dealers.
2. Guns lost or stolen from dealers are more difficult to trace because there is no record of who initially purchased the gun from the dealer. When these guns are used in crimes, any investigative lead offered by finding the gun at the crime scene goes cold when it is discovered that the gun dealer has no record of who purchased it.

Since 2004 Congress has imposed restrictions on ATF in its annual budget that make it especially difficult for the agency to police lost and stolen guns. One such restriction prevents ATF from requiring gun dealers to conduct an annual inventory, a process that would allow dealers to promptly identify and report missing guns. In the administration’s fiscal year 2014 budget request to Congress, however, President Barack Obama requested for the first time that Congress remove this harmful budget rider.

This issue brief presents the aggregated data on guns that are lost and stolen from dealers each year, discusses example cases of how guns missing from particular dealers have put the public at risk, and explains how Congress has hindered law-enforcement efforts to prevent and investigate thefts from gun dealers.

Tens of thousands of guns go missing from dealer inventories each year

The problem of guns disappearing from gun stores is a substantial one. Between 2004 and 2011 ATF discovered nearly 175,000 firearms missing from dealer inventories during compliance inspections. In 2011 alone ATF discovered that 18,429 guns were unaccounted for during the course of 10,416 firearms-compliance inspections. Additionally, about 50 percent of gun dealers were found to be in violation of at least some federal regulations in 2012.

And these numbers likely account for only a small portion of the guns that are lost or stolen from dealers each year. As explained in more detail below, ATF is only able to inspect a fraction of the nation’s gun dealers each year. In 2012, for example, ATF inspected only 19 percent of gun dealers. There are likely tens of thousands of additional firearms missing from the inventories of dealers who have not recently received an ATF inspection.

When a gun found at a crime scene is traced back to a dealer that cannot locate the gun in its inventory and cannot find a record of sale, this investigative lead goes cold. As Arthur Herbert, assistant director for enforcement programs at ATF, explained, “Missing firearms directly impact law enforcement officials’ ability to reduce violent crime. The inability to identify the retail purchaser of a gun used in violent crime removes the opportunity to secure a lead for where the gun has traveled.”

High-profile examples of when guns go missing from gun dealers

In addition to these aggregate numbers, there are many noteworthy examples of gun dealers failing to maintain control of their dangerous inventory.

Bull’s Eye Shooter Supply, Tacoma, Washington

In 2002 John Allen Muhammad, the “Beltway sniper,” terrorized the Washington, D.C., metro area when he and his teenage accomplice, Lee Boyd Malvo, gunned down 10 people over the course of several weeks. The Bushmaster XM-15 assault rifle used in the attacks was one of 238 guns that disappeared from the inventory of Bull’s Eye Shooter Supply over a three-year period.

Valley Gun, Baltimore, Maryland

ATF conducted a compliance inspection of Valley Gun in 2003 and discovered that 422 guns were missing—more than a quarter of the store’s entire inventory. Additionally, this store was connected with more than 483 guns found at crime scenes, including 41 assaults and 11 homicides. For these and other violations, ATF eventually revoked the owner’s federal firearms license, although he was permitted to continue selling the guns in the store’s inventory as a private seller.

Ludco Gun Shop, Parker City, Indiana

A 2010 ATF inspection of Ludco Gun Shop revealed that 997 guns were missing from the store’s inventory. ATF inspectors found numerous other violations of federal firearms laws, such as 93 firearms in the inventory that had not been properly logged into the store’s record books and sales to felons. This audit inspection led to an undercover investigation of Ludco, which revealed numerous additional criminal violations, including numerous sales to felons and straw purchasers. Ludco’s owner pleaded guilty to numerous federal firearms charges and was sentenced to four years in prison.

Taylor’s Trading Post, Biglerville, Pennsylvania

ATF conducted its first compliance inspection of Taylor’s Trading Post in more than 30 years in January 2010 and discovered that the store’s owner could not properly account for more than 3,000 guns that had been bought or sold during the previous three years. After an extended investigation, ATF concluded that 168 firearms were missing from the store’s inventory. ATF revoked the store’s federal firearms license, although it remains open pending various appeals.

Bel Air Gun Supply & Pawn, Fallston, Maryland

ATF inspected Bel Air Gun Supply & Pawn in 1999 and found that 86 guns were missing from the store’s inventory. Although ATF recommended annual inspections going forward, the gun shop was not inspected again until 2005. During this inspection, ATF found 817 violations of the Gun Control Act, including 124 guns missing from the store’s inventory. ATF revoked the dealer’s federal firearms license in 2006, and a federal magistrate judge upheld the revocation. The store’s owner, however, sold the business and its assets to his wife, who obtained a new federal firearms license and continues to operate the store. Inspections in 2008 and 2009 reportedly found additional violations of federal regulations.

Franklin Gun Shop, Athens, Georgia

During a 2003 inspection of Franklin Gun Shop, ATF discovered that 677 guns were missing from the store’s inventory with no record of their sale. A more detailed investigation by ATF determined that 336 of these guns were stolen. ATF revoked Franklin’s federal firearms license because of these violations, and a federal court upheld the revocation.

Willingham’s Sports, Demopolis, Alabama

Beginning in 1990 ATF conducted numerous inspections of Willingham’s Sports and each time found that multiple firearms were missing from the store’s inventory. In 1992, 27 guns were missing; in 1999, 130 guns were missing; and in 2001, 25 guns were missing. Following the last inspection, ATF revoked Willingham’s federal firearms license, and a federal court upheld the revocation.

American Arms International, Rockville, Maryland

During a 2003 ATF inspection of American Arms International, inspectors discovered that 427 guns were missing from the store’s inventory and not accounted for in the disposition records. Further investigation by ATF determined that 146 of these firearms had been either lost or stolen. For this and numerous other violations of federal laws and regulations—which a federal appellate court described as “staggering”—ATF revoked the dealer’s license, and the federal courts upheld that decision.

Champion Arms, Kent, Washington

During a 2009 ATF inspection of Champion Arms, the inspector discovered that 58 guns were missing from the store’s inventory and could neither be located nor accounted for. Because of this and numerous other violations, ATF revoked Champion’s federal firearms license, and a district court affirmed this action.

KY Imports, Inc., Louisville, Kentucky

ATF inspected KY Imports in 2000 and discovered numerous violations, including 79 guns missing from the store’s inventory. ATF issued KY Imports a warning, but a subsequent inspection in 2003 determined 77 guns to be missing. Following this inspection, ATF revoked the dealer’s federal license, and a federal court affirmed this action.

Amory Pawn & Gun Shop, Amory, Mississippi

ATF inspectors in 1990 discovered 142 guns missing from the inventory of Amory Pawn & Gun Shop and unaccounted for in the store’s disposition records. At a subsequent inspection in 2002, 123 guns were missing from the inventory. For these and other violations, ATF revoked the dealer’s license, and a federal court upheld this action.

Elliot’s Gun Shop, Old Jefferson, Louisiana

Elliot’s Gun Shop caught the attention of federal law enforcement in 2007, when guns sold by the store began appearing at crime scenes in the New Orleans region in large numbers. Between 2002 and 2007, 2,300 crime guns were traced to the store, which included guns linked to 127 homicide investigations and 517 drug-related crimes. The owners of Elliot’s were charged with various crimes relating to their management of the gun store, including falsifying sales records to enable sales to prohibited purchasers. Had ATF been permitted to require Elliot’s to conduct an annual inventory reconciliation, the agency may have been alerted to these illegal practices sooner and prevented the diversion of many of these guns to criminals.

Breit & Johnson Sporting Goods Company, Inc., Oak Park, Illinois

ATF had conducted periodic compliance inspections of Breit & Johnson Sporting Goods Company since 1977, each time finding numerous violations of federal firearms laws, including failure to properly complete acquisition and disposition paperwork. During an inspection in 1998, ATF inspectors found continued paperwork violations, including discrepancies in the records regarding the disposition of approximately 2,000 guns that had been taken into inventory. For these repeated violations—and upon finding that Breit & Johnson was the source of the second-highest number of crime guns among dealers in Illinois—ATF revoked Breit & Johnson’s license. A federal court affirmed this action.

Howell’s Gun Shop, Gray, Maine

During a 2005 compliance inspection, ATF inspectors found Howell’s Gun Shop to be in violation of numerous federal firearms laws and regulations. Of particular concern were 279 guns missing from the dealer’s inventory with no record of having been sold. ATF commenced revocation proceedings, and Howell’s ultimately admitted to this and other violations and entered into a settlement agreement revoking the store’s license.

Leroy’s Big Valley Gun Works, Glasgow, Montana

ATF conducted a compliance inspection of Leroy’s Big Valley Gun Works in 2004 and found numerous violations, including the failure to properly keep track of and record the disposition of approximately 1,200 guns from its inventory. ATF commenced proceedings to revoke the store’s license, and Leroy’s admitted to the charged violations and entered into a settlement agreement revoking its license.

Riverview Gun Sales, East Windsor, Connecticut

ATF inspectors took a close look at Riverview Gun Sales following the Sandy Hook Elementary School shooting, when it was discovered that Nancy Lanza, the shooter’s mother, purchased the guns used in that attack from this dealer. While no illegalities were involved in the purchase of those guns, during their inspection of Riverview in December, ATF inspectors discovered that the dealer had a history of losing track of weapons in its inventory, as well as gun thefts by employees and customers.

The day after the Sandy Hook shooting, a man was arrested at Riverview for stealing a .50 caliber firearm, and further investigation revealed that he had stolen a second gun from the store four days earlier and nine additional guns from the store in 2011. The store’s owner said he was unaware of these thefts and was described by a local detective as “nonchalant” and “a very non-caring gun owner, very lax in his paperwork.” For these violations, ATF initiated a revocation action against Riverview on December 20, 2013.

Congress has hamstrung federal law enforcement from preventing gun-store thefts and inventory problems

One of ATF’s core functions is to oversee the firearms industry, which includes gun manufacturers, importers, and retail dealers. ATF’s primary tool to ensure that gun dealers comply with federal laws and regulations is through regular inspections, during which investigators review the dealer’s records and required paperwork, inspect the inventory, and look for other irregularities that may indicate illegal diversion of guns to criminals.

Federal law restricts ATF from conducting more than one such compliance inspection of a gun dealer each year, but current resource limitations make it impossible for the agency to conduct an annual or even biannual inspection of the roughly 60,000 gun dealers in the United States. With only around 600 inspectors available to conduct these inspections—inspectors who must divide their time between prospective dealers, explosives retailers, and active gun dealers—ATF is currently only able to inspect  licensed gun dealers an average of once every five years. An Office of the Inspector General, or OIG, investigation of ATF’s federal firearms licensee inspection program found that between 2007 and 2012 more than 58 percent of licensees had not been inspected for more than five years.

One way to fill the gap in the infrequent inspections is to require gun dealers to regularly check their inventory against their sales records to ensure that all guns are accounted for. Because federal law requires licensed gun dealers to report lost or stolen guns to ATF, keeping an inventory would be an effective way of ensuring that missing guns are promptly identified and reported to law enforcement. Taking a regular inventory would also help law-abiding gun dealers quickly identify any security breaches compromising their stock.

Despite the common-sense appeal of requiring gun dealers to conduct a periodic inventory reconciliation, the law prevents ATF from doing so. In 2004, citing the burdens that inventory inspections might impose on gun dealers, the NRA and others in the gun lobby shut down efforts to rein in the problem of gun dealers failing to maintain control of their inventories by adding a rider to the annual appropriations bill—one of the so-called Tiahrt Amendments—that specifically prohibits ATF from requiring dealers to conduct an annual inventory.

This ban on mandatory inventory reconciliation by gun dealers is unique among retailers of potentially dangerous consumer products. ATF requires explosives dealers, for example, to take a physical inventory at least once a year and keep a record of the inventory on file and available for inspection. Likewise, retail pharmacies are required under federal law to take an inventory of controlled substances every two years. Yet in the context of one of the most dangerous consumer products, the federal government is prohibited from requiring this common-sense business practice.

Enable ATF to require gun dealers to regularly inspect their inventory for missing guns

ATF should have the authority to require federally licensed gun dealers to regularly reconcile their inventory with their acquisition and disposition records to ensure that all guns are accounted for and that all missing guns are promptly reported to law enforcement. Congress should act this year to remove the appropriations rider that prevents ATF from exercising this authority. Doing so will give ATF a crucial tool for effectively regulating federal firearms licensees and ensuring that guns don’t continue to go missing from gun stores in such alarmingly high numbers. President Obama indicated his support for this measure by omitting this rider from his 2014 budget proposal.

The NRA argues that requiring licensed gun dealers to maintain an inventory would be unduly burdensome on law-abiding dealers. Despite these protestations, however, gun dealers themselves are not universally opposed to inventory checks. In fact, Walmart, the nation’s largest retailer of guns, voluntarily implemented strict inventory controls and quarterly inventory audits in 2008.

Maintaining accurate inventory records is a routine and uncontroversial business practice in nearly every other retail industry. Any burden on lawful dealers—who are likely already keeping these records as part of a good business practice—is far outweighed by the benefit to public safety of quickly identifying missing guns and reporting them to law enforcement.

Arkadi Gerney is a Senior Fellow at the Center for American Progress. Chelsea Parsons is Associate Director for Crime and Firearms Policy at the Center.

SOURCE: AP/Manuel Balce Ceneta

President Barack Obama, next to Vice President Joe Biden, gestures as he speaks during a news conference in the Rose Garden of the White House, Wednesday, April 17, 2013, about the defeat in the Senate of a bill to expand background checks on guns. There is much the president can do without congressional approval to address gun violence.

Endnotes and citations are available in the PDF version of this issue brief.

This issue brief contains a correction.

The U.S. Senate vote on April 17, 2013, defeated a proposal to expand background checks for gun purchases. It was only the first round in the newly invigorated movement to enact common-sense legislation to reduce gun violence in our country. And while the moderate bipartisan proposal failed to gain the 60 votes necessary to overcome a filibuster, a majority of senators voted in favor of this legislation, which has overwhelming public support in all corners of the country. Efforts are underway to gather more support for this legislation and proponents are hopeful that the measure will ultimately be enacted.

In the meantime, there are a number of actions President Barack Obama can take that do not require approval by Congress. The president began this process in January 2013 by signing 23 executive actions to address gun violence in the United States, including measures to ensure that more records are provided to the National Instant Criminal Background Check System, nominating a director for the Bureau of Alcohol, Tobacco, Firearms and Explosives, and directing the Centers for Disease Control to resume research into gun violence. We urge the administration to take additional actions using its existing authority both to improve the federal government’s ability to prevent dangerous individuals from acquiring or possessing guns and to enhance law-enforcement investigations of gun-related crime.

1. Develop a risk-assessment instrument to identify denied gun purchasers who are most at risk for future violence

In 2012 the FBI denied 88,479 applications to purchase firearms because the applicant was banned under federal law from buying or possessing guns. Since the National Instant Criminal Background Check System, or NICS, became operational in November 1998, 58 percent of denials were due to the applicant having been convicted of a felony, and an additional 14 percent were due to the applicant having a domestic-violence misdemeanor conviction or a domestic-violence restraining order. Each of these attempted purchases is a crime, but federal law enforcement rarely chooses to pursue these cases. In 2010, for example, 72,659 gun sales were denied by NICS, a total of 1.2 percent of all NICS background checks. After further review and investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, only 63 of these denials were ultimately referred to the U.S. attorney for prosecution, and charges were filed in only 44 cases. This low prosecution rate for these “lie-and-try-to-buy” cases has persisted across administrations. While federal prosecutors commenced criminal actions against nearly 8,700 defendants in 2012 for other gun-related crimes, such as possession of a firearm by a prohibited person or using a gun in furtherance of a violent crime, the federal government should develop a risk-assessment instrument to better prioritize and bring more “lie-and-try-to-buy” cases for prosecution.

Little is known about the more than 2 million instances since November 1998 in which individuals were prevented from purchasing guns because of a federal prohibitor. ATF has an entire unit devoted to investigating these denied sales—the Denial Enforcement and NICS Intelligence Branch, or DENI Branch. These investigations are not informed, however, by a comprehensive review of which NICS denials are most associated with individuals who go on to acquire guns in the private market and commit future crimes. The information about these blocked sales and the prohibited individuals who attempted to buy guns could be used to help inform a study of the frequency or prevalence of future violent crimes, particularly gun-related crimes, committed by individuals barred from gun ownership.

The ATF DENI Branch should partner with the FBI to undertake a comprehensive study of all 2 million denied gun purchases since 1998 to determine how many individuals blocked from purchasing guns went on to commit future violent crimes, with a particular focus on subsequent gun-related crimes. Using the data gathered in this study, ATF and the FBI should develop a risk-assessment process for use by ATF and the U.S. attorney to assist in determining which attempted sales cases should be prioritized for prosecution. ATF and the FBI should also publish a report with the aggregated findings of this study to assist local law enforcement in making similar decisions regarding which offenders to target for further investigation and prosecution.

2. Establish an alert system for failed background checks

Although “lie-and-try-to-buy” cases are generally of low priority to federal prosecutors, state and local police and prosecutors often have a great interest in learning about which prohibited individuals in their communities are trying to buy guns, particularly felons and domestic abusers. The acquisition of firearms by such individuals poses a distinct risk to public safety in those communities; local law enforcement should be informed when such individuals have attempted to buy guns so that they can decide whether to pursue state-law criminal charges, initiate investigations, or keep an eye on these individuals for signs of future criminal activity. In 2009 Mayors Against Illegal Guns recommended an alerting process for background-check denials. And since then law-enforcement sources report that the FBI has implemented a procedure to alert state and local law enforcement when fugitives attempt to purchase firearms, a group that makes up about 9.8 percent of NICS denials. The FBI should develop a similar electronic alert system to advise local law enforcement when any individual in their jurisdiction seeks to purchase a gun but has been blocked from doing so because they are prohibited under federal law from firearm possession.

In addition to reporting all blocked purchases to local law enforcement, the FBI should develop protocols for referring information to other state and local authorities about certain sales. State mental-health authorities, for example, should be notified when an individual prohibited from gun ownership because of mental illness attempts to buy a gun. Such an attempted purchase should raise a red flag that the individual may be an imminent risk to himself or to others, and the appropriate local law-enforcement or mental-health authorities should check in on this person. Likewise, individuals blocked from buying a gun who identify as college students or list a college campus as their address should be reported to campus police. Again, these attempted purchases may raise a red flag that a student prohibited from firearm possession potentially poses a risk to self or to overall campus safety.

3. Conduct background checks of gun-dealer employees

Individuals prohibited under federal law from buying or possessing guns are likewise prohibited from working for a federally licensed gun dealer in any capacity that involves handling guns. Gun dealers, however, are not currently required to conduct background checks as part of the hiring process to determine whether prospective employees are banned from firearm possession under federal law. And in fact, there have been numerous cases of prohibited individuals working behind the counter at gun dealers. In August 2012, for example, federal investigators arrested an Augusta, Kansas, gun dealer when her husband, a convicted felon, was caught repeatedly selling guns at the store and on behalf of the store at gun shows.

ATF should use the NICS system to incorporate background checks of all employees as part of the more than 13,000 gun-dealer audit inspections conducted each year. Doing so would help ensure that prohibited individuals don’t have easy and unfettered access to guns.

ATF should also encourage gun dealers to voluntarily conduct background checks of employees using the NICS system. Some gun retailers, including Walmart, voluntarily conduct checks on all gun-handling employees, and the gun-industry lobby—the National Shooting Sports Foundation—recommends that dealers voluntarily conduct such checks. ATF should advise all gun dealers of the availability of NICS to conduct background checks of current and prospective employees. As part of his list of 23 executive actions on guns announced in January 2013, the president directed ATF to advise gun dealers that they are permitted to perform background checks to assist individuals engaged in private sales. On January 16 ATF issued an open letter to all federally licensed gun dealers encouraging them to perform background checks for such private sales and has provided detailed guidance regarding how to perform such checks and the applicable recordkeeping requirements for these transactions. ATF should issue a similar letter informing gun dealers that they may use NICS to perform background checks of current and prospective employees and develop protocols to enable and encourage such checks.

4. Verify the validity of a purchaser’s identification document as part of every NICS check

Individuals are required to provide proof of identity when applying to buy a firearm. There is no mechanism in place, however, for verifying that the identification document provided is, in fact, valid and properly possessed by the individual. This gap in the background-check system allows prohibited individuals to easily circumvent the federal law by purchasing firearms using a forged or fake identification document. A General Accounting Office, or GAO, investigation in 2001 highlighted this weakness in the background-check system: Investigators were able to buy guns in five states using counterfeit driver’s licenses.

The FBI should incorporate an instant check of the validity of the proffered state-issued identification document as part of every NICS check, in much the same way as the E-Verify system checks information provided on I-9 Employment Eligibility Verification forms against data in the Department of Homeland Security and the Social Security administration systems. By linking state motor-vehicle databases with NICS, for example, the FBI could easily and quickly assess the validity of driver’s licenses offered by prospective purchasers, thus eliminating an easy avenue for prohibited individuals to buy guns from dealers. Mayors Against Illegal Guns made a similar recommendation in 2009.

Criminal gun dealers can also hide illegal gun sales by falsifying information in their records, including by listing fictitious individuals as legitimate gun buyers in the paperwork they are required to keep. ATF should also check the validity of the identity of purchasers listed in a dealer’s records as part of each audit inspection.

5. Require manufacturers to put multiple serial numbers on guns

ATF regulations require that every gun manufacturer imprint a unique serial number on each gun it produces. This serial number serves a number of purposes, including allowing for the manufacturer to ensure quality control within the manufacturing process. But more importantly, these serial numbers allow ATF to trace guns found by local law enforcement at crime scenes. ATF uses the serial number to identify the manufacturer of the gun, who in turn uses the serial number to identify the gun dealer to which it was originally shipped. ATF can then reach out to that gun dealer, who can check their records to identify the individual who first purchased the gun. This provides a crucial lead for law enforcement attempting to identify the individual who may have been involved in the crime.

Unfortunately, savvy criminals know the power of the serial number and often go to great lengths to deface it or to remove it entirely from the gun. When the serial number has been defaced in this way, the gun becomes nearly impossible to trace. Data from the 2000 Youth Crime Gun Interdiction Initiative Report examining crime guns recovered in eight jurisdictions revealed that nearly 10 percent of trace requests from those jurisdictions involved handguns with partially or fully obliterated serial numbers. Indeed, the recent case of the Boston Marathon bombers provides an example of this problem: The serial number was filed off the gun used to kill a campus police officer at the Massachusetts Institute of Technology, or MIT, making it substantially more difficult—if not impossible—to trace.

ATF has the authority under existing law to require licensed importers and manufacturers to identify all guns with a serial number placed on the receiver or frame “in such manner as the Attorney General shall by regulations prescribe.” The Obama administration should use this authority to issue a new regulation requiring manufacturers and importers to place a second serial number on each gun in a hidden or difficult-to-access location. Some manufacturers have begun voluntarily placing the serial number in multiple places on the gun, a measure that makes it more difficult for criminals to completely eradicate this information from the gun and render it untraceable.

6. Expand multiple-sale reporting

Federal law requires gun dealers to report to ATF when an individual purchases two or more handguns in a five-day period.* Such reporting is a crucial law-enforcement tool, as such multiple purchases are a strong indicator of illegal gun trafficking. Similar reporting is not required, however, for multiple sales of long guns—a category of firearms that includes rifles and shotguns—despite the fact that many such guns are illegally trafficked and used in crimes. In 2011 the Obama administration acted to partially fill this gap by using existing statutory authority given to ATF to require gun dealers to provide information regarding certain gun sales on demand. Invoking this “demand letter” authority, the administration began to require gun dealers in four southern border states to report whenever an individual buys more than one semiautomatic rifle within a five-day period. This reporting requirement has been a key tool in the fight against gun trafficking by Mexican drug cartels: During the first eight months that the new reporting requirement was in effect, ATF initiated 120 investigations based on reports of multiple sales of long guns and recommended prosecution of more than 100 defendants in 25 separate cases.

The Christmas Eve ambush of firefighters in Webster, New York, provides an example of how failure to report multiple sales of long guns limits law enforcement’s ability to prevent gun crimes. That case involved a multiple purchase that included an assault rifle by a straw purchaser—an individual who buys a gun on behalf of someone who cannot legally buy a firearm. Had the purchase involved multiple handguns, the circumstances of the sale may have triggered a straw-purchase investigation by ATF, and the straw purchaser may have been caught illegally transferring the assault rifle to the felon who ambushed the firefighters—heading off the attack. But because the multiple purchase involved an assault rifle, it went unreported to the bureau, which allowed the straw purchaser—and therefore the felon—to avoid investigation prior to the attack.

The administration should expand the multiple-sale-reporting requirement to help address the problem of illegal gun trafficking of assault rifles. Specifically, ATF should issue a new demand letter instructing all federally licensed dealers to report the following sales to ATF: (1) multiple sales of assault rifles by any dealer linked to more than five crime-gun traces in the prior year; and (2) multiple sales involving rifles that accept a detachable magazine and are capable of firing a round larger than a .22 caliber or any tactical shotgun with a pistol grip.

7. Penalize states that fail to provide records to NICS

Federal law prohibits nine categories of dangerous individuals from buying or possessing guns, including felons, domestic abusers, and fugitives. This law is intended to protect the public from gun violence but is only effective if it is supported by an efficient system for checking the background of each potential purchaser. The FBI has operated NICS since 1998 for this purpose. Since that time, NICS has been used to perform more than 168 million background checks and to block sales to more than 2 million prohibited purchasers.

But NICS is only as good as the records that are contained within it. And historically, states have been slow to submit all relevant records to the FBI for inclusion in NICS, particularly records pertaining to individuals prohibited from firearm ownership due to mental illness. A GAO report found that in 2004 only around 126,000 records pertaining to individuals disqualified from gun ownership due to mental illness had been submitted by the states for inclusion in NICS. Following the mass shooting at Virginia Tech in 2007 by an individual who should have been prevented from buying a gun because of mental illness, Congress passed the NICS Improvement Amendments Act of 2007, or NIAA, which provides incentives for states to submit these records. This law gives the attorney general the discretion to withhold a percentage of federal grant funds otherwise due to a state if the state fails to provide a significant number of these records to the FBI for inclusion in NICS. Following enactment of the NIAA, there has been a substantial increase in the number of mental-health records submitted to NICS—from nearly 300,000 in 2006 to more than 2.2 million today. This progress, however, represents the efforts of only some states: 18 states have still submitted fewer than 100 mental-health records to NICS. This indicates that the threat of a discretionary loss of funding is not a big enough stick to induce all of the states to start submitting more of these records.

Since the NIAA went into effect, the attorney general has yet to exercise the discretion to penalize states for failing to submit the required records to NICS. The administration should instruct the attorney general to begin withholding this grant funding to states that refuse to immediately begin to submit the required mental-health records to NICS, unless the state can demonstrate to the attorney general that extraordinary circumstances are preventing submission. While the statute gives the attorney general the discretion to withhold these funds, the administration should make it clear that this discretion should be exercised absent such a special showing by a state.

8. Make disarming prohibited domestic abusers a priority

While federal law prohibits domestic-violence misdemeanants and individuals subject to certain domestic-violence restraining orders from buying or possessing guns, federal and state law-enforcement agencies have largely failed to enforce this prohibition and ensure that these individuals are relieved of any guns in their possession. Some states have enacted laws or policies to help facilitate surrender of firearms by these individuals, but these laws are often poorly enforced.

The failure to disarm domestic abusers can have devastating consequences for victims. An investigation by The New York Times in March 2013 found that over the past decade in Washington state, at least five women were shot and killed less than a month after obtaining protection orders. In at least six other instances in the state, a person subject to a restraining order shot and killed a person other than the person protected by the restraining order. Another investigation by The New York Times found that since 2011 more than 50 people in Washington state with protection orders against them were arrested on gun charges, and in Minnesota, more than 30 people with protection orders were convicted of an assault with a dangerous weapon over the past three years.

The experience of one county in California—a state that requires individuals to surrender any guns in their possession within 24 hours of being served with a temporary restraining order—highlights the effectiveness of firearm-surrender protocol in reducing gun violence in domestic-violence situations. San Mateo County has instituted detailed protocol to ensure the surrender of firearms from these individuals, and there has not been a domestic-violence gun homicide in the county in the past three years.

ATF leads regional task forces around the country through its Project Safe Neighborhoods program, in which ATF agents work collaboratively with others in federal, state, and local law enforcement to reduce gun-related crime. The administration should direct ATF to work with local law-enforcement partners in these Project Safe Neighborhood task forces to develop protocols for confiscating firearms from prohibited domestic abusers. Additionally, ATF should designate one agent in each field office to be a domestic-violence specialist to help ensure that this protocol is being properly implemented and to immediately address any domestic-violence-related issues that arise in the local community.

9. Incentivize gun-dealer inventory checks

ATF’s primary tool to ensure that federally licensed gun dealers are in compliance with laws and regulations is to conduct regular inspections of these businesses. One of the most important parts of an ATF inspection of gun dealers is an inventory check to ensure that the dealer can account for every gun that has passed through its doors. In the event that dealers cannot account for large numbers of guns that should be in their inventory, a red flag is raised to ATF that illegal gun sales may be occurring. Guns reported as lost or stolen end up at crime scenes in large numbers, indicating that this is a common way for guns to be diverted into criminal hands.

Despite the importance of regular inspections, current ATF resources limit the agency’s ability to conduct an inspection of each gun dealer more frequently than around once every five years. One way to fill the gap in the infrequent inspections would be to require gun dealers to regularly check their inventory against their sales and certify to ATF that all guns are accounted for. Because licensed gun dealers are required under federal law to report lost or stolen guns to ATF, keeping an inventory would be an effective way of ensuring that missing guns are promptly identified and reported to law enforcement. Since 2004, however, ATF has been prohibited from requiring federally licensed gun dealers from conducting an annual check of their inventory to ensure that all firearms are accounted for. This prohibition takes the form of a rider in the annual appropriations legislation and is one of the so-called Tiahrt Amendments backed by the National Rifle Association, or NRA, that serve to hamstring the federal government’s ability to regulate the firearms industry.

In the absence of the ability to require dealers to regularly check their inventory, the administration should create an incentive for gun dealers to voluntary conduct annual inventory checks and certify to ATF that all guns are accounted for. ATF should create a form for dealers to voluntarily report, under penalty of perjury, that they have checked their inventory and accounted for all firearms. ATF should also create a form for dealers to voluntarily report that they conducted an audit of the records they are required by law to maintain regarding the acquisition and disposition of every gun in their inventory, and either certify that no errors were found or disclose any errors discovered. Voluntary provision of these certification forms would be one factor ATF would consider in determining which dealers should receive an extensive ATF audit each year.

10. Impose tighter restrictions on dealer inventory liquidations following a license revocation

ATF has the authority to revoke a gun dealer’s license for repeated violations of federal firearms laws. Revoking a dealer’s license is intended to stop the individual from continuing to sell firearms in a manner that violates the law. When a dealer’s license is revoked, however, the dealer is permitted to transfer their inventory into their personal collection and then continue selling these guns as a private seller. Dealers are permitted to do this even if these private sales from their newly augmented personal collections rise to the volume of sales that normally put a seller in the category of being “engaged in the business” of selling guns and therefore require a federal license. This practice was condoned by the Department of Justice, or DOJ, in an opinion issued in 2006. The result of this opinion is that former gun dealers who demonstrated that they were not responsible sellers by virtue of their violations of federal laws may continue high-volume gun sales as private sellers, only now they can do so without being required to perform background checks.

This interpretation of the law is at odds with a common-sense reading of the statute and creates a significant risk to public safety. The purpose of revoking a gun dealer’s license is to prevent that individual—who has demonstrated they are incapable of following federal laws designed to protect public safety and ensure that guns don’t end up in the wrong hands—from continuing to sell guns. Permitting such individuals to continue selling guns as private sellers completely undermines the punishment of revoking the license. Some of these so-called fire sales—when dealers lose their federal firearms license but continue to sell off their inventory as private sellers—have involved hundreds of guns. When ATF revoked the license for the owners of Valley Gun in Baltimore, Maryland, in 2006 after finding more than 900 violations of federal regulations—including hundreds of missing guns—the owner was permitted to sell more than 700 guns that remained in the store inventory as a private seller. The DOJ should issue a revised opinion clarifying that a gun dealer who has had his license revoked may not engage in private sales at a volume that constitutes engaging in the business, but rather must liquidate large quantities of inventory by selling to other licensed dealers.

11. Inspect dealer inventory for stolen guns

Many gun dealers and licensed pawnshops buy guns from private individuals. When they do so, they are required to keep a record of the purchase, including the name and address of the seller, in the same manner as when they acquire guns in their inventory from a licensed manufacturer or distributor. Dealers have no way of verifying, however, that the used guns they are purchasing have not been reported as stolen. Such guns then remain unwittingly hidden in dealer inventories and the criminals responsible for putting them there go unpunished with money in their pockets.

ATF should initiate a trial program to incorporate checks of used-gun inventories into some audit inspections to look for stolen guns. By crosschecking used guns in a dealer’s inventory with the FBI database of stolen guns, ATF will be able to identify whether any of these guns have been reported stolen and conduct an investigation into the individual who sold the gun to the dealer. Doing such checks for stolen guns in dealer inventory will also allow ATF to gather intelligence, first about the types of dealers who are targets for criminals to unload stolen guns, and second about local criminal networks. This intelligence could then be used to target gun thieves for investigation.

private sales at a volume that constitutes engaging in the business, but rather must liquidate large quantities of inventory by selling to other licensed dealers.

12. Form a joint task force with ATF and the FBI to investigate Internet-facilitated gun crimes

The Internet has created a virtually unregulated marketplace for guns, one in which individuals banned from firearm possession under federal law can easily purchase guns from private sellers who advertise online and are not required to conduct a background check. A recent investigation by The New York Times found that 94 percent of ads for guns on the most popular websites were posted by such private sellers. And while private sellers are still required to follow the federal law by refusing to sell a gun when they have reason to believe the recipient is prohibited from gun ownership, there is little to no oversight by law enforcement to ensure that illegal sales are not occurring. An investigation of gun sales online conducted by Mayors Against Illegal Guns in 2011 found that 62 percent of online sellers investigated agreed to sell a gun to an individual who indicated that they would not be able to pass a background check. There have been numerous incidents in which prohibited individuals easily, and illegally, bought guns online and subsequently using them to commit heinous crimes. In 2012, for example, Radcliffe Houghton, a domestic abuser who was banned from gun ownership because of a restraining order issued against him, bought a gun online that he used to shoot and kill his estranged wife and two of her co-workers. Similarly, in 2011 Dmitry Smirnov, a Canadian who was prohibited from gun ownership in the United States because of his immigration status, bought a gun online from a private seller, then stalked and killed his former girlfriend.

Some private sellers are likely violating other federal laws on these websites as well, such as the requirement that an individual who is “engaged in the business” of selling guns seek a federal firearms license from ATF. The New York Times investigation found more than two dozen individuals who had each advertised more than 20 different guns for sale in a short time period. Such individuals are likely breaking the law by selling guns at such a volume without a federal license.

ATF recently created a Cyber Crime Unit to focus on Internet-facilitated gun crimes. The creation of this unit is long overdue and is a positive first step in the agency beginning to focus proper attention on these crimes. Given the agency’s lack of experience in this area, however, ATF is ill equipped to adequately address the increasing problem of Internet gun crimes. ATF should partner with the FBI to begin aggressively investigating Internet-facilitated gun crimes. The FBI has a well-developed and robust cyber-crime division that has prioritized investigating computer-related crimes for many years. Each FBI field office has at least one cyber squad consisting of special agents, intelligence analysts, and computer scientists, and the FBI also leads the National Cyber Investigative Joint Task Force, a group of 18 federal law enforcement and intelligence agencies that work collaboratively to combat cyber crimes. The DOJ should create an Internet gun-trafficking task force in which ATF and the FBI partner together to develop and implement targeted investigations of illegal online gun sales.

Conclusion

Most of the attention in the current gun debate has been focused on congressional action (or inaction) on legislation designed to protect public safety by preventing dangerous individuals from having easy access to guns. There is much that can be done outside of Congress, however, to help strengthen oversight of the gun industry, enhance law-enforcement investigations of gun-related crime, and make it more difficult for criminals to get guns. As he continues to work with members of Congress to pass common-sense gun legislation, President Obama should also use the powers under current law granted to the executive branch to take action to help prevent future gun violence and make our communities safer.

Arkadi Gerney is a Senior Fellow at the Center for American Progress. Chelsea Parsons is Associate Director for Crime and Firearms Policy at the Center.

* Correction, June 11, 2013: This issue brief incorrectly stated the reporting requirements on handgun purchases. Federal law requires gun dealers to report to ATF when an individual purchases two or more handguns in a five-day period.

SOURCE: AP/Tony Dejak

A woman votes at the Cuyahoga County Board of Elections in Cleveland, January 31, 2012, as early voting began in Ohio's March 6 presidential primary.

Endnotes and citations are available in the PDF version of this issue brief.

Coming out of the 2012 presidential election, women’s role in determining its outcome—the so-called gender gap—was a dominant narrative. Women played a large part in President Barack Obama’s re-election, with 55 percent voting for him compared to 44 percent supporting his Republican rival, former Massachusetts Gov. Mitt Romney.

A parallel narrative last November was that of the potential of the rising electorate—the demographic populations that are increasingly becoming larger segments of the voting-eligible population—influencing election outcomes. Women of color are a particularly important demographic because they stand at the center of the intersection between the rising electorate and the women’s vote.

In this brief, we update the numbers from our October 2012 report, “A Dual Disenfranchisement: How Voter Suppression Denies Reproductive Justice to Women of Color,” which described how women of color are voting at increasing rates yet have been more at risk of disenfranchisement as attacks on voting rights have persisted. This update reflects the most recent data available from the Census Bureau on the voting turnout rates of people of color and women, focusing specifically on the voting power of women of color.

The gender gap

Much has been made of the historic gender gap in the 2012 election. Women were the majority of voters overall, as well as the majority of voters who supported President Obama. Indeed, the gap between the women who voted for President Obama and the men who voted for Gov. Romney was among the largest ever recorded.

The new Census data show that not only were women more likely to vote for the president, they were also more likely to vote overall, which further increased their influence in the outcome of the election.

The rising electorate

The rising electorate encompasses people of color, unmarried women, and young people. Over the past 12 years, members of the rising electorate, especially people of color, have steadily increased their electoral participation. They have become a growing segment of both the overall U.S. population and the voting-eligible population itself.

Reflecting on the Census reports, commentators have already begun to remark on the fact that overall, black voter turnout surpassed white voter turnout. While Latino turnout rates declined slightly from 2008, their share of the electorate grew, rising from 7.4 percent to 8.4 percent in 2012.

Women of color at the intersection

Women of color stand at the intersection of the rising electorate and the gender gap. They currently make up 18 percent of the United States population, and by 2050 the Census Bureau estimates that they will comprise 27 percent of the population. And while the gender gap was found to transcend race, it was sharpest among women of color.

In examining the exit polls from the 2012 election, it is clear that women of color provided the crucial votes that comprised the gender gap. While 42 percent of white women voted for President Obama, 96 percent of black women and 76 percent of Latinas voted for him, leading to a cumulative 55 percent of all women voting for him. Indeed, President Obama did not win white women and, in fact, would have lost the women’s vote without the overwhelming support of women of color.

As we noted in our 2012 report, women of color have been voting at increasing rates since 2000, showing dramatic growth over time. In 2008 black women’s turnout outpaced white women’s for the first time, and their turnout only grew in 2012, breaking 70 percent—a new record. Particularly noteworthy is the steady growth of voter turnout rates of Asian and Pacific Islander, or API, women, which have nearly doubled since 2000, when the Census Bureau first started recording API voter turnout rates. In 2000 24.5 percent of API women voted. In contrast, 48.5 percent voted in 2012. According to Census Bureau data, APIs are the fastest-growing racial group in the general population.

And in 2012, for the first time, women of each race and ethnicity turned out both at greater rates and also in higher numbers than the men in their respective race and ethnic groups, according to the Census data.

Conclusion

So what does this all mean?

Women of color stand at the center of the rising electorate and were the driving force behind the gender gap. They are more likely to vote than the men in their communities, and they are voting at dramatically increasing rates.

This doesn’t come as a great surprise, considering that women of color are disproportionately affected by a variety of critical issues. Some examples include:

• Reproductive rights: All women of color have experienced various forms of reproductive oppression, both throughout history and still to this day. From forced sterilization, childbearing, and removal of their children to restrictions on immigration visas based on hypersexualized myths to targeting of pregnant women of color for drug testing, the examples abound. Women of color are also disproportionately impacted by laws such as the Hyde Amendment, which restricts Medicaid coverage of abortion services.
•  Pay equity: Women on average earn 77 cents for every dollar a man earns for comparable work. In comparison, African American and Latina women earn 64 cents and 55 cents, respectively, for every dollar a man earns.
• Immigration reform: Family reunification, protection for survivors of sexual violence and trafficking, and access to health care are all crucial issues that need to be addressed in immigration reform.

SOURCE: AP/Paul Sakuma

An analysis of state supreme court rulings shows that an influx of corporate campaign cash is influencing judges to rule against those injured while on the job or by business entities such as hospitals.

Endnotes and citations are available in the PDF of this report.

At the turn of the 20th century, as America shifted from an economy based on farming to an industrial economy fueled by large corporations, the reformers of the progressive era sought to ensure that ordinary workers were not exploited or abused by their increasingly powerful employers in the new economy. On-the-job accidents became much more frequent as factories rapidly replaced farms and railroads were built to span the continent. Reformers and labor advocates fought for injured workers in state legislatures and courtrooms. The judiciary had always had a reputation for favoring corporate defendants, but reformers lobbied to expand tort liability and abrogate employers’ legal immunities. Their successes protected injured workers and encouraged employers to prevent workplace accidents.

The reformers held constitutional conventions to enshrine these protections in state constitutions. States across the country, including Ohio and Pennsylvania, saw constitutional amendments that prohibited state legislatures from limiting lawsuits against corporations or other negligent actors.

This expansion of tort liability changed the American economy. The progressive-era advancements brought safety standards to the workplace and the consumer market. Unfortunately, a reform championed in an earlier era—the shift from an appointed to an elected judiciary—is now jeopardizing the expansion of tort liability that protected consumers and employees.

America is the only country in the world that elects its judges, and this unique feature of our government has allowed corporations to influence the law through judicial campaign contributions. The ability of ordinary Americans to find justice against powerful corporations may prove to be a historical anomaly rather than an irreversible progression of the law. For much of the 20th century, the courthouse doors were open to injured employees and consumers, but now these doors are being closed once again. Corporate-funded judges and legislators have distorted the law to keep corporations and other defendants from being held accountable. Over the past few decades, big business has spent millions of dollars to elect judges who voted to limit Americans’ right to sue negligent corporations.

Those who have been injured or wronged by the mistakes of someone else—a negligent hospital, an unsafe employer, or a callous insurance company—are finding it harder to hold these wrongdoers accountable in court. Injured plaintiffs are facing laws that have been distorted by campaign contributions from big business to state legislators and judges. To illustrate the impact that this corporate campaign cash is having on the law, the appendix to this report includes summaries of cases from the six state supreme courts that have seen the most money in their judicial elections from 2002 to 2012. The data include 1,499 cases in which an individual sued a health care provider or a business for an injury to their person or property. In 70 percent of these cases, the courts ruled against the individual and in favor of the corporate defendant. The trend toward pro-corporate rulings seems to be growing more pronounced. From 2007 to 2012 the Ohio Supreme Court ruled for defendants in 80 percent of the cases studied. The Texas and Alabama high courts, where big business has had great success in stacking the deck against injured plaintiffs, ruled for the defendants in 80 percent of the cases in 2011 and 2012.

One Texas plaintiff, Connie Spears of San Antonio, ran up against the state’s stringent medical-malpractice laws when she sought to hold a hospital accountable for failing to diagnose a blood clot, a problem she had previously experienced. The delay in discovering the clot led to the amputation of both of her legs. It took years for her to find a lawyer willing to take the case, due to Texas’ defendant-friendly laws, and once she did, she could not find an expert witness who met the state’s standards. Spears says that negligent medical care has impacted her family and “ruined all of our lives,” but she could not hold anyone accountable in Texas.

This report begins with a history of the effort by big business to limit liability. This effort began in state legislatures, and after some of the resulting statutes were struck down as unconstitutional, the battle moved to state supreme courts. This history includes a discussion of the news media’s role in convincing Americans that limits on liability were necessary because of a lawsuit crisis in America. The report then offers a discussion of seven state supreme courts—in Texas, Alabama, Ohio, Michigan, Mississippi, Wisconsin, and Louisiana—where big business has succeeded in electing judges who voted to limit liability for wrongdoers. In discussing each of these courts, this report tells the stories of injured plaintiffs who were denied relief by judges whose campaigns are funded by big business and proponents of limiting liability.

Legislators and judges in states around the country have limited the liability of negligent persons and corporations in the name of reform—a movement funded by big corporations that goes by the innocuous name of “tort reform.” (This report will generally not use this term. Instead, it will refer to the modern tort-reform movement as an effort to limit liability or cap damages.) This movement was funded by large corporations that were frequently the target of lawsuits such as insurance companies and tobacco companies.

Torts are wrongs committed by a person or entity that are recognized by courts as justifying monetary compensation. Torts arise when someone’s negligent behavior causes a physical injury or financial loss to another person, who then has the option to file a lawsuit against the responsible person or entity. Those guilty of violating tort rules must pay for their negligence through monetary compensation. Tort law makes society safer by encouraging corporations and others to exercise caution. It allows injured patients, consumers, and employees to recover from negligent actors that injure them. In these lawsuits, a jury traditionally decides whether the defendant is liable for the damages and allots the amount of damages.

The founders of our country enshrined a right to a jury trial in the Bill of Rights. John Adams said that without representative government and the right to a trial by jury, citizens have “no other indemnification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.” Many state constitutions include strong language protecting the right to a jury trial and the right to a legal remedy for wrongs committed by others. But in many of these same states, the right to a jury trial is being rendered meaningless by laws that restrict the right to sue and by judges who received millions of dollars from big business to uphold these laws.

Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress.

SOURCE: AP/Julie Jacobson

The Smith & Wesson .45 caliber M1911 pistol is held at the 35th annual SHOT Show, Tuesday, January 15, 2013, in Las Vegas.

Endnotes and citations are available in the PDF version of this issue brief.

While opinions may differ as to the scope of the Second Amendment right to keep and bear arms, almost all Americans agree that criminals should not have access to guns. Congress recognized the need to keep guns out of the hands of dangerous people more than 40 years ago when it passed the Gun Control Act of 1968, which prohibited felons and other dangerous individuals from owning guns. The Supreme Court has also sanctioned restrictions on gun ownership by such individuals, repeatedly holding in recent decisions that such federal and state laws to prohibit gun ownership by criminals and other dangerous individuals are well within the bounds of the Constitution.

One group of people who are at a heightened risk of gun attacks is women who are targets of domestic violence and stalking. We know that intimate-partner violence is a pernicious crime that affects millions of women across the country. Women are more than three-and-a-half times as likely to be killed by an intimate partner than men. In 2005, 40 percent of female homicide victims nationwide were killed by a current or former intimate partner, and guns were used in more than half of those murders. The lethality of domestic-violence incidents—and therefore the risk to women—increases exponentially when a firearm is present in the home: Having a gun in the home increases the risk of homicide of an intimate partner by eight times compared to households without guns. This risk of homicide increases by 20 times compared to households without guns when there is a history of domestic violence in the family.

Congress has previously recognized the unique dangers posed by domestic abusers with guns. In the mid-1990s it enacted legislation to ban domestic-violence misdemeanants and individuals subject to some domestic-violence restraining orders from buying or possessing guns. But the current laws do not go far enough to protect women from the dangers presented by batterers and stalkers with guns. Federal law that is currently designed to protect women from gun violence suffers from four key weaknesses:

• Background checks are not required on all gun sales, so domestic abusers prohibited from gun ownership can easily circumvent the gun-ownership ban by buying a gun from a private seller.
• The federal limits on domestic abusers are too narrow because they omit abusers in dating relationships and abusers subject to some emergency restraining orders.
• There is no federal ban on gun ownership for stalkers convicted of misdemeanor crimes and who are subject to restraining orders.
• Federal, state, and local authorities do not adequately enforce the laws already in place by disarming and prosecuting domestic abusers who violate the current laws and maintain possession of firearms.

This report examines all of these gaps in current law and law enforcement, and cites case examples of how each gap enabled domestic abusers and stalkers to obtain the guns they used to murder women. These weaknesses in federal law and law enforcement leave untold numbers of women vulnerable to gun violence committed by men who have harassed, stalked, threatened, and terrorized them, often for years. Congress must act to close these loopholes in the law and ensure that victims of stalking and domestic violence are not further victimized, looking at the end of a gun.

Current federal law prohibiting gun ownership by domestic abusers

In 1994 Congress passed the Violence Against Women Act, a groundbreaking piece of legislation designed to protect victims of domestic violence, provide them with support and services, and ensure strong penalties for perpetrators. In recognition of the dangers posed by abusers with guns, one component of this comprehensive legislation was a ban on gun ownership by certain perpetrators of domestic violence. Under this provision, individuals subject to a restraining order that was issued after a hearing to protect an “intimate partner”—defined as a spouse or former spouse, a parent of a child in common, or a current or former co-habitant—are prohibited from buying or possessing firearms.

In 1996 Congress acted again to protect victims of domestic violence by amending the Gun Control Act of 1968 to prohibit gun ownership for individuals who have been convicted of a “misdemeanor crime of domestic violence.” A misdemeanor conviction qualifies under this provision if it involved “the use or attempted use of physical force, or the threatened use of a deadly weapon” and if the perpetrator committed the crime against a current or former spouse, a parent, a person with whom the perpetrator has a child in common, a current or former co-habitant, or a person “similarly situated” to a spouse, parent, or guardian of the victim. This legislation, known as the “Lautenberg Amendment” for its sponsor, Sen. Frank Lautenberg (D-NJ), received overwhelming bipartisan support in the Senate, passing by a vote of 97 to 2.

In the years since domestic-violence offenders have been prohibited from firearm ownership, they have represented a significant portion of individuals who have sought to buy guns and been prevented from doing so after a background check. Between November 1998—when the National Instant Criminal Background Check System was created—and March 31, 2013, domestic-violence misdemeanor convictions have accounted for more than 10 percent of gun-sale denials and were the second-most frequent reason for denial of an application to purchase a firearm by the FBI. Domestic-violence restraining orders have accounted for another 4.3 percent of denials over this period. Out of the 2 million denials of applications to purchase a firearm between November 1998 and March 2013, more than 146,000 applications have been denied because of the applicant’s history of domestic violence.

SOURCE: AP/Jacquelyn Martin

President Barack Obama speaks during a news conference in the Rose Garden of the White House on Wednesday, April 17, 2013, about a bill to expand background checks on guns that was defeated in the Senate.

Endnotes and citations are available in the PDF version of this issue brief.

In the weeks that followed the tragic shooting at Sandy Hook Elementary School in Newtown, Connecticut, this past December, advocates for stronger gun laws focused their efforts on a proposal to require background checks for most gun sales between unlicensed buyers and sellers to prevent criminals and other dangerous people from easily buying guns with no questions asked. Three weeks ago, however, the Senate came six votes short of the 60 votes required to advance this legislation, known as the Manchin-Toomey amendment, that would have expanded gun background checks to all gun shows, online purchases, and advertised sales.

Some observers were quick to point to the vote as evidence of the National Rifle Association’s, or NRA’s, enduring power, but there are several reasons to believe that the gun lobby’s dominance is in jeopardy and that its victory in the Senate may have been a pyrrhic one. Below are nine reasons why progress on stronger gun laws is, in fact, still within reach.

1. Swing-state momentum

In April 2008 presidential candidates Barack Obama and Hillary Clinton, then Democratic senators of Chicago and New York, respectively, were in a month-long pitched battle to win the Pennsylvania primary. The contest played out as Sen. Obama’s remarks at a San Francisco fundraising event regarding “clinging to guns and religion” became public. The remarks set off a firestorm and sent both candidates into a mode of proving their pro-gun bona fides in the run-up to the Pennsylvania primary. The Clinton campaign even circulated mail pieces asking, “Where does Barack Obama really stand on guns?” and suggesting that he favored a total ban on handguns. While Pennsylvania does have the second-largest concentration of NRA members of any state, it was odd to see candidates in a Democratic primary going so far to stress their pro-gun positions in a state that suffers high rates of gun crime.Around the same time in early 2008, a small group of leading gun-violence-prevention advocates and funders developed a strategy to focus resources on a handful of key “purple” states, with three states at the top of the list: Pennsylvania, Colorado, and Virginia. What followed was a concerted effort to build coalitions of mayors and law enforcement, strengthen the voices of gun-violence survivors, develop in-state gun-violence-prevention organizations, and contest elections. The fruit of that strategy is evident today.

The bottom line: With advocates for stronger gun laws gaining ground in Pennsylvania, Colorado, and Virginia, the prospects nationally are bright.

2. Evolving demographics

Our country is undergoing a culture shift on guns. While the number of guns in circulation in the country has continued to rise, the percentage of households that own guns has been steadily declining for the past three decades, reaching a low of 34 percent in 2012, down from an average of 50 percent in the 1970s. Fewer Americans own guns, but the ones who do are likely to own more guns than ever. Driving this trend are declining gun-ownership rates among young people. Data from the General Social Survey, a public-opinion survey conducted every two years, found that household gun-ownership rates among people under 30 fell to 23 percent in 2012. This is down from a high of 47 percent in the 1970s.

Not only are fewer young people choosing to own guns than in previous generations, but they are also expressing evolving views on the role of guns in American culture. An April 2013 poll commissioned by the Center for American Progress, Campus Progress, and Mayors Against Illegal Guns and conducted by Democratic pollster Mike Bocian and Republican pollster Bob Carpenter reveals that young Americans have increasing concerns about the widespread presence of guns in society. Seventy percent of respondents under the age of 30 agreed that “the gun culture in our society has gotten out of control,” and 52 percent said that they feel safer in communities with fewer guns, with only 32 percent holding the opposite view. Part of this concern about guns may come from personal experience with gun violence. Thirty percent of people under the age of 30 reported having been personally affected or knowing someone who has been affected by gun violence, and 60 percent expressed concern that gun violence may affect them or their communities in the future. These numbers were even higher among young African Americans, Latinos, and Asian Americans: Collectively, 73 percent reported worrying about being personally affected by gun violence in the future.

These views about, as well as the experience of, the gun culture among younger Americans appear to translate into higher support for specific policies. The Bocian and Carpenter poll shows that while background checks for all gun sales are popular among Americans over the age of 30—86 percent said that they support such a law—it is even more popular among Americans aged 18 to 29, with 92 percent saying that they support the measure.

3. A new center of gravity

Two weeks ago Mayors Against Illegal Guns celebrated its seventh birthday. On April 25, 2006, 15 mayors from across the country—Democrats, Republicans, and independents alike—gathered to discuss how they could work together to address the issue of gun violence in their communities. As mayors, they were the elected officials who the public held responsible for crime, and as mayors, they were expected to solve problems rather than just endlessly debate them. That day those 15 mayors, led by New York City Mayor Michael Bloomberg—now an independent but then a Republican—and Boston Mayor Tom Menino (D), formed a coalition focused on sharing best practices to combat gun crime and collectively advocating for action in Washington. Seven years later Mayors Against Illegal Guns has grown to almost 1,000 mayors with 1.5 million grassroots supporters, and today it represents the leading organization in the fight for stronger gun laws.

SOURCE: AP/Ross D. Franklin

More than 50 anti-gun activists rally outside Sen. Jeff Flake's (R-AZ) office in Phoenix chanting "Shame on Flake" after he voted against universal background checks on gun purchasers in a recent bill on Friday, April 19, 2013.

It’s time to bring back public shaming. I’m not saying that we should throw people in the stocks and humiliate them in the public square, but we should force the senators who voted last week against sensible measures to reduce gun violence to answer for their vote.

It’s long past time to amplify how cowardly and antidemocratic their votes were—how irresponsible to their office, insulting to those killed and injured by gun violence, and craven to a cadre of gun-industry lobbyists, whose extreme opposition to common-sense gun laws contrasts with the 88 percent of gun owners in this country who support universal background checks.

The good news, however, is that the public shaming has begun. In a fierce and eloquent column in The New York Times the day after the Senate vote, former Rep. Gabby Giffords (D-AZ), one of the survivors of the January 2011 mass shooting in Tucson, Arizona, wrote:

Senators say they fear the N.R.A. and the gun lobby. But I think that fear must be nothing compared to the fear the first graders in Sandy Hook Elementary School felt as their lives ended in a hail of bullets. The fear that those children who survived the massacre must feel every time they remember their teachers stacking them into closets and bathrooms, whispering that they loved them, so that love would be the last thing the students heard if the gunman found them. …

I am asking every reasonable American to help me tell the truth about the cowardice these senators demonstrated. I am asking for mothers to stop these lawmakers at the grocery store and tell them: You’ve lost my vote. I am asking activists to unsubscribe from these senators’ e-mail lists and to stop giving them money. I’m asking citizens to go to their offices and say: You’ve disappointed me, and there will be consequences.

When the Senate voted last Wednesday, a group of gun-violence survivors was watching from the gallery. “Shame on you!” shouted two of the survivors right after a bipartisan amendment to expand background checks was defeated. The outburst came from Patricia Maisch, who had disarmed the shooter in the Tucson killing spree, and from Lori Haas, the mother of a young woman who had been wounded in the Virginia Tech mass shooting in 2007. Both women are now advocates for effective gun regulation, and their impassioned outcry reflected the frustration and anger of many Americans.

The next morning Joe Scarborough heaped more shame on the senators during his TV show “Morning Joe.” “This sort of extremism is going to be called out by the 90 percent,” Scarborough said, referring to the 90 percent of Americans who support universal background checks. “We’re the 90 percent, and we are going to win. This is just the first battle.”

Later in the day President Barack Obama criticized the senators who had voted against the gun measures for putting politics ahead of the needs of the American people. “All in all, this is a pretty shameful day in Washington,” President Obama said.

Yet despite the loss in the Senate, advocates are determined to press on. They know that their efforts are a marathon, not a sprint—that they need to maintain pressure on elected officials and keep the issue of gun violence front and center in the public eye.

The No More Names project is one way of doing that. The broad-based coalition is raising public awareness about gun violence through social media, information kits, education campaigns, and more. The coalition is also increasing public support for sensible legislation through a variety of efforts, including petition drives, citizen lobbying, and faith advocacy. In addition, the project sponsors public readings of the names of those killed by gun violence since the tragedy in Newtown, Connecticut; in fact, a reading was held outside the Capitol before, during, and after the Senate vote last week. More readings with new names are being planned. In addition, groups such as Lifelines to Healing and Faiths United to Prevent Gun Violence are mobilizing thousands of Americans across the country to keep applying the pressure.

Gun-industry lobbyists are hoping these efforts will fail. They are hoping that Americans will have a short attention span and will soon go back to “business as usual” so that these lobbyists can continue to strong-arm elected officials with threats of losing elections and promises of financial support if they vote against even modest measures to prevent gun violence.

But this time is different. “Enough is enough,” said the Very Rev. Gary Hall in a sermon at the Washington National Cathedral just days after the Sandy Hook shooting. “Everyone in this city seems to live in terror of the gun lobby. But I believe that the gun lobby is no match for the cross lobby, especially when we stand together as people of all faiths across the religious landscape of America.”

Hall is reiterating an age-old truth: In the end, money power is no match for moral power and people power. At some point the gun lobby will lose. As we pull back the curtain on its undemocratic tricks and expose its undue influence, the public will rise up and vote out of office those lawmakers under its sway.

“Shame on you” was the refrain these past several days. It offered much-needed clarity to a debate that too often gets bogged down in technicalities and unnecessary obfuscation. In their efforts in the days ahead, advocates should turn that three-word refrain into a loud and sustained chorus.

Sally Steenland is Director of the Faith and Progressive Policy Initiative at the Center for American Progress. Steenland, a best-selling author, former newspaper columnist, and teacher, explores the role of religion and values in the public sphere.

SOURCE: AP/Kevin Wolf

A man walks past thousands of grave markers erected in a mock cemetery to honor the victims of gun violence on the National Mall in Washington, Thursday, April 11, 2013.

Endnotes and citations are available in the PDF version of this issue brief.

Rev. Agabus Lartey, pastor of Family Life Fellowship Church in Boston, Massachusetts, left the lights on for his daughter Kristen before going to bed last August. But Kristen, a 22-year-old who had just graduated from college, never came home that night. Instead, she and three other young women were gunned down that evening while sitting in a car on a nearby street. Three of the four women died from their wounds, all victims of senseless—yet, for many Americans, frighteningly frequent—gun violence.

“I went into her room, and she wasn’t there,” Lartey told The Boston Globe. “I had an inkling, I started connecting the dots, and at that moment my doorbell rang, and there was a cop, and I knew that she had passed. … My birthday is the day that my daughter died.”

Stories such as Kristen’s are all too common in the United States, but they don’t have to be. Millions of Americans have been affected by gun violence in their communities, and millions more are calling for an end to the killing—and their voices are growing louder. In the wake of the tragic mass shooting at Sandy Hook Elementary School in Newtown, Connecticut, last December, an overwhelming majority of Americans called for common-sense gun regulations that could help prevent future killings: Polls show that 91 percent of Americans, including 85 percent of gun owners, support universal background checks for gun purchases.

But despite such strong public support, the U.S. Senate failed to pass a series of sensible gun regulations last week—including universal background checks for gun purchases. The Senate’s refusal to act has triggered widespread outrage among gun-violence-prevention advocates. Yet now more than ever, advocates are determined to intensify their efforts to defeat the gun lobby and win common-sense regulations to help make America safer. Faith-based groups have long been key partners in these kinds of efforts, bringing a moral voice, firsthand experience, learned expertise, and strategic know-how to the cause. Together with citizen groups, law-enforcement officials, elected leaders, and survivors of shootings, they are decrying the cowardice of senators who voted down gun laws and calling for sensible regulations that will help curb the epidemic of gun violence that haunts neighborhoods across the country.

SOURCE: CAP Illustration/iStock

Many of the states with the weakest gun laws also have the highest levels of gun violence.

See also: Interactive: Measuring Gun Violence Across the 50 States by Emma Shapiro and Charles Posner

This report contains a correction.

Endnotes and citations are available in the PDF version of this report.

In the aftermath of mass shootings and other gun-related tragedies, there is often a surge of interest on the part of community leaders, social-science researchers, and elected officials to root out the causes of gun violence in an effort to prevent such tragedies from occurring again. Any study into the causes of gun violence is necessarily complicated, however, as there are innumerable factors that contribute to the nature and prevalence of gun-related violence in any community.

Despite this complex web of factors that influence the rate of gun violence, this report finds a clear link between high levels of gun violence and weak state gun laws. Across the key indicators of gun violence that we analyzed, the 10 states with the weakest gun laws collectively have an aggregate level of gun violence that is more than twice as high—104 percent higher, in fact—than the 10 states with the strongest gun laws.

The data analyzed in this report relate to the following 10 indicators of gun violence:

1. Overall firearm deaths in 2010
2. Overall firearm deaths from 2001 through 2010
3. Firearm homicides in 2010
4. Firearm suicides in 2010
5. Firearm homicides among women from 2001 through 2010
6. Firearm deaths among children ages 0 to 17, from 2001 through 2010
7. Law-enforcement agents feloniously killed with a firearm from 2002 through 2011
8. Aggravated assaults with a firearm in 2011
9. Crime-gun export rates in 2009
10. Percentage of crime guns with a short “time to crime” in 2009

Using these data, we rank each state according to the rate of each indicator of gun violence and create an overall ranking of the states across all 10 indicators, resulting in an overall state ranking for the prevalence of gun violence. Finally, we compare this overall state gun-violence ranking with a Law Center to Prevent Gun Violence ranking of states based on the strength of their gun laws.

Our analysis determined that the following are the 10 states, by rank, that suffer the highest levels of gun violence:

1. Louisiana
2. Alaska
3. Alabama
4. Arizona
5. Mississippi
6. South Carolina
7. New Mexico
8. Missouri
9. Arkansas
10. Georgia

The Law Center to Prevent Gun Violence analysis shows that eight of these states are among the 25 states with the weakest gun laws.

While the strength of a state’s gun laws is just one factor in the prevalence of gun-related violence in the state and cannot alone account for gun violence, there is a clear link between weak gun laws and high levels of gun violence across the United States.

Arkadi Gerney is a Senior Fellow at the Center for American Progress. Chelsea Parsons is Associate Director of Crime and Firearms Policy at the Center. Charles Posner is the State Communications Assistant at the Center.

To see each of the top 10 state fact sheets, visit the following links:

• Louisiana
• Alaska
• Alabama
• Arizona
• Mississippi
• South Carolina
• New Mexico
• Missouri
• Arkansas
• Georgia

* Correction, April 22, 2013: This report incorrectly stated the national average of law-enforcement agents feloniously killed with a firearm from 2002 through 2011. The correct average is 0.2 per 100,000 people.

The interactive map below shows a state-by-state survey of 10 measures of gun violence drawn from FBI, ATF, and CDC data. The measures are aggregated to show that states with weak gun laws have higher rates of gun violence, and states with stronger gun laws have lower rates of gun violence.

SOURCE: AP/Damian Dovarganes

Students Zoe Bell, 12, left, and her sister, Sophie, 9, join Los Angeles-area clergy, religious leaders, and citizens in an interfaith candlelight prayer vigil to end to gun violence outside Los Angeles City Hall, Wednesday, December 19, 2012.

Endnotes and citations are available in the PDF version of this issue brief.

For years the conventional wisdom has said that “gun control” is a deeply polarizing and divisive issue and that support for stronger gun laws has been declining. In the wake of the December shooting at Sandy Hook Elementary School in Newtown, Connecticut, however, a wealth of new data challenges this conventional wisdom. First, public opinion has shifted significantly. By many measures, support for stronger gun laws has substantially increased. Second, signs of an emerging national consensus on many gun issues—which was actually developing prior to the Newtown shooting—are also evident.

In this issue brief—co-authored by a bipartisan team of pollsters who have each conducted public-opinion research on attitudes toward guns in recent years—we hope to set the record straight and provide tools for polling outlets and reporters going forward. We’ll focus on three key points:

• Newtown changed the debate. The Newtown shooting had a greater impact on public opinion about guns than any other event in the past two decades—and led to a clear rise in public support for stronger gun laws. In particular, three aspects about public opinion in the wake of Newtown are notable:
• Near unanimous support for universal background checks and clear majority support for high-capacity magazine and assault-weapons bans
• Almost as much support for stronger gun laws among gun owners as among the general public
• A large gender gap in views on guns and violence
• Much of the pre-Newtown polling missed emerging trends of Americans’ views on gun issues. Even before the Newtown shooting, Americans were less divided than some polling suggested because much of the polling contained the following three kinds of errors, omissions, or oversights:
• Overly broad questions on gun views failed to capture nuances in public opinion
• Outdated policy questions about guns missed the current debate
• Outdated language to describe gun issues failed to capture voter attitudes
• There is an emerging consensus on guns among the American public. Most Americans agree that handguns should not be banned, that more needs to be done to keep guns away from dangerous people, and that military-style weapons don’t belong on the streets.

Below, we look at these key points in more detail.

Newtown changed the debate

Most public polling on guns is conducted in the aftermath of a mass shooting, so it can be difficult to parse out what is a post-shooting reaction and what is the more stable public opinion. But the Newtown shooting has changed public opinion on guns in ways that the shootings at Columbine High School, Virginia Tech University, and in Tucson, Arizona, did not.

Americans across demographic groups report that Newtown has changed their views. In a January Washington Post/ABC News poll, a majority of Americans—52 percent—say they are now “more likely to support some forms of gun control,” with twice as many—35 percent—”much more likely” than “somewhat more likely”—17 percent. Even 44 percent of Republicans and 43 percent of Americans in gun-owning households said that they are more likely to support some stronger gun laws. Only a handful of voters overall—5 percent—say that they are less likely to support stronger gun laws. (see Figure 1)

Likewise, in each polling outlets’ broad-climate questions, support for stronger gun laws increased in the immediate aftermath of Newtown and continues to increase a month or more later. Gallup, for example, typically asks a three-pronged question: Should laws be “more strict, less strict, or kept as they are now?” Other outlets have a similar formulation. This version of the question has shown a decline in “more strict” responses over the years, but those numbers have recently stabilized. In the wake of Newtown, support for stricter laws has jumped more than at any time in the last two decades. (see Figure 2)

And though the National Rifle Association, or NRA, may be waiting for the “Connecticut effect” to dissipate, support for stronger gun laws remains high, with many polls showing majority support for stricter gun laws a month—and in some cases nearly two months—after Newtown. In fact, some public opinion research suggests that support for stronger gun laws has not only maintained its post-Newtown bump but also that support is continuing to rise.

An NBC News/Wall Street Journal poll found that in mid-January, a month after Newtown, 56 percent of Americans supported “stricter” gun laws, as opposed to the 35 percent who wanted laws kept as they are and the 7 percent who wanted laws weakened. Two months after Newtown the same poll showed that support for stricter laws had increased to 61 percent, with only 4 percent of Americans favoring weaker laws and 34 percent wanting current laws to be maintained.

There is near unanimous support for keeping guns out of dangerous hands

When pollsters drill down to particular policy proposals, almost all voters want to keep guns out of dangerous hands. In every poll where these measures are tested, support for appropriate measures is strong and consistent—and transcends party lines.

Background checks: Voters support criminal background checks of essentially all kinds—for every gun purchase, at gun shows, for ammunition, and others. Support for these proposals is nearly unanimous—and has been in every poll we’ve seen. There is also nearly unanimous support for specific measures to keep felons, the mentally ill, drug abusers, those with arrests for domestic violence, and those on the government’s terrorist watch list from purchasing guns.

High-capacity magazines and assault weapons: A smaller but a consistent majority of voters supports bans on high-capacity magazines, assault weapons, and other perceived safety threats. The major pieces of President Barack Obama’s package requiring congressional approval—a ban on high-capacity magazines and assault weapons—are more popular than media coverage would suggest. A ban on high-capacity magazines is consistently popular with a majority of voters. Results have fluctuated little over the decades of public polling—between majority support and two-thirds support. In the January Washington Post/ABC News poll, 59 percent of Republicans say they supported such a ban. The only stronger gun law currently being discussed that has occasionally received less than majority support is an assault-weapons ban, but that proposal usually receives majority support. On average, support for a high-capacity magazine ban exceeds support for an assault-weapons ban by five points.

Table 1 below shows recent results across polling outlets for some of these proposals. For full question wording and polling methodology, please see the endnotes.

Support for action is high even among gun owners

Polling shows that support for strong gun measures is high among gun owners. Support for requiring criminal background checks for all gun sales—no matter who the seller is or where the location of the sale is—receives not only near-universal support among the general public but also among gun owners. (see Table 2)

On other policy questions, a gap between the opinions of the overall public and gun owners develops—but perhaps not as wide as one might expect. On the question of assault weapons, for example, a December Pew Research Center poll found that about two-thirds (65 percent) of Americans think, “allowing citizens to own assault weapons makes the country more dangerous.” Half (50 percent) of those in a gun-owning household agree. Likewise, while a February Quinnipiac poll shows that 56 percent of Americans support bans on assault weapons and high-capacity magazines, support among gun owners trails 12 points and 11 points behind, respectively.

Perhaps most troubling for NRA leadership is that a majority of respondents—61 percent—in a recent Gallup poll say that the NRA does not reflect gun owners’ views on guns. Even in gun-owning households, 49 percent of respondents say that the NRA reflects their views “only sometimes/never,” while 50 percent of respondents answer “always/most of the time.” The NRA’s distance from gun owners suggests the organization is out of touch with its own constituency. And voters agree. A February Public Policy Polling poll shows that 39 percent of Americans said that the NRA’s support would make them less likely to support a candidate for office, while only 26 percent said the NRA’s support would make them more likely to support a candidate.

An important gender gap

With women voters increasingly crucial to electoral success, a gender gap on guns means the issue can drive the political dialogue. Women are more supportive of stronger gun laws broadly and more likely to support specific proposals. The gender gap transcends party affiliation.

In the wake of Newtown, CBS News and The New York Times, Public Policy Polling, and the Pew Research Center each show a double-digit gender gap in support of stronger gun laws, with approximately 6 in 10 women supporting such a change. Both Pew and Gallup tracking suggest that this gender gap dates back to the 1990s.

The gap pervades every proposal tested. The mid-January Washington Post/ABC News poll showed that support for a ban on assault weapons and high-capacity magazines runs 16 points and 15 points higher, respectively, among women than it does among men. Pew shows a similar result. In fact, both polls show majorities of women support every single specific stronger gun law tested, aside from arming teachers. (For more on this gender gap, see this piece by co-author Margie Omero.)

While conventional wisdom may say that the NRA is a well-liked organization, that is simply not true among women. In mid-January the Washington Post/ABC News poll showed men slightly favorable toward the “NRA leadership,” while women were unfavorable by a nearly 2-1 ratio. Similarly, Public Policy Polling found women unfavorable to the group even before the December press conference in which NRA CEO and Executive Vice President Wayne LaPierre defended guns and called for more armed guards in schools as a response to reducing gun violence.

Furthermore, a February 2013 bipartisan poll of women voters for the Women Donors Network—conducted by co-authors Bob Carpenter and Diane Feldman—showed the NRA to be the least influential person or group on women’s views on guns. Even women in NRA-member households rated parents and “women like themselves” more highly as spokespersons than they rated the NRA.

One likely driver of this gender gap is women’s concern about violence in their communities. After Newtown, both the Washington Post/ABC News poll and Gallup showed that about 6 in 10 women worried about a mass shooting, compared to less than half of men. And the Women Donors Network survey cited above showed that women were concerned about a broader culture of violence—and that 23 percent of likely voting women had themselves been a victim of physical violence or physical abuse or had a family member who was a victim.

Missing the emerging consensus: Three problems with the pre-Newtown polling

The Newtown shooting has changed Americans’ views on guns, but there is reason to suspect that support for action was stronger before Newtown than major polling outlets and the resulting media coverage suggested. Too much of the pre-Newtown polling suffered from three kinds of problems:

• Over-reliance on broad, overall “climate” questions, with too few policy drilldowns
• Over-reliance on outdated policy questions
• Over-reliance on the outdated phrase “gun control”

Over-reliance on broad, overall “climate” questions

Some standard questions on views toward gun laws are overly broad and point to inconsistent conclusions.

One of the most consistent findings in gun polling is that support for “gun control” broadly is lower than support for specific tighter gun laws. One reason is the lack of specificity in broad “gun climate” questions. What do respondents think of when asked whether they support “gun control” or “stricter laws covering the sale of firearms”? Are they thinking about a ban on all guns, including hunting rifles? Are they thinking about preventing people accused of domestic violence from getting a gun at a gun show without a background check and then bringing that gun across state lines? We simply don’t know. This is not to say that a broad question on attitudes toward gun laws can’t be useful, but we should simply understand its limitations.

One challenge is interpreting the results in the current policy context. Even though polling outlets structure their broad climate questions differently, they consistently show support for some sort of restrictions on guns. The CNN/ORC poll shows that about three-fourths of Americans want to see at least minor restrictions on guns. (see Figure 4) And the three-pronged climate questions asked by most outlets consistently show hardly any support for making gun laws “less strict.” (see Figure 2) Yet before the Newtown shooting, the NRA, the American Legislative Exchange Council, and others were indeed fighting for less strict gun laws, inching us closer to the “no restrictions” end of the spectrum.

Furthermore, while it’s true that prior to Newtown support for stronger gun laws had declined from the 1990s, in all broad climate questions, support for specific policies remains high.

The table below shows the degree to which support for specific policies exceeds support for the generic notion of “stricter gun laws.”

Over-reliance on outdated policy questions

In 2008 the Supreme Court held in the landmark District of Columbia v. Heller case that the Second Amendment guaranteed an individual the right to own a handgun in their home for self-defense. The ruling made clear that this right was subject to reasonable regulation, but it also meant that a complete ban on handguns was off the table. In fact, long before the 2008 decision, no serious national politicians and very few local elected officials were advocating banning handguns. But that didn’t stop some polling outfits from asking questions about support for handgun bans.

Between the Columbine High School massacre in April 1999 and its most recent post-Newtown poll, Gallup asked Americans about support for a ban on handguns 13 times. Over that period support for such a policy dropped from 38 percent to a record-low 24 percent in December 2012. That drop in support preceded the landmark 2008 Supreme Court Heller decision but accelerated after the Supreme Court ruled that such a policy was constitutionally impermissible. Gallup kept asking this question even though no legislation to ban handguns was introduced in Congress—let alone debated—at any time during the period.

In the wake of Columbine and over the past 14 years, the policy perhaps most debated and prioritized by advocates for stronger gun laws is closing the loophole at gun shows or completely closing the private-party-sale background-check loophole. This policy was seriously debated in states—a number of which adopted this measure—and in Congress, where it was voted on in 1999 and 2004 and received more co-sponsors in recent years than any other gun-law-strengthening measure. But Gallup has asked about closing gun-sale background loopholes just three times since 1999: once two months before Columbine, when it received 83 percent support; once a few months after Columbine, when it received 87 percent support; and then again in December 2012, when support rose to 92 percent. This near-universal support for universal background checks is consistent with other public polls, as seen in Table 1.

Over-reliance on the outdated phrase “gun control”

Advocates for stronger gun laws have long abandoned the word “control.” No national group currently advocating for stronger gun laws currently uses the word. The group called Handgun Control changed its name to The Brady Campaign to Prevent Gun Violence more than a decade ago. And more recently the group Million Moms for Gun Control changed their name to Moms Demand Action. No poll commissioned by a gun-law group includes the word. Internal polling in 2011 for a group working for stronger gun laws showed “gun control groups” receiving weaker ratings than “gun violence prevention groups.”

“Control” has been dropped for a reason: It is aggressive rather than neutral. It sounds as if “control” alone is the objective, and it helps paint the incorrect picture of government “coming for” one’s guns. And you’d be hard pressed to think of another set of laws that uses the word. Despite all this, “control” remains in the common vernacular.

Looking at the exact question wording in every outlet’s version of the three-pronged broader climate gun question—should laws be made more strict, less strict, or kept the same—only CBS News/New York Times and the Los Angeles Times use the phrase “gun control” in the question. Other outlets use “sale of firearms” or similar wording. And the CBS News/New York Times and Los Angeles Times results consistently show lower “more strict” support than the other outlets. It’s certainly possible that there are house effects at work, in which the CBS News/New York Times and Los Angeles Times polling methodology are consistently and similarly different from the other outlets, but this pattern has been evident since 1999, the earliest year for which data are available for comparison.

Simply using the phrase “gun laws” or “stronger gun laws” is a neutral, appropriate phrase, and it should be part of all public polling and public discussion going forward.

In Pew’s question, respondents are asked, “Which is more important, to control gun ownership, or protect gun rights?”, as if controlling gun ownership is its own goal—as opposed to, quite obviously, reducing gun violence—in the way that protecting gun rights is its own goal. Even in this question, however, support for “controlling gun ownership” has stabilized in the last few years and—after Newtown—now exceeds support for protecting gun owners’ rights.

The real frame for a broader gun-climate question should ask respondents to choose between gun rights on the one hand and reducing gun violence on the other. Yet only internal polling for gun-law advocates has this frame in its wording.

Widespread, stable support for a common ground on guns

There is clear consensus around a variety of common-sense gun laws, as well as consensus around what limits are unacceptable. Congress is fighting over questions that are simply not controversial.

The common ground is centered on the following two ideas:

• Responsible law-abiding Americans have a right to own guns.
• Much more needs to be done to keep dangerous guns from dangerous people.

Pollsters have too often asked questions that present these two ideas as opposing; the vast majority of Americans view these concepts as consistent and complementary.

Americans overwhelmingly agree with the Supreme Court that the Second Amendment protects the rights of individual Americans to own a gun. While the wording varies slightly across outlets, the results are consistent. About three-fourths of voters feel the Constitution protects all—or most—Americans’ rights to own a gun, not just the rights of militias. And despite gun-lobby histrionics, there is no mandate in the public or among policymakers to “attack” the Second Amendment.

Americans also agree that much more ought to be done to keep dangerous guns from dangerous people. In July 2012 polling for Mayors Against Illegal Guns, Republican pollster Frank Luntz found that 87 percent of NRA members and 83 percent of non-NRA gun owners agree that, “Support for Second Amendment rights go hand-in-hand with keeping illegal guns out of the hands of criminals.” And in 2009 Luntz polling—also for Mayors Against Illegal Guns—found that 86 percent of NRA and 86 percent of non-NRA member gun owners agree with the following statement: “We can do more to stop criminals from getting guns while also protecting the rights of citizens to freely own them.”

The American voter’s penchant for balance and compromise extends to gun laws. Across lines of gun ownership, gender, and party, there is more support for some stronger laws than the status quo. Only a careful read of the polling identifies the fault lines that invariably exist, along with the common ground that also exists just as assuredly.

The authors of this paper are principals at public opinion research and strategic consulting firms. Margie Omero is president of Momentum Analysis. Bob Carpenter is president of Chesapeake Beach Consulting. Michael Bocian is a founding partner at GBA Strategies. Diane Feldman is president of The Feldman Group, Inc. Linda DiVall is founder and CEO of American Viewpoint. Douglas Schoen is a Democratic campaign consultant. Celinda Lake and Joshua Ulibarri are president and partner of Lake Research. Al Quinlan is president of Greenberg Quinlan Rosner Research. Arkadi Gerney is a Senior Fellow at the Center for American Progress.

SOURCE: AP/Seth Perlman

Handguns are seen for sale at Capitol City Arms Supply, Wednesday, January 16, 2013, in Springfield, Illinois.

Endnotes and citations are available in the PDF version of this issue brief.

It is no secret that annual appropriations bills are often used as a vehicle for moving through discrete legislative measures unrelated to funding the government. Because appropriations bills are often considered to be “must pass” pieces of legislation, packaging nonfunding policy provisions into these bills can be an effective way to ensure passage of measures that might not pass if submitted through the regular legislative process in the House and Senate.

The use of appropriations riders to enact policy changes, however, has reached new heights in the area of firearms. Beginning in the late 1970s and accelerating over the past decade, Congress, at the behest of the National Rifle Association, or NRA, and others in the gun lobby, began incrementally chipping away at the federal government’s ability to enforce the gun laws and protect the public from gun crime. The NRA freely admits its role in ensuring that firearms-related legislation is tacked onto budget bills, explaining that doing so is “the legislative version of catching a ride on the only train out of town.”

Inserting policy directives in spending bills bypasses the traditional process, which allows for more careful review and scrutiny of proposed legislation. Appropriations bills are intended to allocate funding to government agencies to ensure that they are capable of fulfilling their missions and performing essential functions. But the gun riders directed at the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, do exactly the opposite and instead impede the agency’s ability to function and interfere with law-enforcement efforts to curb gun-related crime by creating policy roadblocks in service to the gun lobby. As a group, the riders have limited how ATF can collect and share information to detect illegal gun trafficking, how it can regulate firearms sellers, and how it partners with federal, state, and local law enforcement agencies.

The Obama administration has, at times, recognized the problematic nature of such policy-directed appropriations riders. In May 2012 President Barack Obama threatened to veto the appropriations bill to fund the Department of Commerce, the Department of Justice, the National Aeronautics and Space Administration, the National Science Foundation, and other related agencies for fiscal year 2013—in part because of the inclusion of this type of policy rider. The president specifically mentioned a rider aimed at ATF that sought to prohibit the agency from requiring firearms dealers in four border states to report the sale of multiple rifles or shotguns to a single individual—a new policy that had been implemented to assist law enforcement fighting illegal gun trafficking along the border with Mexico. Calling such riders “problematic policy and language riders that have no place in a spending bill,” the Obama administration stated that it “strongly oppose[d]” this type of rider.

The tragedy at Sandy Hook Elementary School in Newtown, Connecticut, last December, coming on the heels of a string of other recent mass shootings in Aurora, Colorado, and Tucson, Arizona, has proven to be a wake-up call to the American people that the issue of gun violence in this country must be addressed. The president and many members of Congress have taken up this charge for the first time in many years. Outside Capitol Hill, it’s evident that a serious and comprehensive discussion about how to prevent gun violence in our communities has begun, both on questions of legislation and executive action. Thus far, the debate has focused primarily on major legislative proposals such as universal background checks, a renewed assault weapons ban, and increased penalties for gun traffickers. These measures are critically important to reducing gun violence, but the discussion should not end here. As examined in detail below, there are more than a dozen appropriations riders passed each year, typically without any discussion or debate, which significantly limit the federal government’s ability to regulate the firearms industry and fight gun-related crime. These riders jeopardize public safety and and threaten to undermine any new legislation that Congress may pass to reduce gun violence.

Among other things, these riders:

• Limit ATF’s ability to manage its own data in a modern and efficient manner, and strip the agency of autonomy and its ability to make independent decisions
• Interfere with the disclosure and use of data crucial to law enforcement and gun-trafficking research
• Frustrate efforts to regulate and oversee firearms dealers
• Stifle public health research into gun-related injuries and fatalities

As President Obama stated in January 2013 while unveiling his proposals to reduce gun violence:

While there is no law or set of laws that can prevent every senseless act of violence completely, no piece of legislation that will prevent every tragedy, every act of evil, if there is even one thing we can do to reduce this violence, if there is even one life that can be saved, then we’ve got an obligation to try.

In the discussion that follows, we call on President Obama to remove all of the unnecessary and dangerous riders from the fiscal year 2014 appropriations bill he will submit to Congress. Removing these riders has the potential to free the ATF and other federal agencies to use their substantial knowledge and expertise to protect our communities from future gun-related tragedies. In his first budget proposal to Congress since the Newtown shooting, we urge the president to introduce a clean budget that strips each of the riders described in detail below from his FY 2014 budget. The president can lead with a clean budget, but ultimately Congress must act. Therefore, we call on Congress to have an open debate about the unnecessary and dangerous restrictions contained within this set of policy riders.

Limits on ATF management and operations

Unlike other federal law enforcement agencies that are afforded a high level of organizational autonomy and given wide latitude to develop programs and systems to facilitate their mission, ATF’s activities are tightly controlled by Congress. Over the years, Congress has imposed numerous restrictions on how ATF manages its data, whether or how it acts to fulfill its duties under various laws, and its ability to delegate any of its functions to other agencies or departments.

Data management

Since 1979 the Bureau of Alcohol, Tobacco, Firearms and Explosives has been prohibited from creating a centralized database of gun sales records already in its possession. While federal firearms licensees are required to keep records of every firearm sale they engage in and to provide this information to ATF upon request—for example, to assist police by tracing a gun found at a crime scene—ATF is not permitted to consolidate that information into a centralized database that could be easily accessed by law enforcement when a gun is recovered at a crime scene. ATF is also restricted from putting records of gun sales obtained when dealers go out of business into an electronic, searchable database. ATF receives an average of 1.3 million records from out-of-business dealers each month, and it is forced to keep these records in boxes in warehouses or on microfiche.

A centralized database containing this type of data bears no resemblance to a registry of gun purchases as the gun lobby claims. Creating such a registry, or even maintaining data for approved gun background checks indefinitely, is expressly prohibited by the Brady Act, which created the firearm background check system. Instead, these riders restrict how ATF accesses records it is already entitled to access and maintains records already in its possession. Because there is no centralized electronic database of gun records already in its possession, when a gun is found at a crime scene, ATF is forced to go through a complicated and time-consuming process to try to determine the gun’s owner. ATF agents must sift through hundreds of thousands of paper records, make numerous phone calls to the manufacturer and retail dealer that first sold the weapon, and rely on records kept by federally licensed firearms dealers to attempt to identify the weapon’s owner. Using this antiquated and inefficient system, a firearms trace can take days, or even weeks, thereby frustrating criminal investigations. Considering that ATF conducted more than 333,445 firearms traces in 2012, the amount of time, effort, and resources that could have been saved had ATF been able to simply search its own records is truly staggering.

Since 2004 Congress has included another gun rider—one of the so-called Tiahrt Amendments, after their chief proponent, former Rep. Todd Tiahrt (R-KS)—to the appropriations bill that directly impedes law enforcement’s ability to identify straw purchasers—a person who buys a gun for someone who can’t legally purchase a gun—and criminal gun-trafficking networks. Pursuant to this rider, the FBI may only retain records of individuals who successfully passed the National Instant Criminal Background Check System, or NICS, for 24 hours.

The destruction of these records means that federal law enforcement is deprived of the opportunity to recognize patterns in apparently legal gun sales that suggest straw purchasing and gun trafficking. Federally licensed gun dealers, for example, are required to report to ATF when an individual purchases more than two firearms in a five-day period because such sales raise a red flag that the individual may be engaging in straw purchases or gun trafficking. But straw purchasers can easily evade detection and bypass this reporting requirement by purchasing smaller quantities of guns from multiple dealers, knowing that law enforcement will not be able to track these purchases because the federal background check records will be almost immediately destroyed. The destruction of these records within 24 hours also deprives ATF of the opportunity to proactively identify corrupt gun dealers who falsify their records to enable straw purchases. Instead, ATF is not alerted to criminal activity engaged in by licensed gun sellers until after crimes are committed and the guns used in those crimes are traced back to the corrupt dealer—by that time it is too late to prevent harm to public safety.

When the National Instant Criminal Background Check System was first created, the FBI was permitted to keep records of individuals who passed a background check for six months so the system could be audited to ensure that it was not being used for unauthorized purposes, and to enable other quality control checks. The FBI subsequently revised the applicable regulation to shorten the permissible retention period to 90 days. These multimonth retention periods were upheld by federal courts as consistent with the prohibition in the Brady Act on creating a registry of firearms. Congress should remove this rider and allow the FBI to revert to the three-month retention period to give law enforcement the opportunity to mine these data for indications of criminal activity and ensure that the background check system is functioning properly and not being misused.

The practical result of these appropriations riders intended to prevent a speculative and unfounded fear of widespread firearms confiscation is to impede law enforcement investigations into violent criminal activity and needlessly waste already limited ATF resources. Each of these riders should be stripped from the FY 2014 appropriations bill so our federal law enforcement agencies can take the steps necessary to modernize their data collection and management systems and pursue criminal investigations more efficiently.

Basic operations

Congress has also imposed riders that strip away ATF’s autonomy as an agency and impose arbitrary restraints and conditions on its activities. The most drastic of these measures is a rider first added in 1994 that prevents ATF from transferring any of its “functions, missions or activities” to another agency or department. As a consequence the Department of Justice is prohibited from moving certain law enforcement functions of ATF to the FBI, where there are more resources and a more developed leadership structure. Such shuffling of responsibilities among subordinate entities is routine at other agencies and in the corporate world, yet the Department of Justice is denied the opportunity to engage in this basic management practice, even in the face of repeated criticism from Congress about inefficiencies and mistakes at ATF. ATF faces serious challenges to its ability to effectively fulfill its mission—including Congress’ failure to approve a permanent director for the past six years—yet is prohibited from taking steps to address these challenges in any meaningful way. Instead of giving flexibility to federal agencies to cooperate, share resources, and work together more efficiently, with this rider Congress has instead frozen in place ATF’s ability to partner with and seek aid from other federal law enforcement agencies.

Limits on the disclosure and use of trace data

In 2004 a set of appropriations riders collectively known as the “Tiahrt Amendments” were tacked onto the Department of Justice appropriations bill. Among other things, these riders drastically limited the ability of ATF and other law-enforcement agencies to use and disseminate trace data—data that links guns found at crime scenes to a manufacturer, the dealer that originally sold it, and possibly the identity of the owner.

The Tiahrt trace data rider barred ATF from disclosing any trace data to the public, shielded trace data from subpoena in civil actions, and provided that these data are inadmissible in evidence. In their original form, the riders also limited the access of law-enforcement agencies to data related only to a particular criminal investigation and pertaining only to their geographic jurisdiction, which prevented police from obtaining batch data that could help identify straw purchasers, problematic gun dealers, and illegal gun traffickers operating across state lines.

These provisions were introduced at the behest of the NRA in large part to shield the firearms industry from lawsuits that municipalities had begun to file alleging negligent practices that allowed guns to end up in the hands of criminals. Tiahrt himself acknowledged what motived him to pursue these riders, explaining, “I wanted to make sure I was fulfilling the needs of my friends who are firearms dealers.”

These riders limiting access to and use of trace data proved to be a danger to public safety. Research conducted by a team at the Johns Hopkins University analyzed the impact of these appropriations riders on the diversion of guns to criminals by one of the nation’s leading suppliers of guns used in crimes, Badger Guns & Ammo in Milwaukee. According to ATF data, in 1999 Badger Guns & Ammo had the highest number of sales of guns that were later recovered at a crime scene. The Johns Hopkins research found that, following the passage of the Tiahrt Amendments, the number of guns sold by Badger Guns that were later discovered at a crime scene increased by 203 percent. The study’s authors attributed this increase to the riders, stating that these provisions “prompted a dramatic increase in the flow of guns to criminals from a gun dealer whose practices have frequently been of concern to law enforcement and public safety advocates.”

After campaigns by hundreds of mayors and police chiefs, some of the worst gun-trace data restrictions have been amended. ATF is now permitted to release annual statistical reports containing aggregate trace data and law-enforcement agencies are free to receive trace data regardless of whether the data requested pertains to a particular investigation or the geographic jurisdiction of the agency asking. Yet the remaining restrictions on the disclosure of trace data continue to pose significant obstacles to law enforcement and efforts to stop corrupt gun dealers from illegally selling weapons to criminals and gun traffickers. The prohibition against using trace data in civil proceedings means that evidence of a gun dealer’s frequent sale of guns that end up at crime scenes—a strong indicator of malfeasance by the dealer—may not be used in a state or local proceeding to revoke the dealer’s license. Additionally, the limitation on ATF’s ability to release any but the most aggregated trace data to the public means that criminal justice researchers are unable to put their substantial expertise to use identifying complicated interstate and international gun-trafficking patterns.

Oversight of gun sellers and gun manufacturers

One of the most important functions of ATF is to regulate and oversee the firearms industry. ATF is the licensing body for firearms dealers and is responsible for ensuring that federally licensed firearms dealers comply with the laws and regulations that govern their businesses. This work is vitally important, as incompetent or unscrupulous gun dealers create an opportunity for guns to be diverted out of the lawful stream of commerce and into the hands of dangerous individuals and criminal gun-trafficking networks. Once again, Congress has interfered with ATF’s ability to fulfill its mission by enacting riders to the appropriations bill that dilute its power over licensed gun dealers.

Oversight of federal firearms licensees

ATF’s primary tool to ensure compliance with federal laws and regulations is to conduct regular inspections of federally licensed firearms dealers. Yet current resource limitations make it impossible to regularly inspect the roughly 60,000 gun dealers in the United States. With only around 600 inspectors available to conduct these inspections—inspectors who must divide their time between prospective dealers, explosives retailers, and active gun dealers—the Bureau of Alcohol, Tobacco, Firearms and Explosives is currently only able to inspect licensed gun dealers about once every five years.

One of the most important parts of an ATF inspection of a federally licensed firearms dealer is an inventory check to ensure that the dealer can account for every gun that has passed through its doors. In the event that dealers cannot account for large numbers of guns that should be in their inventory, a red flag is raised to the ATF that illegal guns sales may be occurring. Additionally, guns reported as lost or stolen end up at crimes scenes in large numbers, indicating that this is a common way for guns to be diverted into criminal hands. One way to fill the gap in the infrequent inspections is to require gun dealers to regularly check their inventory against their sales to ensure that all guns are accounted for. Because licensed gun dealers are required under federal law to report lost or stolen guns to the ATF, keeping an inventory would be an effective way of ensuring that missing guns are promptly identified and reported to law enforcement.

The utility of requiring gun dealers to keep an inventory was recognized in the late 1990s when research revealed that a small fraction of gun dealers were the first sellers of the majority of guns recovered at crime scenes. As a follow-up to this research, ATF began focusing inspections on these problematic dealers and found rampant illegalities, including missing guns, noncompliant record-keeping, and hundreds of firearm sales to prohibited purchasers. In response, the Clinton administration proposed requiring gun sellers to keep an updated inventory to ensure that each firearm was properly accounted for.

In 2004 the NRA and others in the gun lobby shut down these efforts to rein in the problem of gun dealers failing to maintain control of their inventories by including a provision in the package of Tiahrt amendments that specifically prohibits ATF from requiring dealers to conduct an annual inventory. A business practice that is routine and uncontroversial in nearly every other retail market, including the retail market for explosives, which is also overseen by ATF, is banned by the federal government in the context of the sale of one of the most dangerous consumer products.

This is not an idle concern. During the inspections that ATF is able to conduct with its limited resources, tens of thousands of guns are discovered to be lost or stolen each year. In 2011 ATF discovered that nearly 18,500 guns were unaccounted for during the course of 13,100 firearms compliance inspections. In 2012 the inspection of just one gun dealer revealed that 997 guns were unaccounted for and an additional 93 guns had not been logged in as inventory, a sign of illegal sales. Guns lost or stolen from dealer inventories have been found at high-profile shootings, such as the Washington, D.C.-area sniper shootings in 2002. One of the guns used in that string of murders disappeared from the inventory of Bull’s Eye Shooter Supply in Tacoma, Washington, which had lost track of 238 guns over a three-year period. Additionally, Riverview Sales, the gun dealer from which the Newtown shooter’s mother legally purchased the guns used in that attack, has a history of losing track of weapons in its inventory and gun thefts by employees and customers. ATF has commenced proceedings to revoke its federal firearms license.

The NRA argues that requiring licensed gun dealers to maintain an inventory would be unduly burdensome on law-abiding dealers. But maintaining accurate inventory records is a routine business practice in nearly every other retail industry and any burden on lawful dealers—who are likely already keeping these records as part of a good business practice—is outweighed by the benefit to public safety of quickly identifying missing guns and reporting them to law enforcement. An inventory requirement would also serve as a deterrent to gun dealers tempted to break the law by selling guns to criminals, as well as an incentive to law-abiding firearms dealers to ensure that they are in full control of their dangerous inventory.

Congress has also imposed another limitation on ATF’s ability to regulate gun dealers via appropriations rider. Since 2004 ATF has been prevented from denying or refusing to renew a gun dealer’s license for “lack of business activity.” This means that, despite the requirement under federal law that a gun dealer be “engage[d] in the business” of selling guns, any individual may obtain a federal firearms license, regardless of the size of their business or the frequency with which they sell guns. This has the effect of undermining the licensing requirements and creating a glut in the licensee population, which makes it harder to regulate. ATF should be given the discretion and autonomy to enforce the federal laws as it deems appropriate and this kind of policy decision should be left to the agency, not made in a vacuum by Congress during budget negotiations.

Regulation of firearms

In addition to regulating federal firearms licensees, the Bureau of Alcohol, Tobacco, Firearms and Explosives also has the authority to enact regulations to facilitate the enforcement of other federal firearms laws, including the Gun Control Act, the National Firearms Act, and the Arms Export Control Act. Congress has once again cut the agency off at the knees in its attempts to do so, enacting even more appropriations riders that limit the agency’s ability to function and impose policy decisions that are better left to the agency to make.

This can be seen in the fact that since 1996 ATF has been banned from changing the definition of what firearms constitute “curios or relics.” Under current federal regulations, curios or relics are defined as firearms “which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons.” Any firearm that was manufactured at least 50 years ago qualifies as a curio or relic, as well as others of museum interest or that are otherwise rare or novel. Curio and relic firearms occupy a unique place in the federal firearms licensing scheme. Individuals can obtain a collectors firearms license from ATF that allows them to buy and sell curio and relic firearms in interstate commerce—particularly online—without going through the federal firearms licensing procedure and without the requirement of a national instant background check. Constraining ATF’s ability to evaluate the guns receiving curio or relic classification and requiring that the current definition remains unchanged means that there are dangerous, serviceable weapons in our communities, including some semiautomatic military surplus rifles manufactured only 50 years ago, which are subject to far less stringent regulations than comparable modern weapons. These are not merely antique guns that are locked away in display cases—modern semiautomatic rifles such as the SKS and Dragunov SVD currently qualify as curios and relics. What’s more, so-called curio and relic guns have been used in crimes in the United States. Case in point: In 2011 a teenager in New Mexico was charged with murdering his father by shooting him with a “Russian war rifle from 1936.”

This rider is also particularly problematic because the overuse of the curio and relic classification has led to circumvention of the ban on the importation of assault rifles enacted by President George H.W. Bush. While attracting less attention than the federal assault weapons ban, the 1989 ban on the importation of “non-sporting purpose” firearms is still in force and is intended to block the importation of assault rifles. A curio and relic classification means that assault rifles of particular makes and models—even those manufactured in the last several years—are exempt from the ban.

Another example of congressional overstepping in the area of firearms regulation is a series of riders that limit the ability of various government agencies to regulate the international trade in firearms. Congress has imposed bans on denying applications to import curio or relic firearms and certain models of shotguns. These prohibitions limit ATF’s ability to minimize the risk of certain dangerous, serviceable weapons entering the United States and potentially ending up the in the hands of criminals. Congress has also imposed a ban on requiring an export license for exporting certain firearms and accessories to Canada, a measure designed to facilitate hunting between the two nations. But here again, regardless of the intent of these appropriations riders, policy decisions such as these are best left for the experts at ATF and other agencies to make after careful study and consideration, not imposed by Congress during the budget process at the urging of the gun lobby.

Hampering public health research

Congressional stifling of federal activities regarding firearms through the vehicle of appropriations riders extends beyond law-enforcement agencies and affects public health and research as well. Congress has essentially silenced any federal public health research into firearms injuries by inserting language into the appropriations bill prohibiting the Centers for Disease Control and Prevention and the National Institutes of Health from spending any funds to “advocate or promote gun control.” Proponents of these riders, chief among them the NRA, argue that gun violence is a law-enforcement issue and research institutions such as the Centers for Disease Control and Prevention should not be participating in policy debates. Mayors Against Illegal Guns recently issued a report conducting an in-depth analysis of how these riders and other measures have strangled nearly all federal research into firearms. While these riders are not an overt ban on studying firearms injuries or deaths, it has been perceived by the agencies as a threat that any such research will result in a loss of funding and has therefore had a chilling effect. Centers for Disease Control and Prevention funding for firearms injury prevention research has fallen 95 percent since this appropriations language was added—from an average of $2.5 million annually between 1993 and 1996, to around $100,000 annually in 2012. Without the benefit of up-to-date public health research into gun violence and gun-related injuries and deaths, legislators and policymakers are left to guess which proposals will be most effective at addressing these issues.

As part of his comprehensive plan to address gun violence, President Obama recognized the importance of public health research on gun violence and condemned the congressional actions attempting to limit it. He asserted that such research is not, in fact, advocacy and is not prohibited by any appropriations language. The administration has directed the Centers for Disease Control and Prevention to recommence research into the causes and prevention of gun violence. This is a good start toward freeing public health research institutions to devote attention to gun violence, however, these riders must be stricken from the appropriations bill to remove any doubt that this type of research constitutes a permissible use of funding. It is also worth noting that these riders are unnecessary and duplicitous, as these and other federal research institutions are already prohibited from engaging in political advocacy under the Hatch Act.

Permanently hamstringing federal action on guns

Not only has the NRA succeeded in adding these provisions into appropriations bills, in many cases they have succeeded in including language that gives the provisions future effect beyond the period for which funds are being appropriated. Typically, because appropriation legislation provides funding for a particular fiscal year, the presumption is that the provisions contained in these bills apply only to that year and are not intended to be permanent. But if Congress uses so-called “words of futurity” that indicate the intent to make the provision permanent, it will be considered permanent law.

Some of the appropriations riders discussed above have been made permanent using such futurity language, such as the prohibition on creating an electronic database of gun sales records and the requirement that records from national instant background checks be destroyed within 24 hours. The campaign to make these riders permanent continues even in the midst of the debate over other gun-related legislative measures. The continuing resolution being debated during the week of March 11, 2013, to fund the government through the end of this fiscal year includes language making permanent the riders prohibiting ATF from requiring gun dealers to keep an inventory, restricting ATF’s ability to change the definition of curio and relic firearms, preventing ATF from denying or revoking a federal firearms license for lack of business activity, and an additional rider that requires ATF to include a disclaimer on the conclusions that may be drawn from trace data in any report. For those riders that have been made permanent, it will not be sufficient to simply omit them from future appropriations bills. Instead, affirmative language will be needed in the FY 2014 bill to override the future effect of many of the riders included in prior budgets.

Conclusion

On many occasions the leadership of the NRA has claimed to support vigorous enforcement of the gun laws on the books. By way of illustration, during his recent testimony before the Senate Judiciary Committee, Wayne LaPierre, CEO and executive vice president of the NRA, said, “We support enforcing the federal gun laws on the books 100 percent of the time against drug dealers with the guns, gangs with guns, felons with guns. That—that works.” Despite this rhetoric, no organization has done more to inhibit the law-enforcement functions of the Bureau of Alcohol, Tobacco, Firearms and Explosives and other federal agencies than the NRA. No other area of federal law enforcement suffers from so many legislative barriers to action. It’s time to start with a clean slate. It’s time for President Obama to lead by delivering to Congress a budget that removes these unnecessary and dangerous riders and cancels the future effect of riders included in prior budgets.

Winnie Stachelberg is the Executive Vice President for External Affairs at the Center for American Progress. Arkadi Gerney is a Senior Fellow at the Center. Chelsea Parsons is the Associate Director of Crime and Firearms Policy at the Center.

• Guns Kill More Americans than War
• Background Check System Has Blocked Dangerous People from Getting Guns
• Gaps in the Gun Background Check System Put Us All at Risk
• Universal Background Checks Are Easy and Hassle-Free

Arkadi Gerney is a Senior Fellow at the Center for American Progress. Kendall Bills is a Special Assistant for the External Affairs team at the Center.

Endnotes

[1] “PBS NewsHour: Shields and Gerson on Cabinet Noms, Gun Laws, Boehner’s Leadership,” December 21, 2012, available at http://www.pbs.org/newshour/bb/politics/july-dec12/shieldsgerson_12-21.html.

[2] Compiled using: 1968–1980 Centers for Disease Control and Prevention estimates from Figure 1, “Observed and predicted firearm- and motor-vehicle—related injury deaths, by year — United States, 1968–2005,” available at http://www.cdc.gov/mmwr/preview/mmwrhtml/00023655.htm#00000191.gif (last accessed February 2013); Centers for Disease Control and Prevention, “WISQARS Injury Mortality Reports, 1981-1998,” available at http://webappa.cdc.gov/sasweb/ncipc/mortrate9.html (last accessed February 2013); Centers for Disease Control and Prevention, “WISQARS Fatal Injury Reports, National and Regional, 1999 – 2010,” available at http://webappa.cdc.gov/sasweb/ncipc/mortrate10_us.html (last accessed February 2013); Donna L. Hoyert and Xu Jiaquan, “Deaths: Preliminary Data for 2011,” National Vital Statistics Reports 61 (6) (2012): 40–42, available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_06.pdf.

[3] Compiled using: Anne Leland and Mari-Jana “M-J” Oboroceanu, “American War and Military Operations Casualties: Lists and Statistics” (Washington: Congressional Research Service, 2010), available at http://www.fas.org/sgp/crs/natsec/RL32492.pdf; “iCasualties: Operation Iraqi Freedom and Operation Enduring Freedom Casualties,” available at http://www.icasualties.org (last accessed February 2013).

[4] Michael Bowling and others, Background Checks for Firearms Transfers, 2009–Statistical Tables (Bureau of Justice Statistics, U.S. Department of Justice, 2010), available at http://bjs.ojp.usdoj.gov/content/pub/html/bcft/2009/bcft09st.pdf. Supplemental data from: Federal Bureau of Investigation, National Instant Criminal Background Check System (NICS) Operations 2010 (U.S. Department of Justice, 2010), available at http://www.fbi.gov/about-us/cjis/nics/reports/2010-operations-report/2010-operations-report-pdf; Federal Bureau of Investigation, National Instant Criminal Background Check System (NICS) Operations 2011 (U.S. Department of Justice, 2011), available at http://www.fbi.gov/about-us/cjis/nics/reports/2011-operations-report/operations-report-2011.

[5] Federal Bureau of Investigation, National Instant Criminal Background Check System (NICS) Operations 2011.

[6] “Federal Denials: Reasons Why the NICS Section Denies,” available at http://www.fbi.gov/about-us/cjis/nics/reports/20130205_denials.pdf.

[7] Philip J. Cook and Jens Ludwig, “Guns in America: Results of a Comprehensive National Survey on Firearms Ownership and Use” (Washington: Police Foundation, 1996), available at http://www.policefoundation.org/sites/pftest1.drupalgardens.com/files/Cook%20et%20al.%20%281996%29%20-%20Guns%20in%20America.pdf.

[8] Caroline Wolf Harlow, Firearm Use by Offenders (Bureau of Justice Statistics, U.S. Department of Justice, 2001), available at http://bjs.ojp.usdoj.gov/content/pub/ascii/fuo.txt.

[9] Centers for Disease Control and Prevention, “WISQARS Fatal Injury Reports, National and Regional, 1999 – 2010,” available at http://webappa.cdc.gov/sasweb/ncipc/mortrate10_us.html (last accessed February 2013).

[10] Bureau of Alcohol, Tobacco, Firearms and Explosives, “Report of Active Firearms Licenses – License Type by State Statistics,” January 10, 2013, available at http://www.atf.gov/about/foia/download/ffl-type-by-state-2013/0113-ffl-type-by-state.pdf.

[11] U.S. Postal Service, “Postal Facts 2012” (2012), available at http://about.usps.com/future-postal-service/postalfacts-2012.pdf.

[12] McDonald’s, “Financial Highlights,” available at http://www.aboutmcdonalds.com/mcd/investors/financial_highlights.html (last accessed February 2013).

[13] “Loxcel Starbucks Store Map FAQ,” available at http://www.loxcel.com/sbux-faq.html (last accessed February 2013).

SOURCE: AP/ LM Otero

Addey Munye, 67, shows off her "I Voted" sticker after casting her ballot in her first election at a polling station in the West Acres Mall in Fargo, North Dakota, on November 6, 2012.

Endnotes and citations are available in the PDF version of this issue brief.

On February 27 the U.S. Supreme Court will hear arguments in the case Shelby County v. Holder, a challenge to the constitutionality of Section 5 of the Voting Rights Act of 1965. This landmark law outlawed discriminatory voting practices by ending the disfranchisement of minority voters and preventing vote dilution through racial gerrymandering and other techniques that negate the minority vote when the white majority votes as a block.

Section 5 furthers these goals by requiring nine full states and parts of seven other states with a history of racial discrimination in voting to ask either the Department of Justice or a three-judge court in Washington, D.C., for approval before making any changes to voting laws—a process known as preclearance. Congress determined the jurisdictions originally covered under Section 5 by using a plan laid out in the Voting Rights Act and also created a scheme for states to “bail out” of coverage if they have complied with the Voting Rights Act for 10 years. (see Figure 1)

Here are five reasons why Section 5, by protecting the right to vote, actually enhances our democracy and is good for all Americans.

1. Section 5 blocks discriminatory voting practices

Section 5 has blocked discriminatory state laws that would have disenfranchised or diluted the minority vote. Without Section 5:

• Texas would have passed the strictest voter ID law in the nation in 2011, placing unforgiving burdens on minority voters. The law would have allowed concealed handgun licenses to serve as a form of valid identification to vote, but would have rejected the use of a college ID or a state employee ID. Luckily, Section 5 blocked the law and saved African American and Latino voters from being disenfranchised in the 2012 election.
• Mississippi would have required people to register to vote twice: once for federal elections and once for state and local elections. Knowing that it is more difficult for minorities to overcome administrative barriers, this tactic would have resulted in diluting the minority vote in state and local elections. The Department of Justice, using Section 5, blocked the law in 1997.
• Georgia would have continued to use a voter verification program to check the citizenship status of every person seeking to register to vote. Because Georgia failed to receive Section 5 preclearance before implementing the law, evidence was obtained that made it clear that minority voters were being flagged at higher rates, requiring time-consuming additional steps to be taken to prove their citizenship. The Department of Justice denied preclearance for this law in 2009.
• Arizona would have implemented a redistricting plan that would have divided certain election districts so Latinos would no longer be the majority in those districts and would no longer be able to elect candidates of their choice to represent them. The Department of Justice denied preclearance for this law in 2002.

2. Section 5 safeguards local elections

The elimination of Section 5 may have the most devastating consequences in small cities and communities where individuals are less likely to litigate discriminatory changes. Section 5 requires covered jurisdictions to submit requests for even minor changes at the local level and protects against discriminatory practices that would otherwise go unnoticed.

• In 2011 the Pitt County School District in North Carolina decided to reduce the number of school board members from 12 to 7 and shorten their terms in office. Section 5 blocked the change from going into effect after the Department of Justice determined that such a change would decrease representation of minority-preferred candidates on the school board.
• In Clinton, Mississippi, where 34 percent of the population is African American, the city proposed to its six-member council a redistricting plan that did not include a single ward where African American voters had the power to elect candidates of their choice. Racially polarized voting is still a problem in Mississippi, and the redistricting plan ensured there was no longer a majority African American ward. The Department of Justice found reliable evidence that the city had acted with a racially discriminatory purpose and blocked the change from going into effect in 2011.

3. Section 5 prevents discrimination where race is still a barrier

Under the Voting Rights Act, jurisdictions that must seek preclearance have a history of racial discrimination in voting practices, and there is still evidence that racial discrimination is prevalent in Section 5-covered jurisdictions. Most of the states fully covered under Section 5 have the highest African American populations in the country, which should mean that African Americans are strongly represented in the government. But that is unfortunately not the case.

African Americans are still significantly underrepresented in state legislatures, in Congress, and in statewide offices such as governor and U.S. Senate positions. Where African Americans do serve in public office, they are elected in districts that are majority minority voters. Racially polarized voting such as this indicates that race is still a factor in how people vote. (see Figure 2 on following page)

• Mississippi, which is nearly 40 percent African American—the highest population of African Americans in any state in the country—has never elected an African American governor. There is one African American currently in Congress who represents Jackson, Mississippi, which is more than 60 percent African American.
• Louisiana, Mississippi, Virginia, Georgia, and South Carolina lead the country in being the most underrepresented when it comes to African Americans in the state legislature.

In addition, federal observers are frequently sent to Section 5-covered states on Election Day. The U.S. attorney general is permitted to send federal observers to certain Section 5-covered jurisdictions if there is reason to believe that voting rights will not be protected. Between 1966 and 2004, the attorney general sent a total of 1,142 federal observers to different states to monitor voting practices during elections. Most of these observers are sent into counties that are more than 40 percent nonwhite. Louisiana, Mississippi, Alabama, Georgia, and South Carolina accounted for 66 percent of all federal observer coverages between 1982 and 2004. When federal observers are sent to a jurisdiction, it is referred to as an “observer coverage.” (see Figure 3) In the 2012 presidential election, the Department of Justice sent observers into counties in all of the fully covered Section 5 states except Virginia.

4. Section 5 is a necessary alternative to costly, time-intensive litigation

Congress passed the Voting Rights Act because case-by-case litigation was not working to protect the right to vote in states where racial and ethnic discrimination mostly occurred. It was slow, difficult, and costly to challenge every type of voter suppression tactic used in counties and states around the country. And even when litigation was successful in stopping the unconstitutional practices, state officials would ignore the court orders or find some new discriminatory scheme to ensure minorities could not exercise their right to vote.

This would not be any different today. Consider the number of states that passed voter suppression laws since 2010 in Section 5-covered jurisdictions. Without Section 5, minority voters would have had to build a case, front the costs, and challenge the following laws:

• Proof-of-citizenship laws: Alabama, Arizona, and Georgia
• Voter ID laws: Alabama, Mississippi, South Carolina, and Texas—in fact, because of Section 5, South Carolina watered down its original version of the law before seeking approval from the U.S. District Court for the District of Columbia
• Limits to early voting: Georgia
• Instead, Section 5 required the Justice Department or the D.C. Circuit Court to approve the laws before they disenfranchised minority voters.

5. Section 5 has moved our country forward

Thanks to the Voting Rights Act and Section 5, the United States has made immense progress in protecting and expanding the right to vote. In Section 5-covered jurisdictions, change is happening, although slowly, but it may not have happened at all if it were not for the Voting Rights Act and Section 5. The changes we see include:

• The election of the first African American president
• A higher percentage of African American elected officials—the number of which has increased from just 300 nationwide in 1964 to more than 9,100 today
• The highest-ever percentage of African Americans in Mississippi’s state legislature—27 percent—since the first African American to Mississippi’s state legislature was elected in 1967, following the passage of the Voting Rights Act
• A more diverse electorate

Racial discrimination continues to be a problem in our country, particularly in Section 5-covered states. Section 5 serves as a shield to protect minority voters in jurisdictions where progress has come slowly and continues to be a necessary remedy to disenfranchisement. Without it, minority voters would be in jeopardy—and so too would our democracy.

Sandhya Bathija is a Campaign Manager with Legal Progress at the Center for American Progress. Jacqueline Odum, an intern with Legal Progress, also contributed to this report.

SOURCE: AP/Elise Amendola

Transgender attorney Sara Schnorr, a partner at Edwards, Angell, Palmer & Dodge LLP, speaks at their offices in Boston, February 3, 2011.

Transgender people have consistently been subject to health care coverage policies that arbitrarily cut off access to the care they need. State policymakers in Oregon, however, have recently stepped up to end this kind of discrimination.

It is no secret that pervasive bias and discrimination have pushed transgender Americans to the margins of society. Health insurance coverage has been no exception. While many people are able to rely on health insurance coverage to offset some of the costs of both routine and emergency health care, insurers have frequently relied on outdated assumptions about transgender people in order to justify categorical exclusions—limitations and exceptions to services offered under a health insurance plan— denying them coverage for medically necessary care, even when those services are provided to other people enrolled in the plan.

But recent motion toward coverage parity for transgender people at the state level shows that these barriers are not immovable. In fact, a close examination of the recent announcement by the Oregon Insurance Division that insurance companies doing business in Oregon must expand access to care for transgender people reveals that every state has the legal infrastructure to end antitransgender discrimination in health insurance—and that they can do it without passing a single new law.

There are three kinds of statutes already on the books in some combination in every state that give policymakers the authority to end antitransgender discrimination in insurance: public-accommodations laws, prohibitions on unfair trade practices in insurance, and grants of discretionary authority to insurance regulators. Let’s examine in further detail how state policymakers can use these statutes to end this discrimination.

Public-accommodations laws

The announcement from the Oregon Insurance Division primarily rested on the gender-identity antidiscrimination protections applicable to public accommodations—places or entities offering goods, services, or facilities to the public—under the Oregon Equality Act. The insurance division interprets insurance to be a “public accommodation” despite previous case law to the contrary because “any argument that insurance is not a public accommodation in view of recent developments in the industry … would probably fail.” Particularly because starting in 2014 individual and group insurers will no longer be able to reject applicants for coverage based on health status or other factors—meaning that insurance plans will be broadly open to the public—it has become increasingly clear that public-accommodations laws will cover insurance companies.

In Oregon, where the state public-accommodations antidiscrimination law includes gender identity-based protections, the insurance division articulates the clear application of the statute to health insurance:

Any health care services that are ordinarily or exclusively available to individuals of one sex may not be denied based on the perceived gender identity of a person when the denial or limitation is due only to the fact that the insured is enrolled as belonging to the other sex or has undergone, or is in the process of undergoing, gender transition.

This interpretation is portable to the majority of the 16 states and the District of Columbia that have gender identity-inclusive public-accommodations nondiscrimination laws.

But even in states that do not have specific gender-identity protections in their public-accommodations laws, this kind of statute can still support gender-identity nondiscrimination in insurance. Many states—from Alaska to Wyoming—include “sex” as a protected class in their public-accommodations laws. Recent interpretations by federal courts and executive agencies demonstrate an increasing understanding that sex-based protections cover transgender people through an interpretation of the term “sex” that includes gender identity and nonconformity with sex stereotypes.

It is clear that through public-accommodations statutes, policymakers in most states have the authority to prohibit discriminatory exclusions that target transgender people on the basis of their gender identity and sex. But two other types of laws lend further support to ending unfair and outdated limitations on coverage.

Prohibition on unfair trade practices in insurance

Importantly, the Oregon Insurance Division’s announcement was not based on the state’s inclusive public-accommodations law alone. In fact, it writes that, “Even if insurance as a public accommodation is disregarded, the division concludes insurance must abide by the nondiscrimination policy [of the Oregon Equality Act] for a second reason.” This second rationale can be found in insurance-specific statutes that do not mention gender identity or sex and further proves that all states can follow suit and protect transgender consumers from discrimination.

One of the statutes the insurance division pointed to is a provision of the Unfair Trade Practices Act—a piece of model legislation advanced by the National Association of Insurance Commissioners, which is the standard-setting and regulatory-support organization created and governed by the chief insurance regulators from all 50 states. The Unfair Trade Practices Act contains a broad provision that prohibits unfair discrimination between individuals of the same class and risk for premiums, fees, rates, benefits payable, and terms of a health insurance policy. This provision has been adopted in all but a handful of states.

As the Oregon regulators note, this statute is a broad prohibition on discrimination by insurers—including in benefits—that requires distinctions made by insurers to be “based on sound actuarial principles or related to actual or reasonably anticipated experience,” rather than based on arbitrary distinctions on the basis of race, sex, gender identity, or other factors. Under this simple statute, nearly every state in the United States has the authority to eliminate gender identity-based discrimination in insurance through a straightforward reading of its own laws.

Grants of discretionary authority to insurance regulators

The final takeaway from Oregon’s process for prohibiting antitransgender discrimination in insurance is that state insurance regulators are often given significant discretion to prohibit unfair insurance practices.

In Oregon, the director of the agency overseeing insurance regulation is permitted to reject plans that contain “provisions which are unjust, unfair or inequitable.” This kind of authority is also vested in insurance regulators across the country, in states including Alabama, Wisconsin, and South Carolina—just to name a few. State insurance regulators should use this discretionary authority to protect all consumers, regardless of their gender identities.

Conclusion

Insurance commissioners across the country have the statutory tools to prohibit arbitrary discrimination against transgender people in health insurance. The nondiscrimination victory in Oregon is worth celebrating not only because many transgender people across the state will have better access to the health care they need, but also because it proves that these kinds of protections do not have to be held captive in other states by political barriers, outdated opinions on medical science, or discriminatory stereotypes.

Every state can end discrimination against transgender people in health insurance. The time to act is now.

Andrew Cray is a Research Associate for LGBT Progress at the Center for American Progress.

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SOURCE: AP/Ed Andrieski

David Keene, president of the National Rifle Association, speaks during an exclusive interview with Associated Press reporters in Denver on Thursday, February 7, 2013.

The National Rifle Association has funneled millions of dollars to a front group that spends its money electing judges and state attorneys general who are tough on crime—unless those crimes involve violations of gun-violence prevention laws. The Law Enforcement Alliance of America was founded with funding from the NRA in 1991, while Congress was debating the Brady Handgun Violence Prevention Act. Police associations such as the International Association of Chiefs of Police had come out strongly in favor of the Brady Act, and relations with the NRA were strained after the NRA opposed a 1986 bill to ban “cop killer” bullets that can pierce body armor. So the NRA founded the Law Enforcement Alliance of America and claimed that it represented the “average cop”—who supposedly opposed gun-violence prevention.

Because the Law Enforcement Alliance of America refuses to disclose the sources of its funding, it is difficult to discern how much money the NRA has given the organization. The NRA’s tax documents, however, reveal that it gave at least $2 million to the alliance between 2004 and 2010. Previous reports indicate that the NRA donated $500,000 annually to the organization from 1995 to 2004, which would total more than $6 million.

The Law Enforcement Alliance of America now claims tens of thousands of members, and its website states that it believes in “the right to self-defense” and that “criminals, especially violent ones, deserve to be punished—swiftly and severely!” The alliance has opposed common-sense gun-violence prevention measures such as background checks and keeping guns out of the hands of people on the federal government’s “Terrorist Watchlist.”

Soon after it was founded in 1991, the Law Enforcement Alliance of America supported several lawsuits to keep cities and counties from banning assault weapons. In a 2000 California Supreme Court case, for example, the group opposed the sentencing of a 16-year-old California teen to a “juvenile camp program” after police searched his room while he was on probation and found a semiautomatic rifle with a “banana clip,” which can hold dozens of bullets. The supported cases, many of them in California, resulted in few legal victories for the Law Enforcement Alliance of America, in part because the U.S. Supreme Court had yet to recognize the Second Amendment as an individual right—it didn’t do so until 2008. After these early legal setbacks, the organization turned its focus to electing judges.

The Law Enforcement Alliance of America has spent big money on recent state supreme court races, shelling out millions of dollars for ads that helped to elect three judges to the Mississippi Supreme Court. The group spent nearly half a million dollars in 2012 alone to elect Justice Josiah Coleman to the Mississippi high court. The organization has possibly spent even more money to elect pro-gun state attorneys general.

By funding the Law Enforcement Alliance of America, the NRA has helped purchase ads supporting pro-gun candidates for state supreme courts and state attorneys general. Like other interest groups that have funded judicial candidates whose views conform to their agendas, the values of the Law Enforcement Alliance of America and the NRA have been reflected in many of the rulings from these judges and prosecutors. The officials funded by the alliance have granted broad rights to gun owners and curtailed the rights of criminal defendants.

Attorneys general funded by Law Enforcement Alliance of America fight for more guns

The state of New York responded to the tragic elementary school shooting in Newtown, Connecticut, with a new law to prevent gun violence, prompting Republican Texas Attorney General Greg Abbott to run ads in New York-area media asking, “Is Gov. Cuomo looking to take your guns?” The ads also invited “Law abiding New York gun owners looking for lower taxes and greater opportunity” to move to Texas.

Abbott was first elected in 2002, after the Law Enforcement Alliance of America ran ads attacking his opponent as a personal injury lawyer who “made millions suing doctors, hospitals, and small businesses,” while promoting Abbott as a candidate who “supports the swift and aggressive prosecution of sexual predators and child pornographers.”

Since taking office Abbott has expanded Texans’ right to pack heat. In November 2012 he issued an opinion stating that employers could not enact policies that prohibited employees from keeping concealed weapons in their vehicles. Even if employers were required to promulgate security plans that complied with federal antiterrorism laws, Abbott concluded that these policies could not stop employees from keeping loaded guns in their cars.

Abbott has also acted to limit the power of municipalities to protect their citizens from guns. Travis County, Texas was recently considering a proposal to keep gun shows out of county-owned facilities such as the convention center in Austin. A concerned citizen had warned the county commissioners in December 2012 that more guns could flood the area due to the “gun show loophole,” which allows purchasers of guns at gun shows to avoid federally mandated background checks. Abbott warned the county to “be ready for a double-barreled lawsuit” if they declined to host the gun shows, so the county backed off; the Austin convention center hosted the first of a series of gun shows on January 26, 2013. Abbott also spearheaded an amicus brief on behalf of dozens of state attorneys general in McDonald v. Chicago, a case in which the U.S. Supreme Court struck down Chicago’s law banning handguns.

Former Virginia Attorney General Jerry Kilgore, also a Republican, was elected the same year as Abbott with the aid of the Law Enforcement Alliance of America. His campaigns have also received $11,000 directly from the NRA. Upon taking office, Kilgore moved to limit the reach of the “Uniform Machine Gun Act,” which prohibits “aggressive” use of a machine gun. The law says that “empty or loaded shells … in the immediate vicinity” of a machine gun creates a presumption of “aggressive” use. Nevertheless, Kilgore concluded that “there are no provisions that criminalize the discharge or firing of a machine gun in the Commonwealth for nonaggressive or nonoffensive purposes.” Kilgore ruled that the person firing the machine gun would merely have to rebut the presumption that the firing was aggressive.

Kilgore also issued a ruling that Virginia’s Department of Conservation and Recreation had no power to ban concealed handguns in state parks. While noting that the department had the authority to issue safety regulations for parks, Kilgore opined that “a person’s privilege to carry a concealed handgun is considered universal.”

Republican Attorney General Bill Schuette of Michigan was elected in 2010 after the Law Enforcement Alliance of America ran ads attacking his opponent. In 2011 he granted gun owners in his state the right to use silencers if licensed by the federal government. The press release from Schuette’s office quoted an NRA spokesperson describing silencers as “useful safety devices.”

In addition to funding the Law Enforcement Alliance of America, the NRA has donated millions of dollars directly to candidates in state races, including dozens of attorneys general. In 2009 23 attorneys general wrote to President Barack Obama to oppose renewal of the federal ban on assault weapons. Of the 21 elected attorneys general who signed the letter, 14 had received money from the NRA.

At the same time they fought restrictions on guns, these NRA-funded attorneys general took a harsh stance toward criminal defendants. In a particularly egregious example, Attorney General Abbott stopped an investigation by the Texas Forensic Science Commission into the conviction of Cameron Todd Willingham, who many believe was wrongfully executed in 2004 for killing his family. Willingham was convicted of starting a fire that killed his wife and three young daughters on December 23, 1991, but experts have harshly criticized the investigation. One nationally renowned investigator reviewed the evidence and concluded that the fire was an accident, which “explained why there had never been a motive for the crime.” The investigator concluded “that there was no evidence of arson, and that a man who had already lost his three children … was about to be executed based on ‘junk science.’” Despite these concerns, Abbott halted the commission’s investigation into the evidence used to convict Willingham, ruling that legislators intended the commission to limit its investigations to evidence introduced after the commission was created in 2005.

Law Enforcement Alliance of America helps elect judges who favor guns and prosecutors

Ten years ago gun dealers were facing lawsuits in West Virginia and Pennsylvania involving the sale of guns to “straw purchasers,”—gun traffickers who buy guns on behalf of convicted felons who cannot buy guns themselves. And in Washington state, families of the victims of the “D.C. Sniper” sued the Tacoma, Washington, gun dealer who supplied the weapon used in the shooting spree. In Washington and Pennsylvania, pro-gun groups have spent money to elect their preferred judges.

Many of these lawsuits also included the gun manufacturers as defendants, alleging that they had a responsibility to ensure dealers were selling their products responsibly. The Violence Policy Center recently issued a report outlining how the NRA has “received millions of dollars from the gun industry,” including from manufacturers and dealers. As stated above, the NRA gave money to the Law Enforcement Alliance of America, and since the alliance refuses to disclose its donors, it could also have received money directly from the gun manufacturers and dealers. The Law Enforcement Alliance of America, in turn, spent money to elect pro-gun judges in states such as Mississippi and Pennsylvania, where gun manufacturers and dealers were facing lawsuits.

The three lawsuits mentioned above were settled, but one gun dealer in Mississippi recently had its day in court. A Wal-Mart store was sued when an employee knowingly sold ammunition to a straw purchaser who bought the bullets for his underage friend. The bullets were then used in a murder, and the victim’s family sued the store. The Mississippi Supreme Court ruled in September 2012 that the murder was not a foreseeable cause of the illegal sale. Given that the Law Enforcement Alliance of America has spent more money in Mississippi Supreme Court races than any other group in recent years, it is not surprising that gun-violence prevention advocates have had more success with similar lawsuits in other states.

The ruling was joined by Mississippi Supreme Court Justice Randy “Bubba” Pierce, a “tough on crime” judge elected to the court in 2008 after the Law Enforcement Alliance of America spent $660,000 on his behalf. Justice Pierce joined the majority in two 2012 cases that limited a defendant’s right to confront expert witnesses on which the state’s evidence relies. Pierce also voted with the majority in a 2011 opinion (written by another alliance-funded jurist, Justice Jess Dickinson) that rejected an equal protection challenge to a prosecutor’s decisions in selecting a jury. The dissent argued that all of the prosecutor’s justifications for striking potential African American jurors were just a pretext for eliminating them.

Justice Pierce was elected after the Law Enforcement Alliance for America ran ads attacking his 2008 opponent, incumbent Justice Oliver Diaz. The alliance spent more on television ads in this race “than all the other candidates and independent groups put together.” The alliance’s ads said Justice Diaz was “voting for” both a rapist and a “baby killer,” referring to Justice Diaz’s dissents in two cases—one in which the majority refused to allow DNA testing and one in which he argued that the court should stay an execution pending a ruling from the U.S. Supreme Court. Some television stations pulled the ads because a state committee found the ads were false and in violation of state ethics rules. In an interview, Justice Diaz said the alliance’s influence in Mississippi is “massive” thanks to the amount of air time it has purchased.

In 2001 the Law Enforcement Alliance of America ran similar attack ads that helped Republicans take control of the Pennsylvania Supreme Court. One of the ads the alliance ran on behalf of Justice Michael Eakin suggested that his opponent was soft on crime and had voted to overturn a murder conviction on a technicality. Justice Eakin, on the other hand, was described by the organization as “a patriot, a prosecutor and a tough-on-crime judge.” After the ad aired for 10 days, a judge ordered the Law Enforcement Alliance of America to stop running it because the group had violated Pennsylvania campaign-finance law.

The controversial attack ads in Pennsylvania came just months after a lawsuit was filed on behalf of Nafis Jefferson, a 7-year-old child killed after another child found a gun and fired it at his head. The victim’s family sued the Philadelphia gun store which had sold “at least ten guns” to an illegal gun trafficker who resold them to “convicted criminals, drug users and dealers”—who could not purchase guns legally or wanted to “avoid a paper trail.” The suit was settled a few years later, after the alliance helped to elect Justice Eakin—therefore securing a Republican majority—to the Pennsylvania Supreme Court.

Once on the bench, Justice Eakin became a reliable vote for limiting the constitutional rights of the accused. He authored a 2003 opinion in which the court overturned decades of precedent that assured defendants a speedy arraignment. Before Justice Eakin’s opinion, the law forbade the introduction of any statements made six hours after arrest but before the accused was arraigned. The dissent argued that without “reasonable and clear time restraints,” the police are more likely to use “the coercive effect of prolonged police interrogation, which in turn, will yield a greater pool of unreliable confessions.”

The Law Enforcement Alliance of America also used attack ads to help Republican judges obtain a majority on the Michigan Supreme Court in 2010. One of its ads accused Judge Denise Langford-Morris, an African American Democrat, of being “soft on crime for rappers, lawyers, and child pornographers.” After Langford-Morris lost the race, the Republican-controlled court acted to limit the rights of people accused of crimes. In 2012, for example, the court ruled that evidence of a criminal defendant’s prior acts of “sexual misconduct against a minor” can be used as evidence against the defendant under a state law permitting such evidence. The dissenting judges argued the statute violated the state constitution’s separation of powers, which grants judges the authority to determine the rules of evidence. The dissent quoted a federal court that decreed that, “A defendant must be tried for what he did, not for who he is.”

The Washington Supreme Court has not yet seen any spending from the Law Enforcement Alliance of America, but another pro-gun group, the Washington Gun Owners Action League, was the largest single donor to candidates in the 2010 race. In March 2012 the court declined to review a ruling that struck down Seattle’s ban on guns in public parks. In a one-week period in January 2013, two groups of middle schoolers were robbed at gunpoint in a Seattle park.

Law Enforcement Alliance of America pioneers secretive spending in judicial races

The Law Enforcement Alliance of America was one of the first “independent” groups to spend big money on state supreme court races. When the organization started running ads in judicial races in 2000 and 2002, some state regulators took action. The Commonwealth of Pennsylvania sued the organization for soliciting contributions in Pennsylvania without registering with the commonwealth, which is required by state law. The group conceded that it violated Pennsylvania law in its 2002 settlement with the commonwealth. Some candidates attacked by the alliance allege that some of its ads were actually paid for by corporate groups. Without disclosure from the Law Enforcement Alliance of America, however, voters cannot be sure who is funding these attack ads.

Kirk Watson, the Texas attorney general candidate that Abbott defeated in 2002, sued the Law Enforcement Alliance of America, alleging that it used corporate funds for its attack ads in violation of state election laws that forbid corporate electioneering. The alliance was embroiled in the controversy surrounding former Rep. Tom Delay (TX), the former Republican majority leader who is currently serving time for money laundering related to a campaign finance scandal. A grand jury investigated possible “coordination” of campaign ads between Republican candidates and the Law Enforcement Alliance of America, the Texas Association of Business, and Texans for Republican Majority. State and federal law prohibits “independent” organizations from coordinating with candidates because coordination would effectively allow candidates to circumvent any limits on campaign fundraising.

Seven years after Watson’s suit was filed, the Law Enforcement Alliance of America is still fighting to keep secret the source of its funding for the ads. The Texas Court of Appeals ruled that the group must disclose certain information about who paid for the ads at issue in the lawsuit. The decision is currently pending before the Texas Supreme Court, which is composed solely of conservative Republicans. The high court will hopefully be more concerned with protecting the judiciary’s power to order the disclosure of relevant evidence than with the political clout of the Law Enforcement Alliance of America.

A Texas newspaper noted that prosecutors “hypothesized” that the Law Enforcement Alliance of America received $4.5 million from the U.S. Chamber of Commerce to pay for its ads in the 2002 Texas Attorney General election. Some press reports have also alleged that the Chamber funds some of the alliance’s ads in other states. An article in The Wall Street Journal noted that the Chamber of Commerce uncharacteristically failed to spend money in the 2002 Mississippi Supreme Court race, and it discussed concerns that the Law Enforcement Alliance of America’s ads in Mississippi were “being underwritten by the U.S. Chamber of Commerce.” The alliance has been criticized for refusing to provide certain IRS forms in the manner required by federal law.

So in addition to pushing for more guns on the street, the Law Enforcement Alliance of America may also be doing the bidding of corporate interest groups—a far cry from the organization’s professed mission of representing the interests of the “average cop.” The Law Enforcement Alliance of America has also taken controversial positions on issues that have nothing to do with guns or crime, such as its support of a 1996 federal statute to allow states to ban undocumented children from public schools. Without disclosure of the alliance’s donors, voters who see the organization’s attack ads will have no idea who paid for the ads, and corporations and pro-gun groups can anonymously influence courts and prosecutors across the country.

Since the Law Enforcement Alliance of America was launched with NRA funding in 1991, restrictions on political spending by corporations and independent spending groups have been struck down by federal courts in cases such as Citizens United. The NRA has been a vocal opponent of proposed legislation to shed some light on the opaque funding of independent spenders. Without more effective disclosure rules, elections for judicial and prosecutorial offices can expect more attack ads from anonymous donors intent on shaping our state justice systems.

Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress.

Endnotes

[1] Eliza Newlin, “NRA aids new gun group,” National Journal, May 18, 1991, pg. 1185.

[2] Michael Orey, “Business Targets Judicial Race in ‘Tort Mecca,’” The Wall Street Journal, October 30, 2002, p. B1.

SOURCE: AP/Seth Perlman

Assault weapons and handguns are seen for sale at Capitol City Arms Supply in Springfield, Illinois, Wednesday, January 16, 2013.

Endnotes and citations are available in the PDF version of this issue brief.

Tragic mass shootings in Newtown, Connecticut, and elsewhere have prompted renewed national interest in the federal regulation of firearms. In January 2013 President Barack Obama publicly announced support for three new legislative measures to regulate firearm ownership and sales:

• Banning certain semiautomatic weapons with military-style features—commonly referred to as “assault weapons”—in addition to high-capacity ammunition magazines holding more than 10 rounds
• Requiring background checks on all firearms sales, not just those purchased from federally licensed firearms dealers
• Enhancing penalties for trafficking in firearms

Proposed legislation with similar elements has been introduced in Congress. These measures as written would not violate the Second Amendment right to bear arms as recently defined in two landmark Supreme Court decisions—District of Columbia v. Heller in 2008, and McDonald v. City of Chicago in 2010. Under Heller and McDonald the Second Amendment protects the right of law-abiding citizens to keep and bear arms for self-defense in the home. The proposed measures would not violate that right, but rather fall squarely within the scope of “presumptively lawful regulatory measures” that Heller identified as constitutionally sound. Furthermore, these proposals would effectively advance the important government objectives of preventing gun violence and protecting law enforcement officers and would not unduly burden law-abiding Americans or impose upon the core right identified in Heller.

Below we discuss these three proposals in greater detail.

Summary of current proposals

Banning assault weapons and high-capacity magazines. President Obama’s proposal would reinstate a ban on assault weapons, which were the subject of a federal law that was in place from 1994 to 2004, and would limit the sale of ammunition magazines holding more than 10 rounds. A bill tracking the president’s general approach has already been introduced in the Senate by Sen. Dianne Feinstein (D-CA). Both Sen. Feinstein’s bill and the expired law that President Obama proposes to reinstate define an “assault weapon” as a semiautomatic weapon with specified military-like features, such as a folding stock or a grenade launcher, as well as firearms on a list of specifically named weapons.

Requiring universal background checks. President Obama proposes to strengthen the currently existing National Instant Criminal Background Check System, or NICS, by requiring every gun buyer to submit to a background check—not just those who purchase firearms from a federally licensed firearms dealer. Approximately 40 percent of all gun sales are made by private sellers often at gun shows or through online transactions. Under current federal law these sales are exempt from the background check requirement. A bill aimed at achieving the president’s goal of universal background checks was introduced in the last Congress by Sen. Charles Schumer (D-NY).

Enhancing penalties for gun trafficking. President Obama has also announced support for increased efforts to stem the flow of firearms to criminals, taking aim especially at so-called straw purchasing. Under current law, convicted felons cannot purchase firearms from a federally licensed firearms dealer. Straw purchasing is a technique used to evade this prohibition by using a third party without a criminal record—the “straw buyer”—to purchase weapons from a licensed firearms dealer under false pretenses. The president’s proposal is similar to legislation introduced by Sens. Patrick Leahy (D-VT) and Richard Durbin (D-IL), as well as a separate bill introduced by Sens. Kirsten Gillibrand (D-NY) and Mark Kirk (R-IL). Both proposals would impose criminal penalties on the straw buyer. The Gillibrand and Kirk proposal would also impose penalties on the ultimate firearm recipient.

The Second Amendment under Heller 

The Second Amendment of the U.S. Constitution provides that “[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.” In District of Columbia v. Heller, the Supreme Court issued its most significant opinion regarding the Second Amendment since 1939, striking down a total ban on handgun possession in the home as inconsistent with the right to keep and bear arms conferred by the Second Amendment. The Supreme Court held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” even apart from collective service in a militia. In striking down the District of Columbia’s ban on handgun possession, the Court took note that the handgun is “the quintessential self-defense weapon” and that it is “the most popular weapon chosen by Americans for self-defense in the home.”

Two years later in McDonald v. City of Chicago, the Supreme Court affirmed that the Second Amendment is fully applicable to the states through the 14th Amendment because it protects the “fundamental” right to self-defense. The Court emphasized that at the core of the Second Amendment is the “basic right” of self-defense, and that this right is “deeply rooted in this Nation’s history and tradition.”

Even as the Court affirmed and reaffirmed that the Second Amendment protects an individual right to possess weapons, it also stressed that the right to bear arms is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” In particular, the Court identified a nonexhaustive list of firearms regulations that are “presumptively lawful,” including:

• Longstanding “prohibitions on the possession of firearms by felons and the mentally ill”
• Laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings”
• Laws “imposing conditions and qualifications on the commercial sale of arms”
• Laws prohibiting “dangerous and unusual weapons”

In Heller and again in McDonald, the Court emphasized that legislators retain “a variety of tools” for combatting the problem of gun violence—repeating assurance that Heller “did not cast doubt” on measures such as these and that “experimentation with reasonable firearms regulations will continue under the Second Amendment.”

Thus Heller and McDonald make clear that the individual right to keep and bear arms for self-defense may be subject to reasonable regulation. This is entirely consistent with other cherished liberties in the Bill of Rights, such as the freedom of speech protected by the First Amendment. (See, for example, Ward v. Rock Against Racism, which ruled that restrictions on the time, place, and manner of speech, such as noise limitations, are permissible, and United States v. O’Brien, which ruled that content-neutral regulations of expressive conduct, such as burning draft cards, are permissible). And as the Supreme Court has emphasized in the First Amendment context, state and federal legislators “must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.”

There is no question that gun violence in the United States is a serious national problem. As the Court noted in Heller, “We are aware of the problem of handgun violence in this country.” In addition to devastating mass shootings such as those in Newtown, Connecticut, and Aurora, Colorado, approximately 1 million Americans have been wounded or killed by gunfire in the last decade. In 2010 alone firearms were used in an estimated 11,000 murders, 128,000 robberies, and 138,000 aggravated assaults. Social scientists have calculated that the lifetime medical costs for gunshot injuries in the United States in one year alone is $2.3 billion, of which $1.1 billion was paid by taxpayers. When lost earnings, pain, disability, and the costs of lost life are included, the aggregate economic cost of gun violence to American society approaches $100 billion annually.

The proposed measures do not infringe the Second Amendment

Banning assault weapons and high-capacity magazines

The proposed ban on “assault weapons” with military-style features and high-capacity magazines is consistent with the Second Amendment. Heller made clear that the Second Amendment does not protect the right to own “any weapon whatsoever” and “dangerous and unusual weapons” may be prohibited. Courts that have examined bans on assault weapons and high-capacity magazines post-Heller have agreed that such bans do not infringe the Second Amendment because “[t]he prohibition of semi-automatic rifles and large capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves.” (See also People v. James—“Heller does not extend Second Amendment protection to assault weapons.”)

A ban on assault weapons is consistent with the Second Amendment right recognized in Heller because these weapons are both “dangerous and unusual” and are not well-suited to self-defense in the home, which is the “central component” of the Second Amendment right. Assault weapons do not constitute a significant percentage of firearms in circulation in the United States—an estimated 1 percent or less prior to the 1994 federal assault weapons ban. Assault weapons are also dangerous to an extraordinary degree. The prior federal assault weapons ban covered weapons with features such as protruding pistol grips, which help the shooter stabilize the weapon during rapid fire or spray fire from the hip position, and barrel shrouds, which protect the shooter’s hands from the heat generated by many rounds fired in rapid succession.

Other characteristics of assault weapons, such as telescoping stocks, principally facilitate concealment and thus have little value to those who use firearms lawfully—but obvious appeal to criminals. Firearms incorporating these characteristics enable the shooter to inflict a high degree of lethal damage rapidly and often indiscriminately. These features are thus better suited to offensive and mass assaults than responsible self-defense, particularly in urban areas where rapid and indiscriminate firing would pierce walls and injure innocent bystanders.

The Supreme Court has not yet addressed the applicability of the Second Amendment to ammunition magazines. But if ammunition magazines are within the protections of the Second Amendment, then it stands to reason that high-capacity magazines would also fall within the scope of Congress’s authority to regulate “dangerous and unusual” weaponry. High-capacity magazines enable the firing of more than 10 rounds without requiring the shooter to pause and reload. High-capacity magazines are therefore well suited to enabling offensive, indiscriminate, and rapid firing, and ill-suited to self-defense situations where rapid and indiscriminate firing is more likely to injure innocent bystanders.

The tragic mass shootings in Tucson, Arizona; Aurora, Colorado; and Newtown, Connecticut, were all carried out by assailants using high-capacity magazines, and there is evidence in some of these cases that the shootings halted or were stopped only when the shooter was forced to pause to reload or switch weapons. High-capacity magazines also pose a particular threat to law enforcement, as they are used in 31 percent to 41 percent of fatal police shootings. As noted in Heller II, “the evidence demonstrates that large-capacity magazines tend to pose a danger … particularly to police officers.”

Requiring universal background checks 

The proposed expansions to the existing background check system are also consistent with the Second Amendment. Heller made clear that the individual right to bear arms does not extend to felons or the mentally ill. Such “longstanding prohibitions” have been uniformly upheld in post-Heller cases in the federal courts. Both United States v. Barton and United States v. Smoot upheld the federal ban on possession of a firearm by convicted felons. If Congress may prohibit felons, the mentally ill, and other unfit persons from possessing firearms, it follows that Congress may also take reasonable measures to enforce the prohibition such as background checks at the point of sale. Indeed, Heller specifically observed that firearm sales would continue to be subject to reasonable “conditions and qualifications” enacted by legislators. The Court in Heller assumed that such regulations would exist when it ruled that the District of Columbia was required to permit the plaintiff to own a handgun, “assuming that [he] is not disqualified from the exercise of Second Amendment rights.”

Experience with the existing National Instant Criminal Background Check System has demonstrated that background checks can be effective at reducing violent crime without burdening the ability of law-abiding citizens to obtain firearms. The national background check system has proven to be a meaningful check on access to firearms by convicted felons and other “prohibited persons.” Since 1999 the system has blocked prohibited purchasers from buying firearms at federally licensed dealers more than 1.9 million times. The most common reason for denial was a prior felony conviction. In 2009 alone approximately 150,000 applications for a permit to transfer or purchase a firearm were denied as a result of background checks. Here again, the most common reason for denial was a prior felony conviction. Given the efficacy of the system, a court would be unlikely to conclude that expanded background checks during firearm sales would unduly burden the Second Amendment right of law-abiding citizens to obtain firearms.

Enhancing penalties for arms trafficking 

The Second Amendment would also not be infringed by the enhanced penalties for gun trafficking currently under consideration. The proposed measures outlaw “straw purchasing”—the practice of using a third-party intermediary to purchase weapons from a federally licensed firearms dealer for ultimate delivery to a felon or other person prohibited by law from buying the weapons.

Such measures would be constitutional because they do not impede the possession of firearms for self-defense by “law-abiding, responsible citizens,” which the Supreme Court found to be at the core of the Second Amendment. Straw purchasing is not done for a “lawful purpose,” but occurs only to circumvent legal restrictions on the purchasing of weapons by felons or the mentally disturbed. The Supreme Court left no doubt about the constitutionality of current, longstanding prohibitions on the possession of firearms by felons, therefore straw purchasers violate that prohibition by purchasing arms under false pretenses and with the intent to transfer the weapons to another person.

Conclusion

The Supreme Court has ruled that the Second Amendment protects an individual right to keep and bear arms for lawful self-defense, and that this right is violated by a total ban on possession of handguns by law-abiding citizens in their homes. But many forms of firearm regulation remain constitutional, including laws to prevent firearm possession by criminals and limitations on the possession of dangerous and unusual weapons. The measures endorsed by President Obama and proposed by Congress are safely within these confines and reflect the sort of reasonable regulation that the Supreme Court endorsed in Heller and has accepted in a host of other constitutional contexts.

Winnie Stachelberg is the Executive Vice President for External Affairs at the Center for American Progress. Arkadi Gerney is a Senior Fellow at the Center for American Progress. Robyn Thomas is the executive director of the Law Center to Prevent Violence.

SOURCE: AP/Boza Ivanovic

Father Bob Gettinger, second right, leads a prayer for those killed by gun violence and for the safety of the community as people gather in St. Louis, Missouri, on Monday, November 23, 2009, one of among more than 20 other U.S. cities participating in the National Day of Outrage, a nationwide call to end violence in urban communities.

Last month Americans watched as yet another instance of horrific gun violence took place. While the shooting at Sandy Hook Elementary School is perhaps one of the most appalling instances of gun violence we have ever seen, it was far removed from the kind of gun violence that is both more common and more lethal in the United States today. Acts of gun violence take approximately 30,000 American lives every year, and gun violence is one of the leading causes of death among teens. Although the majority of these shootings rarely make national headlines, the tragedy is no less real.

As the following facts show, communities and families of color disproportionately suffer from gun violence. Here are 10 reasons why communities of color have a great stake in the public discourse on violence prevention.

1. People of color account for the majority of gun-violence victims. There are large racial disparities in homicide rates due to gun violence. The gun-homicide rate for black males is 2.4 times as high as that of Latino males, and it is 15.3 times as high as the rate for non-Hispanic white males. Murder and non-negligent manslaughter victims are most frequently black or Latino, with blacks comprising 67 percent of victims and Latinos comprising 28.1 percent. Blacks make up roughly 13 percent of the U.S. population, but in 2010—the last year for which data is available—they suffered 56 percent of all firearm homicides.

2. Gun violence is one of the leading causes of death for teens of color. Guns cause the deaths of thousands of teens each year. In 2008 and 2009 gun homicide was the leading cause of death among black teens, and the rates of gun-related deaths are highest for black male teens. For black families, the chance of a male child dying from a gunshot wound is 62 percent higher than the chance of him dying in a motor-vehicle crash. In 2010 American Indian male teens had the second-highest rate of gun-related deaths, with 19.3 gun-related deaths per 100,000 teens. Latino male teens followed, with 17.8 per 100,000. In contrast,white male teens had the second-lowest rate, with only 9.4 per 100,000.

3. Gun violence is a vicious cycle. Teens exposed to gun violence are more likely to commit violence in the future. In a study conducted by the Department of Justice, teens were interviewed over a number of years about their exposure to violence, as well as their own violent acts. Teens who had been exposed to firearms violence reported committing more serious acts of violence than teens who had not been exposed. Additionally, youth who live in dangerous and disadvantaged neighborhoods and have had more exposure to violence were found to be more likely to carry concealed firearms. This means that communities already facing high levels of gun violence will likely continue to experience violence unless policymakers take action.

4. Gun injuries disproportionately affect communities of color. Of the 34,347 children and teens who suffered gun injuries in the United States in 2008 and 2009, almost half were black, and more than one-fifth were Latino. Black teens alone are 25 times more likely to be injured by a gun than white teens.

5. People of color strongly support gun-violence prevention. As people of color suffer higher rates of gun violence, it is not surprising that they strongly support stricter gun laws. Forty-nine percent of people of color are in favor of stricter gun-violence prevention.

6. The militarization of school safety and orderliness most heavily impacts children of color. In the wake of recent school shootings, members of the National Rifle Association, the nation’s largest gun lobby, have suggested putting armed police officers in every school. But research shows that increased police presence in schools disproportionately affects youth of color, driving the school-to-prison pipeline and leading to youths’ unnecessary involvement in the justice system. Studies have shown that the more interaction a young person has with the criminal justice system, the more likely they are to come into contact with the criminal justice system in the future. This dynamic works to push a disproportionate number of black and Latino students out of school and into the criminal justice system. Black boys in particular are three times more likely to be suspended than white boys, and black girls are four times more likely to be suspended than white girls.

7. Gun violence is concentrated in urban and poor neighborhoods, which tend to be populated predominately by people of color. In 2006 and 2007 the 62 center cities of America’s 50 largest metro areas accounted for only 15 percent of the population but 39 percent of gun-related murders. This ratio is only growing: In 2011 there were record highs of gun violence in cities such as Chicago and Detroit. Plans to combat gun violence must include prevention programs and policies that target urban violence.

8. The cost of gun violence is a significant burden on the health care system. Firearm‐related injuries generally require hospitalization and significant emergency center resources. In 2005 U.S hospitals charged $108.4 million to care for about 10,000 victims of firearm injuries. This number exceeds the total budget for the Office of Juvenile Justice and Delinquency Prevention by $38 million, pointing to not only a lack of resources for prevention but also to the significant cost to the health care system. It strains the health services available in disadvantaged areas and exacerbates the health disparities that already exist within communities of color.

9. Gun violence poses a significant cost to society. Once all the direct and indirect medical, legal, and societal costs are added together, the annual cost of gun violence in America amounts to roughly $100 billion. According to studies done at the University of Chicago, every crime-related gunshot wound imposes costs on society to the order of $1 million. Businesses are more likely to close early in higher-crime neighborhoods, and high crime rates deter further business investment. Because communities of color tend to account for many of these high-crime areas, the community suffers double jeopardy: Not only are these communities losing their youth to gun violence, but their local economies are being devastated.

10. A two-sided approach, including better background checks and prevention programs, is crucial. An estimated 40 percent of U.S. gun sales—more than 6 million gun transfers—originate from private sellers, who are not required to perform background checks. It is this loophole primarily that enables the transfer of guns from dealers to city neighborhoods. Any comprehensive gun legislation needs to address this loophole. Additionally, legislation needs to include prevention programs for at-risk youth such as those proposed by the Youth PROMISE Act, which aims to reduce violence in communities with a high concentration of youth at risk of school disengagement, social disconnection, and delinquent behavior. These prevention programs would largely benefit youth of color.

These facts make it clear that the costs of gun violence are weighing disproportionately on our communities of color—and particularly on the youth within these communities. We must act now through targeted legislation to reduce violence in these communities.

Morriah Kaplan is an intern with Progress 2050 at the Center for American Progress. Sophia Kerby is the Special Assistant for Progress 2050.

SOURCE: iStockphoto

Our justice system should work for everyone, not just for those with enough money to donate.

Endnotes and citations are available in the PDF version of this report.

The steep rise in campaign contributions for judicial elections has been well documented. Candidates in state supreme court races raised around $211 million from 2000 to 2009—two and a half times more than in the previous decade. But the 2012 elections saw spending records shattered as the unlimited campaign cash unleashed by Citizens United and other federal court cases funded billions of dollars in independent expenditures. A record $29.7 million was spent on television ads in state supreme court races this year, and more than half of this money came in the form of independent expenditures, according to Justice at Stake and the Brennan Center for Justice, two groups that track money in judicial elections.

This flood of campaign cash came from corporations, lawyers, and others with a stake in how these courts rule. Even in ostensibly nonpartisan races, political parties spent millions of dollars on candidates for courts currently considering lawsuits over redistricting maps. These perceived conflicts of interest will further erode public confidence in an impartial judiciary, which is already at an alarming low.

The Center for American Progress has compiled its recent reports describing the distorting influence of campaign cash and suggesting policy solutions to mitigate these problems. The first report, “Million Dollar Judges,” highlights several 2012 judicial elections illustrating how campaign finance laws have broken down in the face of unlimited independent spending. The next report, “Big Business Taking Over State Supreme Courts,” takes a broader view and illustrates how campaign cash has affected judges and the law over the past two decades. This compilation includes the text of the latter report and a summary of the data from its appendix.

The compilation concludes with a series of reports on different policies that could help mitigate the influence of corporate campaign cash in judicial elections. These reports are intended for advocates or legislators who want to ensure that our justice system works for everyone, not just for those with enough money to donate. Each report is prefaced by a one-page summary. Endnotes and citations are available in the longer versions that follow the summaries.

Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress.