Gun Control 2009

Posted 10/11/09

GUN SHOW AND TELL

New York City sent private eyes to gun shows.  What did they find?

     By Julius (Jay) Wachtel. If you’re New York City mayor Michael Bloomberg, what’s not to like? Although the Big Apple has more than twice L.A.’s population, its homicide rate is thirty-seven percent lower. That’s not a fluke: nearly ten years ago the difference was forty-one percent. And five years before that, in crazy, crime-ridden 1995 when 1,177 persons were murdered in NYC and 849 in Los Angeles, New York still had a considerable thirty-four percent advantage.

     Why the difference? Hizzoner, who happens to co-chair Mayors Against Illegal Guns, would tell you that his streets are safer because they have far fewer handguns. New York State law (Penal Code secs. 265.01, 265.20, 400 and 400.1) prohibits as much as storing a pistol or revolver at one’s home without a permit.  Licensing is administered by cities and counties, which have broad discretion to decide whether Joe and Jane can have that .44 magnum. New York City vets applicants through an elaborate process that includes an extensive background check. Those who want to keep a handgun at a place of business or, God forbid, carry one on the street must also demonstrate a compelling need, in writing.  Few such requests are granted.

     Differences in laws among the States foster a black market where guns flow from so-called “weak-law” States like Georgia to “strong-law” States like New York.  In 2007 police seized 10,444 firearms in New York State.  Of those that could be traced (about half), seventy-one percent had been sold at retail outside the State. For those seized in the NYC metro area the proportion of out-of-State guns was eighty-six percent.  Contrast that with California, where any resident with a clean record can buy a handgun without a permit.  In 2008 ATF traced 30,641 guns recovered in the Golden State.  Of those that could be traced (again, about half) seventy-three percent were originally sold within the State.

Click here for the complete collection of gun control essays

     New York City’s guns came from every State of the Union.  Four-hundred twenty originated in New York.  The top six external contributors were Virginia (358), Pennsylvania (305), North Carolina (290), and Alabama and Georgia (tied at 243 each.)  A recent study identified all but Pennsylvania as a top ten national gun source. Pennsylvania probably didn’t make the list because it’s one of the few States that requires a criminal record check for all buyers at gun shows, even if the seller is a private party.

     Interstate traffickers acquire guns in several ways.  One method is to hire residents of weak-law States to act as straw buyers.  In 2006 Mayor Bloomberg sent private undercover agents to sixty gun stores in Georgia, Ohio, Pennsylvania, South Carolina and Virginia.  Fifteen dealers were caught on camera selling guns to the male member of the pair while the female member, who openly posed as a straw buyer, did the paperwork.  Bloomberg sued. Several gun stores eventually agreed to monitor purchases with video cameras and train their staff to recognize straw purchase.  (Authorities didn’t take kindly to the gambit.  Virginia, New York City’s biggest out-of-State gun source, actually enacted a law that made stings by non-law enforcement personnel illegal.)

     Bloomberg recently turned his attention to another favored source: gun shows. Between May and August 2009 he dispatched undercover agents to gun shows in Nevada, Ohio and Tennessee, which don’t require criminal record checks for gun sales by private sellers. What they discovered was no surprise.  Nineteen of thirty private sellers sold guns to undercovers who said they would probably fail a criminal record check. One seller replied “I don’t care.” Another, “I wouldn’t pass either, buddy.”

     Actually, many unlicensed sellers seemed to be gun dealers in all but name. Several carried large inventories, said they frequented shows and bragged about their sales. Pretending to be hobbyists let them sell guns without running checks, thus making them an attractive source for criminals and gun traffickers.

     Undercover agents also approached licensed dealers to see if they would sell guns to straw buyers.  Sixteen of seventeen did.  An example shown on video depicts a male investigator picking out a gun.  He introduces a female companion as a “friend” there to do the paperwork. Without batting an eye the salesman has the woman fill out the forms.

     Shady practices were commonplace thirty years ago when your blogger was an ATF agent in Arizona.  On one occasion I traced guns recovered by Phoenix PD to an unlicensed peddler who bought cheap new handguns in quantity at local dealers, then promptly resold them at gun shows, collecting a premium because no paperwork was required. I arrested the man for unlicensed dealing; he was later tried and convicted.

     Alas, this prosecution was unusual. ATF has always discouraged gun show investigations, forbidding agents from as much as entering a show except to work a specific, pre-identified target. Bloomberg, who would do away with such restrictions, wants ATF to greatly ramp up its enforcement efforts at gun shows. But that’s unrealistic.  Shows are a locus for so much illicit activity that policing them with any vigor would quickly bring the Government into conflict with the gun lobby, whose interests are best served by denying that a problem exists. Given the political realities it’s a lot safer to look the other way.

     Bloomberg also recommends that criminal records be checked of all buyers at gun shows, not just those who purchase guns from a licensed dealer.  As was mentioned, that’s the practice in Pennsylvania.  It’s also the law in California, where all private party sales, whether in a gun show or elsewhere, must go through a licensed dealer. Expanding the rule nationwide would make it far more cumbersome for traffickers to acquire firearms in quantity. Still, regulating guns is such a hot-button topic that licensed dealers have kept mum about plugging the private party loophole even as unlicensed peddlers drain away their business.

     From his base in Gotham, Mayor Bloomberg’s taken on one of the core cultural artifacts of the far right. What happens next will be interesting to see.

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Posted 5/31/09

WHEN A PHARMACIST KILLS

States that encourage citizens to use lethal force
shouldn’t be surprised when they stretch the limits

     By Julius (Jay) Wachtel. There’s no disputing these facts.  On May 19 three robbers pulled up to an Oklahoma City drug store.  As the driver waited in the car the others donned masks and stormed inside. One waived a gun.  Three employees were present. Two fled out the back while the third, pharmacist Jerome Ersland, 57, took cover.  He pulled a pistol from his pocket and fired, striking the unarmed robber, Antwun Parker, 16, in the head.  Parker’s companion fled.  Ersland gave chase but soon gave up and returned to the store. Retrieving another gun from a drawer, he walked to where the wounded youth lay and shot him five times point-blank in the stomach.

     It was these rounds that proved the druggist’s undoing. “Here’s the ironic part,” said D.A. David Prater, explaining why he charged Ersland with first-degree murder.  “If the first shot had been fatal, we wouldn’t be here.”

     Concerns about violent crime and NRA-fed outrage about citizens who have been sued and prosecuted for shooting criminals have led dozens of States to enact so-called “Castle” and “stand your ground” laws.  They usually include three key provisions:

  • Citizens may use deadly force to repel a forcible entry or to prevent an assault or other personal crime against themselves or another person (this is the “castle” component)
     
  • Retreat is not required even if possible (this is the “stand your ground” component)
     
  • Rules apply to any place of residence or business (some extend to vehicles and the outdoors)

     The newest castle law, in Montana, was signed by Governor Brian Schweitzer (D) earlier this month.  In addition to the usual provisions there are special goodies for the “pry it from my cold dead fingers” crowd. Anyone who can lawfully possess guns may carry them openly.  The more bashful are guaranteed CCW permits.  What’s more, a companion measure declares that all guns and gun accessories, including silencers, that are made in Montana and stay in Montana are exempt from Federal regulation.  Take that, ATF!

Click here for the complete collection of gun control essays

     Back to the “OK” State. Its long-standing castle law now applies everywhere, including the great outdoors.  Even better, should a law-abiding person happen to be in a structure, tent or a vehicle when accosted, responding with lethal force is presumed reasonable unless there is proof beyond a reasonable doubt to the contrary.

     If the D.A. really intends to prosecute the pharmacist he faces a considerable challenge. Jurors will have to stand in the defendant’s shoes, absorb all that took place, then find unanimously and to a near-certainty that what he did was beyond the pale. Now, anyone who’s even vaguely familiar with policing knows that trained and experienced officers often misperceive threats when under stress, occasionally with tragic consequences.  If that’s so, what can one realistically expect of an ordinary citizen?

     That’s exactly what Ersland and his lawyer (and yes, maybe the prosecutor) are counting on. An older man who’s hobbling around after surgery gets robbed at gunpoint -- and fights back!  If the pharmacist sticks to the story that the youth was trying to get up it may be impossible to get unanimous agreement that what he did amounts to murder.

     On November 14, 2007, Texas retiree Joe Horn, 61, noticed two men break into a neighbor’s  home. He dialed 911 and was told that officers were on the way.  Instead of remaining in his home, as the dispatcher instructed, Horn got his shotgun and confronted the suspects as they left.  When they failed to heed his command to stop he shot them dead. After a great deal of controversy a grand jury declined to indict. To his credit, Horn expressed remorse. “I would never advocate anyone doing what I did,” he said.  “We are not geared for that.”

     No, we’re not.  And it’s impossible to recall a bullet.

     As for Oklahoma, the story is turning curioser and curioser.  Not only did the D.A. agree to the druggist’s release on bail, an unusual privilege for someone charged with first-degree murder, but he vigorously contested the judge’s order barring the defendant’s access to firearms. Whatever may have happened in the pharmacy, the prosecutor argued, Ersland is legally entitled to have a gun to defend himself and others.  Why, he wouldn’t even be in court had the robbery not occurred!

     “Then why did you charge him, Mr. Prater?” the exasperated judge asked.

     Technically, the prosecutor may be right.  Oklahoma’s gun laws, which score two points out of 100 in the Brady Campaign’s gun-control scale, are extremely permissive (Montana earns a whopping eight points; Texas, nine.) When States nostalgically revert to the hang-’em high rules of the wild West, letting citizens carry guns at will and leaving it to them to figure out when to squeeze the trigger, it’s no surprise that occasionally something will happen that looks like an execution. And if the dead person is demonstrably a bad guy, where’s the harm?  After all, there’s always enough slack in the system (wink, wink) to assure that the consequences to the good guy, if any, are minor.

     You think you’re confused?

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Posted 4/26/09, modified 6/19/14

AMERICA, GUN PURVEYOR TO THE CARTELS

Enforcing the weak-kneed laws that exist is hardly a solution

     By Julius (Jay) Wachtel. Concerns that Mexico is losing its war with the cartels have focused attention on the flow of guns south. In May 2008 ATF agents scored a significant victory when they dismantled a trafficking ring that supplied nearly seven hundred guns to Sinaloan gangsters. Among these were the AK-47 rifles used to murder eight Culiacan police officers and an engraved super .38 pistol that drug kingpin Alfredo Leyva was caught carrying in his waistband.

     Investigation revealed that two smugglers, brothers Hugo and Cesar Gamez got seven local residents to buy the guns at X-Caliber, a Phoenix gun store. Its owner, George Iknadosian, 47, was supposedly in on the scheme. In an unusual move, ATF chose to proceed under State law because Federal prosecutors were reportedly “bogged down with immigration cases.”  Everything seemed to be going well until March 18 when Maricopa County (Ariz.) Superior Court judge Robert Gottsfield ruled that Iknadosian, the only one of the bunch who hadn’t pled guilty, was in fact innocent.

Click here for the complete collection of gun control essays

     What was the hang-up? Charges against the dealer were predicated on his alleged possession of a “false instrument”, meaning the Federal gun sales form, ATF Form 4473.  Question 11(a) on the form must be answered “yes” or “no”:

    Are you the actual buyer/transferee of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearms(s) on behalf of another person.  If you are not the actual buyer the dealer cannot transfer the firearm(s) to you. [Emphasis present.]

Iknadosian supposedly counseled the purported buyers to check “yes,” a lie, as they were only acting as agents for the brothers. (An exception on the form allows buying guns as gifts. Go figure.)  But Judge Gottsfield concluded that under the circumstances that falsehood didn’t amount to a crime. Here’s an extract from his order exonerating Iknadosian:

    The state’s case is based upon testimony of individuals who falsified question 11a on ATF Form 4473, i.e. that they were the actual purchaser of the firearms when they were not. The court agrees with the defense that for such falsity to amount to a fraudulent scheme or artifice...the falsification has to be a material misrepresentation. In order to be material, the falsification has to have resulted in an unlawful or prohibited person obtaining the weapons.

     ATF Form 4473 is a Federal form, so the judge turned to Federal law to find out what it takes to falsify it.  Title 18, United States Code, § 922 (a)(6) forbids gun buyers from making “any false or fictitious oral or written statement...likely to deceive [a dealer] with respect to any fact material to the lawfulness of the sale or other disposition of [a] firearm or ammunition under the provisions of this chapter [emphasis added] .”  Among other things, dealers can’t deliver guns to felons, illegal aliens, juveniles, the adjudicated mentally ill and nonresidents (to keep local laws from being circumvented, persons are forbidden from buying guns outside their State of residence.)  However, the law is silent about “straw purchase,” the practice of buying guns for others.  There’s nothing in “the provisions of this Chapter” that forbids a dealer from selling guns to someone who intends to turn them over to a legally qualified possessor.

     There’s no question but that straw purchases took place.  But since the Gamez brothers and the pretend buyers were Arizona adults with clean records, and no evidence was introduced that a prohibited person wound up with a gun, the “yes” answers, while false, weren’t materially so. That view has been endorsed by appeals courts. In U.S. v. Polk, the only known case directly on point [that’s changed - see note below], the Fifth Circuit held that “if the true purchaser can lawfully purchase a firearm directly, § 922(a)(6) liability under a ‘straw purchase’ theory does not attach.”  More recently, in U.S. v. Ortiz, the Eleventh Circuit ruled that “straw purchases of firearms occur when an unlawful purchaser...uses a lawful ‘straw man’ purchaser...to obtain a firearm [emphasis added].”

     When the 1968 Gun Control Act was enacted Form 4473 didn’t ask buyers about their intentions. Lacking the political muscle to change the law, ATF got permission to insert what became Question 11(a) on the form (making clear that gift purchases were OK, of course.) This extralegal tinkering was mentioned in a footnote of the Polk decision, which pointed out that the 1991 and 1994 editions of the ATF Form 7 carried significantly different warnings. While the earlier form advised that a straw purchase was illegal when the intended possessor is ineligible to buy a gun, the more recent version made no such mention, thus leaving the impression that all straw purchases are no-no’s.  But § 922(a)(6) hadn’t changed: just like 18 USC § 1001, the general false statements provision of Federal law, it’s always forbidden only material falsehoods. And that’s where things stand today [that’s changed - see note below].

     It’s no surprise that the judge ruled as he did.  What can be done to avoid such problems in the future?

  • Federal law could be amended to prohibit purchasing a firearm on behalf of someone else. Doing so would automatically make a lie to question 11(a) “material” to the lawfulness of a sale.  (Those who wish to give a gun as a gift could buy a gift certificate.)
     
  • Exporting undeclared firearms is illegal.  Given proof of a dealer’s guilty knowledge, one could proceed with a case like Iknadosian’s as a conspiracy to violate export control laws.
     
  • Limiting the number of guns that a buyer can acquire can make the use of straw buyers cumbersome.  A few States (not including Arizona) restrict handgun purchases to one a month. That could be expanded nationally and broadened to include rifles.
     
  • Innovation is key. During a Guns to Mexico campaign in the 1970’s an Arizona dealer was suspected of procuring straw buyers to cover up sales to gun smugglers.  ATF brought in an undercover agent who lived in California so that selling him guns directly or through go-betweens would be unquestionably illegal. Convictions of the dealer and the straws held up on appeal and the Supreme Court denied certiorari.

     President Obama and Secretary Clinton have emphasized “enforcing the laws that exist.”  It’s a tired cliché that overlooks the fact that Federal firearms laws are so toothless that corrupt licensees and traffickers have little fear of discovery or meaningful punishment.  As long as the Administration keeps shying away from confronting the pro-gun lobby, the prospects for improving oversight of the gun marketplace seem bleak indeed.

Note: In U.S. v. Johnson (no. 11-10290, 5/29/12) the Ninth Circuit ruled that when a straw purchaser falsely answers “no” to question 11(a) on an ATF Form 4473, it is prosecutable as a false statement even if the real, underlying buyer is eligible to buy guns. That created a conflict between circuits. It was finally resolved by the Supreme court on June 16, 2014. Ruling in Abramski v. U.S., the justices held (5-4) that falsely answering “no” constitutes a lie to a material fact, and is thus illegal, even if the intended possessor can legally buy guns.

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Posted 4/21/09

DON’T BLAME THE NRA

 America’s gun culture exacts a toll, but it’s only a small part of the problem

     By Julius (Jay) Wachtel. In 1978 I was testifying in a Phoenix Federal courtroom against a man who repeatedly bought dozens of cheap, new handguns at gun stores and took them to gun shows, where he posed as a “collector” and, in a practice that remains widespread, sold them to all comers, no paperwork, ID or record check required. Many of his guns quickly wound up being used in crimes.

     As an ATF agent I was used to investigating such cases, but what surprised me in this instance was the presence in the spectator section of an NRA attorney who flew in specifically for the trial. In time the jury found the defendant guilty of dealing guns without a license and the lawyer disappeared.  But his shadow haunted me throughout my career.

     Now that our land has suffered the effects of a string of twisted personalities --  Presidential assassin and would-be assassin Lee Harvey Oswald and John Hinckley, Oklahoma bomber Timothy McVeigh, Jewish Community Center shooter Buford Furrow, Columbine High School killers Eric Harris and Dylan Klebold, Virginia Tech killer Seung-hui Cho, and, most recently, the murderously self-pitying Jiverly Wong and Richard Poplawski -- one might be tempted to conclude that a straight line leads from the lawyer to the madmen.

Click here for the complete collection of gun control essays

     Most of my work (I retired in 1998, after working in Arizona, Montana and Los Angeles) involved the investigation of illegal gun sales, by licensed dealers selling them out the back door, and by unlicensed peddlers selling them on the street and at gun shows.  While spending countless hours in and around gun stores, gun shows and the cultural backwaters of this other America I came into intimate contact with what is commonly called -- though I think too simply -- the gun subculture.

     Yes, those whom I met, sometimes undercover, other times not, liked guns -- a lot.  Like me, most were from the working class. Where we differed was in outlook.  As an immigrant from troubled Argentina, whose parents barely squeaked through the Holocaust, I was delighted to be in the land of opportunity. Yet the last thing these men (and a few women, as well) manifested was hope. Their invariant rallying cry -- that the unworthy got the benefits, while the hard-working got the shaft -- placed them in the lunatic extremes of the far right.  It also reflected a sense of worthlessness that made more than a few dangerous and many others candidates for a good shrink.

     No -- their concerns weren’t fundamentally about guns.  But when talking about guns, holding guns, or, best of all, firing guns, their eyes lit up and their burdens visibly lifted.  Yes, it’s pop psychology, but in my mind nonetheless true: many of these gun aficionados, both the outwardly law-abiding and the unabashedly criminal, found in their toys a sense of power and autonomy that was otherwise sadly lacking.

     Naturally, those who got famous for the worst of reasons are so beyond the pale that no one, not even an NRA lawyer, would dare stand in their defense.  But their twisted justifications, like the sniveling manifesto that Jiverly Wong used as his excuse for the Binghamton massacre, seem much more a difference in degree than in kind from the pathologies that suffuse much of America’s gun culture. Every so often another disturbed gun fanatic will come out, pistols, rifles and shotguns blazing, and a handful of innocents will die. Then after a respectful but pitifully brief interval we’ll shrug our shoulders and turn our attention elsewhere.

     Still, even neutralizing every murderous extremist would have little effect.  We’ve become so accustomed to gun violence that we seldom think about the gang members, “ordinary” criminals and otherwise law-abiding heads of household who commit countless mini-massacres year-in and year-out with weapons whose unthinkable lethality would have horrified the framers of the Second Amendment.

     That’s what’s really insane.

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Posted 3/8/09

REVIVING AN ILLUSION

Reinstating the (original) Federal assault weapons ban is a poor idea

     By Julius (Jay) Wachtel. It didn’t take long for the new man on the block to ruffle the gun lobby’s feathers.  Less than three weeks after his confirmation, rookie A.G. Eric Holder was holding a news conference to announce a major victory against the violent Sinaloa drug cartel when a reporter’s question took him in a dangerous direction.  Asked what he would do about the gun smuggling that’s been propelling Mexican drug violence, Holder let slip his intention to once again make assault weapons illegal under Federal law:

    As President Obama indicated during the campaign, there are just a few gun-related changes that we would like to make, and among them would be to reinstitute the ban on the sale of assault weapons.

     Those few words touched off a firestorm from the “pry it from my cold dead fingers” crowd and sent House Speaker Nancy Pelosi scurrying for cover.  “I think we need to enforce the laws we have right now,” she said, carefully sidestepping the quarrel.  “I think it's clear the Bush administration didn’t do that.”

Click here for the complete collection of gun control essays

     Setting aside the obvious political obstacles, let’s consider what reinstating the Federal ban would really accomplish. Enacted in September 1994, the law, codified as Title 18, USC, Sections 921(a)(30) and (31) and 922 (v), accomplished three things. First, it prohibited the manufacture, transfer and possession of certain enumerated firearms:

    (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);
    (ii) Action Arms Israeli Military Industries UZI and Galil;
    (iii) Beretta Ar70 (SC–70);
    (iv) Colt AR–15;
    (v) Fabrique National FN/FAL, FN/LAR, and FNC;
    (vi) SWD M–10, M–11, M–11/9, and M–12;
    (vii) Steyr AUG;
    (viii) INTRATEC TEC–9, TEC–DC9 and TEC–22; and
    (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12.

More broadly, the law banned any semi-automatic weapon that could accept a detachable magazine and possessed two or more of certain external characteristics, such as a folding stock, pistol grip, flash suppressor or barrel shroud. Ammunition magazines that could hold more than ten rounds were also outlawed.  In a concession that greatly complicated enforcement, existing guns and magazines could continue to be possessed and transferred without restriction.

     Manufacturers and importers shrugged. Colt renamed the AR-15 the “Sporter”, removed its flash suppressor and bayonet lug and reworked the magazine so that it could hold only ten rounds.   Soon everyone was stripping weapons of meaningless baubles and producing essentially the same guns as before. When the ban, which carried a ten-year sunset clause, came up for re-approval in 2004 it died quietly.  Even the vociferously anti-gun Violence Policy Center saw little reason to support it:

    The 1994 law in theory banned AK-47s, MAC-10s, UZIs, AR-15s and other assault weapons. Yet the gun industry easily found ways around the law and most of these weapons are now sold in post-ban models virtually identical to the guns Congress sought to ban in 1994... Reenacting this eviscerated ban without improving it will do little to protect the lives of law enforcement officers and other innocent Americans.

     Tired of deferring to the spineless Feds, a handful of States, including Connecticut, New York, New Jersey, Massachusetts and California enacted their own assault weapons laws. California’s actually dates back to 1989, when a deranged man opened fire in a Stockton school yard with a Chinese AK-47 knockoff, killing five children and wounding 29 and a teacher. Although court challenges slowed enforcement, by 2000 the Golden State’s laws banned a long list of semiautomatic pistols and rifles. What’s more, any semiautomatic gun with even one special characteristic such as a handgrip or folding stock must have a permanently fixed rather than detachable magazine, thus making it far more cumbersome to reload.  And in all cases maximum ammunition capacity is set at ten rounds.

     But do any of these laws really make a difference?  As we’ve argued elsewhere, not one takes on the most important determinant of a gun’s lethality: ballistics. There’s a reason for the lapse.  Since ordinary hunting cartridges such as the .30-06 are every bit as deadly as any so-called “military” round, setting limits on penetration and killing power
-- say, by outlawing rounds that can defeat protective garments commonly worn by police -- would make most
semi-auto rifles illegal.  Don’t believe it? According to the National Institute of Justice, the most protective (hence, cumbersome) ballistic vest normally worn by street cops, designated level III-A, is effective only against ordinary handgun ammunition:

    As of the publication of this standard, ballistic resistant body armor suitable for full-time wear throughout an entire shift of duty is available in classification Types II-A, II, and III-A, which provide increasing levels of protection from handgun threats.

    Type II-A body armor will provide minimal protection against smaller caliber handgun threats.

    Type II body armor will provide protection against many handgun threats, including many common, smaller caliber pistols with standard pressure ammunition, and against many revolvers.

    Type III-A body armor provides a higher level of protection, and will generally protect against most pistol calibers, including many law enforcement ammunitions, and against many higher powered revolvers.

    Types III [hard and heavy] and IV [harder and heavier] armor, which protect against rifle rounds, are generally used only in tactical situations or when the threat warrants such protection.

     Reducing the threat posed by semiautomatic weapons could be addressed with a point system that incorporates factors such as ballistics, cyclic rate and accuracy at range.  Only problem is, most rifle bullets cut through a cop’s vest like a knife through butter.  To afford meaningful protection we might have to ban semi-auto rifles that chamber anything beyond a .22, a round useful only for plinking. That, in a nutshell, is the dilemma that’s kept meaningful restrictions from being implemented.

     So why not simply reinstate the Federal ban?  Isn’t doing something better than nothing?  Not always.  Enacting laws that bypass the hard issues promotes the illusion that we’re doing something about violence, letting legislators take credit while leaving the gun industry free to peddle increasingly lethal hardware. As our country’s current troubles amply demonstrate, pretending to regulate is even worse than not regulating at all.  Alas, that seems to be a lesson that we’ve yet to learn.

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Posted 1/18/09

WHERE DO THEY COME FROM?

Most guns used in crime aren’t stolen; neither did they fall from the sky

     By Julius (Jay) Wachtel. Of the many distortions propounded by the gun lobby perhaps none is more insidious than the fiction that most firearms seized by police are stolen.  Although firm data is lacking, studies suggest that no more than twenty-five percent of recovered guns (and possibly far fewer) find their way to the street through theft and burglary.  Sure, some gun thefts go unreported.  On the other hand, many reported gun thefts never really took place. Gun buyers to whom recovered guns are traced frequently cry “stolen” to cover up the fact that they really bought the weapon for someone else.  Corrupt dealers who sell guns out the back door often do the same.

     In October 2002 Beltway snipers John Muhammad and Lee Malvo terrorized the nation’s capital, killing ten innocent citizens and wounding three.  Their weapon, a Bushmaster rifle (an AR-15 knock-off) was traced to Bull’s Eye, a Tacoma gun store and indoor range where Muhammad practiced his shooting skills.  Problem is, Bull’s Eye had no record of ever selling this gun or more than two-hundred others also missing from inventory. How was the dilemma resolved?  Its owner, Brian Bogelt, declared the guns stolen.

Click here for the complete collection of gun control essays

     ATF ultimately revoked Bogelt’s Federal Firearms license. He and Bushmaster settled a negligence suit filed by relatives of the shooters’ victims; Bogelt, for $2 million and Bushmaster for $500,000.  Of course, Bogelt can’t be considered a corrupt dealer as he was never charged with a crime.  As far as the rifle and other guns go, they were supposedly shoplifted while he wasn’t looking.

     In a study of gun trafficking investigations conducted between 1996-98 ATF concluded that corrupt dealers were by far the largest source of trafficked guns. That was old news to agents in Los Angeles, where fifteen of 28 prosecuted gun trafficking cases between 1992-95 involved crooked dealers who diverted from ninety to three-thousand guns each.  (In a later case, corrupt dealers in Cypress and Lake Forest, California were prosecuted for jointly selling as many as ten-thousand guns out the back door.)

     Considering the damage that a bad dealer can cause one would think that ATF strictly supervises licensees. One would be wrong.  Most of the agency’s energy is expended going after felons with guns and, to a lesser extent, straw buyers, these being far more politically correct targets than “honest businessmen.”

     When the crack epidemic of the seventies sent violence skyrocketing New York and Chicago banned handguns. While no community in the West went that far, California began tightening the screws on the gun marketplace. Its laws, now considered the toughest in the nation, prohibit gun transfers between private persons, limit handgun purchases to one per month, impose a ten-day waiting period on all gun deliveries and require that handgun buyers pass a safety test.

     Sad to say, other States lag far behind.  A majority don’t regulate guns at all. According to ATF nearly half (44 percent) of trafficked guns travel down one of several well-worn interstate corridors. It’s not a pretty picture.  “Weak law” States such as Georgia and Florida (neither has a waiting period, testing requirements or limits on the number of guns one can buy) have for decades supplied  the crime-ridden inner cities of the Northeast, with Texas, Arizona and Nevada providing a comparable service for the gangsters of L.A.

     Accumulating quantities of desirable new guns through theft is difficult and risky. There’s really no need.  All that’s necessary is to have a straw purchaser visit a gun store, display an in-State driver license and plunk down their money.  Once the Insta-Check comes through they can leave with a carload of guns in minutes.  Incidentally, that’s exactly how assault rifles purchased in Texas regularly wind up in the hands of Mexican drug cartels.

     Shouldn’t the mere fact that a private person wants to buy a dozen guns raise suspicion?  Alas, as long as dealers do no more than wink and nod, they’re free to aid and abet straw buyers at will. No U.S. Attorney will prosecute a dealer and no ATF Regional Counsel will go after their license simply because they handed over a stack of guns to a stranger.  Bending over backwards to let the gun industry maximize its profits has always been the American way. Your humble blogger will never forget the ATF memorandum sent during the height of Vice President Al Gore’s reinventing government campaign directing that field offices officially refer to corrupt dealers as “conflicted clients.”

     How can we remove dealers from the trafficking equation?

    Discourage straw purchase. Expand one-gun-a-month throughout the U.S., and not just for handguns.  Presently only three States -- California, Maryland and Virginia -- have enacted that limit. New Jersey, which is trying to become the fourth, has met concerted resistance from the gun lobby. Until all States are on board traffickers will continue taking advantage of regulatory disparities to buy guns wherever doing so is easy.

    Reform investigative practices. Instead of looking on straw buyers and traffickers as the ultimate target, investigators should use them to go after the real source of the misery: corrupt dealers.  As the writer and his former colleagues know, sending informers and undercover agents into gun stores to make purchases and elicit incriminating statements can work wonders. Quite frequently this approach has revealed other serious misconduct. In one case, which led to the felony conviction of a retailer in Carson (Calif.), undercover agents investigating straw buying unearthed a machine gun conspiracy.

    Reform regulatory practices. Thanks to Bernie Madoff and his Wall Street friends regulation is no longer a dirty word. Political change has created a window of opportunity to enhance oversight of the firearms industry. To prevent gun diversions and discourage straw sales ATF should perform intensive, quality audits of dealer records. Corrupt dealers have created pools of “clean” guns by simply not recording them when they come in. To prevent diversions inspectors should not take dealer records at face value but compare them with distributor invoices.  What goes out must also be audited. Knowing what we do about gun trafficking, there is no place for superficial inspections that only provide an illusion of control.

     “Voluntary compliance” has been the touchstone of American regulatory practice, and not only in gun enforcement. But as every parent knows, absent a credible threat of punishment, promoting self-control is a loser’s game.  It’s a lesson that America’s gun enforcers should finally heed.

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