Our Unenforced Gun Laws

By Robert VerBruggen

Thursday, May 25, 2023

 

Amid a high murder rate, a spate of horrifying mass shootings, and calls for gun control, conservatives often suggest better enforcement of the gun laws we already have. Such efforts would not lower America’s homicide rate (nearly 7 per 100,000 in 2021) to Japan’s (about 0.25), but they could reduce our rate of violence considerably.

 

At every stage of the law-enforcement process, from gun-store inspections to the prosecution of those caught misusing firearms, there are opportunities for improvement. And such efforts could be fertile grounds for bipartisan compromise, as they would involve a mix of gun control — including support for some lower-profile efforts by the Biden administration — and criminal control.

 

American civilians’ guns generally begin their lives as retail products at federally licensed gun dealers, which are required to conduct background checks on buyers. The overwhelming majority of both dealers and buyers are legitimate, but naturally there are exceptions. Sometimes dealers lose track of their inventory, fail to conduct background checks, or knowingly sell guns to people who plan to turn them over to criminals.

 

Licensed dealers must submit to unannounced inspections of their inventory and records by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), to ensure that all the guns are properly accounted for. If these inspections uncover “willful” violations of the federal Gun Control Act — meaning intentional disregard of or plain indifference to one’s legal duties — a dealer can lose his license. Lesser violations are handled through warnings of varying severity to ensure future compliance.

 

The ATF has a goal of inspecting gun stores every three years, but it doesn’t get close to meeting it: There are more than 75,000 “licensed business entities” making or selling weaponry (not counting federal firearm licensees who merely collect curios and relics, with whom the total number rises to about 130,000), but the ATF has done only about 10,000 inspections a year this past decade, and the number has been lower since the pandemic. A recent audit by the Justice Department’s Office of Inspector General found that more than 2,000 licensees hadn’t been inspected in ten years.

 

The audit further noted that, of the approximately 110,000 inspections from October 2010 to February 2022, only about half uncovered no violations at all. Many violations are innocuous paperwork errors, but in nearly 600 inspections, the ATF recommended revoking the federal firearms license. Some of these recommendations are later successfully appealed, but they do not include cases in which dealers voluntarily went out of business or surrendered their licenses as a result of the inspection. The audit does not fully break those numbers down, but in the ATF’s own 2020 numbers, the “discontinued/surrendered” category outnumbers revocations more than twice over. A ballpark estimate, then, is that for every 100 dealers the ATF inspects under its traditional practices, at least one ceases to operate.

 

The audit also found, however, that the ATF’s methods of targeting high-risk dealers for inspection priority could be improved, that the agency had to rely on dealers themselves to report certain events (including eviction and even criminal convictions), and that there seemed to be considerable arbitrariness in the revocation of licenses. In June 2021, the Biden administration launched a “zero tolerance” policy toward dealers who willfully violate the most fundamental rules, such as by failing to do a background check, refusing to allow an inspection, or transferring a gun to someone who on his paperwork admitted that he was prohibited from buying. Revocations appear to have increased considerably, though allegations have swirled regarding revocations for inadvertent mistakes rather than willful violations. Stepping up funding for inspections — while ensuring that revocations occur only for serious misconduct — could yield benefits.

 

On the other side of the sales counter, there is the matter of what happens when a buyer fails a background check, as has happened more than 150,000 times per year lately, in the vicinity of 1 percent of transactions. The sale doesn’t happen, obviously. But buyers who intentionally lied on their paperwork can be prosecuted as well. Such prosecutions rarely occur, in large part for good reason. It takes a very stupid person to volunteer his personal information to law enforcement for a background check when he knows he’ll fail — many people who do fail do so out of ignorance or at least can plausibly claim as much. (For instance, if their conviction was long ago, or if they thought a felony they pled guilty to was a misdemeanor because they served little or no time.)

 

But efforts to sort out these details vary across the country, and there is room to ramp them up. Five years ago, a Government Accountability Office (GAO) report found only twelve federal prosecutions resulting from more than 100,000 denials during the 2017 fiscal year. Of the 13 states that conduct their own background checks rather than relying on the federal system, ten “said they did not investigate or prosecute firearm denials,” while the other three investigated large proportions of denials — and one, Pennsylvania, secured as many as 472 convictions.

 

For states that do use the federal system, a new law guarantees that local law enforcement will be notified whenever a denial happens, which was not even a requirement of the federal government previously. In addition, a Washington Post story last year revealed that, in fiscal years 2018 through 2020, there were about 200 to 300 federal cases filed annually against individuals who falsified gun-buying paperwork. That could suggest some modest improvement, though the numbers differ from the GAO’s. (For instance, falsified paperwork can be discovered in ways besides a failed background check, such as when a “straw buyer” passes a background check on behalf of a criminal who is later caught.)

 

Gun stores can be targets for criminals because, as Willie Sutton might put it, that’s where the guns are. But they’re hardly the only place where guns are: Guns often enter the black market well after they’ve left the gun store, with the average crime gun traced by the ATF being more than five years old, and with criminals generally reporting in surveys that they procure guns through informal social or street sources. About 200,000 guns are stolen every year, overwhelmingly from ordinary civilians rather than dealers or inventory shipments. And increasingly, criminals have also turned to homemade “ghost guns,” assembled from parts offered in an incomplete state so that they can be sold without background checks and put together with a little machining know-how.

 

You can marginally reduce the supply of guns to criminals by paying attention to what’s happening at licensed gun dealers — but if you want to keep guns away from criminals more thoroughly, you need to turn your attention to the criminals themselves, specifically the ones trafficking and carrying guns illegally. This task falls to the police. In their recent book Policing Gun Violence, Anthony A. Braga and Philip J. Cook offer a clear overview of the topic.

 

Addressing trafficking is a matter of collecting every piece of information possible about crime guns — especially those recently purchased from a gun store, meaning that the original buyer might have been in on it — and connecting the dots. Stopping the illegal use of guns, meanwhile, is best achieved by focused strategies: Crime is densely concentrated in specific social networks such as gangs as well as in specific locations, and overly broad stop-and-frisk policies run into constitutional, practical, and community-relations obstacles quickly. Two well-studied and effective policing tactics are “focused deterrence,” whereby police and other officials meet with known offender groups to communicate that gun violence won’t be tolerated, closely monitor those groups, and follow through on that promise if needed; and “hot-spots policing,” whereby police simply keep tabs on where crimes are happening and send more officers to the problem areas.

 

Of course, police can make arrests, but it’s prosecutors, judges, and juries who mete out formal punishment. And a lot of gun crime goes unpunished even when it’s detected.

 

In far too many cases, the perpetrators of murders and shootings are never caught. Only about half of all murder cases are cleared. The number is lower for gun murders — and lower still for nonfatal shootings, in large part because less investigative effort is spent on them. More and better detective work could solve more cases, deter future gun criminals, and provide justice to victims’ families.

 

When it comes to lesser gun violations, even getting caught doesn’t necessarily mean punishment, especially in certain jurisdictions led by the new crop of “progressive prosecutors,” whose defining feature is leniency, sometimes to the point of refusing to enforce duly enacted laws. As Conor Friedersdorf of the Atlantic has noted, these prosecutors face a dilemma regarding gun charges, given the racial disparity in gun arrests coupled with the Left’s generally anti-gun stance. Some, such as Marilyn Mosby, the former state’s attorney for Baltimore, essentially carve out a gun exception from their soft approach. But in Los Angeles, George Gascón sharply reduced the application of sentencing enhancements to criminals who used guns in committing their crimes, and in Philadelphia, Larry Krasner has a habit of diverting illegal gun-carriers to diversionary programs.

 

Ideally, the jurisdictions helmed by these prosecutors will see the light as recidivists keep making the news. Reasonable people can disagree on the best course of action otherwise. As a federalist and a fan of local control, I am inclined to say that if local voters elect a prosecutor who doesn’t prosecute gun crimes, then, well, that’s what they get — and if any higher government gets involved, it should be the state.

 

Just about any gun-crime prosecution can be federalized under current law, however, and there is growing interest on the right in having federal prosecutors step in where local progressive prosecutors refuse to do their jobs. In extreme cases, the attorney general might consider appointing special assistant U.S. attorneys (SAUSAs), from a candidate pool that could include local prosecutors frustrated by their bosses’ leniency, to temporarily boost capacity in affected areas. Federal law gives broad discretion to appoint qualified lawyers to these roles, and the positions are not bound to the normal federal pay scale. (Controversially, many current SAUSA positions are even unpaid.)

 

These ideas will not change America’s quick-tempered regional honor cultures, its racial history, or the fact that it has more guns than people. But they can significantly cool down the violence without trampling constitutional rights or prized liberties, and they offer far more opportunity for compromise than most other proposals.