Tuesday, April 15, 2014

The Brady Handgun Violence Prevention Act: Public Policy Analysis

I. Introduction
In 1993, Congress passed the Brady Handgun Violence Prevention Act, named for an assistant to President Ronald Reagan, James Brady. Brady had been critically wounded in an assassination attempt on the president in 1981 near the current location of Politics and Prose in Washington, D.C. The injury left Brady partially paralyzed and made it difficult for him to speak.[1] This event, combined with a successful effort in 1986 to eliminate many of the regulations from the 1968 Gun Control Act, politicized members of Brady’s family. It motivated his wife, Sarah, to push for a “Brady Bill” restricting access to handguns for the better part of a decade beginning with a bill proposed in 1987.

II. Problem
The timeline for these events might seem strange to a modern observer of immediate political reaction in the aftermath of the Gabby Giffords shooting or the Sandy Hook shooting. But the pattern of Congress’s response to the problem makes more sense when we observe the number of homicides committed with handguns over time. The Bureau of Justice Statistics reports, “handgun-involved incidents increased sharply in the late 1980s and early 1990s.”[2] Handguns outsized the declining trends of other weapons and became the most visible aspect of the overall increase in crime through the era. For example, handguns were used six times more often than long guns in homicides.[3]

Robert Spitzer writes in The Politics of Gun Control that though this analysis affects policy decisions, the “cycle of outrage, action, and reaction usually begins with the sensational and the horrific.”[4] The last federal gun control law came in the wake of the 1968 assassinations of Robert Kennedy and the Reverend Martin Luther King, Jr. though it had been a priority since the start of Lyndon Johnson’s term. In 1980, Handgun Control, Inc. (later renamed the Brady Campaign to Prevent Gun Violence) saw its first swell of fundraising in the wake of the assassination of John Lennon.

Escalating violence brought the need for the Brady bill to prominence. Media publicized incidents of gang violence throughout the 1980s and 1990s. In 1989, a man killed five children and wounded thirty-three more in an elementary school playground shooting in Stockton, California with an AK-47. In 1991, a man killed twenty-two people in a crowded cafeteria in Killeen, Texas using a semiautomatic pistol.[5]

While the Congress discussed how to deal with assault weapons and crime at large, the incident involving James Brady focused attention on the biggest killer Though Reagan never proposed a gun control measure as President, he penned an editorial for The New York Times titled “Why I’m For The Brady Bill” on March 30, 1991. Marking an unhappy anniversary, he rejoiced at the survival of press secretary Brady, a police officer named Thomas Delahanty and a Secret Service agent named Tim McCarthy.
Still, four lives were changed forever, and all by a Saturday-night special -- a cheaply made .22 caliber pistol -- purchased in a Dallas pawnshop by a young man with a history of mental disturbance.
This nightmare might never have happened if legislation that is before Congress now -- the Brady bill -- had been law back in 1981.
Reagan stated how handgun violence had spread across the country.
Every year, an average of 9,200 Americans are murdered by handguns, according to Department of Justice statistics. This does not include suicides or the tens of thousands of robberies, rapes and assaults committed with handguns.[6]

Handguns were associated with approximately 800,000 violent crimes a year.[7] In 1988, Americans committed 8.4 homicides (per 100,000) people compared to 7.2 homicides in Sweden, 5.5 in Canada, 4.2 in France, 3.9 in Britain and 1.2 in Japan.[8]
After the passage of the Brady bill into law, the Department of Justice released a report detailing how handguns related to crime in the United States. The report found that one-fourth of the 4.4 million violent crimes committed in 1993 involved the use of a gun. It also found that the majority of the 40 million handguns produced in the United States since 1973 were not used in crimes. The report said that three-quarters of the 83,000 guns used in crimes that the ATF traced were handguns. The FBI received an annual average of over 274,000 reports of stolen guns and more than three-quarters of the 83,000 guns used in crime that ATF traced in crimes were handguns.[9]

Disproportionate violence with handguns demanded an answer to a problem but the potential consequences of overreaching regulation presented a conundrum for Congress. The scope of legislation had to address preventing guns from getting into the wrong hands while keeping law-abiding citizens right to bear arms intact.

Spitzer explains that guns are a unique social regulatory issue because it immediately affects individual contact rather than establishing an “environment of conduct” through rules or even through redistributive programs that alleviate a social problem.[10] Indeed, what makes gun control such a controversial issue is the need to use coercion to prevent crime rather than punish after its consequences. Spitzer borrows Samuel Huntingdon’s paraphrase of the Hobbesian social contract “men may, of course, have order without liberty, but they cannot have liberty without order.”[11]

III. Goals

Brady bill proponents sought to reduce violence by handguns while two other pieces of legislation went through the Congress aimed at reducing gun violence and crime: the Violent Crime Control and Law Enforcement Act of 1994 (also known as the Federal Assault Weapons Ban) which became a section on the omnibus crime bill. In the midst of inconsistencies of gun laws from state to state, the gun control advocates sought to create a federal standard given that state and local governments could not enforce stricter gun laws while more permissive gun laws existed nearby. The bill sought to reduce impulsive purchases of handguns to commit crimes, giving purchasers a waiting period to “cool-off.”

The bill also sought to classify groups that background checks would prevent from purchasing a firearm. These groups consisted of convicted criminals, fugitives, unlawful users of controlled substances, people adjudicated as mentally unstable, illegal aliens, dishonorably discharged members of the Armed Forces, people who have renounced their U.S. citizenship, people with restraining orders, and convicts of domestic violence.[12]

IV. Program
The two main features of the bill included instituting a nationwide five-day waiting period for handgun purchases and requiring gun dealers with a federal firearms license to perform a background check.

The bill established the National Instant Criminal Background Check System (NICS), which the FBI launched in November 1998. The system works to coordinate information from the National Crime Information Center and Interstate Identification Index. The NICS database also receives assistance from local, state and federal agencies that voluntarily contribute information from mental health institutions, psychiatrists, police departments and family members.[13]

V. Politics, Procedure and Process
The idea to pass a Brady bill emerged in the backlash to a 1986 bill entitled the Firearm Owners Protection Act. The bill’s most controversial provisions among gun control proponents revised restrictions on gun and ammunition sales, limited the power of the Alcohol, Tobacco, Firearms and Explosives (ATF), and prohibited creating a registry for pistols or revolvers.[14] The bill represented the pinnacle of the National Rifle Association’s power and the process of its passage politicized Sarah Brady and brought the HCI to national prominence.

Round One
The first iteration of the Brady bill came to vote in the House in September 1988. It was voted down 228-182 but the NRA spent between $1.5 million to $3 million to campaign against the bill. Representative Feighan said that at least two dozen House members had privately supported the bill but feared losing seats from NRA opposition.

Sarah Brady became the head of the HCI in 1989, building a formidable opposition to the NRA who Congress thought were politically “invincible.”[15] Public approval of stricter gun laws peaked in 1990 with 78% respondents to a Gallup poll saying gun laws should be made stricter. The one-sided support held through the period of passing a bill.[16] Even though the NRA outraised the HCI ten-to-one, Gallup found that 88% of people approved of waiting periods.[17]

Round Two
As crime rose, the firearms lobby faced steeper odds of turning public opinion against the bill. In 1991, they tried to cast doubt on the Brady bill’s methods and propose alternative policies. The NRA and Gun Owners of America testified to the Subcommittee of the Judiciary about how waiting periods were an ineffective inconvenience to gun buyers that would not prevent determined criminals.

The focus on handguns outsized role in crime bolstered a need for prevention. In a 1991 House hearing Chuck Schumer (D-NY) cited a recent study that found 27% of violent crimes are committed with handguns.[18] Schumer’s colleague, McCollum highlighted a 1985 study that says that only 20% of violent criminals bought guns through gun dealers.[19] Representative George Gekas (R-PA) asked very plainly, “Can background checks work? How do we stop illegal guns from getting to criminals?”[20]

Testimony from James Brady, Sarah Brady and countless other victims of gun violence focused less on how to implement policy and more on why it needed be addressed.[21] Anecdotes of lost loved ones highlight how coordinating knowledge about criminal history or mental illness seemingly could have prevented guns from enabling violence. Witnesses did not expect to prevent all tragedies. One witness asked, “If a single life is saved, is that not sufficient justification for this act?”[22]

At the same day of testimony, James Baker of the NRA had a tense back and forth with Representative Schumer. Schumer had Kenneth Collins, Chief of Police in Minnesota testify about the success of waiting periods in Minnesota. Collins condemned the lobbying the NRA was doing on the bill saying it was using evidence that was “self-serving.”[23] When Baker testified, Schumer contentiously asked “do you have faith in law enforcement in this country?”[24] Earlier in the record, Gun Owners of America presented examples of police brutality like the Rodney King incident to bolster the idea that the some police could not be trusted to enforce the law constitutionally and Schumer pressed Baker on the question of whether we could trust the majority of law enforcement’s assessment that waiting periods would help reduce crime.[25]

Spitzer describes that “a crucial swing” occurred in 1991 when the NRA and the gun lobby began running ads and submitting evidence advocating that police officers could not be trusted to implement the law fairly. Spitzer estimates that “repugnance” with gun lobby tactics swung about thirty-five House members over to the bill as law enforcement support tempered opposition to the bill.[26]

The gun lobby made the case that though the goals of the Brady bill were laudable the means to achieve those outcomes would fix the problem. They agreed with the premise of a background check to prevent what Wayne LaPierre would describe as “bad guys” from buying a gun but said government record keeping could not possibly coordinate information effectively enough to prevent tragedies. Their “sky is falling” rhetoric did not play well against a full court press of witnesses who had lost children, friends, coworkers, and others in the violent crimes with handguns perpetrated by people who would not qualify to pass a background check.

In lieu of a path for total opposition, the NRA proposed a computerized background check as an alternative to a waiting period with an amendment sponsored by Representative Harley Staggers (D-W.Va). The idea seemed abstract at the time because only ten states at the time had automated records.[27] The Congress’s Office of Technology estimated that it would take years to develop a viable system and would cost hundreds of millions of dollars. The Staggers amendment became a rallying point for Brady bill opponents.[28]

By May 1991, the bill passed both chambers (239-186 in the House, 71-26 in the Senate). The bill overcame two different filibusters relating to NRA-backed amendments designed to kill the bill. Ultimately, it could not withstand a filibuster in the Senate over the waiting periods and President George H.W. Bush threatened to veto a standalone bill but would have accepted it in an omnibus crime bill.

Round Three
After Bush lost the 1992 election to Bill Clinton, the hurdles to a bill were gone. President Clinton joined activists like Sarah Brady in promoting the bill. He bolstered the importance of addressing violence by quoting Teddy Roosevelt, who he noted was New York police commissioner, saying, “This country will not be a good place for any of us to live in unless we make it a good place for all of us to live in.”[29]

A Democratic president and public opinion made it possible to sell the bill through the year and Democrats pushed it through after their electoral victory. Though the Senate-House conference committee faced some opposition from Senator Bob Dole, who was unsatisfied with a compromise similar to the Staggers amendment from two years prior, allowing waiting periods to phase into an automated background check. However, Democratic Senate leader George Mitchell’s threat to reconvene the Senate after Thanksgiving gave impetus to an agreement.[30] The conference passed the bill by a voice vote on November 24, 1993 and President Clinton signed it into law.

Legal Challenge in the Supreme Court

In 1997, Arizona, Louisiana, Mississippi, Montana, New Mexico, North Carolina, Texas, Vermont and Wyoming sought to strike down the Brady Act as unconstitutional. The Supreme Court took up the case of Printz v. United States and handed down a decision in 1998.[31] The court struck down the federal government’s requirement of states to comply with a waiting period or a background check as unconstitutional, making reporting to NICS voluntary. State and local governments remained free to implement the law. In coordination with the Justice Department, law enforcement managed to continue Brady laws or similar permit laws to check gun sales.[32]

VI. Impact
One unnamed gun control advocate in Congress described the Brady law as “a nice, innocuous piece of legislation” because for all the political consequences during and after its passage, the bill did little to implement policy that was not already in effect.[33]

Measuring the law’s policy impact is problematic for a few reasons: (a) Homicide and violent crime are inextricable from national, state and local trends on violence. (b) Many of the laws in the Brady bill previously existed in states and served as a model for the federal legislation. (c) After the Supreme Court decision made compliance voluntary, states that opted out had equivalent procedures. (d) Many modern methods of measuring how gun availability affect crime were developed after the Brady bill and often have no historical comparison.

A decrease in violent crime has followed the law’s passage but this cannot be directly attributed to waiting periods or background checks. The comprehensive crime bill that Bush briefly agreed he would sign with a Brady bill gave $30 billion to state and local police. Subsequently police presence has increased and prison populations have grown. Changing demographics (namely an aging population) may also play a role in reducing the per capita violent crime rate.[34] The successful implementation of NICS to accomplish instant background checks made the contentious issue of waiting periods a moot point in states that did not want to pass such laws.

In 1996, the Government Accountability Office’s report to the Committee of the Judiciary assessed the bill’s implementation and found that 26 states complied with the law while the other 24 had permit systems or other procedures that the ATF said meet or exceed Brady bill standards. This makes drawing policy conclusions from the empirical evidence even more uncertain. A 2008 study that compared homicides from 1989 to 1997 found that the different decrease in homicide rates in Brady states compared with non-Brady states was statistically insignificant.[35]

Prior to the Brady law, the ATF did not measure factors like “time-to-crime” to tell how long it took for a crime to be committed from the time of a guns purchase. Also agencies did not previously compare how far a gun traveled from its legal purchase to the scene of the crime like they do today. Without historical comparisons to these measures, we cannot compare pre-Brady era factors to isolate handguns from confounding variables in overall crime reduction using these better institutional measures of the role handguns play in crimes.[36] The question of interstate externalities, or whether guns purchased in states with looser regulations make it into states with tougher restrictions, remains unanswered.

However, research has also shown that there is a correlation between an increase in number of different of background checks (criminal, mental health, etc.) that the Brady law championed and a reduction in crime. The political impact of the Brady bill is that it altered the norms surrounding state laws even without coercion. From 1996 to 2005, it increased the percentage of states that checked for restraining orders, mental illness, and misdemeanor offenses when making gun sales.[37]

Though waiting periods did not expand as a program, the alternative proposed by the NRA, an instantaneous automated background check system like NICS became a reality quicker than expected. Their prediction that it would not take five days to conduct a police background became true with unforeseen advancement in technology. The effectiveness of this system remains unknown however given that reporting from groups like psychiatrists and family members are limited even when voluntary.

The Department of Justice’s Bureau of Justice Statistics found that from 1994 through 2009, over 107 million Brady background checks were conducted. During this period 1.9 million attempted firearm purchases were blocked by the Brady background check system, or 1.8 percent. In 2009, felons accounted for 48 percent of denials and fugitives from justice accounted for 16 percent of denials. Between 2000 and 2009, over 30,000 denials were reversed on appeal.[38] While this is a coherent measure of how NICS has not been abused, it is intangible to account to how it has succeeded or failed except by sensational conjecture and anecdotes.

While we can conclude that background checks have prevented some criminals from acquiring a handgun and that appeals have protected the rights of law-abiding citizens to obtain a gun denied by error, we cannot measure how many criminals have been deterred from buying a gun because of background checks nor can we fully measure the amount of criminals who acquire guns legally. Critics of the law note that prosecution and conviction of violators is extremely rare. During the first 17 months of the Act, only seven individuals were convicted. In the first year of the Act, 250 cases were referred for prosecution and 217 of them were rejected.[39]

Even with this information, we cannot account for records that go unaccounted for in the NICS background check system. Congress continues to grapple with improving the instant background check system like in a Senate hearing in 2000 were Dole and Schumer revisited their compromise, lauding their work building a “smarter” government approach to crime.[40]

In the process of holding many different votes for the Brady bill’s eventual passage, Chuck Schumer said “people realized there’s life after voting against the NRA.”[41] However, placing a federal seal of approval on already existing gun control programs in states made for better politics at the time than good policy.

Despite having the backing of public opinion and difficult political lift for politicians, the bill itself did not make as dramatic of a change in policy as it made drama in Congress. The contentious process exhausted the public’s attention for dealing with an emotionally driven policy. The backlash from the bill’s overreach may have prevented stronger federal gun control measures from passing. Immediate social regulation on individual behavior is controversial and needs time build an idea.

A democratic process requires consent of the governed to function properly. So when after the Brady bill passed, proposals such as the Schumer-Bradley bill in 1994, which proposed putting a one gun a month limit and fingerprint tracing of gun owners felt intrusive before the accomplishing the policy agreed upon through compromises in Congress.[42] Even though the Clinton administration successfully worked with state and local police to improve the policy, continued politic pressure on gun control before implementation harmed the credibility of touting its results after isolating opponents.

Political escalation heightened the stakes for interest groups and created a reaction that undermined the policy’s future. Even if the policy choices could provide incremental improvements in public health and safety, the policies need appropriate resources and voluntary compliance in order to succeed. Without public trust and general consensus, order cannot be achieved to pursue liberty, otherwise the social contract crumbles.

[1] Simon, Scott. "Jim Brady, 30 Years Later." Weekend Edition. NPR, 6 Mar. 2011. Web. 15 Apr. 2014. .

[2] Cooper, Alexia, and Erica Smith. "Homicide Trends in the United States, 1980-2008." Bureau of Justice Statistics. U.S. Department of Justice, 1 Nov. 2011. Web. pg 27. 15 Apr. 2014. .

[3] Spitzer, Robert. The Politics of Gun Control. Chatham, NJ: Chatham House Publishers, 1995. Print. 186.

[4] Ibid., 13.
[5] Ibid., 14
[6] Reagan, Ronald. "Why I'm for the Brady Bill." The New York Times. The New York Times, 28 Mar. 1991. Web. 15 Apr. 2014. .

[7] Spitzer, 66.
[8] Ibid.
[9] “Gun Control Implementation of the Brady Handgun Violence Prevention Act.” Report to the Committee on the Judiciary, U.S. Senate, and the Committee on the Judiciary, House of Representatives. 1996.
[10] Spitzer, 4.

[11] Spitzer, 2.

[12] "H.R. 1025. - The Brady Handgun Violence Prevention Bill.” US Government Printing Office. 103rd Congress. 10 Nov. 1993. Web. 15 Apr. 2014. .

[13] "Index Brochure." FBI - National Instant Criminal Background Check System. FBI, 21 May 2010. Web. 15 Apr. 2014. .

[14] Hardy, David. "THE FIREARMS OWNERS' PROTECTION ACT: A HISTORICAL AND LEGAL PERSPECTIVE." Constitution Society. Cumberland Law Review, 1 Jan. 1986. Web. 15 Apr. 2014. .

[15] Spitzer, 116.
[16] Spitzer, 118.
[17] Spitzer, 119.

[18] “Brady Handgun Violence Protection Act Hearing.” Subcommittee on Crime and Criminal Justice, Committee on the Judiciary. House; Committee on the Judiciary. House. March 21, 1991. pg. 15 <HTTP://congressional.proquest.com/congressional/docview/t29.d30.hrg-1991-hjh-0004?accountid=8285>

[19] Ibid., 16
[20] Ibid., 18.
[21] Ibid., 81.
[22] Ibid., 96.
[23] Ibid., 115
[24] Ibid., 118.

[25] Pratt, Larry. “Brady Handgun Violence Protection Act Hearing.” Subcommittee on Crime and Criminal Justice, Committee on the Judiciary. House; Committee on the Judiciary. House. March 21, 1991. 122. <HTTP://congressional.proquest.com/congressional/docview/t29.d30.hrg-1991-hjh-0004?accountid=8285>

[26] Spitzer 161.
[27] Spitzer 158.
[28] Spitzer 159.
[29] Clinton, Bill. "Crime Legislation Radio Address." C-SPAN.org. Web. 15 Apr. 2014.

[30] Spitzer 160.
[31] "Printz v. United States, 521 U.S. 898 (1997)." Printz v. United States, 521 U.S. 898 (1997). 3 Dec. 1996. Web. 15 Apr. 2014. .

[32] "Brady Background Checks to Resume Nationwide." Press Center. US Department of Treasury, 14 Jan. 1998. Web. 15 Apr. 2014. .

[33] Spitzer, 170.

[34] Levitt, Steven. "Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not." Journal of Economic Perspectives 18: 163-190. Web. <http://pricetheory.uchicago.edu/levitt/Papers/LevittUnderstandingWhyCrime2004.pdf>

[35] Monroe, Jeffrey D. Homicide and Gun Control: The Brady Handgun Violence Prevention Act and Homicide Rates. 99.

[36]State Gun Policy and Cross-State Externalities: Evidence from Crime Gun Tracing." State Gun Policy and Cross-State Externalities: Evidence from Crime Gun Tracing. American Economic Journal: Economic Policy 2013, 1 Jan. 2013. Web. 15 Apr. 2014. 200.
[37] Bisakha, Sen & Anantachai Panjamapirom. “State background checks for gun purchase and firearm deaths: An exploratory study.” Elsevier. Department of Healthcare Organization & Policy, School of Public Health, The University of Alabama at Birmingham. July 2012. 348.
[38] Bowling, Michael, Ronald Frandsen, Gene Lauver, Allina Boutiler, and Devon Adams. "Background Checks for Firearms Transfers, 2009–Statistical Tables." Bureau of Justice Statistics. Department of Justice, 1 Oct. 2010. Web. 15 Apr. 2014. .

[39] "Implementation of the Brady Handgun Violence Protection Act." Report to the Committee on the Judiciary, U.S. Senate, and the Committee on the Judiciary, House of Representatives. United States General Accounting Office, 1 Jan. 1996. Web. 15 Apr. 2014. .

[40] “Improving the National Instant Criminal Background Check System.” Committee on the Judiciary. Senate. 21 June 2000. Web.

[41] Spitzer 164.

[42] "Getting Serious About Guns." The New York Times. The New York Times, 28 Apr. 1994. Web. .