Should someone who wants to buy a military-style assault weapon be required to undergo a criminal background check?

In America they don’t have to.

In fact, felons, gangsters, wife-beaters, and the dangerously mentally ill can buy as many military-style assault weapons, semi-automatic pistols and other firearms as they can carry, with no questions asked.

They just have to know where to go.

It’s no secret. There are thousands of gun shows in 43 states that don’t require Brady criminal background checks for all gun show sales.

Why do criminals and traffickers go to gun shows? As the bank robber Willie Sutton might have put it, “Because that’s where the guns are.”

Our weak gun laws make it lethally simple for unlicensed gun vendors to sell as many firearms as they can to whomever they can, cash and carry.

Colin Goddard proved it. Colin survived being shot four times at Virginia Tech on April 16, 2007. After learning more about our nearly non-existent laws restricting access to guns, he took it upon himself to document how easy we make it for dangerous people to get guns in this country.

Watch Colin’s story here:

This past summer, Colin went to gun shows across America in Minnesota, Ohio, Texas and his home state of Virginia.  Equipped with a hidden camera and accompanied by a resident of each state he visited, Colin filmed how recklessly – even callously – unlicensed gun sellers sold military-style assault weapons and semi-automatic pistols with no criminal background check, and without even requiring identification.

Currently, the Brady Law, requiring criminal background checks on gun buyers, applies only to Federally licensed gun dealers.  A loophole in the law allows the kind of gun sales that Colin was able to document in the video below: unlicensed gun sellers unloading their guns to anyone who has the cash.

Watch what Colin found here:

One gun show seller in Ohio sold an AK-47 military-style assault rifle to Colin’s associate, even after he said he didn’t have identification with him. After taking his cash, the gun seller told him, “Have fun with it.”

Another gun seller in Minnesota sold a semiautomatic pistol with no questions asked. In fact, he clearly knew the underhanded nature of his business when he told Colin and his associate with a laugh: “OK, there’s no tax. There’s no paperwork. That’s worth something.” This seller clearly didn’t care who his gun buyers were, anticipating that some of them will actually pay a premium to avoid a criminal background check altogether.

A gun seller in Virginia sold Colin a rifle with a high-capacity ammunition magazine and was only concerned about the sale price. He didn’t ask Colin a single question about his background, didn’t ask to see any identification, and didn’t ask why he wanted the weapon.

The gun lobby, led by the National Rifle Association, fights to keep these sales legal. Due to their lobbying, any felon can walk into one of approximately 5,000 gun shows in 43 states that don’t require criminal background checks at gun shows, and buy whatever weapon he wants from these unlicensed gun sellers.

America’s weak gun laws practically invite dangerous people to arm themselves.

You can help can change this by joining us in telling Congress to stand up to the gun lobby and require all gun buyers at gun shows to undergo a Brady criminal background check.

We make it too easy for dangerous people to get guns in this country. Tell Congress to close “the gun show loophole.”

Please go to www.bradycampaign.org and sign our petition today.

(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.)

We know that individuals can defy the law. Can a state legislature defy the law? When it comes to the gun issue, apparently it can.

I refer to the extraordinary legislation passed into law by the states of Montana and Tennessee declaring that guns or ammunition manufactured and retained entirely within the borders of those states are “not subject to federal law.” Apparently, similar legislation has been introduced in Texas, Alaska, Minnesota, South Carolina, Florida, Arizona and Colorado.

Can a state unilaterally exempt its homemade products from the reach of federal law? Only if it is prepared to defy the United States Constitution.

Under the Constitution, Congress has certain enumerated powers, including the power “to regulate Commerce . . . among the several states.” In its 2005 ruling in Gonzales v. Raich, the Supreme Court reaffirmed the principle, first set out in the Depression-era case of Wickard v. Filburn, that the Commerce Clause allows Congress to regulate purely intrastate activity involving a product, if it rationally concludes that to leave such activity unregulated would undercut its regulation of interstate commerce in the product. In Gonzales, the Supreme Court upheld Congressional power to ban the possession and use of marijuana, even by a California resident who cultivated her own marijuana and used it for personal medical purposes within the state entirely in accord with state law.

There is no doubt that, under these Supreme Court rulings, Congress has the power to regulate the manufacture and sale of guns that never cross the borders of Montana or Tennessee. Although some may disagree with this reading of the Commerce Clause, the more fundamental point is that, under our Constitution, the scope of federal Commerce Clause power is not for individual states to decide. In addition to misunderstanding the Commerce Clause, legislators in Montana and Tennessee seem prepared to defy the Supremacy Clause, under which federal enactments “shall be the supreme Law of the Land . . . .” As the High Court made clear in Gonzales, “the Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail,” meaning that “state action cannot circumscribe Congress’ plenary commerce power.” The Gonzales Court expressly rejected Justice Thomas’ radical suggestion in dissent that “States possess the power to dictate the extent of Congress’ commerce power . . . .” Isn’t that exactly what Montana and Tennessee think they have done?

The idea that states can unilaterally “opt out” of federal law is not new. Its ancestors range from the 18th century Anti-Federalist opponents of the Constitution, who thought only the states should have the power to regulate commerce, to John C. Calhoun’s nullification doctrine that led to the Civil War, to Governor George Wallace standing in the doorway defying the Attorney General of the United States, who was enforcing a federal order requiring the enrollment of black students at the University of Alabama. In short, on the issue of gun control, Montana and Tennessee have cast their lot with the historic “losers” in the great constitutional debate over state vs. federal power.

The enforceability of federal gun laws against purely intrastate conduct in Montana and Tennessee seems destined for the federal courts. The question arises: If these states believe they have the authority to exempt gun manufacturing and sales from federal law, do they also claim the authority to defy federal court rulings – even by the Supreme Court – to the contrary? Is secession next?

For more information, see Dennis Henigan’s new book, Lethal Logic: Exploding the Myths that Paralyze American Gun Policy.

By Doug Pennington
Assistant Director, Communications

Freakonomics co-author Steven Levitt posted a request on his New York Times blog, asking readers to offer ideas for reducing “teen shootings” in President Obama’s adopted hometown of Chicago.

Some 300 public school students have been shot since September 2008.  Over 40 Chicago kids have been killed since January 1.

Levitt writes:

…But how do we reduce the violence? The political reality is that any strategy has to reduce violence quickly. While early intervention into the lives of young children might lower future violence, more is needed in this setting. Shootings need to be reduced now….

…Thus, I turn to you, the blog readers. Assuming that you had access to some resources, what approach would you take to try to address this problem? Dare to be creative. Most of the obvious things have already been tried and largely failed. We desperately need fresh ideas.

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Levitt’s call comes in the wake of the vicious murder of Chicago Public School student Derrion Albert who, contrary to the shooting trend, was killed with wood planks.  His murder was filmed on a camera phone, and the video made national news.

After that high-profile incident, President Obama sent his Attorney General and Education Secretary to Chicago to talk about a problem they vaguely called “youth violence.”

Both cabinet officials gave speeches.  Whether out of political fear or something else, neither could bring himself to utter the word “gun.”

Bearing this in mind, a couple of points are worth making in offering an answer to Levitt’s call.

First, the wheel may not need to be totally re-invented. The University of Chicago Crime Lab has already begun working to produce “fresh ideas” and practical solutions to the problem of Chicago school kids shooting each other.  People in a position to make policy may want to begin there, and then work their way outward.

Second, the “political reality” is that there are no quick-fix solutions that will reduce shootings right “now.”  They don’t exist.  The only solution to Chicago kids shooting each other is the comprehensive kind, requiring a long-term, focused approach, an investment of resources into that approach, and the courage of politicians to protect their community – and their country – from gun lobbyists who are worried more about their special interests than they are keeping guns out of the hands of illegal traffickers, felons and children.

Third, separating kids from guns has to be part of this approach.  There is no alternative.  With 300 Chicago school children shot since last September, it is an essential part.  There isn’t an epidemic of kids killing each other with wooden boards in Chicago.  You want to know why?  Because guns are much better at killing people and Chicago’s kids have easy access to them.

(By way of comparison, according to national FBI statistics, 37 school-age kids between the ages of 5 and 19 were killed with blunt objects in 2008.  With a firearm? 1,531.  England and Wales, on the other hand, have about 60 gun murders total in a given year.)

Finally, Chicago can’t do it alone.  The city needs national help. Gun advocates take pleasure in pointing to the so-called “failure” of Chicago’s gun laws.  Those same advocates cower from the uncomfortable fact that Chicago is within a 5-hour drive from some of the weakest gun law states in America: Indiana, Kentucky, Michigan, Missouri, Ohio and Wisconsin.

None of these states scored more than 25 points out of 100 on our most recent State scorecard.  Even Illinois fails to break 30 points.  How is a city that wants strict gun regulations supposed to hold back a tide of illegal firearms all by itself, as they wash over its border from these weak jurisdictions?  It can’t.

Chicago needs meaningful help from Congress and the White House who, in turn, need to tackle the illegal gun market – and the gun lobby that enables it – head-on.

Without a strong national gun violence prevention safety net, city ordinances alone, while still useful to local law enforcement, can’t be expected to carry the whole burden of keeping guns out of the hands of children and teens.

Steven Levitt writes that in Chicago, “most of the obvious things have already been tried and largely failed” and that “shootings need to be reduced now” with “fresh ideas.”

Have they really been “tried”?  Or have national politicians just given them lip service, leading many observers to just throw up their hands?

Levitt’s urgency for the quick fix is well taken.  But as in the more prosaic need to lose weight, everybody wants that magic weight loss pill rather than be told to exercise more and eat less.

Magic wands are for Harry Potter.

In the real world, only hard work, adequate resources, a laser-beam focus on proximate and remote causes, a sustained commitment over the long haul, and the courage to fight special interests who stand in the way of saving children’s lives will lead to permanent solutions to complex social problems.

The epidemic of Chicago school kids shooting and killing each other by the dozen is one such problem.

__

Doug Pennington
Assistant Director, Communications

Want to see the gun show loophole in action?

The Kansas City Star reports today on a guilty plea by someone who admits to frequenting gun shows, buying and selling assault weapons, and sending weapons to Mexico:

…Mynor Guerra, 25, a Guatemalan citizen who was living in Overland Park, was arrested at a Kansas City gun show in June by federal agents who confiscated two AR-15 semi-automatic rifles from the trunk of his car. He had a phony Missouri driver’s license and used a fake Social Security number, according to federal prosecutors….

[more]

Guerra’s plea agreement is even more eye-opening.

From pages 2 – 4:

…On July 25, 2009, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) conducted surveillance of a gun show being held at the Expo Center at Kansas City International Airport, in Kansas City, Western District of Missouri. Around 12:30 p.m., Agent Gordon Mallory observed Mynor GUERRA carrying an AR-15 rifle. He was outside the Expo Center in a parking lot walking away from the front doors. GUERRA took a circuitous route to his vehicle, which was parked behind the adjoining hotel to the west of the Expo Center. He looked over his shoulder several times. He placed the weapon in the trunk of a Green Toyota Camry….

GUERRA walked back into the show, approached a display table, pulled out a large sum of cash, and proceeded to purchase a second AR-15 rifle without filling out any paperwork. GUERRA immediately exited the building and began walking away, again taking a circuitous route to his vehicle. Eventually, he made his way to the Camry and put the rifle in the trunk. Uniformed officers of the Kansas City, Missouri Police Department stopped GUERRA’s green Camry a short time after he departed from the gun show. When stopped, he presented a Missouri driver’s license issued to Elliot C. Oquendo, an Hispanic male, d/o/b 05/02/1982.

…After about ten minutes of false stories, the suspect admitted that he was Mynor GUERRA and that he was an illegal alien from Guatemala. He was arrested for being an illegal alien in possession of firearms, specifically two AR-15 style rifles. The rifles were recovered from the trunk along with gun show calendars listing shows in several different states. Also recovered were two clips, one designed to hold 15 rounds of ammunition, and a second designed to hold 30 rounds. The first rifle was a Stag Arms, model Stag-15 .223 caliber rifle, # 41720, manufactured in Connecticut. The second rifle was a Bushmaster, model XM-15-E25, .223 caliber rifle, # L141024.

…GUERRA admitted that he sells guns for extra money and that he had been planning on selling the two rifles. He admitted to buying and selling guns for the last six months, and he specifically described buying at [sic] seven firearms at gun shows for $550 to $850 each. He stated that he sold the guns to an intermediary, and the guns then went to Mexico. With GUERRA’s consent, officers conducted a search at his apartment at 6402 W. 89th Street, Apartment #1, Overland Park, Kansas. GUERRA’s girlfriend Deby Verbena was interviewed at the residence, where she also lived. She stated that GUERRA goes to gun shows and that he sells guns. Six magazines and nine handgun holders and cases were discovered in the residence along with various gun cleaning supplies and firearms manuals. Five gun show calendars were also discovered as well as a Western Union receipt in the amount of $4000 to Elliot Castro Oquendo. Three Social Security cards in Elliot Castro Oquendo’s name were also recovered.

By entering into this plea agreement, the defendant admits that all of the preceding facts are correct….

These events are not surprising.  Investigators have shown how easy it is to avoid background checks at gun shows over and over again.

Meanwhile, the National Rifle Association tells us the gun show loophole doesn’t exist.

They should ask Mynor Guerra.  He knows it exists.

He used it to buy illegal assault weapons with no background check and no paperwork.  And all that unlicensed gun show sellers needed from him was his cash.

After Guerra’s purchases, he re-sold his assault weapons to a middleman who sold them again into Mexico, where drug gangsters use them to kill police and innocent civilians.

Make no mistake: this is the illegal gun market that the NRA and their apologists in Congress fight every day to keep free of criminal background checks and other reasonable regulations.

At the same time, American criminals know the gun show loophole exists, too.

And like Mynor Guerra, they exploit it for everything it’s worth.

___

UPDATE: On receiving queries from some readers, we’ve changed the title of this post to  reflect “immigrant” rather than “alien,” which is pejorative in many immigrant communities.  “Alien” is used in the plea agreement, and we copied that language into the title.  No offense was intended.

Recently the press reported two items of good news in the fight against gun violence, but even good news reminds us of how far we need to go.

The Seattle Times reported that Brian Borgelt, the former owner of Bull’s Eye Shooter Supply, the notorious Tacoma, Washington gun shop that supplied the gun used in the 2002 D.C.-area sniper shootings, had lost his lawsuit seeking to have his firearms dealer license restored. From the opposite coast came the news that Philadelphia’s Colosimo’s gun shop, which had long been among the nation’s leading suppliers of illegal guns, finally was slated to lose its federal dealer’s license.

Borgelt hit the headlines after the DC snipers, John Muhammad and Lee Malvo, were arrested after killing ten and wounding four others during three weeks of horror in October, 2002. Authorities traced their Bushmaster assault rifle to Borgelt’s gun shop, but Borgelt claimed he didn’t even know the gun was missing. Borgelt could produce no record that the gun had been sold, nor that it had been reported missing or stolen (as required by federal law). It turns out that the snipers’ Bushmaster was only one of 238 Bull’s Eye guns mysteriously missing and unaccounted for in the previous three years. Either Bull’s Eye was actively corrupt, or grievously negligent. Either way, Borgelt did not deserve a license to sell guns to the public.

Colosimo’s is being closed under a plea agreement with federal prosecutors, who had evidence that the gun shop had knowingly sold guns to three people (some of whom were undercover agents) acting as “straw buyers” — that is, buyers with clean criminal records acting as intermediaries for those who would have been blocked by Brady Law background checks. Colosimo’s had been the subject of community protests for its record of supplying crime guns and its refusal to sign a voluntary Code of Ethics.

Yes, we can breathe a sigh of relief that Borgelt and Colosimo’s will not be selling guns. But these cases nevertheless are reminders that our weak gun laws are no match for the problem of corrupt and reckless dealers. In both cases, their licenses were lifted long after they had inflicted grievous harm on their communities. During the period 1997-2001, Bull’s Eye ranked in the top 1% of dealers in guns sold and traced to crime; its guns had been traced to homicides, kidnappings and assaults. As far back as 1996, Colosimo’s ranked in the top ten dealers nationwide for guns traced to crime. Yes, these dealers finally were shut down. But not before they had supplied the criminal market in their communities for many years.

How guns get into the hands of criminals is no mystery. Crime gun trace data accumulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) shows that almost 60% of crime guns originate with about 1% of the nation’s gun dealers. Yet irrational statutory constraints on ATF’s enforcement authority, inserted in federal law during the Reagan years at the behest of the gun lobby, handcuff the Bureau in taking on corrupt dealers. For example, to revoke a dealer’s license, it is not enough to show that the dealer violated the law; the violation must be “willful,” a test met only by proving multiple years of multiple violations.

Dealers tempted to break the law have no strong incentive to obey it. Far too many dealers are willing to engage in blatantly illegal conduct. In 2006, New York City conducted “sting” operations in five states, with undercover investigators posing as straw buyers. Twenty-seven of the dealers were videotaped completing obvious straw sales. The problem may be even more acute at gun shows. Recently New York City completed a new undercover investigation, this one directed at gun shows, in which investigators again posed as obvious straw buyers. Incredibly, 16 of 17 licensed dealers approached by investigators at five gun shows willingly sold to apparent straw buyers.

Congress has made a bad situation worse in recent years, by enacting legislation to limit civil suits against dealers and, in the infamous Tiahrt Amendments, blocking an ATF rule requiring annual dealer inventories (which could have prevented the arming of the DC snipers) and preventing public access to the crime gun trace data allowing us to know which dealers contribute the most guns to the criminal market. Now the gun lobby is pushing the ill-named “ATF Reform and Firearms Modernization Act” (S.941), sponsored by Senator Mike Crapo (R-Idaho), which would make it even more difficult for ATF to crack down on corrupt and reckless dealers.

President Obama and Speaker Pelosi both have spoken of the need for better enforcement of existing gun laws. When will the Administration and the Congressional leadership call for new legislation to give ATF the tools it needs to enforce the law against the gun dealers who are flooding our communities with illegal guns?

For more information, see Dennis Henigan’s new book, Lethal Logic: Exploding the Myths that Paralyze American Gun Policy.