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
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.
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
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.
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
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.
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.
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.