The Brady Bill and Beyond:

A Review of a New Book on the Effectiveness of Gun Control


Friday, Feb. 7, 2003

James Jacobs, Can Gun Control Work? (Oxford Univ. Press 2002)

In his new book Can Gun Control Work?, James Jacobs doesn't so much enter the fray as propose terms for negotiations. He offers a persuasive critique of some common but misguided approaches to gun control. And in so doing, he helps point us toward strategies that might save lives while still accommodating the place guns have, and will continue to have, in our national life.

Gun Control as Crime Control

If gun control is the answer, what is the question? Guns are involved in deaths and injuries through a (comparatively) small number of accidents and a much larger number of suicides and crimes.

Some controls have been aimed at lowering the accident rate, mainly through requiring safety features. There is little we can do about suicides (the American suicide rate is about average for industrialized nations, including those with far fewer guns). At the end of the day, gun control in America is mainly justified by its effect on crime.

The problem is that divining the precise relationship between guns and crime isn't easy. Even as the number of guns in this country has grown steadily - there are now over 250 million of them, including nearly 100 million handguns - crime rates have fluctuated.

True, even when American crime rates ebb, some measures (such as our robbery rate) are consistently high compared to those of other countries. But it's hard to say that guns are the reason. By comparison, Israelis own guns in large numbers, but Israel has very little violent crime. And while America's robbery rate is astronomical, only one in five robbers carries a gun. Eliminate armed robbers and our rates still dwarf those of other nations.

Nonetheless, Jacobs's starting point is that guns are a crime problem. Some criminals are emboldened by their access to weapons, and some criminals who don't initially intend to hurt anybody (muggers generally prefer to take the money and run) end up doing terrible damage just because they're carrying a firearm. Domestic quarrels are dangerous enough, but if you put a gun in the house, bruises are more likely to give way to bullet wounds.

Jacobs correctly "assumes that guns are a problem," and asks how we can best address it.

How Can We Control Guns Given Broad Public Support for Gun Ownership?

America's experiments with banning guns - like the leaky 1994 prohibition on some assault weapons - haven't touched the handguns criminals prefer. Some gun control advocates understandably insist these have been half-way measures bound to fail, and urge us to go much further. To them, Jacobs has a simple response: ain't gonna happen. Politically and logistically, universally prohibiting gun ownership is impossible, even if (and it's a big "if") it remains constitutionally permissible.

For starters, the National Rifle Association is one of the most powerful lobbying organizations in the nation. But the NRA's success is, in one sense, misleading; it is not just another special interest group.

Fixated on the lobby's sometimes appalling rhetoric and knee-jerk opposition to virtually any regulation, gun control advocates have too readily caricatured their opponents as a rich but lunatic fringe.

This is a mistake. The support for gun-ownership in America is wide and deep.

Consider these statistics: over one-third of all Americans own guns; in some parts of the country, the figure is close to two-thirds. Jacobs is correct when he writes that guns are "deeply embedded in contemporary American culture."

Moreover, getting tens of millions of guns out of people's hands would require governmental intrusion into people's homes and lives on an unprecedented scale. The political will for such a program simply does not exist in America today, nor is there any evidence that it ever will. Prohibition is simply not in the cards.

The Regulation of Weapons Sales and the Brady Bill

Along with weapons bans, restricting the right to own or deal in guns has been the primary strategy for federal gun control since 1938. Some people - like convicted felons - simply cannot legally possess firearms. And most gun transactions involving licensed dealers are heavily regulated. But this regulatory framework is riddled with loopholes. Many people legally sell weapons without ever registering as dealers, and many sales (for example, those between private individuals) do not require any background checks at all.

The center of Jacobs's book is a study of the politics and policies behind the biggest component of this framework: the 1993 Handgun Control and Violence Prevention Act, better known as the Brady Law. The law imposes a floor that states can and sometimes do exceed, by enacting further gun control measures. It is the principal means by which the federal government regulates sales.

The biggest problem with Brady is that regulating sales works mainly with the law-abiding. Most gun buyers (including convicted felons) intent on committing crimes are unlikely to subject themselves to advanced federal scrutiny by trying to buy a gun from a federally licensed dealer - who, after the background check, wouldn't be able to complete the sale in any case. Such buyers are far more likely to seek out unregulated transactions.

It's true that hundreds of thousands of sales have been blocked by Brady checks. But Jacobs plausibly estimates that most of these either did not involve people planning crimes, or had no effect on the buyer's ultimate ability to get a gun. It's a common sense position and its validity is bolstered by interviews with criminals and traces on weapons used in crimes. These all confirm that the bad guys - when they aren't simply stealing or borrowing their guns - tend to get them in the black market.

The bad guys are not stupid. The illegal weapons trade in this country is vast, efficient, and profitable. And guns - including the nearly 100 million handguns in the country - are built to last. Even if not a single additional gun ever entered the country, the black market would still flourish for decades.

Jacobs's analysis has an important implication for future gun controls. If criminals prefer to get guns in ways that can't be traced, then successful gun control is not just a matter of closing regulatory loopholes. Requiring background checks for more sales (say, at gun shows) will do no harm and probably some good. But there is no particular reason to think that it will have a significant effect on crime.

Getting Guns Off the Streets: If Bans and Regulations Don't Work, What Does?

So if neither banning guns nor regulating sales holds promise, what gun control strategies do reduce crime? The main flaw in Jacobs's book is that he devotes too much time to the politics of the Brady Law and not enough to the issue of what works, though he does discuss some of the more likely approaches.

In the short run, our expectations will have to be modest. After all, a convicted felon can serve ten years just for having a gun, but that hasn't stopped millions of them from getting guns and using them. We can prosecute them aggressively when we catch them, but we'll always be one crime too late.

Jacobs is most sanguine about the prospect for eliminating guns from public spaces. While there is a public consensus favoring private ownership for sport or for protecting homes and offices, there is much less agreement that people have a right to carry concealed weapons in public.

There is, moreover, evidence that targeting guns carried in public - through aggressive but legal policing--reduces crime. Such approaches have limits. They are labor intensive, subject to abuse (through racial profiling, for example), and useless when it comes to the very real problem of gun violence in the home. But they are, at least, a proven and available tool.

In the long run, as the stock of old weapons slowly diminishes, the answer may lie in technology: "smart" guns, that can only be used by their owner, or search tools that can "see" whether someone is carrying a concealed weapon in public. Unfortunately, these inventions are mostly still on the drawing boards.

While waiting for technology to save us from ourselves, the combatants in the gun control wars should consider a cease-fire so everyone can read Can Gun Control Work? It may just serve as a basis for negotiating the peace.

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

FindLaw Career Center

    Select a Job Title

      Post a Job  |  Careers Home

    View More