A closer look at the 'Common Sense' gun laws

I’m not an asshole, at least I don’t try to be, but sometimes my posts can come off a bit snarky at times. I blame it on the NY’er in me and my sometimes failing attempt at humor, at least that’s what my loving wife calls it.

The reality is that I try to be as open as possible when it comes to other’s positions, but lately it seems as if all that happens in ‘discussions’ is an inevitable breakdown in communication which usually leads to such name calling as: Liberal Lunatic, Teabagger, etc..  Once that occurs, civil discussion goes right out the window.

Now as we get ready to close the book on 2015, and move into the last year of the President's term, It is anticipated that he will make a move to bi-pass Congress and begin enacting some form of gun control through Executive Action, which is a topic for another day.

So I decided that I would try and take a revised look at this whole ‘common sense’ gun law thing and explain the reasons why I believe this is not realistic.

So what exactly are the new ‘common sense’ gun laws that folks on the left are proposing?

1.        Re-authorize the Assault Weapons Ban
2.       Stricter background checks
3.        Close the gun show loophole
4.        Denying guns to folks on the terror ‘no fly’ list.
5.       Ban large capacity magazines
6.       Ban fully automatic weapons

I’m even willing to go out on a limb and throw in the old stand-by:

1. No one is trying to confiscate your guns

For the record, I spent twenty-two years in law enforcement. I tend to be one of the folks that believe in the law and, more importantly, that our laws should be enforced. So you would think that I would be in favor of these ‘common sense’ gun laws, but I’m not and here is the reason why.

The Assault Weapons ban of 1994 restricted the manufacture, transfer, and possession of semi-automatic assault weapons except for: a) those already in lawful possession at the time of the law's enactment; b) 660 rifles and shotguns listed by type and name; c) permanently inoperable, manually operated, or antique firearms; rifles unable to accept a detachable magazine of more than five rounds; d) shotguns unable to hold more than five rounds in a fixed or detachable magazine; e) and those made for, transferred to, or owned by the U.S. government or a U.S. law enforcement agency.

The ban had outlined specific cosmetic features that would classify a firearm as an assault weapon. For example, rifles and shot guns could not have folding stocks, pistol grips, bayonet mounts (my particular favorite, it was just a small little hunk of metal for crying-out-loud), flash suppressors or threaded barrel designed to accommodate a flash suppressor (why, what was so inherently wrong with trying to cut down on muzzle flash?). The bill also went so far as banning an attachable grenade launcher. (Really? Another obscure little hunk of metal bites the dust).

The problem is that the ban defined the term ‘semi-automatic assault weapon,’ which is commonly shortened to assault weapon. Semi-automatic firearms shoot one round with each trigger pull. It was sort of a political shell game, because the term assault weapon was also commonly used to refer to some military weapons. The similar, but more technical accurate assault rifle, referred to military rifles capable of selective fire (Fully automatic, semi-automatic, and burst fire). What they didn’t tell you was that these weapons are considered Title II weapons and were already regulated by the National FirearmsAct of 1934 and Firearm Owners Protection Act of 1986. Neither the original ban, nor its expiration, changed the legal status of automatic firearms.

The reality is that the Assault Weapons Ban should be referred to as the Spooky Weapons Ban, because it is consistently portrayed in the media that way. Essentially, if it looks evil then it is evil. Unfortunately, it is tantamount to slapping a Lamborghini emblem onto a Prius and claiming it is a sports car.

Now, I can understand this confusion with the public. The fact is that our president doesn’t even understand it. After the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, President Obama referred to the weapon used as being fully automatic and he also seems to think that there is no apparent difference between assault weapons and machine guns. Likewise so does Hillary Clinton, who in 2008 called for sensible regulations to “keep machine guns away from folks who shouldn't have them” and has continued to champion for more restrictions. I guess our much vaunted former Secretary of State hasn’t heard of the National Firearms Act of 1934.

Interesting enough, after the recent terrorist attack in San Bernardino, Gail Collins, of the New York Times, said that "the San Bernardino murderers were wielding assault rifles, with which they were able to fire an estimated 65-75 bullets in rapid succession." Collins also said that these assault weapons are "the armament of choice for mass shootings." The truth is they aren’t, as you will see in a moment. Collins was factually incorrect on both issues. So if the politicians and the press get it wrong, you can understand why the average citizen is confused.

How exactly did the much touted original ban workout? Well, not so well. Several academic studies, including the NRC, determined that the ban showed no clear impact on gun violence. The fact is that the pre-ban use of these types of weapons was rare to begin with. Their position was that, should the ban be reinstated, that  “its effects on gun violence would likely be small, and perhaps too small for reliable measurement, because rifles in general, including rifles referred to as ‘assault rifles’ or ‘assault weapons’, are rarely used in gun crimes.” A position which I can personally attest too, based on my career in law enforcement.

So, if a new ban won’t work, perhaps stricter background checks would. Ok, I’m going to take a step out onto the ledge here and say “psst….. I agree”. Okay, get up off the floor, it isn’t that shocking. In fact, I think a lot of folks would say that they feel as if there should be more stringent checks. The problem here is who is going to do it and what will it encompass? Right now, each state has their own criteria. I agree that should be amended, but you have to be intellectually honest and admit that the federal government doesn’t exactly shine here. Consider for just a moment that some of the 9/11 hijackers overstayed their visas. The Boston Marathon bomber, Tamerlan Tsarnaev, was known to the FBI and was even being investigated for a triple homicide. One of the San Bernardino shooters, Tashfeen Malik, who came here on a K-1 visa and was fully vetted, but the address she gave in Pakistan was non-existent. Neither her, nor her husband, had any criminal record nor were either of them on any terrorist watch list. Now granted, while these are notorious examples, they still serve as a reminder that simply saying that people are ‘checked’ doesn’t really mean a lot. Let’s not forget that the agency you would think would be able to be the keeper of records, the Bureau of Alcohol, Tobacco and Firearms, doesn’t exactly have a stellar record of being able to track guns used in their own sting operation.

But let’s just say that we somehow came up with an all-powerful, all-knowing, federal agency that could handle it. What should be on it? Or maybe we could come up with a list of those who shouldn’t be on it. Persons arrested for violent felonies? Yeah, that’s a good start, but wait, should it be arrested for or convicted of? What about the man (or woman, in this PC world we live in) who beats up/ threatens their spouse. That’s kinda clear cut, except when the spouse is lying. Believe me, it happens a lot. So should that person lose their firearm? Some on the left believe this doesn’t happen, but it does. Who decides when they get it back? Maybe if they are acquitted, that sounds good. But wait, what happens if the spouse decides to retract her allegation? If she / he says they lied, then the person should get their firearms back, right? What if she / he is lying about lying? This also happens, a LOT.

What about mental health? Oh wait, they are already excluded. Yeah, you say, but that’s not working. Okay, I see your point. Let’s create a database so we can flag them. Hold on, can’t do that, federal privacy laws. Wait, you mean that the same federal government that calls for more in-depth background checks won’t allow mental health to be included? Yep.

Let’s take those wild and wacky Texans for example. You know that radical right state that seems to love everything bigger and better. Over one million folks a year buy a gun in Texas and get the required background check. The checks look at a person’s criminal history, but not always their mental health record. You see, in Texas, court ordered commitments or guardianships must be reported, but, according to both Texas and federal law, information about a person’s emergency mental health detentions / warrants, protective custody orders, or drug / alcohol rehab services cannot be made public for a background check.

Well that sucks.

But realistically, how much impact would that make?

Well, if you were the victims of Jared Loughner, James Holmes, Adam Lanza, Aaron Alexis, Nidal Hassan, Dylann Roof, or Robert Dear, a lot. You see, none of them should have had weapons, which is of little consolation to the 72 dead and 113 injured.  

So what new common sense law would have prevented it? Sadly, none.

You see, medical records are kept private to encourage folks to get help, which is a great idea, except when they don’t. Unfortunately, the mental health community believes that any new laws could do more harm than good and they tend to vociferously object to the inclusion of those records. In a way it makes sense. Most people will suffer from a mental ‘issue’ in their lifetime, whether it is the death of a loved one, marital problems, or financial issues. The majority of people sort it out and move on, a small minority don’t. The mental health community will tell you that we should be very wary of stigmatizing the many, in an attempt to stop the few.

Kind of odd that you always hear the NRA being blasted for saying something similar, yet no one objects when it comes from the mental health community. I guess they have a better lobbing group.

Well, it doesn’t seem that we are any closer to coming up with a better system, so let’s move on to what many believe to be the real problem: The Gun Show Loophole.

I so want to make this a drinking game, but I’m afraid that I’d be too boxed, in too short a period of time, to actually be able to breathe on my own. Here is the truth: there is no gun show loophole. Despite what politicians and the media claim, existing gun laws apply just as much to gun shows as they do to any other place where guns are sold. Since 1938, persons selling firearms have been required to obtain a federal firearms license. It doesn’t matter whether a dealer sells from a storefront, a room in his house or a table at a gun show, the rules are the same. The dealer must get authorization from the FBI for the sale. The truth is that firearms are the most regulated consumer product in the United States, the only product for which FBI permission is required for every single sale.

So what’s the issue? Well, it stems from private sales. In some states, individuals do not have to run a check. You might think that is odd, but let’s just say my wife falls in love with my old .38 S&W revolver. I am pretty sure of her criminal history, as well as her mental health background, and she has the proper license to possess it, so do I really need to do a background check before I give it to her?  

Now many believe that this loophole is a really big thing and they cite some impressive numbers like “25-50 percent of the vendors at most gun shows are unlicensed dealers.”

Holy crap, call out the National Guard!!

Whoa, hold on, wait a moment, I’ve been to a lot of gun shows. This is one of those trick questions, or rather a trick statement (pay attention, you’ll see this again).

You see the number might be correct, but it’s the terminology that is the problem. They use the generic term ‘vendor’ to promote their claim. Unfortunately, for those of you, like me, who have gone to gun shows, it is more often than not that you have to wade through table after table of ‘vendors’ selling:  Candles, Cookies, Jerky, Books, Knives, Lights, Coins, Stamps, Surplus Military Gear, and an assortment of other crap that makes you wonder why they just don’t call it a flea market. In fact, an NIJ study once concluded that gun shows were such a ‘minor source of criminal gun acquisition’ that they were not even worth reporting as a separate figure.

Damn, this isn’t working out well. Let’s move onto something we can all agree on, denying folks on the terror ‘no fly’ list.

Last night the president asked congress to pass legislation that would strip anyone who was on the terrorism ‘no fly’ list of the ability to purchase a firearm in the United States. Senator Dianne Feinstein has also proposed a bill that would prohibit anyone, whose name appears on the list, from buying a firearm. A lot of folks are claiming that makes sense, after all, no one wants a terrorist to be able to buy a gun.  I mean how controversial could this be? If they have been placed on the ‘no fly’ list, surely they pose a significant threat and should be banned from owning a weapon. Right?  

I see you nodding your head in agreement. You have much to learn my little padawan.

First, we need to establish some basic information about the ‘no fly’ list, which is a component of the FBI’s terror watch list. The list, which came about after the 9/11 attacks, was founded on good intentions, but we know all about the road that is paved with those. The truth is that the ‘no-fly’ list is an unmitigated disaster. While there are many on the list that are connected to terrorism, nearly half of the names belong to people who don’t.

Wait, how is this possible you’re asking?

Well, like I said before, it started out with the best of intentions, but government seems to always find a way to screw things up, even when they aren’t trying. In the case of the ‘no fly’ list, some would believe they are trying.  

Take for example Stephen Hayes, a senior writer at The Weekly Standard. Mr. Hayes was added to the list simply because he booked a one-way trip to Istanbul for a cruise, and then returned to the U.S., a few weeks later, via Athens. Hardly grounds for someone to lose their right to own a firearm, but Mr. Hayes is a contributor on Fox so maybe…. No, perish the thought. How about priests, nuns, students and peace activists? Heck, in 2003 the New York Times railed against the Bush administration regarding the list, stating that some had been on the list simply for their liberal views. When President Bush left office the list contained nearly 50,000 names. Under the Obama administration this mangled, bureaucratic mess contains over 700,000. Not hearing much out of the NYT now however.

The truth is that all it takes is for the government to declare it has reasonable suspicion that someone could be a terrorist. In fact, it doesn’t even take the government. An anonymous source can make the claim.

The problem is that the list contains names, not identities, and has led to any number of misidentifications and confusion. As a result, innocent people, with no connection to anything remotely terror related, have found themselves smack dab in the middle of a nightmare. To make matters worse, there is no easy way to have one’s name removed from what amounts to a secret blacklist. I am certain that there are a number of folks who don’t even know they are on the list. Hell, former Senator, Ted Kennedy, and Congressman John Lewis were on the list. I won’t even begin to go into the details of the 18 month old child who was removed from a flight because she was on the list.

Under the Feinstein bill, those on the list would have their 2nd Amendment rights denied. Now there are some that say that our 2^nd Amendment right is not absolute, and they are correct. Under the current law felons, fugitives, drug addicts and domestic abusers are prohibited from purchasing firearms. The sticking point is that those folks listed above are entitled to due process, before that right is taken away, a luxury not afford to those on the ‘no fly’ list. All that would be necessary is to have your name pop up on a list, because someone in the government said, without any probable cause, that it should be there.

Oh, and remember what I said before about the ‘no fly’ list being a component of the FBI’s terror watch list? Well then this should make your head spin. It’s been revealed that, in the course of an Inspector General investigation, the names of seventy plus members of the Department of Homeland Security, Transportation Safety Administration, appear on the terror watch list. Do they have actual ties to terror or are they simply there by accident? I don’t know, but apparently neither does the TSA. If you couple this information along with the fact that OIG agents were able to get weapons past screening points in 95% of their exercises and it doesn’t exactly instill confidence in me to fly anytime soon.

I don’t know about you, but I thought this was going to be easier. I think I need a drink.

Let’s move on to banning large capacity magazines. Surely that’s something that shouldn’t be too controversial, right? Obviously, you’ve never loaded a magazine before. This matter sort of falls under the whole ‘spooky’ thing. Think about this for a moment. I am inclined to go on a shooting rampage, but the law says I can’t have a magazine that holds more than 10 rounds (7 rounds in New York). Damn, well there goes that rampage, said no one ever. Did you miss the part where I said 'I was inclined to go on a shooting rampage'? Do you really think that if I were limited to a 10 round magazine that I would somehow be less of a threat?

This is kind of a two-fer, and includes banning fully automatic weapons. First let us consider the weapon. The overwhelming majority, and I mean like 99.+% majority, involve semi-automatic weapons, not full auto. Why you ask? Well, because the overwhelming majority of folks that have the money to purchase full auto are really not the type that go out and commit crimes. So, let’s deal with the semi-automatic. It doesn’t matter whether you have ten rounds in the magazine, or thirty, or one hundred, you still have to pull the trigger to fire each round.  I once heard a reporter say that a particular ‘assault weapon’ could fire a staggering 800 rounds per minute. Sounds completely diabolical, where do I get one?

Again, this is the trick statement. While a particular weapon might be able to fire 800 rounds per minute, does the gun we are talking about have this ability? In the case of that reporter, the answer was no, it did not. Well, why not? Because the gun being talked about was the spooky semi-automatic gun. The 800 number is the cyclic rate, which is the technical rate of fire. Under mechanical conditions, at full auto, it can, but in semi-auto it’s not even remotely close. You would have to fire more than 13 rounds per second, without stopping, to achieve this number. I don’t know about you, but I have done more than my fair share of shooting and my trigger finger gets sore long before I ever hit this mythical number, and nowhere near in a one minute interval. You would also need twenty-six, 30 round, magazines to achieve this. Soldiers in Afghanistan don’t even carry that much ammo.

While we are on the topic of full-auto weapons I should let you know that, while they are capable of firing that way, the VAST majority of people who shoot, or have shot them, will tell you that almost no one does. Why? Well, if you are paying for your own ammo, the bill racks up pretty quickly. Add that to the fact that full-auto ain’t worth shit if you are trying to hit an actual target, hence the motto ‘spray and pray’. So realistically, just because it can, doesn’t mean you will. In my experience, the 3 round burst is the better choice.

So why shouldn’t we ban large capacity magazines? I guess the real question is why should we?

To be fair, this is a personal thing. I don’t like to reload; frankly it’s a pain in the ass, or at least a pointer finger. In the grand scheme of things, if I am so inclined to commit a heinous act, it won’t matter to me. I can reload from three 10 round magazines almost as quickly as I can fire from one 30 round. The average shooter will probably be a bit slower, but at that point it’s almost academic.

So where does that leave us? Well, no closer to a resolution, but I at least hope you have seen things in a different light.

Oh wait, I almost forgot my add-on, the old no one is trying to confiscate your guns story.

You know, there was a time when that wasn’t true. In fact it was actually only a couple of days ago. The New York Times said as much in their editorial. They are not the first and they certainly won’t be the last. To be clear, the word is not used, that would be bad optics. Gun confiscations rarely go over well, just ask those who witnessed it in my previous post. So they use passive words like surrendering for the good of all, or they issue notices that your weapons are now illegal and you need to turn them in. It’s the ‘rose by any other name’ syndrome.

But is the idea of gun confiscation really the manifestation of some right-wing nut job seeing government conspiracies behind every corner? Unfortunately, the answer is no.

I am reminded of the old adage: Once is a mistake. Twice is a pattern. Three times is a habit.

In 1861, President Abraham Lincoln signed the Confiscation Act, authorizing federal troops to begin confiscating weapons in preparation for military re-conquest of the South.

In 1890, at the height of the American Indian relocation effort, U.S. Troops, confiscated the weapons from the Sioux at Wounded Knee. After they were disarmed, the troops shot and killed nearly 300 of them.

In 1941, President Franklin Roosevelt used the attack at Pearl Harbor to justify the mass confiscation of guns, and other property, from people deemed ‘enemy aliens’ all over the United States.  After the confiscation, the disarmed individuals were rounded up and placed in concentration camps.

Most recently, in 2005, in the wake of Hurricane Katrina, the city of New Orleans launched a wholesale, door-to-door, gun confiscation under the declaration of martial law. Members of the New Orleans Police Department, as well as the National Guard, went door to door securing these weapons. Over 1,000 firearms were seized, and untold numbers of people, houses, and vehicles were aggressively searched in the process.  Residents, who had already suffered the hardships of the hurricane, were left vulnerable and defenseless by the government that had thus far shown they were unable to protect them.

Following the disaster, the government promised that gun confiscation would never happen again.  But the reality is that such guarantees aren’t worth the paper they are printed on during a crisis situation.  As the above shows, the guaranteed rights in the constitution have certainly not been upheld in the past, so why should one more promise prevent future gun confiscation?

Gun confiscation is an ugly term and is proving to be damning to those seeking higher office. Many gun owners are concerned, and rightfully so. There are many who feel strongly about removing firearms and make no bones about it, you only have to turn on the TV and see a whole host of pundits and politicians championing this. But even if they stop talking about confiscation, does that mean the threat is really gone? No.

Here is what I know.

Microstamping legislation was passed in California AB 1471 and signed into law on October 14, 2007. D.C. is the only other place to adopt similar legislation and is set to enforce it next year. Similar legislation is also under consideration in New York, Connecticut, Rhode Island, Massachusetts, Maryland, Wisconsin, and Illinois.

Microstamping is a ballistics identification technology whereby microscopic markings are engraved onto the tip of the firing pin and onto the breech face of a firearm with a laser. When the gun is fired, these etchings are transferred to the primer by the firing pin and to the cartridge case head by the breech face, using the pressure created when a round is fired. At face value, most people would say that’s a great idea. Sadly, they would also be wrong. There are a number of variables which make this issue problematic from a law enforcement standpoint: a) Discarded brass, such as that from a firing range, could be misused, providing false evidence and increasing the workload for investigators. b) Firing a large number of rounds will eventually wear down the microstamp. c) Microstamping is relatively new, with a single source provider, and has not been subjected to sufficient testing.

The reality is that this was an end run. Rather than ban guns outright, the state of California created a de facto ban, where they simply eliminated new gun sales.  Gun manufacturers Smith & Wesson and Ruger have already stopped selling to California.

San Bernardino shows that, despite it being a direct terrorist threat, the narrative was immediately turned toward gun control. The fact that California has some of the nations’ most stringent ‘common sense’ gun laws on the books meant nothing to the two criminals who were so inclined to break the law. Gun laws also don’t mean anything to those suffering from mental illness.

For decades we have had what amounts to a revolving door justice system that has taught felons, old and young, that laws will not be enforced. It’s the same reason why a few weeks back, in New York City, Junior Regis, a member of the Brooklyn’s Most Wanted gang, with a lengthy rap sheet including robbery, was nabbed for the 2nd time in just ten days for gun possession. After the 2nd arrest, prosecutors recommended that Regis be held without bail or be given a $500,000.00 bail. Much to their surprise, the judge released Regis on $1,000.00 which he promptly posted.

To many this might be a bit of a shock, but to those of us in law enforcement, who have seen this same scenario play out time and again; it is nothing more than business as usual. Despite the incredible amount of gun laws, already on the books, the criminal justice system seemingly refuses to incarcerate offenders for them. Yet, we, the law abiding gun owners, are constantly being told, by this administration, that what we simply need to fix our gun problem is more gun laws.

In the immortal words of Rahm Emanuel: "You never let a serious crisis go to waste. And what I mean by that it's an opportunity to do things you think you could not do before."

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