Hindsight from The New Gun Week September 1, 1998
Brady Law Bait and Switch
by Joseph P. Tartaro
Executive EditorSometimes, it seems Americans should complain to the Federal Trade Commission or the state attorneys general about the deceptive promotional practices of some politicians. On second thought, the local Better Business Bureau might produce faster and more satisfying results.
Take the example of the Brady Law that was enacted five years ago. Some people in Washington have been peddling it with all of the guile of a disreputable used car or appliance salesperson. It seems a clear case of bait and switch. Advocates of handgun waiting periods agreed to anything to win enough votes for approval in Congress and from the American people. Now they want to change the contract they made then, and even increase the cost by charging for the background checks of prospective gun buyers.
Anti-gun activists first designed waiting periods well over 30 years ago. Back in the 1960s and early '70s, they even had much of the National Rifle Association agreeing with them. But their product didn't sell. So they wrapped their old ideas in a new package after former White House press secretary James Brady was permanently injured during the 1981 assassination attempt on President Reagan, calling it "the Brady Bill."
This new, "improved" seven-day waiting period idea sat on Congressional shelves for another seven years, until its Congressional and White House sponsors managed to bundle it with another, alternative concept that had won bi-partisan approval in Virginia: Instant Checks. In Virginia, both Handgun Control Inc. (HCI) and the NRA backed an "instant check" state law. The bundling of the two approaches in Congress as a two-for-one deal, helped to get it passed in late 1993.
Make no mistake, the "deal" was essential to the sale.
Agreement in Principle
For a long time, people on both sides of the gun debate have agreed that it was good public policy to prevent certain classes of people from buying guns, people who were listed as "prohibited persons" in the Gun Control Act of 1968 (GCA '68). The difference between the pro-gun and the anti-gun positions involved how best to deny gun sales to the 7% of felons who actually shop at federally-licensed gun dealers, with a minimum of intrusion into the privacy of law-abiding gun buyers. The anti-gunners really didn't seem to care whether they intruded on people's privacy; nor did they see any inconvenience in people having to wait to acquire firearms. In fact, HCI has endorsed the 15-day-waiting period in California. Pro-gunners, however, see any delay as a right denied.
The anti-gunners wanted their old mainstay-a waiting period, and they didn't really care how long it was, although the longer the better. They claimed waiting periods are essential to conduct complete background checks on all prospective handgun buyers.
The pro-gunners wanted a computerized "instant check" system, claiming it would make checking the backgrounds of not just handgun buyers but all gun buyers, including shotguns and rifles, as quick, foolproof and non-intrusive as a typical credit card check and authorization in any store.
What passed in 1993 was a compromise, combining both approaches to satisfy everyone and win approval, and providing for a sunset of the waiting period. The Brady Act wasn't really one piece of legislation, but two. You can call them Brady Part One and Brady Part Two (not to be confused with Brady I and Brady II).
When "the deal" was closed, Congress and the public bought a package that included the five-business-day waiting period for handgun buyers which would sunset in five years and be replaced with the federal computerized instant check for all gun buyers. The intervening years would give the federal government and the states time to use the $200 million provided by the same measure to build a comprehensive, computerized criminal record data base-something police desperately needed not just for screening gun buyers, but to do a better job generally of apprehending and detaining criminals of all kinds. (Before passage of the Brady Act, there were many examples of suspects detained and released in one jurisdiction who were wanted for serious crimes in other jurisdictions, but the police in the one instance didn't have access to all the records. Actually, while Brady was being debated, it became clear that more state and local criminal record systems were in horrible shape, and even the FBI records were likely to be wrong about 50% of the time.)No Registration
One "fine print" condition of the deal on Brady was that there would be "no charge" to the prospective buyer for the background checks. Another provision prohibited the government from using the background checks to create a national gun registration file-a prohibition that also was included in the language of GCA '68.
"The deal" was closed and Brady Act Part One took effect, but with little reporting on what Part Two contained. Five years later, many in the media-and consequently the public-seemed surprised to discover that Part Two, "instant check," mandated background checks for rifle and shotgun purchases as well as handguns. Why anyone is surprised by what seems logical, I don't know. After all, criminals can make, illegally, concealable firearms out of shotguns and rifles with a hacksaw.
But now the promoters of the waiting period don't want to give up the waiting period-actually they never did. They have been promoting the success of the Brady "waiting period" for the past five years with regular "counts" of how many felons have been deterred from acquiring guns at retail. That these counts are spurious became clear recently when the Indianapolis Star-News showed how the Brady counts overstated the case substantially, at least in Indiana. Other reports showed that the numbers had been fudged in other ways. In the meanwhile, pro-gunners who wanted to see the waiting period sunset, kept calling attention to the scarcity of prosecutions for Brady Act violations.
Meanwhile, the FBI, which will operate the National Instant Check System (NICS) for the Treasury Department, proposed that it would charge $13 to $16 for each background check. The FBI also wants to keep records of each background check for at least 18 months and seeks "voluntary" disclosure of the buyer's Social Security number. The FBI rulemaking also claimed that while the average "instant check" would take just minutes, it some cases it could take up to 72 hours. Voluntary disclosure of the Social Security number would eliminate the possibility of errors and mix-ups and assure a faster response from NICS.
Congressional Reaction
Most of Congress is not too happy with the way the original Brady deal has been twisted by the Clinton Treasury and Justice Departments. Rep. Ron Paul (R-TX) has filed a bill to repeal Brady altogether. Rep. Bob Barr (R-GA) has a bill which prevents the charging of fees for background checks. And Sen. Bob Smith (R-NH) sponsored an amendment to an appropriations bill that the Senate adopted in July. The Smith amendment prevents the FBI from charging fees, requires them to destroy records of clear background checks immediately, and allows people to sue if the FBI violates those provisions.
The House of Representatives is likely to consider these changes between Labor Day and Oct. 9 when they adjourn for the year. But how things will play out in Congress, or in the media, remains to be seen.
As the date for transition from Brady Part One to Brady Part Two draws closer, the original salesmen for the anti-gun package-President Clinton, Rep. Charles Schumer (D-NY) and Sarah Brady of Handgun Control-want to renegotiate the original deal.
And like a typical sales shill who knows the customer won't stand still for both the five-day wait and the instant check, Schumer has sidled up with a bogus new "deal" in the form of another bill that would keep the waiting period in place-but only for three-days.
In an Aug. 6 Rose Garden press conference (see story on Page 5 of this issue), President Clinton backed the Schumer scheme and threatening to shut down the government by vetoing any spending bill that prohibits the FBI from charging fees for the background checks and keeping the records.
I'm not sure whether Congress will buy this post-sale gambit, but I plan to let the Better Business Bureau know that I don't think bait and switch is good business-or good politics.
The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.netAlso, check out the New Gun Week at http://www.GunWeek.com