Semi-closing the private sale loophole in the Brady Law

Update I’ll discuss this with John Hockenberry on The Takeaway (PRI/WNYC) Tuesday morning at 9:15 EST.


BBC5 called me today - instead of calling someone who really understands either law or gun issues - to comment on the President’s about-to-be-issued proposal to make it harder to get a gun without going through a background check. (Clip here, starting about 1:18:30.) After I finished scrambling to figure things out, the story actually looked interesting, so here it is.

1. You can buy a gun in the U.S. unless you’re disqualified: by age, by a felony conviction or a domestic violence restraining order, or by a court commitment for mental incapacity or mental illness.

2. If you’re “engaged in the business” of selling firearms (that’s the statutory language), you need a license fom the Bureau of Alcohol, Tobacco, Firearms, and Explosives (still referred to as “ATF.” That makes you a “federal firearms licensee,” or FFL.

3. If you’re an FFL, anyone who wants to buy a gun from you must fill out a form and show identification, and you have to run that information through an FBI website called the National Instant Criminal Background Check System. If the background check shows that the would-be purchaser is ineligible, you can’t sell him a gun.

4. However, anyone is allowed to sell guns from his or her “private collection” without registering as an FFL. Such “private-party sales” do not require background checks. Many such transactions take place at gun shows; the exemption of private sales from background checks is often, though inaccurately, called the “gun show loophole.”

5. As far as I can tell, there is no published estimate of what fraction of guns used to commit crimes were privately purchased by ineligible buyers (as opposed to being legally purchased, stolen, or bought by an eligible purchaser and then illegally resold to an ineligible one). Data from the crime-gun tracing system would support such an estimate, but Congress has forbidden the Centers for Disease Control from doing such studies. (Phil Cook and colleagues surveyed prisoners in the Cook County jail; gun shows didn’t appear to be a significant source of guns for them.)

6. The statute doesn’t further define what it means to be “engaged in the business.” That definition exrists in ATF regulations, and is far from clear. If you have a storefront or buy at wholesale from manufacturers, you’re clearly “engaged in the business.” Otherwise, there’s no limit on how many guns you can sell or how much money you can earn as an unlicensed private gun seller.

7. The President proposed some time ago to eliminate the private-sale exemption and require that all gun transfers go through background checks (which FFL’s could provide on a fee-for-service basis). That policy, which used to be the official position of the NRA, has massive (approximately 90%) public support. But it now has the fervent opposition of the gun lobby, and is going nowhere in Congress.

8. Now the President plans (as Hillary Clinton had previously proposed) to tighten the definition of what it means to be “engaged in the business” of firearm sales, in order to require those who habitually buy and sell guns to get federal firearms licenses even if they don’t have storefronts. As FFLs, they would have the same obligation to do background checks that gun store owners now have. It’s not clear yet whether the new definition will be based on number of transaction, number of weapons, amount of revenue, duration in business, promotional activity (such as renting space at a gun show or swap meet or putting up an internet posting (e.g., eBay or Craigslist) or some formula involving several of those and perhaps other factors.

9. Since the current definition is a regulation, it can be changed without legislative action, but it still has to go through the process laid out in the Administrative Procedures Act: publication in the Federal Register of a Notice of Proposed Rulemaking, a sixty-day period for public comment, review of those comments by ATF, publication of a Final Rule, and (inevitably) a series of court challenges.

10. The general rule (laid down in Chevron v. NRDC) is that the courts will defer to administrative discretion as long as the rule embodies “a permissible construction of the statute.” That principle - plus the fact that the DC Circuit is no longer stacked with Republicans - ought to give the rule a good chance of being upheld. Whether the courts will put a hold on implementation of the new definition while the process drags on, or instead allow it to take effect at once, is harder to predict.

11. Congress can try to stymie the change in various ways, including putting a “no-funds” rider on an appropriations bill forbidding ATF to spend money on this specific rulemaking. So expect some political drama.

Substantively, making it a little bit harder for people with felony record to illegally arm themselves seems like a good idea, though it’s impossible to say how many shootings it would prevent. It wouldn’t do much about accidents, but you’d expect it to prevent some homicides and suicides. Politically, it seems extremely astute of the President to force the issue on the single gun-related question where the gun-control position enjoys the highest level of public support.

Update Garen Wintemute of UC Davis provides some data and analysis.

A grown-up talks to grown-ups about ISIL

What we saw on TV this evening was the product as advertised: No Drama Obama. The President said what had to be said. We need, he told us, to do measured, reasoned things to defend ourselves at home and abroad, and one of  them is cultivating a split between the radical Islamic fringe and the mass of Muslims.

This is the basic point that divides Obama from Trump and Cruz and Rubio and everyone in the 101st Chairborne Division who insists that Obama say “Islamic terrorism.” Really, it’s not hard to see that when it comes to Christianity: those of us who aren’t Christians want Christians to disavow Junior Falwell and the Westboro Baptist Church and that Bible-thumper who just shot up the Planned Parenthood clinic, and we know we can’t achieve that by insisting that every lunatic who has a cross at home or a pulpit to pound, and kills someone or makes speeches full of hatred, demonstrates that Christianity, as such, is evil.

By the same token, putting massive numbers of U.S. troops on the ground in Syria would be to follow the fox into the briarpatch. That, after all, is the great lesson of the Iraqi adventure. (As  @Lib_Librarian - not otherwise known to me - Tweeted, “You know the stupid thing we did before? Which got us in this mess? Yeah, let’s try to avoid that this time.”)  “Not doing stupid sh*t” isn’t an emotionally satisfying foreign policy principle, but it beats the alternative all hollow.

But in some ways the tone of the speech was even more important than the substance. The President made his case with logical force but without dramatic passion. No anger. No shouting. He addressed us as a grown-up talking to other grown-ups about a difficult situation, not an adolescent gangbanger egging his homies on to some act of emotionally satisfying, but disastrous, retaliatory violence.

What Barack Obama’s fans love about him is precisely what the Red Team hates: his sanity. Unlike Trump, he doesn’t appeal to people who want a leader to express their rage for them and make them feel righteous about it: An Angry-Drunk-in-Chief.

What we need most, at this moment, is courage: the courage, as the President said yesterday, not to be terrorized, not to give the terrorists the power that only we can give them, by letting them bait us into folly, like stallion driven mad by a horsefly.

What I felt when the speech was over was a mixture of gratitude and pride: gratitude that we are being led by someone who prefers accuracy to dramatic passion, and pride, as both a Democrat and an American, at having a leader worth following.

Footnote  Given that being placed on the “no-fly” list means that, if you’re an American citizen abroad, you’re effectively stranded there, a virtual exile, Obama’s argument that someone dangerous enough to be on that list shouldn’t be able to acquire an arsenal seems reasonably sound. On the other hand, the objection that people are put on the list without due process, and have no effective recourse once they’re on it, also seems cogent. So how about we compromise: Give everyone on the no-fly list full notice and an opportunity to be heard and represented, and extend the consequences of being on that list to not being able to buy weaponry?




Giving Tuesday, No Giving Required; and Jail for the President

Over on The Nonprofiteer, I critique the whole Giving Tuesday concept and particularly its latest iteration, in which people don’t have to actually give to participate.

Plus, h/t to our friends at Political Wire, for quoting a Republican legislator who can’t seem to imagine a black man who isn’t incarcerated.


Quote of the Day: Barack Obama

On the day upon which we honor President Lincoln, this quote by our current President merits reflection:

America was very lucky that Abraham Lincoln was President when he was President. If he hadn’t been, the course of history would be very different. But I also think that, despite being the greatest President, in my mind, in our history, it took another hundred and fifty years before African-Americans had anything approaching formal equality, much less real equality. I think that doesn’t diminish Lincoln’s achievements, but it acknowledges that at the end of the day we’re part of a long-running story. We just try to get our paragraph right.

Barack Obama’s Democratic Mercy

Barack Obama’s mercy cannot be determined just from looking at the number of people he has pardoned

Jacob Sullum has penned a bizarre indictment of President Obama as “an unmerciful drug warrior” because Obama has pardoned or commuted the sentences of a historically small number of individuals who have been convicted of drug offenses. For example, Sullum notes that law-and-order President Richard Nixon commuted 60 sentences for drug offenders whereas President Obama has commuted only one.

If you accept Sullum’s premise that imprisoning large numbers of people through tough drug laws and then pardoning a few of them later is evidence of a merciful nature, then yes, many presidents outshine Obama in the mercy department. However, if you recognize that changing the underlying law and thereby freeing more drug offenders from prison than all pardons by all presidents in history combined, then Obama is an unusually merciful leader.

For decades national politicians bemoaned the unfair sentences for crack cocaine offenders, but did nothing to change the law. President Obama was the first president to actively pursue reform. The result was Congressional passage of the 2010 Fair Sentencing Act, the first time a mandatory minimum sentence (for anything, not just drugs) had been repealed in 40 years. Even before Attorney General Holder’s subsequent announcement that the Justice Department would reduce the use of mandatory minimums for drug offenders, Obama and Holder had done more to reduce incarceration of drug offenders than any comparable duo in U.S. history.

President Obama apparently believes in mercy that is broad in impact rather than tokenistic. And he makes mercy real through the legislative process of our democratic society rather than the royalist approach of unilateral executive action of which Sullum is, for a libertarian, oddly enamored. The end result may indeed be fewer pardons for drug offenses…because there’s going to be far fewer people who need one.

Care about presidential power? Stay out of quagmires.

Jonathan Bernstein nails it: the biggest danger to Obama’s credibility and future power is a *disastrous war.*

It was posted ages (a day) ago, but amidst all the double-bank-shot, speculative gaming of the political situation regarding Syria, I think this simple, strong insight from Jonathan Bernstein is well worth noting:

[T]here’s one permutation that absolutely, no question about it, would destroy the rest of Barack Obama’s presidency is: a disastrous war. Ask Lyndon Johnson or George W. Bush. Or Harry Truman. Unending, seemingly pointless wars are the one sure way to ruin a presidency.

Now, I’m not saying that’s in the cards; in fact, I don’t think it is. I’m just saying: that’s the kind of thing that really does matter a lot to presidencies. And if you do believe that the administration is going down a path that winds up there, or a path that has a high risk of winding up there, then you should be very worried about the health of this presidency.

If not? None of the other permutations here are anywhere close to that kind of threat to the Obama presidency. Presidents lose key votes which are then mostly forgotten all the time. They pursue policies which poll badly, but are then mostly forgotten, all the time. There are important things to say about all of that, because “mostly” isn’t completely. But the first thing to get right when considering the effects of Syria policy on the rest of the Obama presidency is that the scale of a Vietnam or an Iraq (or a Korea, for that matter) overwhelms everything else we might talk about.

When it comes to Syria commentary, there are plenty of foxes tearing each other to pieces. But Bernstein has recalled us to a crucial piece of hedgehog wisdom. Big, endlessly escalating, unwinnable wars not only kill people (something Serious People not supposed to think about). More to the pundit’s point, they kill presidencies.


Confessions of an Obamabot

No, I don’t think he’s the Messiah; I think he’s the captain of my team.

Since Atrios’s post about “emo-progs v. Obamabots,” and Kevin Drum’s comment on it, are attracting some attention, and since if you look up “Obamabot” in the Pictionary my headshot shows up, perhaps a comment from me is called for. Anyway, here it is.

Yes, I’m a fervent admirer of Barack Obama: his policies, his politics, and his persona. He is, as far as I can tell, far saner – less sociopathic – than most people who get to the top of either politics or business. He’s thoughtful. He’s funny. He’s not mean. He’s not a hater. Of all the people who have been President in my lifetime, he’s the one I think I would most enjoy spending time with and be able to communicate to most directly, and I don’t really expect to live to see some future White House resident who would change that.

Politically, I wish he were more partisan and more insistent on the threat plutocracy poses to democracy and to social solidarity. In policy terms, he’s been pretty “meh” on the issues I know best: crime and drugs. And the failure to prosecute the torturers of the Bush-Cheney years – including Bush and Cheney – while politically understandable, wasn’t really morally defensible.

But the ACA is a huge accomplishment – and a huge downward redistribution of income – and the Administration has been blessedly scandal-free. On gay-rights issues, I thought from the beginning that Obama’s slow-walking – the opposite of Bill Clinton’s “stroke-of-the-pen” approach – was strategically sound and would wind up in the right place, and I think the record now amply supports that view.

So, yes, I’ve been Obama’s strong defender against some “emo-prog” complaints. (The indictment reads “hippie-punching.”) And yes, I’d rather think well of him than ill. But that’s not the same as thinking of him as inerrant.

My support hasn’t stopped me from being bitterly critical at times. The pre-trial maltreatment of Bradley Manning was a crime, a disgrace, and a blunder, and if it wasn’t ordered from the White House it still should have been stopped from the White House. The obsession with leaks strikes me as both misplaced and weird. And both seem more surprising from Obama than they would have from, say, Bill Clinton. And while I understand the political landmines surrounding drugs and crime, the President could have done – could now be doing – more to make the public aware how stupidly evil it is to keep 1% of the adult population behind bars.

On surveillance, I’d be happy to see a clampdown on what the NSA is allowed to vacuum up and whom it’s allowed to share it with. (And I don’t sense that Obama would be especially unhappy, though he’s clearly not going to lead the charge.)

What the emo-progs refuse to remember – now, and in the run-up to the 2010 election – that I never for a moment forget is that, whatever the failings of Barack Obama the human being, “Barack Obama” the political persona is the leader of the Democratic Party (and thus, effectively, of the entire progressive coalition) in a battle with a well-organized, well-funded, and utterly dedicated plutocrat-theocrat-racist-misogynist-obscurantist-ecocidal Red Team, whose lunatic extremism is now actually a threat to republican governance. If I’m reluctant to help Rand Paul and Glenn Greenwald add NSA! to Benghazi! and IRS! and Solyndra! and all the other b.s. pseudo-scandals designed to make Obama into Richard Nixon, it’s not because I’m in love with “The One:” it’s because, for good or ill, the political fortunes of the cause I care about are now tied to Obama’s political fortunes.

One thing I like about Obama is that I have exactly zero concerns about finding that he has a Monica Lewinsky. But – and here I part company with Al Gore – Democrats and progressives owed it to one another to defend Bill Clinton forthrightly back then. And I expect to be equally firm in support of the next President Clinton, though I don’t expect to have to do so under such distasteful circumstances.

Again, this isn’t hero-worship, though Obama is, in fact, one of my heroes; it’s just practical politics. As Churchill said,

The loyalties which centre upon Number One are enormous. If he trips, he must be sustained. If he makes mistakes, they must be covered. If he sleeps, he must not be wantonly disturbed. If he is no good he must be pole-axed. But this last extreme process cannot be carried out every day.

What makes me want to punch the occasional hippie or emo-prog is their tendency to carry pole-axes with them at all times. The catastrophes of 1994 and 2010 resulted in part from that tendency, and the resulting depressed Democratic turnout.

I still have hopes for 2014 and 2016, and I’ll be damned if I’ll do anything to help the Red Team win.

On Blaming Black Leadership

This fine piece in In These Times  reminds us how instrumental Federal policies on homeownership and road construction were in killing Detroit, and gives the lie to those who want to blame the city’s bankruptcy on corrupt leadership-specifically, corrupt Black leadership.

Certainly there were, and are, Black leaders whose personal weaknesses interfere with the progress of the entities they seek to lead; but the pattern of blaming Black leaders comes from the same bag of racist tricks as the suggestion that the President isn’t really an American because he has black skin.

Detroit is not struggling because its leaders, or its people, are Black.  Its troubles lie at the door of white legislators who made abandoning cities a winning proposition for white families, and white regulators who contributed to the same flight, and white car company executives who decided they owed nothing back to the city of their birth.

To claim otherwise is simply to blame the victim.



The reek of burning boats

Obama’s speech lays down a test the Keystone pipeline cannot meet.

Barack Obama, in yesterday’s big speech on climate change:

Allowing the Keystone pipeline to be built requires a finding that doing so would be in our nation’s interest. And our national interest will be served only if this project does not significantly exacerbate the problem of carbon pollution. The net effects of the pipeline’s impact on our climate will be absolutely critical to determining whether this project is allowed to go forward.

It’s impossible for the pipeline to meet this test honestly. For if it will not increase the sales and hence emissions of Alberta tar sands oil, why would anybody want to build it?

18 months ago I made a rash prediction:

My simple hydraulic model of energy politics predicts that the Keystone XL pipeline will never be approved.

Pity I didn’t back this on Intrade.

Please treat comments as an open thread on the speech. Keystone wasn’t the biggest announcement, which was the confirmation of EPA regulation of of CO2 emissions from coal power stations. The exhortation to “invest, divest” may be equally important as the moment Obama burnt the boats that would allow another centrist tactical retreat. It’s on to Senlac or Mexico.

This once, I’ll allow denialist ventings from our regulars, as long as they don’t derail the thread.

Obama’s war on coal

Breathe deep, and vote Democratic.

Another BFD. The beauty of it is that he doesn’t need Congression action; all of this is within Executive Branch control.

This illustrates why I’m so relentlessly partisan, and so impatient with those who enjoy displaying their moral superiority by distancing themselves from the President when he screws up. There are a dozen key issues - not just environmental management but also taxation, income support, health care, labor/management, racial equality, reproductive freedom, gay rights, civil liberty, public management and respect for public service, science and education, defense, foreign policy, international human rights - where any Democrat who gets elected President will be incomparably better than any Republican who gets elected President, and where Democratic control of the Congress will lead to better results than Republican control. They’re still for torture.

There are lots of issues - including my own pet topics of drug abuse and crime control - where this Administration’s record has fallen far short of the ideal. That will be true of any actual Democratic Administration. I expect to be deeply disappointed by Hillary Clinton’s performance on a range of topics. And that won’t keep me from working my heart out to elect her, and re-elect her, and elect whatever Democrat aims to succeed her.

Breathe deep, and vote Democratic.