Thomas Gabor—Establishing a National Licensing System for Gun Owners

America has a grave gun violence problem.  Gun deaths are approaching 40,000 per year, mass shootings are occurring daily and they are becoming more lethal.  Three of the five deadliest mass shootings in modern American history (Las Vegas, Orlando, and Sutherland Springs (TX) have occurred over the last 18 months.  The Concealed Carry Reciprocity bill, currently making its way through Congress at the behest of the National Rifle Association, represents a complete disregard for public safety and the desire of the public for tighter gun laws.   This bill would make it lawful to carry guns across state lines, even if the state issuing a permit has very weak requirements for permit holders relative to the state the permit holder is visiting.

licenseThe US needs stronger not weaker national laws.  Studies show that states with more permissive laws tend to have higher, not lower, gun death rates than states with more stringent requirements.  Rather than concealed carry reciprocity we need another national law, but one that raises screening and training requirements for gun owners, rather than one that undermines public safety in states that have made more serious attempts to regulate in this area.

Many groups are proposing that we expand background checks so that all gun purchasers, including those buying at gun shows and online, are subject to a background check to ensure they do not fall in some prohibited category (e.g., convicted felons, the mentally ill, domestic abusers).   Such a reform is important as is the desire to close the “Charleston loophole”, which allowed the sale of a Glock pistol to the mass shooter Dylann Roof to proceed after 72 hours when the FBI could not find the drug conviction on his record even though there was a flag in the NICS system.  Other improvements to the background check system are also necessary, such as the need for the military to share the misconduct of one of its members with the FBI—something that might have prevented the recent church massacre in Sutherland Springs (TX).

Expanding and tinkering with our current system of background checks is the low-hanging fruit with regard to reform as 95% of Americans support such actions.  Unfortunately, the obsession of gun safety advocates with this system has led us to lose sight of fundamental flaws in the way we screen prospective gun buyers.

Virtually every other advanced country has a national licensing system that is substantially stronger in vetting gun owners than the standard checks undertaken in a matter of minutes in the US at the point of sale.  Just over a dozen states have some form of licensing requirement.  In addition to the current federal prohibitions on gun ownership for minors, felons, the mentally ill, domestic abusers, and those dishonorably discharged from the military, an effective national licensing system would involve the following:

  • A comprehensive screening process undertaken by a designated law enforcement agency, including an in-person interview. Currently, there is no licensing requirement at the federal level and the typical background check at the time of sale, appropriately referred to as an “Instant Background Check”, involves a search of three FBI databases and takes just minutes to complete.
  • Sign off by the applicant’s current or former domestic partner (where applicable) attesting to his stability and lack of violence.
  • Successful completion of gun safety training (through written and performance-based tests), including training in the operation, safe use, handling, and storage of firearms (including child access prevention) and in laws relating to the appropriate use of force;
  • Reference checks in which the applicant’s mental fitness and use of alcohol and drugs would be probed;
  • Certificate of mental aptitude from a psychologist or other accredited professional if he or she is under 26 years of age.
  • A waiting period of 10 business days for receipt of the license would allow those bent on harming others or themselves to let their anger or self-destructive feelings dissipate.
  • The license would be valid for 5 years.

Some readers will look at this proposal and think it represents government overreach or violates the Second Amendment.  It is neither.  Many other advanced countries have requirements that are at least as exacting, if not more so.  Aside from carefully screening the population, such a licensing system sends the message that handling lethal weapons is a serious matter.  Some will object using the tired argument that criminals will circumvent the licensing system and obtain weapons illegally.  Such an argument can be used to object to all laws and, is incorrect, as many license applicants and those undergoing background checks are denied each year in the US and other countries.

Such a licensing system would be consistent with the most recent judicial interpretations of the Second Amendment.  In the context of a Supreme Court ruling that for the first time recognized an individual’s right to possess a firearm unrelated to militia service, Justice Scalia wrote in District of Columbia v. Heller (2008) that the Second Amendment right was not unlimited and that the Court’s opinion did not cast doubt on longstanding prohibitions on the possession of firearms by individuals at risk of firearm misuse or on laws imposing conditions and qualifications on the sale of guns.

 

 

 

 

 

 

 

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20 thoughts on “Thomas Gabor—Establishing a National Licensing System for Gun Owners

  1. Tom,
    You realize that gun ownership, per se, is a near absolutely private activity. .. no matter what the formal law states. Bad guys ignore laws, agreed, but most criminal acts involve others as victims. Victimless crimes… no.-
    While we are at it, why not create a license requirement for smoking weed? Probably 95 percent would say they were for it.
    And I gravely doubt this would pass 2A scrutiny. Name another enumerated right that is so restricted.
    Gun mischief is.increasing? How much of your argument do want to depend of the truth of that?
    What if nearly worldwide trends continue?
    If I were on your side, I would avoid that approach. Lots of people would want to own guns even more if they believed violence was increasing.

    • Hman, Drivers, tradespeople, individuals operating hair salons and heavy equipment and many others often require licenses. Is it unreasonable to require licenses of those who own or possess lethal weapons? Every other advanced country has a national licensing system and has much lower rates of gun violence and mortality. I will leave the Second Amendment argument to constitutional scholars and the courts, but previous rulings indicate that the courts may well uphold such a system.
      Owners may benefit as well. Improved screening of owners means that irresponsible uses of guns will be fewer, taking pressure off of owners for more regulation. I believe it is in the interests of the general public, including gun owners, to ensure that we do what we can to minimize the irresponsible uses of firearms. We will never, of course, eliminate all firearm misuse. The goal is to do what we can to limit such misuses while respecting the rights of owners.

  2. Ok Tom, lets get this idea into legislative language and get it passed. And as you say “we need another national law” what will the next law be? Does it ever end?

    • Obviously, Alan, such a proposal has zero chance of passing right now. In my view, we don’t need many laws; we need effective laws. A licensing system would be the centerpiece of a national strategy to reduce gun violence. Just raising awareness of an approach that has been successful in other countries.

  3. It’s been well over 200 years for “effective laws” to be written. Do you think we have a bunch of buffoons (legislators) running this country or is it that darn Constitution that keeps getting in the way?

    • Actually, contrary to what is generally believed, guns were more tightly regulated historically than they are now. For example, concealed carry was eliminated in most states in the 1800s. Should we simply stop looking for solutions because the country is over 200 years old?

      • What happened?
        According to youTom, concealed carry was eliminated in most states in the 1800’s. And yet since then there has been hundreds of thousands of dollars spent and tens of thousands if not hundred of thousands of volunteers working to legislate stricter firearms control laws.

        What’s happening?
        Since the 1800’s there are more states that have “open carry” laws, there are even more states that have “concealed carry” laws, in many states a person can walk into a sporting goods store, purchase a firearm and walk out (after completing a NICS check).

        What is going on?
        After all that money spent, and all those people who have worked so hard and volunteered their time towards stricter firearms laws it seems as if we are going in the opposite direction since the 1800’s.

        What has gone wrong?
        Maybe nothing has gone wrong. Maybe it’s just because we have something that most other “advanced countries” don’t have…the second amendment.

  4. I really doubt this proposal, taken in its entirety, would pass 2A muster given the current and presumably near future SCOTUS and the chances of it passing in real world USA with all those red states dominating House and Senate seats is remote. Its the equivalent of a literacy and anti-terrorism test to use the Internet as a form of prior restraint. It would also put a substantial burden on the vast majority of gun owners who never cross paths with the law, so we are hassling the innocent to get at the guilty. But like Tom, I’ll leave that to 2A scholars and the courts to argue what is Constitutional and what is not. I’m not a ConLaw expert.

    The problems with the Charleston Loophole, so to speak, and the USAF fiasco in Texas speak to Federal incompetence or inconsistency in administering the laws on the books. I would not want to be burdened waiting indefinitely for a broken system to work or for a deep blue state to simply engage in foot-dragging on my application because it could. The system needs to be fixed, and if that means more Federal money to fix it, then it should be fixed on a cost/benefit basis. If a short extension beyond 72 hrs is needed in some cases, such as the Charleston shooter (which like the TX shooter, was caused by agencies fumbling the handoff), it should be on a case by case basis. But as we saw in Texas, no amount of waiting would be useful if agencies simply fail to put data in the system; the TX shooter would always get a clean bill of health because no one bothered to register his violent behavior. Plus, its not clear if a former spouse would be honest, given the number of messy breakups. If it takes me a minute to use my credit card on a slow day, it should not take days or weeks for a Federal agency to check its data bank. As much as I would like to be more sympathetic, I am increasingly uneasy with treating the guilty and innocent the same.

    Some sort of Federal FOID (Firearms Owner ID Card) as in Illinois could work as far as a substitute for a NICS check with periodic screening of the FOID database. Putting domestic violence restraining order data into NICS and having temporary repossession of people with DV restraining orders against them goes after problem children rather than the public at large. I’ve finally gotten The Trace to thinnk about giving tax breaks to people who buy gun safes (although who knows if gun owners would actually use them–see Nancy Lanza—and as Mike says, sooner or later those guns come out of the safe and go bang). Also, some sort of Federal baseline for interstate reciprocity could work if reasonable baseline standards were suggested. Neither side wants that to happen. The left because they would have to be reasonable and the right because they would have to be reasonable. New Mexico recognizes 24 other state’s permits and so far, no one has identified this as a crime problem. Our criminals are predicable– social outcasts, drug addicted/dealers, gang members, DV or repeat offenders.

  5. I agree with some of your points (thorough training, more in depth background checks). The problems I have are giving a spouse (or “intimate partner”) a “veto” over my decision to own a firearm. If there’s a history of violence, police would likely be involved which could be used as a neutral disqualifier.

    Also, who would you use for reference checks to determine alcohol/drug abuse? Are these checks with an employer? Neighbors? In the U.S., privacy and the right to NOT have my personal decisions reviewed by neighbors is important.

    Lastly, would your 10 day “waiting period” apply to each firearm purchase? Or would it just apply to the first purchase after my license is granted?

    • As far as ten days, I suspect it takes at least a few days for any permit of the type Tom is discussing to be granted by a state or Federal agency, given that these bureaucracies have wheels that turn at a glacial pace. I was pleased that my CHL got back to me in less than three weeks as they said on the form the equivalent of “don’t hold your breath”.

      Once a permit is granted and a person presumably has a firearm, there is no justification for further delays on a second purchase short of state or Federal trafficking or straw purchase concerns and I think those concerns are already reflected in law. For permit review, the cognizant agency can cross-link its database to those for arrests or restraining order issuance and react accordingly. Assuming all agencies are not as lazy as the USAF.

      Gotta laugh at your first paragraph. My wife detests guns and would probably refuse to sign off for me even knowing there is only the most remote of possibilities of me ever misusing one (I say remote rather than never because none of us can ever be 100% sure of anything unless we are dumb or foolish).

    • Steve,

      All great questions/points.

      There would be no intimate partner veto. I shouldn’t have used the term “sign-off”. What I am proposing is the notification of spouses when an individual applies for a license, at which point they can share with authorities any concerns they may have with regard to violence. The licensing authority would investigate such concerns and determine if they are valid and warrant consideration in the decision to grant a license.

      References would be non-familial individuals selected by the applicant and the applicant would grant law enforcement the right to consult with the references.

      The 10 days would apply to the granting of the license. The licensee could then proceed to purchase a firearm.

      Thank you.

  6. Gentlemen,
    Please indulge me for my gradual response (over the next few days) to your comments as I am dealing with some deadlines. They are all excellent comments and questions. I’ll just quickly respond to Khal’s point first about the Second Amendment and I agree that, with the current administration and perhaps the Supreme Court as well—if they took the case and they are rejecting some on gun-related issues—a national gun licensing system will not happen. However, as I explained in my book, my job is to identify measures that may work in combating gun violence and licensing appears to work in other countries and a few states and appeared to work in Missouri until it was rescinded. I would rather put potentially good solutions out there for people to discuss and debate then to censor myself and not even raise it because the political environment may not be favorable. That is the approach I am taking. Anything can happen politically and licensing is the centerpiece of what is done in other advanced countries and they are far more successful than we are in preventing gun violence.

    • Fair enough. Other nations not having a 2A or our tradition of a gun culture simply have a tiny fraction of guns compared to the US. and a tradition of restrictions. With so many guns out there in the US, its impossible to not have some diverted to or used in crime. I’d hypothesize that with a lot of restrictions there would similarly be fewer guns here to be held by malevolent hands (I think there is a general correlation between tough gun laws and reduced gun ownership by state, although I’m not sure which is the chicken and which is the egg).

      For that matter, the US has a significantly higher rate of traffic fatals than many Northern European nations for somewhat similar reasons. Our over-reliance on cars results in a case of Maslow’s Toyota and thus more exposure hours, and our penalties for misuse of cars, albeit misuse is not intended as violence, are lax as well compared to say, Germany. A few years back dethroned Tour de France winner Jan Ullrich came out of a bar and backed his car into a bike rack. No injuries but he was fined heavily and had his license suspended.

  7. I’m British. In Britain guns are properly regulated and their owners licensed, and because of this I don’t need a handgun strapped to my hip in order to walk down to the local shops. Most people don’t own guns, and don’t think about them from one moment to the other.

    However your scheme will fail because you have too many gun owners. There are about 1 million gun owners in Britain and 100 million in the USA. You will have to be picky about who you interview.

    So I propose:

    Step 1, background check. Applicants who fail this step are declined.
    Step 2, sieve. Factors are combined, and the most interesting 5% are interviewed. The other 95% are approved. Factors include genetic testing, FBI and local police interest,no-fly lists etc.
    Step 3, interview of applicant and references

    Since I am not Solon. someone else will have to make it work.

    • Francis,
      Any scheme for licensing of gun ownership in this country would absolutely need to overcome the suspicion that it was all intended as a first step towards UK levels of prohibition.
      Since I gather that you think UK level prohibition is a worthy goal, … maybe you can see the problem.
      In simple terms, compliance with such measures here would be more like the battles of Lexington and Concord than anything else.
      Here is a thought. Come up with meaningful rewards for getting a licence and there might be hope. And no, just not going to jail misses the mark by a mile.
      A meaningful reward.
      Imagine you are talking to a rancher in, say, Texas or New Mexico.
      That is the job, imho.

      • “… it was all intended as a first step towards UK levels of prohibition.”

        Thanks for your comments. My response is as follows:

        British gun law divides guns into two categories, Section 1 and Section 2.

        Section 2 covers shotguns – single barrelled, double barrelled; also pump action and semi-auto with a three round limit (which is probably where Mrs Loesch got her odd idea that all British guns are limited to three rounds). Section 2 is shall issue, in as much as if you know why you want a shotgun, are in a position to use it, and are a person of good character, then the license is yours.

        Section 1 covers everything else. Rifles, from flintlocks and caplocks through to AR-15s. Handguns, Semi-auto shotguns, pump action shotguns. Section 1 is may issue, as the police get to decide if you can have a license or not. There are some peculiar (and probably ineffective) clauses. All centre-fire semi-auto rifles have to be straight pull, a very expensive option. Handguns are either cap-lock or carbine, except in some places where Glocks are back on the menu (Northern Ireland, some smaller islands).

        In total 1 million gun owners, 2 million guns.

        I don’t know if the above counts as ‘UK levels of prohibition’ in your eyes. Just about everyone (*) of good character who wants guns can already get them.

        * My problem is that I live in part of the world where a car is not necessarily an advantage in day-to-day living. So, I don’t own a car, even though I have the money. However, for good practical reasons, the only places to shoot are deep in the countryside. No car means no guns. Rats.

        “Imagine you are talking to a rancher in, say, Texas or New Mexico.”

        Then I would say this.

        Gun licensing gives the police a much better chance to figure out who is trying to buy a gun than an insubstantial 3 second background check. That way thugs and crazy folk like Omar Mateen and James Holmes won’t be able to get guns. At the same time, a license means no more filling in background check forms, making it easier for people like them to get guns.

        Which is why most countries use gun licensing.

  8. Francis, Thank you for your input. While your figure for gun owners is high–it is just over half that according to surveys–your point is well taken. A licensing program would take several years to implement and could be self-financing, depending on the application fee. Your Step 2 would face legal challenges as people selected for closer scrutiny would object to the profiling. Also, the first two steps are somewhat redundant as a comprehensive background check would already include a vetting by law enforcement. This said, you are suggesting a more streamlined process due to the large number of owners and this is a valid issue that designers of a licensing system would need to consider.

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