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After Newton: Symbols versus Substance

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President Obama has announced the White House response to the tragedy of Newton. With the stated goal of better protecting our children and our communities, the Administration has listed 23 executive actions that will be implemented immediately without the need for Congressional authorization. He has also called on Congress to focus on 6 areas for new legislation with the same goal.

The President, in making this proposal, was careful to insert language to calm the fears of gun owners:

“Most gun owners use their guns legally and responsibly, and the President strongly believes in an individual right to bear arms, but we need to take action to better protect our children and communities from tragic mass shootings like the one in Newtown, Connecticut.”[1]

Gun owners were unconvinced. Gun sales in later December and early January have surged, and ammunition is not to be had for love or money.[2]

Are gun owners justifiably worried? Let’s take a look at the President’s plan:

Closing background check loopholes

  1. Require federal agencies to make relevant data available to the federal background check system
  2. Address unnecessary legal barriers that may prevent states from making information available to the background check system
  3. Improve incentives for states to share information with the background check system
  4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks
  5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun
  6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers

Common sense steps to reduce gun violence

  1. Launch a national safe and responsible gun ownership campaign
  2. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission)
  3. Require federal law enforcement to trace guns recovered in criminal investigations
  4. Release a DOJ (Department of Justice) report analyzing information on lost and stolen guns and make it widely available to law enforcement
  5. Nominate an ATF director
  6. Provide law enforcement, first responders, and school officials with proper training for active shooter situations
  7. Maximize enforcement efforts to prevent gun violence and prosecute gun crime
  8. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence
  9. Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies
  10. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes
  11. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities

Making schools safer

  1. Provide incentives for schools to hire school resource officers
  2. Develop model emergency response plans for schools, houses of worship, and institutions of higher education

Increasing access to mental health services

  1. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover
  2. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges
  3. Commit to finalizing mental health parity regulations
  4. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health

Before I look at the individual actions, I should say that I am pleasantly surprised by the President’s moderation. He has not attempted to circumvent Congressional authority by executive fiat – all of his proposals are well within the President’s authority as Chief Executive. During the almost month long build up to the plan’s presentation, Vice President Biden had taken an aggressive tone, suggesting that the White House might side-step Congress altogether in their response. This would have been a costly mistake, undermining support for even legitimate proposals from the President in Congress (which is always zealous of its prerogatives).

Goalseeking

Judging the potential impact of the President’s initiatives is difficult because of the ambiguity of his objectives. Is the purpose to stop Newton-style school massacres? That seems to be the stated purpose, but the President goes on to talk about “gun violence” which is a very broad category indeed. “Gun violence” – in terms of homicides involving a firearm – has been falling for years and is at the lowest rate since 1981, without the President or Congress doing anything at all[3].

For the purposes of this article, I will assume that the President has a broad purpose of reducing all levels of “gun violence”, including homicides, non-fatal assaults resulting in injury, accidental deaths and – of course – school massacres. I will use a standard A to F grading scale to judge the likely impact of each initiative with the stated goal.

One thing to bear in mind: it is nearly impossible to stop lone wolf attacks. There simply are not enough resources to guard every single public building in America. That is why it is critical to identify potential marauders before they become homicidal, rather than after they have begun their rampage.

No. President’s Initiative

Grade

Closing background check loophole

A

1 Require federal agencies to make relevant data available to the federal background check system

A

2 Address unnecessary legal barriers that may prevent states from making information available to the background check system

A

3 Improve incentives for states to share information with the background check system

A

4 Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks

C

5 Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun

A

6 Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers

D

Common sense steps to reduce gun violence

C+

7 Launch a national safe and responsible gun ownership campaign

B+

8 Review safety standards for gun locks and gun safes (Consumer Product Safety Commission)

C

9 Require federal law enforcement to trace guns recovered in criminal investigations

A

10 Release a DOJ (Department of Justice) report analyzing information on lost and stolen guns and make it widely available to law enforcement

A

11 Nominate an ATF director

A

12 Provide law enforcement, first responders, and school officials with proper training for active shooter situations

C+

13 Maximize enforcement efforts to prevent gun violence and prosecute gun crime

C

14 Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence

B

15 Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies

C

16 Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes

D

17 Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities

C

Making schools safer

C

18 Provide incentives for schools to hire school resource officers

C

19 Develop model emergency response plans for schools, houses of worship, and institutions of higher education

C

Increasing access to mental health services

B

20 Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover

C

21 Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges

A

22 Commit to finalizing mental health parity regulations

B

23 Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health

B+

 The President doesn’t get any failing grades and only two “D’s”, for initiatives which appear to be utterly superfluous. Federally licensed gun dealers already know how to conduct background checks (#6), else they could not run their businesses legitimately; the problem isn’t ignorance, the problem is that there is no requirement for a background check in a private sale, so they simply don’t happen.

Similarly, a letter to doctors that the Affordable Care Act doesn’t prohibit doctors from asking patients about guns in their homes (#16) is neither a positive affirmation that they should, nor of any guidance in terms of what risk factors (such as clinical depression) should legitimately prompt such a query. If this initiative, and initiative #17 regarding the reporting of threats of violence, could be combined into a proactive approach to identifying and heading off potentially unstable, suicidal or homicidal patients ­as well as providing a adequate response channel, then the impact of the measures would be substantially increased. Such a program might have identified Seung-Hui Cho, the Virginia Tech shooter, as homicidal and gotten him on the appropriate medication before his horrible act.

The initiatives related to improving access to mental health services have potential: it is critical for health care providers, school administrators and especially parents learn to recognize the signs of a clinical condition in their charges that could lead to violent behavior (#23). Finalizing and enforcing the parity regulations[4] in mental health care (#21, #22), and effectively communicating it to beneficiaries, is an important step in bringing mental health care services to the same level of accessibility and importance as physical health care. Parents who may not have taken their child to a psychologist due to the prohibitive cost, or from thinking their health care plan did not cover it, should be made aware that this is not the case. In mental illnesses as with physical illnesses, prevention is immeasurably more valuable than cure.

The initiatives for making schools safer (#18, #19) are certainly laudable, but most schools and public buildings already have emergency response plans. They are unlikely to prevent or mitigate the effects of a lone wolf attack. Sandy Hook school had a modern security system and the teachers were drilled in response procedures and executed them. None of that stopped Adam Lanza from blasting his way in and gunning down the school administrators who responded immediately and heroically to the shots. 

Among the common sense initiatives, there are some excellent initiatives and some that are less good. Providing more and better information on the illicit trafficking, sales and use of firearms (#9, #10) is vital to interdicting their flows. The BATF and FBI have been too long hampered in these efforts. In fact, a National Firearms Registry is required to track the millions of arms in the United States, and to identify all those used in the commission of crimes. Nominating a director to the ATF (#11) will also strengthen the Bureau’s capacity to perform essential functions, as long as the new Director is properly empowered.

The nationwide campaign on gun awareness (#7), if properly focused on training, familiarity and safety, could have some benefits. Studies have shown[5] that citizens who are familiar with firearms, having received proper instruction from their parents, the military, police or other institution, have almost no accidental injuries and commit no homicides. A nationwide campaign should not, therefore, be limited to a media campaign, but should be a sustained effort to reach and educate gun owners who are less familiar with the weapons they own.

Less useful are initiatives #8, #12, #13 and #15. There is not an iota of evidence that failures in gun locks or gun safes have in any way contributed to gun violence, a study by the Consumer Product Safety Commission is a waste of time and money. Is the President really suggesting that law enforcement officers are untrained in emergency response procedures involving shooters? The problem isn’t the response plan, the problem is the impossibility of stopping a lone wolf attack and the carnage the attacker can cause before responders arrive.

New smart gun technologies do promise to provide an additional level of safety to prevent accidents with firearms, especially involving children, and to prevent firearms from being used by people other than their users. Initiative #15 is a step in the right direction, albeit a weak one. Unfortunately, only Congress could mandate the incorporation of certain technologies in all new firearms manufactured or imported into the country. That is the only incentive which the private sector will respond to: after more than twenty years of practical smart gun technologies being available, there is clearly no market for them unless government creates one.

The most promising set of initiatives are those around closing the background check loophole. Almost all of the initiatives listed here are valuable (#1, #2, #3, #5). Providing more and better information during background checks is urgently needed. Ensuring the maximum amount of the right data is provided by county, state and federal institutions is also necessary. Fully automating these systems to ensure fast and efficient background checks will decrease costs and increase compliance.  Fully closing the background check loophole requires Congressional action, yet this is where Congress is most likely to act and to succeed.

Measures Congress should pass

Even the most laudable and promising of President Obama’s initiatives is hampered by the current legal framework. The President has therefore rightly called for Congress to take action and has asked lawmakers to address the following issues:

A Eliminating loopholes and requiring background checks for all gun sales

A

B Reinstating the prohibition on high-capacity magazines

C

C Renewing and strengthening the ban on assault weapons

C

D Creating serious penalties for gun traffickers

C

E Getting armor-piercing bullets off the streets by prohibiting the possession and transfer of this dangerous ammunition

C

F Keep 15,000 cops on the street

B

G Further research on gun violence

B+

H Help schools develop and implement comprehensive emergency management plans

C

I Removing restrictions that require ATF to authorize importation of dangerous weapons simply because of their age

C

Bans on high capacity magazines and “assault rifles” are symbolic and all the data from the 10-years of the 1994 assault rifle ban demonstrates that the impact has been negligible. Rifles make up a tiny minority of firearm-related deaths, less than 5% on average[6], and assault weapons make up an even smaller percentage. The very definition of assault weapon is vague and cosmetic, based on features that have no bearing to the functioning or lethality of the firearm. A ban on high capacity magazines will similarly have little statistical impact. the killers in all of the most recent tragedies – Sandy Hook, Boulder, Virginia Tech, Columbine – had ample time to reload their weapons as often as they desired while they set about their villainy.

Banning armor-piercing bullets is also symbolic. Does it really matter what sorts of bullets a deranged assailant is using against unprotected civilians? No one is suggesting that children and teachers wear body armor to school. Even so, a narrower definition of true armor-piercing bullets that protects police officers and first responders, who do wear body armor, is perhaps appropriate.

The Urgent Need for More Data

Eliminating loopholes and requiring background checks on 100% of gun sales is the legal change most likely to be enacted by Congress. It enjoys widespread support among gun owners and some Republican law-makers who see the writing on the wall. Even gun dealers are generally supportive: they already have to run background checks, while their competitors at gun shows and in private sales do not. This would level the playing field for them.

Background checks are useless if the right data isn’t available however, which is why linking crimes databases with a National Firearms Registry is so important. Mental health records must also be made available, with the proper safeguards in place to protect patient rights. It is imperative that information be available during a background check to determine whether a buyer is psychotic, depressive, or suffering from a drug addiction or other disqualifying condition.

Further research on gun violence is also necessary. There is already a large body of private research which, at the least, contradicts the “more guns = more deaths” hypothesis, without affirming the opposite. Holes in our knowledge still exist: the exact impact of concealed carry laws on crime rates; the impact of different levels of training and familiarity on firearms injuries and likelihood to use a firearm; the true impact of gun restrictions on gun violence. Today, the most we can establish are negative links: for example, concealed carry has not resulted in the predicted blood bath. A better understanding of causal relationships is absolutely necessary in order to craft the appropriate public policy response.

Studies also need to focus more on understanding violence and tendencies to aggression. There is no data whatsoever that supports the hypothesis that the presence of guns makes people more violent.[7] What does seem to be true, though no causal relationship has been established, is that people prone to or with a history of violence are far more likely to use a gun or to suffer a firearm-related accident, than people with a gun but without a history of violence. That makes sense: access to a gun makes violence easier for someone predisposed to it. But the roots of violence are still not well-understood, and triggers to homicidal acts – while useful – are nowhere near being identified or agreed upon.

These lines of research would be far more fruitful than a blanket ban of certain types of weapons. Keeping weapons out of the wrong hands is a far more effective policy than keeping weapons out of all hands.

Time to Get Serious

One element that detracts from the President’s initiatives is the scattergun approach of the recommendations. With 23 separate initiatives and 9 recommendations to Congress, the Administration’s proposal lack focus and decisiveness.

There are cases where an incremental approach is appropriate. Reforming the tax code generally follows and incremental approach to avoid excessive disruptions in filers financial situations. The Affordable Care Act follows an incremental approach, allowing the Administration and Congress to gradually implement health care reforms, measure and compare the real impact versus prognostications, and to “tweak” the law down the road in order to improve it.

The Administration’s current strategy might backfire. The longer Congress deliberates measures, the more the memories of Newton will fade, and the greater the pressure to do nothing. There are 20 Democratic Senators up for re-election in 2014 versus only 14 Republicans. The longer the debate lasts and the broader the measures eventually incorporated in a gun control bill, the greater the potential backlash will be. None of these politicians has forgotten the debacle of 1994, when the ranks of Democrats in Congress were decimated by the backlash against the assault weapons ban.

I can’t help but feel that an opportunity for real improvements in firearms safety is being lost. I believe that an incremental approach is wrong. With the overwhelming support of the nation in the aftermath of Newton, the President would have been well-advised to have sought one or two significant changes and rammed them through Congress immediately.

  1. Closing the background check loophole, improving the information available for checks in federal and state databases, and a mandatory 2-week waiting period for all firearms would have been an easy sell, and would have brought immediate benefits to public safety. The NRA and gun advocates would have been very hard pressed to counter such a law, as most gun owners have no objections to enforcing background checks on all gun sales.Fundamental to the success of this initiative is the provision of adequate funding for the states, upon whose systems and budgets much of the implementation relies. If states don’t have the funds to upgrade their systems, digitalize records and pay for additional checks, they will not cooperate and the system will not deliver results. It will be difficult enough to get many states to comply whole-heartedly for ideological reasons.
  2. Establishing a National Firearms Registry to aid police in tracking firearms used in crimes and uncover gun traffickers who are breaking the law should also be a priority. The NRA denounces a registry as a big brother tactic useful only in a future persecution of lawful gun owners, but such a database would for the first time allow law enforcement officials to crack down on the illicit gun trade. Compared with the gigabytes of personal information the government already collects on citizens, a National Firearms Registry is small potatoes;
  3. Another enhancement to gun safety is the mandatory incorporation of smart gun technologies in all semi-automatic weapons manufacturer or imported into the United States as of 01 January 2014. By itself, this measure would have only limited impact, considering the stock of over 200 million firearms[8] in private hands. It would be necessary to establish a gun buy-back program and a trade in period – say two years – to take weapons without the requisite technology off the streets.Such a measure is today politically impossible (“they’re trying to take your guns!”) as well as expensive. A semi-automatic pistol has a market price of between $700 and $1,000, while an AR-15 style semi-automatic rifle is between $1,000 and $2,000 for basic models. A fair buy-back program could run into the tens of billions of dollars[9], perhaps more, as no one really knows how many semi-automatic weapons are in the hands of the public.

    On the other hand, shared interests might make for strange bedfellows. Firearm manufacturers might be supportive as it would guarantee years of sales as gun owners purchased new handguns and rifle incorporating these technologies. Gun owners might also support the measure if it would defuse anti-gun sentiment and allow them finally to enjoy their shooting sports in peace.

I remain hopeful that the President and Congress will together promote legislation that is serious about improving gun safety, eschews the cosmetic gestures of useless bans and is respectful of the legitimate rights of citizens under the Second Amendment.



Sources and Notes:

 [1] www.whitehouse.gov
[2] Bishoff, Murray, “Gun control proposals spike local sales,” The Monett Times, 21 January 2013
[3] Uniform Crime Reporting Statistics – UCR Data Online (FBI)
[4] The 1996 Mental Health Parity Act requires that mental health dollar limits be no less than those for medical or surgical benefits. The 2008 Mental Health Parity and Addiction Equity Act filled in loopholes that the original law had left open to insurers and companies.
[5] Kates, Don B., “Gun Control: Separating Reality from Symbolism”, Journal of Contemporary Law, 1994
[6] Uniform Crime Reporting Statistics – UCR Data Online (FBI)
[7] Gallant, Paul and Eisen, Joanne D., “Trigger Happy: Rethinking the ‘Weapon Effect’”,  Journal on Firearms and Public Policy  #14, Second Amendment Foundation,
[8] Some estimates put the number as high as 300 million, but no one knows for sure.
[9] Assuming 5 million pistols and 5 million rifles were re-purchased at $800 per pistol and $1,200 per rifle, the cost to the public would be $10 billion dollars.

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