By Kevin
D. Williamson
Friday,
August 11, 2023
Memo to:
Mark Joseph Stern
From:
The copy desk
Re:
Errors, willful misrepresentation, general journalistic incompetence and
malpractice, etc.
Mr.
Stern:
For my
sins, your piece on “ghost guns” and a ruling by the Supreme
Court to reinstate a pertinent regulation while it is being challenged came
across my desk for editing. Because Slate—and here I mean only the
entirely imaginary version of Slate that exists only in my
mind for the purpose of this exercise and not the real Slate—has
very high editorial standards, particularly when it comes to controversial
public matters, I am afraid I cannot let this one see the light of day.
I’ll
begin at the beginning:
1.
“On
Tuesday, the Supreme Court sided against criminals who wish to purchase
untraceable guns online for the purpose of committing crimes.” This is
grandstanding bullsh-t, and you know it. The Supreme Court ruled on the narrow
question of whether the regulations in question can remain in force while the
matter is litigated. Your formulation is written to imply that the justices who
voted otherwise (and who may not endorse the regulations on the legal merits in
the future) have simply chosen to “side” with “criminals who wish to purchase
untraceable guns online for the purpose of committing crimes.” As you note
below that, the justices on either side of the vote are not obliged in this
matter to spell out their legal reasoning, and surely this kind of
schoolyard-level analysis is not what is called for here, this being—I
think!—journalism rather than a campaign speech. Maybe you should think about
writing campaign speeches, or at least admitting to the fact that you already
are writing campaign speeches.
2.
“These
guns can be purchased on the internet anonymously, without a background check,
and assembled in less than an hour.” You are begging the question. According to
the ATF regulations that were in place until the change that is now being
litigated, these are not guns. That’s the whole legal issue: There
isn’t any question that you can sell somebody a gun part, or a
dozen gun parts—a new trigger, a replacement barrel, a better-fitting shoulder
stock—without that transaction constituting the sale of a firearm under
federal law. The question is: How much of a gun can you sell before it counts
as a gun sale? That’s a real question, and the ATF’s regulatory latitude in
interpreting the statute is not unbounded as a matter of law. This
ought to be recognized somewhere in your reporting.
As for the advertised “assembly” time: The copy
desk will happily bet you $10,000 that you cannot
turn an “80-percent receiver” (as the relevant part is known) into a
functioning firearm in less than an hour, because the copy desk assumes you are
not an experienced machinist and probably couldn’t say which end jig is
compatible with the necessary router that I’m betting you don’t own. I mention
this because, contrary to what you have written, it isn’t merely a matter of
parts that have to be “assembled.” There is machining work I
involved—rudimentary work, to be sure, but it isn’t putting together an Ikea
bookshelf, either. Selling a box of parts that can simply be “assembled” into a
working firearm already is a violation of federal law. This is
something that a legal reporter ought to take into account.
3.
“They
are heavily favored by violent offenders because
they are virtually impossible to trace, and their use in the
United States has spiked by more than 1,000 percent since 2017.”
Nope. This is—focus up, now, because this part matters!—not true. I am
particularly irked by your use of the old sophomoric “here’s a link that you
can be confident supports my assertion when in fact the material linked does
not actually support my assertion” gambit, which is relied upon by writers who
believe (often with good reason) that their readers are intellectually lazy and
interested only in having their biases affirmed. In truth, we don’t really know
how prevalent the use of ghost guns in violent crimes actually is—as the
National Police Institute paper to which you link makes plain.
Here’s the relevant part:
We don’t know much about ghost guns’ use in
crimes. The 1,000-percent increase you refer to is in reported
ghost-gun recoveries by law enforcement. That isn’t
evidence of a ghost-gun crime wave—that is a change in bookkeeping practices.
Add to that the fact that even the recovery data is inconsistent (in that some
of these are the kit-made guns you are writing about while some are just
ordinary guns with the serial numbers removed) and the data are that much
farther away from supporting your claim.
4.
“Ghost
guns pose an overwhelming threat to public safety because they carve a massive
loophole into America’s (already feeble) federal gun laws.” As with the above,
there isn’t any reason to believe this is, in fact, true. Over
at Everytown, a gun-control group, they keep a
tally of ghost-gun related shootings, and their inventory adds up to 138
incidents over a decade, many of them accidental shootings and suicides. That
is almost certainly an incomplete record—see the note above about
recordkeeping—but it doesn’t document an “overwhelming threat to public
safety,” either, at least not in any obvious or demonstrable sense.
5.
“Typically,
to purchase a firearm, you must be a legal adult, undergo a background check,
have a clean criminal record, and not be under a restraining
order for domestic violence. The gun must have a serial number, and it must be
sold by a licensed dealer.” Short version: yes … but, no, no, no, no, and no.
It is against the law to buy a firearm if you are a minor or
to sell one to a minor. You most certainly may buy a firearm without a “clean
criminal record.” Millions of Americans with criminal records—misdemeanor drug
offenses, DUIs, petty theft convictions, etc.—are legally eligible to purchase firearms.
It generally is against the law for a convicted felon or a
defendant under felony indictment to purchase a firearm or to possess one, and
it is against the law to knowingly sell a prohibited person a firearm or to
otherwise provide him with one. There isn’t any law against
private sales of firearms by unlicensed parties, as you damned well know. In
such sales, which are pretty common, there isn’t any requirement for a
background check or any of the rest of it. What that means is that prohibited
buyers already have lots of options, most of them far more convenient, to
illegally put their mitts on a firearm than breaking out the drill press and
building a firearm at home.
That being so, it should be noted that there
isn’t any law against privately manufacturing firearms, and there isn’t any law
that says such firearms must have a serial number, a rule that applies only to
commercial manufacturers. That doesn’t apply only to 80-percent receivers and
kits—it applies to the private manufacture of fully functioning firearms, which
is, under federal law, legal. (Of course, if you legally manufacture a firearm
you are legally prohibited from possessing, you have broken the law, which is
why homemade firearms have to be in compliance with both federal and state
laws.) As it stands, there are millions of unserialized firearms in circulation
in the United States, mostly guns that were manufactured before serial numbers
were mandated, and these change hands every day, often in private sales without
a background check, perfectly legally.
And, to be precise, there are millions of
law-abiding legal adults who cannot purchase a handgun or some long guns,
because these legal adults are not yet 21 years old.
6.
“When
you purchase a ghost gun, however, you exempt yourself from all these rules.”
This is not true, except in the sense that when you choose to walk
on the sidewalk, you exempt yourself from the rules against driving a truck on
the sidewalk. The rules regulating firearms exclude things that are not, under
the law, firearms. No amount of question-begging is going to get you around the
fact that this is the very matter that is here ultimately in dispute.
7.
“The
gun comes in a ‘kit’ that’s almost fully assembled. With the help of a YouTube
tutorial, the buyer can easily put the pieces together in about 20 minutes.” See
above: jigs, routers, etc.
8.
“Because
the weapon has no serial number, though, law enforcement almost certainly can’t
trace it back to you—which is the point.” There are lots of ways to get your
hands on a firearm without a serial number on it—for instance, by removing the
serial number on the firearm. The thing is, criminals don’t actually do that
all that often. There isn’t usually any point in it. That is because, outside
of police procedurals on television, tracing a gun back to a shooter via the
serial number isn’t the way crimes typically get solved. (Not to say it never happens.)
For one thing, most guns with serial numbers on them cannot be traced back to
the criminal, because criminals almost never buy firearms from
licensed gun shops and for that reason are not linked in any record to the
serial number on the gun. (Of the currently incarcerated criminals who were in
possession of a firearm at the time of their crimes, less than 2 percent
acquired that firearm through a retail purchase.) A stolen firearm is not
traceable to the criminal via serial number; neither is one that has been sold
privately or otherwise changed hands six times between its original retail
purchase and its use in a crime, which is not uncommon. (Tracing serial numbers
can be a pretty good way to identify straw buyers–unfortunately, very little
effort is put into investigating or prosecuting those cases.) So, while it
certainly is true that “ghost guns” are untraceable via the serial-number
process, as a practical matter, the great majority of commercially manufactured
and serialized firearms cannot be traced back to a criminal via serial number,
either. The most common way for police to connect a criminal to a firearm is
finding the firearm on the criminal, or in his home or vehicle, at the time of
arrest.
9.
“Of
the 45,240 ghost guns recovered from 2016 to 2021, only 445 could be traced, a success rate well under 1
percent.” That’s interesting—if they have no serial number, how
were they traced? That’s the kind of thing a journalist might
be interested in finding out and reporting to his readers.
10.
“These
guns are driving a surge in violent crime and neutering
the few federal laws on the books that restrict dangerous individuals’ access
to firearms.” As with your earlier non-authoritative link, this one contains
almost no actual data supporting your assertion, though it does contain some
subjective impressions from gun-control advocates. If you check the actual ATF data—and why wouldn’t you check the
actual ATF data?—things look a little different. From 2017 to 2021, there
were just short of 2 million firearms submitted by state and local law
enforcement to the ATF for tracing. ATF failed to identify the original
purchaser in about 20 percent or 25 percent of these cases, depending on the
year, mostly because of incomplete records or because the firearms were so old
that serial numbers hadn’t been required at the time of their manufacture. But
here’s an interesting thing: Out of those 2 million or so firearms, only 1.9
percent were so-called ghost guns, or “privately made firearms” in ATF-speak.
For comparison, an almost equal share, about 1.3 percent of those firearms, couldn’t be traced back to a
retailer because they originated in government agencies—i.e., they were
firearms issued to police or soldiers before being used in crimes, and
therefore did not enter circulation through the retail process. How is it that
the 1.9 percent that are ghost guns are driving a panic-inducing crime wave
while the 1.3 percent that are police guns somehow are beneath notice? Inquiring
minds, etc.
11.
“The
law also covers ‘the frame or receiver of any such weapon,’ two integral
components of a firearm.” No. “Frame or receiver” is two ways of referring to
the same thing, not “two integral components.” The ATF rule uses “frame” for a
handgun and “receiver” for most other kinds of firearms. It bears repeating: A
finished receiver is, as far as federal law is concerned, a firearm,
and already is regulated as such.
12.
“The
rule prompted a flurry of litigation as conservative lawyers fanned out through
the courts filing lawsuits before Republican-appointed judges most likely to
rule in their favor.” Wait—you’re telling me that lawyers go out of their way
to get their cases into courts they perceive to be likely to rule in favor of
their clients? Well, raise my rent!
13.
“[Judge]
O’Connor ruled that ghost gun kits contain mere ‘weapon
parts,’ which ATF has “no general authority to regulate.’” While the word
“mere” does not appear in the ATF rules, “weapon parts” is precisely how the ATF describes
what the agency purports to be regulating–the phrasing is not Judge O’Connor’s
invention. This probably is not the best use of sneer quotes by a
“journalist.”
On a
broader note, you write from the assumption that Supreme Court justices simply
make policy choices (“siding with” this party or the other
one) rather than rule on legal matters according to legal criteria—which says a
lot more about your view of the role of judges than it does, say, Justice
Clarence Thomas’ view. You know the old cliché that liars think everybody is
lying, cheaters think everybody is cheating, etc. In a similar way, people who
believe that judicial activism—judges simply imposing their policy preferences
on the country irrespective of the law—is the right and proper mode of action
for the Supreme Court also assume that everybody else thinks that way, and
complain only when the courts impose some other set of policy preferences. I
note that many of your progressive-leaning colleagues are, from time to time,
mystified when so-called conservatives on the Supreme Court come to the same
conclusion as the progressive activists; you yourself marvel at the
“unprecedented coalition” joining Roberts and Barrett with the court’s three
progressives, and you engage in some very fun Kremlinology about such
coalitions while more or less ignoring the possibility that Roberts and
Barrett—and Thomas and Kavanaugh and Alito and Gorsuch—are actually doing what
they say they want to do, which is to follow the law on the law’s own terms,
even if it produces outcomes that are other than those they would prefer as a
policy matter. I am, generally speaking, pro-cynicism, but you shouldn’t let your
cynicism blind you to more plausible and straightforward accounts of the
case.
If it
stands, the new ATF rule is very likely to make things even dumber and more
arbitrary than the status quo; for example, a hunk of metal that can be
machined into a rifle receiver may not be a firearm as far as the ATF is
concerned, but the same hunk of metal sold with instructions for machining it
into a finished receiver may be, and the ATF will consider all sorts of
subjective factors—including its interpretation of marketing
materials!—in determining whether a particular piece of metal or plastic
that can be made into part of a firearm already is a firearm in its regulatory
view. That’s going to be interesting: If an unfinished receiver is a firearm
because of the way it is marketed, then changing the marketing approach should,
logically, change the regulatory status of the object in question. That right
there is some semi-Orwellian meta weirdness. It’s also the kind of thing that
ought to interest a journalist.
Obviously,
we can’t publish this mess. Slate has journalistic standards,
after all.
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