The deaths of so many children and their teachers and school officials at Sandy Hook Elementary, and of a mother at the hand of her killer son, have caused me to re-visit the subject of national firearms policy, which I thought about night and day for nearly seven years from the fall of 1994 to January 2000.

We must begin by recognizing that the rare problem of rampage or spree shooters who may be suicidal is different from the problem of youth gang violence in inner city neighborhoods that we were primarily focused on during the 1990’s when youth gun homicide rates went through the roof and the primary firearms policy goal was to keep guns out of the hands of teenagers. In responding to one more shocking shooting of innocents by a deranged young man wielding a military caliber semi-automatic assault weapon, we must build on progress in firearms violence reduction that has continued since President Clinton left office, and pick up where politics halted the Clinton era initiatives. We also must think freshly and strike out in new directions.

Let’s start with the Clinton-era approach and infrastructure. President Clinton’s strategic insight was manifest in his incorporation of gun violence reduction into his broader crime control policy. A core focus for his presidency, the crime control policy put 100,000 additional police on the streets. Simultaneously, the President pushed for and signed the Brady law to strengthen the background check system that seeks to keep guns out of the hands of criminals and others who may misuse them, and the assault weapons ban, through which Sen. Feinstein and other key Senate and House leaders sought to reduce the ready availability of semi-automatic weapons.

Among other steps, President Clinton also directed and supported upgrading and expanding ATF’s crime gun tracing system, through which law enforcement officials are able to acquire records of firearms purchases from federally licensed firearms dealer. The crime gun tracing infrastructure allows ATF and other law enforcement officials to analyze firearms data to successfully crack down on illegal trafficking in firearms. The goals were to constrain the supply to criminals and use evidence supplied by guns, cartridges and bullets to identify and arrest violent criminals, and to provide states and localities crime gun trace information on which they could base their own enforcement practices and policies.

In addition to stepping up gun crime and trafficking prosecutions, the Clinton Justice Department funded and then expanded the innovative Operation Ceasefire in Boston. Operation Ceasefire deploys information technology to assemble and address young people involved in violent gangs, and draw them out of a life of crime through a combination of direct communication by authoritative and supportive community members, and reinforcement from a spectrum of federal, state and local law enforcement officials imposing announced sanctions in a swift, coordinated manner. Administration firearms policy goals also expanded to address domestic violence and other major crimes with guns, through new domestic violence and gun crime legislation.

Throughout his time in office, President Clinton saw traumatic episodes of spree shootings in schools, including at high schools in Littleton, Colorado and Padukah, Kentucky, and at the Empire State Building, spurring him to push for further improvements in the regulatory structure and to use these moments of national grief as teaching moments. The Treasury and Justice Departments consistently provided a wealth of information to the public as well as to law enforcement and public officials around the nation about the operations of the illegal firearms market and criminals using guns. An early such step was to require registration of StreetSweeper and USAS Striker 12 gauge semiautomatic shotguns, which looked like AR 15 rifles and were guns favored by drug dealers. Because these two weapons had bores slightly larger than 50 caliber, they could be classified as “destructive devices” under the National Firearms Act of 1934 (NFA) if they were not used for sporting purposes, which evidence showed they were not. Requiring registration and the payment of fees for transfer had worked to eliminate machine guns, silencers, and sawed off shotguns as gangster weapons. The Administration saw to it that ATF had strong leadership and budgets, and equally strong oversight.

Despite significant progress in the law enforcement framework, Congress in 1999 rejected legislation that would have subjected private firearms transfers to background checks, leaving a gaping hole in the regulatory net through which criminals, gang bangers and deranged killers alike could easily buy weapons and ammunition with no questions asked and no records kept. (Known as gun show legislation, the bill passed the Senate with a tie-breaking vote by Vice-President Gore, but failed in the House.)

The next dozen years put more brakes on further progress. The NRA, supported by President George W. Bush, succeeded in prying the problem of gun violence out of the context of crime control and into the framework of gun rights, winning a major victory in the Supreme Court in its 2008 Heller decision which declared that the Second Amendment right to bear arms resides in the individual but that reasonable regulations of guns is lawful, and its 2010 McDonald decision extending Heller’s applicability to state and local government regulation of firearms. Millions more guns have been sold in the last number of years, fed in part by distrust of the federal government, and fear of civil breakdowns in which in the last resort the individual must protect his or her own family and property. The NRA and its allies persuaded Congress in the Tiahrt amendment not just to let the assault weapons ban die but to constrain publicly available information and analysis concerning crime gun tracing and the illegal market in crime guns.

But the Clinton-era initiatives have borne fruit. We are in a different place with regard to youth gun violence today. The National Network for Safe Communities, based at John Jay College of Criminal Justice at the City University of New York, is spreading the doctrine seeded by the 1994 Boston Operation Ceasefire to many jurisdictions around the country, providing a coordinated community and law enforcement response to youth gangs that tips neighborhoods from gun violence to sustained peace. This highly effective approach to youth gun violence demands continued attention, assessment, development, promotion, and resources, from the federal government, state and local government, and foundations. Its efficacy seems to arise from something obvious but not usually associated with policing – convincing young people and their families that community leaders, including law enforcement officials, care deeply about preventing violent deaths in the community. Through such programs and other factors debated by criminologists, violent crime has dropped in cities across the country.

Measures to address youth gang violence deal with the most prevalent form of gun crime – inner city crime — but thus far they have dealt with young people associated with gangs, not with periodic spree shootings such as Newtown, the Tucson attack, and the Virginia Tech shootings to name only three scenes of horror. In these cases, an isolated and troubled young man – angry, deranged, or psychotic — drops out of the grasp of family and community well-being. Such terrifying crimes can occur anywhere there is a troubled son with easy access to guns.

If indeed we as a nation are ready to tackle the problem of extremely troubled young men engaging in heedless slaughter with military caliber weapons, what can policymakers do? Let’s begin with some foundational points. First, the lesson from the National Network for Safe Communities is that the combination of information about individuals, psycho-social insight, and the right action taken by responsible parents, citizens, and law enforcement can be effective to stop killing. Second, let’s recognize – as the Supreme Court has – that the Constitution permits reasonable regulation of firearms ownership by individuals. Third, regulations at the federal and state level work. The increased proficiency of law enforcement in crime-gun tracing has moved much of crime-gun commerce into the unregulated, secondary market. Within the past few years, licensed firearms dealers and private gun traffickers alike have shifted to selling used guns, to avoid law enforcement scrutiny. In those few states that regulate the secondary market, law enforcement has a significant advantage in preventing and solving gun crimes. Fourth, states, cities and other localities can take their own initiatives and partner with the federal government in reasonable steps to regulate firearms sale and require owners to exercise significant responsibility for their weapons.

Bearing these basics in mind, here are some steps to consider:

  • Safe storage regulations can make a big difference. We don’t know yet what Mrs. Lanza’s gun storage practices were, and whether her troubled son had access to her firearms on a routine basis, but we know he obtained them for this crime. But safe storage rules are essential. A few states prescribe safe storage, but mostly for handguns and when there is a minor in the house, rather than rules specifically related to military caliber weapons or magazines with capacity 10 rounds or more. This should be a focus for federal and state legislation.
  • Consider whether certain ammunition should be restricted to professionals. While it is not yet clear from the reporting, the Newtown shooter may have used ammunition designed for minimum penetration and maximum wound damage. A rifle round is devastating regardless, but hollow points and extremely frangible ammunition greatly increase the damage caused by shots from a handgun.
  • Have a national conversation about how to regulate access to currently owned military caliber weapons and large-capacity magazines, which would not be affected by a renewed assault weapons ban. If Sen. Feinstein’s semi-automatic assault weapons legislation is revived and remains prospective only, it would leave millions of such weapons in private hands and large capacity magazines available indefinitely. Depending on its details, criminals may be able to defeat it through the simple expedient of buying parts and making alterations to change lawful weapons into unlawful ones. The large-capacity magazines are simple pieces of folded and pressed sheet metal with a spring. If, as has been the case, anyone is allowed to make them, there would be no way to control the mass production of magazines in a post ban environment.

The weakness of the first assault weapons ban was twofold. It focused on adjustable features that had no bearing on lethality, and its grandfather clause left such guns widely available. To avoid a these outcomes, and to enable law enforcement to take action to prevent crimes with such firearms without confiscating currently owned firearms, Congress could create a new category in the NFA for military caliber and high capacity weapons. The NFA provides for recording of certain weapons Congress has defined as destructive devices. The new category could include military caliber weapons, defined as those semiautomatic guns previously or currently used by a foreign or domestic national military force. Military calibers include the .223, .762 7.62, and .553 5.56.

  • The category could include (1) semiautomatic rifles with detachable magazines that chamber more than 10 rounds, and that chamber a military round regardless of how many rounds; and (2) semi-automatic handguns that chamber a military round with a capacity for 10 or more rounds. 50 caliber sniper rifles should also be included. Although these are not a domestic problem, they are prevalent along the southwest border among drug trafficking organizations.
  • The manufacture, sale, and possession of such weapons would be recorded by the Bureau of Alcohol Tobacco and Firearms under the NFA, which requires such treatment of machine guns, silencers, and sawed off shotguns, and a fee would be imposed for transfer of the weapons. A grace period for the duration of the Obama Administration should suffice to get all such military grade and high capacity weapons recorded. Congress could consider banning the importation of all firearms with a semi-automatic caliber that has been or currently is being used by a military. Knowing where such weapons are will enable law enforcement to act preventively to remove the firearms where there is a threat of loss of their misuse by someone who is a danger to himself or others. Under such a scheme, for example, had the police pulled Lanza over on his way to the school and found with guns in his possession, they could have been arrested him and confiscated the guns, relying on ATF and/or the state records show that his mother and not he owned the firearms.*
  • Firearms that do not lend themselves to mass shootings would not be required to be recorded: revolvers, very small caliber handguns, standard hunting rifles and shotguns.
  • Provide accurate public reporting on pathways to gun violence to empower law enforcement and citizens to design and support effective policies. Too many people don’t recognize the problem with guns in their own household. Remove Congressional and self-imposed constraints on regular public reporting of information gleaned from crime gun trace analysis about how misused guns are acquired, and ensure that communities have access to this information. Modernize the crime gun tracing system.
  • Focus on preventing access to guns by individuals who are a danger to themselves and others. Most mentally ill individuals are not violent, and rampage shooters are extremely rare. It would nevertheless be useful to look at the evidence that all too many law enforcement agencies are unable to remove firearms from persons they believe to be a danger to themselves or others, based on their own observations or family or community concern. Consider expanding the definition of threat to self and others, whether or not tied to the issue of mental illness in the law identifying prohibited gun purchasers. At present an individual must be adjudicated mentally ill before removing the right to own and purchase firearms. Strengthen state laws that parallel the federal law concerning threat to self and others and gun purchase.
  • Make ammunition sales transparent to law enforcement to prohibit clandestine ammunition purchase and require reporting of high volume purchases. Removal of the requirement that records be kept on sales of ammunition in the Firearms Owners Protection Act of 1986 opened the door to sales of vast quantities of ammo to people not authorized to buy it. Although felons and other prohibited persons, such as those meeting the standard for mental illness, may not purchase ammunition, without requiring sales records there is no way to determine whether background checks were conducted. Require all ammunition sales to go through federally licensed firearms dealers so that there would be records of purchases available to law enforcement. There should be mandatory reporting to federal and state authorities for high volume purchases of ammunition.
  • Close the unregulated gun market so prohibited persons cannot acquire guns without background checks and sales records. Persons prohibited from buying firearms today nevertheless can acquire guns through the unregulated market, via private sales, for example. When there is a lawful basis to prevent an individual from acquiring a weapon due to mental illness, he should not have access to unregulated gun sales. Require all sales of firearms to go through federally licensed firearms dealers so that background checks would be performed for all firearms purchases, and so there would be records of all purchases available to law enforcement.
  • Make sure the background check system is working as well as it can. There is much improvement to be had in the background check system operated by the FBI in collaboration with all agencies that provide the data to the system on which the FBI bases its decisions. Strengthen record keeping and enforcement of the prohibitions on ownership of guns by certain groups, an idea reportedly laid out in a Department of Justice options paper. Join with states and localities in this effort.
  • See the problem of isolated, disturbed individuals as a special problem that requires the same kind of determined attention given to other particular violence problems. We are making progress in how to reduce inner city gun violence, but the same is not true for preventing unique mass killings. Treat instituting new ways of bringing needed psychological, school, and community attention to disturbed youths as an issue of community security and safety, giving it the resources and priority it deserves. There is a long way to go in understanding how to read people in trouble and effectively to intervene and provide mental health services.
  • Pursue technological developments to make guns safer and enhance the traceability of guns and ammunition.

All of these steps can be shown to be useful with evidence from law enforcement experience and would be reasonable forms of regulation adhering to the Supreme Court’s vindication of the Second Amendment as an individual right to possess firearms. In addition to these useful legislative and regulatory initiatives, the time is ripe for examination of and by the media about its coverage of rampage shootings, to determine whether the manner of coverage leads to copycat incidents.

*Under an NFA scheme requiring certain military grade semiautomatic firearms to be registered, the guns Lanza used would be treated as follows:

The Bushmaster AR-15 assault type rifle would be required to be recorded with law enforcement as a semiautomatic rifle that chambers military caliber ammunition. The gun accepts a detachable magazine, taking 5, 10, 30, 50 rounds, without a maximum. Whether a particular gun does or does not have such a magazine, however, would be irrelevant. It still would be a semiautomatic rifle with military grade ammunition that provides far more firepower than what most police carry in their cars. The trend, though, is toward arming law enforcement with such weapons because of their availability in the civilian population.

The Glock 20 semiautomatic pistol, chambers a 9 mm round and is used by the U.S. and multiple foreign militaries. The standard issue firearm is equipped with a greater than 10 round magazine. It would be required to be recorded as a semiautomatic pistol chambering a military round and equipped with a greater than 10 round magazine. If it could not accept a 10 or greater round magazine it would not be required to be recorded. This firearm is in widespread use in domestic law enforcement.

The Sig Sauer 226 or 229, like the Glock 20, is a semiautomatic pistol chambering a 9mm round and equipped with a greater than 10 round magazine, and so would be required to be registered. This firearm, too, is in widespread use in domestic law enforcement.

[Cross-posted at The Reality-based Community]

Susan Ginsburg

Susan Ginsburg ,who directed firearms policy at the Treasury Department during the Clinton administration, is now writing a legal textbook on homeland security law.