Baby Steps toward a Workable Middle Ground on Guns

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Guns are sold inside of Dick’s Sporting Goods in Stroudsburg, Penn., February 28, 2018 (Eduardo Munoz/Reuters)

It is encouraging to see some gun-controllers taking halfway-sensible stances, and there is room for compromise. But there’s also reason to be wary.

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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