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The Brady Bill - a Case Study in Failed Public Policy

by Andrew Johnstone, RPh/MD
AJMD@KeepAndBearArms.com

Think about the Brady bill for a minute.  That’s right, turn off the television, put down People magazine, and actually think about this important public policy.  You probably don’t remember the details of how it was enacted, or what it says, but just some fuzzy images of Sarah Brady looking poised and determined, standing beside her crippled husband, and on a crusade to make our nation somehow safer.  You probably figured that like most mainstream media ‘news’ it was mostly fluff and political grandstanding, but as a compassionate human being, did feel sorry for the both of them.  In the back of your mind, you no doubt were smart enough to realize that any law they would pass would not really change things much, but surely it wouldn’t hurt anything, and might even help a little. 

That apathy, and that ‘what the heck; sounds ok to me’ approach to public policy is proving to be a disaster for this country, and not just in matters relating to guns.  We have far too many laws on the books to keep track of, much less obey.  Further, they are often written so hastily and poorly that they conflict with other laws (so sometimes citizens break a law no matter what they do) and are subject to a ever-changing interpretations.  Children do best with a few, simple rules, that they can accept as seeming fair, and that don’t change capriciously.  Societies are similar; if the law, as defining ‘right vs. wrong’, is a nebulous and complicated thing nobody can understand, and just as you think you understand it, the meaning has been changed, or a slim democratic margin has caused a reversal of the law, it is hard to have much respect for the Law.  Ageless and sensible laws, against murder, theft, and contractual deception, are thus diluted with exceptions, modifications, and association with senseless and symbolic laws against ‘crimes’ where there is no victim.  Pretty soon you have a situation where people get in the habit of ignoring laws, and the police simply cannot enforce them all, so enforcement becomes spotty and selective (often against citizens who challenge whoever is in political power), and respect for the rule of law is further diminished.  We’re there now. 

Back to the Brady law, because it is so illustrative of this, and because we really need to learn some basic principles as citizens if we are going to get our government back on track. 

First, recall that murder has been illegal since this country was founded, whether done with gun, poison, pipe wrench, fist, or laser weapon.  When we enforced that law promptly and severely, there were few murders.  So - despite the pain and suffering of Mr. Brady, there really wasn’t a pressing need for a new law as far as our society was concerned.  Politically, of course, there is always a desperate need for another law, and of course our legislators are happy to meet that need, especially if there is some political deal they can pull in the back room which benefits themselves

Secondly, recall that our nation’s founders debated hotly the inclusion and wording of the Second Amendment, which is an integral part of the Bill of Rights - the part of the Constitution which expressly deals with the balance of power between the citizens and the government.  Their debates were published, and it is clear they were not merely protecting some ‘right’ to hunt, target shoot, or own guns ‘for legitimate sporting purpose’; they were seeing to it that the citizens would always have militarily significant firepower, with which to deter any tyranny.  A ‘standing army’ (like today’s military and federalized National Guard) was not to be tolerated, and when an army was raised by the government, the intent was clear that the citizens themselves would be sufficiently well armed that the army itself would not pose a threat.  Of course technology has changed, but the concepts have not, and military-style small arms are necessary (and at present sufficient) to render the civilian masses relatively immune to harm from our own military if it did indeed try to oppress.  (The infamous Branch Davidians had a fairly ‘average’ number of firearms per person, compared to other Texas citizens.)  Of course our military has atomic bombs and tanks and so forth, but the domestic balance-of-power issues involved with establishing a tyrannical police-state are quite different than those involved in the international balance-of-power; generally one does not unilaterally destroy someone they seek merely to subjugate.  This might be a good time for you to read some books on political theory, enforcement of social contracts, and so forth, if these concepts are new.  A good place to start reading would simply be the debates on ratification as expressed in the Federalist Papers and the Antifederalist Papers. 

Lest you think these are archaic concerns, you might also want to read RJ Rummel’s “Death by Government” (ISBN 1-56000-145-3), or J Simkin’s “Lethal Laws - Gun Control is the Key to Genocide” (ISBN 0-9642304-0-2), which document that even during the past few decades, tyrannical governments around the world have continued to flourish, using their police and military to murder an average of over 4,000 of their own citizens PER DAY.  We need to remember the magnitude of that loss of life, when we debate ways in this country to reduce our ‘disgracefully high’ criminal firearms deaths, which total less than one per cent of the genocidal losses in gun-controlling countries.  In practical terms, the major risks of gun control may well exceed any marginal benefit. 

The cold war taught us that unpleasant as it may be, nuclear deterrence did save some lives, by reducing open warfare.  Part of that deterrence depended on widespread and hidden defenses; if only a few known sites were ‘armed’, it would be a simple and tempting matter to neutralize those sites, then prey at leisure on the less protected areas.  Similarly, if criminals know who is armed, and who is not, they either neutralize the armed individual (i.e. shoot the security guard first thing when they hold up the bank), or select an unarmed individual to attack on some dark street on her way home from work. 

Deterrence from tyranny involves the same concept; widespread and anonymous civilian ownership of politically significant firearms is required.  If too few people own guns, or they are not of military-style in terms of potency, or even if the government has a list of who owns what, the deterrence is lost.  Some argue that we needn’t be concerned with tyranny ‘in this day and age’, but even a cursory look at current world events shows concern along those lines not to be archaic or paranoid.  Others argue that technology has come far enough that resistance to tyranny would be futile, since governments possess bombs and airplanes and rockets - things few people advocate the citizenry have access to.  Here, it is worth repeating that we are not talking about an all-out war between citizen and government - those certainly occur, but that is what we are trying to prevent.  Military-style shoulder-fired weapons are more than adequate to the task of preventing tyranny and oppression.  Further, it is not logistically that difficult for State-level units (like the National Guard units were intended to be before the federal government seized control of them) to actually have some heavier military equipment - a look at your local ‘guard armory’ will perhaps enlighten you, as you find armored vehicles, rocket launchers, and so forth.  In fact, it is somewhat interesting politically that the federal government has already seen fit to come up with excuses to take control over these units, thereby neutralizing some of the deterrent effect they could have if the federal government did become malignant.  For that matter, it is interesting that the federal government, in addition to wanting to generate a list of gun owners (with dubious benefit in terms of crime reduction, but substantial potential for abuse in case of tyranny), has focused obsessively on ownership of so-called ‘assault weapons’, which despite media hype, are hardly ever used to commit violent crimes, but again - would be the most important class of firearms for preservation of civil liberty against tyranny.  An analogy would be if the government pretended to be concerned with pornography and libel (abuses of the First Amendment), but instead focused legislative efforts on controlling newspaper content, talk radio, and other politically important speech.  Indeed, we do see some of this slight-of-hand legislative in many areas where addressing social ‘problems’ seems to serve mostly as an excuse for curtailing dissent. 

OK, enter the Brady law.  Jim Brady gets wounded by some crazy (a phenomenon that has occurred for the past few thousand years of human history - long before handguns were invented, and the only practical protection for politicians is institution of oppressive military rule, and its attendant severe ‘crowd control’ methods).  Of course we need a new law (don’t we always?).  It just happens that a ‘waiting period’ law is sitting idle in the queue of legislation (how convenient!).  So, after much debate, the opponents of the law give in, demonstrating how ‘reasonable’ they are (as opposed to how ‘principled’ they should be).  One interesting tidbit here is that since the alleged purpose of the waiting period was to allow a background check, the National Rifle Association (that’s right - the ‘gun nuts’) had to be the ones to insist that a background check actually be done.  In their haste to ‘do something’ symbolic, the legislators had come up with a ‘background check’ bill that actually didn’t require background checks! 

During the legislative debates, of course it was asked ‘Why would anyone in his right mind oppose background checks?’ and there were lots of sound and detailed answers to this question, but they all were too complicated to actually pay any attention to (“Hon, the game’s about to start, what did you do with the remote?”), and since the law’s backers really didn’t care about its net effect (they just wanted to appear to voters to be ‘doing something’), they passed it anyway.  Now that we’ve seen data that reveal the Brady law did not save lives, it is worth revisiting those objections, which  centered on two areas - registration, and net impact. 

Registration of Firearms

We all want to trust the government, but history shows that it is very unwise, and very dangerous, to do so.  The gun lobby was able to get language put into the bill that prohibited creation of a registration database.  The rationale was that if John Doe were cleared during the background check to purchase a firearm, that was what was important, and the government did not need to keep a list of who owned what.  That information would still be recorded in the usual manner in the dealer’s records, so it was available if a gun was found at a crime scene, because the manufacturer’s serial number would trace it through all levels of sale until it wound up at the dealer’s, and upon checking the dealer’s records, the individual who purchased the gun could be identified.  Thus, the government would have the ability to trace firearms to their owner, yet would not be able to assemble a ‘hit list’ of gun owners in general to go after if they suddenly decided they needed to neutralize potential opposition before going tyrannical.  All in all, a ‘reasonable’ compromise legislatively.

Remember the ‘paranoids’ didn’t want registration, because the government was in their view untrustworthy?  Remember they feared that despite promises to the contrary, confiscation might follow registration?  They were right, ‘paranoid’ or not; since the law passed, several states have retroactively banned classes of firearms (without even presenting any evidence to support a need to do so for any public good), and confiscated them based on registration lists.  Additionally, the federal government, in blatant defiance of the Brady law’s clause requiring immediate erasure of their information once the sale is approved (again, the dealer retains the information, should a legitimate need arise for it at any later date), has been openly admitting that they have created a computerized registry of gun owners.  When confronted with the violation, they promised that they will erase the information after a few months.  Trustworthiness is not part of their track record, which our nation’s founders realized, cautioning us to maintain ‘eternal vigilance’ of our government.  We’ve rather neglected that of late.  

This is especially interesting in light of the fact that originally a background check was not even part of the legislative requirement, despite the public portrayal of the Brady bill.  A skeptical observer, being ‘eternally vigilant’, might wonder if all along the purpose of the legislation was simply to do something as an excuse to get back-door registration, since direct attempts by the legislature at implementing registration had all previously been defeated as unnecessary and dangerous. 

The Brady law specifically stated guns would not be registered, but perhaps its most far-reaching danger is that in fact registration was implemented.  Since the invention of firearms, which in part serve as a great equalizer, no society has ever experienced major genocide without first registering guns and their owners - ostensibly ‘to fight crime’.  That should send a chill down the spine, even for us pampered Americans.  Our Kent State and Waco hardly compare to Tiananmen Square and the Warsaw Ghetto in magnitude, but the potential is always there, and astute historians point out that one of the reasons we haven’t had much trouble along those lines in this country, is that our citizens are armed to the teeth.  If their assessment is correct, then lets hope they stay that way.  Unfortunately, once registration happens, there is no longer a risk of effective mass rebellion if the government goes berserk, for they can easily single out individuals for defamation, make ‘examples’ out of them by planting evidence of their ‘crimes’, and so forth.  Again, the reader is urged to study some military and political history, as this is not mere theorizing; such tactics are used all the time around the world, and have been in this country1, as well.  Registration of guns is extremely dangerous. 

Up to this point, most of what I’ve written about seems remote and hypothetical to the average American, who lives a cush life, hasn’t ever been threatened by government other than to pay taxes, or perhaps a speeding ticket, and never has to think about anything more complicated than the plot of tonight’s sit-com, or the babble on Oprah.  Now let’s consider the impact of Brady on our daily lives. 

Net Impact on Crime

The Brady law rationale was that if you allowed a week to ‘cool off’, and performed a background check to make sure someone unstable or criminal was not trying to buy a gun, lives would be saved.  Inconvenience to honest people would be minimal, and so any who opposed Brady were written off as selfish ‘gun nuts’.  Let’s look at the three basic types of people Brady affects - criminals, gun enthusiasts, and potential crime victims.  This was all predicted and explained by criminologists, and a few articulate members of the ‘gun lobby’, back when Brady was first proposed, but nobody paid much attention.  Perhaps we should have. 

Criminals

It is pretty obvious that only really stupid criminals will attempt to purchase guns through dealers, and it should be obvious as well that no matter what restrictions are placed on gun sales between individuals, or other laws, criminals don’t obey laws, so they will be relatively unaffected.  It is also fairly unusual for a gun to be used criminally within the first few weeks of its purchase, so ‘cooling off’ periods make little sense, especially when you consider that the criminal is likely to already have some firearms (80% of violent criminals have already been convicted of prior violent crimes [and are thus already prohibited from even possessing firearms!]).  So it would be rare indeed for a criminal to actually be impacted by the Brady law, and that is without the obvious fact that criminals tend to get their guns by circumventing the law in the first place, so the criminal down the street who sells them a stolen pistol is hardly going to comply with the Brady law!  Brady backers did later publish exaggerated claims2 of how many criminals were ‘stopped’ from purchasing guns by the Brady law, but a close review of the records indicates that most of the ‘criminals’ were people with outstanding parking tickets, or perhaps overdue child-support payments.  Not necessarily model citizens, but not the type to pose a threat if they purchased a firearm.  The few true criminals who attempted purchase were already breaking pre-existing laws, so Brady wasn’t needed to ‘nab’ them, and interestingly, prosecution of such felons-trying-to-buy-guns actually dropped after Brady was enacted into law, suggesting either the government really doesn’t care as much as it pretends to about reducing crime or enforcing gun laws, or that government actually hopes violent crime increases, giving them excuses for yet more gun restrictions. 

Gun Enthusiasts

Gun enthusiasts were also not affected much, as they generally already own some firearms, and waiting a week is seldom a big deal if your purpose is ‘sporting use’.  For those gun enthusiasts who were in sudden need of self-protection (say as witnesses to a crime, threats from stalking ex-husbands, etc.), they usually would already have a suitable firearm to protect themselves with.  Some gun owners did complain about Brady on general principle, but the majority of gun owners were just as apathetic as other voters, and didn’t bother to think much beyond its impact on them individually - since there was little impact, they didn’t object strenuously.  In fact, historically the hunters, target shooters, and collectors we refer to deridingly as ‘the gun lobby’ are hardly defenders of liberty when it comes to firearms freedom.  Firearms manufacturers are much more interested in protecting their market or impeding the competition, which often means they support gun control laws, despite public impression to the contrary.  More often, the only strong and uncompromising defense comes from the Civil Libertarians (excepting oddly enough the ACLU), historians, and criminologists.  Even physicians are now entering the fray, as they realize the adverse impact on the Public Health of most forms of gun control, and there are several physician groups dedicated to exposing the dangers of ill-conceived gun control legislation.  One such group is on line at http://www.KeepAndBearArms.com/DSGL.

Potential Crime Victims

Now, how about the potential crime victim, who may not be a gun enthusiast.  Typical would be a woman who is being threatened by a violent ex-spouse, and she is advised to buy a firearm for protection, since the police will not be there until after a problem has happened, and she cannot afford a round-the-clock body guard.  Gary Kleck, in “Point Blank - Guns and Violence in America” [ISBN 0202304191] has already shown that women, in particular, are least likely to suffer injury or death during an assault or rape attempt if they resist with a firearm, more likely to suffer injury or death if they scream, try to run, or cooperate, and most likely to suffer injury or death if they use any other weapon.  This woman will be severely impacted; she has an immediate need, maybe within hours, to defend herself.  She has no other firearms to use in the interim, and she is hardly likely to have underground criminal contacts to get her a gun ‘off the record’.  She may even be denied her purchase under Brady, if she has a ‘domestic violence’ record.  The latter sounds like a good reason to deny purchase, until you realize that such a ‘record’ can exist if the guy pinned her to the hood of his car while threatening her, and she scratched his face with her fingernails, or even scratched the paint on his car with her car keys.  All it takes is for him to have pressed some ridiculous charge, and her have decided it is better to pay a fine than spend time and money appealing it.  Thanks to another ill-conceived ‘feel-good’ law, the Lautenberg amendment, that episode which may have happened years ago will now retroactively prohibit her from owning any kind of firearm, for the rest of her life, whether her life is in danger or not.  By the way, although Brady was only supposed to affect handgun purchases, the government just decided to ignore that part of the law, and is using it to create a registration database of rifles and shotguns as well. 

Conclusion

So there you have it, a law that wasn’t needed, since murder is already illegal, and since records of firearms purchases are kept at the dealer level, where they are both available for legitimate government need, yet secure from government misuse.  When first written, the law did not even require a background check, leading some to suspect it was a thinly veiled excuse for creating federal gun registration, in clear violation of existing law. 

Historians warned against this potential, and to allay those ‘paranoid’ fears, the legislature inserted clear language prohibiting creation of a federal registry of gun owners.  Now we see that the government has ignored the law, and even uses Brady to create a database for the more tactically significant long guns, leading many to wonder what their plans are, that they want so desperately to set the stage for disarming the citizenry.  On a more individual front, criminologists warned that the law would not reduce crime, and might even increase it, as the only individuals much affected by it would be potential crime victims.  We’ve seen that to be the case, as well. 

The lesson is more than just that the Brady law was a mistake.  We need to look at our method of setting public policy.  Serious criminologists and historians are being trumped by the political whims of soccer moms dabbling in legislation so they can get some  warm fuzzies by out-machoing the NRA.  How cute.  As long as we continue to spend more time watching ball games, deer hunting,  and partying than participating in society, and as long as we just shrug and let others write laws, change laws, interpret laws, and enforce laws, with virtually no supervision, we will continue to see our formerly peaceful, non-violent, productive, and happy society, become an ever-deteriorating mess.  We’re well on our way to a disillusioned and chaotic socialist police-state.  Many comfortable middle-class and wealthy individuals think it isn’t a big deal, because they assume that since they are part of the intelligencia, they will always have political connections so they can skirt the law, and plenty of material things to make life pleasant for them, even as they deny same to the lower classes.  They would do well not to write off the experiences of previous generations, even though pre-boomers didn’t have television, or know the structure of DNA.  While we yuppies and boomers sit around our fireplaces and sip our wine, using our armchair ‘expertise’ to try brave new social experiments, we need to be mindful that it is real lives lost if we screw up, and that some mistakes simply cannot be un-done.  Gun registration is one of the more obvious examples. 

The bottom line is that if Americans don’t all get off their lazy behinds and tighten the reins quickly, our government will be irretrievably out of control.  Unpleasant as it may be to think about ‘guns’ rather than what kind of gas grill to buy, or who won the game last night, how to position your portfolio, or what politician will manipulate the economy to your advantage next year, the time is now.  You can reverse many of things with a free press and fair elections, but you can’t un-register guns or their owners, once you finally realize it was a mistake to do so. 

So, put down the TV remote, click off the girlie web site, and educate yourself, before the First Amendment takes the same path as the Second, and you can no longer read ‘prohibited’ stuff. 

There are some basic articles everyone should read who is interested in how gun laws affect our society (and if you aren’t interested in that, please do the rest of us a favor, and go live in a country where there is no Second Amendment to defend - perhaps China, or Cuba, if you don’t want to travel so far).  High on the list, so you can learn to spot the other side’s frequent habit of fabricating ‘facts’, includes Tennessee Law Review’s 1995 Spring Symposium issue, vol. 62(3), especially “Guns and Public Health - Epidemic of Violence or Pandemic of Propaganda?” which is on-line at http://www.2ndlawlib.com/journals/tennmed.html - or the entire 350-page, thoroughly referenced issue is available for $13 from their law library at 615-974-4464, and makes a tremendous starting point for the serious individual.  For a more concise article (gee, you wouldn’t want to waste time on something as unimportant as the safety of your children, or the stability of your society), see “Guns in the Medical Literature - a Failure of Peer Review” from the March 1994 Journal of the Medical Association of Georgia, online at http://www.dipr.org/content/papers/guns_in_the_medical_literature.html.   Many criminologists express grave concerns that impediments to gun ownership endanger both society and the individual, and impressive amounts of research along those lines fills the criminologic journal literature, largely ignored by our sound-byte mainstream media.  Examples of such an assembly can be found without making an all-day trip to the nearest law library, by searching sites like the following:

A typical example of the high-quality research, packed with thorough and irrefutable references for data and background, is:

http://www.constitution.org/2ll/2ndschol/63perilo.htm

Now, say you’ve made your high school Civics teacher proud, and read all that stuff - time to go back to the grill and open another six-pack?  Maybe sight-in your deer rifle?  Not hardly, Bubba - You need to make life so miserable for any politician who dares to even bring up the topic of ‘gun control’ that they wouldn’t dare enact another Brady law.  In fact, instead of some ‘improvement’, or ‘closing loopholes’ in it - you want them to actively seek its repeal.  You need to write letters to them, call them, write letters about them (i.e. to newspapers), and generally keep their feet to the fire.  ‘Read them from the book’ as they say, but don’t go Neanderthal and threaten them physical harm; that just makes matters worse.  Threaten them with loss of political office, and loss of prestige - not with bullets.  Our job isn’t to play Rambo, but to keep our society stable and safe, and unfortunately, there is less excitement and glory in writing letters and going to legislative sessions, and so forth, than ‘busting heads’, but you have to do it if you want to live in a free, safe, and stable society.  (Do you - or is it all just for show?)  Don’t just spend your efforts on politicians, but bring up the topic everywhere you can, with everyone you meet; it’s a hell of alot more important than last week’s game, or the weather, and every individual you inspire to turn up the heat on politicians who fail to honor their social contract and oath of office nets you a few more minutes next month that you can goof off.  Don’t settle for just reducing the level of enthusiasm with which soccer moms support gun control, or making your physician more skeptical of the AMA’s gun control stance - make them realize that if they aren’t actively opposing gun control on a daily basis, then they are shirking their duties as parents, physicians, and citizens.  Make them realize that their inaction in opposing counterproductive gun control laws, no matter how ‘reasonable’ they seem on the surface, is endangering you as an individual, your children, and our society, and that they’d better get with the program.  No matter how well-intended and ‘nice’ people are who support gun control, or just passively accept it, they are endangering the rest of us, and we cannot tolerate it, period. 

The Brady law is just one example of that danger.  Learn from it. 

Andrew Johnstone, RPh/MD


1) New York registered guns then confiscated them.  D.C. registered guns them banned them for collection.  And now California is calling for citizens to turn in their militia rifles - after having registered them.

2) Bill Clinton, Sarah Brady and Donna Dees-Thomases each released numbers of the alleged refusals to felons under the background check system which varied by as much as 200,000. Not only do they lie, these collaborators against lawful firearms ownership cannot even get their stories straight.

 

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