AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
August 9-10, 1994
Task Force on Gun Violence (Report No. 10E)
BE IT FURTHER RESOLVED, That leaders of the legal profession join and work with our counterparts in the medical, teaching, religious, civic, law enforcement and other professions, to prevent and reduce gun violence, including efforts to:
1. Educate the public regarding the causes, risks and costs of gun violence;
2. Educate the public and lawmakers regarding the meaning of the Second Amendment to the United States Constitution, to make widely known the fact that the United States Supreme Court and lower federal courts have consistently, uniformly held that the Second Amendment to the United States Constitution right to bear arms is related to "a well-regulated militia" and that there are no federal constitutional decisions which preclude regulation of firearms in private hands; and
3. Promote the provision of volunteer legal research for and assist governmental entities seeking to enact or enforce laws aimed at reducing gun violence.
BE IT FURTHER RESOLVED, That the American Bar Association supports a national approach and a strengthened federal role to reduce gun violence, through the regulation of the sale, transfer and possession of firearms, and supports legislation to amend the Gun Control Act of 1968, to:
1. Expand the list of persons prohibited from receiving or possessing firearms under the Act to include persons convicted of violent misdemeanors; persons convicted of spousal abuse or child abuse; and persons subject to a protective order;
2. Require a special federal license for any person to possess a "personal arsenal" of firearms or ammunition;
3. Provide that Federal Firearms Licenses (FFL) be limited to bona fide firearms dealers and require: compliance with state and local laws; adequate business liability insurance; an annual fee sufficient to cover the costs of investigating license applications; an increased number of permitted yearly inspections; thorough background checks of employees; cooperation with criminal investigations and reporting of all gun thefts to ATF and local police; permitted gun sales to be limited to the location of the licensed premises; ammunition sales and sales of component parts of handguns to meet FFL requirements; and
4. Provide authority to ATF, or other appropriate federal agency, to regulate firearms as consumer products, to set minimum mandatory safety standards such as requiring child-safe locking devices, to issue recalls of defective products and prohibit sales of firearms failing to meet minimum safety standards, and to disseminate safety information to the public.
BE IT FURTHER RESOLVED, That the American Bar Association, recognizing the singular role of handguns in the epidemic of gun violence in our society, supports enactment of legislation to:
1. Require persons to obtain and maintain a current handgun license, with background check, age, residency, safety training and insurance requirements, in order to buy or otherwise receive transfer of any handgun or handgun ammunition;
2. Require that all handguns be registered and all newly manufactured handguns be equipped with safety features in order to reduce accidental injuries; and
3. Increase the federal tax on handguns and the tax on handgun ammunition, with the proceeds dedicated to a fund to treat the victims of gun violence and to finance educational programs to reduce gun violence.
At the February, 1994 Midyear Meeting in Kansas City, Missouri, the House of Delegates approved a resolution, presented by the Task Force on Gun Violence, which reaffirmed the Association’s policies of almost thirty years to support regulation of the use and sale of firearms in the interest of public safety and societal order. The House of Delegates instructed the Task Force to report policy recommendations further addressing the problem of gun violence, noting that the Association had last conducted a comprehensive review of the problem and recommended policy solutions in 1975. The Task Force has conducted such a review, and this Report outlines its recommendations.
Since 1965, the American Bar Association has sought to address the problem of gun violence, and to articulate policy regarding the regulation of firearms in our society. The ABA Section of Criminal Justice has five times brought forward resolutions that were approved by the House. These resolutions were primarily directed to the provisions contained in the Gun Control Act of 1968 and desired amendments. Over the decades, the Section’s leadership has addressed the issue in the context of an overall strategy to combat violent crime in our system of justice. It should be reiterated that the issue of gun violence and its proposed solutions are a critical part, but only a part, of Association policy and strategy to reduce violent crime in our society.
It is equally true that the causes of violence in our society are not limited to the problem of the proliferation of firearms and our failure to regulate them. As set out in America’s Children at Risk, a report issued last year by the ABA Working Group on the Unmet Legal Needs of Children, there is a crisis facing America’s children resulting from societal neglect of a range of serious problems.
The culture of violence in our nation, of which easy, pervasive availability of firearms plays a part, is the result of many societal factors: racial intolerance; the lack of job opportunities; poverty affecting 20 percent of the nation’s children; the increasing number of out-of-wedlock births and divorce; widespread alcohol and drug abuse; the prevalence of child abuse and neglect, particularly among our poorest children; the failure of educational institutions; and the glorification of violence in the movies and other media. All contribute to creating a culture of violence affecting our children and youths.
Many of these problems have been addressed by the Association’s Sections, Divisions, and Committees, with expertise and responsibility in that given area of law. The Task Force on Gun Violence recognizes the breadth of the problem of violence. It has been given the particular charge of addressing the role of the regulation of firearms in reducing gun violence in our society. The following are its findings and recommendations.
First, the prevalence of gun violence in our society is a grave national problem. The rate of firearms homicide, suicide, and accidental death is dramatically higher than in any other industrialized society and it is growing, particularly among our nation’s youth. Present ABA policy, reaffirmed in February, 1994, supports existing federal law outlawing sales of firearms to persons under age 21, and further supports enactment of strict limitations on possession of firearms by minors. The ABA has long supported the imposition of severe, but not mandatory, criminal penalties for conviction of offenses involving the use of firearms. However, our society’s failure to date to impose individual and business responsibility and accountability for ordinary sales of firearms makes any scheme of prevention, control, or deterrence unworkable.
The Task Force believes that the easy, widespread availability of firearms to young people in the last decade is an unprecedented, terrible development in our nation’s history. It is due, in large measure, to our failure to place responsibilities and duties on individuals and firearms dealers commensurate with public safety needs. While the ABA has steadfastly recognized the traditions of gun ownership for sporting purposes and for self-defense, there is nothing inconsistent with those traditions in requiring guns lo carry safety features to protect children, or in requiring firearms dealers to operate bona fide businesses or in requiring licensing and education of handgun owners. Personal responsibility and accountability for safety and protection of others must be required of every firearms dealer, every hunter and every parent who maintains a firearm in their home. To achieve a society in which our children will be truly safe in their daily activities, and in which all of us may be more secure, nothing less will suffice.
Second, solutions to the problem of gun violence need to take place, not only in the framework of crime policy, but also in the frameworks of public health and education policy. The Association, Bar Leaders, and individual attorneys can play a pivotal role in joining with their counterparts in the health care, education, and other professions to better educate the public about the facts of gun violence in our society. Most gun owners are responsible, concerned citizens, and will take steps to protect their children and loved ones as risks of irresponsible gun ownership are more widely disseminated through a campaign of public education similar to that conducted regarding drunk driving or cigarette smoking. Lawyers have a special responsibility, in addition, to respond to misinformation about the meaning of the Second Amendment, so that the public and lawmakers may reach a more balanced approach to regulating firearms. Consistent with Association policy, the Association should encourage voluntary efforts to assist governmental entities and lawmakers seeking to enact or enforce gun laws.
Third, the problems which necessitated enactment of the Gun Control Act of 1968 remain with us today and indeed have worsened in most respects, and the Act should be in strengthened to address Its many deficiencies.
Fourth, while the ABA and others have for decades recommended providing the resources necessary to enforce the Gun Control Act of 1968, scant resources have been provided. The result is that the Act remains largely unenforced. The Act should be amended to provide a private cause of action to enforce the provisions of the Act against those who violate it. Similarly, state laws governing firearms sale and possession should be amended to provide private, civil remedies for victims of gun violence and their families.
During the 1980's, 330,000 people died from firearm-related injuries, according to the National Center for Health Statistics, nearly five times as many Americans as those who died from firearms-related injuries in Vietnam. It is estimated that there are seven non fatal firearms-related injuries for every fatality resulting from such injuries. (Source: Cost of Injury in the United States: a report to Congress, 1989).
According to a report released in 1993 by the United Nations Children’s Fund called “The Progress of Nations,” nine out of 10 murders of young people in the industrialized world happen in the United States. Between 1979 and 1991, almost 50,000 American children were killed by guns. In 1991 alone, 5,636 children died from gunshot wounds. A much greater number of children, estimated in the hundreds of thousands, are not killed or injured, but harmed in other ways by the violence around them – losing classmates, parents, or siblings. A recent survey of elementary school-age children in New Orleans found that fully 90 percent of the sample had witnessed violence, 70 percent had seen a weapon used, and 40 percent had seen a dead body.
Proliferation of firearms among the young account for virtually the entire increase over the last several years in the homicide rate for children and youths, according to the Centers for Disease Control. From 1985 to 1990, the non-firearms homicide rate for 15 to 19-year olds remained essentially constant, but during that time, the firearm homicide rate for that age increased almost 150 percent.
Accidents with firearms needlessly cost the lives of hundreds of persons each year. Currently in the United States, about 1400 to 1500 people are killed each year from accidental firearms shootings, and thousands more are injured. Tragically, many of these victims are children. In 1988 alone, 277 children under 15 were killed by accidental shootings. In a recent report, the General Accounting Office found that firearms are the 4th leading cause of accidental deaths among children 5 to 14 years old and the 3rd leading cause of accidental deaths among 15 to 24-year-olds.
Suicide is the third leading cause of death among all children and adolescents in the United States, a rate that has doubled in the last 30 years, and tripled since 1950. According to the Centers for Disease Control, the increase is almost solely due to firearms.
A growing consensus in the public health/medical community has arisen in recent years as the Centers for Disease Control and leading health experts have conducted research, collected data, and published results regarding the nationwide cost of firearms injuries, and shown that firearms injuries and death in the United States are at an epidemic level of occurrence. The dollar costs of medical care have become a significant contributor to health care costs nationwide. The cost to the public for paying for medical care and losses suffered as the result of firearms injuries and death is enormous.
In 1990 alone, there were more than 16,000 firearms-related homicides, with an additional 239,400 persons suffering nonfatal firearms injuries during assaults with firearms. Firearms were involved in 18,000 suicides and approximately 1,500 accidental deaths. Firearms are the second leading cause of death for young people ages 10 to 34. One out of five teen deaths in the U.S. is due to firearms. In 1990, more teenagers died from firearm-related injuries than from all-natural causes combined. The lifetime cost of all firearm-related injuries was estimated for 1990 to be $20.4 billion. (Source, W. Max and D.P. Rice, “Shooting in the Dark: Estimating the Cost of Firearm Injuries” Health Affairs (Winter 1993): 532-536).
The tens of thousands of firearm-related injuries have placed a significant strain on health care finances and resources. The severity of injuries seen in our hospital emergency rooms has led the U.S. Navy and Army Medical Corps to use urban trauma centers in the U.S. as training for military combat. The cost of caring for gunshot victims is among the highest cost for any category of patients. The average per person cost of a firearm-related fatality, at $375,520, is the highest of any type of death caused by injury. (Source: Rice DP, MacKenzie EJ, and Associates. Cost of Injury in the United States: a report to Congress, 1989). By and large, these costs are being borne by the public, as the overwhelming majority (estimated variously from 75-90 percent) of gunshot victims requiring emergency care are uninsured. The increase in the number of gunshot patients has led to the closing of many trauma centers nationwide in order to protect the financial viability of the parent institutions. As a leading researcher noted, “guns are second only to motor vehicles in their ability to consume public funds for health care.”
The prevalence of the practice of keeping guns in the home for self-defense or personal protection should also be addressed in an educational campaign to reduce gun violence. Despite the widely held belief that guns kept in the home are effective for protection, studies have consistently shown that they actually increase risks of being the victim of a homicide, accident, or suicide in the home. A recent study found that members of households where guns are present are three times more likely to be the victim of a homicide than in homes without guns, and five times more likely to use a firearm in a suicide. (Source, Gun Ownership as a Risk Factor for Homicide in the Home, N.Eng. J.Med 1993: 329, 1084-1091). In 1992, the FBI reported that 86 percent of murder victims knew their killer and that there were 262 justifiable homicides with firearms that entire year, a year in which there were over 16,000 firearm-related homicides. The chance of being a victim of gun violence in the home is greatly increased when such risk factors as drug or alcohol abuse, domestic violence, or child abuse are present.
Many injuries and deaths in the home are preventable through education and safety measures. A study in Oklahoma of unintentional firearm injuries among children found that 93 percent of children who sustained fatal firearm injuries in their homes were not under adult supervision at the time; most were with a peer or sibling (Source, Characteristics of Gunshot Wounds in the home in Oklahoma: 1982-83. Am.J.Dis.Child 1988; 142-623-6). Another study in California of fatalities among children there found that in only one of 114 fatalities studied was the gun involved locked away, and that in about half the cases, guns were unlocked and loaded. (Source, Unintentional firearm deaths in California. J.Trauma 1989; 56-104-9). The Governmental Accounting Office has estimated that close to a third of accidental injuries in the home could be prevented by simple, inexpensive safely features added to handguns.
The Task Force acknowledges and applauds the growing effort of the health care community in the United States to educate the public regarding the risks and costs of gun ownership in the home and the steps that can be taken to provide a more safe environment. Increasingly, there is a call for a sustained effort to reduce gun violence through an educational campaign patterned after those pursued toward reducing highway deaths, particularly those related to drunk driving, and to reduce lung cancer deaths through discouraging cigarette smoking.
It should be the policy of the Association to join and work with our counterparts in the medical and health care professions, teachers, law enforcement officials, and religious and civic leaders, to pursue an educational campaign to prevent and reduce gun violence, to address the societal causes of violence, and to disseminate information about the role of firearms in exacerbating violence in our society. This effort should be aimed particularly to widely disseminate information related to the risk of injury and death when firearms are kept in the home or are in the environment of children. The Section of Criminal Justice this year has sponsored a major effort to bring together representatives of leading organizations to consider such goals as part of “the First National Conference on Gun Violence.” The Association should build on this seminal effort.
It should also be the policy of the Association to better inform the public and lawmakers through a sustained educational campaign regarding the true import of the Second Amendment. Opponents of firearms control legislation have relied upon the Second Amendment’s guarantee of “the right to bear arms.” The Second Amendment, in its entirety, states:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The United States Supreme Court and lower federal courts have consistently interpreted this Amendment only as a prohibition against Federal interference with State militia and not as a guarantee of an individual’s right to keep or carry firearms. The argument that the Second Amendment prohibits State or Federal regulation of citizen’s ownership of firearms has no validity whatsoever.
The controversy over the meaning of the Second Amendment exists only in the public debate over gun control. Few issues have been more distorted and cluttered by misinformation than this one. There is no confusion in the law itself. The strictest gun control laws in the nation have been upheld against Second Amendment challenge, including in United States v Miller. 307 U.S. 174 (1939) what, over fifty years later, remains clearly the law of this country – that the scope of the people’s right to bear arms is limited by the introductory phrase of the Second Amendment regarding the necessity of a “well regulated militia” for the security of a free State. In Miller, the Court held that the “obvious purpose” of the Amendment was “to assure the continuation and render possible the effectiveness of …” the state militias and cautioned that the Amendment “must be interpreted and applied with that end in view.”
Since today’s “well regulated militia” does not use privately owned firearms, courts since have unanimously held that regulation of such guns does not offend the Second Amendment. The Supreme Court has twice reaffirmed its view of the Second Amendment as expressed in Miller. In Burton v Sills, 394 U.S. 812 (1968), the Court dismissed a gun owner’s appeal for want of a substantial federal question, of a New Jersey Supreme Court holding that the Second Amendment permits regulation of firearms “so long as the regulation does not impair the active, organized militias of the states.” Most recently, in Lewis v United States, 445, U.S. 55 (1980), the Court held that legislative restrictions on the use of firearms do not – for purposes for equal protection analysis – “trench upon any constitutionally protected liberties.”
The lower federal courts have uniformly followed the interpretation of the Supreme Court. No legislation regulating the private ownership of firearms has been struck down in our nation’s history on Second Amendment grounds.
Yet the perception that the Second Amendment is somehow an obstacle to Congress and state and local legislative bodies fashioning laws to regulate firearms remains a pervasive myth. The gun lobby has conducted extensive and expensive campaigns to foster this misperception and the result has been that the myth of the “absolute bar of the Second Amendment” has real effects on regulatory efforts.
As lawyers, as representatives of the legal profession, and as recognized experts on the meaning of the Constitution and our system of Justice, we share a responsibility to the public and lawmakers to “say what the law is.” While the past several ABA presidents and other bar leaders have increasingly taken up this task, a broader effort is needed.
We commend the efforts of ABA President Bill Ide to reach out to the public through his appearance at the National Press Club on April 15, 1994, to take on the “destructive myth” of the personal and absolute “right to bear arms” under the Second Amendment. The American Bar Association, bar leaders, and individual lawyers should commit themselves to a sustained educational campaign on the jurisprudence of the Second Amendment directed to the public and lawmakers to set the historical record straight.
The Association should also sponsor and encourage voluntary efforts in the profession to support enactment or enforcement of firearms laws by governmental entities, consistent with the policy aims of the Association. For too long, misinformation about the Second Amendment and threats by the gun lobby, often realized, that it will litigate a proposed ordinance or law, have cowed local officials into deferring action or foregoing needed legislation to regulate firearms. The Section of Litigation this year, through its Special Task Force on Guns, began a project to provide volunteer legal research to localities facing organized opposition to enactment of gun legislation or facing a challenge to enacted ordinances or laws in the courts.
Currently, more than a dozen metropolitan bar associations are working on various projects to assist local enactment of strong firearms regulations. The private bar, through the participation of 55 law firms in New York that have formed the Lawyers’ Committee on violence, for example, is showing a strong sense of public responsibility to provide volunteer assistance in efforts to reduce gun violence. It should be the policy of the Association to foster and encourage such efforts through the auspices of the Association, by state and local bar associations, and among private attorneys.
Amendments to the Gun Control Act of 1968
Several bills have been introduced in the 103rd Congress that would amend the Gun Control Act of 1968 to address the patent deficiencies in the Act. The Task Force supports those efforts and specifically recommends the following:
Persons convicted of any violent misdemeanor should be prohibited from acquiring a firearm.
The Brady Act provides for a background check to enforce the prohibition of possession, sale, or transfer to convicted felons under the Gun Control Act of 1968. The Act should now be amended to prohibit sales or transfers to persons convicted of violent misdemeanors. As noted in the previous discussion, persons prone to domestic violence or child abuse, or under a protective order, are more likely to use firearms in violent acts in the home. Conviction of such misdemeanor offenses should disqualify one from gun ownership.
Persons who possess a “personal arsenal” for example, of more than 20 firearms or more than 1,000 rounds of ammunition, should be required under the Act to obtain a special federal arsenal license. There is no current federal law that prevents any individual from stockpiling any number of firearms. Federal and local law enforcement should know the location of such arsenals. The requirements for getting an arsenal license would be similar to the requirements for a machine gun license, including a full background check and a fee and a certificate from local law enforcement approving the license. Licensed importers, dealers, manufacturers, and antique firearms collectors would be exempt.
The Task Force believes that nowhere is there a more urgent need for stronger regulation than in the case of firearm dealers. The almost total lack of standards related to public safety required of gun dealers under current law is appalling and damaging to the public order. We believe our nation’s failure to require firearms dealers to operate with public accountability makes it impossible to enforce the existing provisions of the Act and undermines local efforts to curb illegal gun trafficking.
The number of firearm dealers in this country has increased by 112,000 since 1980, to a total of approximately 290,000. There is one firearm dealer for every 1,000 Americans, or one dealer for every 290 gun owners. There are more gun dealers in our country than gas stations. Of the 290,000, it is estimated that only about 15,000 licenses operate storefront gun shops, and another 5,000 gun sections in sporting goods stores, according to the Office of Technology Assessment. The remainder operate from their homes – usually referred to as “kitchen table” dealers – for the purpose of buying guns in bulk at special prices, and in order to skirt state and local waiting periods and other restrictions.
The number of investigators assigned by the Bureau of Alcohol, Tobacco, and Firearms (ATF) to inspect these dealers has actually decreased by 13 percent in the last decade. In 1992, the most recent year for which an analysis is available, ATF handled 91,000 new or renewed license requests, denying only 37 of 34,000 new requests. Only about 10 percent of all dealers will ever undergo a personal interview or on-site visit.
In recent years, Congress has heard numerous accounts of illegal sales of thousands of weapons by licensed federal dealers to minors and others. ATF has openly acknowledged for many years that it does not have the resources to investigate applications. The Task Force recommends that the Gun Control Act of 1968 be amended to provide that federal licenses be issued only to persons who intend to engage in a bona fide business, through the following:
1. Require as a condition for license grant or renewal compliance with all state and local licensing and zoning requirements. Few federally licensed gun dealers make an effort to comply with state and local law. A study reported in the Los Angeles Times (May 19, 1992) found that only 130 of 1100 federal licensees in Los Angeles had obtained local permits required to sell more than five guns annually. Such a provision would strengthen the selling authority of the federal Act by requiring as a prerequisite to the issuance of license that the business is not prohibited by state or local law.
2. Raise the federal dealers license fee to a level sufficient to pay for the cost of investigating and processing the application, including a comprehensive background check. (This cost has variously been estimated to be $375 - $600.) At the current $66 rate, the American taxpayer is subsidizing the issuance of dealer licenses. In addition, the increased fee will help to discourage individuals from obtaining a dealer’s license merely to obtain personal firearms at wholesale prices or to skirt state and local laws.
3. Ensure an adequate background check of license applicants and appropriate investigatory authority in ATF by: extending the current 45-day limit on acting upon a license application; by permitting up to three unannounced inspections per year of licensed dealers; and by requiring fingerprint and name-based background checks of employees who have access to the inventory of a gun shop. Each of these steps is needed to provide a genuine opportunity to investigate an application and to audit for potential criminal activity.
4. Extend federal firearms dealer licensing requirements to sales of ammunition and component parts of handguns, and limit permitted gun sales to the location of the licensed premises. There is no justification for unregulated, unlicensed trafficking in ammunition and component parts of handguns. Permitting such trafficking facilitates remarkable ease in acquisition of such supplies by convicted felons and other persons who are prohibited by law from possessing or purchasing the related firearms. Casual sales of firearms by dealers at gun shows and in other circumstances outside the place of business is likewise an enormous loophole in the federal system of regulation of sales by dealers. It permits evasion of all legal requirements that apply to the place of business and allows criminal access to firearms with no safeguards whatsoever.
5. Require licensees to prove they carry adequate business liability insurance. Requiring proof of adequate business insurance will increase needed protection of the public from gun theft due to inadequate security and from other practices that fall short of a bona fide business operation by the licensed dealer. It will also serve, as does similar types of business insurance, to provide strong private incentives to comply with applicable law.
The Bureau of Alcohol, Tobacco and Firearms, or other appropriate federal agency, should be empowered to address gun safety on an ongoing, systematic basis. At present, there is no regulation of firearms as consumer products, despite the fact that by their design and function they pose severe dangers to consumers and members of households of accidental injury and death. Pharmaceuticals, toys, and other household goods are required to be manufactured safely, and we believe there is a compelling case for regulating firearms as consumer products.
Over a thousand individuals are killed each year and thousands more injured in accidents, many of which could be prevented through application of industry-wide safety standards. The Governmental Accounting Office estimated that 31 percent of accidental deaths might be prevented by the addition of two simple, inexpensive devices to firearms: a child-proof safety device that prevents the trigger from accidentally being engaged by young children, and a device that indicates whether a gun is loaded.
The power granted to ATF to regulate gun safety should include authorization to set mandatory safety standards, to issue recalls of defective products, to prohibit sales of firearms failing to meet minimum safety standards, to monitor industry compliance with standards, and to disseminate safety information to the public.
Regulation of Handguns
Handguns have long been the gun of choice for use in crime because they are easily concealable and are more portable than other firearms. Additionally, many handgun models are among the least expensive firearms available. They are widely owned and often abused.
Of 209 million firearms estimated to be in private use in the United States, 71 million are handguns. Yet handguns are responsible for 80 percent of all firearm murders, which in turn represent 60-70 percent of all homicides. While the number of murders committed by other means has remained constant, handgun murders have set records every year since 1987. In 1992 alone, the most recent year for which Department of Justice statistics are available, handguns were used in a record number of 930,700 violent crimes. Of these, 13,200 were handgun murders, an increase of a staggering 24.5 percent. Nonfatal handgun crimes were almost 50 percent higher in 1992 than the average of the previous five years. Among American teenagers, 73 percent of homicides and 70 percent of suicides involved handguns.
Children in both urban and rural America have easy access to handguns. In 1987, an estimated 270,000 boys carried handguns to school at least once and 135,000 boys were estimated to carry a handgun to school each day, according to the National Adolescent Student Health Survey. The Centers for Disease Control currently estimate that 645,000 students - one in twenty – have carried a gun (usually a handgun) at least once in the last month. Many carried guns to school. Urban schools throughout the country have purchased expensive security equipment and added security personnel to respond to the threat of firearms at school. The presence of firearms has led a growing number of school personnel to take precautions such as donning bulletproof vests.
The Task Force reached a consensus that appropriate regulation of handguns should require personal responsibility for handgun ownership through licensing and insurance; equipping all handguns with mandatory safely features to reduce accidental deaths, particularly with children; and accountability for all handguns in the chain of sale, transfer, and possession through registration and required insurance.
The Task Force discussed the alternative position of supporting a ban on private ownership of handguns. There was a consensus that, in view of the fact that such legislation has been introduced in virtually every Congress since the 90th Congress in 1968 without meaningful action, taking such a position alone would leave the Association little to say and perhaps without a meaningful role In the actual legislative work expected to occupy lawmakers in the next several years. The Task Force very much appreciates the role the ABA has played in actively working for enactment of legislative improvements in our gun laws, and believes we should continue on our present course of contributing to those improvements in the law. The Task Force reached a consensus that the real political battle in the area of firearms regulation to reduce gun violence will be with regard to eliminating unregulated sales and requiring personal and business accountability for all firearms.
In addition to a system of licensure of handgun owners and registration of handguns, is recommended that the federal tax on handguns and ammunition be increased and that the proceeds be devoted to a fund, such as a health care trust fund, to treat the victims of gun violence and fund educational programs to reduce gun violence. Similar to other “sin” taxes, an increase in the current tax on handguns and on ammunition would be used to pay for the societal costs of handgun abuse, and to reduce consumption.
Private Rights of Redress Under Gun Control Laws
In addition to lacking resources necessary to investigate applications for federal firearms dealers licenses, the Bureau of Alcohol, Tobacco, and Firearms has lacked the resources to adequately enforce other provisions of the Gun Control Act of 1968 governing possession, sale, and transfer of firearms to and from individuals. In part, the lack of enforcement has been due to the fact that until the Brady Act became law last year, there was no enforcement mechanism in the Act to review sales and transfers of firearms to individuals. Representatives of the Department of Justice have testified repeatedly and ATF has openly acknowledged that Congress has never provided even a fraction of the resources necessary to rigorously enforce the Act. Since 1975, the Association has supported provision of such resources to ATF, but we believe that the history of lax enforcement of both federal and state firearm laws compels the provision of private remedies under those laws.
As this report has set out, the number of persons killed each year, the number of persons injured, those who lose loved ones and financial support, and the staggering societal cost of gun violence, all justify the traditional remedies through our tort laws that we make available to those who suffer losses in other areas of public concern. The Gun Control Act of 1968 should be amended to provide civil liability for damages that result from violation of the Act. State laws regulating firearms should similarly provide for a private civil cause of action for victims of gun violence to compensate their losses.
George E. Bushnell, Jr., Chair
Task Force on Gun Violence