Lethal Passage (35 page)

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EPTEMBER
1993, when I completed the original manuscript for this book, I was certain significant reform of America’s firearms regulations was a long way off and that a package like my Life and Liberty Preservation Act had little chance—to be more precise, “no chance in hell”—of being enacted. But much has changed, and I have since come to believe that progress toward rational regulation may in fact be inexorable now that America seems at last to have awakened to the obvious and mounting social costs of allowing the unimpeded flow of arms to kids, crack addicts, felons, and fugitives.

In August 1994 President Bill Clinton helped his Congressional allies muscle through a new crime bill containing a long-overdue ban on nineteen specific models of assault weapons and related guns. Among the specific models banned were the Intratec pistol used by Gian Luigi Ferri in his attack on a law firm in San Francisco; the semi-automatic AK fired by Patrick Purdy in Stockton; and the Cobray M-11/9 adopted by Nicholas Elliot for his attack on the Atlantic Shores Christian School.

A more significant but little-known portion of the crime bill substantially tightened regulations governing firearms dealers, requiring that license applicants be photographed and fingerprinted and that the dealers comply with all state and local laws governing
firearms dealerships, including zoning regulations. The law also dictated that ATF must provide to local law-enforcement agencies lists of firearms dealers in their territories. These requirements alone will begin to reduce the ranks of that vast army of “kitchen table” dealers who supply so many guns to America’s crooks.

In May 1994, President Clinton used his executive powers to halt the import of Chinese SKS rifles, ancestors of the AK-47 and once the standard infantry rifles of the Chinese, North Vietnamese, and Soviet armies. Chinese exporters, some with direct connections to the Chinese military, pumped the rifle into this country at such high volume that throughout much of 1993 a shopper could buy one for well under $100. As a consequence of its low price and its ready availability under regulations governing the sales of long rifles, the SKS became the only rifle to make ATF’s 1993 and first-quarter 1994 lists of the top ten weapons most commonly traced by America’s law-enforcement agencies. It was an SKS that Wayne Lo used in his massacre at Simon’s Rock College in Massachusetts.

The most important legislative advance toward public safety, however, was the activation of the Brady law early in 1994. News reporters, forced by space constraints to describe the bill in journalistic shorthand, managed to create the widespread impression that it merely established a five-day waiting period. In fact, the bill took a revolutionary step down the road to rationality.

Prior to the Brady law, a fundamental paradox governed firearms regulation. Everyone in America, even the most zealous NRA fundamentalist, has long agreed that certain people—felons, fugitives, and so forth—should not be allowed to buy guns. Yet Congress, until it passed the Brady law in 1993, never took the necessary next step of establishing a practical means of eliminating those very people from the marketplace. Society’s only brake on the wholesale distribution of firearms to killers and robbers was the rather flimsy form 4473, which, as I showed on
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, asked illegitimate buyers to disqualify themselves at the point of purchase and stayed in dealers’ files unvetted by anyone.

Brady’s major accomplishment was to establish for the first time in American history a uniform minimum background check on all handgun purchasers and thus take the responsibility for screening buyers from the hands of America’s gun dealers. Brady exempted states such as Maryland, California, and Florida, which already had some form of background-check system. But elsewhere, where sales of handguns hitherto had been virtually unregulated, prospective buyers now had to wait five days while local law-enforcement officials conducted a background check.

Such checks constitute a powerful limit on distribution of firearms to the wrong people. In 1991, Florida began an instant background-check program. The process takes an average of three and a half minutes, but in 1993 alone the program unconditionally barred 7,534 purchases of firearms by known crooks. It blocked another 13,274 purchases attempted by persons who had been arrested for “dangerous crimes” but whose cases had not yet been fully adjudicated. The program also intercepted 854 purchases attempted by buyers wanted under felony and misdemeanor warrants.

The fact that so many felons, fugitives, and other dangerous souls still try to buy guns from licensed dealers, despite such checking networks, indicates the extent to which they had become accustomed to the easy access afforded in the past by form 4473. Old habits, apparently, die hard.

A couple of vast gaps still remain in America’s system of firearms regulation. People spurned by legitimate dealers can turn to other avenues of firearms access that remain wide open, the most notorious being the private marketplace, where gun owners remain free under federal law and most state laws to sell handguns and rifles from their personal collections to any adult they please without so much as asking to see a driver’s license. Even the new Brady law does not apply in such sales. Like most federal gun-sale laws, Brady regulates only transactions conducted through federally licensed dealers. “It’s not even a loophole,” one Colorado law-enforcement official told me. “It’s a chasm.”

One Saturday in the summer of 1994 I paid a visit to Happy’s Flea Market in Roanoke, Virginia. Sellers of collectibles rent space inside the defunct Happy’s Recreation Center on a more or less permanent basis, but on weekends anyone with something to sell can pay a fee and set up shop in the field out back. At the end of the last row I found a jovial man selling rifles and several high-quality pistols, including a Smith & Wesson 9 millimeter and a Colt .45. At another table, this one erected in front of a large RV, I found a woman sitting before a table strewn with what at first appeared to be the usual flea-market fare. As I got closer, however, I saw that her merchandise included a few high-quality handguns and one cheap derringer. Two men at two other tables sold rifles. In still another row, a sullen man stood before a flame-red Ford Fairlane, idly flipping the cylinder of a small-caliber pistol. Both the pistol and the Fairlane were for sale.

That afternoon I drove north a hundred miles or so to Harrisonburg, Virginia, to visit a gun show under way at the fairgrounds just south of the city. Dozens of federally-licensed gun dealers had spread their guns atop folding tables. As federal licensees they were obligated to obey all federal and state regulations governing firearms sales, including Virginia laws requiring an instant background check on handgun purchases and limiting such purchases to one a month. The same laws, however, did not apply to a young man and his female companion, who walked the aisles with signs pinned to their backs advertising two German Lugers and an M-1 carbine for sale. Nor did these laws apply to a man who had settled in a chair at one end of an empty table, where he had opened his attache case to display four handguns offered for private sale. Outside, at an adjacent flea market, another six men were peddling their personal weapons. Anyone, with any kind of record, could have bought a handgun here. A three-hour drive would have brought the buyer to Washington or Baltimore, two cities where murder has eclipsed stickball as a pursuit of the young.

Accountability continued its traditional absence from America’s
gun trade. Certain guns, most notably the inexpensive Raven, Jennings, Davis, and Lorcin pocket semi-automatics, are well known to police as weapons commonly used in crime. In the first quarter of 1994, the Lorcin L380, a .380 caliber pistol, was the most frequently traced weapon in America—traced more often than the Smith & Wesson .38 revolver, produced and distributed over the years in numbers that dwarf the Lorcin’s production. Next in line came the Davis .380, Raven .25, Lorcin .25, Mossberg Model 500 shotgun—an emerging favorite among crooks—and the Jennings .22. The manufacturers clearly know the extent to which their products are implicated in the country’s serious crimes because they field the calls from ATF’s tracing center. Yet they continue to produce the weapons, distributors continue to buy them, and dealers—even some who work full time as police officers or police department armorers—continue to sell them. No public means exists for regulating the design of such guns, or their manufacture and distribution. We have outlawed the importation of such weapons from foreign manufacturers, but otherwise we leave such matters to the good conscience of our domestic producers, because they are, after all, red-blooded American companies.

Privately, the big manufacturers complain that they are misunderstood, that the liberal media distort their beliefs. They argue that they are simply producing legitimate products; that their responsibility ends when the guns arrive at the warehouses of their distributors. The distributors, in turn, say their responsibility ends when the guns reach the retail dealer. And the dealers say they cannot police the behavior of their buyers. A gun, as Shane said, is just a tool, only as good or as bad as the person who wields it.

However frivolous these arguments seem when juxtaposed with year-end tallies of America’s gun-shot dead, they nonetheless tug resilient strands from that web of beliefs that define America and Americans: the free market, self-determination, the right to keep and bear arms, an armed populace as a check against tyranny.

But reform of America’s firearms regulations will continue. One
day a truly rational system of firearms laws will exist, because such a system
must
exist. It is the only rational course, and for a culture like ours that still prides itself on common sense and rationality, it is an inevitable course. Stranger things have happened in the world. The Soviet Union collapsed. Israel and the PLO settled their feud. A truce was declared in Northern Ireland amid talk of an end to the Troubles. And America at last seemed to have awakened to what doctors and the American Cancer Society had said all along, that tobacco is indeed inherently dangerous, that smokers ought to be isolated, and that tobacco companies ought at last to begin bearing the social costs incurred by smoking.

A similar sea change seemed under way with regard to guns. Gun buy-backs and swaps began to proliferate, providing little direct impact on crime but helping to raise consciousness about guns and their prevalence in America. Major newspapers around the country launched multi-part investigative reports on guns and the gun trade. Grassroots organizations, similar in design and spirit to Mothers Against Drunk Driving, began forming in New York, Los Angeles, and elsewhere. And for the first time, large masses of individual citizens began marching for firearm-regulation reform. In Maryland, marchers advanced on Annapolis, the state capital, in support of new gun legislation. In San Francisco, some one hundred thousand people marched down Market Street at the center of the city on the one-year anniversary of Ferri’s law firm rampage. By the fall, grassroots activists were planning a “Silent March” on Washington. They proposed to set down an empty pair of shoes for every man, woman, and child killed with a firearm, and to array these shoes in a single line ending at the Capitol steps. Public service ads, including one featuring President Bill Clinton, began urging a reduction in violence. Granted, no gang leader in South Chicago is likely to pay much attention to such ads, but, like gun buy-backs, they help energize the plasma of public opinion and reinforce the still all-too-novel idea that firearms violence is unacceptable.

Increasingly, victims and gun-control advocates have turned to
the courts to try to force the firearms production and distribution network to a higher level of accountability. In the spring of 1994, a civil jury in Texas—a state known for its tolerance of guns—assessed a $17 million penalty against Remington Arms Co. after finding that the company knew of a design defect in one of its rifles, a defect which cost the plaintiff one of his feet. Just over $2 million of the award represented actual damages; the rest were punitive damages. In 1994, the Center to Prevent Handgun Violence, an affiliate of Handgun Control Inc., went so far as to file a lawsuit against Intratec, alleging the TEC-9 pistol used by Ferri was an unduly hazardous product.

I have often thought that such lawsuits could show the way to the ultimate solution to the problem of limiting the flow of guns. Suppose once again America repealed all its gun laws—but now imagine replacing those laws not with my Life and Liberty Preservation Act, but with a single federal law assigning to gun manufacturers strict liability for the use of their products. In other words, suppose Congress made America’s gun industry financially responsible for every time a firearm was used to injure or kill someone. Justifiable shootings by police or by citizens defending themselves would of course be excepted.

The NRA and its libertarian core would get what they have sought all along: unrestrained access to firearms. Manufacturers could build and sell any weapons they chose, distributors and dealers could sell them to anyone, including felons, fugitives, drug addicts, and children. But all parties in the distribution chain would now have to accept legal and financial responsibility for such libertine commercial behavior.

I guarantee that within a breathtakingly short period of time, the manufacturers, distributors and dealers of America would by themselves establish a more stringent, more efficient, more highly automated system of distribution restrictions than anything ever dreamed of by Handgun Control Inc. Suddenly all firearms would be childproof, perhaps with built-in combination locks; the manufacturers’
advertising would concentrate on assuring the market that guns were as macho as always—just different. All pistols would include magazine safeties, which deactivate the firearm when the magazine is removed, thus ensuring that no one gets hurt if someone forgets there is a live round still in the chamber. Manufacturers doubtless would require gun buyers to present some kind of prior medical authorization—a kind of prescription—to assure them that the buyer was not insane, depressed, despondent, or otherwise likely to contemplate murder and suicide. The first thing the manufacturers would do is make gun proficiency and safety education a mandatory requirement for gun ownership. In short, with one bold stroke America could eliminate all the bizarre and dangerous behaviors of the firearms trade, and do it in a distinctly American, free-market way.