Hello and welcome to this special multi-part series for Day in Washington. I think like many others in this country who are LGBTQ+ and people of color, we are overwhelmed with sadness and anger over what happened in Orlando only a week ago. Frustrated with the lack of action and the feelings of helplessness in the wake of such tragedy, I decided to do what I do best –deconstruct legislation and analyze policy.
In the days and weeks to come there will be (and there already have been) many many articles and commentaries and talking heads and punditry around gun control, assault weapons, mental health conditions and background checks. Regardless of whether the disability community or any other marginalized community wants to, we will all be asked to give our thoughts and opinions on this issue. And regardless, any legislation passed WILL impact us. Emotions are high (rightfully so), but so is misinformation, agendas, and politics.
And, in full disclosure, yes, I do have an agenda: To make sure nothing like this ever happens again. To help with that I want to make sure YOU are well-informed.
WHY FEDERAL LEGISLATION
There are no guarantees in life, and policy and legislation is an imperfect tool, but it is the tool we have, and it is the tool I work with. The lack of action; the status quo that has existed for more than 10 years, has done nothing but lead to a patchwork of state laws that vary so much that it is difficult to understand what weapons are allowed where, and it has made it easier for an individual to simply cross a state border to purchase a weapon somewhere where it is easier to acquire. Background checks vary in implementation and submission to the national database, and definitions of what even IS an assault weapon only add to the confusion.
As such, the DIW analysis (and recommendation) is for Federal legislation on this issue. The inconsistency in state policy and legislation makes meaningful management and tracking incredibly difficult, and implementation or enforcement of laws currently on the books, near impossible.
Whenever the issue of gun control or legislation comes up, one of the first arguments that arises is that of Constitutionality. I want to offer some information, quoting from the Constitution itself. The First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Second Amendment says:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
I want to highlight the key difference: In the first one, “Congress shall make no law…” Our freedom of speech and religion etc is treated as an absolute, and yet we DO have limits on it, such as yelling “fire” in a crowded theater. The Second Amendment clearly states “well regulated.” Regardless of how one defines those two words (and that is where opinions absolutely differ), the fact that limitations were specifically placed on the right to keep and bear arms would seem to indicate the possibility, perhaps even the necessity of government intervention on those rights.
THE 1994 “ASSAULT WEAPONS BAN” AND THE BRADY BILL
Right now there are many versions of Federal legislation and ideas for how to address the “mass shooter problem” at the national level, and many individuals who would like to expand the effort to address the 31,076 annual deaths by firearms (homicides, suicides and unintentional shootings ) beyond just mass shooter events, which only make up less than 0.1% of firearm deaths (Note from Day:I believe this is a Center for Disease Control statistic and a Department of Justice statistic but will add the exact citations when I find them). Regardless of where you stand, there are some very specific issues that almost always come up around gun control and understanding how the pieces all fit together is critical in crafting an informed opinion. To better explore them and to avoid some of the heightened emotion around current legislation, I will start with the Federal Assault Weapons Ban (you may recognize some of the pieces from it showing up in current legislation).
The Violent Crime Control and Law Enforcement Act of 1994 (18 U.S.C. § 921) had a subsection, Title XI, called the “Public Safety and Recreational Firearms Use Protection Act. ” Subtitle A which is often referred to as the “Assault Weapons Ban,” banned the manufacture, transfer, and possession of designated semiautomatic assault weapons. It also banned “large-capacity” magazines, which were defined as ammunition feeding devices designed to hold more than 10 rounds. It was signed into law on September 13, 1994 and “expired” September 13, 2004.
The other well-recognized legislation is the “Brady Bill,” or more formally the Brady Handgun Violence Prevention Act of 1993. It required federally licensed firearms dealers (note the key restrictions as to who is required) to perform background checks on potential buyers. It created the National Instant Criminal Background Check System (NICS), a database administered by the FBI to help do these checks.
GUN CONTROL POLICY BASICS
Let’s talk legislative basics. For clarity, I have narrowed my focus down to 8 areas. When looking at any policy on gun control (using the broad/public term here rather than a technical term) there are some very specific things to examine:
- Definition. As they say, the devil is in the details. What exactly IS a “semiautomatic assault weapon.” Is it identified by name? Is it identified by specific features? How many features must it have?
- Grandfathering. I cannot think of any Federal firearms regulation that actually takes away one’s weapons (unless we’re talking criminal activity). These “bans” tend to be bans of future sales. At the state level though, Washington DC is an interesting exception and forced weapons out of the city by not allowing grandfathering. (*Correction: Although the law may have passed legislatively, the Supreme Court in Heller v. District of Columbia deemed the Firearms Control Regulations Act of 1975 as unconstitutional.)
- Prohibited Actions (i.e. things you can’t do). Because of the grandfathering, to limit the use of the already-existing firearms, additional prohibitions may be included. These are things like possession (such as requiring a license – MA does this), transportation, receipt, distribution, or sale. This could also encompass the idea of “gun-free zones.”
- Magazines & Ammunition. Some states have a magazine limitation (CA says that magazines cannot carry more than 10 rounds – as did the previous “Assault Weapons Ban”).
- Background Checks. This is part of the Brady Act. Right now the focus is on expanding this to all dealers (“universal” background checks), cross-comparisons of prohibited buyers in the National Instant Criminal Background Check System (NICS) and other “lists” such as the no-fly list, state criminal lists, mental health records etc.
- Access to Firearms. This is where we see things like California’s AB 1014, the Gun Violence Restraining Order which says that law enforcement and family members the right to request a relative’s guns be taken away temporarily (21 days up to 1 year) if they feel the gun owner is mentally ill or unsafe. Cops or family members must bring their concerns to a judge and ask for the guns to be removed.
- Research. In the 1996 Omnibus Consolidated Appropriations Bill, Congressman Jay Dickey added an amendment that said that “none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.” This may not completely ban research on gun violence but when you look back and see that the CDC lost $2.6 million (what they’d spent the year before in firearm injury research) the message was loud and clear. Although the President has acted to address this, Congress must act legislatively and also restore funding for there to be meaningful action. Researchers and health advocates have taken up a call to allow, fund, and increase firearm injury research.
- Mental Health. Although I would argue that this is mostly an unrelated issue, the general public, as well as firearm advocates are pursuing actions that will impact the population of individuals with mental health conditions and psychiatric disabilities. Despite the fact that numerous studies show that people with mental health conditions alone are not more likely to become “mass shooters”, because of stigma and stereotyping, it is perhaps the “easiest” policy route and as such, is important to examine and address.
There may be more, but these 8 points seem to be a good place to begin. Tomorrow, I start with Definitions.
*Special thanks to Ken Coppage (@Pushing_Uphill) for reminding me of this AND reminding me that the courts have had as much, if not MORE of an influence on this issue.