From: lvc@cbnews.cb.att.com (Larry Cipriani)
Subject: Why Gun Waiting Periods Threaten Public Safety (part 2 of 4)
Organization: Ideology Busters, Inc.
Date: Fri, 24 Jul 1992 19:31:36 GMT

     Broward County, Florida: Handgun Control correctly notes that in
1984-85, 37 persons were kept from buying guns by the county's ten waiting
day period (which has since been preempted by state law).[55] Handgun Control
fails to point out that nearly half of the rejections were for unpaid traffic
tickets or similar offenses which do not legally disqualify Floridians from
gun ownership.[56] HCI also fails to point out that gun suicides actually
increased after the waiting, period was implemented.

     Columbus, Georgia: HCI claims that the city's 3-day wait catches two
felons a week trying to buy handguns.[57] HCI exaggerates the rate four-fold,
and implies that the numbers relate to arrests, rather than merely to
denials.[581

     Illinois: Prospective gun purchasers must obtain a Firearms Owners
Identification card (FOID), which is valid for five years. There are about
5,000 applications every week for the card. Over the weekend, a list of
applicants is run through the state Department of Mental Health, revealing
about 10 applicants who are ineligible to buy because of mental
disability.[59] Illinois' automated licensing system often takes 60 days to
authorize a clearance.[60]

     Illinois issues FOID cards to about 78% of applicants. Another 17% are
issued a card after following up an initial rejection, for a total of about
200,000 FOID cards issued annually. Around 5% of applications are ultimately
rejected. In 1988, there were 2,470 persons (about 2.5% of applicants) denied
an FOID card on the basis of felony convictions, and 779 previously-issued
cards were revoked due to felony convictions.[61]

     The most thorough study of the Illinois system was conducted by
Professor David Bordua. Happily, "the system was run with real attention to
due process protections for firearms owners." Unfortunately, "even its
administrators were not convinced it was effective." The system, which costs
over a million dollars a year to process, was summarized as "inherently
weak."[62]

     Maryland: About 700-800 of every 20,000 applicants a given year are
denied. (The waiting period/police permission applies to all handguns and to
long guns considered "assault weapons.") According to state police testimony
before a Congressional subcommittee, the hundreds of denials typically lead
to only a handful of prosecutions.[63]

     Notably, 78% of appeals result in a reversal of the initial denial by
the police.[64] The success rate on appeals likely understates the police
error rate in initial denials. Many people who have been improperly denied
may have neither the finances nor the energy to pursue an appeal. (Similarly,
the ACLU indicates that only a minority of people improperly denied welfare
benefits appeal.)

     Although the waiting period is by statute supposed to last only one
week, the police may take longer, and gun shops will not release the firearm
until the police have completed their review.

     New Jersey: Firearms laws in New Jersey are the strictest of any
American state. Handgun Control states that "10,000 convicted felons have
been caught trying to buy handguns."[65] The cost to legitimate gun owners
has been severe. The number of New Jersey citizens arbitrarily denied the
right to possess arms under the New Jersey law is almost as large as the
number of criminals who were prevented from law-abiding transactions.[66]
About one-quarter of the rejections in New Jersey are based on the hunch of
police that it would not be a good idea for a person to own a gun, rather
than on any specific disqualifying criterion.[67]  Although New Jersey law
requires that the authorities act on gun license applications within 30 days,
delays of 90 days are routine; some applications are delayed for years, for
no valid reason.[68]

     The cost to the non-gun-owning citizens of New Jersey has also been
severe. The New Jersey licensing system is so expensive that it costs
$4,442.13 (more than the salary of a state trooper for one month) for each
denial based on criminal, mental, or alcohol abuse records.[69] It might be
that the resources diverted into the licensing system might have saved far
more lives if they had been spent on putting state troopers on patrol,
instead of putting troopers behind a desk.

     The overall crime rate and the gun crime rate in New Jersey has remained
consistent with the rate in other states in the region, even though none of
them imposes gun controls as strict as New Jersey's.


     Pennsylvania: In Pennsylvania, handgun buyers face a 48 hour waiting
period (72 hours in practice), during which local police or sheriff may
conduct a check.[70] After the buyer picks up the handgun, the transaction
record is sent to the state police firearms unit, which checks the name
against a list of violent felons. Data for the first check by local police is
kept at the county level, so there are no comprehensive figures available.



     In addition to checking the approximately 130,000-150,000 handgun
transfers that occur in a year, the state police are also automating their
old records of firearms transfers (which date back to 1931), and checking the
old names against the same list of violent felons. In 1988, the state police
performed about 230,000 total records checks, resulting in about 80 "hits."

     When a "hit" is found, state troopers are sent to confiscate the gun,
and the local district attorney may bring charges for unlawful gun possession
by a felon. Ms. Sharon Crawford, head of the state police firearms unit,
recalled only one case in her memory where a person had committed a crime in
the two to three week interval between taking possession of the gun and the
arrival of the state trooper, or had refused to hand the gun over to the
trooper. In the one case, the person had shot (not fatally) someone else
during an argument.

The explanation for the generally peaceful behavior of the persons caught
with illegal guns is that the purchases were not with the intention of use in
a crime, but rather were self-defense and/or hunting purchases by persons who
did not realize they were ineligible or who hoped to slip through the
system.[71]

     The Pennsylvania data validates the findings by Wright and Rossi: there
are many attempted and/or completed firearms acquisitions by ex-felons that
are unrelated to any effort to use the gun in a crime. Accordingly, the
number of crimes prevented by a system that keeps ex-felons from buying guns
in stores is likely to be significantly less than the number of ex-felons who
are caught buying guns. (All this is not to say that the "felon-in-
possession" cases should not be prosecuted or taken seriously; the point is
simply that most attempted acquisitions were not for a criminal purpose.)

     It would not be correct to use the Pennsylvania state data to conclude
that background checks are pointless. The data above refers only to the state
police check of names against violent felony convictions. The data do not
show what impact the first check, by the local police, has had. It might be
that most felons buying guns for crime are stopped at the local level, and
are hence never checked by the state system.

     Virginia: In 1989, Virginia enacted an instant telephone check, with the
consent of both HCI and the NRA. About 16 to 20% of phone applications result
in a "hit," requiring the rejected applicant to submit fingerprints to the
police to prove his non- criminal identity.[72] The ultimate denial rate of
about 1/2% to 1% is the same as in other states with longer waiting periods.
The first year the check was in effect, there were 540 denials, leading to
arrest of 7 fugitives, including one wanted for murder.[73] (There was also
at least one false arrest.) The Virginia system required 16 new full-time
state employees, and $391,000 in annual operating costs.[74] Because the
Virginia system appears to be working reasonably well, it is touted as model
by many right-to-bear arms advocates.

     In sum, the evidence shows that a permission system does result in some
denials, at least half of which turn out to be incorrect. Even for the
denials that are correctly applied to ineligible purchasers, it is not
correct to assume that the denial has thereby prevented a crime. Virtually
no-one who intends to commit a gun crime buys from a gun store. Ineligible
people do sometimes attempt retail transactions, but that act is hardly proof
that they intended a crime.

     Of the people who are rejected by permission systems, a mere 1% are
arrested.[75] In other words, where a permission system is in effect, about
1 in 10,000 applicants turns out to be a criminal who is arrested. A success
rate of one true "hit" for every 10,000 searches is, literally, not much
better than the odds of finding a needle a haystack -- and is not
cost-effective method of catching needles.


                 V. PARTICULAR TARGETS OF WAITING PERIODS
     Synopsis: 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.
     A perfect waiting period or other  permission system would not even
     stop criminals from getting even retail  guns. False
     *identification is not hard to procure. And although a  fingerprint
     or other biometric check would defeat false identification, most
     criminals would still likely know someone without a felony record.
     The surrogate buyer could still buy a gun for a criminal at retail.


     Although waiting periods might have little impact on the average street
criminal, it is sometimes suggested that waiting periods might deter
particular kinds of gun misusers.


                              A. DRUG DEALERS

     In 1988, Handgun Control, Inc. attempted to hang its national waiting
period on the drug bill, under the theory that the waiting period would
disarm narcotics distributors. HCI still continues to promise that a waiting
period will help take guns away from drug dealers.[76]

     It stretches credulity to promise that any kind of gun legislation,
including a waiting period, would have the slightest impact on drug dealers.
Dealers, being expert in the black market, would have the readiest access to
false identification, and to underground supplies. They are the last people
gun control could impact.

     Drug dealers obviously cannot count on the police or the courts for
protection from violence. Because of this, and because dealers are a valuable
robbery target, it would virtually be suicide for them not to carry a
gun.[77]

     In addition, drug dealers cannot use normal legal and social commercial
dispute resolution mechanisms. Like the gangsters of alcohol prohibition
days, drug dealers need guns to protect their business's income and
territory. Thus, many drug dealers must own a gun for their lives and their
livelihood.

     No matter how scarce guns become for civilians, there will always be one
for a criminal who can pay enough. Street handguns now sell for less than
$100. If the price went up to $2,000, dealers would still buy them, because
dealers would have to. Spending a few hours' or days' profits on
self-protection is the only logical decision for a dealer. Can anyone really
believe that an individual who buys pure heroin by the ounce, who transacts
in the highly illegal chemicals used to produce amphetamine, or who sells
cocaine on the toughest street-corners in the worst neighborhoods will not
know where to buy an illegal gun?


                           B. HOMICIDAL MANIACS


     Patrick Purdy, who killed five children in Stockton, California, bought
five guns over the counter in California, despite the state's strict 15-day
waiting period. Laurie Dann bought a handgun and shot up a second grade
classroom in Illinois, killing one child, wounding five, and then killing
herself despite that state's requirement that all gun owners be licensed, and
still undergo a waiting period before each firearm acquisition.[78] Mark
David Chapman, John Lennon's assassin, bought a handgun in Hawaii, a state
with one of the strictest waiting periods in the nation. Canada has a
nationwide licensing system, yet a deranged man was able to buy a rifle with
which he shot and killed 14 women in December 1989.[79] Criminals like Eugene
Thompson (a felon and a cocaine addict who shot up a Denver suburb in March
1989) do not buy guns legally; they steal them. The criminally insane are
criminally insane day off and on for years and years, not just for the three
weeks covered by a waiting period. They periodically consult psychiatrists
and acquire firearms without immediately or soon thereafter perpetrating
crimes of insanity.

     The latest claim that a waiting period would have stopped a maniac
involves a mental patient who bought a gun in an Atlanta suburb without a
wait, shot up shoppers at Atlanta's Perimeter Mall, killed one of them, and
wounded four others. DeKalb County promptly approved a 15 day waiting
period.[80] Handgun Control's national fund-raising claims that the killer
would have been stopped had a waiting period been in effect.[81] The claim is
false; the killer's record of mental disorder was entirely private, and he
had never been adjudicated mentally incompetent, or involuntarily committed.


                                C. SUICIDES

     There are simply too many ways other ways for people to kill themselves.
After Canada implemented a national licensing system in 1978, its gun suicide
rate did drop[82]; but the overall suicide rate remained the same.[83] Japan
almost totally bans guns, but suffers a suicide rate twice the U.S.
level.[84]


                           D. DOMESTIC HOMICIDES

     Many handgun control advocates assume that a waiting period would
prevent "impulse killings."[85] But most domestic killings occur at night,
when gun stores are closed. Most perpetrators are intoxicated with drugs and
alcohol, and thus legally forbidden to buy a gun anyway. The image of a
murderously enraged person leaving home, driving to a gun store, finding one
open after 10 p.m. (when most crimes of passion occur), buying a weapon, and
driving home to kill is a little silly.[86] In any case, husbands who kill
wives rarely use guns. Wives who kill husbands do often use guns, and are
usually defending themselves or their children against felonious attacks.[87]


                    E. PEOPLE IN NEED OF "COOLING-OFF"

     Criminologist Gary Kleck points out that for a "cooling-off" period to
prevent homicide, a number of conditions must be fulfilled: 1. The gun the
killer used was the only one he owned, or the only one he could have used in
the crime; 2. The killer acquired the gun from a source that would be
expected to obey gun control laws (a licensed dealer); 3. The gun was
purchased and used in the homicide in a time period shorter than the
"cooling-off" period. Discussing an analysis of 1982 Florida homicides, Kleck
found that 0.9 % (about 1 in 100) homicides fit all three criteria. He
estimated that nationally about 0.5% (1 in 200) would fit all three criteria.
Nevertheless, Kleck suggested that a waiting period would not prevent even 1
in 200 homicides. For the homicide to actually be prevented, several other
conditions would all have to be fulfilled: 1. The killer was the kind of
person who would not have been willing to kill even after waiting; in other
words, the killing was an isolated act, rather than the culmination of a long
history of assaults by the killer; 2. The killer would not have acquired and
successfully used a gun that did not require cooling off (such as a long gun,
in most states); 3. The killer would not have been able to complete the
homicide with any weapon other than a gun; 4. The killer would not have been
able or willing to obtain a gun from a non-retail source. Considering all the
necessary criteria, Kleck did not find any Florida homicides which a
cooling-off period clearly would have prevented. [88]  While supporting a
background check, Kleck concluded that a cooling-off period would in itself
do no good. Hence, he thought the waiting period to offer no advantage over
the instant check.


                     F. SUMMARY: WHAT BENEFITS CAN BE
                     EXPECTED FROM A WAITING PERIOD? 

     New York City Mayor David Dinkins asserts that "The Brady Bill could
save thousands of lives in its first year."[89] Although many credulous New
Yorkers believed their Mayor, and flooded House of Representative Speaker Tom
Foley's office with phone calls demanding passage of the waiting period,
there is not a serious criminologist in the United States who thinks the
Mayor's assertion has any basis in reality. 

     A perfect waiting period or other permission system would not even stop
criminals from getting retail guns. False identification is not hard to
procure. And although a fingerprint or other biometric check would defeat
false identification, most criminals would still likely know someone without
a felony record. The surrogate buyer could still buy a gun for a criminal at
retail. 

     When pressed for whether the waiting period will deprive criminals of
guns, HCI demurs, but expresses confidence that a waiting period will make
gun acquisition more troublesome for criminals.[90] Likewise, the federal
Task Force which studied background checks acknowledges that even a perfect
felon identification system would not keep most felons from acquiring
firearms,"[91] but nonetheless supported a permission system, hoping that by
forcing some criminal buyers onto the black market would leave them less able
to obtain high-quality firearms.[92]

     But would a waiting period or other permission even inconvenience
criminals, considering that hardly any of them obtain crime guns through
dealers anyway? Moreover, the current black market supplies even fully
automatic firearms, which have been under a strict federal licensing system
since 1934, and have been illegal to manufacture for civilians since 1986. If
the black market can supply machine guns, it is doubtful that it cannot
supply other high-quality weapons. 

     Still, as Professors Cook and Blose point out, there must be at least a
few inexperienced or impecunious criminals for whom even a porous permission
system would delay gun acquisition for at least some period. Moreover, the
waiting period, simply because it will reduce gun sales to legal purchasers
(see below) would reduce the number of guns in circulation. It seems likely
that one of those unbought guns might one day have been part of a suicide or
homicide or accident that might not otherwise have occurred.

     Proponents of permission systems say that they will be successful if
they save a single life.[93) It seems clear that a waiting period or other
permission system would, inevitably, prevent at least one firearms fatality.
Even if a waiting period would have no discernable impact on crime in
general, it would save at least one life. Is it therefore a good idea? The
next part discusses that question.


                  VI. PROBLEMS CAUSED BY A WAITING PERIOD

     Synopsis: 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.      
          Severe problems with the data quality of existing criminal
     justice records will result in large numbers of false denials,
     requiring the victims to undergo a lengthy process to prove that
     they are not criminals. An initial denial stands only a 50% chance
     of being accurate and proper.
          Moreover, waiting periods may provide a mechanism for gun
     registration, erode the confidentiality of medical records, and
     work a substantial financial hardship on the firearms dealers and
     users. Advocates of gun prohibition see waiting periods as a useful
     first step towards their ultimate goal.


                     A. THE DRAIN ON POLICE RESOURCES

     Police resources are finite. The question is not whether a waiting
period would save one life, but whether other uses of the police resources
spent administering a waiting period might save more lives if used elsewhere.

     Under a national comprehensive waiting period, the drain on police
resources would be staggering. There are approximately 7.5 million firearms
transactions annually.[94] If a waiting period were to be rigorous enough to
stop future Hinckleys, it would have to include in-person address
verification. (See Part I, above.) How many hours would it take for a
policeman run a national criminal records check, and to visit the home of
every person who applied? One hour, at the very least. That would be 7.5
million police hours spent checking up on honest citizens, instead of looking
for criminals. In the haystack of applications by honest citizens, police
would search for a few needles left by the nation's very stupidest criminals.
Looking for crime, police officers would be directed into a paperwork
enterprise particularly unlikely to lead to criminals. Would not all those
millions of police hours be better spent on patrol, on the streets instead of
behind a desk?[95]

     According to the Task Force, implementing a national comprehensive
permission system would require the FBI to hire 395 additional clerical
employees to process the requests for fingerprint card readings for the
(approximately) 725,000 citizens who would be denied permission to
purchase because they have the same name as a criminal, or because police
records noted an arrest but not a subsequent acquittal.

     A national waiting period and background check could cost from tens to
hundred millions of dollars.[96] Applying the 1 arrest per 10,000 applicant
review figure, each arrest would cost approximately 40,000 dollars, or the
one-year salary of a full- time, fairly senior police officer.[97]

     Such profligate use of police manpower is an impediment to crime
control. One useful modification to existing waiting periods would be to
exempt persons who already have a gun. (Proof of lawful purchase of another
gun might suffice for the exemption.) After all, a person who buys a second
revolver is hardly more dangerous than a person with only one gun.

     The waiting period is an impediment to effective law enforcement in a
more subtle way also: Local politicians who are failing to take effective
steps to control crime use the campaign for a national waiting period as a
tool to divert the attention to the national scene away from local law
enforcement. For example, after Utah tourist Brian Watkins was stabbed in a
New York City subway in the summer of 1990, New York Mayor Dinkins announced
that the what was needed to stop New York City crime was a national gun
waiting period, or even gun prohibition. The Mayor now makes the can for a
national "Brady Bill" the centerpiece of his response to publicized shootings
in New York, regardless of whether evidence indicates that a waiting period
would have had an effect on the particular shooting.[98]


                      B. LAWSUITS AGAINST THE POLICE

     At a time when local police resources are already stretched thin, the
national waiting period bill imposes very substantial paperwork and manpower
requirements on most police forces in the country. The bill claims it is
cost-free, because the background check would be optional. But the bill's
prime lobbyist, Handgun Control Inc., has already announced that its legal
defense fund will sue police departments that do not implement the background
check.[99] Much to the delight of Handgun Control, a woman has already won
$350,000 from the city of Philadelphia for not conducting a thorough enough
background check of a man who killed her husband.[100]

     In this regard, it is astonishing that persons who claim to speak for
the nation's police want a law to make police departments everywhere
vulnerable to a brand new form of tort litigation.


                          C. COVERT REGISTRATION

     Waiting periods and other permission systems can operate as de facto gun
registration. Once the police are told who is applying to buy a gun, they may
simply add that person's name to their list of gun owners, as is the practice
in New Jersey, New York and other states. The California Justice Department
has used the waiting period, without statutory authorization to do so, to
compile a list of a handgun owners.[101] In Oregon, the police are allowed to
retain handgun purchase records up to five years.

     One attempted solution to problem of covert registration is to require
the police to destroy the purchase application records. The national waiting
period bill purports to require record destruction, but does not really do
so.[102] Moreover, not even the toughest language in a federal bill could
compel a state officer to destroy records, because Congress has no authority
to compel an act by a state or local officer which is not required by the
U.S. Constitution.[103]

     Under neither proposed federal nor existing state systems is the
pretence of required destruction backed up by meaningful enforcement. Police
who keep illegal records are subject to no penalties or civil liability.
Significantly, the practice of making daily computer back-up tapes means that
even if original records are destroyed, back-up records will still exist.

     Precisely because most waiting periods amount to covert registration,
many otherwise law-abiding gun owners will resist them.[104] The principal
objection of Constitutionalists to gun registration is that it has frequently
been a prelude to and a tool for gun confiscation.[105] Additionally, the
government has no authority to register people merely for exercising their
Constitutional rights.[106] In states where waiting periods already exist,
the legislature should specify liquidated damages against officials who
illegally compile registration lists. In cases of intentional wrong-doing,
criminal prosecutions, similar to existing criminal prosecutions for federal
Privacy Act violations, should be allowed.(107]


                       D. PRIVACY OF MEDICAL RECORDS

     The vast majority of people with mental illnesses, such as John
Hinckley, never enter state treatment systems. Pressure will inevitably build
to end the confidentiality of private medical records, so the police can
check those records as well. In California, legislators enacting a
comprehensive waiting period were told that mental health records would be
kept fully confidential. But the same year the law was enacted, the
California Department of Justice began ordering public and private mental
health clinics to report their clients to the state, which puts them in a
database along with felons that is usable by the police. Included in the
database are non-violent persons who have voluntarily checked themselves into
private facilities for problems such as anxiety or stress.[108] A number of
jurisdictions already require purchasers to waive the confidentiality of
their medical or mental health records.[109] Illinois queries, "Are you
mentally retarded?"[110] New Jersey asks the McCarthy-style question "Have
you ever been attended, treated or observed by any doctor or psychiatrist
or at any hospital or mental institution on an in-patient or out-patient
basis for any mental or psychiatric condition?" The State also inquires,
"Do you suffer from a physical defect or sickness?"[111]  The mother
who consulted a psychiatrist on one occasion because her son had died
must confess herself to the New Jersey police, upon pain of criminal
prosecution.[112]

     And it is not only the government that can use firearms background
checks to disclose private medical information. An employer can conduct
inexpensive inquiries into the mental health records and criminal background
of prospective or current employees by ordering them to produce proof that
they are eligible to buy a gun, and hence have no mental or criminal record.
Some employers in Illinois use this tactic.



                   E. DENIAL OF ABILITY TO OBTAIN A GUN


     A waiting period provides anti-rights police administrators with an easy
opportunity for abuse. In New Jersey, the police often simply refuse to
process gun purchase applications.[113] In cases of budgetary constraint,
firearms applications may suffer inordinate or even permanent delays.[114]

     Although a statute may specifically limit the reasons for disqualifying
a buyer, police may disqualify for other, illegal reasons. In Maryland, where
an appeals process exists, the police are over-ruled on 78% of appeals.[115]

     Indeed, many of the police departments which most vociferously champion
"reasonable" gun controls routinely abuse those controls once enacted. The
St. Louis police have denied permits to homosexuals, nonvoters, and wives who
lack their husband's permission.[116] Although New Jersey law requires that
the authorities act on gun license applications within 30 days, delays of 90
days are routine; some applications are delayed for years, for no valid
reason.[117] Mayor Richard Hatcher of Gary, Indiana, ordered his police
department not to give license application forms to anyone.[118] The Police
Department in New York City has refused to issue legally-required licenses,
even when twice commanded by appeals courts to do so. The Department has also
refused to even hand out blank application forms.[119]

     Most police, fortunately, are law-abiding, and would not engage in the
abuses typical in New York City and Maryland. Nevertheless, even in
law-abiding jurisdictions, the waiting period, by definition, delays for a
number of days a citizen's acquisition of a firearm. For a hunter planning a
trip next month, the delay is inconsequential. For a young woman being
threatened by an ex-boyfriend, the delay may be fatal.

     Simply put, seven days is too long for a woman whose ex-boyfriend is
promising to come over and batter her. Seven days is too long for families
when a burglar strikes three homes in a neighborhood in one week, and may
strike that night. Twenty-four hours is too long to wait when the Gainesville
serial murderer is loose, and every woman is a potential victim.

     The issue is not hypothetical. In September 1990, a mail carrier named
Catherine Latta of Charlotte, North Carolina, went to the police to obtain
permission to buy a handgun. Her ex-boyfriend had previously robbed her,
assaulted her several times, and raped her. The clerk at the sheriff s office
informed her the gun permit would take two to four weeks. "I told her I'd be
dead by then," Ms. Latta later recalled. That afternoon, she went to a bad
part of town, and bought an illegal $20 semi-automatic pistol on the street.
Five hours later, her ex-boyfriend attacked her outside her house, and she
shot him dead. The county prosecutor decided not to prosecute Ms. Latta for
either the self-defense homicide, or the illegal gun.[120]

     In 1985 in San Leandro, California, a woman and her daughter were
threatened by a neighbor. Instead of being able immediately to obtain a
handgun for self-defense, the woman had to wait 15 days. The day after she
finally was allowed to pick up her gun, the neighbor attacked them, and she
shot him in self-defense. Had the man attacked 14 days after his initial
threat, rather than 16 days after, the woman and her daughter would have been
raped. Of course the state of California would have denied liability, as it
has repeatedly denied liability for its failure to protect citizens against
specific threats from specific criminals.

     The national waiting period proposal does allow a waiver of the 7-day
wait if the locality's chief law enforcement official (or his designee)
issues a written order stating that immediate purchase is necessary to
protect the life of the gun purchaser or someone in her household.[121] In
practical terms, it is very doubtful that a potential crime victim
(particularly the poor and minorities who are the victims of most violent
crime), will be able to obtain a rapid appointment with the police
administrator who will issue a gun authorization. If the administrator is out
of town, or busy, or uninterested, the victim is out of luck. And if the
potential victim is receiving threatening phone calls that deal only with
rape, aggravated assault, or mayhem, even a sympathetic police chief cannot
issue an exemption, since there is no threat to the victim's life.

     Some of the people killed by a waiting period could, ironically, be
people who have volunteered to defend the United States. Members of the armed
forces are allowed to carry personal handguns as sidearms, if they so choose.
Many infantry grunts might want a Colt .45 or a Glock 9mm on their hip, in
case their government-issue M-16 rifle jams in a firelight. Television
stations in Texas and Alabama reported high levels of sales of 9 millimeter
handguns to servicemen shipping out to Saudi Arabia. But in states like
California, with a minimum wait of 15 days, the short period between
notification of call-up and departure date is not enough time for a soldier
to be cleared by the firearms control apparatus. As a result, soldiers from
California and similar states were placed in greater peril.[122]  Happily,
the rapid collapse of the Iraqi army reduced the importance of back-up
sidearms.

     As the Fifth Circuit Court of Appeals has held, "the right to defend
oneself from deadly attack is fundamental."[123] A waiting period puts that
fundamental right on hold.[124]

     A person who is falsely imprisoned by the state can get out of jail a
week later, with perhaps no permanent harm done. Newspapers which libel a
person by mistake can always publish corrective stories the next day. A
person who is denied the right to bear arms for a week may, at the end of the
week, be dead. A deprivation of even 24 hours of the means to self-defense
may mean a deprivation of life itself.

     Of course the number of persons who would be killed or injured because
of the waiting period would be small, so small as to be statistically
unnoticeable. But so would the number of persons saved by a waiting period.
Proponents of a waiting period have not carried the burden of demonstrating
that a waiting period would be a net saving of lives, taking into account the
people who die because they cannot defend themselves, and taking into account
the diversion of police resources away from street patrol.

     To reduce the abuses and injuries that waiting periods could cause, a
number of prophylactic measures make sense: Any waiting period should have an
explicit appeals process. At the appeal, the government should have the
burden of proving that the citizen is not entitled to possess a firearm.
Normal rules of evidence should apply, and citizens should not be victimized
by anonymous rumors and other sorts of hearsay evidence. Citizens who are
victorious in their appeal should be entitled to attorney's fees.

     Moreover, any person injured by the failure of police to properly and
promptly approve an application should have a right to sue for damages. (When
a person is killed because the police failed to act, the survivors would have
the right to sue.)

     Under the legal doctrine of sovereign immunity, the police have no duty
to protect any individual citizen from crime, even if the citizen has
received death threats and the police have negligently failed to provide
protection.[125]  In cases where the government affirmatively interferes with
a person's ability to protect herself (the interval between an application to
purchase a firearm and approval), the doctrine of sovereign immunity should
not apply. The government should not be able to strip a person of her right
to defend herself, and then assert that it has no responsibility for the
consequences.


                          F. FINANCIAL HARDSHIPS


     Almost all waiting period/permission systems require the firearms
purchaser to pay the entire cost of the system. It is Constitutionally odious
to make people pay the government so the government can satisfy itself that
they are fit to exercise their Constitutional rights. The young woman in the
ghetto who needs an inexpensive handgun for self-defense, or the young man in
Appalachia who wishes to hunt squirrel with a .22 rifle are not the cause of
the crime problem. Even an $8 fee may drive the cost of their $50 gun out of
reach.

     For all firearms purchasers, not just poor people who need a defense
gun, a waiting period requires an additional trip to the firearms store, more
time spent by the clerk at the store, lost sales due to people who do not
have the time to make repeated trips, and a host of other transaction costs.
For a person who lives in a small town, and needs to make a long trip to get
to a store with a good selection of merchandise, the inconvenience can be
substantial.

     The waiting period severely impacts firearms dealers and manufacturers.
The reason is that most guns are bought by persons who already own guns,
often as an impulse addition to a collection. If two trips to the store are
required, the buyer often loses interest in the sale. For example, the number
of handgun sale records reviewed by the Pennsylvania state police is
one-third less than the number of handgun purchase applications. Most of the
drop-off is caused by potential purchasers who, after a few days, decide not
to buy the gun.[126]

     The waiting period also indirectly impacts government resources. A
substantial decline in firearms sales mean a substantial decline of several
hundred million dollars in firearms excise taxes, and perhaps also a
substantial decline in revenue for wildlife commissions.[127]

     From a criminal justice standpoint, the loss of gun sales is
inconsequential. The fact that a person who already legally owns three guns
ends up not buying a fourth does not make him more vulnerable to crime, nor
does it make him more dangerous to the public. (There is no correlation
between gun density and gun crime.[128])

     The loss in sales, irrelevant to the crime issue, is very harmful to
retailers and manufacturers. Automobile dealers, liquor stores, and tobacco
outlets all sell products that kill many people, but they are not burdened
with a rule that makes lawful users make repeated trips for the same
transaction.

     It should be emphasized that substantial burdens on firearms owners and
the firearms industry might well be justified if tangible benefits resulted.
But as the evidence discussed above indicates, waiting periods simply do not
prevent guns from coming into the wrong hands.


                        G. THE DATA QUALITY PROBLEM

     The existing state of criminal records in most jurisdictions is simply
too primitive to support a background check that is part of a waiting period
(or part of an instant telephone check).

     The FBI "estimates that approximately one-half of the arrest charges in
their records do not show a final disposition."[129]

     Only 40% to 60% of the nation's felony records are automated.[130] Many
states do not have fully automated criminal records name indexes.[131] Many
indexes are not currently searchable by information submitted from the
outside, such as telephone lines or computers. In some states, the same
master index (such as a fingerprint index) that contains all felons will also
include child care workers, various license holders, and firearms permit
holders.[132]

     For citizens regarding whom false information has been incorrectly
recorded on a "rap" sheet, there is no remedy. Courts have held that even
after an acquittal or dismissal of charges, a person has no Constitutional
right to have an arrest purged from his record.[133] (It should be noted that
racial minorities are disproportionately victimized by arrests that do not
prove worthy of a conviction.)

     According to the Department of Justice study, performing a reliable
background check under current data quality conditions would take 30 days.
The Department found that shorter background checks (such as one week or
three weeks) were no more reliable than instant checks. That conclusion is
consistent with opinion in the police surveys, which shows most command rank
officers do not believe that seven days would give them enough time to do a
background check.[134]

     Because of the severe problems with the existing data quality, the
Department of Justice Task Force concluded: "[A]pproximately 50% of the cases
where persons appear to have a criminal history record based on an initial
name search are eventually found to be false hits ... Indeed, in many
(perhaps most) cases an initial indication of a criminal record would
eventually be shown to be untrue because it resulted from misidentification
with someone else with a common name and date of birth." As a result, only
84-88% of gun purchasers would be able to pass an initial check.[135]

     If there were a national comprehensive check, approximately 725,000
persons a year would be falsely denied under either the waiting period or the
instant telephone check.[136] The 725,000 faced with false denials would then
have to prove their innocence by being fingerprinted, and entered in a data
base of eligible gun buyers. The "secondary verification process" (proving
their non-criminal identity to the police) that would take four to six
weeks.[137]

     The list of people processed through secondary verification would be
another basis for gun registration.

     Accordingly, a minimum condition for any kind of background check system
should include the establishment of a data base consisting only of convicted
felons and other ineligibles.


                       H. A STEP TOWARDS PROHIBITION

     Why waiting periods? It is understandable why many legislators would be
attracted to an idea that, at first glance, seems eminently plausible. Many
legislators accept the reasoning "guns don't kill people; people kill
people." So instead of controlling guns (through gun registration), why not
control people who may abuse guns?[138]

     But the anti-gun lobbies, being expert in the issue, know better. They
know the facts of the Hinckley assassination. So why do they support a
waiting period?

     The National Coalition to Ban Handguns [recently renamed the Coalition
Against Gun Violence] candidly admits that gun controls do nothing to prevent
criminals from obtaining guns.[139] The CAGV believes that criminals are not
the issue; handguns have no place in civilian hands. Moderate controls over
handguns are a step toward to a ban. Policy statements distributed by the
NCBH forthrightly admit as much.[140]

     Even in the most academic settings, the question may come down to
whether a person is "for" guns or "against" them. At a debate at the American
Society of Criminology Conference in November 1989, the participants were
asked what number of lives saved would be necessary for them to consider a
waiting period worthwhile. Both sides of the debate agreed that the number of
lives saved was not determinative of their positions. Dr. Paul Blackman, the
National Rifle Association replied that he thought the waiting period might
end up with a net cost of lives. He also stated that alcohol Prohibition had
saved lives, but still was not a good idea. Darrel Stephens, Executive
Director of the Police Executive Research Forum, replied that he would still
favor a waiting period even if it were proven not to save any lives. He
reasoned that the extra effort required to purchase a gun would convince some
people not to buy a gun, and less guns in civilians hands would be good in
itself.[141] 

     What about Handgun Control, Inc., the more powerful of the two major
anti-gun lobbies? Their stated motto is merely "Keeping handguns out of the
wrong hands. But their agenda is prohibition. HCI's former Chairman has
stated that he favors intermediate control as a waystation to near-total
handgun prohibition.[142] The organization supports handgun prohibition as a
policy matter.[143] As one of HCI's Congressional allies acknowledges, the
7-day handgun wait "is not really enough, but it is a start."[144]

     What good does a waiting period do for the goal of handgun prohibition?
Waiting periods facilitate gun registration, which HCI praises as a prelude
to gun prohibition.[145] The national waiting period proposal includes a
number of subtle provisions which facilitate prohibition: an anti-gun police
chief could indefinitely delay a purchase application by refusing to mail
back acknowledgement of receipt of the application; and the definition of
"handgun" is elastic enough to include a number of long guns. [146]   

     As discussed above, waiting periods sharply reduce gun sales. While
there are no anti-crime benefits, HCI sees reduced sales (rather than just
reducing uncontrolled sales) as good in itself, and a necessary precondition
to prohibition.[147]   

     Most importantly, the waiting period is social conditioning. It sends
the message that citizens do not possess a right to bear arms, but merely a
privilege dependent on police permission.[148]


                        VII. CONSTITUTIONAL ISSUES

     Synopsis: 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.


     Is a federal waiting period Constitutional? The issue has been never
been directly tested in court. State waiting periods are common, but the
prevalence of a practice is no guarantee of its Constitutionality. Racial
segregation, after all, was the norm in most of the U.S. for the century
after the Civil War, even though the Constitution forbade it.

     One view of Constitutional interpretation was articulated by Justice
Black. He viewed the Constitutional prohibitions literally. For example, he
took the First Amendment's command "Congress shall make no law respecting the
freedom of speech..." to mean that Congress could pass no law regarding free
speech. Justice Black viewed the Second Amendment with a similar literalness:
"its prohibition is absolute."[149] The more prevalent view, however, is that
no Constitutional provision is absolute.

     Regardless of which view is adopted, the most appropriate guide for
analysis of the Second Amendment is the First Amendment. Of the entire Bill
of Rights, only the First, Second, and Third Amendments guarantee particular
substantive rights.[150] Amendments Four through Eight are due process
requirements for the government to obey, while Amendments Nine and Ten are
non-specific reservations of rights. The Supreme Court has indicated that the
First and Second Amendments should be interpreted according to the same
principles.[151] Indeed, it is necessary to interpret the Second Amendment
with just as much vigor as the First in order to obey the Court's command
that all Constitutional rights must be treated with equal respect, with no
right being particularly favored or disfavored.[152] And of course all
Constitutional rights must be broadly construed.[153]


               A. PRIOR RESTRAINTS ON CONSTITUTIONAL RIGHT'S

     While the First Amendment protects freedom of speech, there are
legitimate debates about what kinds of communication are considered "speech."
Pornography, picketing, price-fixing, and perjury are activities which, at
least arguably, are not included within the freedom of speech. Likewise, the
right to bear "arms" is sometimes said not to apply to machine guns,
nunchakus, brass knuckles, switchblades, or anti-aircraft rockets.

     For communication that is clearly within the freedom of speech (such as
political commentary), the single clearest principle is that prior restraints
are virtually never lawful. While the government (through laws against libel
or against criminal incitement) may punish speech after it occurs, the
government may almost never impose a prior restraint by requiring a person
receive permission before speaking.[154]

     The various police permission proposals destroy the normal presumption
of innocence and impose prior restraints. A person is forbidden to exercise
her right to bear arms unless the police satisfy themselves that the person
is not guilty.[155] Citizens who wish to protect themselves should not have
to wait to receive police permission. 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.[156]

     A judicial decision permitting a prior restraint on the right to bear
arms would inevitably endanger the right to abortion. If prior restraints and
waiting periods on the right to bear arms are allowed, why not require women
who need an abortion to submit to a waiting period, pass a simple test on the
nature of fetal life and risks of abortion, and obtain permission from a
local health agency?

     The chance that any given person acquiring gun by any method, including
by theft, will perpetrate a homicide is 1 in 3,000. In future years, a
legislature dominated by pro-life forces could point out that a woman seeking
an abortion does so with the intention of killing the fetus. If a chance of
a killing smaller than 1 in 3000 justifies a prior restraint, then surely
the certainty of a killing in case of abortion would also justify a prior
restraint.

                            B. BALANCING TESTS


     Another principle, originally developed under First Amendment analysis,
but now considered to have general applicability, is that of "least
restrictive means." When the government regulates Constitutionally-protected
activity (such as speech or interstate commerce), even if the government is
pursuing a substantial purpose:

     that purpose cannot be pursued by means that broadly stifle fundamental 
     personal liberties when the end can be more narrowly achieved. The
     breadth of legislative abridgement must be viewed in light of less
     drastic means for achieving the same basic purpose.[157]

Courts have directly applied the principle to strike down infringements on
the right to keep and bear arms.[158]

     Because a waiting period is so patently ineffective, it is not the least
restrictive means to achieve the substantial government interest in reducing
gun misuse. The waiting period fails the less restrictive means test because
it imposes a broad restriction on all firearms purchases (or all handgun
purchases for a limited wait) that is not narrowly tailored. There are a
large number of less restrictive methods the government might adopt,
discussed below in Part VIII, to reduce gun misuse.


                               C. FEDERALISM


     Handgun Control, Inc. claims that 22 states have waiting periods. The
statement is not completely accurate. The majority of American states impose
no major restrictions on firearms purchases in addition to those under
existing federal law. Federal law requires the purchaser of any gun to fill
out a form which is permanently retained by the dealer, and is available for
inspection by federal authorities.  Some states require handgun purchasers
(or all gun owners) to obtain a license. Once granted a license, the
license-holder may obtain an unlimited number of firearms of all types
without further approval, for as long as the license is valid (for life, or
a term of one or more years).[159] South Carolina runs a background check
after the person has picked up the gun.[160] Wisconsin has a two day waiting
period, but no background check.[161]

     Only 16 states actually have a system like what is proposed by Handgun
Control, Inc. as a federal law, and pushed by HCI in the state legislatures:
a statute requiring individual police permission for every single handgun
purchase. In four of those states (Pennsylvania, Oregon, Indiana, and
Washington), a person who holds a permit to carry a concealed firearm is
exempt from the waiting period; the police are statutorily required to
grant concealed carry permits to all citizens unless there is a particular
legal disability. Connecticut exempts from its wait anyone with a state
hunting or local gun license, and allows transfers in less than 14 days if
approval is granted earlier.[162] Tennessee also allows an instant
transaction if the police approve, and in some rural counties, the waiting
period is not enforced. Of the 12 states that require handgun purchasers to
receive individual permission for each purchase under all circumstances, 3
have a waiting period shorter than the 7-day standard commonly proposed.[163]
Thus, the 7-day waiting period for every handgun purchase proposed by Handgun
Control is more severe than the existing laws in 41 of the 50 states.

     Forty-one of the fifty states have decided not to implement laws as
severe as the proposed uniform 7-day wait. Sometimes the federal government,
viewing a growing trend in the states, makes the progressive state
legislation into federal law. It cannot be said that there is a national
trend in favor of waiting periods. It is true that some states that already
had waiting periods for handguns have extended them to long guns.[164] (The
move is logical, since long guns, especially shotguns, are so much deadlier
than handguns.)[165] Similarly, Florida, which already allowed counties to
have limited 3-day waiting periods, voted in November 1990 to make the wait
state-wide. The new Florida law had several provisions which made it more
palatable to supporters of the right to bear arms; the law provides for a
wait only, with no background check or police permission. Persons with
handgun carry permits (which are required by law to be issued to all
qualified applicants) are exempt from the wait. As a state constitutional
amendment, the Florida wait prevents the state legislature from enacting
stricter gun laws.

     In states that do not already have waiting periods, there has been no
willingness to adopt one. In the last decade, not one state without a waiting
period has added one. Even Ohio, the home state of both sponsors of the
federal waiting period, has repeatedly rejected a waiting period.[166]
Indeed, the large majority of states, through preemption laws, have forbidden
or abolished local waiting periods.[167]

     It is sometimes asserted that the lack of a waiting period in some
states makes enforcement of the law impossible in states that have one.[168]
But ever since the federal Gun Control Act of 1968, citizens are only
permitted to buy handguns in the state where they reside. If a Marylander
wished to evade his state's 7-day wait, and buy in a state without a wait
(such as West Virginia), he could not do so without providing proof that he
was a resident of the other state. Only persons possessing false
identification could evade the background check in one state.

     When faced with the federalism argument, some supporters of a national
waiting period reply that the proposals merely allow the choice of a
background check. States already have that choice, of course. The state
legislature of Iowa could enact a background check if it wished; it does not
need the assistance of the federal government to have a "choice." Besides, as
discussed above, Handgun Control, Inc. has already announced it will sue
police departments that do not "choose" to conduct a background check.
Because of HCI's lawsuit strategy, the seven-day wait would in practice be
mandatory -- even though the large majority of states have apparently decided
that public safety is enhanced if their citizens can acquire the means of
self-defense in less than a week.

     Since the net effect of Handgun Control's strategy would be to impose on
state officials a federal obligation to conduct a background check, the
national waiting period is an unconstitutional exercise of Congressional
power. As the Supreme Court has ruled: "the Federal Government, under the
Constitution, has no power to impose on a State officer, as such, any duty
whatever, and compel him to perform it; for if it possessed this power, it
might overload the officer with duties that would fill up all his time, and
disable him from performing his obligations to the State, and might impose on
him duties of a character incompatible with the rank and dignity to which he
was elevated by the State."[169]

The Supreme Court's concerns are particularly apt in the case of the national
background check. The mandatory check would require each state to assign some
number of police officers or other employees (ranging from a few dozen in a
small state doing a retail handgun-only check to several hundred in a large
state under HCI's comprehensive check) to the job of checking the backgrounds
of its citizens. Although the state legislature would have preferred to
devote the time of its employees to the more urgent task of fighting
criminals, the federal government would force the state to use its own
resources to process paperwork from honest citizens.
-- 
Larry Cipriani, att!cbvox1!lvc or lvc@cbvox1.att.com
Xref: sparky alt.politics.clinton:258 alt.politics.elections:8868