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Senate Proposal on Gun Violence Prevention

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Giffords, the gun violence prevention organization led by former Congresswoman Gabrielle Giffords, welcomes today’s introduction of a bipartisan gun violence prevention bill led by Senators Chris Murphy, Kyrsten Sinema, John Cornyn, and Tom Tillis. While this legislation does not include strong gun safety policies like universal background checks or a ban on large-capacity magazines, it represents a step forward in federal gun safety policy. Below is an overview of how the provisions in the bill would bolster public safety and save lives.

ERPO Grants to States

In many states, families and law enforcement lack the ability to limit a person’s access to guns even when the person has demonstrated signs of a serious crisis.  Extreme risk laws, also known as red flag laws or state crisis intervention order laws, provide families, household members, and law enforcement agencies with the ability to petition courts for a civil (non-criminal) order to temporarily suspend a person’s access to firearms before they commit violence. ERPOs, which have been shown to prevent mass shootings and gun suicides, fill a critical gap in the law while ensuring critical legal protections for respondents. 19 states and the District of Columbia have adopted extreme risk laws, many with bipartisan support. 

ERPO laws address not only high-profile tragedies like mass shootings, but also gun suicides, which account for 60% of gun deaths. 85% of suicide attempts with a firearm are fatal, making firearms the most lethal suicide attempt method that is commonly available. Temporarily reducing access to guns for a person in crisis significantly increases the likelihood of surviving a suicide attempt: nine out of 10 people who survive a suicide attempt do not die by suicide at a later date.

Extreme risk laws are being effectively implemented, saving lives.

At a Senate Judiciary hearing in March 2019, King County (WA) Senior Deputy Prosecuting Attorney Kimberly Wyatt recounted those who’ve used Washington state’s ERPO law, including: a concerned therapist who contacted law enforcement to remove firearms from At a Senate Judiciary hearing in March 2019, King County (WA) Senior Deputy Prosecuting Attorney Kimberly Wyatt recounted those who have used Washington state’s ERPO law, including: a concerned therapist who contacted law enforcement to remove firearms from their suicidal patient; a woman who requested an ERPO for her suicidal partner, who later shared his gratitude that someone had intervened and removed his firearms; and a doctor who alerted police about their patient’s “hit list” and intention to commit mass violence.

Exact procedures vary within these laws but they all provide an individual with Due Process. They cannot be issued by anyone except a judge and only if an authorized petitioner (usually a law enforcement officer or family member) has provided the court with detailed evidence under oath showing the danger posed by the person’s possession of a firearm, and only if the c

Exact procedures vary within these laws, but they all provide an individual with due process. They cannot be issued by anyone except a judge and only if an authorized petitioner (usually a law enforcement officer or family member) has provided the court with detailed evidence under oath showing the danger posed by the person’s possession of a firearm, and only if the court finds this danger meets well-established legal thresholds. They all provide the individual with an opportunity for a full hearing within a short period of time after guns are removed. 

At the hearing, the respondent can contest the evidence and present their own evidence in response. All ERPOs can expire after a set period of time, usually one year, at which point the person’s guns are returned. An ERPO can only be renewed if once again, evidence is provided to a court and a judge determines that the ERPO continues to be necessary.  These procedures have been upheld by the courts both in the domestic violence and ERPO contexts.

However, unlike most other gun safety laws, ERPO laws only work to reduce gun violence if people use them.

  • Guns may not be removed from people at risk of suicide or violence if:
    • Law enforcement officers and other potential petitioners don’t know that ERPOs are available
    • Courts don’t know how to address ERPO petitions
    • Law enforcement officers don’t know how to remove guns from people subject to ERPOs
  • Some jurisdictions, such as Maryland and Washington State, have successfully implemented their laws and issued hundreds of ERPOs. Other jurisdictions have struggled.
  • Jurisdictions with the most success have benefitted from significant investments in ensuring that law enforcement receive training, courts develop protocols, and the public is aware of the availability of ERPO procedures. 
  • This work requires funding and resources, above and beyond just the legislative work of passing these laws.

This legislation would provide $750 million in federal Byrne JAG funding to support state implementation and establishment of state-level crisis intervention orders, also known as ERPO laws or red flag laws. This federal funding for the implementation of ERPO laws is a significant step forward in federal gun policy.

Dating Partner Loophole

The dangerous nexus between domestic violence and firearms is well-documented. A gun in the hands of an abuser makes a woman five times more likely to be killed. Every 16 hours, a woman is shot and killed by a current or former intimate partner in the United States.Women in the US are 21 times more likely to be killed with a gun than women in other high-income countries. An abuser’s access to a gun creates a danger that extends beyond the family, into the community and even to mass shootings. In more than half of mass shootings where four or more people were killed, the shooter killed an intimate partner. One analysis found that nearly a third of mass shooters had a history of domestic violence.

Our laws have far too many loopholes that enable domestic abusers to access weapons. Even though nearly half of all intimate partner homicides are committed by dating partners, federal law allows abusive dating partners to legally purchase and possess firearms. Current federal law only prohibits abusers who were married to or lived with their victims or had children with them from possessing guns—even if an abusive dating partner is subject to a restraining order or convicted of domestic violence. 

28 states and DC have partially or completely closed the so-called “boyfriend” loophole. States that have closed this loophole have experienced a 16% reduction in intimate partner gun homicides.

This proposal promises to address abusive dating partners by prohibiting a person convicted of a violent misdemeanor against a serious dating partner from possessing firearms for five years. This legislation would strengthen the law and save lives, even if it does not entirely close this dangerous loophole.

Enhanced Background Checks for Youth

Under current federal law, a purchaser must be 21 years old to purchase a handgun from a federally licensed firearms dealer but only 18 years old to purchase rifles or shotguns, including semiautomatic assault rifles. Young people disproportionately commit gun homicides: 18-20 year olds comprise just 4% of the US population, but account for 17% of known homicide offenders.

Under current federal law, a licensed gun dealer may transfer a firearm to a prospective purchaser as soon as he or she passes a background check. If the background check system is unable to complete the check within three business days, the dealer may complete the transfer by default. 

The legislation would continue to allow a person under age 21 to purchase a long gun, but would require additional investigative steps to review juvenile records and the opportunity to consult with local law enforcement. By allowing extra time for these steps to be completed, this legislation represents a step forward for gun safety.

Community Violence Intervention

Community violence, one of the most prevalent drivers of the gun violence epidemic, is defined by the Centers for Disease Control and Prevention (CDC) as violence between “unrelated individuals, who may or may not know each other, generally outside the home.” The burden of community violence tends to fall hardest on Black and Latino residents, who are disproportionately impacted. Despite making up less than a third of the US population, these groups account for more than three-quarters of gun homicide victims in the US. 

Community violence intervention (CVI) relies on concerned individuals, commonly referred to as CVI workers, who are native to the community and willing to accept the role of peacemaker. They work to reduce the spread of violence by engaging those at highest risk of being injured and/or producing violence, with the goal of interrupting the transmission of violence. This can be done while individuals are incarcerated, in the hospital after suffering from a violent injury, in school, or in the community. 

CVI professionals then engage a team to provide social services to the individuals at highest risk who wish to heal unresolved trauma and change the trajectory of their lives. Based on a needs assessment, they are provided a tailored service plan that might include counseling, victim and legal support, case management, tattoo removal, career development, conflict resolution, mentoring, and transitional housing, among other things.

Research demonstrates that, when they are well funded, CVI programs can be remarkably effective. In Massachusetts, for example, the Executive Office of Health and Human Services operates the Safe and Successful Youth Initiative (SSYI) in 21 communities throughout the state. SSYI offers young men who have committed a gun or gang-related crime services that include case management, employment support, and behavioral health services, and it is associated with reducing violent crime in the state by preventing more than 800 violent crime victimizations per year. 

Evidence also shows that investing in CVI programs reduces the enormous economic burdens of violence. An evaluation of Chicago’s Rapid Employment and Development Initiative (READI) estimates that, over the course of 20 months, the program saved approximately $122 million in costs associated with societal harms resulting from violence. For every dollar invested, researchers found that READI generates between $3 and $7 in cost savings.

Funding community violence intervention programs is crucial to a holistic approach to reducing gun violence. The bill would provide $250 million in additional federal funding for community violence intervention and reduction programs, a historic and vitally important investment in these lifesaving strategies.

Straw Purchases and Gun Trafficking

Existing federal law does not do enough to address the sources of crime guns and lacks a clear and effective prohibition against straw purchasing (in which one person falsely claims to be the gun purchaser on behalf of another) and firearms trafficking. Meanwhile, three out of four federal weapons prosecutions are for simple illegal gun possession. In order to truly reduce the number of illegal guns, we need better laws surrounding gun traffickers and those who provide guns to the illegal market. 

Straw purchases are the most common channel identified in trafficking investigations. Straw purchases are already technically illegal, as a 2014 Supreme Court case confirmed. Nevertheless, such crimes have traditionally been treated as lower-level paperwork violations, and some states have been reluctant to prosecute straw purchasers unless the “actual buyer”—the person on whose behalf a gun is purchased—is not eligible to possess guns. This conflicts with the Supreme Court’s decision and enables gun trafficking. 

In addition, existing federal law does not explicitly prohibit someone from seeking another person to obtain a gun on their behalf through a straw purchase. Federal laws also do not currently give law enforcement or US attorneys the incentive to focus on gun trafficking. 

Traffickers take advantage of these weaknesses in the law to obtain large numbers of difficult-to-trace guns and transport them illegally across state lines. Gun trafficking can undermine a state’s strong gun safety laws, especially if a neighboring state has weaker gun laws. Nearly two-thirds of crime guns recovered after use in crime in states with strong gun laws were originally sold in states with weak gun laws.

This bill establishes new avenues for the investigation and prosecution of these often-overlooked crimes. Focusing real attention on the issue of straw purchases and gun trafficking is important to reducing gun violence. However, Giffords opposes the penalty structure established by these provisions and the potential implications these harsh penalties could have on people prosecuted under these provisions, particularly people of color.

Unlicensed Gun Sellers

Federal law imposes various duties on federally licensed firearms dealers. Firearms dealers must, among other things, perform background checks on prospective firearm purchasers and maintain records of all gun sales. However, federal law imposes none of these requirements on unlicensed sellers.

The Gun Control Act of 1968 provides that persons “engaged in the business” of dealing in firearms must be licensed. Federal law defines the term “engaged in the business,” as applied to a firearms dealer, as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

Significantly, however, the term was defined to exclude a person who “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.” According to a 1999 report issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the current definition of “engaged in the business” often frustrates the prosecution of “unlicensed dealers masquerading as collectors or hobbyists but who are really trafficking firearms to felons or other prohibited persons.”

So-called “private” or unlicensed sellers, including those selling firearms at gun shows, online, or anywhere else without a federal firearms license, make it far too easy for individuals prohibited from purchasing firearms to obtain guns through unregulated transactions. Because of this loophole, people prohibited by law from possessing guns—like people with felony or domestic violence convictions—can easily buy a gun from an unlicensed seller, and do so without any federal record of the transaction. According to a 2017 study, 22% of US gun owners acquired their most recent firearm without a background check—which translates to millions of people obtaining guns, no questions asked, each year.

People who commit crimes with firearms overwhelmingly obtain these firearms from unlicensed sources. The best evidence indicates that about 80% of all firearms acquired for criminal purposes are obtained from sellers who were not required to run a background check, and 96% of inmates who are prohibited from possessing a firearm at the time they committed their crime obtained their gun this way. 

This bill would make a minor change to the language that determines which gun sellers must obtain a license and conduct background checks. Specifically, gun sellers would be considered to be “engaged in the business” if they sell firearms “to predominantly earn a profit,” whereas current law considers a gun seller “engaged in the business” if their principal objective for selling firearms is “livelihood and profit.” The loophole that allows unlicensed sellers to sell guns without conducting background checks would remain open. 

This bill includes several critical measures that Giffords and the gun safety movement have been championing for a long time: funding for ERPOs and CVI programs, addressing the dating partner loophole, and establishing a federal statute to clearly define and penalize firearms trafficking and straw purchasing.

This legislation will represent the first major gun safety legislation to pass the Senate in nearly 30 years. While it isn’t perfect, it represents a huge step forward by demonstrating that passing federal legislation on gun violence prevention is possible. Giffords is committed to building on this momentum and continuing to fight to move the needle in the right direction.

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