Try Enforcement Before “Reform”

posted on July 27, 2023
Minnesota Gov. Tim Walz (D)
Minnesota Gov. Tim Walz (D) signing additional gun-control laws May 19, 2023.
Aaron Lavinsky/AP

Seeing that “gun control” is an unpopular term, anti-gun organizations have styled themselves as “gun-reform” advocates in recent years. Here, the term “reform” implies that U.S. gun laws are somehow insufficient and must be altered.

Contending that the nation’s current gun laws are inadequate is, at best, presumptive and, at worst, disingenuous. The truth is, no one even knows how the gun laws currently on the books might perform because these laws are so lightly enforced.

Consider the cornerstone of the U.S. federal gun law regime: the Gun Control Act of 1968 and its prohibition on firearm possession by certain categories of individuals. Found at 18 U.S.C. 922(g), this federal law prohibits convicted felons, fugitives from justice, illegal aliens, those who have been formally committed to a mental institution and others from possessing guns.

The penalty for violating this statute is severe. Illegal firearm possession by a prohibited person is punishable by up to 10 years imprisonment.

Further regulations concerning the transfer of firearms from Federal Firearms Licensees (FFLs or gun dealers) are designed, in theory, to help enforce these prohibitions. A person buying a firearm from an FFL fills out ATF Form 4473, which asks the buyer if he falls into one of the prohibited categories. This form is then kept on file with the gun dealer.

Again, the penalties for lying on this form are severe. Lying on a Form 4473 is two different crimes. It is unlawful for a person to “make any false or fictitious oral or written statement” to a dealer “with respect to any fact material to the lawfulness of the sale.” This is punishable by up to 10 years in prison. It is also a crime to “knowingly make any false statement or representation with respect to the information required by this chapter to be kept in the records of [an FFL].” Violators face up to 5 years imprisonment.

To hear prominent gun-control advocates tell it, one of their crowning achievements was the enactment of the Brady Handgun Violence Prevention Act in 1993. This legislation requires gun dealers to consult the FBI’s National Instant Criminal Background Check System (NICS) to see if a buyer falls into any of the prohibited categories prior to transferring a firearm.

The result of these combined measures is a convoluted scheme that burdens law-abiding Americans’ right to access firearms, purportedly in a noble effort to catch the bad guys who would misuse firearms.

However, one look at the prosecution data concerning those who lie on Form 4473 suggests that encumbering the law-abiding is this scheme’s real primary function.

The longstanding indifference toward enforcing existing gun laws goes straight to the top.

In September 2016, the Department of Justice Office of Inspector General published a report titled, “Audit of the Handling of Firearms Purchase Denials Through the National Instant Criminal Background Check System.” The audit noted that “The FBI processed more than 51 million NICS transactions from 2008 to 2014,” and that “The FBI denied 556,496 of these transactions.”

However, the report went on to point out, “Between FY 2008 and FY 2015, an eight-year period, ATF formally referred 509 NICS denial cases that included 558 subjects to USAOs for possible prosecution. The USAOs accepted for consideration of prosecution 254 subjects (or less than 32 subjects per year).”

That was less than a 1-in-2,000 chance of being prosecuted as the result of a NICS denial.

Justice Department data obtained by The Washington Post suggests prosecutions for lying on Form 4473 were up during President Donald Trump’s administration for the years 2018-2020. However, the paper also noted, “the odds of being charged for lying on this form are virtually nonexistent.”

This is not to suggest that anywhere close to 100% of individuals denied by NICS should be prosecuted. For one, NICS is imprecise. Each year, thousands of individuals have their NICS denial overturned on appeal. In 2020, that number was nearly 7,000.

Further, in the wake of the U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen (2022), there is a strong Second Amendment argument that some of the existing federal prohibited persons categories are invalid or should be pared back. These may include non-violent felons, those who use controlled substances and those subject to certain civil orders.

Some of these questionable categories will overlap with judicious use of prosecutorial discretion. Aside from being dubious on Second Amendment grounds, nearly all Americans would agree that federally prosecuting an otherwise-law-abiding state medical marijuana card holder for gun possession or lying on Form 4473 is a waste of resources.

However, according to the 2020-2021 NICS Operational Report, in 2020, there were nearly 93,000 denials of individuals who met the federal definition for convicted felon. It’s reasonable to deduce that among this sizable number were more than a few violent offenders who would make legitimate candidates for prosecution.

The longstanding indifference toward enforcing existing gun laws goes straight to the top.

Following the 2012 shooting at a school in Newtown, Conn., President Barack Obama tasked then-Vice President Joe Biden with leading his legislative effort against gun owners. In early 2013, then-NRA-ILA Director of Federal Affairs Jim Baker met with Biden to discuss the administration’s gun-control efforts, and Baker pointed out the government’s dismal record on prosecuting those who violated existing federal gun laws.

According to an account of the meeting published by The Daily Caller, the vice president responded, “regarding the lack of prosecutions on lying on Form 4473s, we simply don’t have the time or manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately.”

Biden’s opposition to enforcing existing federal gun laws proved prescient—as far as his own family was concerned. The president’s son, Hunter Biden, who has admitted to using crack cocaine, is facing allegations he lied on a Form 4473 when he purchased a firearm through a gun dealer in 2018, a period Hunter described in his autobiography as “nearly four years of active addiction.”

Part of the problem with lack of enforcement is that we have some evidence from the rare instances where existing law is vigorously enforced, by targeting those who actually misuse firearms, can have a significant impact on violent crime.

In 1997, the Richmond, Va., U.S. Attorney’s Office (USAO) initiated a program called Project Exile. The effort aimed at “taking advantage of stiffer bond rules and sentencing guidelines in federal court” to federally prosecute every instance of certain types of gun crimes, including “felons with guns.” A July 15, 1998, report on Project Exile from the Richmond USAO stated, “these efforts appear to be stemming the tide of violence, with homicides for the period November 1997 through May 1998, running more than 65% below the same period a year ago.” The document went on to add, “Because of the demonstrated results in just one year of sustained effort, the U.S. Attorney’s Office is committed to continuing Project Exile indefinitely.”

Before many prominent Democrats lost their minds on crime, this effort to leverage federal law to remove criminals with guns from vulnerable communities had bipartisan support. In a Jan. 14, 2013, piece for The Washington Post, Sen. Tim Kaine (D-Va.), a member of the Richmond City Council at the time Project Exile was implemented, acknowledged, “The most successful step we took was implementing Project Exile… The program helped drive down Richmond’s homicide rate by nearly 60% within a few years and was celebrated by groups on both sides of the [gun] debate.”

According to FBI data, national violent crime and homicide rates have increased since reaching a multi-decade low in 2014—with the homicide rate jumping nearly 50% from 2014 to 2020. While the elevated rates of recent years have not reached the peak violent crime of the early 1990s, there’s much to suggest that robust enforcement of existing federal gun laws could help turn this unwelcome tide. That’s because some of the jurisdictions that drive the homicide rate have been captured by forces seeking to undo America’s law enforcement and criminal justice systems, in part by neglecting to vigorously prosecute those who misuse firearms.

Consider Philadelphia, where George Soros-backed District Attorney Larry Krasner has presided since 2018. In 2013, the city saw 246 homicides. By 2021, that number had more than doubled to 562.

A September 2020 press release from the U.S. Attorney’s Office for the Eastern District of Pennsylvania “detailed ten murder cases in which the defendant was on the street because of overly lenient plea deals given out by the DA’s Office.” A March 2021 article in The Philadelphia Inquirer explained, “Thousands more people are being arrested for carrying guns illegally. But their chances of being convicted in court have fallen by nearly a quarter.”

In October 2022, the Pennsylvania House of Representatives Select Committee on Restoring Law and Order issued a report explaining, “blinded by the goal of implementing progressive policies at any cost, DA Krasner has contributed to a catastrophic rise in violent crime at the expense of public safety.” The committee pointed out the elevated dismissal rate for Pennsylvania’s Uniform Firearms Act violations in Philadelphia.

To ensure enforcement of existing gun laws, in 2022, the Republican-controlled Pennsylvania House passed legislation to create a task force to prosecute felons in illegal possession of firearms. The sponsors explained, “The sole task of the [task force] is to review every arrest of a prior-convicted felon in possession of a gun (which is both a state and a federal crime) for prosecution.” This year, the Democrat-controlled Pennsylvania House neglected this important legislation targeting criminals, but passed three gun-control bills that would further burden the law-abiding.

With such brazen indifference to enforcing current gun laws, while at the same time promoting ever-more gun control, gun-rights advocates would be justified in concluding that the anti-gun project is more about diminishing rights than promoting public safety.



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