Gun Violence Prevention

Overview

The unthinkable slaughter of 20 first-grade children and six adult staff members in Newtown, Connecticut in December 2012 has resulted in a significantly heightened public concern for the safety of children and all citizens in our country and also among lawmakers about what should and can be done in the new Congress.  This mass killing of young children at an elementary school – months after a mass killing at a movie opening in a theater in Aurora, Colorado, and the mass killings in Tucson, Arizona that also resulted in severe injuries to former Representative Gabby Giffords – has led the nation to more fully recognize the dangers posed to the public when the common components of these shootings come together.

These incidents have in common military firearms, high-capacity clips and their use by mentally disturbed persons who easily amassed the firepower capable of quickly killing many innocent citizens involved in everyday activities and settings.  The ease with which mentally disturbed persons intent on wrongdoing gain access to arms and often amass arsenals, however, is unfortunately not much different than the ease with which criminals, gang members, underage youth, and persons subject to domestic violence protective orders, routinely evade weak national laws that govern the sale and possession of guns to obtain them and put them to use.  The public alarm over more frequent and horrific mass shootings has also brought new focus on the extraordinary human toll that takes place every day in the United States due to misuse of guns.  The Centers for Disease Control estimate that on average 87 persons are killed and an additional 196 persons shot and injured every day in murders, assaults, suicides, accidents or by police intervention, in our country.  Over 100,000 are shot each year and over 31,000 die. U.S. rates of per capita gun violence have exceeded those of any comparable nation. 

Status

A special administration task force led by Vice-President Biden was appointed by President Obama shortly after the Newtown, Connecticut killings. The task force  met with a broad range of stakeholder organizations including the ABA over a three week period culminating on January 15, 2013 with the issuance of its far-reaching report, “Now Is The Time: The President’s Plan to Protect Our Children and Our Communities by Reducing Gun Violence.”  Four top priority legislative reforms were recommended in the President’s report, to:  (1) end the gun show and private sale exemptions from background checks, and strengthen implementation of current background check reporting; (2) enact a new federal crime for straw purchases of firearms; (3) enact a new federal ban on military assault weapons and high-capacity ammunition clips; and (4) pass legislation to support state and local steps to improve security at schools.

Congressional action has been focused in the Senate thus far in the 113th Congress. The Senate Judiciary Committee held hearings on gun violence prevention legislation on an accelerated schedule beginning with the Senate Judiciary Committee’s first hearing of the 113th Congress on January 30, 2013, titled “What Should America Do About Gun Violence?”  The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights held a hearing on February 12, 2023, titled “Proposals to Reduce Gun Violence:  Protecting Our Communities While Respecting the Second Amendment.”  The full Senate Judiciary Committee held a final hearing on February 27, 2013 on the Assault Weapons Ban of 2013.   

Key bills regarding each of the President’s priorities were introduced in the Senate and moved forward to Senate Judiciary Committee approval. Senator Patrick Leahy (D-VT) introduced S. 54, the Stop Illegal Trafficking in Firearms Act of 2013, bipartisan legislation that would prohibit knowing purchases of firearms in order to deliver them to persons who disqualified from purchasing or possessing them under federal law, on January 22, 2012.  Senators Kirsten Gillibrand (D-NY) and Mark Kirk (R-IL) introduced a similar measure, S. 179, the Gun Trafficking Prevention Act of 2013, on January 30, 2013.  The two bills outlawing straw purchases were combined in a substitute bill considered by the Senate Judiciary Committee in a markup session on March 7, 2013. The substitute amendment adopted without objection would create an offense that would carry a criminal penalty of up to 15 years for most cases, with a maximum 25-year sentence if the firearm is believed to be purchased for use in a violent crime.  Also, adopted without objection, was an amendment offered by Senator Chuck Grassley (R-IA) to address safeguards when law enforcement employs straw purchases in sting operations.  The amended bill was approved 11-7.

Senator Chuck Schumer (D-NY) introduced S. 374, the Fix Gun Checks Act of 2013, legislation to require background checks on all gun sales and expand the National Instant Criminal Background Check System, on February 25, 2013.  On a party-line vote, the Committee approved an amended version of S. 374 on March 12, 2013.

Senator Barbara Boxer (D-CA) introduced S. 146, the School and Campus Safety Enhancements Act of 2013, legislation to authorize $40 million for school security grants and the establishment of hotlines or tiplines for reporting potentially dangerous students and situations.  The Judiciary Committee approved a substitute version of S. 146 incorporating accountability and anti-fraud provisions advocated by Senator Grassley on a 14-4 vote on March 12, 2013. 

Senator Dianne Feinstein (D-CA) introduced S. 150, the Assault Weapons Ban of 2013, legislation to prospectively limit the availability of military assault weapons and ammunition feeding devices that can accept more than 10 rounds of ammunition, on January 29, 2013.  The bill goes beyond the 1994 law to require background checks on the sale and transfer of existing semi-automatic guns and to ban the future sale of existing magazines containing more than 10 rounds.  The Senate Judiciary approved S. 150 on March 14, 2013 on a party-line vote 10-8 vote after defeating amendment offered by Senator John Cornyn (R-TX) to exempt from the ban individuals living along the southern U.S. border, those living in rural areas, and domestic violence victims who have obtained a protective order.

Following action by the Senate Judiciary Committee, Senate Majority Leader Harry Reid (D-NV) combined three of the four key bills into a package bill, S. 649, the Safe Communities, Safe Schools Act of 2013, which he introduced on March 21, 2013.  S. 649, however, does not include provisions of S. 150, the Assault Weapons Ban of 2013. 

The Senate voted April 17-18 on nine amendments to S. 649.  By unanimous consent, 60 votes were required for adoption.  Only two amendments were adopted.   The Senate votes were as follows:

A substitute background check bill offered by Senators Joe Manchin (D-WV) and Pat Toomey (R-PA) was defeated on a 54-46 vote;

The GOP substitute bill offered by Senator Chuck Grassley (R-IA) to address mental health records in the NICS system and to reauthorize school safety, mental health and crime prevention programs was defeated on a 52-48 vote.

An amendment offered by Senators Leahy and Collins (R-ME) to make it a federal crime to knowingly purchase a gun on behalf of ineligible persons – a “straw purchase” – was defeated on a 58-42 vote.

An amendment to require reciprocity between states in recognizing concealed-carry gun permits was defeated on a 57-43 vote.

The assault weapons ban bill, S. 150, offered by Senator Diane Feinstein was defeated on a 40-60 vote.

An amendment to exempt veterans from certain mental health-based prohibitions on gun purchases was defeated on a 56-44 vote.

An amendment to prohibit future production and import of ammunition magazines holding more than 10 rounds was defeated on a 46-54 vote.

An amendment to withhold five percent of Community Oriented Policing Services funding from states and local governments that release information on gun owners was adopted on a 67-30 vote.

An amendment to expand mental health and substance abuse programs was approved on a 95-2 vote.

Following the votes on these nine amendments, the Senate moved on to other business without a final vote on S. 649, which may be brought up again for further Senate consideration if political circumstances change.

A very large number of comparable and unrelated bills dealing with gun policy have been introduced in the past few months in the House of Representatives.  There is no indication at present that the House Judiciary Committee will hold hearings or that any action on these bills will proceed in the near future in the House.  The main focus for potential action in the House is H.R. 1565, the Public Safety and Second Amendment Rights Protection Act of 2013, introduced by Representatives Peter King (R-NY) and Mike Thompson (D-CA).  H.R. 1565 is similar to the Manchin-Toomey compromise provision considered in the Senate in addressing strengthening of background check requirements for private commercial sales of guns and providing incentives to states to improve background records provided to the NICs system.   H.R. 1565 currently has 186 cosponsors.  Proponents are pushing toward a goal of 218 cosponsors in order to bypass the Committee process and move it directly to full House floor consideration via a discharge petition. 

Congress acted at the end of 2013 on legislation to reauthorize the 1988-enacted Undetectable Firearms Act.  The Act bans the manufacture, sale, transfer or possession of firearms that do not contain any metal parts sufficient to be detectable by standard metal detector technology used at airport and public buildings.  On December 3, 2013, the House of Representatives by voice vote passed H.R. 3626, a bill introduced on December 2, 2013 by Representative Howard Coble (R-NC) to extend the Undetectable Firearms Act of 1988 for 10 years.  The Senate passed H.R. 3626 by unanimous consent without amendment on December 9, 2013.  President signed the bill into law on December 9, 2013 as Public Law No: 113-57.  

Key Points

The ABA believes that the Congress should take responsible action to prevent future mass shootings and to reduce the toll of everyday gun violence by acting on common sense legislative steps to strengthen laws to screen gun purchasers, prosecute gun traffickers, and limit availability of high-capacity military weapons.  The ABA urges Senators to support S. 649 and S. 150 because: 

S. 649 would close glaring loopholes in the background check system that allow criminals and other prohibited persons to evade current law and obtain gunsThe background check system is the only systematic way to stop felons, domestic abusers, the seriously mentally ill, and other dangerous people from buying firearms.  Since its creation in 1998, the National Instant Background Check System has worked well, resolving over 90 percent of checks instantaneously and blocking nearly two million gun purchases by prohibited buyers. But key loopholes give these prohibited purchasers easy access to guns.  

S. 649 would require background checks for the 40 percent of sales that are currently exempt.  In more than 40 states, criminals and other prohibited purchasers can avoid background checks by buying handguns or long guns from unlicensed “private sellers”—often at gun shows or through anonymous online transactions—who are not required by federal law to conduct them.  An estimated 6.6 million guns are sold each year without a federal background check.  The background check system is also missing many relevant records, particularly records of individuals who are prohibited due to serious mental illness. Nineteen states have submitted fewer than 100 mental health records. S. 649 would close these loopholes and strengthen mental health reporting.

S. 649 would not result in a national registry of gun owners or guns. The federal government is expressly prohibited from maintaining a national registry of gun owners.  The government does not collect or retain information about gun purchasers when conducting background checks. The FBI is required to destroy any record of a suc­cessful background check within 24 hours.  Licensed gun dealers are required to keep a record of the sale for twenty years. These records are essential to enforcing the background check law and help law en­forcement trace guns to their purchasers when they are recovered in violent crimes. Dealers have been keeping these sales receipts for more than 40 years while protecting gun owner privacy without incident.  

S. 649 would make straw purchases of firearms – one of the most common ways criminals obtain guns – illegal. ATF has identified straw purchases as the single most significant factor in illegal gun trafficking, accounting for nearly a third of all firearms involved in federal trafficking investigations. In many places, criminals are more likely to obtain their weapons through straw purchases than at gun shows. These straw purchases are regularly used by criminals, criminal gangs and persons disqualified by age, such as the individuals involved in the mass killings at Columbine High School.

S. 150 would reduce availability of military assault weapons and high-capacity ammunition clips, the means too often used to carry out mass killings at our nation’s schools, universities, business and public settings.  Banning the manufacture of military-style assault weapons and high capacity ammunition magazines is a necessary step to reduce the firepower currently available to civilians.  These weapons are favored by mass shooters, gang members, bank robbers, and international gun traffickers.  High-capacity ammunition magazines—whether used in assault weapons or semiautomatic pistols—are the common thread that have run through every major public mass shooting from the massacre at a McDonald’s in San Ysidro, California in 1984 that left 21 dead and 19 wounded to the horrific tragedy last December at Sandy Hook Elementary School that left 20 young children and six adult educators dead.  

S. 649 and S. 150 are fully consistent with the Second Amendment right to bear arms as articulated by the U.S. Supreme Court in the landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008), and they that do not unreasonably impinge on gun owner traditions and ordinary uses of firearms. In Heller, the Supreme Court held for the first time that the Second Amendment protects the right of a law-abiding, responsible citizen to possess a handgun in the home for self-defense. However, the Court made clear that the right is not absolute and does not protect the right to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S. 570, 626-27 (2008). The Heller decision identified several examples of gun laws it considered “presumptively lawful,” and noted a list of types of regulation – including limits on gun ownership by felons and the mentally ill and, relevant to assault weapons and high-capacity ammunition clips, regulation of dangerous and unusual weapons used for military action – the constitutionality of which the Court did not question.

ABA Policy

The first ABA policy related to gun violence, adopted in 1965, supported amending federal law in a number of respects to address interstate sales of firearms as were involved in formerly unregulated mail-order purchases, including the rifle used by Lee Harvey Oswald to assassinate President Kennedy. These reforms were later enacted as key provisions of the Gun Control Act of 1968, the principal federal law regarding firearm sales, transfer, and possession, which are still operative to date. They include:   mandatory licensing of dealers in interstate commerce of firearms; prohibiting sales to felons, fugitives, persons under indictment, adjudicated mental incompetents, and minors; and restricting sale of firearms to residents of the state where they are purchased. The ABA also called for controlling commerce and importation of large caliber weapons and firearms.

The ABA has repeatedly reaffirmed and expanded its recommendations for strengthening the 1968 Act in the decades following. As a result, the ABA supports reforms that would prohibit sale and possession of certain types of firearms, such as cheap, foreign made handguns (1973); limit availability of assault weapons and high-capacity ammunition feeding devices to the military or law enforcement organizations  (1989 and 1993); and strengthen the National Instant Check System background check data base to include other public records such as court orders and relevant records regarding mental health status bearing on eligibility to purchase firearms (2004).  In 1975, 1983, 1994, and 1996 the ABA adopted additional policies supporting amendments to the Gun Control Act of 1968. These amendments would:

  • Require background checks for all purchasers of firearms, including for purchases at gun shows and for private, nondealer sales.
  • Prohibit sales, transfers, and possession of firearms by persons convicted of violent misdemeanors, including persons convicted of domestic violence and child abuse offenses or subject to a protective order
  • Prohibit interstate sales by unlicensed persons of ammunition and firearm components

 

 

Updated as of:

January 2014

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Contact

E. Bruce Nicholson
Senior Legislative Counsel
Governmental Affairs Office
American Bar Association
740 15th Street, NW
Washington, DC 20005
Phone: (202) 662-1769
bruce.nicholson@americanbar.org