By Kevin D. Williamson
Thursday, April 8, 2021
Writing in the New York Times, former Brady Campaign director Dan
Gross offers a couple of useful ideas about gun policy — and one that should be
strongly opposed. President Joe Biden has, for his part, offered a couple of
unobjectionable (maybe even useful!) ideas on the same issue, along with a not-very-good nominee to lead the Bureau of Alcohol,
Tobacco, Firearms, Explosives, and Other Fun Things. The Democrats are not
batting 1.000, but this is probably about as close as they are going to get,
and we gun-rights advocates should take this opportunity to meet the other side
more than halfway, as they have moved more than halfway in our direction.
Because he apparently has learned to tell his sharks
from his bees (the former seem scarier, but you are far more likely to be
killed by the latter), Gross concedes some important truths. One of those is
that so-called assault rifles account for a vanishingly small share of gun
deaths in the United States, and theatrical public massacres account for an
even smaller share — more Americans are killed in accidental shootings
than in “active shooter” events — though they occupy a prominent place in the
public psyche. The great majority (about 60 percent) of gun deaths in the
United States are suicides — which is to say, mainly a mental-health issue
rather than a firearms-regulation issue. This is part of a larger crisis in mental-health
care that overlaps with everything from homelessness to the increase in
alcohol-related deaths. There are many things that could be done to improve
access to mental-health care, including crisis care, but piling more
regulations onto already heavily regulated firearms dealers and the people who
do business with them is not very high on the list. The BATF is many things. It
is not a health-care program.
Gross proposes more energetic investigation and
prosecution of licensed firearms dealers linked to illicit gun trafficking,
which would be a good start. He also suggests that we “clearly define what it
means to be a federally licensed firearm dealer,” which I do not think is quite
what he intended to write, in that there is no question about what it means to
be a federally licensed firearms dealer — it means having a federal
firearms-dealer’s license. What he’s trying to say is that we should pay some
closer attention to people who are unlicensed firearms
dealers, providing weapons in the black market free from the background-check
requirements. Distinguishing between those who are in effect unlicensed dealers
and private citizens who may occasionally sell or otherwise transfer a firearm
privately (as many shooters, hunters, and collectors do) will require some care
and prudence, and whatever criteria we come up with will necessarily be
somewhat arbitrary. Capping the number of firearms sales that an unlicensed
party may make in a year is the most likely way of getting there, and the
law-abiding people most likely to be inconvenienced by such a law would be
collectors. A reasonable compromise might be capping the number of handguns a
private party may sell in a year without a firearms license. Fine Italian
over-under shotguns don’t present much of a danger unless you are a pheasant or
hunting with Dick Cheney, and these and similar weapons should be low on our
priority list.
So should such instruments as “short-barreled rifles,”
which are subject to the same special, heavy regulatory regime applied to noise
suppressors and some other devices. In one of the world’s most predictable
developments, the nation’s ballistic entrepreneurs have tried to circumvent the
extra layer of regulation applied to short-barreled rifles by pretending they
are handguns, some of which have “forearm braces” that are pretty obviously
really intended to be used as shoulder stocks. That’s typical of our attitude
toward firearms, which is largely aesthetic: If a bit of plastic on the back
end of a certain firearm rests against your inner elbow, then it’s a handgun
and hunky-dory, but if it rests against your shoulder, it’s a naughty
short-barreled rifle. The case against short-barreled rifles is that they are
easier to conceal than rifles with longer barrels, which they are — but they
are nowhere near as easy to conceal as an actual handgun, and the effort to
regulate them as a special, extra-dangerous class of weapons is without merit.
The Biden administration is putting the
forearm-brace/shoulder-stock distinction at the top of its worry list even so.
That’s trivia, mainly, and not the worst thing in the world. But the country
would be much better served if somebody would remind Joe Biden that he is,
incredibly enough, president of these United States of America, and that the
nation’s federal prosecutors all answer to him, which means that he could order
them to begin actually prosecuting straw-buyer cases.
“Straw buyers” are people with clean records who buy
firearms on behalf of people who are legally excluded from doing so themselves
— an important channel for getting guns into the hands of criminals. But
federal prosecutors mostly won’t touch those cases unless they are part of a
sexier organized-crime investigation. Biden could change that — today — if he
wanted to. He could also lean on some of his allies in high-crime, Democrat-run
cities to see to it that local prosecutors vigorously
prosecute straw-buyer cases, which, at the moment, they mostly don’t.
Where Gross and the Biden administration should be
strongly opposed is in their advocacy of “red flag” laws, which would empower
physicians (and possibly other parties) to strip Americans of their civil
rights without due process. Gross writes: “Federal rules governing privacy for
health records could be modified to allow mental health clinicians to identify
those who are a threat to themselves or others, so that they could be
temporarily added to the National Instant Check System.” We already have a process
by which people can be judged mentally incompetent and a danger to themselves
or to others. That process plays out in a court of law under longstanding legal
rules governed by high standards of evidence. The medical profession has a
pretty poor record when it comes to wielding this kind of political power
(eugenics programs, etc.), and American physicians in particular have shown
that they are easily bullied into substituting political judgment for medical
judgment and social crusades for medicine. Of course there are times when the
state of a person’s mental health should prevent his buying a firearm, but the
status of a person’s constitutional rights is a legal question to which the
medical question is subordinate, though by no means irrelevant.
Yes, it would be easier if we didn’t have to respect
people’s constitutional rights. That is why we have constitutional rights
secured by a written constitution — there’s always a
convenient case to be made for suspending civil liberties and due process.
It is encouraging to see some Democrats and
gun-controllers taking halfway-sensible stances, and there is room here for
cooperation and compromise. But where the conversation really needs to get up
to speed is in the fact that advocates such as Gross and policymakers in the
Biden administration remain too particularly focused on what goes on between
federally licensed firearms dealers and the people who do business with them.
Most of the illicit trafficking in firearms in this country isn’t happening at
sporting-goods stores subject to federal oversight — it is happening out of the
trunks of cars in St. Louis and Dallas. Putting heavier regulatory burdens on
licensed dealers is not going to have much effect on that trade, although more
vigorous prosecution of straw buyers could. There isn’t a law we could pass
that would stop black-market dealers — such trafficking is already illegal.
Combating it mainly is a job for police and prosecutors, not for legislators.
Getting better police work is not going to be easy with one in three Democrats supporting “defund the police” projects.
It’s also not going to be easy at a time when the fight over firearms
regulation is yet another proxy battle in the wider culture war, a contest with
only symbolic victories but real casualties.
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