The Brady Act: A Critique. Analyzing the Problem

Executive Summary

Gun related violence and crime is a plague of modernity where death becomes as instant as noodles. While the US democracy allows freedoms that are unparalleled in many modern states and liberal countries today, it has also deprived its citizens who are victims of gun-related crimes who are either dead or suffering family members with dear departed.

The Brady Law has been historical in its enactment as it was lobbied for years by no other than a high-ranking government official and his wife. The advocate together with a US president was victim of a gun crime that left him paralyzed for life. It took credit about the reduced possession of guns among possible criminals. Its effect on gun crime, however is contested while the advocates have not seated on their laurel as they continue to lobby for stricter gun laws. This paper will analyze the policy of the Brady Law through presentation of statistics taken from authorized bodies and studies. Relevant literature shall also be provided in order to give light to the discussion about the advantages and disadvantages of the law. Thesis statement: This paper will try to determine possible loopholes of the law and recommend a program and shall get down to the root of the problem. It hopes that readers will find the recommendation relevant in addressing or improving existing gun laws, including the Brady law. This in turn aims to influence possible development and amendments about the existing US un laws and gun law implementation.

Analyzing the Problem

The Brady Law

The Brady Handgun Violence Prevention Act or the Brady Act enacted November 30 1993 requires all gun or firearm purchasers to wait up to five days for checking of criminal history background. Firearm dealers from importers, manufacturers to dealers are mandated to comply with the law prior to transferring any firearm to a non-licensed individual. The source of firearms are called the Federal Firearm Licensee (FFL) (Bowling, Lauver, Hickman and Adams, 2006).

To make the act workable, several systems with corresponding tasks were established and these include the National Instant Criminal Background Check System or the NICS that require background check by the Federal Bureau of Investigation (FBI) or a State Point of Contact or POC (Bowling et al, 2006). Where the check failed to be completed in five days, transfer was not allowed. Some states, however, may use the background check equivalent such as the state-issued concealed carry permit. Prior to issuance of said permit, a background check has been undertaken.

The “Brady” Background

James Brady held several important positions in the government. Two of which are as Assistant to the President and White House Press Secretary under President Ronald Reagan. In March 30 1981, a mentally handicapped John Hickley Jr, said to be obsessed with Jodie Foster and attempting to impress the actress by assassinating a president, went on shooting rampage. One of those shot was James Brady. The almost fatal shooting left Brady paralyzed for life. Brady and his wife Sarah championed the bill after the assassination attempt (Taylor, 1982).

U.S. Gun Laws and the Brady Act Over the Years

The US Congress enacted in 1934 the National Firearms Act. The law regulated the acquisition and use of fully automatic machine guns, short-barreled longs guns, silencers and all forms of firearms. By 1938, the Congress passed the Federal Firearms Act mandating gun manufacturers and dealers to acquire federal license. Issuance of firearms to fugitives and violent criminals was also made a violation of law (Brady Center, 2009).

In 1968, as a response to the high profile assassination of President John F. Kennedy, Dr. Martin Luther King, Jr., and Senator Robert F. Kennedy, the Gun Control Act of 1968 was enacted by Congress. The act delineated prohibitions of gun purchase and possession banning convicted felons, fugitives from justice minors and individuals with history of mental incapacity, militiamen discharged dishonorably, and illegal aliens. Mail order of ammunitions was also banned. The 1968 law became the foundation for Federal gun laws that followed. However, prior to the Brady Law, gun purchasers only need to sign a statement attesting to the legality of his or her purchase of firearms providing wide loopholes for convicted criminals and violent persons (Brady Center, 2009). The Brady Center saw as setback when Congress passed the Firearm Owners’ Protection Act or FOPA. A high burden of proof to prosecute violations of federal gun laws was set as government must successfully prove that defendants willfully violated federal law. FOPA limited the ATF inspection of business premises. Federally licensed firearms dealers were loose on their practices and individuals without license were left on their own to sell firearms as hobby. The Brady law virtually changed the “honor system” or “lie-and-buy” system through the background check required per every purchase and transfer.

The Firearm Inquiry Statistics Program (FIST) was launched by the Bureau Statistics Program in 1995. FIST monitors and provide national estimates of the total number of applications and rejections with regards to the Brady Act or similar State laws. The FIST listed about 8.3 million applications by 2005, slightly higher than 2004’s 8.1 million. The FBI was able to process some 5 million or 60% of the firearm applications in 2005. Likewise, 3.3 million or about 40% was processed by State and local agencies (Bowling et al, 2006).

The processed background checks over a period of 12 years is shown on table below:

In effect, the table above also belies the following:

• About 1.6% of the 8.3 million applications were rejected by the FBI (66,700) and the State and local agencies (65,200) in 2005 for a total of 1,360,000 rejections.
• About 30,000 or 46% applications rejected were due to felony conviction or indictment
• Some 15% or 10,000 applications rejected were due to domestic violence misdemeanor conviction or restraining order
• About 9,575 were referred to the Bureau of Alcohol, Tobacco, Firearm and Explosives’ or ATF office denied by the NICS
• About 1,400 arrests of persons denied of firearm transfer were conducted
• 135 NICS denial cases were submitted to the attorney offices for prosecution as cases investigated by the ATF (Bowling e al, 2006).

By 2005, the report also says that about 70 million background checks were already undertaken.

Prior to the Brady Act, there already exists a law defining lawful gun issuance. The Federal Gun Control Act of (GCA), 18 U.S.C. 922 prohibits transfer of a firearm to persons:

• indicted for or convicted of a crime punishable by imprisonment of at least 1 year
• who are fugitive from justice
• using or addicted to illegal drugs or substance
• adjudicated as mentally defective or has been committed to a mental institution
• who are illegal aliens or non-immigrant visa holders
• who are discharged from the U.S. Armed Forces for dishonorable cause
• who has renounced U.S. citizenship
• subject to a court order for harassment, stalking, or threatening an intimate partner or child
• convicted of misdemeanor crime of domestic violence
• under age 18 for long guns and age 21for handguns (Bowling et al, 2006).

After the passing of the Brady Act, interim provisions the 18 U.S.C. 9222(s) were included. It was effected between February 29, 1994 to November 29, 1998 of which the NICS was developed in a 57-month interim period authorized by the Brady Act, 18 U.S.C. 922(t) (Bowling et al, 2006). Starting November 30, 1998, the NICS has been issuing immediate information about prospective transferee to licensees who contact the system by telephone or other electronic means. The process determines whether the applicant may be violating any Federal or State law.

Agencies and Processes

Some 3,000 Federal, State and local agencies have since working to conduct background checks on applicants interested to purchase a firearm or obtain a permit with regards to gun carrying. However, there are noted variations on Federal and State Law procedures that determine firearm possession eligibility.

The NICS

The NICS check as requested by licensed dealers. An alternative may include State permit from the ATF qualifying the applicant. These permits:

1.  allow a transferee to possess, acquire, or carry a firearm, and
2. where issued not more than 5 years earlier by the State in which the transfer is to take place, after verification by an authorized government official that possession of a firearm by the transferee would not be a violation of law,” (Bowling et al, 2006, p 9). Incidentally, a permit becomes a qualified alternative only after a NICS check. It was also said that many qualifying permits can be used for multiple purchases as long as it is valid. Permits are also revoked as provided for by State laws once a holder is convicted of an offense. A licensee is also required to receive a complete Firearm Transaction Record or the ATF form 4473.

Advantages and Disadvantages of the Brady Law (Pros and Cons)

The Brady Center claimed that the federal background check has prevented about 1.6 million convicted felons, stalkers, and dangerous people from legally receiving firearms. By 1994, the center also noted the decline of gun deaths from 18,000 homicides in 1993 to 13,000 in 2006. The Brady Center reported the following statistics with regards to gun-related crimes:

Source: the Brady Center, 2009

In summation, the center also reported that there are more than 100,000 people in America who are victims of murder, assault, suicide, accident, or police intervention aided by gun in the 2006-2007 period that the data was gathered. 30,896 are victims of gun violence to which 12,791 are murdered, 16,883 for suicide using guns, 642 killed accidentally, 360 killed through police intervention, and 220 died with unknown intent. Those who survived gun deaths are accounted at 69,863 of which 48,676 were attacked, 4291 injured in suicide attempt, 15m698 shot accidentally, and 1,198 shot in police intervention. For minors, there are about 20,784 American children and teens that were murdered, assaulted, suicide victims, death by accidents, or through police intervention. The number is further categorized as 3,218 died of gun violence: 2,225 murders, 763 suicides, 154 killed accidentally, 34 killed by police intervention, and 42 died of unknown intent. On the other hand, some 17,566 survive with gun injuries broken down into 12,864 injured in attacks, 494 suicide attempts, 4,165 shot accidentally, and 43 through police intervention (Brady Center, 2009).

It is difficult to point out whether the Brady law or other laws about gun use aid in the proliferation and commitment of gun-related crimes. The pro-gun and anti-gun use advocates both claim to be on the right side. The National Rifle Association of America, Institute for Legislative Action claim that the Brady Law failed to accomplish its objective to prevent handgun violence. The NRA-ILA (2009) stated that, “the Brady Act had no effect on states where the majority of violent crimes were occurring,” (P 3) of which less than 30% of violent crimes had been committed with firearms. The following table shows the percentage of violent acts and percent of murders in several states in 1993:

Source: National Rifle Association of America, Institute for Legislative Action, 2009

The statistics has been viewed by NRA-ILA as indicative of the high rate of murder in California as compared to any other state in 1993. It highlighted that the “Brady-exempt” states accounted for 63% of violent crimes of which 57% were murders. California has a 15-day waiting period for all firearm sales in retail, private, pistol or handgun. Los Angeles is seen to have the third highest number of violent crimes among the U.S. cities with 83,701 violent crimes and 1,076 murders (NRA-ILA, 2009).

New York has the second highest in rate of murders and other violent crimes as indicated by NRA-ILA. New York City has its own licensing system on top of the Brady Law but with the record high of 153,543 violent crimes. It has about 1,946 murders. California and New York are two of the original 18 “Brady-exempt” states. Their gun-related crimes figure a total that is much higher than the total of 29 states. Both also have more murders that the total of the 28 states originally subject to the 5-day wait (NRA-ILA, 2009). The other “Brady-exempt” cities in 1993 are Chicago that totally banned handguns, Detroit, Baltimore, St. Louis, Kansas, Milwaukee, and Oakland. The NRA-ILA also claimed that prior to the Brady Law in 1993 there were 24 states that imposed the delay of handgun purchases. The practice is said to have no known effect on crime. California was at that time imposing a 15-day wait on all firearm transfer but already with a 58% violent crimes rate and 44% murders rate indicated as higher than the rest of the country. In addition to indications that states that delayed purchase of handguns had higher crime rates that those that released transfer immediately, it was also noted that the many states subjected to the Brady Act’s five-day wait already had history of low crime rates (NRA-ILA, 2009).

The NRA-ILA (20089) argued that the waiting period does not prevent criminals from obtaining handguns which pointed out that the law and its process could not keep handguns out of the reach of dangerous and irresponsible persons. Advocates of the Brady Law, however, claimed the law prevent around 40,000 dangerous and irresponsible persons from obtaining handguns per year (Jacobs and Potter, 1995).

ATF reported in 1992 that only 7% of armed career criminals obtain licensed guns (ATF, 1992). This period, however, is notably way ahead than the passing of the law.

Setting Goals and Objectives

The goals and objectives of this case study are to:

• Establish possible stumbling blocks of the current gun laws of the United States
• Factors that affect the increase of gun-related crimes
• Determine possible actions that legislation and policy-makers need to consider in future gun law amendments / enactments
• Possible public initiated campaigns to lessen gun-related crimes.

As already mentioned earlier, it is quite difficult to the establish the stumbling blocks of gun laws as well as implementation of Federal and State laws about gun acquisition and use. Since gun laws may vary in interpretation and implementation among States, there is an expected variation of federal gun laws even after the establishment of the Brady Law.

Factors in the Commission of Crime

Crime at most is un-expected but presence of weapons such as firearms is said to have stimulating effects (Turner, Simons, Berkowitz and Frodi, 1977). The study further established that firearms violence is a social problem but widespread availability, guns’ lethality, and the impulsivity of gun use added to the high rate for its cause of death and crime. Weapons increase the instigation of aggression in aroused and uninhibited individuals. Weapons stimulate aggressive behavior by classical conditioning processes as learned from associations between aggressive acts and weapons (Turner et al, 1977).

The Brady Center suggested that guns at home, work and school add to the risk of gun crime commission. They estimated that about 193-250 million guns are scattered all over the U.S. which could roughly translate to t least one gun for every man, woman and child in the United States. About 43% of households with children have guns according to a study conducted by the center in 1998. One in every ten households with children has a loaded gun while there is an unlocked or hidden gun for every eight family homes. The belief that a home is safer with a gun in it led to the rise of gun purchase for home protection and said to have been exploited by gun lobbyists (Brady Center, 2009).

The Brady Campaign pointed out that 77% of workplace homicides were committed with firearms. Murder was the leading cause of injury-related death for women at work. Employers also claimed that 60% of disgruntled employees threatened to assault or kill senior managers in a 2005 survey. Workplaces that allowed guns are 5-7% more often become the site of workplace homicide against workplaces banning guns. About a dozen workplace shootings occur each year while car burglaries are source of availability of guns in the black market as 28% of stolen guns were taken from parked cars (Brady Center, 2009).

Curbing Gun Proliferation

Illegal gun trafficking has been considered by the Brady Campaign as crucial to gun-crime prevention, claiming that, “If we make it harder for criminals to get guns, there will be fewer gun violence victims killed and injured,” (Brady Campaigns, 2009, P 2). A 3-point plan was proposed by the Brady Campaign to stop or reduce firearms getting to the hands of probable criminals:

1. Strengthen law enforcement through tools that help crack down corrupt gun dealers as well as curb illegal gun trafficking. The ATF is seen to lack tools needed to enforce current laws as Congress is urged to repeal legal constraints that limit the capability of the ATF. Dealers are seen as the force behind the illegal gun market and that new tools are needed to help state and local enforcers to fight gun traffickers. The ATF is said to have recognized the role of corrupt dealers in gun trafficking but severe limitations of the ATF funds and power to regulate licenses so that the Department’s Inspector General admitted that the lack of inspectors at the Bureau would take the Bureau 22 years o accomplish its current inspection task on gun dealers (Brady Campaign, 2009).
2. Background checks must be conducted to all gun sales. This step suggests that four out of ten sales are made by unlicensed dealers which inevitably would not undergo background check at all. The proposal insists on background check application on all gun sales “wherever they occur,” (Brady Campaign, 2009, P 5). The “how” of this matter is as impossible to answer as any other illegal activity which could not be verified at Federal or State levels since these dealers themselves are “unlisted” and without license. How the Federal or State law enforcers could encroach on these illegal activities is another question that the Brady Campaigners would seriously need to deal with. This provision fails at all counts in insisting “no background check, no gun, no excuses” since there is no trace of application nor the intent to apply for all illegal gun sales.
3. Stop large-scale gun sales. The provision proposed to stop large-volume gun sales that supply traffickers, but this is another proposal that is easiest said than done. “Straw purchases” are inevitable and one of the challenges that has been plaguing the ATF and the law enforcers. The Brady Campaign highlights the need for Congress to limit the number of guns a person can purchase. The national limits should be passed by the Congress. The Campaign proposes that a person who buys about a dozen guns already has the intention of reselling to probable criminals on the streets (Brady Campaign, 2009).

Gun Control Challenges

Noonan (2006) suggested that gun control is a complicated tangle of legal, political and public health issue further aggravated by culture and regional biases. He noted how critics focus on the bias of the Brady Act against law-abiding gun buyers and its failure to address the bigger issue which is the bad guys acquiring weapons illegally. The contention came to a halt after a study published in the American Journal of Preventive Medicine found that local background checks noted to be optional and used only by some States, was more effective that the federal background check mandated by the Brady law. Local level check assures a 27% lower firearm suicide rate. It also reduces to 22% the homicide rate among adults aged 21 or older. One of the authors of the study – Dr. Peter Layde – suggested that the better local check is made more effective by the additional information and details which may not be available at the federal level such as mental health and domestic violence issues. About 50 states use the NICS, 17 use the state-level checks, and 12 perform additional local-level checks. While the NICS database has a complete information on fugitives from justice, felony indictments and convictions, dishonorable discharges and other related information, critical data such as restraining orders and commitments to mental institutions may be left out (Noonan, 2006). Layde was further quoted to suggest that the local level check may mean substantial reduction in suicide and homicide cases linked to guns or firearms although cost and burden may be laid on state or local authorities.

Policy or Program Design

Background check which is mandated by the Brady Law may be effective in the identification of lawful applicants for gun purchase. It does address lawful individuals who may have the intention to protect their families in the purchase of guns but does not directly impacts on the problem which is the proliferation of illegal guns among possible criminals.

An intervention approach needed is to clearly identify how to address illegal guns from reaching users. This system needs to target the root of ammunition or firearm existence: the production and manufacture of guns, therefore, program approach is needed. The policy has been laid out to control gun proliferation through the enactment of gun laws, prohibitions and most recently the Brady Law that mandates background check. Background check, as already pointed out in the previous discussion succeeded in the reduction of possible gun-related crimes but not substantial enough to merit even the advocates’ contentment.

Clear Data on Gun Production, Existence and Quantity

A program that addresses these loopholes as already mentioned is needed in order to make the gun laws and prohibitions more effective: a program that identifies the source, quantity and movement of guns that are manufactured or entering the shores and jurisdictions of the United States of America.

Target Population

The target population of this program is limited to manufacturers and importers of firearms and ammunitions, thereby, much more manageable as compared to the whole citizenry of the USA.

Client Selection

The client selection is also limited to producers or manufacturers and their importing counterparts. Through strict implementation of existing laws about licensed manufacturers and dealers as well as monitoring of business entities engaged in the manufacture and importing of firearms and ammunitions, there is an immediate identification of the clientele.

Program Components

The components of the program are law enforcement bodies that include the ATF, the Federal and State law enforcers, but much more will be expected from the local government units where business entities may be operating. Through consistent enforcement of laws that require declaration from manufacturers and dealers, there must also be a system that actually monitors actual production and sales which has been proposed y the Brady Campaign. The Brady Campaign, however, failed to indicate how “illegal guns” or illegal sales could be monitored, failing to identify the role of manufacturers or importers in the process. Actual and serious State presence and monitoring in all manufacturing and importation sites should be implemented in all States, regardless of interpretation or adaptation of the Brady Law and earlier Federal gun laws and regulations. By imposing on manufacturers, they become responsible in the distribution of their products as well as the legality of their end buyers or consumers.

Job Description, Skills and Training Needed

The staff or inspectors to be employed for such program should be capable of team work with clear understanding of their job purpose: to monitor and account the manufacture and importation of firearms. The inspectors must be experts in identifying firearms types, authorized to conduct spot-checking, and knowledgeable about the distribution and dealership systems to easily track down where or how firearms reach legible and legal end-users as well as the illegal ones.

Action Plan

The resources needed in the program may be substantial and needs Congressional appropriation. But for the meantime, it is possible to maximize existing government bodies, officers and employees in the Federal and State levels. The ATF is a key agency as they are authorized to conduct the aforementioned tasks on inspecting manufacturing and importing business entities. This is a much more limited number as compared to dealers. In fact, they are much easier to identify due to size of the operation and need for production, storage and logistics facilities. Movement is also one of the main factors that could easily place the government at an advantage over manufacturers and importers.

Monitoring Plan

Various private studies and surveys as well as media initiated information gathering helps in almost all public and private projects that have an impact on a group of people. Gun control definitely is one of them. This program may benefit in the initiative of the mentioned entities in the monitoring and gathering of the project implementation. However, much is needed from the concerned agencies in order for the project to have substantial effect. Through effective implementation, updated and extensive storage of information in database, as well as clarity and reliability of the reporting process, monitoring of the project is half done. The contribution of the public and private entities that may provide actual observation as well as researched studies would add value to the monitoring process. Therefore, the monitoring focus shall be on the extensive implementation of the program, factual and timely content of the database, and usefulness of data. Active participation of all concerned groups should be considered in the process in order to continuously have a vigilant citizenry who will help serve as eyes and ears of governmental projects such as gun control.

Evaluating Outcomes

Evaluating outcomes of a program entails the opinion as well as actual results in a given period. There are untimely opinions at most as not all sectors are favoured in the proposed program. Such sectors include businessmen financers and their backed politicians and lobbyists. In most instances, these are a small group, nevertheless, not to be taken lightly as they may are almost always in power, perched up in governmental positions. But the actual increase or decrease of gun crime will always speak for itself. While it may not be easy to identify the increase or decrease of legal gun movements, the objective of the program is to possibly reduce illegal gun movements; therefore, gun-related crime activities may be the direct result and data that is much needed in order to properly evaluate the program. There will not be problems with this as various entities and agencies will definitely be ready with monthly, quarterly, and annual reports with their backing statistics, observations and recommendations.

Reassessment and Review

The Brady Law and existing US gun laws and regulations currently have potent provisions in addressing gun-related violence and crimes. Implementation and interpretation of laws, however, are either flawed or taken advantage of in order to circumvent possible negative effect on some powerful groups such as gun manufacturers and importers. This group of people clearly involved in the problem are either ignored or too smart to defy the laws. The program proposed in this paper, however, will try to emphasize that loophole so that governmental leadership, policy makers as well as law enforcers will know that people do not remain ignorant beyond what they are being fed about gun crimes, gun acquisition, and their effect on society. Clearly, guns are dangerous, and to curb its proliferation means to address the source.

Reference

Brady Campaigns. (2009). “How Criminals Get Guns and How To Stop Them.” Web.

Brady Center. (2009). “Fact Sheets.” Web.

Bureau of Alcohol, Tobacco and Firearms. (1992). “Protecting America: The Effectiveness of the Federal Armed Career Criminal Statute.” p. 28.

Harris, P.W. & Welch, W.N. (2009). Criminal Justice: Policy and Planning. LexisNexis Group.

National Rifle Association of America, Institute for Legislative Action. (2009). “The “Brady Handgun Violence Prevention Act” Does It Live Up To Its Name?” Web.

Noonan, David. (2006). “The Science of Gun Control; Local background checks are more effective at reducing suicides and homicides than federal checks.” PERISCOPE; HEALTH MATTERS; Pg. 17 Vol. 151 No. 25 ISSN: 0028-9604.

Bowling, M., Lauver, G., Hickman, M., and Adams, D. (2006). “Background Checks for Firearm Transfers, 2005.” Bureau of Justice Statistics Bulletin.

Taylor, S.J., (1982). “Hinckley Hails ‘Historical’ Shooting To Win Love.” New York Times, 1982.

Jacobs, James B. and Kimberley A. Potter. (1995). “Keeping Guns Out Of The Wrong Hands: The Brady Law And The Limits Of Regulation.” The Journal of Criminal Law and Criminology, Northwestern University School of Law, Vol. 86, No. 1, 1995.

Turner, C., Simons, L., Berkowitz, L., and Frodi, A. (1977). “The Stimulating and Inhibiting Effects of Weapons on Aggressive Behavior.” Aggressive Behavior 3, 355-378.