Preventing Illegal Possession
Preventing Illegal Possession
Evidence
suggests that the vast majority of firearm crimes are committed by those who
illegally possess the gun involved. Consequently, gun-rights advocacy
supporters frequently claim there is no point in putting further restrictions
on gun ownership since criminals will not follow the law and all you are doing
is penalizing law-abiding gun owners. This is a very defeatist attitude
implying that since it is difficult stopping criminals from obtaining firearms
why even bother to try and stop them. As we shall see later in this post there are several ways in which it can be made more difficult for criminals to
obtain firearms. Additionally, we will review the broader concept of illegal
possession which is not just confined to criminals.
So
just how many firearm crimes involve illegal possession? The only federal data
available was tracked in 2004 when the U.S. Bureau of Justice
Statistics surveyed inmates in federal and state prisons, asking
those who had a gun during their crime where they originally obtained it. About
48 percent of state prison inmates surveyed said they got their gun from a
family member, friend, gun store, pawnshop, flea market, or gun show. Some of
these 48% would be legal and some would be illegal depending precisely on how
the gun was obtained and their criminal status at the time of possession. Forty
percent of state prison inmates admitted they obtained the gun illegally on the
black market, from a drug dealer, or by stealing it. This would leave just 12%
purchased through licensed gun stores which would require some form of
background check.[i]
Regional
studies also tend to find a high share of criminals who did not legally possess
a gun when they committed their crimes. For example, researchers at the
University of Pittsburgh teamed up with the Pittsburgh Police Department in
2016 to look at almost 900 firearms recovered from crime scenes in 2008. They
found the criminals did not legally possess their guns in 80 percent of the
cases [ii]. The Pittsburgh study
also found that more than 30 percent of the guns that ended up at crime
scenes had been stolen and that more than 40 percent of those stolen guns
weren't reported by the owners as stolen until after police contacted
them when the gun was used in a crime. One of the more concerning findings in
the study was that with 62% of guns recovered, the place where the owner lost
possession of the firearm was unknown.[iii]
Based
on inmate surveys, it would appear that gang members, violent criminals,
underage youths, and other dangerous people usually get their guns from an
acquaintance or family member. They get these guns in many ways including
purchasing, swapping, borrowing, sharing, or stealing them. Social networks
also play an important role in facilitating firearm transactions and gang
members who hang out with people who have guns will find it relatively easy to
obtain a gun. Effective policing of the underground gun market would help to
separate guns from everyday violent crime, but currently, it is rare for those
who provide guns to offenders to face any legal consequences.[iv]
Although determined criminals will always be able to get their hands on a gun, it would make sense to make gun owners more responsible for not allowing guns to get into the wrong hands. The Giffords Law Center has published a helpful website summarizing the laws surrounding the reporting of lost or stolen firearms[v]. Surprisingly, federal law does not require individual gun owners to report the loss or theft of a firearm to law enforcement, even though the public overwhelmingly supports laws requiring the reporting of lost or stolen firearms.
Researchers
have estimated that more than half a million firearms are lost or stolen from private residences
in a single year, but according to the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) data, private individuals only reported the loss or theft of
173,000 guns nationwide in 2012. This discrepancy suggests that the majority of
lost or stolen firearms are never reported to law enforcement. Laws requiring
the reporting of lost or stolen firearms are useful to law enforcement for
several reasons.
Firstly,
when a crime gun is traced by law enforcement to the last purchaser of record,
the person who purchased the gun may often claim that the weapon was lost or
stolen to hide his or her involvement in the crime or in intentionally
trafficking the gun to a prohibited person. Reporting laws provide an
important tool for law enforcement to detect this behavior and charge criminals
who engage in it. Additionally, individuals who repeatedly report their guns
lost or stolen also put law enforcement on notice that they may be trafficking
firearms on the black market.
Secondly,
reporting laws help to disarm prohibited persons. When a person who legally
owned a gun falls into a prohibited category, such as after a serious criminal
conviction or domestic violence restraining order, it is crucial that law
enforcement remove the firearm from his or her possession. However, when
required to relinquish firearms, a prohibited offender or abuser may falsely
claim that his or her gun was previously lost or stolen. Mandatory reporting
laws provide a check against this behavior.
Thirdly,
the reporting requirement helps law enforcement track down missing guns and
return them to lawful owners before they fall into dangerous hands.
Finally, reporting
laws make gun owners more accountable for their weapons and help protect
rightful gun owners from unwarranted criminal accusations when a gun that was
lost or stolen from them is later recovered at a crime scene.
Where
enacted, these laws have been shown to correlate with significant reductions in
illegal gun trafficking. One study found that, per capita, states without lost
or stolen reporting laws are the source of more than 2.5 times as many crime
gun recoveries compared to states with a lost or stolen reporting requirement.[vii]
Giffords
Law Center has identified “Gun Trafficking” as the main way in which guns end
up being held illegally, with “Gun Trafficking” being defined as the diversion
of guns from lawful commerce into the illegal market. Studies of gun
trafficking have identified the following major channels of trafficked guns:
Corrupt
gun dealers - ATF data confirms that corrupt or irresponsible gun dealers are
the leading source of guns on the black market, responsible for nearly half of
the total number of trafficked firearms, uncovered in ATF investigations. Gun
dealers’ access to large numbers of firearms makes them a particular threat to
public safety when they fail to comply with the law. On average, ATF
trafficking investigations implicating a gun dealer involve over 350 black
market guns per investigation.
Strong dealer regulations, such as laws requiring licensing, inspections, employee
background checks, and videotaping of gun purchases, can prevent this conduct.
Unlicensed
Sellers - Federal law allows people who are not licensed gun dealers to sell
guns at gun shows, online, and in person. These unlicensed private sellers are
not required to conduct background checks or maintain records of purchasers. As
a result, they play a significant role in gun trafficking.
Lost
or Stolen Guns - Gun traffickers often falsely claim that guns they purchased
were lost or stolen to hide their involvement in crime. Laws that require
the reporting of lost or stolen firearms to law enforcement can provide a check
against this behavior.
Bulk
Firearm Sales - Gun traffickers often buy large quantities of guns at once in
order to supply them to convicted felons and other prohibited persons. A 2007
University of Pennsylvania report to the National Institute of Justice found
that guns purchased in bulk were up to 64% more likely to be used for illegal
purposes than guns purchased individually. Laws limiting the number of
guns that may be purchased in a single transaction help deter this conduct.
Straw Purchases - A “straw purchase” occurs when the actual buyer of a firearm uses another person, a “straw purchaser,” to execute the paperwork necessary to purchase a firearm from a firearms dealer. People who are prohibited from purchasing firearms and people who do not want to be identified through crime gun tracing often obtain firearms through straw purchases. By intentionally buying firearms for someone else, straw purchasers undermine background checks and gun safety laws and allow firearms to be funneled to violent criminals, domestic abusers, and other prohibited people. In 2000, an ATF study of 1,530-gun trafficking cases determined that straw purchasers were involved in almost one-half (46%) of the investigations, and were associated with nearly 26,000 illegally trafficked firearms. Subsequent ATF investigations at gun shows also uncovered “widespread” straw purchasing from gun dealers, where guns were diverted to “convicted felons and local and international gangs. In 2009, New York City officials investigated gun shows across the US to test whether, among other things, gun dealers would be willing to sell guns to someone who appeared to be a straw purchaser. New York’s investigation found that 16 out of 17 (or 94% of) dealers approached by investigators willingly sold to an apparent straw purchaser[viii].
The
fact that over 90% of gun dealers are happy to sell to probable straw
purchasers illustrates how profit takes precedence over safety. The dealer
knows he will not be held liable for any crime committed by the eventual user
of the gun and the dealer’s livelihood is selling guns, not worrying about
whether the gun will ever be used in a crime, or if the gun will be used to
injure or kill someone.
Although
the focus of this post has been on criminal activity, it must be noted that
illegal possession also covers underage possession of firearms and those who
have mental disabilities which makes it unsafe for them to possess firearms.
Underage possession covers both firearms illegally transferred or sold to
underage teenagers, who may want to commit crimes and younger children who get
hold of guns in their family environment. With regards to younger children,
parents need to be made more aware of the dangers of not storing firearms
securely, since firearm accidents involving children can
frequently have tragic consequences.
Concerning
mental illness, current federal laws on preventing those with mental
disabilities from accessing firearms are relatively weak. Under federal law, a
person can be tallied in a database and barred from purchasing or possessing a
firearm due to a mental illness under two conditions only; Firstly if he is
involuntarily committed to a mental hospital, or if a court or government body
declares him mentally incompetent.[ix] This, however, excludes the
majority of mentally ill people, such as those voluntarily requesting to attend
a mental hospital, those being looked after by family members, or those who
have not been reviewed by a court or government body.
Attempts
have been made to broaden the categories of mentally disabled people who would
be prevented from possessing firearms under federal law. These were however
overturned in 2017 when President Trump signed a measure that removed a
regulation aimed at keeping guns out of the hands of people who were either
receiving full disability benefits because of mental illness and couldn't work,
or people who were unable to manage their own Social Security benefits and
needed the help of third parties. The failure to introduce these additional
regulations is a typical example of freedom under the 2nd Amendment
rights being considered to be more important than safety to both the general
population and in particular the safety of those mentally disabled people
wanting guns. Suicide is a huge risk for those with mental illness and recent
studies have found that individuals with learning disabilities were
significantly more likely to attempt suicide than those without.[x] Giving these mentally
disabled people easy access to firearms dramatically increases the chances that
they will successfully commit suicide and is truly not in the best interest of
the individuals concerned.
Finally,
it should be noted that although the majority of firearm crimes are committed
by those who illegally possess the gun involved, the majority of shooting
victims are shot by legally held weapons. This will certainly be the case for
most suicides and accidents but it also applies to homicide victims. Additionally,
a study of mass shootings in the United States between 1982 and February 2020
found that legally obtained weapons were used in 82 out of 117 mass shootings.[xi]. These findings highlight
that in addition to preventing illegal ownership, gun safety policies need also
to focus on tightening restrictions on legal ownership.
[i] Clark, D. PolitiFact: Most guns in crimes obtained illegally.
Retrieved from https://www.ajc.com/news/national-govt--politics/politifact-most-guns-crimes-obtained-illegally/FdPGcFG853OoZCqmknRl3K/
[ii] Clark, D. PolitiFact: Most guns in crimes obtained illegally.
Retrieved from https://www.ajc.com/news/national-govt--politics/politifact-most-guns-crimes-obtained-illegally/FdPGcFG853OoZCqmknRl3K/
[iii] Ingraham, C. (2016, July 27). New evidence confirms what gun rights
advocates have said for a long time about crime. Retrieved from https://www.washingtonpost.com/news/wonk/wp/2016/07/27/new-evidence-confirms-what-gun-rights-advocates-have-been-saying-for-a-long-time-about-crime/
[iv] Cook, P. (2017, October 3). How dangerous people get their guns in
America. Retrieved from https://www.cbsnews.com/news/gun-sales-how-dangerous-people-get-weapons/
[v] Giffords Law Center to Prevent Gun Violence. Reporting Lost and
Stolen Firearms. Retrieved from https://lawcenter.giffords.org/gun-laws/policy-areas/gun-owner-responsibilities/reporting-lost-stolen-guns/
[vi] Giffords Law Center to Prevent Gun Violence. Polling on Reporting
of Lost or Stolen Firearms. Retrieved from https://lawcenter.giffords.org/polling-on-reporting-of-lost-or-stolen-firearms/
[vii] Giffords Law Center to Prevent Gun Violence. Reporting Lost and
Stolen Firearms. Retrieved from https://lawcenter.giffords.org/gun-laws/policy-areas/gun-owner-responsibilities/reporting-lost-stolen-guns/
[viii] Giffords Law Center to Prevent Gun Violence. Trafficking &
Straw Purchasing. Retrieved from https://lawcenter.giffords.org/gun-laws/policy-areas/crime-guns/trafficking-straw-purchasing/
[ix] Shortell, D. (2018, February 16). How do laws prevent mentally ill
people from buying guns? Retrieved from https://edition.cnn.com/2018/02/15/politics/mental-health-gun-possession-explainer/index.html
[x] Fuller-Thomson, E. (2017, July 5). Attempted suicide rates much
higher in adults with learning disabilities. Retrieved from https://www.healio.com/news/psychiatry/20170629/attempted-suicide-rates-much-higher-in-adults-with-learning-disabilities
[xi] Statista. (2020, February). Number of mass shootings in the United
States between 1982 and February 2020, by legality of shooter's weapons.
Retrieved from https://www.statista.com/statistics/476461/mass-shootings-in-the-us-by-legality-of-shooters-weapons/
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