Gun Control for Criminals

By Kevin D. Williamson

Thursday, September 16, 2021

 

Gun-control advocates some­times complain that, when it comes to guns, it’s the Wild West out there. And they are right — but not in the way they think they are.

 

There is lots of law for the law-abiding. There is practically no law for the lawless — and few consequences for lawbreaking.

 

There isn’t anything about voting in the Bill of Rights, but the right to keep and bear arms is right there in the text — no extraction from some dodgy penumbra required. But exercising that constitutional right requires a little administrative work, if you are a law-abiding type. You need government-issued photo ID, and the information on the ID has to be correct — having your last address on your driver’s license after you move will not fly. You have to fill out some paperwork, including sworn statements to the federal government, the falsification of which is, on paper, a serious crime. Your immigration status will come up. When the paperwork is done, you will be subjected to a federal background check, during which time you can just cool your heels while Wash­ington gets around to deciding whether you still have your civil rights. In the past year or so, I’ve had background checks clear in as little as a few seconds, I’ve had checks that went days and days, and I’ve had checks that were never approved, even though I am eligible. Why the variability? No one knows.

 

The occasional boneheaded Democrat will say: “We should make it as easy to vote as it is to buy a gun.” If some Republican state were to take them up on that — “You can wait a while for me to do this background check, which I may not finish if I don’t feel like it, in which case, tough!” — Democrats would sue. They would literally make a federal case out of it.

 

It takes a little work to acquire a gun legally. It’s damned near impossible to get prosecuted for acquiring one illegally.

 

There are three broad categories of crimes that U.S. police and prosecutors — particularly those in big, Democratic-controlled cities — rarely prosecute with success and often fail to prosecute at all. (1) Illegal possession, including possession by a person prohibited from owning a firearm because of a prior felony conviction. (2) Straw purchasing, meaning using a person with a clean record to buy a firearm on behalf of someone prohibited. (3) “Lie and try,” falsifying information on federal background-check paperwork at a gun dealer.

 

Chicago, where murder rates remain persistently high, is the poster child for the first of these categories, to such an extent that the Trump administration stepped in with Operation Legend to help beleaguered Illinois manage some of its gun crime. Illinois police seize tens of thousands of firearms every year, but only around 8,000 people a year are arrested in Illinois on gun charges, according to the Center for Criminal Justice Research, Policy, and Practice. The vast majority of those arrests (72 percent) are simple possession cases, with another 22 percent being for the use of a gun in the commission of a crime and 6 percent for illegal discharges. Those thousands of arrests typically produce only a little more than 1,300 convictions, mostly on felon-in-possession charges.

 

Possession cases are relatively easy to bring to trial, because they involve a simple charge: Either you had the gun or you didn’t, and either you were legally permitted to have it or not. But thousands and thousands of those cases get dismissed every year. According to the Chicago Reporter, felony gun cases are dismissed by Cook County courts more than any other kind of charge. In the 2006–13 period surveyed by the paper, more than 13,000 such cases were dismissed, with the number continuing to grow by the year. The Cook County state’s attorney’s office says that in most of these instances, the case was thrown out for Fourth Amendment reasons — the firearms were discovered and seized by police in a way that would not stand up in court. The problem is poor policework.

 

Shootings with four or more victims are commonplace in Chicago, but, apparently, nobody can figure out how to prosecute them. As the Chicago Sun-Times runs the numbers, Chicago has more than 500 mass-shooting victims for every conviction in such a case.

 

None of this should be a surprise.

 

More than half of those arrested for gun-related crimes in Illinois already have a prior criminal conviction, and in more than half of those cases it is for a violent or gun-related crime — felony drug charges account for only 26 percent of those convictions.

 

Among those with no prior convictions, a substantial share have prior arrests. But with no prior convictions, almost all of them are eligible for a diversion program for first-time offenders.

 

In Illinois, an offender with two or more felony convictions found to be in possession of a gun can be charged as an “armed habitual criminal” and face a six-year mandatory minimum and up to 30 years of total time in prison.

 

Illinois has some pretty stiff laws on the books, but writing laws is the easy part — the hard part is done by police and prosecutors, by the criminal-justice bureaucracy and allied social-services agencies. In Illinois, these are failing — starting with the police, but also everyone from prosecutors to parole officers.

 

Illinois is a dramatic case, but there are others that are not radically different — some a little better, some a little worse. Eventually, somebody has to ask why we’re getting only one or two convictions for every hundred guns police pull off the streets.

 

That brings us to our second category: straw buyers.

 

One of the problems is that many of the people who are responsible for putting those guns into the hands of convicted criminals are people police and prosecutors don’t want to see thrown in prison — straw-buyer cases produce a lot of sympathetic offenders. If you’ve spent much time in gun shops, you’ve seen it: a young woman with her boyfriend, buying a .40-caliber automatic, swearing that she is buying it for herself even as she makes it clear that she barely knows which end of the thing points forward, sometimes paying cash. The clerk will explain to her that she has to be the actual buyer, that she can’t be buying it for someone else, that it’s a federal crime to lie about this on the ATF form, etc.

 

This takes us back to Chicago: For years, the U.S. attorney in Chicago maintained, as a matter of publicly stated policy, that his office would not prosecute straw-buyer cases unless they were part of a larger organized-crime gun-trafficking investigation. (For comparison, the federal government initiates thousands of criminal tax cases each year, including criminal cases for the simple failure to file tax returns.) That has changed re­cently, after a great deal of reporting and commentary in National Review and elsewhere, and a handful of federal straw-buying cases have been filed.

 

Operation Legend produced about 500 arrests and ended when Trump left office. Now, the Biden administration is setting up a Chicago firearms task force, too. But don’t expect too much from the feds: Day-to-day crime is mostly a state and local job rather than a federal one.

 

But much of that job goes undone. A review of the data by ProPublica found that while Chicago police made some 27,000 arrests for gun possession in the decade from 2007 to 2017, they made only 142 arrests for illegal gun sales — and zero arrests for gun-trafficking or gun-smuggling. All the laws in the world aren’t going to do any good if they go unenforced.

 

Even the easiest, slam-dunk cases go unprosecuted. That’s our third category: try-and-lie cases. It is surprisingly common for people with felony convictions or other disqualifying factors to walk into an ordinary, licensed gun dealer, pick out a firearm, and buy it, filling the required ATF paperwork with falsehoods. And, too often, those sales get approved. Sometimes, they get approved simply because the data in the database are incomplete, but, more often, they get approved because the system takes too long to run the check and the application times out, at which point the retailer may, if it chooses, proceed with the transaction. Some dealers, including some of the big sporting-goods chains, won’t do that — if they don’t get an affirmation from the system, they won’t proceed with the sale. But most will. And why wouldn’t they? Lots of eligible buyers see their applications time out — as I myself have.

 

Most of the time, the people who are supposed to get rejected get rejected. But, sometimes, they squeak past. Why not try? If it works out, you get a gun. If it doesn’t work out, the consequences are likely to be nothing at all — because we almost never prosecute people for lying on ATF forms, a felony that in theory can bring ten years. I’m no Andrew C. McCarthy, but I don’t imagine it would be too hard to prove a case in which you walk into a store that almost invariably has a camera, show a valid government ID to a guy who makes a copy of it, and then sign your name on the instrument of crime. But, every year, thousands of people do just that with impunity.

 

According to an ATF briefing document obtained by CNN, between 10 percent and 21 percent of those lie-and-try offenders go on to commit a serious gun-related crime. We have the opportunity to snatch them up and put them away for ten years on an easy-to-prosecute, nonviolent offense — and bear in mind that a felony conviction is why most of them cannot buy a gun legally to begin with — but, instead, we wait until they shoot somebody to go after them, because Joe Fed is not willing to make the effort to bring these outlaws in.

 

And in cases in which the government discovers that a sale has been mistakenly approved, nobody even goes and picks up the illegal gun. They just pretend like it never happened.

 

We are constantly proposing laws to restrict firearms, such as so-called assault rifles, that are rarely used in crimes. We go to extraordinary lengths to license and control accessories such as noise suppressors, which are sold over the counter in much of Europe, where some shooting ranges require them. We engage in a lot of silly talk about “weapons of war” that are, in fact, a good deal less powerful than your granddad’s .30-06 deer rifle. And we focus almost all of our regulatory attention on federally licensed firearm dealers and the people who do business with them — because they are, by nature, easy to police.

 

Violent criminals, who buy their weapons on the black market or steal them, hardly have to notice any of that. On the off chance they get arrested with a gun they are not supposed to have, the legal odds are very much in their favor. And the people who insist we need more restrictive gun laws are often the ones who do their best to stop us from enforcing the laws we already have.

 

One might be forgiven for thinking that they are not quite serious about all this.