Executive Actions Recommended to the Biden-Harris Administration to Save Lives from Gun Violence
Executive Actions Recommended to the Biden-Harris Administration to Save Lives from Gun Violence
The high profile mass shootings in Atlanta, Georgia and Boulder, Colorado, are stark reminders that immediate action is needed on gun violence. With nearly 40,000 people killed with guns in this country each year in homicides, suicides, and unintentional shootings, and another estimated 76,000 are grievously injured by gunfire, we need executive and legislative solutions. This is especially urgent with the sharp increase in violence in 2020.
While the House of Representatives has already passed three bipartisan pieces of legislation to address gun violence—H.R. 8 which requires background checks on all gun sales and transfers, H.R. 1446 which provides more time to FBI to complete background checks, and H.R. 1620 which reauthorizes the Violence Against Women Act and closes loopholes which allow dating partners convicted of domestic abuse and people convicted of misdemeanor stalking to obtain guns—the following executive actions should be considered immediately by the Biden-Harris administration:
PRIORITIZE COMMUNITY VIOLENCE INTERVENTION
Every American should be able to live free from the threat of gun violence. The Biden-Harris administration has the potential to make historic progress in making American communities safer by creating a Community Violence Intervention Task Force within the Office of Justice Programs to coordinate community-based violence prevention and intervention efforts across federal agencies, improve coordination of violence reduction initiatives with state and local stakeholders, conduct outreach to communities experiencing high rates of gun violence, and serve as a technical assistance resource for best practices. The Department of Justice should also immediately issue new guidance clarifying that funding available under the Project Safe Neighborhoods, Byrne JAG, and Victims of Crime Act grant programs should be used to support community-based violence intervention programs.
NOMINATE STRONG LEADERSHIP AT THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES
Steady, determined, and competent leadership at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will help keep our communities safe. Any pick to lead the ATF should be committed to lending stability to the agency and prioritizing the prevention of gun violence, including more effective regulation of the gun industry. The new director should immediately begin work on a comprehensive analysis of gun trafficking in the US and increase access to crime gun trace data to enable local law enforcement, policymakers, and research scholars to develop smart, targeted approaches to reduce gun violence.
MOVE FORWARD ON REGULATING “GHOST GUNS”
Ghost guns—dangerous, homemade firearms assembled from kits or made with 3D printers—are increasingly being used to circumvent both federal and state gun laws, with devastating consequences. The Biden-Harris administration should commence a rulemaking process so these weapons, which are untraceable by law enforcement and often undetectable by metal detectors, are regulated, as they pose a grave threat to public safety. This rulemaking would also help ensure that people who are legally prohibited from owning firearms are no longer able to create them without consequences.
RESUME CONDUCTING RESEARCH INTO ILLEGAL GUN TRAFFICKING
Twenty years ago, ATF released a comprehensive report on trends in its gun trafficking investigations entitled Following the Gun: Enforcing Federal Laws Against Firearm Traffickers. This report, which was based on an analysis of the ATF’s criminal investigations into gun trafficking from 1996 through 1998, provided invaluable information about illegal gun trafficking that policymakers have relied on ever since. Gun trafficking has changed since that time, however, and policymakers require updated information.
To inform the development of smart policies and programs narrowly tailored to address the most common sources of illegal gun trafficking, the ATF should produce an annual report, similar to Following the Gun, analyzing recent firearms trafficking investigations, crime gun trace data, and other key information.
REFORM THE NFA DETERMINATION PROCESS
The ATF is currently employing a deferential approach to the gun industry when assessing whether firearms or firearm accessories fall within the parameters of the National Firearms Act (NFA), which makes them subject to heightened regulation. Examples include pistol braces and pistol blade stabilizers. This imbalance between the ATF and the industry is enabling manufacturers to operate outside the parameters of the law, putting communities at risk for gun violence perpetrated by these uniquely dangerous firearms and accessories similar to weapons that have been subject to heightened regulation for nearly a century.
The Biden-Harris administration should direct ATF to reform the NFA determination process by (1) developing a new framework for reviewing NFA requests that involves an objective assessment of whether the firearm or accessory is intended to be used in a manner that would put it in one of the NFA categories that does not defer to the intended use stated by the manufacturer, (2) conducting a retroactive review of previous decision letters to determine compliance with the new framework and providing revised guidance to manufacturers of firearms and accessories that qualify as NFA weapons upon secondary review, and (3) publishing the framework and all NFA decision letters on the ATF’s website to increase transparency and provide guidance to the industry.
ISSUE NEW CRITERIA TO BAN THE IMPORTATION OF SEMI-AUTOMATIC WEAPONS NOT SUITABLE FOR SPORTING PURPOSES
The Gun Control Act of 1968 (GCA) gives the ATF the authority to control the importation of firearms into the United States. Specifically, the GCA provides that the ATF “shall” authorize an application for firearm importation if the firearm model is “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” Known as the sporting purposes test, this requirement tasks the ATF with periodically evaluating firearm models for their potential uses. The GCA provides little explicit guidance about what constitutes a “sporting purpose.” Instead, the law delegates this definitional task to the ATF. Despite the rapid development of new firearms, the ATF has not conducted a comprehensive review of semi-automatic assault rifles and handguns under the sporting purposes test since the Clinton administration examined the question over 20 years ago.
The Biden-Harris administration should conduct an updated examination of the sporting purposes test, issue new criteria to enforce the sporting purposes requirement under the Gun Control Act, and ban the importation of semi-automatic assault rifles and handguns. As with similar examinations in the past, the Biden-Harris administration should order that all pending and future applications for importation of these rifles and handguns not be acted upon until completion of the review, and that outstanding permits for importation of the rifles be suspended for the duration of the review period.
FINALIZE FRAMEWORK TO FULLY BAN ARMOR-PIERCING AMMUNITION
Armor-piercing ammunition is made of specific metals and is capable of piercing soft body armor when fired from a handgun—creating substantial risks for law enforcement officers. This type of ammunition is banned under the Law Enforcement Officers Protection Act of 1986 (LEOPA); however, the law includes an exemption for ammunition that meets the armor-piercing design criteria if the ammunition is “primarily used for sporting purposes.” ATF is responsible for evaluating different types of ammunition to determine whether it qualifies as armor-piercing under current law and, if so, whether it falls into the sporting purposes exemption. For the first two decades of the ban, ATF received a limited number of requests to make this determination; however, as firearm and ammunition technology has evolved, there has been a substantial increase in the number of semi-automatic handguns that are capable of firing rifle rounds, meaning that many more types of ammunition potentially meet the definition of armor-piercing and should be banned under LEOPA. Despite the new risks of this highly dangerous ammunition, ATF has largely failed to implement a meaningful approach that would ensure that LEOPA is being faithfully enforced. This failure has resulted in a wide variety of armor-piercing ammunition being available for sale in the civilian market.
ATF should implement the Armor Piercing Ammunition Exemption Framework, first proposed in 2015, to better regulate armor-piercing ammunition and help ensure the safety of law enforcement officers and the community at large. This framework would provide much-needed structure over these determinations and provide additional guidance to the gun industry regarding what types of ammunition may be made available for sale in consumer markets.
PROMULGATE A REGULATION ALLOWING THE NICS SECTION ACCESS TO THE NATIONAL DATA EXCHANGE (N-DEX) SYSTEM
A September 2016 audit by the DOJ Office of the Inspector General found that the National Instant Criminal Background Check System (NICS) does not currently use the National Data Exchange (N-DEx) in all background checks of gun purchasers. The Office of the Inspector General found that had N-DEx been available to the NICS section, it would have identified the Charleston, South Carolina, gunman as a prohibited purchaser because of a previous drug-related arrest, and he would have failed a background check and been unable to buy a gun from a licensed gun dealer.
The FBI is currently working to implement use of N-DEx as a secondary search database that would be searched only if a prospective firearm purchaser is flagged in the existing primary databases during a NICS check. Under this proposal, the DOJ would issue a rule amending the NICS implementing regulations to add N-DEx as a primary database during a NICS check.
RETAIN RECORDS OF UNRESOLVED BACKGROUND CHECKS
Every year, the FBI is unable to complete hundreds of thousands of background checks on gun purchasers. Federal law requires the destruction of background check records within 24 hours if the purchaser has been approved, but no statutory provision applies to records when the background check has not been completed. Nevertheless, an FBI regulation requires records of incomplete background checks to be destroyed after 90 days. The destruction of these records deprives the FBI of its ability to identify whether these purchasers are prohibited and prevents the background check system from being properly audited. The FBI should amend its regulation so it can retain these records.
PROMULGATE A REGULATION ALLOWING STATES TO ACCESS NICS FOR STATE AMMUNITION PURCHASE BACKGROUND CHECKS
A small number of states, including New York and California, have enacted laws requiring gun dealers to run background checks on ammunition purchasers. The FBI has refused to allow the National Instant Background Check System (NICS) to be used for this purpose, based on a regulation that restricts use of NICS, even though NICS is the best source of information for these checks. However, studies indicate that background checks at the time of transaction would have largely eliminated retail sales of ammunition to prohibited individuals.
Under this proposal, the FBI would amend the regulation implementing the Brady Act to allow state, tribal, and local law enforcement agencies to access NICS for ammunition purchaser background checks if a state or tribal law requires the background checks, and the entity using NICS for this purpose is a state, tribal, or local law enforcement agency, rather than a private entity (in other words only if a governmental entity acts as a point of contact for this purpose, so few, if any, additional funds are spent by the FBI for these searches). The DOJ should begin the process by issuing a Notice of Proposed Rulemaking NPRM to this effect within the first year of the administration.
RESTORE OVERSIGHT OF FIREARMS EXPORTS TO THE DEPARTMENT OF STATE
In early 2020, the Trump administration finalized two rules shifting most firearms, ammunition, and firearm component parts from the US Munitions List (USML) to the Commerce Control List (CCL), giving the Commerce Department oversight authority over the exports of these weapons. Before the rules were enacted, the State Department oversaw the export of weapons on the USML, and those items were subject to significant congressional oversight and stringent licensing requirements. One rule, issued by the State Department, amended the USML to remove most firearms and ammunition from the list. Another, issued by the Commerce Department, added these items to the CCL. Together, these companion rules decreased regulatory requirements and congressional oversight over the export and import of dangerous and deadly weapons.
To reverse the Trump administration’s attempt to deregulate firearm exports and imports, the Biden-Harris administration should issue a Department of State rule to amend the USML to include the firearms and ammunition the Trump administration transferred off the list, and issue a Department of Commerce companion rule to relinquish regulatory control of these items as they are transferred off the CCL and back to the USML.
REINSTATE THE 2002 STATE DEPARTMENT FIREARMS SILENCER POLICY PROHIBITING THE EXPORT OF SILENCERS FOR COMMERCIAL SALES
Firearm silencers are inherently dangerous devices that shooters can use to suppress the sound of gunfire and mask muzzle flash. These deadly accessories, which put law enforcement and the public at grave risk by making it more difficult to identify nearby gunshots and locate an active shooter, have been regulated effectively in the United States since the 1930s and are thus rarely used in crime. Still, the gun lobby has made concerted efforts to make it easier to buy and sell silencers. The State Department should renew its guidance document regarding silencer exports. It can do this by issuing a memo to enact this recommendation immediately without the need for a formal rulemaking process, so long as it explains the reason for the change and acknowledges reliance interests.
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