Newsgroups: talk.politics.guns From: lvc@cbnews.cb.att.com (Larry Cipriani) Subject: Re: Brady Bill Date: Fri, 10 Dec 1993 15:40:43 GMT I've sent this to Jeffery and am posting it for anyone else who may be interested. ---------------------------------------------------------------------- INDEPENDENCE ISSUE PAPER No. 4- 91 Independence Institute, 14142 Denver West Parkway #101 Golden, CO 80401 (303) 279-6536 ------------------------------------------------------------------------ Note: The Independence Issue Papers are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action. ------------------------------------------------------------------------ March 25, 1991 WHY GUN WAITING PERIODS THREATEN PUBLIC SAFETY By David B. Kopel Executive Summary 'Honey, I forgot to duck.' Remember the day Ronald Reagan was shot? The President, grinning up from his hospital bed on March 30, 1981, was able to joke about a gunman's attempt on his life. But his press secretary, James Brady, fared much worse; shots from the same pistol left him permanently disabled. The nation was shocked, the gun control movement galvanized. This month's observance of ten years since the day Reagan and Brady were shot by John Hinckley is an occasion for renewed consideration of what can realistically be done to keep firearms from falling into the wrong hands and being used for the wrong purposes. The leading proposal before Congress and state legislatures is to require that any retail purchase of a handgun be preceded by a waiting period, during which a background check on the purchaser's criminal and mental record could be conducted. A waiting period has strong initial appeal. The tradeoffs appear positive: relatively small costs in exchange for significant gains in public safety. But an exhaustive study of the issue by attorney and gun control expert David Kopel concludes that this perception is misleading. When all the evidence is dispassionately weighed, all the consequences traced, Kopel finds that there is a very real possibility that gun waiting periods *threaten* public safety. The reason: law enforcement resources diverted and law-abiding citizens disarmed. Proponents are doubtless right in saying that a federally imposed waiting period would save at least one life somewhere, the author concedes. But he says that is beside the point if America as a whole would be marginally less secure against crime, violence, and fear as a result of the new restriction. Kopel's research and analysis show why the waiting period's vast cost is likely to more than cancel its apparent benefits. Advocates of the waiting period use the Hinckley case as a symbol, opinion polls to suggest momentum, criminological studies and state experience for empirical validation. None of the four stands up to scrutiny, however. The proposed law would not in fact have halted purchase of the gun used to shoot Reagan and Brady. Polling results turn out to be flawed and mixed. No criminologist has shown that waiting periods work. California and other states with waiting periods show only a minuscule arrest rate and widespread unfairness to the law-abiding. There is shock value in the scenario of guns "too easily bought" by drug dealers, psychotic killers, persons bent on killing a spouse or themselves, or purchasers intending to use them in hot blood. Yet hard data and common sense show little benefit from a waiting period even in such lurid situations. Against the meager-to-nil impact of waiting periods on crime control must be set their clearly negative impact on the average American's ability to count on police protection or protect himself. Specifically: Is it desirable to have law enforcement agencies bogged in a vast new paperwork morass and harried with lawsuits over insufficient background checks? To have a threatened person face dangerous, sometimes indefinite, delays in obtaining a self-defense gun? To set in place a mechanism for *de facto* universal gun registration and a political stepping stone to outright gun prohibition? To legislate in disregard of the "no prior restraints" and "least restrictive means" principles that should safeguard not only the Second Amendment, but the whole Bill of Rights? All these are foreseeable effects of the proposal. Alternatives to the waiting period proposal might include a Virginia-style instant phone check on the purchaser's background, creation of a firearms owner ID card, or adding one's fingerprint to a computerized driver's license (the so-called 'smart card'). These measures are preferable in many respects, since they are at least as effective as waiting periods at disarming criminals, and are less likely to be used to disarm citizens. Yet these alternatives, like the waiting period, are subject to evasion by criminals and abuse by government administrators, and create serious risks of privacy violations. Ultimately, the Kopel study concludes, practicality and constitutionality are best served by strategies that aim to cut gun crime not by targeting the legitimate retail firearms trade, but instead by aiming at the black market where most criminals get most of their guns. Copyright 1991 -- Independence Institute INDEPENDENCE INSTITUTE is a nonprofit, nonpartisan Colorado think tank. It is governed by a statewide board of trustees and holds a 501(c)(3) tax exemption from the IRS. Its public policy focuses on economic growth, education reform, local government effectiveness, equal opportunity, and the environment. PERMISSION TO REPRINT this paper in whole or in part is hereby granted, provided full credit is given to the Independence Institute. DAVID B. KOPEL is an environmental lawyer and also an associate policy analyst with the CATO Institute, a Washington, D.C. think-tank. He belongs to the Independence Institute's group of newspaper and radio commentators, and also speaks frequently on behalf of the American Civil Liberties Union of Colorado speakers bureau. EDITOR of the Independence Issue Paper Series is John K. Andrews, Jr., President of the Institute. INDEPENDENCE ISSUE PAPER No. 4-91 Independence Institute *, 14142 Denver West Parkway #101 Golden, CO 80401 (303) 279-6536 ------------------------------------------------------------ Note: The Independence Issue Papers are published for educational purposes only, and the authors speak for themselves. Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action. ------------------------------------------------------------- March 25, 1991 WHY GUN WAITING PERIODS THREATEN PUBLIC SAFETY By David B. Kopel CONTENTS I. JOHN HINCKLEY ....................................................... 2 Handgun Control, Inc. claims that a waiting period and background check "certainly" would have stopped John Hinckley, who attempted to assassinate President Reagan. Yet Hinckley had no felony record, and no public record of mental disability. HCI asserts that Hinckley was not a resident of Texas, the state where he bought the gun, and that a background check would have revealed that he was illegally buying a handgun in state where he was not a resident. The evidence indicates that Hinckley was a legal Texas resident. In any case, HCI's proposed background check involves only criminal and mental records, and not an address check. Accordingly, it is very unlikely that the background check would have affected Hinckley. II. PUBLIC AND POLICE OPINION .......................................... 7 A. POLICE ......................................................... 7 B. PUBLIC OPINION POLLS ............................................ 10 Polling data show that large majorities of American citizens, as well as of big-city police chiefs, favor a waiting period. Polls of command-rank officers find them skeptical about waiting periods. For all the polling, flaws in the wording of the questions probably exaggerates the extent of public support and command-rank police hostility. In any case, polls are poor guides to public policy, particularly when Constitutional rights are involved. The reflexive hostility of some police officials towards the Second, Fourth, and Fifth Amendments to the Constitution should not be entitled to much weight in the deliberative process. III. CRIMINOLOGICAL STUDIES ........................................... 12 Criminologists of every persuasion have examined waiting periods, and not one has found statistically significant evidence that waiting periods are effective. Studies of felony prisoners show that virtually none of them obtain crime guns by personal over the counter purchase, the only kind of criminal gun acquisition that a background check could stop. IV. THE WAITING PERIOD (IN)ACTION ...................................... 15 Although no evidence ties waiting periods to reduced crime rates, the experience of states with waiting periods shows about only a small percentage of retail gun buyers are denied because of criminal records. Of these, about 1% are deemed worth arresting. The number of people who are illegally or arbitrarily denied their right to bear arms by abuse of a background check system is about as large as, and sometimes far larger than, the number of criminals denied. V. PARTICULAR TARGETS OF WAITING PERIODS ............................ 19 A. DRUG DEALERS .................................................... 19 B. HOMICIDAL MANIACS .............................................. 20 C. SUICIDES ...................................................... 21 D. DOMESTIC HOMICIDES ............................................. 21 E. PEOPLE IN NEED OF "COOLING-OFF ............................... 21 F. SUMMARY: WHAT BENEFITS CAN BE EXPECTED FROM A WAITING PERIOD? .............................................. 22 The suggestion that people who transact in illegal drugs could be denied firearms under any gun control system is patently silly. Psychotic mass murderers have repeatedly bought guns in states with waiting periods. There is no evidence that waiting periods prevent suicides or domestic homicides. Hardly any crimes could even theoretically be prevented by a "cooling off" period. VI. PROBLEMS CAUSED BY A WAITING PERIOD ............................. 23 A. THE DRAIN ON POLICE RESOURCES ................................. 23 B. LAWSUITS AGAINST THE POLICE .................................. 24 C. COVERT REGISTRATION ............................................ 25 D. PRIVACY OF MEDICAL RECORDS .................................. 25 E. DENIAL OF ABILITY TO OBTAIN A GUN ................................ 26 F. FINANCIAL HARDSHIPS .............................................. 29 G. THE DATA QUALITY PROBLEM ..................................... 30 H. A STEP TOWARDS PROHIBITION ....................................... 31 Substantial police resources are inefficiently diverted from street patrol to desk work. A background check consumes about $40,000 in police salary for every arrest it produces. Resources may be further consumed by lawsuits regarding allegedly insufficient background checks. Waiting periods prevent a person from acquiring a gun for several days, and if implemented improperly (as they often are) waiting periods may result in total denial of a person's legitimate right to bear arms. The diversion of police resources, coupled with the interference with the acquisition of self-defense guns, may mean that a waiting period would cause a net loss of lives. VII. CONSTITUTIONAL ISSUES ............................................ 32 A. PRIOR RESTRAINTS ON CONSTITUTIONAL RIGHTS .......................... 33 B. BALANCING TESTS ................................................... 34 C. FEDERALISM ......................................................... 34 Waiting periods are a prior restraint on the exercise of Constitutional rights. The very point of basic rights like free speech, or free exercise of religion, or the right to keep and bear arms, is that a citizen does not need to ask for government approval to exercise those rights. Waiting periods, because of their inefficacy and potential for abuse, are not the least restrictive means of attacking gun crime without interfering with the right to bear arms. A federal waiting period violates the 10th Amendment by forcing state officials to perform background checks. VIII. ALTERNATIVES .................................................... 36 A. "INSTANT" CHECKS ................................................. 37 B. FIREARMS OWNERS IDENTIFICATION CARDS ............................. 39 C. SMART CARDS ....................................................... 40 D. ANTI-CRIME ALTERNATIVES THAT DO NOT INFRINGE CIVIL LIBERTIES ...................................................... 41 There a number of alternatives that -- while clearly superior to the waiting period -- do not represent good policy choices in themselves. The Instant Telephone Check and the 7 day waiting period/background check both use the same (often inaccurate) database; the Instant Check has the obvious advantage of being speedy, and not interfering with expeditious acquisition of a self-defense gun. Firearms Owners Identification Cards take a long time to obtain initially, and serve as a basis for gun-owner registration and overly broad fingerprinting of the general population. Turning drivers licenses into 'smart cards' also requires citizens to submit fingerprints to the government in order to exercise their Constitutional rights. The most effective way to deal with criminals possessing guns is to better enforce laws regarding criminal gun acquisition and to target the black market trade that supplies the gigantic majority of criminal guns. Researchers from the National Institute of Justice have suggested several possibilities to directly attack the black market; none of the NU proposals interferes with Constitutional rights. IX. CONCLUSION ........................................................ INTRODUCTION Waiting periods: Many states already have them; most national police organizations, most people, and most gun owners are for them. In the 1970s, even the National Rifle Association supported the idea of a carefully-crafted state waiting period. So who could be opposed? This paper suggests that sometimes a majority of NRA members, a majority of gun owners, and even a majority of all the people may not always be right. Waiting periods come in two basic shapes. The 'limited' waiting period is a relatively short wait for retail hand gun purchases. Proposals for such a law have attracted many cosponsors in Congress, and lost by margins that (while not narrow) are far from the landslides usually thought to be the National Rifle Association's norm in crushing gun control. The wide support for a limited handgun waiting period in Congress reflects the growing persuasiveness of Handgun Control, Inc., the anti-gun lobby. The more comprehensive waiting period applies to all guns, including long guns, and applies to all transfers, including gifts between family members. The wait itself is much longer. The comprehensive wait is also supported by Handgun Control, Inc. (HCI). HCI has persuaded legislatures in California, Connecticut, and Rhode Island to adopt a comprehensive wait, supplanting the existing limited handgun wait in those states. Although HCI backs the new comprehensive waits in California and other states, the ultimate goal is an even stronger comprehensive wait. In 1990, Colorado State Senator Pat Pascoe introduced a waiting period bill which HCI Chair Sarah Brady called "everything on my wish list."[1] The bill provided: * As in California, a comprehensive background check and waiting period on both handguns and long guns, for all transactions, including intrafamily gifts. Each gun purchase would require a background check of up to two weeks, _followed_ by a waiting period of one week. An applicant would then be given a permit to purchase, good for 60 days. * The applicant would pay a fee of up to $20 for each purchase permit. * There would be no exception for a person who needed a firearm for self-defense. In fact, even if the police strongly wanted the citizen to acquire a gun because of imminent deadly threats, a one week delay would still be mandatory.[2] Presently the only state with a law that is more severe than Colorado's very strict proposal is New Jersey. The waiting period concept (both limited and comprehensive) reflects the belief that there should be a police check before a person buys a gun. In the form of an instant telephone check, the National Rifle Association is essentially willing to accept the police assent principle, providing the system is structured properly. The instant check is currently in effect in Virginia, with few apparent problems (and some successes) so far. Handgun Control, Inc. accepted the instant check in Virginia, and opposed it in Ohio. Since the instant telephone cheek is sometimes offered as an alternative to the waiting period, the telephone check is discussed in this paper. Other regulatory alternatives to a waiting period are also considered. The paper discusses the following issues: Would a waiting period have stopped John Hinckley? What do the polls of police and of citizens say about waiting periods, and what implications should be drawn from the results? What have the criminologists learned about waiting periods? What good have they done in states where they already exist? If a waiting period could save at least one life (and it certainly would) isn't it a good idea? What are the disadvantages and risks of waiting periods and other police permission systems like the instant telephone check? Are there meritorious alternatives to waiting periods? The paper also offers suggestions about how a waiting period should be structured, if a legislature elects to enact one. The views of Handgun Control, Inc. on waiting periods and gun control are discussed throughout, because, as HCI puts it, the waiting period is the group's 'flagship' bill and HCI is by far the most important gun control lobby. 1. JOHN HINCKLEY Synopsis: Handgun Control, Inc. claims that a waiting period and background check 'certainly' would have stopped John Hinckley, who attempted to assassinate President Reagan. Yet Hinckley had no felony record, and no public record of mental disability. HCI asserts that Hinckley was not a resident of Texas, the state where he bought the gun, and that a background check would have revealed that he was illegally buying a handgun in state where he was not a resident. The evidence indicates that Hinckley was a legal Texas resident. In any case, HCI's proposed background check involves only criminal and mental records, and not an address check. Accordingly, it is very unlikely that the background check would have affected Hinckley. The national waiting period is commonly known as 'the Brady Bill.' Its supporters named it after Sarah Brady, the Chair of HCI. To many people, the fact that a waiting period would have stopped John Hinckley from shooting President Reagan and crippling his Press Secretary Jim Brady is reason enough to enact such a law. Both the perpetrator and the main victim of Hinckley's attack agree that a waiting period would have prevented the crime. Currently under indefinite commitment to St. Elizabeth's mental hospital in Washington, John Hinckley has petitioned to be allowed access to reporters so that he can speak out for handgun control and for a waiting period. Hinckley explains that he was in "a valium depression" when he acted, and a waiting period might have given his better self time to reassert control. But in fact, Hinckley bought the assassination gun in October 1980, months before the assassination attempt. A wait would obviously have had no impact. Legislators usually pay little attention to the policy suggestions of the criminally insane. The more persuasive spokesperson for the waiting period is Sarah Brady, wife of the man crippled by Hinckley. "Had a waiting period been in effect seven years ago, John Hinckley would not have not have had the opportunity to buy the gun he used" says Mrs. Brady.[3] Mrs. Brady bemoans the fact that Hinckley was able to buy the gun with no waiting period to see if he had a criminal or mental illness record.[4] But Hinckley had no public record of mental illness; hence a mental records check would have done no good. [5] As for a criminal records check, a police background check was run on Hinckley a few days before he bought the gun, and nothing turned up. Hinckley was caught trying to smuggle a gun aboard a plane on October 9, 1980, in Nashville. His name was run through the National Crime Information Center, which reported, correctly, that he had no felony convictions in any jurisdiction. He was promptly released after paying a fine of $62.50 and pleading guilty to a misdemeanor.[6] Although Mrs. Brady complains about the lack of a criminal/mental check on Hinckley, she does not explicitly affirm that such checks would have affected him. Instead, Mrs. Brady's detailed explanation involves Hinckley's residence status. On October 13, 1980, John Hinckley walked into Rocky's Pawn Shop, in Dallas, Texas, and walked out shortly thereafter with two .22 caliber RG revolvers. As with the retail purchase of any gun, the gun dealer was required to complete a federal form which listed Hinckley's address. Because Hinckley was buying two guns in the same five-day period (in fact, at the same moment), the dealer also filled out another federal form. That federal form was sent to the local office of the Bureau of Alcohol, Tobacco and Firearms. By federal law, the dealer was required to verify that Hinckley was a resident of Texas, the state in which he was buying the handgun. When asked for identification, Hinckley offered his Texas driver's license.[7] Mrs. Brady details how a background check might have helped: "He lied about his address and used an old Texas driver's license to purchase that revolver. He was not a Texas resident. A police check would have stopped him from buying a handgun in Texas."[8] As she puts it, "He lied on his purchase application. Given time, the police could have caught the lie and put him in jail."[9] Accordingly, Mrs. Brady states: "A simple check would have stopped him .. John Hinckley might well have been in jail instead of on his way to Washington."[10] Indeed, her assurance that the waiting period would have stopped Hinckley is often unequivocal: "There's no doubt that he would not have been able to purchase that gun."[11] Or, "John Hinckley would never have walked out of that Texas pawnshop with the handgun that came within an inch of killing Ronald Reagan."[12] But the facts are hardly as clear-cut as Mrs. Brady asserts. Hinckley moved around a great deal, from one Texas address to another. The Lubbock address he listed on his federal gun form (the address for a rooming house) was different from both his driver's license address and his address in the then-current Lubbock phone book.[13] Of course moving frequently is not a federal crime. Because the only purpose of the driver's license is to prove residence in the state, there is no federal requirement that a handgun purchaser reside at the street address shown on his license, as long as the address is in the same state. Even if Hinckley had deliberately made a false statement about his address, the act would not have been illegal; a false statement on the federal form is illegal only if it relates to the purchaser's eligibility.[14] While a person's state of residence does relate to eligibility, address within that state does not. In other words, Hinckley's purchase would have been illegal under federal law only if he was not a resident of Texas. Merely offering a Texas driver's license with a street address that was no longer current and was different from the address put on the federal form was not in itself illegal. Was Hinckley a Texas resident? Contrary to what Handgun Control implies, it has never been determined that Hinckley was not. During, the previous summer, he had attended both summer sessions at Texas Tech in Lubbock. According to federal rules, a university student is considered a resident of the area where he attends school, and may purchase firearms there.[15] Notably, when Hinckley was arrested in Nashville (a few days before he bought the handguns), he identified himself as a Texas resident. Significantly, Hinckley, after the assassination attempt, was the subject of an intensive federal investigation. The federal government used every resource possible to ensure Hinckley's conviction. Notably, Hinckley was not charged with illegally purchasing the handguns in Texas. Had the prosecutors believed that Hinckley was guilty of an illegal gun purchase, the charges would likely have been brought. After all, Hinckley would then have had to convince a Texas jury that he was insane not just on the day of the assassination, but six months beforehand. If the full resources of the Department of Justice did not find enough evidence even to charge Hinckley with an illegal gun purchase, it is not realistic to claim that a 7-day background check would have found the exact same transaction illegal. Moreover, law enforcement authorities already had an opportunity to run a check on Hinckley. Because Hinckley bought two handguns on the same day, his purchase was immediately reported to the Bureau of Alcohol, Tobacco and Firearms, as required by federal law. BATF reportedly runs name checks as standard procedure, but does not run detailed background checks on multiple handgun purchasers (such as Hinckley) even though it has the legal authority to do so. Perhaps BATF has concluded that the expense of running the checks exceeds the likely benefits. Let us hypothesize the fact that Mrs. Brady assumes (but for which the Justice Department apparently had no evidence): Hinckley was no longer a Texas resident. Assume that the address listed on the federal form was false. Would the assassination have been prevented by a background check? Almost certainly not. How would the police have found Hinckley's "lie"? If they had looked in the phone book, they would have seen Hinckley listed as a Lubbock resident. To ascertain that Hinckley did not reside in Texas, the police would have had to visit his purported residence at least once. Since many police departments do not have the time to visit the scene of residential burglaries, it is not realistic to assume that they would have bothered to verify the address listed on Hinckley's residence. Most importantly, the police never would have found the "lie" about Hinckley's address, because they would not be checking addresses. Under the Brady Bill (and the similar state proposals), the police would not be verifying anyone's address. The Brady Bill does not discuss any kind of address/residence check. As one of Handgun Control's key Congressional supporters explicitly insisted during the debate on the 1988 proposal, "The 'investigation' is limited to the review of police and court records.-"[16] Thus, at the same time that Handgun Control's Congressional forces were reassuring Congress that the "Brady bill" involved solely a criminal/mental records check, and not an address or other check, Mrs. Brady was imploring the public to support her bill because an address check would have stopped John Hinckley. Assume that, despite the evidence to the contrary, Hinckley actually was not a Texas resident, and further assume that the Texas police would have found it worthwhile to do what the federal BATF did not, and run a background check; and further assume that although the background check was intended to be run according, to HCI's description, and to apply only to criminal/mental records, the Texas police would have expanded the background check and tried to verify Hinckley's address; and additionally assume that the police would have committed the manpower necessary to verify that Hinckley was not a Texas resident. If all these assumptions are valid (and if any one of the assumptions were incorrect, Hinckley clearly would not have been stopped), would Hinckley have been stopped? Perhaps. Assuming the police found that Hinckley was trying to make a purchase without the proper residency status, would they have arrested him for that offense? Would he have been imprisoned for more than a day, if that long? Only a few days before Hinckley bought the Texas guns, he had been caught attempting to smuggle a gun onto a plane, and had been released from custody almost immediately, having pleaded guilty to a misdemeanor. Unless Hinckley were imprisoned for a term of years for the out of state gun purchase, he would have speedily been back on the streets. He could have taken any of the other handguns which he owned, and gone on to Washington for the assassination with one of them. (Among the guns he could have used was the .38 special he bought in Colorado, in full compliance with the law. Had he used that gun, rather than the .22 from Texas, President Reagan and Mr. Brady would likely have been killed.)[17] Handgun Control, Inc's version of the assassination is false in other details as well. For example, one Handgun Control, Inc. advertisement depicts Mrs. Brady saying "A $29 dollar handgun shattered my family's life."[18] Actually, Hinckley's gun cost $47.[19] The difference is of no real importance, except that it shows the Handgun Control copywriters to be unwilling to offer a truthful presentation of even the most basic facts of the case.[20] Handgun Control, Inc. and Sarah Brady have garnered substantial press support by claiming that the "Brady Bill" would have stopped John Hinckley.[21] Indeed, the strength of the push for the waiting period is very largely based on Sarah Brady and her assassination story. Sarah Brady heads Handgun Control, Inc., and HCI's fund-raising letters are mostly personal testimonies by Mrs. Brady and her husband. The image of a man crippled by an assassin, but who could have been saved by "The Brady Bill" is compelling to press and politicians alike. To say the least, the evidence suggesting that a waiting period would have stopped John Hinckley is underwhelming. Yet Mrs. Brady insists: "[T]his shooting could have been prevented if legislation such as that proposed here had been in force in 1981."[22] The unequivocal assertion is, in light of the facts, quite close to a fraud. Only a very unlikely set of events would have enabled police armed with a "Brady Bill" to stop John Hinckley. It is perfectly proper for victims of gun crimes to campaign for gun control. They should do so truthfully. II. PUBLIC AND POLICE OPINION Synopsis: Polling data show that large majorities of American citizens, as well as of big-city police chiefs, favor a waiting period. Polls of command-rank officers find them skeptical about waiting periods. For all the polling, flaws in the wording of the questions probably exaggerates the extent of public support and command-rank police hostility. In any case, polls are poor guides to public policy, particularly when Constitutional rights are involved. The reflexive hostility of some police officials towards the Second, Fourth, and Fifth Amendments to the Constitution should not be entitled to much weight in the deliberative process. A. POLICE Handgun Control, Inc. and its Congressional allies claim that a waiting period is supported by "every major police organization" in the country.[23] The assertion is based on a selective definition of "major police organization." The American Federal of Police, with 103,000 members, is the second-largest rank and file police organization in the United States, and is headed by Saginaw County Deputy Dennis Ray Martin, who has won awards from President Bush for anti-drug work. Martin and the American Federation of Police oppose a waiting period. The National Association of Chiefs of Police, with 10,000 members, is the second-largest command rank organization in the United States. It opposes a waiting period. Apparently neither of these organizations, being merely the second-largest in their field qualifies as a "major police organization."[24] Many important police organizations do support a waiting period.[25] Yet very few of these police organizations have actually bothered to ask the police what they think. One group that did ask was the Police Executive Research Forum (PERF), a Washington think tank comprising about 500 present and former big-city police executives. PERF's membership poll found 92% in favor of a national seven-day waiting period for handguns, and 6% opposed.[26] Thus, among big-city police chiefs, support for a waiting period is nearly unanimous. The National Association of Chiefs of Police (NACOP) conducts annual national surveys of the opinion of command rank police officers. The survey is sent to all known commanders, not only NACOP members. In the 1989, the waiting period questions and responses were: "Do you believe that a waiting period to purchase a handgun or any type of firearm will have any effect on criminals getting firearms?" Yes -- 29.1%; No -- 70.9%. "The 'Brady Bill' offers a national 7 day waiting period that gives local police or sheriffs an option to check for previous criminal activities, possible drug or alcohol dependency and mental instability. Do you think you would be able to conduct such an investigation in a 7 day period?" Yes -- 44.7%; No -- 55.3%. "Some states have longer waiting periods and some less. Would you agree that it should be a state mandated law rather than a federal regulation as regards to firearms purchase requirements?" Should be State -- 62.7%; Should be Federal -- 37.3%.[27] In 1990, the questions and answers were: "Do you believe that a waiting period to purchase a handgun or any type of firearm will have any effect on criminals getting firearms?" Yes -- 23.9%; No -- 76.1%. "Do you believe that in the national 7 day waiting period proposed before Congress (Brady Bill) that you can fully determine that the applicant has no criminal record; is not mentally unsound; or is an abuser of drugs or alcohol?" Yes -- 14.4%; No -- 85.6%. "No funds to carry out this 7 day 'investigation' are provided in this Bill for police. Do you believe that your department has the manpower to conduct this investigation without taking patrol officers off the street?" Yes -- 10.6%; No -- 89.4%. "There is no provision to protect you from a lawsuit in the event that you approve (after 7 days) an applicant who is a criminal, may be mentally unsound, or a drug or alcohol abuser. Do you believe that the 'Brady Bill' may leave you open to a future civil lawsuit?" No -- 10.2%; Yes -- 89.8%.[28] While the NACOP polls are interesting evidence regarding police opinion, they must be interpreted cautiously. Although every fact stated in the NACOP questions is true, the tone of some of the questions was slanted against the waiting period. A graphic example of a pollster's ability to elicit different responses by slight changes in the question is shown in the contrasting 1989 and 1990 answers on whether 7 days was enough time to complete the background check. In 1989, 55% said that 7 days would not be long enough. In 1990, the question was revised to ask if the background check could be fully completed in 7 days, and the time question was followed by a question which noted that no extra funds for the check would be available. For the 1990 survey, the number of respondents who said that 7 days was not long enough shot up to 86%. In both the 1989 and 1990 surveys, the questions about waiting periods affecting criminals were phrased in a neutral way. But the 1990 questions regarding police civil liability clearly did, like the Gallup poll on waiting period, elicit a particular response. Notably, the neutral questions (about waiting, periods affecting criminals) drew responses of about 70-76% negative on the waiting period, while the most biased question (about civil liability), drew about a 90% negative. Accordingly, NACOP's most extreme figures, of 90% command rank hostility to the waiting period, are likely too high, for the same reason that Gallup's 91% pro-wait figures for the general public is too high. (The Gallup poll is discussed below.) The NACOP survey does seem to indicate that a majority of command rank officers (perhaps something less than 70%) are skeptical about waiting periods. The most definite conclusion that can be drawn from the NACOP and PERF surveys is that Handgun Control's claim to have the near-unanimous support of the police is true only for major urban chiefs.[29] A large number of working officers seem to agree with Willis Booth, a former police chief, and Executive Director of the Florida Police Chiefs Association: "I think any working policeman will tell you that the crooks already have guns. If a criminal fills out an application and sends his application... he's the biggest, dumbest crook I've ever seen." Put aside the evidence, regarding police opinion, and hypothesize that every police chief in the United States supported a national waiting period. Should their position determine the law? The opinion of police chiefs is not the arbiter of our Constitutional rights. Some police executives criticize the exclusionary rule; they claim that a strong Fourth Amendment causes crime. Some police executives criticize the *Miranda* decision, and claim that a strong Fifth Amendment causes crime. Many police executives say that a strong Second Amendment causes crime. In every case the executives are wrong.[30] Police chiefs are, after all, not generally renowned for their regard the Constitution. As the NACOP polling indicates, huge majorities of command ranks favor sharp limits on death penalty appeals, draconian drug laws, and widespread drug testing. Likewise, self-proclaimed allies of law enforcement have eroded their credibility by supporting bans on "plastic guns" (which do not exist) or by claiming that a law which lets a Pennsylvania hunter drive to Maine without obtaining a New York gun permit would threaten the lives of police officers.[31] In short, the reflexive hostility of some police officials towards the Second, Fourth, and Fifth Amendments is not entitled to much weight in the deliberative process. Why does the waiting period have nearly unanimous support among big-city police executives? While it is true that some big-city chiefs (such as Ari Zavaras of Denver and Joseph McNamara of San Jose) are ardent enemies of the right to bear arms, not all chiefs are out to destroy gun ownership. One reason for supporting the waiting period is its intuitive appeal; at first glance, it seems like a way to interdict at least some criminals, without interfering with legitimate gun owners. Perhaps another reason that some police chiefs favor the waiting period is that police chiefs, like any other administrators of large government offices, often seek to expand their official power. From the perspective of a police administrator, more power may mean more officers performing administrative tasks and supervising more transactions by the citizenry. The same mentality leads to the creation of paperwork empires in the Pentagon or in the Hubert H. Humphrey building, even if the emphasis on paperwork hinders the agency's performance of its assigned mission. B. PUBLIC OPINION POLLS The Gallup Poll reports: "91% of Americans Favor Brady Amendment."[32] If the polls are for it, who can be against it? One reason to be cautious about polls is that the bias of the pollster can skew the poll. By modifying the wording of a question, "You can come up with any result you want," says Peter Hart, pollster for the Dukakis campaign. The Gallup poll about waiting periods posed the question in a way that assumed the waiting period really would help the police keep guns away from illegitimate persons: "Would you favor or oppose a national law requiring a seven-day waiting period before a handgun could be purchased, in order to determine whether the prospective buyer has been convicted of a felony or is mentally ill."[33] As discussed below, the criminological and real-world evidence on waiting periods shows that they do virtually no good in keeping illegitimate users from getting guns; criminals do not buy guns in gun stores. Most people are for something that works. If the question assumes that a waiting period would work, it is bound to receive nearly unanimous support. But the real question is whether waiting periods work as well as Gallup assumed they do. The most important reason polls should not always prevail is because the Constitution does not depend on polls. Violating the Constitution can be a popular thing. By huge majorities, Americans would favor all of the following: * Banning use of civic auditoriums by atheists, or by people denouncing the government, or by patriotic groups advocating war against a foreign enemy; * Using a federal censorship board to decide which television shows are permissible; * Infiltrating non-violent dissident groups with FBI agents.[34] Every one of those popular ideas would violate the Constitution. The precise reason for putting certain fundamental rights in the Constitution is to protect them from transient majorities. [35] No measure could have been more unconstitutional than herding American citizens of Japanese descent into concentration camps during WWII. Public opinion and the press almost unanimously favored this repression, despite the total lack of evidence that these Americans were disloyal. Even though the public sometimes backs unconstitutional measures, the public still has the common sense to know that the Constitution is more important. One survey asked: "Suppose the President and Congress have to violate a Constitutional principle to pass an important law the people wanted. Would you support them in this action?" * 28% said yes, "because the Constitution shouldn't be allowed to stand in the way of what the people need and want." * 49% said no, "because protecting the Constitution is more important to the national welfare than any law could possibly be."[36] Finally, while the majority of the public does favor a waiting period (although probably by less than the 91% majority found by Gallup's biased question), the public opposes "a law giving police the power to decide who may or may not own firearms" by a 68% to 29% margin.[37] Accordingly, if a waiting period were conducted within the limits implied in the Gallup poll (every legitimate owner got the gun in no more than seven days), the public might well support a waiting period. But if waiting periods turned out to give police the opportunity to interfere with citizens' right to buy firearms, the large majority of the public would oppose a waiting period. As detailed below, waiting periods in practice often lead to the kinds of police abuses which the public overwhelmingly opposes. III. CRIMINOLOGICAL STUDIES Synopsis: Criminologists of every persuasion have examined waiting periods, and not one has found statistically significant evidence that waiting periods are effective. Studies of felony prisoners show that virtually none of them obtain crime guns by personal over the counter purchase, the only kind of criminal gun acquisition that a background check could stop. "Virtually every study ever conducted proves that where there are local or state laws requiring a waiting period and background check, handguns are harder to obtain by those who are prone to misuse them," claims Handgun Control, Inc.[38] The claim is false. Every study of waiting periods has found no evidence that they are effective. There is not a single study published in any academic journal which concludes waiting periods are effective. The results show just the opposite. Professor Matthew DeZee states: "I firmly believe that more restrictive legislation is necessary to reduce the volume of gun crime." Yet his comparative study of state laws, including waiting periods, found "The results indicate that not a single gun control law, and not all the gun control laws added together, had a significant impact...in determining gun violence. It appears, then, that present legislation created to reduce the level of violence in society falls short of its goals ... Gun laws do not appear to affect gun crimes."[39] Professors Joseph P. Magadinno and Marshall H. Medoff, both of California State University, Long Beach, performed two studies of waiting periods at the state level. The first study, using data from 1979 and previous years, compared the 1979 robbery and homicide rates in states that had waiting periods with states that did not. The study also looked at changes in the robbery and homicide rates in states which had recently changed their laws regarding firearms sales. Both aspects of the study found that there was no correlation between waiting periods and lower homicide or robbery rates.[40] The second Magadinno-Medoff analyzed state gun laws and rates of homicide, robbery, and aggravated assault in 1960 and 1970. The results were consistent with the hypothesis that stricter state gun control laws have no impact on crime.[41] When the U.S. Senate Judiciary Committee investigated the issue, the Committee found no evidence that waiting periods affect crime. There was no correlation between a waiting period and lower crime rates.[42] Duke University's Philip Cook, who is generally supportive of gun control, explains why there is no apparent statistical impact: [W]e suspect that most felons and other ineligibles who obtain guns do so not because the state's screening system fails to discover their criminal record, but rather because these people find ways of circumventing the screening system entirely ... Under these circumstances, developing a more intensive and reliable screening process is probably not worth the additional cost...It is known that such screening systems are widely circumvented and, furthermore, that state criminal record files are sufficiently incomplete that a felon who did choose to submit to the required police check before buying a handgun would have a sporting chance of having his application accepted.[43] Assistant Attorney General John Bolton observes, "Those persons with a criminal record who are prohibited from purchasing a handgun are the ones most likely to obtain false identification documents to support a new name."[44] Of course the Magadinno-Medoff, Senate Judiciary, and DeZee studies do not completely destroy the case for a waiting period. It might be that state waiting periods have a small impact on crime, even if that impact is too small to be statistically significant. Moreover, even if state waiting periods were acknowledged as demonstrable failures, it might be that a federal wait would be effective. Under the Carter Administration, the National Institute of Justice offered a grant to the former president of the American Sociological Association and two colleagues to survey the field of research on gun control. Peter Rossi and his coauthors Jim Wright and Kathleen Daly began their work convinced of the need for strict national gun control. Indeed, Wright had already written about the need for more control. After looking at the data, however, the three researchers found no convincing evidence that gun control curbs crime. [45] A few years later, Wright and Rossi conducted another National Institute of Justice study, this one of the gun use patterns of criminals. They interviewed prisoners in ten state systems. The study confirmed that many criminals are indeed frightened of armed citizens. [46] Notably, the second National Institute of Justice study discovered that felons in states with strict laws found obtaining a gun no more difficult than in states with more moderate laws. Almost all felons, regardless of the severity of their state's laws, reported that they would have little or no difficulty obtaining a gun soon after release. Wright and Rossi asked the prisoners where they obtained their last handgun, and 21% replied at a gun store. Hence, HCI argues, a waiting period and background check would affect a significant figure of gun crimes. But Wright and Rossi disagree with HCI's interpretation of their data. They write: One might as a matter of federal policy require that every firearms transaction be reported to the cognizant authorities, and the appropriate criminal records check undertaken; but one quickly senses that this measure would have little or no effect on the criminal users whom we are trying to interdict and a considerable effect on legitimate users .... The ideal gun crime policy is one that impacts directly on the illicit user but leaves the legitimate user pretty much alone. [47] Careful analysis of the Wright-Rossi data shows that far less than 21% of criminal gun users would be affected by a background check. The 21% who obtained their last crime handgun at a gun store included 5% who had obtained the gun by theft, rather than by purchase. Of the 16% who had obtained the gun by purchase, at least some likely did not have disqualifying criminal records at the time of purchase. Further, not all of the guns acquired by criminals are acquired for crime. (Many criminals live in neighborhoods with other criminals, and hence own guns for defense.) The more likely a felon was to be a serious gun criminal, the less likely he was to have acquired a retail gun. For example, of the criminals who specialized in unarmed crime, 30% obtained their most recent handgun at a store (by purchase or by theft). Of the "handgun predators" who specialize in handgun crime, only 7% had gotten a handgun from a store. For criminals as a whole, of the guns that had been obtained "to use in a crime," 12% came from a store.[48] Since about one-fourth of the handguns from stores were stolen from stores, only about 9% of handguns obtained to use in a crime, (and about 5-6% of handguns obtained by handgun predators) came from a retail purchase. Nine percent or even five percent still seems to be a significant number of criminals buying guns in gun stores. But Wright and Rossi explain that their data: does not imply that the men in question themselves simply walked into a gun shop and bought themselves a gun, in direct defiance of the Gun Control Act of 1968. In many cases, these purchases would have been made in the felon's behalf by friends or associates with "clean" records, which is, to be sure, still quite illegal. Although, we asked these men where and how they had obtained their most recent guns, we did not ask who, exactly, had obtained them.[49] Assuming that only half the purchases were made by legal surrogates, the background check is entirely irrelevant to 95-98% of crime gun acquisitions. The large majority of all gun acquisitions are by people who already own a gun. If the pattern also holds true for criminals, then the background check would impact only a fraction of the already tiny percentage of criminals who personally buy guns at retail. In other words, of all guns acquired for crime, only about 0.5% to 2% are personally bought at a retail outlet by a person with an existing criminal record who does not already have another gun.[50] The basic problem with waiting periods is shown by a Bureau of Alcohol, Tobacco and Firearms study of gun dealer sales in Des Moines and Greenville. The study found that about one to two percent of sales were to dangerous criminals.[51] In short, waiting periods have no statistically noticeable impact on any type of crime because only a tiny fraction of crime guns are purchased at retail by ineligible buyers. Waiting periods have existed in some states for over half a century. Yet after all this time, there is not a single criminological study ever published which shows waiting periods to have any beneficial impact. While the researchers who have studied waiting periods have very diverse views on the gun debate in general, all researchers have concluded that there is no evidence that waiting periods cause any statistically significant benefits. IV. THE WAITING PERIOD (IN)ACTION Synopsis: Although no evidence ties waiting periods to reduced crime rates, the experience of states with waiting periods shows only a small percentage of retail gun buyers are denied because of criminal records. Of these, about 1% are deemed worth arresting. The number of people who are illegally or arbitrarily denied their right to bear arms by abuse of a background check system is about as large as, and sometimes far larger than, the number of criminals denied. Although the academics have never found any statistically significant effect from waiting periods, it would be incorrect to" conclude that waiting periods accomplish nothing. The following section reports results in several jurisdictions that already have waiting periods. The particular jurisdictions discussed were selected because: 1. The police have compiled and released data for that jurisdiction; and 2. The jurisdiction is cited as a success story by Handgun Control, Inc; 3. Data is available to test the veracity of the figures from the police or HCI. The data shows that: 1. Some people with criminal or mental records do attempt retail gun purchases, and are stopped by a background check; 2. Handgun Control, Inc. consistently overstates the efficacy of the background check in its model jurisdictions. California: Officials state that their background check for handguns interdicted 1,900 illegal purchases in 1989.[52] Nevertheless, California's handgun homicide rate rose 21% from 1979 to 1988, even as gun laws grew tighter.[53] California has no appeals process, so it is impossible to determine how many of the denials are proper. As discussed below, the California waiting period forms have been used to build a government data-base of gun owners. About 10% of California's 300,000 "assault weapon" owners have registered their weapons, as required by law. The group that complied with the retroactive registration law surely qualifies as a highly law-abiding set of people. Yet this group of highly law-abiding gun-owners, when they attempt to buy a new rifle or pistol following California's 15-day waiting period, find that the California Department of Justice has put a 1 to 4 month hold on their application, because they are registered "assault weapon" owners. [54] A Los Angeles City Councilman, noting the thriving market in stolen Rolex watches, has suggested that all Rolex watches be registered, and a five-day waiting period be imposed on transfers of second-hand Rolexes. The Rolex waiting period has been ridiculed by most other Los Angeles politicians, and written up in the national press as another instance of California silliness. It might be asked why so many people who dismiss the idea that registration and a waiting period would affect the criminal sale of Rolex watches think that registration and a waiting period would affect the criminal sale of firearms. 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. The national waiting period violates, at the very least, the spirit of the Tenth Amendment.[170] VIII. ALTERNATIVES Synopsis: There a number of alternatives that -- while clearly superior to the waiting period -- do not represent good policy choices in themselves. The Instant Telephone Check and the 7 day waiting period/background check both use the same (often inaccurate) database; the Instant Check has the obvious advantage of being speedy, and not interfering with expeditious acquisition of a self-defense gun. Firearms Owners Identification Cards take a long time to obtain initially, and serve as a basis for gun-owner registration and overly broad fingerprinting of the general population. Turning drivers licenses into "smart cards" also requires citizens to submit fingerprints to the government in order to exercise their Constitutional rights. The most effective way to deal with criminals possessing guns is to better enforce laws regarding criminal gun acquisition and to target the black market trade that supplies the gigantic majority of criminal guns. Researchers from the National Institute of Justice have suggested several possibilities to directly attack the black market; none of the NU proposals interferes with Constitutional rights. Henny Youngman was once asked how he liked his wife. "Compared to what?" he replied. There are a number of alternative controls on retail gun sales that, compared to a waiting period, are quite attractive. If the only issue to be decided is what kinds of restrictive controls on retail gun sales are best, all of the alternatives detailed below compare favorably to the waiting period. They are just as effective at stopping legal purchases by ineligible buyers as a waiting period would be. Because the alternatives do not give the abusive administrators an easy opportunity maliciously to block every retail transaction, these alternatives are much less likely to result in wholesale denials of the right to bear arms, and hence less likely to threaten public safety. At the same time, they consume police resources at a rate equal to or significantly less than the rate at which a waiting period would consume police resources. Hence, the alternatives are clearly superior to a waiting period from all perspectives. On the other hand, if the question is not how to further restrict retail gun sales, but instead if any such restrictions would be worthwhile, none of the alternative controls appear satisfactory. Like a waiting period, the alternative controls on legitimate sales can be evaded, and will likely do virtually nothing to disarm criminals. And while the alternative controls are not as dangerous to civil liberties as is a waiting period, the alternatives still pose some danger. The most effective way to promote public safety and preserve civil liberties is to crack down on the black market that supplies criminal guns. A number of approaches for attacking the black market are suggested below. A. "INSTANT" CHECKS One alternative to waiting periods is an "instant telephone check." The first state to enact such a check was Virginia; and Florida and Delaware have recently followed suit. When a Virginia gun dealer sells any handgun or certain long guns to a Virginia resident, the dealer calls a toll-free number at state police headquarters, to verify that the purchaser has no legal disqualification. If everything proceeds properly, the sale can be consummated with no more delay than a credit card check might entail. Support of an instant check is widespread. Criminologists and legal scholars such as Gary Kleck, Don Kates, and Robert Cottrol who are generally skeptical of gun prohibition support the instant check system. Even big-city police chiefs who generally agree with Handgun Control, Inc., split from that group in preferring the instant check over a national firearms identification card.[171] The National Rifle Association also supported the instant telephone check in Virginia. In terms of sorting out ineligible buyers, the instant check is just as effective as a 7-day waiting period, according to the Department of Justice Task Force, and for that reason is supported by Attorney General.[172] Unfortunately, in terms of preventing incorrect denials of the right to bear arms, the instant check is just as bad as the waiting period. Because the data quality for instant checks is, according to the Task Force, equivalent to that for a one or three week background cheek, only 84%-88% of applicants will be initially allowed to purchase if there were a national instant check. The unlucky remainder must go through a secondary verification process (such as submitting fingerprints at state police headquarters) that would take several weeks.[173] Of course a criminal can evade an "instant" check just as easily as he can evade any other check. All he needs is a fake driver's license with another name. Since false social security and alien registration cards may sometimes be bought for as little as $35,[174] and since those cards are usually sufficient to obtain a driver's license, the instant check is likely to be just as porous as longer checks. The instant check, therefore, like the waiting period, could be evaded by anyone with false identification.[175] For the purchasers who are rejected initially, fingerprint checks might be required to verify their identity. It is estimated that, if the instant check were national and comprehensive, the FBI would need 395 new clerical employees and 8,000 more square feet of office space to process the fingerprint work.[176] Given the limited efficacy of any police permission system, it might be considered whether 395 additional FBI employees might be better employed at projects focused on criminals, rather than on law-abiding citizens. An instant check will cost between $7.07 and $9.39 per purchase.[177] For a person buying a high-quality target pistol, the cost is hardly noticeable. For a poor person buying a $40 used revolver for self-defense, the cost is considerable. The cost could be justified, if it yielded important benefits. Significantly, the instant check is subject to the same problem of creating a gun and gun-owner registration system as is a waiting period. As the Task Force observes, "Any system that requires a criminal history record check prior to purchase of a firearm creates the potential for the automated tracking of individuals who seek to purchase firearms."[178] If a transaction number must be placed on the dealer gun sale form (to prove he made the check), and if the state retains its own record of transaction numbers, the record-keeping could easily be perverted into gun registration. At the least, any instant check system should include protections to absolutely bar gun-owner record retention, and should specify that if computer or other failure prevents the police from approving the sale, the sale should be delayed no more than 24 hours. The instant check is clearly preferable to a waiting period. The instant check uses the same criminal/mental data base as would a waiting period, and would therefore be equally effective in denying ineligible buyers. Bemuse the large majority of sales would be approved on the spot, abusive administrators would have much less of an opportunity to interfere with the right to bear arms. It is true that an instant check eliminates the "cooling off" feature of a waiting period; but as discussed above, the number of crimes that could be prevented by "cooling off" is very, very small. The loss to public safety from the elimination of the "cooling off" period is more than offset by allowing persons who need a gun for immediate self-defense to get one, and by substantially reducing the numbers of arbitrary denials of firearms purchases. B. FIREARMS OWNERS IDENTIFICATION CARDS One suggested alternative to waiting periods for each firearm purchase is the creation of a Firearm Owners Identification Card (FOID). A person applies once for FOID card and submits her fingerprints to the authorities; after a four to six week review process, the person is granted a card which allows her to make unlimited purchases, with no further approval, as long as the card remains valid. (The card might expire after one year, or three years, or be valid for life.) Massachusetts and Illinois are among the states currently using a FOID system. Faced with the choice between the instant telephone check and the FOID card, Handgun Control, Inc. prefers the FOID card.[179] The Task Force suggests that each FOID card would cost $30. Approximately 1,700 new FBI employees would be required to process the necessary fingerprint checks of FBI files. According to the Task Force, the FOID card, taking up to six weeks to process, would be substantially more accurate than an instant check or a short waiting period. As with the instant check or the waiting period, the list of FOID owners would be a de facto registration list of gun owners. The more serious civil liberties problem, however, involves massive fingerprinting. The National Association of Police Organizations favors the collection of fingerprints of gun owners as the first step towards a comprehensive fingerprint system: "Hence the development of such an integrated national fingerprint system should be considered not merely for its benefits in connection with felon identification concerning firearms purchases but also in connection with improving law enforcement in general."[180] The American Civil Liberties Union states "limited criminal history record checks, with fingerprint cards, are justified in certain licensing and employment situations. However, we oppose routine fingerprinting of all individuals who seek to buy firearms as an intrusion into privacy that cannot be justified by the minuscule benefit that may be achieved...."[181] Of course the ACLU's principle should also apply not only to proposed national fingerprint proposals, but also to the current practice in states such as New York and Illinois which routinely fingerprint the large fraction of the population which exercises its right to bear arms. The same arguments that lead one to reject a national or identity card apply to federal gun licensing through a FOID. A national licensing system would require the collection of dossiers on half the households in the United States (or a quarter, for handgun-only record-keeping). Implementing national gun licensing would make introduction of a national identity card more likely. Assuming that a large proportion of American families would become accustomed to the government collecting extensive data about them, they would probably not oppose making everyone else go through the same procedures for a national identity card. Although the problem of illegal immigration is immense, Congress has repeatedly rejected calls for a national ID card. The same reasons that impelled Congress to reject that national ID card should impel Congress (and the states) to reject large steps towards such a card. C. SMART CARDS Another suggestion for screening of firearms purchasers has been the development of "smart" cards. As the Task Force explains, "every adult would carry an identification card issued by the state of residence, such as a driver's license, that would have electronically imprinted identifying information."[182] An instant fingerprint check in gun stores will within a few years be technologically feasible.[183] The Smart Card seems to pose no serious problems from a pure Second Amendment viewpoint. There would be no false denials, since the cardholder would not be confused with other people with similar names and birth dates. There would be hardly any delays in purchases, since almost everyone would have a smart card.[184] There would be less risk of creating a gun registration system, although some states would be tempted to include gun registration data directly on the smart card. Nevertheless, civil libertarians (including those with no interest in the gun issue) should oppose the smart card for the same reason that they oppose a firearms owners identification card (FOID). Both smart and FOID cards are a huge step towards a national identity card. Smart/FOID cards would of course be introduced with the assurance that they would only be used for limited purposes. But the Social Security Number, it was promised, would only be used for Social Security; today, the SSN is in effect a mandatory universal identification number, demanded by all levels of government and by businesses. The National Rifle Association rejects the idea that persons who fill out the federal gun purchase form (form 4473) should be required to affix a fingerprint: "Exercise of a constitutional right cannot be conditioned on making fingerprints available to the police."[185] Indeed, the Supreme Court has held that Constitution forbids states to collect fingerprints of people merely because they exercise their Constitutional rights.[186] But the smart card requires a citizen to offer his fingerprint for government approval before exercising his right to bear arms. The instant driver's license fingerprint scan offers few anti-crime advantages over the instant telephone check. Both can be evaded with false identification. (In the case of the fingerprint scan, the criminal just makes sure to have someone else's print placed on his fake driver's license.)[187] The instant fingerprint scan proposal would result in every state having a fingerprint of all of its adult citizens. It is questionable whether states currently ought to be fingerprinting citizens who obtain drivers' licenses. It is repugnant to federalism to force states to erode the privacy of their citizens by forcing the states to collect fingerprints. Like the FOID card, the smart card looks handsome when compared to the waiting period, since it is more effective in denying ineligible buyers, and is less suspectable to repeated abuse by anti-gun administrators. But standing on its own, the smart card fails important civil liberties tests. D. ANTI-CRIME ALTERNATIVES THAT DO NOT INFRINGE CIVIL LIBERTIES If the goal is really to keep felons from obtaining guns (rather than imposing gun control on honest citizens for its own sake), then the focus on retail sales in entirely misplaced. Hardly any felons buy crime guns in stores; almost all of the guns come from the underground