From: lvc@cbnews.cb.att.com (Larry Cipriani)
Subject: Why Gun Waiting Periods Threaten Public Safety (part 1 of 4)
Organization: Ideology Busters, Inc.
Date: Fri, 24 Jul 1992 19:29:25 GMT

If you're going to advocate a gun waiting period you should know
what the costs of them are ...  If there is hardly any benefit to
doing it why bother ?  Just to feel politically correct ?

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                              March 25, 1991

              WHY GUN WAITING PERIODS THREATEN PUBLIC SAFETY

                             By David B. Kopel


Executive Summary

     'Honey, I forgot to duck.' Remember the day Ronald Reagan was shot? The
President, grinning up from his hospital bed on March 30, 1981, was able to
joke about a gunman's attempt on his life. But his press secretary, James
Brady, fared much worse; shots from the same pistol left him permanently
disabled. The nation was shocked, the gun control movement galvanized.

     This month's observance of ten years since the day Reagan and Brady were
shot by John Hinckley is an occasion for renewed consideration of what can
realistically be done to keep firearms from falling into the wrong hands and
being used for the wrong purposes.

     The leading proposal before Congress and state legislatures is to
require that any retail purchase of a handgun be preceded by a waiting
period, during which a background check on the purchaser's criminal and
mental record could be conducted.

     A waiting period has strong initial appeal. The tradeoffs appear
positive: relatively small costs in exchange for significant gains in public
safety.

     But an exhaustive study of the issue by attorney and gun control expert
David Kopel concludes that this perception is misleading. When all the
evidence is dispassionately weighed, all the consequences traced, Kopel finds
that there is a very real possibility that gun waiting periods *threaten*
public safety.

     The reason: law enforcement resources diverted and law-abiding citizens
disarmed. Proponents are doubtless right in saying that a federally imposed
waiting period would save at least one life somewhere, the author concedes.
But he says that is beside the point if America as a whole would be
marginally less secure against crime, violence, and fear as a result of the
new restriction. Kopel's research and analysis show why the waiting period's
vast cost is likely to more than cancel its apparent benefits.

     Advocates of the waiting period use the Hinckley case as a symbol,
opinion polls to suggest momentum, criminological studies and state
experience for empirical validation. None of the four stands up to scrutiny,
however. The proposed law would not in fact have halted purchase of the gun
used to shoot Reagan and Brady. Polling results turn out to be flawed and
mixed. No criminologist has shown that waiting periods work.  California
and other states with waiting periods show only a minuscule arrest rate
and widespread unfairness to the law-abiding.

     There is shock value in the scenario of guns "too easily bought" by drug
dealers, psychotic killers, persons bent on killing a spouse or themselves,
or purchasers intending to use them in hot blood. Yet hard data and common
sense show little benefit from a waiting period even in such lurid
situations.

     Against the meager-to-nil impact of waiting periods on crime control
must be set their clearly negative impact on the average American's ability
to count on police protection or protect himself.

     Specifically: Is it desirable to have law enforcement agencies bogged in
a vast new paperwork morass and harried with lawsuits over insufficient
background checks? To have a threatened person face dangerous, sometimes
indefinite, delays in obtaining a self-defense gun? To set in place a
mechanism for *de facto* universal gun registration and a political stepping
stone to outright gun prohibition? To legislate in disregard of the "no prior
restraints" and "least restrictive means" principles that should safeguard
not only the Second Amendment, but the whole Bill of Rights? All these are
foreseeable effects of the proposal.

     Alternatives to the waiting period proposal might include a
Virginia-style instant phone check on the purchaser's background, creation of
a firearms owner ID card, or adding one's fingerprint to a computerized
driver's license (the so-called 'smart card'). These measures are preferable
in many respects, since they are at least as effective as waiting periods at
disarming criminals, and are less likely to be used to disarm citizens. Yet
these alternatives, like the waiting period, are subject to evasion by
criminals and abuse by government administrators, and create serious risks of
privacy violations.

     Ultimately, the Kopel study concludes, practicality and
constitutionality are best served by strategies that aim to cut gun crime not
by targeting the legitimate retail firearms trade, but instead by aiming at
the black market where most criminals get most of their guns.

                 Copyright 1991 -- Independence Institute

INDEPENDENCE INSTITUTE is a nonprofit, nonpartisan Colorado think tank. It is
governed by a statewide board of trustees and holds a 501(c)(3) tax exemption
from the IRS. Its public policy focuses on economic growth, education reform,
local government effectiveness, equal opportunity, and the environment.

PERMISSION TO REPRINT this paper in whole or in part is hereby granted,
provided full credit is given to the Independence Institute.

DAVID B. KOPEL is an environmental lawyer and also an associate policy
analyst with the CATO Institute, a Washington, D.C. think-tank. He belongs to
the Independence Institute's group of newspaper and radio commentators, and
also speaks frequently on behalf of the American Civil Liberties Union of
Colorado speakers bureau.

EDITOR of the Independence Issue Paper Series is John K. Andrews, Jr.,
President of the Institute.

INDEPENDENCE ISSUE PAPER
No. 4-91   Independence Institute *, 14142 Denver West Parkway #101 Golden,
CO 80401  (303) 279-6536

------------------------------------------------------------

Note: The Independence Issue Papers are published for educational purposes
only, and the authors speak for themselves. Nothing written here is to be
construed as necessarily representing the views of the Independence Institute
or as an attempt to influence any election or legislative action.

-------------------------------------------------------------

                                                             March 25, 1991

              WHY GUN WAITING PERIODS THREATEN PUBLIC SAFETY

                             By David B. Kopel


CONTENTS


I. JOHN HINCKLEY .......................................................   2

     Handgun Control, Inc. claims that a waiting period and background
     check "certainly" would have stopped John Hinckley, who attempted
     to assassinate President Reagan. Yet Hinckley had no felony record,
     and no public record of mental disability.  HCI asserts that
     Hinckley was not a resident of Texas, the state where he bought the
     gun, and that a background check would have revealed that he was
     illegally buying a handgun in state where he was not a resident.
     The evidence indicates that Hinckley was a legal Texas resident. In
     any case, HCI's proposed background check involves only criminal
     and mental records, and not an address check. Accordingly, it is
     very unlikely that the background check would have affected
     Hinckley.

II. PUBLIC AND POLICE OPINION ..........................................  7
    A. POLICE  .........................................................  7
    B. PUBLIC OPINION POLLS ............................................ 10

     Polling data show that large majorities of American citizens, as
     well as of big-city police chiefs, favor a waiting period.  Polls
     of command-rank officers find them skeptical about waiting periods.
     For all the polling, flaws in the wording of the questions probably
     exaggerates the extent of public support and command-rank police
     hostility. In any case, polls are poor guides to public policy,
     particularly when Constitutional rights are involved. The reflexive
     hostility of some police officials towards the Second, Fourth, and
     Fifth Amendments to the Constitution should not be entitled to much
     weight in the deliberative process.

III. CRIMINOLOGICAL STUDIES  ...........................................  12

     Criminologists of every persuasion have examined waiting periods,
     and not one has found statistically significant evidence that
     waiting periods are effective. Studies of felony prisoners show
     that virtually none of them obtain crime guns by personal over the
     counter purchase, the only kind of criminal gun acquisition that a
     background check could stop.

IV. THE WAITING PERIOD (IN)ACTION  ......................................  15
     Although no evidence ties waiting periods to reduced crime rates,
     the experience of states with waiting periods shows about only a
     small percentage of retail gun buyers are denied because of
     criminal records. Of these, about 1% are deemed worth arresting.
     The number of people who are illegally or arbitrarily denied their
     right to bear arms by abuse of a background check system is about
     as large as, and sometimes far larger than, the number of criminals
     denied.

V. PARTICULAR TARGETS OF WAITING PERIODS   ............................   19
   A. DRUG DEALERS ....................................................   19
   B. HOMICIDAL MANIACS  ..............................................   20
   C. SUICIDES   ......................................................   21
   D. DOMESTIC HOMICIDES  .............................................   21
   E. PEOPLE IN NEED OF "COOLING-OFF    ...............................   21
   F. SUMMARY: WHAT BENEFITS CAN BE EXPECTED FROM A
      WAITING PERIOD?    ..............................................   22

     The suggestion that people who transact in illegal drugs could be
     denied firearms under any gun control system is patently silly.
     Psychotic mass murderers have repeatedly bought guns in states with
     waiting periods.  There is no evidence that waiting periods prevent
     suicides or domestic  homicides. Hardly any crimes could even
     theoretically be prevented by a "cooling off" period.


VI. PROBLEMS CAUSED BY A WAITING PERIOD   .............................   23
  A. THE DRAIN ON POLICE RESOURCES    .................................   23
  B. LAWSUITS AGAINST THE POLICE     ..................................   24
  C. COVERT REGISTRATION   ............................................   25
  D. PRIVACY OF MEDICAL RECORDS      ..................................   25
  E. DENIAL OF ABILITY TO OBTAIN A GUN ................................   26
  F. FINANCIAL HARDSHIPS ..............................................   29
  G. THE DATA QUALITY PROBLEM     .....................................   30
  H. A STEP TOWARDS PROHIBITION .......................................   31

     Substantial police resources are inefficiently diverted from street
     patrol to desk work. A background check consumes about $40,000 in
     police salary  for every arrest it produces. Resources may be
     further consumed by  lawsuits regarding allegedly insufficient
     background checks. Waiting  periods prevent a person from acquiring
     a gun for several days, and if implemented improperly (as they
     often are) waiting periods may result in  total denial of a
     person's legitimate right to bear arms. The diversion of  police
     resources, coupled with the interference with the acquisition of
     self-defense guns, may mean that a waiting period would cause a net
     loss of  lives.

VII. CONSTITUTIONAL ISSUES  ............................................  32
 A. PRIOR RESTRAINTS ON CONSTITUTIONAL RIGHTS ..........................  33
 B. BALANCING TESTS  ...................................................  34
 C. FEDERALISM .........................................................  34

     Waiting periods are a prior restraint on the exercise of
     Constitutional rights. The very point of basic rights like free
     speech, or free exercise of religion, or the right to keep and bear
     arms, is that a citizen does not need to ask for government
     approval to exercise those rights. Waiting periods, because of
     their inefficacy and potential for abuse, are not the least
     restrictive means of attacking gun crime without interfering with
     the right to bear arms. A federal waiting period violates the 10th
     Amendment by forcing state officials to perform background checks.


VIII. ALTERNATIVES ....................................................   36
 A. "INSTANT" CHECKS  .................................................   37
 B. FIREARMS OWNERS IDENTIFICATION CARDS  .............................   39
 C. SMART CARDS .......................................................   40
 D. ANTI-CRIME ALTERNATIVES THAT DO NOT INFRINGE CIVIL
      LIBERTIES  ......................................................   41

     There a number of alternatives that -- while clearly superior to
     the waiting period -- do not represent good policy choices in
     themselves. The Instant Telephone Check and the 7 day waiting
     period/background check both use the same (often inaccurate)
     database; the Instant Check has the obvious advantage of being
     speedy, and not interfering with expeditious acquisition of a
     self-defense gun. Firearms Owners Identification Cards take a long
     time to obtain initially, and serve as a basis for gun-owner
     registration and overly broad fingerprinting of the general
     population. Turning drivers licenses into 'smart cards' also
     requires citizens to submit fingerprints to the government in order
     to exercise their Constitutional rights.  The most effective way to
     deal with criminals possessing guns is to better enforce laws
     regarding criminal gun acquisition and to target the black market
     trade that supplies the gigantic majority of criminal guns.
     Researchers from the National Institute of Justice have suggested
     several possibilities to directly attack the black market; none of
     the NU proposals interferes with Constitutional rights.


IX. CONCLUSION ........................................................



INTRODUCTION


     Waiting periods: Many states already have them; most national police
organizations, most people, and most gun owners are for them. In the 1970s,
even the National Rifle Association supported the idea of a carefully-crafted
state waiting period.  So who could be opposed?

     This paper suggests that sometimes a majority of NRA members, a majority
of gun owners, and even a majority of all the people may not always be right.

     Waiting periods come in two basic shapes. The 'limited' waiting period
is a relatively short wait for retail hand gun purchases. Proposals for such
a law have attracted many cosponsors in Congress, and lost by margins that
(while not narrow) are far from the landslides usually thought to be the
National Rifle Association's norm in crushing gun control. The wide support
for a limited handgun waiting period in Congress reflects the growing
persuasiveness of Handgun Control, Inc., the anti-gun lobby.

     The more comprehensive waiting period applies to all guns, including
long guns, and applies to all transfers, including gifts between family
members. The wait itself is much longer. The comprehensive wait is also
supported by Handgun Control, Inc. (HCI). HCI has persuaded legislatures in
California, Connecticut, and Rhode Island to adopt a comprehensive wait,
supplanting the existing limited handgun wait in those states. 

     Although HCI backs the new comprehensive waits in California and other
states, the ultimate goal is an even stronger comprehensive wait. In 1990,
Colorado State Senator Pat Pascoe introduced a waiting period bill which HCI
Chair Sarah Brady called "everything on my wish list."[1]  The bill provided: 

     * As in California, a comprehensive background check and waiting period
on both handguns and long guns, for all transactions, including intrafamily
gifts.  Each gun purchase would require a background check of up to two
weeks, _followed_ by a waiting period of one week. An applicant would then be
given a permit to purchase, good for 60 days.  
     * The applicant would pay a fee of up to $20 for each purchase permit. 

     * There would be no exception for a person who needed a firearm for
self-defense. In fact, even if the police strongly wanted the citizen to
acquire a gun because of imminent deadly threats, a one week delay would
still be mandatory.[2]

     Presently the only state with a law that is more severe than Colorado's
very strict proposal is New Jersey.

     The waiting period concept (both limited and comprehensive) reflects the
belief that there should be a police check before a person buys a gun. In the
form of an instant telephone check, the National Rifle Association is
essentially willing to accept the police assent principle, providing the
system is structured properly. The instant check is currently in effect in
Virginia, with few apparent problems (and some successes) so far. Handgun
Control, Inc. accepted the instant check in Virginia, and opposed it in Ohio.

     Since the instant telephone cheek is sometimes offered as an alternative
to the waiting period, the telephone check is discussed in this paper. Other
regulatory alternatives to a waiting period are also considered.

     The paper discusses the following issues: Would a waiting period have
stopped John Hinckley?  What do the polls of police and of citizens say about
waiting periods, and what implications should be drawn from the results? What
have the criminologists learned about waiting periods? What good have they
done in states where they already exist? If a waiting period could save at
least one life (and it certainly would) isn't it a good idea? What are the
disadvantages and risks of waiting periods and other police permission
systems like the instant telephone check? Are there meritorious alternatives
to waiting periods? The paper also offers suggestions about how a waiting
period should be structured, if a legislature elects to enact one.

     The views of Handgun Control, Inc. on waiting periods and gun control
are discussed throughout, because, as HCI puts it, the waiting period is the
group's 'flagship' bill and HCI is by far the most important gun control
lobby.


                             1. JOHN HINCKLEY

     Synopsis: Handgun Control, Inc. claims that a waiting period and 
     background check 'certainly' would have stopped John Hinckley, who 
     attempted to assassinate President Reagan. Yet Hinckley had no
     felony record, and no public record of mental disability. HCI
     asserts that  Hinckley was not a resident of Texas, the state where
     he bought the gun,  and that a background check would have revealed
     that he was illegally buying a handgun in state where he was not a
     resident. The evidence  indicates that Hinckley was a legal Texas
     resident. In any case, HCI's  proposed background check involves
     only criminal and mental records,  and not an address check.
     Accordingly, it is very unlikely that the  background check would
     have affected Hinckley.

     The national waiting period is commonly known as 'the Brady Bill.' Its
supporters named it after Sarah Brady, the Chair of HCI. To many people, the
fact that a waiting period would have stopped John Hinckley from shooting
President Reagan and crippling his Press Secretary Jim Brady is reason enough
to enact such a law.

     Both the perpetrator and the main victim of Hinckley's attack agree that
a waiting period would have prevented the crime. Currently under indefinite
commitment to St. Elizabeth's mental hospital in Washington, John Hinckley
has petitioned to be allowed access to reporters so that he can speak out for
handgun control and for a waiting period.  Hinckley explains that he was in
"a valium depression" when he acted, and a waiting period might have given
his better self time to reassert control. But in fact, Hinckley bought the
assassination gun in October 1980, months before the assassination attempt.
A wait would obviously have had no impact.

     Legislators usually pay little attention to the policy suggestions of
the criminally insane. The more persuasive spokesperson for the waiting
period is Sarah Brady, wife of the man crippled by Hinckley. "Had a waiting
period been in effect seven years ago, John Hinckley would not have not have
had the opportunity to buy the gun he used" says Mrs. Brady.[3]

     Mrs. Brady bemoans the fact that Hinckley was able to buy the gun with
no waiting period to see if he had a criminal or mental illness record.[4] 
But Hinckley had no public record of mental illness; hence a mental records
check would have done no good. [5]

     As for a criminal records check, a police background check was run on
Hinckley a few days before he bought the gun, and nothing turned up. Hinckley
was caught trying to smuggle a gun aboard a plane on October 9, 1980, in
Nashville. His name was run through the National Crime Information Center,
which reported, correctly, that he had no felony convictions in any
jurisdiction. He was promptly released after paying a fine of $62.50 and
pleading guilty to a misdemeanor.[6]

     Although Mrs. Brady complains about the lack of a criminal/mental check
on Hinckley, she does not explicitly affirm that such checks would have
affected him. Instead, Mrs. Brady's detailed explanation involves Hinckley's
residence status.

     On October 13, 1980, John Hinckley walked into Rocky's Pawn Shop, in
Dallas, Texas, and walked out shortly thereafter with two .22 caliber RG
revolvers. As with the retail purchase of any gun, the gun dealer was
required to complete a federal form which listed Hinckley's address. Because
Hinckley was buying two guns in the same five-day period (in fact, at the
same moment), the dealer also filled out another federal form. That federal
form was sent to the local office of the Bureau of Alcohol, Tobacco and
Firearms.

     By federal law, the dealer was required to verify that Hinckley was a
resident of Texas, the state in which he was buying the handgun. When asked
for identification, Hinckley offered his Texas driver's license.[7]

     Mrs. Brady details how a background check might have helped: "He lied
about his address and used an old Texas driver's license to purchase that
revolver. He was not a Texas resident. A police check would have stopped him
from buying a handgun in Texas."[8]  As she puts it, "He lied on his purchase
application. Given time, the police could have caught the lie and put him in
jail."[9]

     Accordingly, Mrs. Brady states: "A simple check would have stopped him
.. John Hinckley might well have been in jail instead of on his way to
Washington."[10] Indeed, her assurance that the waiting period would have
stopped Hinckley is often unequivocal: "There's no doubt that he would not
have been able to purchase that gun."[11] Or, "John Hinckley would never
have walked out of that Texas pawnshop with the handgun that came within
an inch of killing Ronald Reagan."[12]

     But the facts are hardly as clear-cut as Mrs. Brady asserts.

     Hinckley moved around a great deal, from one Texas address to another.
The Lubbock address he listed on his federal gun form (the address for a
rooming house) was different from both his driver's license address and his
address in the then-current Lubbock phone book.[13] Of course moving
frequently is not a federal crime. Because the only purpose of the driver's
license is to prove residence in the state, there is no federal requirement
that a handgun purchaser reside at the street address shown on his license,
as long as the address is in the same state. Even if Hinckley had
deliberately made a false statement about his address, the act would not have
been illegal; a false statement on the federal form is illegal only if it
relates to the purchaser's eligibility.[14] While a person's state of
residence does relate to eligibility, address within that state does not.

     In other words, Hinckley's purchase would have been illegal under
federal law only if he was not a resident of Texas. Merely offering a Texas
driver's license with a street address that was no longer current and was
different from the address put on the federal form was not in itself illegal.

     Was Hinckley a Texas resident? Contrary to what Handgun Control implies,
it has never been determined that Hinckley was not. During, the previous
summer, he had attended both summer sessions at Texas Tech in Lubbock.
According to federal rules, a university student is considered a resident of
the area where he attends school, and may purchase firearms there.[15]
Notably, when Hinckley was arrested in Nashville (a few days before he bought
the handguns), he identified himself as a Texas resident.

     Significantly, Hinckley, after the assassination attempt, was the
subject of an intensive federal investigation. The federal government used
every resource possible to ensure Hinckley's conviction. Notably, Hinckley
was not charged with illegally purchasing the handguns in Texas. Had the
prosecutors believed that Hinckley was guilty of an illegal gun purchase, the
charges would likely have been brought. After all, Hinckley would then have
had to convince a Texas jury that he was insane not just on the day of the
assassination, but six months beforehand.

     If the full resources of the Department of Justice did not find enough
evidence even to charge Hinckley with an illegal gun purchase, it is not
realistic to claim that a 7-day background check would have found the exact
same transaction illegal.

     Moreover, law enforcement authorities already had an opportunity to run
a check on Hinckley. Because Hinckley bought two handguns on the same day,
his purchase was immediately reported to the Bureau of Alcohol, Tobacco and
Firearms, as required by federal law. BATF reportedly runs name checks as
standard procedure, but does not run detailed background checks on multiple
handgun purchasers (such as Hinckley) even though it has the legal authority
to do so. Perhaps BATF has concluded that the expense of running the
checks exceeds the likely benefits.

     Let us hypothesize the fact that Mrs. Brady assumes (but for which the
Justice Department apparently had no evidence): Hinckley was no longer a
Texas resident. Assume that the address listed on the federal form was false.
Would the assassination have been prevented by a background check? Almost
certainly not.

     How would the police have found Hinckley's "lie"? If they had looked in
the phone book, they would have seen Hinckley listed as a Lubbock resident.
To ascertain that Hinckley did not reside in Texas, the police would have had
to visit his purported residence at least once. Since many police departments
do not have the time to visit the scene of residential burglaries, it is not
realistic to assume that they would have bothered to verify the address
listed on Hinckley's residence.

     Most importantly, the police never would have found the "lie" about
Hinckley's address, because they would not be checking addresses. Under the
Brady Bill (and the similar state proposals), the police would not be
verifying anyone's address. The Brady Bill does not discuss any kind of
address/residence check. As one of Handgun Control's key Congressional
supporters explicitly insisted during the debate on the 1988 proposal, "The
'investigation' is limited to the review of police and court records.-"[16]

     Thus, at the same time that Handgun Control's Congressional forces were
reassuring Congress that the "Brady bill" involved solely a criminal/mental
records check, and not an address or other check, Mrs. Brady was imploring
the public to support her bill because an address check would have stopped
John Hinckley.

     Assume that, despite the evidence to the contrary, Hinckley actually was
not a Texas resident, and further assume that the Texas police would have
found it worthwhile to do what the federal BATF did not, and run a background
check; and further assume that although the background check was intended to
be run according, to HCI's description, and to apply only to criminal/mental
records, the Texas police would have expanded the background check and tried
to verify Hinckley's address; and additionally assume that the police would
have committed the manpower necessary to verify that Hinckley was not a Texas
resident. If all these assumptions are valid (and if any one of the
assumptions were incorrect, Hinckley clearly would not have been stopped),
would Hinckley have been stopped? Perhaps.

     Assuming the police found that Hinckley was trying to make a purchase
without the proper residency status, would they have arrested him for that
offense? Would he have been imprisoned for more than a day, if that long?
Only a few days before Hinckley bought the Texas guns, he had been caught
attempting to smuggle a gun onto a plane, and had been released from custody
almost immediately, having pleaded guilty to a misdemeanor. Unless Hinckley
were imprisoned for a term of years for the out of state gun purchase, he
would have speedily been back on the streets.  He could have taken any of
the other handguns which he owned, and gone on to Washington for the
assassination with one of them. (Among the guns he could have used was
the .38 special he bought in Colorado, in full compliance with the law.
Had he used that gun, rather than the .22 from Texas, President Reagan
and Mr. Brady would likely have been killed.)[17]

     Handgun Control, Inc's version of the assassination is false in other
details as well. For example, one Handgun Control, Inc. advertisement depicts
Mrs. Brady saying "A $29 dollar handgun shattered my family's life."[18]
Actually, Hinckley's gun cost $47.[19] The difference is of no real
importance, except that it shows the Handgun Control copywriters to be
unwilling to offer a truthful presentation of even the most basic facts of
the case.[20]

     Handgun Control, Inc. and Sarah Brady have garnered substantial press
support by claiming that the "Brady Bill" would have stopped John
Hinckley.[21] Indeed, the strength of the push for the waiting period is very
largely based on Sarah Brady and her assassination story. Sarah Brady heads
Handgun Control, Inc., and HCI's fund-raising letters are mostly personal
testimonies by Mrs. Brady and her husband. The image of a man crippled by an
assassin, but who could have been saved by "The Brady Bill" is compelling to
press and politicians alike.

     To say the least, the evidence suggesting that a waiting period would
have stopped John Hinckley is underwhelming. Yet Mrs. Brady insists: "[T]his
shooting could have been prevented if legislation such as that proposed here
had been in force in 1981."[22]    The unequivocal assertion is, in light of
the facts, quite close to a fraud. Only a very unlikely set of events would
have enabled police armed with a "Brady Bill" to stop John Hinckley. It is
perfectly proper for victims of gun crimes to campaign for gun control. They
should do so truthfully.


                       II. PUBLIC AND POLICE OPINION

     Synopsis: Polling data show that large majorities of American
     citizens, as  well as of big-city police chiefs, favor a waiting
     period. Polls of  command-rank officers find them skeptical about
     waiting periods. For all  the polling, flaws in the wording of the
     questions probably exaggerates the  extent of public support and
     command-rank police hostility. In any case,  polls are poor guides
     to public policy, particularly when Constitutional  rights are
     involved.   The reflexive hostility of some police officials 
     towards the Second, Fourth, and Fifth Amendments to the
     Constitution  should not be entitled to much weight in the
     deliberative process.



                                 A. POLICE

     Handgun Control, Inc. and its Congressional allies claim that a waiting
period is supported by "every major police organization" in the country.[23]
The assertion is based on a selective definition of "major police
organization." The American Federal of Police, with 103,000 members, is the
second-largest rank and file police organization in the United States, and is
headed by Saginaw County Deputy Dennis Ray Martin, who has won awards from
President Bush for anti-drug work. Martin and the American Federation of
Police oppose a waiting period. The National Association of Chiefs of Police,
with 10,000 members, is the second-largest command rank organization in the
United States. It opposes a waiting period. Apparently neither of these
organizations, being merely the second-largest in their field qualifies as a
"major police organization."[24]

     Many important police organizations do support a waiting period.[25] Yet
very few of these police organizations have actually bothered to ask the
police what they think. One group that did ask was the Police Executive
Research Forum (PERF), a Washington think tank comprising about 500 present
and former big-city police executives. PERF's membership poll found 92% in
favor of a national seven-day waiting period for handguns, and 6%
opposed.[26] Thus, among big-city police chiefs, support for a waiting period
is nearly unanimous.

     The National Association of Chiefs of Police (NACOP) conducts annual
national surveys of the opinion of command rank police officers. The survey
is sent to all known commanders, not only NACOP members. In the 1989, the
waiting period questions and responses were:

     "Do you believe that a waiting period to purchase a handgun or any type 
     of firearm will have any effect on criminals getting firearms?" Yes --
     29.1%; No -- 70.9%.

     "The 'Brady Bill' offers a national 7 day waiting period that gives
     local  police or sheriffs an option to check for previous criminal
     activities,  possible drug or alcohol dependency and mental instability.
     Do you think  you would be able to conduct such an investigation in a 7
     day period?"  Yes -- 44.7%; No -- 55.3%.

     "Some states have longer waiting periods and some less. Would you agree
     that it should be a state mandated law rather than a federal regulation
     as  regards to firearms purchase requirements?" Should be State --
     62.7%;  Should be Federal -- 37.3%.[27]


In 1990, the questions and answers were:

     "Do you believe that a waiting period to purchase a handgun or any type 
     of firearm will have any effect on criminals getting firearms?" Yes --
     23.9%; No -- 76.1%.

     "Do you believe that in the national 7 day waiting period proposed
     before Congress (Brady Bill) that you can fully determine that the
     applicant has  no criminal record; is not mentally unsound; or is an
     abuser of drugs or alcohol?" Yes -- 14.4%; No -- 85.6%.

     "No funds to carry out this 7 day 'investigation' are provided in this
     Bill for police. Do you believe that your department has the manpower to
     conduct this investigation without taking patrol officers off the
     street?"  Yes -- 10.6%; No -- 89.4%.

     "There is no provision to protect you from a lawsuit in the event that
     you approve (after 7 days) an applicant who is a criminal, may be
     mentally  unsound, or a drug or alcohol abuser. Do you believe that the
     'Brady Bill' may leave you open to a future civil lawsuit?" No -- 10.2%;
     Yes -- 89.8%.[28]

     While the NACOP polls are interesting evidence regarding police opinion,
they must be interpreted cautiously. Although every fact stated in the NACOP
questions is true, the tone of some of the questions was slanted against the
waiting period. A graphic example of a pollster's ability to elicit different
responses by slight changes in the question is shown in the contrasting 1989
and 1990 answers on whether 7 days was enough time to complete the background
check. In 1989, 55% said that 7 days would not be long enough. In 1990, the
question was revised to ask if the background check could be fully completed
in 7 days, and the time question was followed by a question which noted
that no extra funds for the check would be available.  For the 1990 survey,
the number of respondents who said that 7 days was not long enough shot
up to 86%.

     In both the 1989 and 1990 surveys, the questions about waiting periods
affecting criminals were phrased in a neutral way. But the 1990 questions
regarding police civil liability clearly did, like the Gallup poll on waiting
period, elicit a particular response. Notably, the neutral questions (about
waiting, periods affecting criminals) drew responses of about 70-76% negative
on the waiting period, while the most biased question (about civil
liability), drew about a 90% negative.

     Accordingly, NACOP's most extreme figures, of 90% command rank hostility
to the waiting period, are likely too high, for the same reason that Gallup's
91% pro-wait figures for the general public is too high. (The Gallup poll is
discussed below.) The NACOP survey does seem to indicate that a majority of
command rank officers (perhaps something less than 70%) are skeptical about
waiting periods. The most definite conclusion that can be drawn from the
NACOP and PERF surveys is that Handgun Control's claim to have the
near-unanimous support of the police is true only for major urban chiefs.[29]

     A large number of working officers seem to agree with Willis Booth, a
former police chief, and Executive Director of the Florida Police Chiefs
Association: "I think any working policeman will tell you that the crooks
already have guns. If a criminal fills out an application and sends his
application... he's the biggest, dumbest crook I've ever seen."

     Put aside the evidence, regarding police opinion, and hypothesize that
every police chief in the United States supported a national waiting period.
Should their position determine the law?

     The opinion of police chiefs is not the arbiter of our Constitutional
rights. Some police executives criticize the exclusionary rule; they claim
that a strong Fourth Amendment causes crime. Some police executives criticize
the *Miranda* decision, and claim that a strong Fifth Amendment causes crime.
Many police executives say that a strong Second Amendment causes crime. In
every case the executives are wrong.[30]

     Police chiefs are, after all, not generally renowned for their regard
the Constitution. As the NACOP polling indicates, huge majorities of command
ranks favor sharp limits on death penalty appeals, draconian drug laws, and
widespread drug testing.

     Likewise, self-proclaimed allies of law enforcement have eroded their
credibility by supporting bans on "plastic guns" (which do not exist) or by
claiming that a law which lets a Pennsylvania hunter drive to Maine without
obtaining a New York gun permit would threaten the lives of police
officers.[31]

     In short, the reflexive hostility of some police officials towards the
Second, Fourth, and Fifth Amendments is not entitled to much weight in the
deliberative process.

     Why does the waiting period have nearly unanimous support among big-city
police executives? While it is true that some big-city chiefs (such as Ari
Zavaras of Denver and Joseph McNamara of San Jose) are ardent enemies of the
right to bear arms, not all chiefs are out to destroy gun ownership. One
reason for supporting the waiting period is its intuitive appeal; at first
glance, it seems like a way to interdict at least some criminals, without
interfering with legitimate gun owners.

     Perhaps another reason that some police chiefs favor the waiting period
is that police chiefs, like any other administrators of large government
offices, often seek to expand their official power. From the perspective of
a police administrator, more power may mean more officers performing
administrative tasks and supervising more transactions by the citizenry. The
same mentality leads to the creation of paperwork empires in the Pentagon or
in the Hubert H. Humphrey building, even if the emphasis on paperwork hinders
the agency's performance of its assigned mission.


                          B. PUBLIC OPINION POLLS

     The Gallup Poll reports: "91% of Americans Favor Brady Amendment."[32]
If the polls are for it, who can be against it?    
     One reason to be cautious about polls is that the bias of the pollster
can skew the poll. By modifying the wording of a question, "You can come up
with any result you want," says Peter Hart, pollster for the Dukakis
campaign.

     The Gallup poll about waiting periods posed the question in a way that
assumed the waiting period really would help the police keep guns away from
illegitimate persons: "Would you favor or oppose a national law requiring a
seven-day waiting period before a handgun could be purchased, in order to
determine whether the prospective buyer has been convicted of a felony or is
mentally ill."[33]  As discussed below, the criminological and real-world
evidence on waiting periods shows that they do virtually no good in keeping
illegitimate users from getting guns; criminals do not buy guns in gun
stores.

     Most people are for something that works. If the question assumes that
a waiting period would work, it is bound to receive nearly unanimous support.
But the real question is whether waiting periods work as well as Gallup
assumed they do.  The most important reason polls should not always prevail
is because the Constitution does not depend on polls. Violating the
Constitution can be a popular thing. By huge majorities, Americans would
favor all of the following:

     * Banning use of civic auditoriums by atheists, or by people denouncing
     the government, or by patriotic groups advocating war against a foreign
     enemy;
     * Using a federal censorship board to decide which television shows are
     permissible;
     * Infiltrating non-violent dissident groups with FBI agents.[34]

     Every one of those popular ideas would violate the Constitution. The
precise reason for putting certain fundamental rights in the Constitution is
to protect them from transient majorities. [35]

     No measure could have been more unconstitutional than herding American
citizens of Japanese descent into concentration camps during WWII. Public
opinion and the press almost unanimously favored this repression, despite the
total lack of evidence that these Americans were disloyal.

     Even though the public sometimes backs unconstitutional measures, the
public still has the common sense to know that the Constitution is more
important. One survey asked: "Suppose the President and Congress have to
violate a Constitutional principle to pass an important law the people
wanted. Would you support them in this action?"
     * 28% said yes, "because the Constitution shouldn't be allowed to stand
     in the way of what the people need and want."
     * 49% said no, "because protecting the Constitution is more important to
     the national welfare than any law could possibly be."[36]

     Finally, while the majority of the public does favor a waiting period
(although probably by less than the 91% majority found by Gallup's biased
question), the public opposes "a law giving police the power to decide who
may or may not own firearms" by a 68% to 29% margin.[37]  Accordingly, if a
waiting period were conducted within the limits implied in the Gallup poll
(every legitimate owner got the gun in no more than seven days), the public
might well support a waiting period. But if waiting periods turned out to
give police the opportunity to interfere with citizens' right to buy
firearms, the large majority of the public would oppose a waiting period. As
detailed below, waiting periods in practice often lead to the kinds of police
abuses which the public overwhelmingly opposes.



                        III. CRIMINOLOGICAL STUDIES


     Synopsis: Criminologists of every persuasion have examined waiting 
     periods, and not one has found statistically significant evidence
     that  waiting periods are effective.  Studies of felony prisoners
     show that  virtually none of them obtain crime guns by personal
     over the counter purchase, the only kind of criminal gun
     acquisition that a background check could stop.


     "Virtually every study ever conducted proves that where there are local
or state laws requiring a waiting period and background check, handguns are
harder to obtain by those who are prone to misuse them," claims Handgun
Control, Inc.[38] The claim is false. Every study of waiting periods has
found no evidence that they are effective. There is not a single study
published in any academic journal which concludes waiting periods are
effective. The results show just the opposite.

     Professor Matthew DeZee states: "I firmly believe that more restrictive
legislation is necessary to reduce the volume of gun crime." Yet his
comparative study of state laws, including waiting periods, found "The
results indicate that not a single gun control law, and not all the gun
control laws added together, had a significant impact...in determining gun
violence. It appears, then, that present legislation created to reduce the
level of violence in society falls short of its goals ... Gun laws do not
appear to affect gun crimes."[39]

     Professors Joseph P. Magadinno and Marshall H. Medoff, both of
California State University, Long Beach, performed two studies of waiting
periods at the state level. The first study, using data from 1979 and
previous years, compared the 1979 robbery and homicide rates in states that
had waiting periods with states that did not. The study also looked at
changes in the robbery and homicide rates in states which had recently
changed their laws regarding firearms sales. Both aspects of the study found
that there was no correlation between waiting periods and lower homicide or
robbery rates.[40]

     The second Magadinno-Medoff analyzed state gun laws and rates of
homicide, robbery, and aggravated assault in 1960 and 1970. The results were
consistent with the hypothesis that stricter state gun control laws have no
impact on crime.[41]

     When the U.S. Senate Judiciary Committee investigated the issue, the
Committee found no evidence that waiting periods affect crime. There was no
correlation between a waiting period and lower crime rates.[42]

     Duke University's Philip Cook, who is generally supportive of gun
control, explains why there is no apparent statistical impact:


     [W]e suspect that most felons and other ineligibles who obtain guns do
     so not because the state's screening system fails to discover their
     criminal record, but rather because these people find ways of
     circumventing the screening system entirely ... Under these
     circumstances, developing a more intensive and reliable screening
     process is probably not worth the additional cost...It is known that
     such screening systems are widely circumvented and, furthermore, that
     state criminal record files are sufficiently incomplete that a felon who
     did choose to submit to the  required police check before buying a
     handgun would have a sporting chance of having his application
     accepted.[43]

Assistant Attorney General John Bolton observes, "Those persons with a
criminal record who are prohibited from purchasing a handgun are the ones
most likely to obtain false identification documents to support a new
name."[44]

     Of course the Magadinno-Medoff, Senate Judiciary, and DeZee studies do
not completely destroy the case for a waiting period. It might be that state
waiting periods have a small impact on crime, even if that impact is too
small to be statistically significant. Moreover, even if state waiting
periods were acknowledged as demonstrable failures, it might be that a
federal wait would be effective.

     Under the Carter Administration, the National Institute of Justice
offered a grant to the former president of the American Sociological
Association and two colleagues to survey the field of research on gun
control. Peter Rossi and his coauthors Jim Wright and Kathleen Daly began
their work convinced of the need for strict national gun control. Indeed,
Wright had already written about the need for more control. After looking at
the data, however, the three researchers found no convincing evidence that
gun control curbs crime. [45]

     A few years later, Wright and Rossi conducted another National Institute
of Justice study, this one of the gun use patterns of criminals. They
interviewed prisoners in ten state systems. The study confirmed that many
criminals are indeed frightened of armed citizens. [46] Notably, the second
National Institute of Justice study discovered that felons in states with
strict laws found obtaining a gun no more difficult than in states with more
moderate laws. Almost all felons, regardless of the severity of their state's
laws, reported that they would have little or no difficulty obtaining a gun
soon after release.

     Wright and Rossi asked the prisoners where they obtained their last
handgun, and 21% replied at a gun store. Hence, HCI argues, a waiting period
and background check would affect a significant figure of gun crimes. But
Wright and Rossi disagree with HCI's interpretation of their data. They
write:

     One might as a matter of federal policy require that every firearms
     transaction be reported to the cognizant authorities, and the
     appropriate criminal records check undertaken; but one quickly
     senses that this measure would have little or no effect on the
     criminal users whom we are trying to interdict and a considerable
     effect on legitimate  users .... The ideal gun crime policy is one
     that impacts directly on the illicit user but leaves the legitimate
     user pretty much alone. [47]

     Careful analysis of the Wright-Rossi data shows that far less than 21%
of criminal gun users would be affected by a background check. The 21% who
obtained their last crime handgun at a gun store included 5% who had obtained
the gun by theft, rather than by purchase. Of the 16% who had obtained the
gun by purchase, at least some likely did not have disqualifying criminal
records at the time of purchase.

     Further, not all of the guns acquired by criminals are acquired for
crime. (Many criminals live in neighborhoods with other criminals, and hence
own guns for defense.) The more likely a felon was to be a serious gun
criminal, the less likely he was to have acquired a retail gun. For example,
of the criminals who specialized in unarmed crime, 30% obtained their most
recent handgun at a store (by purchase or by theft). Of the "handgun
predators" who specialize in handgun crime, only 7% had gotten a handgun from
a store. For criminals as a whole, of the guns that had been obtained "to use
in a crime," 12% came from a store.[48]

     Since about one-fourth of the handguns from stores were stolen from
stores, only about 9% of handguns obtained to use in a crime, (and about 5-6%
of handguns obtained by handgun predators) came from a retail purchase. Nine
percent or even five percent still seems to be a significant number of
criminals buying guns in gun stores. But Wright and Rossi explain that their
data:

     does not imply that the men in question themselves simply walked into a 
     gun shop and bought themselves a gun, in direct defiance of the Gun 
     Control Act of 1968. In many cases, these purchases would have been 
     made in the felon's behalf by friends or associates with "clean" 
     records, which is, to be sure, still quite illegal. Although, we asked
     these  men where and how they had obtained their most recent guns, we
     did not  ask who, exactly, had obtained them.[49]

Assuming that only half the purchases were made by legal surrogates, the
background check is entirely irrelevant to 95-98% of crime gun acquisitions.

     The large majority of all gun acquisitions are by people who already own
a gun. If the pattern also holds true for criminals, then the background
check would impact only a fraction of the already tiny percentage of
criminals who personally buy guns at retail. In other words, of all guns
acquired for crime, only about 0.5% to 2% are personally bought at a retail
outlet by a person with an existing criminal record who does not already have
another gun.[50]

     The basic problem with waiting periods is shown by a Bureau of Alcohol,
Tobacco and Firearms study of gun dealer sales in Des Moines and Greenville.
The study found that about one to two percent of sales were to dangerous
criminals.[51]  In short, waiting periods have no statistically noticeable
impact on any type of crime because only a tiny fraction of crime guns
are purchased at retail by ineligible buyers.

     Waiting periods have existed in some states for over half a century. Yet
after all this time, there is not a single criminological study ever
published which shows waiting periods to have any beneficial impact. While
the researchers who have studied waiting periods have very diverse views on
the gun debate in general, all researchers have concluded that there is no
evidence that waiting periods cause any statistically significant benefits.





                     IV. THE WAITING PERIOD (IN)ACTION

     Synopsis: Although no evidence ties waiting periods to reduced
     crime rates, the experience of states with waiting periods shows
     only a small percentage of retail gun buyers are denied because of
     criminal records. Of  these, about 1% are deemed worth arresting.
     The number of people who are illegally or arbitrarily denied their
     right to bear arms by abuse of a background check system is about
     as large as, and sometimes far larger than, the number of criminals
     denied.

     Although the academics have never found any statistically significant
effect from waiting periods, it would be incorrect to" conclude that waiting
periods accomplish nothing. The following section reports results in several
jurisdictions that already have waiting periods. The particular jurisdictions
discussed were selected because: 1. The police have compiled and released
data for that jurisdiction; and 2. The jurisdiction is cited as a success
story by Handgun Control, Inc; 3. Data is available to test the veracity of
the figures from the police or HCI. The data shows that: 1. Some people with
criminal or mental records do attempt retail gun purchases, and are stopped
by a background check; 2. Handgun Control, Inc. consistently overstates the
efficacy of the background check in its model jurisdictions.

     California: Officials state that their background check for handguns
interdicted 1,900 illegal purchases in 1989.[52] Nevertheless, California's
handgun homicide rate rose 21% from 1979 to 1988, even as gun laws grew
tighter.[53] California has no appeals process, so it is impossible to
determine how many of the denials are proper. As discussed below, the
California waiting period forms have been used to build a government
data-base of gun owners.

     About 10% of California's 300,000 "assault weapon" owners have
registered their weapons, as required by law. The group that complied with
the retroactive registration law surely qualifies as a highly law-abiding set
of people. Yet this group of highly law-abiding gun-owners, when they attempt
to buy a new rifle or pistol following California's 15-day waiting period,
find that the California Department of Justice has put a 1 to 4 month hold
on their application, because they are registered "assault weapon"
owners. [54]

     A Los Angeles City Councilman, noting the thriving market in stolen
Rolex watches, has suggested that all Rolex watches be registered, and a
five-day waiting period be imposed on transfers of second-hand Rolexes. The
Rolex waiting period has been ridiculed by most other Los Angeles
politicians, and written up in the national press as another instance of
California silliness. It might be asked why so many people who dismiss the
idea that registration and a waiting period would affect the criminal sale of
Rolex watches think that registration and a waiting period would affect the
criminal sale of firearms.

-- 
Larry Cipriani, att!cbvox1!lvc or lvc@cbvox1.att.com
Newsgroups: alt.politics.clinton,alt.politics.elections