Debate

Part III: The Brady Law and Its Impact

EDITOR: The Brady Law [passed by Congress in 1993] has been hailed as a major success in the effort to regulate guns. Has the Brady Law achieved its objectives? What impact has the law actually had? Which elements of the Brady Law have been the most effective? Which have been the least effective?

JAMES JACOBS: The Brady Law is merely symbolic legislation. It is completely ineffective because it is so easy to circumvent. The Brady Law does not regulate “secondary” sales; any person who buys a gun can immediately sell it to a spouse, lover, friend, or stranger without filling out any paperwork or putting the purchaser through a background check. The seller could even put a “Gun for Sale” ad in the newspaper or over the Internet, or the seller could walk into a gun show with a sign “Handgun for Sale—No Background Check.” Also, any potential gun buyer who knows that he will flunk the background check could just ask (using inducement or threat) his spouse, lover, sibling, friend, or fellow gang member to buy him a gun as a “present.” The Brady Law can also be circumvented by using phony identification that is readily available. Finally, the ineligible purchaser could steal, buy, or borrow a gun on the “black market.” These are a few observations about the Brady Law, which I discuss in more detail in my recent book Can Gun Control Work?

ROBERT SPITZER: In political terms, the Brady Law was a major success for gun control supporters, because it was enacted after a seven year struggle and despite the opposition of the NRA. In policy terms, its goals were very modest (even the NRA supported waiting periods for gun purchases until the mid-1970s). Brady did succeed in imposing a uniform national standard, whereas only about half of the states had background check provisions before 1993. By the government’s count, roughly 600,000 handgun purchases were stopped because of flagged background checks from 1994–2000 (about 2.5 percent of all handgun purchases). Of those, it is reasonable to assume that only a subset would have resulted in a gun crime, and some subset would presumably obtain a gun illegally. Thus, the statistical impact on overall crime rates is probably little, but not zero. Nevertheless, as a reasonable and low-cost effort to bar or make more difficult the ability of those who should not be able to buy guns, Brady could be counted as a success.

Less widely noted, but arguably more important, was the provision in the Brady Law that significantly increased the fees for gun dealers, so as to force out individuals who obtained dealer licenses to obtain guns at discount instead of actually becoming a dealer (the number of licensed dealers declined from about 300,000 to fewer than 100,000 during this time). The idea that the government should make it more difficult for felons, or those judged mentally unstable, to purchase a handgun seems to be a “no-brainer.” That a titanic political struggle preceded Brady’s enactment speaks mostly to the charged political atmosphere that surrounds gun politics more than to inherent problems with the idea.
GREGG CARTER: The Brady Law’s very modest effects would rise if we enacted a system of national licensing, registration, and regulation of the secondary market where about 40 percent of gun sales occur. The Brady Campaign (the largest and most important organization promoting gun control) makes both large and modest claims about the Brady Law’s effectiveness.

Its large claim is that the significant decline in gun crime in the United States since 1994 is due to the law; this is unfounded. However, its more modest claim — that the interstate flow of guns, and more particularly of guns used in crime, has declined due to the Brady Law — is more tenable. Using the firearms trace database of the Bureau of Alcohol, Tobacco and Firearms, the Brady Campaign found that gun trafficking between four source states (Ohio, Kentucky, Mississippi, and Georgia) and seven recipient states (Michigan, Illinois, New York, Pennsylvania, Missouri, Maryland, and New Jersey — these seven having had background checks before the Brady Law) was greater for guns purchased before the law than after. Implementation of the Brady Law disrupted the established flow of guns across state lines.

DEBORAH HOMSHER: The five-day waiting period for handgun purchases, one of the best-known provisions of the Brady Law, expired in November of 1998. At that time, the FBI implemented a mandatory, computerized National Instant Check System (NICS), which enabled licensed gun dealers to submit the name of the person seeking to buy a firearm and discover whether that person had a record disqualifying him or her from legally possessing the gun. The establishment of a computerized national check system had been mandated by the original Brady Law. Both the Brady Campaign and the National Rifle Association applauded the implementation of the NICS, though each expressed reservations. The Brady Campaign wanted to reinstate the five-day waiting period, and the NRA opposed a federal plan to charge a fee for every use of the NICS and filed a lawsuit to prevent the Justice Department from retaining records of those individuals who purchased guns.

In February of 1999, a bill was introduced in Congress to reinstate the mandatory waiting period, but that effort has not been successful. The Brady Campaign continues to advocate for the reinstatement of the waiting period, arguing (in a 1999 press release) that “NICS does not include some state and local police records, such as records of persons convicted of stalking, and does not include outstanding misdemeanor warrants on domestic violence or records of involuntary commitments to mental hospitals.” Furthermore, without a mandatory waiting period, “local police departments do not have time to contribute information to the background check, and gun purchasers considering crimes of passion or impulse suicides will no longer have a ‘cooling-off’ period to protect themselves or their victims.”

ROBERT J. COTTROL: As to whether the Brady Law reduces gun crime, I will await the verdict of the dueling econometricians. The Brady Law could have been made a more effective tool to reduce gun crime, however. Where are the prosecutions for the 600,000+ denials of purchases? It is a felony to fill out a firearms purchase form and falsify the required information. Some of the 600,000 were cases of mistaken identity, and others involved people who were unaware of the potential penalties for past offenses that would have made them firearms ineligible. People in these categories probably should not be prosecuted. But a non-trivial percentage consisted of individuals actively engaging in criminal activity. I believe that only a very tiny number of prosecutions has occurred. Why? What good is it to deny a felon a gun at the gun store and then let him proceed to the back alley dealer? Wouldn’t the Brady Law’s effectiveness be greatly enhanced if it were used as a tool to prosecute felons who are illegally trying to get guns?

RICHARD ABORN: The Brady Law had a number of specific goals that were clearly delineated over the many years of the struggle to pass it. To measure it against other goals is unfair to the law and wrongly casts aspersions on future gun control efforts.

Substantively, Brady was designed to accomplish three things. First, it sought to stop felons and other prohibited purchasers from entering retail gun stores and purchasing one or fifty handguns (there is no national limit, and scant few state limits, on the number of guns that can be purchased at any one time), without even a verification of the purchaser’s name, address, or background. Second, as more information came to light about the ease with which a Federal Firearms Licensee (FFL) could get federal licenses to sell guns, Brady was expanded to include a more in-depth application process and a more realistic fee structure, so that the granting of an FFL would be limited to legitimate business people.

Third, Brady was designed to be the cornerstone of a comprehensive national legislative agenda that would close many of the loopholes that its critics have implied Brady was intended to stop. Brady was not intended to be the comprehensive legislation. In fact, supporters were very careful not to make exaggerated claims about its potential. We repeatedly stated that “Brady is designed to do one thing only—stop prohibited purchasers from buying guns in retail outlets.” We were concerned that opponents of gun control (especially the NRA) would criticize Brady for not stopping gun crime, and that is exactly what has occurred.

Politically, Brady was intended to show that gun control advocates could break through the chokehold that the NRA had on Congress. Without a substantial legislative victory, we knew that we would never be able to make additional legislative progress. Measured against stated goals, the outcomes show that Brady does what was intended. With more than 600,000 stops and far fewer FFLs, it is hard to say that Brady has failed. Moreover, without the passage of Brady, there is no question that we would have lost the fight over the ban on assault weapons and the ban on large-volume clips. Should Brady have done more? Of course. Could the bill have contained more? No. Any additions to the bill may well have defeated it.

Gun control advocates should not be claiming that Brady alone is responsible for the sharp decline in violent gun crime, even though gun crime has declined faster than any other category. The causes for the vast reduction in crime will be debated for many years, and it is unlikely that any one factor will be identified as the cause. Certainly, increased sophistication about the allocation and management of police resources has played a key role. But Brady has succeeded in interrupting part of the supply chain of guns at the retail level.

JOYCE MALCOLM: As Robert Spitzer and Gregg Carter both point out, the
Brady Law has had little statistical impact on overall crime rates and at most only modest success. Some of its supporters, however, continue to claim the Brady Law was responsible for the sharp decline in violent crime over the past decade. But this decline began before the law went into effect.

Has the Brady Law achieved its objectives? It has put a background check of purchasers into operation and reduced the number of gun dealers. If, as Richard Aborn suggests, these were its objectives, it succeeded. But Aborn points out that the law was designed to be the “cornerstone of a national policy.” Interestingly, Aborn does not mention any intended impact on the crime rate. Yet the public was led to believe that the larger objective was to prevent felons from obtaining weapons and to reduce violent gun crime. It does not seem to have accomplished either. In this respect, Robert Cottrol’s comment that there have been only a tiny number of prosecutions under the Brady Law is intriguing and regrettable.

RICHARD ABORN: I wish to disagree with Joyce Malcolm’s comment that my list of goals for Brady and beyond does not contain an objective of reducing violent gun crime.

I came to the issue of gun control because of my experience as a violent crime and homicide prosecutor in the Manhattan DA’s office up until the mid-1980s. Doing that work made one painfully aware of the devastating impact that armed criminals were having on the community. The gun control movement primarily seeks to disrupt the illegal gun markets, so as to make it much more difficult for criminals to get guns. While advocates should never argue that gun control is the overall answer to violent crime, it is plausible to argue that comprehensive national controls over the distribution of firearms will have an impact on the rate of violent crime committed with guns. This is most certainly a goal; in fact, it is the most important goal.

Page 1 2 3 4 5 6 7 Next: Public Opinion & Guns Reprinted from Focus on Law Studies, SPRING 2003, Volume XVIII, Number 2, published by the Division for Public Education of the American Bar Association.

Copyright 2003, American Bar Association Division for Public Education, 541 N. Fairbanks Ct., Chicago, IL 60611.

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