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 Nation 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.

SOURCE: AP/Harry Cabluck

Don Willett, foreground, speaks after Texas Gov. Rick Perry (R), right, announced that Willett was named to the Texas Supreme Court on Wednesday, August 24, 2005, in Austin, Texas.

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

Independent spending wreaked havoc on judicial elections and tested campaign finance laws in 2012, as interest groups evaded contribution limits and spent millions of dollars to elect their preferred judges. The true ramifications of Citizens United and other federal court cases that weakened campaign finance laws were felt in judicial races around the country. A record $29.7 million was spent on ads in state supreme court elections, and more than half of this money came in the form of independent spending, according to Justice at Stake and the Brennan Center for Justice, two groups that track spending in judicial races.

As in previous 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 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. Unless states implement reforms, millions of dollars will continue to flood judicial races, and the influence that corporations and special interests exercise over judges will continue unabated.

The Center for American Progress collected information on all judges who won elections in 2012 while raising roughly $1 million or more, as well as those who had more than $1 million spent on their behalf by independent groups. The campaigns of the “million dollar judges” of 2012 demonstrate that independent spending plays an increasingly crucial role.

Justice Paul Newby, North Carolina Supreme Court

North Carolina Supreme Court Justice Paul Newby was re-elected with the help of more than $2.5 million in independent spending. The state’s public financing program—long a model for states seeking to keep money out of judicial races—was overwhelmed by money from interest groups such as the state Chamber of Commerce and Americans for Prosperity, a group affiliated with the billionaire industrialist Koch brothers. North Carolina tobacco companies also chipped in hundreds of thousands of dollars after they benefited from a 2009 ruling, authored by Newby, in a dispute with tobacco farmers.

The largest donation, by far, was the more than $1 million from the Republican State Leadership Committee, a group that helped the state’s Republican legislature draft its recent redistricting maps. Civil rights groups filed a lawsuit alleging that the map disenfranchises minority voters, and the case is currently before the state supreme court. This money was instrumental in keeping a 4-3 conservative majority on the bench. North Carolina’s ethics rules say a judge should not hear a case if his or her “impartiality might reasonably be questioned,” but Justice Newby will hear the redistricting case despite the fact that he was re-elected thanks to millions of dollars from Republican groups that have a stake in the outcome.

Justices Stephen Markman, Brian Zahra, and Bridget McCormack, Michigan Supreme Court

The three newly elected justices to the Michigan Supreme Court raised hundreds of thousands of dollars for their own campaigns, but the state political parties spent millions of dollars on behalf of the judges without disclosing the source of that money. Incumbent Justices Stephen Markman and Brian Zahra, both conservatives, each raised around $800,000 for their re-election bids. According to the Michigan Campaign Finance Network, however, the state Republican Party spent $4.5 million on ads for Justices Markman and Zahra, as well as an unsuccessful high court candidate, without disclosing the source of any of that money. Of the spending that was reported, the Michigan Association of Realtors spent $400,000 on ads for the conservative candidates after both joined a 2011 opinion that made it easier for mortgage companies to foreclose on homeowners.

Justice Bridget Mary McCormack won a seat on the Michigan Supreme Court after the Democratic Party spent $5 million in undisclosed spending on ads supporting her and two other candidates. Her campaign collected more than $600,000 with the help of large donations from unions.

Justice Don Willett, Texas Supreme Court

The Texas Supreme Court is composed entirely of conservative Republicans, and Justice Don Willett cruised to re-election, raising $1.7 million for a primary contest. This hefty sum includes almost $100,000 from energy companies, as well as large contributions from the industry’s top law firms. Justice Willett has received more than $250,000 from energy companies over the years, according to the National Institute on Money in State Politics.

Justice Willett has never met an oil company litigant that he did not like. The Texas Supreme Court ruled in 2007 that contract employees such as oil-rig workers cannot sue their employers for on-the-job injuries. For years the energy industry had unsuccessfully lobbied the state legislature for such a change. In a 2008 lawsuit involving hydraulic fracturing, or “fracking,” Justice Willett blatantly invoked policy reasons in ruling for the energy company: “Open-ended liability threatens to inflict grave and unmitigable harm, ensuring that much of our state’s undeveloped energy supplies would stay that way—undeveloped…Amid soaring demand and sagging supply, Texas common law must accommodate cutting-edge technologies able to extract untold reserves from unconventional fields.”

Justice Mary Jane Theis, Illinois Supreme Court

Justice Mary Jane Theis of the Illinois Supreme Court easily won the race for chief justice in the general election. Like Justice Willett, however, she faced a primary challenge. She raised around $1.5 million for the race, and more than $400,000 of her campaign funds came from lawyers. Justice Theis also received $18,500 from public-sector unions, including a chapter of the American Federation of State, County, and Municipal Employees, which fought the closure of certain state facilities in a case before the high court. Justice Theis dissented from a recent Illinois Supreme Court ruling against the union. Her primary campaign also benefited from almost $200,000 in independent spending from Personal PAC, Inc., a group that supports reproductive health care for women.

Justice Josiah Coleman, Mississippi Supreme Court

Justice Josiah Coleman won a seat on the Mississippi Supreme Court with $1 million dollars in independent spending. Nearly half of that money came from a shadowy Virginia-based organization, the Law Enforcement Alliance of America. The group has been active in judicial races around the country, and although it refuses to disclose its donors, it has been associated with the National Rifle Association and the U.S. Chamber of Commerce. The rest of the independent spending came from Improve Mississippi PAC, which received large donations from corporate-funded groups, including national tort reform advocates and political action committees representing the insurance, finance, and energy industries.

Justice Sharon Kennedy, Ohio Supreme Court

Despite a rare “not recommended” rating by the Ohio State Bar Association, Justice Sharon Kennedy defeated an incumbent justice for a seat on the state’s supreme court. Kennedy was aided by campaign donations from energy companies and the insurance industry, as well as independent spending by the Ohio Republican Party. Her campaign reported raising more than $950,000, including hundreds of thousands of dollars from the state Republican Party, corporate interest groups, and law firms that appear before the court.

Justices Fred Lewis, Barbara Pariente, and Peggy Quince, Florida Supreme Court

Facing an unprecedented multimillion dollar opposition campaign, three Florida Supreme Court justices raised half a million dollars each and benefited from $3.3 million in spending by an independent group. The group, called “Defend Justice from Politics,” spent millions to defend the three candidates in the 2012 retention election, and it received most of its money from Florida attorneys. The campaign against keeping the justices on the bench was funded by the state Republican Party and pro-corporate groups like the Koch brothers’ Americans for Prosperity.

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

SOURCE: AP/Jessica Hill

A girl sits on a Newtown bus leaving the new Sandy Hook Elementary School after the first day of classes in Monroe, Connecticut, Thursday, January 3, 2013.

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

After last month’s senseless shooting at Sandy Hook Elementary School in Newtown, Connecticut—in which 20 children and 6 adults were shot and killed—we need to immediately address the gaps in our current law that enable mass shootings, as well as the everyday shootings that on average claim the lives of 33 Americans each day.

In this issue brief we recommend 13 legislative proposals and executive actions to prevent gun violence in our nation. These actions are targeted in the following three key areas:

• Better background checks
• Taking military-grade weapons off the streets and out of criminals’ hands
• Better data, better coordination, and better enforcement

We discuss these actions in further detail below.

Better background checks

Legislative proposals

A background check for every gun sale

Almost all Americans agree that certain dangerous individuals—such as violent criminals, the mentally ill, drug abusers, and perpetrators of domestic violence—should not be permitted to own firearms. Under current federal law, such people are in fact barred from possessing a firearm. The only way to determine whether an individual is prohibited from purchasing a firearm under state or federal law is to conduct an instant background check.

The nation’s licensed federal firearms dealers routinely conduct such checks, but under current federal law, gun transfers by people other than licensed federal firearms dealers are exempted from background checks. These so-called “private sellers”—people who maintain that they are not “engaged in the business” of selling guns —are not required to perform checks.

An estimated 40 percent of the gun transfers that occur each year in the United States—more than 6 million gun transfers—originate from private sellers. Such private sellers often congregate at gun shows or sell guns online. This creates an easy opportunity for dangerous individuals who are ineligible to possess guns under federal law—felons, persons adjudicated mentally ill, and other prohibited people—to bypass a background check and obtain a weapon with no questions asked.

Requiring background checks for all gun sales is a noncontroversial proposal that gun owners themselves overwhelmingly support. Indeed, a July 2012 poll by Republican pollster Frank Luntz shows that 74 percent of members of the gun lobby National Rifle Association and 87 percent of gun owners who are not NRA members supported requiring a criminal background check of every individual seeking to purchase a gun.

The administration should submit legislation to Congress mandating criminal background checks for all gun sales consistent with the Fix Gun Checks Act of 2011 (S. 436), with certain narrow exceptions, including for transfers within families. Such a law would essentially end no background-check gun sales.

Of all the major legislation being widely discussed in the wake of the Newtown tragedy, none could do more to prevent gun violence than passage of the Fix Gun Checks Act. The bill would provide stronger incentives for state and federal agencies to submit all the necessary records about individuals who are barred from owning handguns into the National Instant Criminal Background Check System, and would require a background check on every gun sale. These checks will ensure that guns stay out of the hands of criminals, the mentally ill, and other dangerous people who are prohibited from gun ownership by law.

Input all necessary records into the FBI National Instant Criminal Background Check System

Requiring that all gun sales be predicated on a criminal background check is an effective means of keeping guns out of the hands of dangerous individuals—but only if the background check system itself functions properly. Since the Brady Handgun Violence Prevention Act was passed in 1993 to mandate all licensed gun dealers perform background checks, the FBI has conducted more than 150 million background checks in connection with gun sales, blocking gun transfers in more than 1.7 million instances. But for the system to work better, states must provide the federal government with the names of all the individuals who are prohibited from owning firearms for inclusion in the nationwide database.

Though this seems like a common-sense action, states have been slow to provide these records, particularly regarding individuals barred from owning guns due to mental illness. Ten states have failed to provide any mental health records to the National Instant Criminal Background Check System, and 18 others have submitted fewer than 100 records since the creation of the system in 1999. Without states’ cooperation in submitting these records to the database, individuals who are dangerously mentally ill and pose a substantial threat to the community—such as Jared Lee Loughner, who killed six people and wounded 13 others, including former Rep. Gabrielle Giffords (D-AZ), in a 2011 spree killing in Tucson, Arizona; and Seung-Hui Cho, who killed 32 people and wounded 17 others in a 2007 spree killing at Virginia Tech—will continue to be able to obtain guns. Federal agencies and states should be strongly encouraged to share information about disqualified individuals and penalized for failing to provide these crucial records for inclusion in the database.

The effort to get records into the National Instant Criminal Background Check System can be strengthened in four important ways:

• Toughening penalties on states that do not provide records to the database
• Requiring federal agencies to affirm that they have provided required records to the database
• Clarifying the definition of “mentally ill” to ensure that individuals with a serious mental illness are prohibited from purchasing guns
• Requiring background checks for all gun sales

The Fix Gun Checks Act of 2011 provides for exactly these fixes—and requires a background check on every gun transfer.

Prevent convicted stalkers from acquiring guns

Under federal law, individuals convicted of “misdemeanor crimes of domestic violence” are disqualified from possessing firearms. This is sound public policy, as domestic violence often involves seemingly low-level violence that can escalate quickly into lethal encounters. Because domestic violence occurs among individuals with a familial or intimate relationship who will have repeated contact with each other, removing firearms from these situations is a crucial tool for protecting victims from serious injury or death.

A related area of misdemeanor crime not currently covered by federal firearms law, however, is stalking. Federal law prohibits the sale of guns to someone “subject to a court order restraining him or her from harassing, stalking or threatening an intimate partner.” Stalkers do not always fit into this category. Stalking involves a course of harassing conduct against a person that is designed to put them in fear of their personal safety. Moreover, stalking is often the first step in an escalating pattern of criminal behavior that culminates in serious physical violence. Disarming an individual convicted of misdemeanor stalking may mean the difference between a victim who is put in fear for his or her life and one who loses it. We urge Congress to follow the example set by eight states and prohibit gun possession by individuals convicted of misdemeanor stalking crimes.

Close the “terror gap”

Nothing in the current law prevents known or suspected terrorists from clearing a background check and purchasing guns. And some of them are doing just that: According to the Government Accountability Office, between February 2004 and December 2010, there were 1,119 instances when known or suspected terrorists on the government’s Terrorist Watchlist purchased guns or explosives from federally licensed dealers. What’s more, in the past two decades, there have been numerous terror attacks in the United States involving firearms, including shootings at the following places:

• The main entrance to the CIA headquarters in Langley, Virginia (January 25, 1993)
• The Brooklyn Bridge (March 1, 1994)
• The observation deck of the Empire State Building (February 23, 1997)
• A U.S. military recruiting office in Little Rock, Arkansas (June 1, 2009)
• Fort Hood, the world’s most populous U.S. military installation, in Killeen, Texas (November 5, 2009)

Many more plots involving gun-wielding terrorists, however, have been foiled.

Bipartisan legislation—the Denying Firearms and Explosives to Dangerous Terrorists Act (S. 34/H.R. 1506)—sponsored by Sen. Frank Lautenberg (D-NJ) and House Homeland Security Chair Peter King (R-NY) would give the FBI discretion to block gun and explosives sales to suspected terrorists. The Lautenberg-King legislation includes a process for administrative review and legal recourse for anyone blocked from buying a gun who may have been misidentified as a terror suspect. This legislation was drafted and endorsed by the Bush administration, and Attorney General Eric Holder has indicated his support for the legislation as well. It should be passed.

Executive action

Penalize states that fail to provide records to the National Instant Criminal Background Check System

The Fix Gun Checks Act is a critical legislative fix to our nation’s broken gun background check system. But the administration can act even before Congress does. As discussed above, the majority of states have failed to provide crucial records regarding disqualified purchasers to the federal government for inclusion in the National Instant Criminal Background Check System. Each day that states do not provide these records provides another opportunity for a dangerous individual to obtain a firearm and harm their community. The president should issue an executive order directly to the attorney general to withhold federal Justice Assistance Grant funding from any state that fails to submit a plan—and act on the plan—for facilitating the transfer of these records to the FBI.

Ensure that federal agencies provide required records to the National Instant Criminal Background Check System

The federal government itself has not done an adequate job of submitting eligible records already in its possession to the FBI for inclusion in the National Instant Criminal Background Check System. In 2008, for example, the Department of Defense excluded Jared Lee Loughner from service in the U.S. Army because of his struggle with drug abuse but did not submit a record into the FBI database. A little more than two years later, on November 30, 2010, Loughner purchased a Glock 19 semiautomatic handgun from a Sportsman’s Warehouse outlet in preparation for his spree killing in Tucson the following January.

In fact, as of October 2011, federal agencies had submitted only 12,023 records of known drug abusers to the FBI. To solve this problem, the president should issue an executive order requiring every federal agency to submit a plan to the attorney general for submitting all eligible records into the National Instant Criminal Background Check System and requiring the agencies to submit all the records within 12 months.

The New York Times recently reported that the Justice Department has reviewed a series of executive actions to improve the background check system. We urge the administration to expedite the review.

Perform background checks on employees of federally licensed dealers during the course of the Bureau of Alcohol, Tobacco, Firearms, and Explosives audit inspections

Under federal law, those individuals disqualified from gun ownership are also ineligible to work as an employee who handles guns for a federally licensed gun dealer. There have been numerous cases, however, where felons and other prohibited people were behind the counter at a federally licensed gun dealer. Drug addicts shouldn’t work behind the counter at a pharmacy—and felons shouldn’t sell guns in gun stores.

Some gun retailers, including Wal-Mart, 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. More gun dealers should follow suit. The Bureau of Alcohol, Tobacco, Firearms, and Explosives should therefore use the authority it already has to conduct background checks of employees during the course of the more than 10,000 gun-dealer audit inspections it conducts each year.

Take military-grade weapons off the streets and out of criminals’ hands

Legislative proposals

Reregulate assault weapons

The recent mass shootings in Aurora, Colorado and Newtown, Connecticut have a deadly element in common: The shooters used military-grade rifles to inflict maximum damage. These assault rifles, capable of firing more than 30 or more bullets in mere seconds, are legally available for purchase in most U.S. states since a federal law banning the sale of such weapons expired in 2004.

Congress should enact comprehensive legislation protecting the U.S. public from these deadly weapons. These military-style assault weapons should be banned from sale in the United States in the manner proposed by Sen. Dianne Feinstein (D-CA), who plans to introduce a bill to stop the sale, transfer, importation, and manufacturing of military-style assault weapons and high-capacity ammunition feeding devices. Alternatively, the administration might consider legislation to require licensing and transfer restrictions on new and existing assault rifles, similar to the scheme currently in place for machine guns and other Class III firearms. This action would reduce access to such military-grade weapons by felons, the Mexican drug cartels, and mentally deranged individuals.

Ban high-capacity gun magazines

Similarly, gun magazines with a capacity of more than 10 bullets should be banned. These dangerous components serve no legitimate civilian purpose and pose a danger to public safety.

Executive action

Require broader reporting of multiple sales of assault rifles

Federal law requires federally licensed dealers to report to the Bureau of Alcohol, Tobacco, Firearms, and Explosives when an individual purchases multiple handguns within a five-day period. These reports provide crucial information for the bureau in criminal gun-trafficking investigations. This type of reporting is not generally required for multiple sales of assault rifles, however, despite the fact that many such guns are increasingly used in crimes and are illegally trafficked. We applaud the administration for the 2011 ATF order expanding multiple-sale reporting to require certain dealers on the southwest border to alert the Bureau of Alcohol, Tobacco, Firearms, and Explosives about multiple sales of assault rifles. This policy is helping interdict illegal gun trafficking into Mexico. We can do more, however, to deter the illegal acquisition of military-grade assault rifles here at home.

The Christmas Eve ambush of firefighters in Webster, New York, for example, involved a multiple purchase that included an assault rifle by a straw purchaser. A straw purchaser is a person who buys guns on behalf of felons and other persons prohibited from possessing guns. Had the purchase involved multiple handguns, the circumstances of the sale may have triggered a straw-purchase investigation at the Bureau of Alcohol, Tobacco, Firearms, and Explosives, 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 bureau should expand its multiple-sale reporting requirement through its “demand letter” power to any multiple sale involving either:

• A dealer on the southwest border
• A dealer linked to more than five crime gun traces in the prior year
• A rifle that accepts a detachable magazine and is capable of firing a round larger than .22 caliber or any tactical shotgun with a pistol grip

Better data, better coordination, and better enforcement

Legislative proposals

Strip riders from the administration’s fiscal year 2014 budget and all future budgets that restrict gun data collection and sharing

In order to fully understand the scope and nature of gun violence in this country and develop laws and policies to protect the public from future violence, federal agencies, research institutions, academics, and others need access to data on gun crime and gun trafficking. Likewise, government-enforcement agencies need to be able to freely collect and share data on firearms-related violence, crime patterns, and illegal transactions to ensure efficient investigation and prosecution of criminals and federally licensed dealers who break the law.

Yet all relevant federal agencies are hamstrung in their ability to collect and share data on guns because of limitations imposed on their funding in annual appropriations legislation. Three such restrictions involved the so-called Tiahrt Amendments, which restrict federal, state, and local law enforcement functions in the following ways:

• First, the Tiahrt Amendments limit access to and use of crime gun-trace data, including the use of such data in state and local civil enforcement actions that would revoke the license of a gun dealer caught breaking the law.

• Second, the Tiahrt Amendments prohibits the Bureau of Alcohol, Tobacco, Firearms, and Explosives from requiring federally licensed dealers to regularly conduct a physical inventory inspection—at least once a year, for example. While dealers are required to notify the bureau promptly when they learn that a gun in their inventory has been lost or stolen, they are not required to affirmatively check to ensure their inventory is complete. During the course of its own audit inspections of gun dealers, the bureau has found more than 30,000 missing guns from inventories each year in recent years—but it only has the resources to inspect dealers once every six years.

• Third, the Tiahrt Amendments require federal agencies to destroy records of completed gun background checks that do not reveal a disqualification from gun purchase within 24 hours. Preserving these data for several months, as was the prior practice, would help give federal authorities the ability to identify and monitor potential straw purchasers who buy guns on behalf of criminals. Having more information on potential straw purchasers can improve gun-regulation enforcement and deter illegal gun purchases.

Other key appropriations riders block data collection and assessment in meaningful ways:

• Another rider limits the Bureau of Alcohol, Tobacco, Firearms, and Explosives’s ability to receive, store, and manage data in a modern and efficient manner. The bureau is essentially prohibited from creating an electronic database of gun records already in its possession that is searchable by name, which means that its agents must go through an antiquated and inefficient paper-based process when assisting law enforcement to investigate gun-related crimes.

• The Centers for Disease Control and Prevention and the National Institutes of Health are unable to conduct adequate public health and safety research relating to firearms because of language that has been construed to prohibit virtually any study of firearms-related issues.

In its next budget, the administration should remove each of these appropriations riders to permit government agencies and law enforcement to fully investigate and prosecute gun criminals and create a modern, efficient system for collecting and maintaining data. The administration must also free public health research agencies such as the Centers for Disease Control and Prevention and the National Institutes of Health to study gun violence and develop innovative solutions to reducing gun deaths and injuries.

Treat gun trafficking as a serious crime

When an individual commits a crime with a gun, law enforcement focuses on that person for investigation and prosecution. But in many cases, the person who ultimately commits the crime was aided at various points by other individuals in gun-trafficking networks, including straw purchasers and unscrupulous gun dealers. Arresting one criminal takes one firearm off the streets, but by targeting other members of gun-trafficking networks, law enforcement can rid our communities of hundreds of dangerous weapons.

Currently, traffickers are typically charged with selling without a license or knowingly transferring to a prohibited person—both of which carry penalties of only zero to five years. Congress must immediately consider legislation such as the Gun Trafficking Prevention Act introduced by Sen. Kirsten Gillibrand (D-NY) that targets criminal gun-trafficking networks. Such legislation would create new criminal penalties for people who participate in gun trafficking at every end, from the person who buys weapons on behalf of someone they know intends to use it to commit a crime to the crooked dealer who knowingly sells firearms to traffickers to those who conspire with and organize gun-trafficking rings. Under this bill, traffickers could face up to 20 years in prison and significant fines. It also provides greater penalties for those who organize gun-trafficking rings, subjecting them to an additional sentence of potentially five consecutive years in prison. Penalties could increase depending on the number of guns trafficked.

Executive action

Begin the process of the FBI absorbing the Bureau of Alcohol, Tobacco, Firearms, and Explosives

In recent years, the Bureau of Alcohol, Tobacco, Firearms, and Explosives has become a beleaguered agency that is unable to adequately fulfill its mission to oversee and enforce federal firearms laws. For reasons such as lack of funding, limitations on its activities included in appropriations riders, and a leadership vacuum, the bureau is simply incapable of functioning properly as a standalone agency in its current state. These problems undermine the bureau’s ability to combat gun crime and illegal trafficking. Also undermined is the morale of roughly 2,500 bureau agents who risk their lives daily to make the United States safer. These agents deserve to work in an agency that matches their own tenacity.

The United States already has a well-functioning federal law enforcement agency: the FBI. The president and the Department of Justice should begin the process of making the Bureau of Alcohol, Tobacco, Firearms, and Explosives a unit of the FBI, and allow the ATF to focus on its other duties with its limited resources.

Conclusion

Through better background checks; taking military-grade weapons off the streets and out of criminals’ hands; and improved data, coordination, and enforcement, we can reduce the gun violence that plagues our communities, our children, and our families.

Neera Tanden is the President of the Center for American Progress. Winnie Stachelberg is the Executive Vice President for External Affairs at the Center. Arkadi Gerney is a Senior Fellow at the Center. Danielle Baussan is the Associate Director of Government Affairs at the Center.

SOURCE: AP/J Pat Carter

People stand in line to vote early on Sunday, October 28, 2012, in Pembroke Pines, Florida.

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

The past two years were not kind to those who hold dear one of our most cherished rights—the right to vote. After the Republican wave of 2010, which saw conservative majorities swept into governors’ mansions and state legislatures, more than a dozen states—including Wisconsin, Florida, and Texas—passed legislation making it more difficult for voters to cast a ballot. The conservative cause celebre became legislation enacting voter ID, shortening early voting, and requiring citizens to show a birth certificate or passport in order to register to vote. In the face of this assault on suffrage, voting-rights advocates fought back and were able to block or modify a number of the worst new laws, including voter ID laws in Wisconsin, Texas, and South Carolina, as well as laws in Ohio and elsewhere shortening early voting periods.

With the 2013 legislative session approaching, voting-rights advocates have an opportunity to shift their effort from simply stopping bad laws to proposing good ones. It’s time to stop playing defense and start going on offense.

Suffrage that is equally accessible to all Americans is the very backbone of our democracy. We rightfully take pride in the fact that no matter how privileged or seemingly disadvantaged someone is, each person’s vote counts equally. Our voting laws should reflect this fundamental belief, making the ballot box equally accessible for all. After all, our elections are best when the electorate closely mirrors society. If students and the poor, for example, tended to vote at higher rates—rates more representative of their numbers—it would be more difficult for politicians to ignore their issues. In essence, more voters means more legitimacy.

This paper briefly details 11 pieces of legislation that lawmakers can enact to strengthen voting rights in their state. A number of these policies would make registering to vote more accessible, including online voter registration, Election Day registration, and requiring public schools to help register voters. Others would make it simpler for citizens to cast a ballot, such as expanding early voting, permitting citizens to vote at any polling location, and allowing no-excuse absentee voting. States can also discourage those trying to suppress the vote by outlawing voter caging, strengthening penalties for knowingly deceiving voters, and reforming the voter-challenge process. Finally, legislators can pass other pro-voting policies, such as restoring voting rights to ex-felons and enacting constitutional language affirming an equal right to vote.

These are not partisan pieces of legislation. States as ideologically opposed as New York and Utah have passed online registration legislation, and states as large as California and as small as New Hampshire allow citizens to register on Election Day. These are simply good-government bills. With voting rights under attack in state legislatures across the country and voters in many states enduring long lines and other hurdles before they can cast a ballot, here are 11 ways for voting-rights advocates to turn the tide and help ensure that every American can exercise his or her right to vote. First let’s look at voter registration.

Online voter registration

Nowadays most government forms can be filed online. The Internal Revenue Service allows you to e-file your taxes. Many states permit you to register your vehicle on the Internet. Seniors can even apply for Social Security and Medicare online. And all of it is done safely and securely. Yet the vast majority of states still don’t allow their citizens to register to vote on the web.

According to Project Vote, less than 63 percent of Americans aged 18-34 were registered to vote in 2009, yet a Nielsen survey found that these young citizens were by far the most electronically connected, with 88 percent having an Internet connection at home. Modernizing the voter-registration process and allowing people to register online would be a boon for the overall number of voters in our country.

A handful of states are bringing voting rights into the 21st century. Already 16 states have passed bills permitting their citizens to register online, and lawmakers in other states are pushing online voter-registration as well. The Brennan Center at New York University School of Law, a key player in the voting-rights discussion, backs online voter registration as a central tenet of modernizing our elections.

Another upside of online registration is that it isn’t just good for voters it’s good for state budgets as well. In Maricopa County, Arizona, for instance, processing a paper application costs taxpayers approximately 83 cents; an electronic application will cost them just 3 cents. The state of Washington found that the introduction of online registration reduced overall data entry time by 80 percent in some counties.

One final benefit of registering online is that it prevents many clerical snafus that often result in voters being disenfranchised. In Arizona the number of human and data-entry errors fell significantly because voters could enter and double-check their own information electronically.

Election Day registration

Because voting in the United States is a two-step process—you must register to vote before you can actually vote—many citizens can’t cast a ballot because they miss the registration deadline. Though less than two-thirds of eligible Americans typically vote in our presidential elections, the turnout rate among those who have registered to vote is typically between 75 percent and 90 percent.

It’s not difficult to see why this is the case. Most states bar their residents from registering in the weeks just before an election—at a time when media coverage is at a fever pitch and less-engaged citizens are just starting to tune in. Some states, such as Pennsylvania, stop allowing people to register 30 days before an election. There were surely thousands of Philadelphia Phillies fans who were paying more attention to their team’s 2008 World Series run than they were to the state’s voter-registration deadline that October. Procrastination is not a crime and shouldn’t preclude one from voting. Certainly dawdlers have as much a right to vote as anyone.

That is why 10 states and Washington, D.C. enable their residents to avoid such deadlines by allowing their citizens to register to vote right up to and on Election Day. This forward thinking group includes states ranging Wyoming to Wisconsin and New Hampshire to Iowa. In 2008 alone, more than 1 million individuals registered on Election Day in these states. Studies have found that Election Day registration boosts turnout on average by 7-percentage points to 14-percentage points.

Recent momentum has been building for Election Day registration. In 2012 both California and Connecticut passed Election Day registration legislation, coming on the heels of Iowa in 2007 and Montana in 2005. Still, challenges remain. In 2011 Maine legislators tried to eliminate the state’s 38 year-old Election Day registration law. A petition drive forced the matter to a statewide referendum, where voters overwhelmingly rebuked the move and reinstated Election Day registration.

Require public schools to help register voters

Young Americans continue to vote at far lower rates than the rest of the citizenry. This year, for instance, only half of the voting-eligible population between the ages of 18 and 24 cast a ballot, compared to more than two-thirds of senior citizens.

One simple way to encourage students to vote is for states to require that public schools provide voter-registration services. Currently, at least 10 states require public high schools and colleges to either facilitate registration drives or provide voter-registration forms and accept completed applications.

Though not a state typically known for strong voting protections, Kentucky does an admirable job helping students register to vote. As Project Vote notes, high school principals across the state work in conjunction with the State Board of Elections to provide voter-registration resources to all students eligible to vote.

Let’s turn next to the issue of voting legislation.

Expand early voting

Arguably the most successful election reform in the past decade has been the advent of early voting. After widespread voting problems in the 2000 election, many states passed legislation to open up polling sites for more than one month leading up to Election Day. The move has been a win-win for states and voters. Citizens get more flexibility to vote at their convenience—not everyone can take off an hour or two from work on the first Tuesday of November—which leads to higher turnout, something former Florida Gov. Jeb Bush (R) called “wonderful.” Meanwhile, early voting allows election officials to spread the process of counting ballots over a number of days or weeks, rather than getting inundated all at once.

Early voting has been a major boon for minority turnout. Many African American churches, for instance, participate in a “souls to the polls” voting drive on the Sunday before Election Day helping boost black early voting rates. In Cuyahoga County, Ohio a study found that the early vote rate among African American residents was more than 20 times greater the rate for white voters in 2008.

At present 32 states and Washington, D.C. offer some form of in-person early voting with the length of the early-voting period differing from state to state. Leading the way are states like Iowa and South Dakota, which begin their early voting periods in late September, giving their citizens more than one month to vote. Pulling up the rear is Florida, which cut its early voting period from 14 days to just 8 thanks to Gov. Rick Scott (R) and the 2011-12 Republican dominated state legislature. The 16 states that have yet to embrace in-person early voting include some historically progressive states like Minnesota, New York, and Massachusetts.

Advocates looking to expand early voting should target not only the 16 states that don’t offer early voting at the moment, but also states—such as Florida, Texas, and Illinois—with relatively short voting periods.

Allow county residents to vote in any polling location

In the past decade some U.S. counties have begun testing an innovative pilot project called “voting centers.” Rather than restricting voters to one assigned precinct where they must cast their ballot, a handful of counties now allow residents to vote at any polling location in their home county. Travis County, Texas, home to Austin, for example, conducted a study of its new policy after it was introduced in 2011 and found that allowing voters to cast a ballot at any of the county’s 207 polling locations led directly to a 1.4 percent increase in turnout. Approximately one in three voters ended up going to a different polling location than their usual one.

It’s not difficult to grasp why the program is popular. If a voter lives on one side of town but works in another, it’s far more convenient for her or him to vote at a location close to his or her job. In addition, polling locations often change between elections, potentially confusing some voters. Providing flexibility could make the difference for many citizens as they decide whether or not they can take time during the day to vote.

Though elections are largely conducted at a county level in the United States, states can encourage counties to allow resident voting at any polling location by providing funding, pilot programs, and studies showing the policy’s efficacy.

No-excuse absentee voting

For many Americans taking time off during the work day to vote is not an option. Fortunately for them an increasing number of states are enacting “no-excuse absentee” laws that allow anyone who requests an absentee ballot to receive one, not just individuals who will be out of town or have another reason barring them from voting on Election Day.

Making absentee voting more accessible doesn’t just benefit voters who work on Election Day, it also allows citizens to research candidates and ballot issues while they have the actual ballot in their hands. With recurring voting machine snafus and long lines at the ballot box, millions of Americans have taken advantage of their state’s absentee voting option.

Currently, 27 states and Washington, D.C. allow for no-excuse absentee voting. Others states such as Pennsylvania and Michigan require voters to have a certain excuse for requesting an absentee ballot, such as a physical disability preventing them from reaching the polls. All 50 states should allow their citizens to vote absentee if they so choose.

Let’s turn now to the serious issue of voter suppression.

Strengthen penalties for knowingly deceiving voters

Though voter fraud is largely a myth, one form of actual election hijinks occurs when individuals or groups purposefully deceive certain voters about when or how to vote. Such deceptive practices are unfortunately commonplace. Here is a small sample of such instances from the past decade:

• Robocalls to California Latino voters in 2010 reminding them to vote on November 3 (the election was held on November 2, that year)
• Fliers or robocalls in several states telling people that because of anticipated massive turnout, Republicans are instructed to vote on Tuesday while Democrats should show up at the polls on Wednesday
• Signs at polling places telling voters that photo ID is required when no such requirement actually exists
• A fictional organization called the Milwaukee Black Voters League in 2004 put out flyers in the city’s minority areas warning anyone who has “ever been found guilty of anything [that] you can’t vote in the presidential election.” Doing so could “get ten years in prison and your children will get taken away from you.”

States should not only specifically ban deceptive practices, but classify them as a felony. Currently, just five states outlaw deceiving voters about the election. (At least 39 states have laws that bar certain forms of voter intimidation, but they would do well to add clear and specific language banning deceptive practices.)

Outlaw “voter caging”

Voter caging is when an operative or group sends letters to a “target’s” home and uses any returned mail to challenge that voter’s eligibility on the presumption that they don’t live at the listed residence. For years, political operatives have used voter caging as a tactic to suppress turnout among largely minority populations. In 2004 alone hundreds of thousands had their eligibility challenged as part of voter-caging operations in states as widespread as Nevada, Ohio, Louisiana, and North Carolina. More recently, voters in Florida, Kansas, Montana, Michigan, and California were targeted by voter caging attacks.

States should affirmatively ban the practice of voter caging. It’s a process that is riddled with problems. There are dozens of reasons why a piece of mail would be returned that are more plausible than a voter intending to commit voter fraud, including as clerical errors or military deployment, and serves primarily to suppress legitimate voters.

At least two states have adopted legislation banning voter caging, but it is clear that more states need to follow suit.

Reform the voter-challenge process

Poll watchers became a household term in the 2012 election as campaigns and outside groups like True The Vote trained thousands of volunteers to challenge voters’ eligibility anytime they suspected irregularities. Because volunteers often approached the duty with ulterior motives, frivolous challenges have become commonplace, with voters sometimes being targeted just because of their accent or skin color.

This is not altogether surprising. Like poll taxes and literacy tests, laws allowing for poll challengers have their roots in the Reconstruction Era as a means of suppressing the vote of newly freed slaves. These barriers to the ballot were used extensively to threaten and ultimately suppress black turnout. If poll-challenger laws can’t be eliminated entirely, there are still ways to reform and improve them.

When a poll watcher makes a challenge most states place the burden of proof on the voter to prove he or she is eligible to cast a ballot, a process that does little to disincentivize frivolous challenges. States therefore should pass legislation shifting the burden of proof from the voter to the challenger. In addition, states should impose penalties on individuals and groups who make frivolous challenges. For instance, Florida law classifies frivolous challenges as a first-degree misdemeanor punishable by up to one year in prison and a $1,000 fine.

Here are some other measures that will go a long way in making suffrage equally accessible to all Americans.

Restore voting rights to ex-felons

Felons in most states aren’t just barred from voting while in prison; a handful of states strip them of their voting rights for the rest of their life, even after completing their sentence. As a result, 3.1 million Americans were disenfranchised in 2008.

If we as a society want to reintegrate people with felony convictions back into society after they finish their prison terms, it makes little sense to permanently brand them with a scarlet letter.

In all, 11 states disenfranchise certain classes of felons for life. Four of those states permanently strip all felons of their right to cast a ballot. Passing legislation to restore voting rights for individuals in these states would rectify this injustice and help ex-felons become good-standing members of society once more. Currently, only two states allow prisoners to vote (Maine and Vermont); 18 states allow probationers to vote; and 19 states allow felons who have completed their entire sentence to vote.

Enact constitutional language affirming an equal right to vote

When Wisconsin passed voter ID legislation in 2011 the only thing stopping its implementation in the 2012 election was the state constitution’s language affirming Wisconsin residents’ right to vote. “Voting is a constitutional right,” wrote Judge David Flanagan in March 2012, striking down Wisconsin’s controversial voter ID law. Flanagan pointed to the state constitution’s provision on voting rights—“Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district”—and noted that any legislation which denies a qualified elector his or her ballot, such as voter ID, is unconstitutional.

Every state constitution has different language regarding the right to vote. Still, the most important thing voting-rights advocates can proactively do to prevent further attacks on voting rights such as voter ID is to strengthen their state’s constitutional language regarding the right to vote.

Admittedly, this can be a difficult task, as a state’s constitution is only as good as the judges who interpret it and even the most carefully drafted constitutional amendment cannot defend fully against a state supreme court hostile to voting rights. Nevertheless, voting-rights advocates can mitigate this problem by choosing language that carefully maps the words that the U.S. Supreme Court has used to describe rights deserving the highest degree of constitutional protection, such as stating explicitly that the right to vote is a “fundamental right” and that any burden on this right will be subject to the most exacting constitutional scrutiny. An ideal amendment would also specifically name common voter-suppression techniques, such as voter ID laws, and explicitly forbid them.

Conclusion

The right to vote is so fundamental in the United States that it’s easy to take for granted. After the rapid spread of voter-suppression laws over the past two years, however, complacency is no longer an option. If there’s one lesson to take away from the recent attacks on voting rights, it’s this: progressives can’t just get in the game when they need to play defense.

Each one of the 11 pieces of legislation in this paper goes a long way to increasing access to the ballot box and making our elections as fair and equitable as possible. No one piece is a panacea, but neither is any a pipe dream. Every law has already been tested in states across the nation and been proven effective.

Now, with progressives back in control of state legislatures like Oregon, Maine, Colorado, and Minnesota, voting-rights advocates have a real opportunity to spread voter protection laws. If 2011 and 2012 are immortalized as the years when Jim Crow-style voter-suppression tactics re-emerged, progressives now have an opportunity to make 2013 the most important year for voting rights since the 1960s.

Scott Keyes is a Researcher for the Center for American Progress. Greg Noth also contributed substantial research to this paper.