Brady Act Reform: Seven-Stage Policy Planning Analysis

The Seven-Stage Checklist for Program/Policy Planning and Analysis was employed to examine the Brady Act. In Stage 1, Analyzing the Problem, the problem was found to be at least four serious gaps in the existing law. Those gaps include: the lack of required background checks for all gun sales, including private sales at gun shows and online; the lack of a strong federal law criminalizing gun trafficking; the ready availability of military-style weapons and high-capacity magazines with more than 10 rounds; and the Tiahrt Order passed by Congress, which prevents the public from knowing the identities of gun traffickers and how they operate.

Though the Brady Act suffers from several gaps, only the lack of required background checks for all gun sales — including private sales at gun shows and online — is addressed in this analysis. Stage 2, Setting Goals and Objectives: the goals statement is the closure of private-sale loopholes by requiring all gun sales, whether in primary or secondary markets, brick-and-mortar or online, to be subject to background checks. The outcome objectives are: the key result of plugging the existing gaps in the Brady Act's background check requirements; the target population of all individuals who would properly be disqualified from gun ownership; and a yearly assessment of the number of individuals refused gun sales through background checks in so-called "private" sales currently exempt from those checks as the timeframe and criterion for measuring impact.

Stage 3, Designing the Program or Policy: using both policy and a strictly enforced program, the proposal would merge existing background check procedures with California's comprehensive requirements — funneling all firearm transactions through Federal Firearms Licensed (FFL) dealers, requiring every handgun to be registered by its owner, establishing law enforcement presence and oversight at gun shows, and conducting undercover sting operations. Stage 4, Action Planning: resources needed would include additional ATF Form 4473 forms, training of firearm sellers for background checks, police presence and oversight of firearm sales, "buy and bust" police stings, police seizure of unregistered firearms within U.S. borders, a web task force, and additional FBI agents to review background checks within the three-day period. Funding will come from FFL fees, background check fees, gun registration fees, and Congressional mandate.

Stage 5, Program/Policy Implementation and Monitoring: the intended target population of firearms sellers and buyers would be reached by consistently monitoring police oversight, background check applications and results, and the online team's location and termination of gun-selling websites violating uniform background check requirements. Gaps and conflicts in implementation and adequate staffing would be defined and periodically corrected. Stage 6, Evaluating Outcomes: major stakeholders would want to know both the impact and continuous outcomes. The objective of requiring background checks for all firearm sales is clearly defined and measurable from the outset. Whether the system is sufficiently well-designed and well-implemented remains to be seen through monitoring, data collection, feedback from staff and stakeholders, and review. Stage 7, Review: Complete.

The Seven-Stage Checklist for Program/Policy Planning and Analysis reveals that the Brady Act seriously needs a universal, uniform system of background checks for every firearm sale — whether online or offline, whether conducted by professional arms dealers or "private" vendors.

1. Describe the Problem

While the Brady Act has made strides in reducing gun deaths in the United States, serious gaps in the law remain. Suicides and homicides by firearm are solidly among the top ten causes of injury deaths in the country. According to the latest published information from the Centers for Disease Control and Prevention, in 2014 in the United States: suicide by firearm accounted for 21,334 deaths and was the 4th leading cause of injury deaths; and homicide by firearm accounted for 10,945 deaths and was the 6th leading cause of injury deaths (U.S. Centers for Disease Control and Prevention, n.d.).

Homicide and suicide by firearm are non-factors in the under-1-year age group, but homicide by firearm appears as a top-10 cause of injury death in subsequent age groups. In the 1–4 age group, homicide by firearm is the 8th leading cause of injury deaths. It is the 4th leading cause in the 5–9 age group. Among 10- to 14-year-olds, suicide by firearm is the 3rd leading cause and homicide by firearm is the 4th leading cause of injury deaths. Among 15- to 24-year-olds, homicide by firearm is the 2nd leading cause and suicide by firearm is the 4th. Among 25- to 34-year-olds, homicide by firearm is the 3rd leading cause and suicide by firearm is the 4th. Among 35- to 44-year-olds, suicide by firearm is the 3rd leading cause and homicide by firearm is the 5th. Among 45- to 54-year-olds, suicide by firearm is the 3rd leading cause and homicide by firearm is the 7th. Among 55- to 64-year-olds, suicide by firearm is the 3rd leading cause and homicide by firearm is the 9th. Among those 65 and older, suicide by firearm is the 3rd leading cause, while homicide by firearm drops out of the top 10 (U.S. Centers for Disease Control and Prevention, n.d.).

The proliferation of firearms feeds the high rates of suicide and homicide by firearm in the United States. According to multiple studies, unintentional firearm deaths, suicides by firearm, and homicides by firearm all occur at far greater frequency as the number of firearms increases (Webster, Vernick, & Bloomberg, 2013, pp. 11–15). Furthermore, the United States holds an unenviable position among developed nations, as "year after year, many more Americans are dying by gunfire than people in any other high-income nation" (Webster, Vernick, & Bloomberg, 2013, p. 15). In view of the high rate of firearm deaths and their intimate relation to the high number of firearms in this country, experts have identified that the Brady Act is inadequate in several respects:

a. The lack of required background checks for all gun sales, including private sales at gun shows and online (Law Center to Prevent Gun Violence, 2012).

b. The lack of a strong federal law criminalizing gun trafficking (Kessler & Trumble, 2013).

c. The ready availability of military-style weapons and high-capacity magazines with more than 10 rounds (Webster, Vernick, & Bloomberg, 2013, p. 148).

d. The Tiahrt Order passed by Congress, preventing the public from knowing the identities of gun traffickers and how they operate (Webster, Vernick, & Bloomberg, 2013, p. 137).

For purposes of this planning and analysis, only the lack of required background checks for all gun sales — including private sales at gun shows and online — will be addressed.

2. Describe the History of the Problem

The lack of background checks for private gun sales has existed since the Brady Act's enactment in 1993 (Law Center to Prevent Gun Violence, 2012). The original intent was to allow members of the same family, friends, and neighbors to sell firearms to each other without the burden of background checks. However, gun dealers learned to exploit this gap. The problem has only worsened over time. When the Brady Act was enacted, there were merely 130 websites; as of 2012, there were 634 million websites (Kessler & Trumble, 2013). Gun control proponents have tracked this loophole and its effects on sales. Analyzing internet sales in 10 states listed on one website in June and July of 2013, researchers found more than 15,000 firearms — one-third of them semi-automatic — offered for "private" sale without background checks at any point in time (Kessler & Trumble, 2013).

3. Examine Potential Causes of the Problem

The lack of adequate background checks is traceable to at least three causes: the exploitation of a family/friend/neighbor loophole by sellers wishing to defeat the federal background check requirement; the wildly burgeoning internet, which facilitates the sale of practically innumerable products including firearms; and the refusal of senators from 10 states — Alaska, Arizona, Arkansas, Georgia, Montana, Nevada, New Hampshire, North Dakota, Ohio, and Tennessee — to close the online loophole (Kessler & Trumble, 2013).

4. Previous Interventions That Have Tried to Change This Problem

There is one notable previous federal intervention attempting to address the lack of background checks. In April 2013, U.S. Senators Joe Manchin, Pat Toomey, Mark Steven Kirk, and Charles E. Schumer cosponsored Senate Amendment 715 to Senate Bill 649 — the "Safe Communities, Safe Schools Act of 2013" — a bipartisan bill attempting to close the loophole allowing strangers to sell firearms without background checks, both at gun shows and online. This Manchin-Toomey bill needed 60 votes to pass the Senate but was defeated by a vote of 54–46 (U.S. Library of Congress, 2013).

In addition, in response to Congressional inaction and mass shootings such as the one at Sandy Hook Elementary School in Connecticut, President Obama signed a number of executive orders to strengthen gun controls, including background checks, on January 5, 2016 (Nelson & Fields, 2016). Acknowledging that "It won't happen with this Congress. It won't happen during my presidency," President Obama nonetheless signed 23 executive orders on gun control. Five of the orders sought to close some holes in the federal background check system by urging cooperation and training and proposing the addition of 230 more FBI examiners to process background checks. The current system reportedly uses outdated technology; however, about 91% of the daily 63,000 background check requests are processed within the allowed three-day window. The President also sought to tighten the "gun show loophole" by requiring background checks for sales by any individual "engaged in the business" of selling firearms, whether or not he or she is a commercial seller.

While the President's executive orders were encouraging to gun control advocates, the President cannot fund any of his suggested measures. Funding necessarily comes from Congress, and Congressional opposition to the President's actions was clear. Representative John Culbertson stated: "I have formally notified Attorney General Lynch that I will aggressively protect our Second Amendment rights using Congress' power of the purse. I notified the attorney general that if the Department of Justice attempted to create new restrictions on our constitutional rights that I would use every tool at my disposal to immediately restrict their access to federal funding" (Ungar, 2016). In addition to federal intervention, a number of states have addressed background checks and other aspects of gun control at the state-legislature level, including California.

5. Identify Relevant Stakeholders

The problem of the lack of background checks for private sales offline and online involves several stakeholder groups. One group is individuals disqualified from firearm ownership by background checks, including someone who is:

a. Under indictment or information in any court for a felony, or any other crime for which the judge could imprison that person for more than one year;

b. Convicted in any court of a felony, or any other crime for which the judge could have imprisoned that person for more than one year;

c. A fugitive from justice;

d. An unlawful user of or addicted to marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance;

e. Ever adjudicated mentally defective or ever committed to a mental institution;

f. Discharged from the Armed Forces under dishonorable conditions;

g. Subject to a court order restraining that person from harassing, stalking, or threatening an intimate partner or child of such partner;

h. Convicted in any court of a misdemeanor crime of domestic violence;

i. Someone who has renounced United States citizenship;

j. An alien illegally in the United States; or

k. An alien admitted to the United States under a nonimmigrant visa who does not fall under one of the exceptions allowing licensing (U.S. Department of Justice — Bureau of Alcohol, Tobacco, Firearms and Explosives, 2011).

Another group of stakeholders consists of gun advocacy organizations such as the National Rifle Association. Those disqualified by background checks and the NRA would seek the broadest possible interpretation of the Second Amendment. Gun control groups — such as Third Way, the Brady Campaign to Prevent Gun Violence, and Americans for Responsible Solutions — form a third stakeholder group (Haberman, 2016). These organizations argue for tighter gun safety measures and in particular for background checks that eliminate the "private sale" loophole at gun shows and online.

6. Conduct a Systems Analysis

The justice system creates, contributes to, and maintains the lack of required background checks for all gun sales — including private sales at gun shows and online — to the extent that courts limit or strike down such requirements. Courts are called upon, at both the state and federal levels, to interpret laws, and the U.S. Supreme Court is the highest interpreter. One noteworthy example is Printz, Sheriff/Coroner, Ravalli County, Montana v. United States (95-1478), 521 U.S. 898 (1997), in which the U.S. Supreme Court struck down certain interim provisions of the Brady Act regarding background searches. The Chief Law Enforcement Officers (CLEOs) for counties in Montana and Arizona separately challenged the constitutionality of the Brady Act's interim provisions requiring them to conduct background checks until the national background check system became operative. In each case, the District Court held that the background check provision was unconstitutional but severable from the rest of the Act, leaving a voluntary system in place. The Ninth Circuit reversed, finding none of the interim provisions unconstitutional. The U.S. Supreme Court ultimately held that the interim background check requirement was unconstitutional (Cornell University Law School, 1997).

However, in a 2008 case, District of Columbia v. Heller (No. 07-290), 478 F.3d 370, affirmed (2008), the U.S. Supreme Court ruled that background checks do not violate the Second Amendment (Cornell University Law School, 2008). Furthermore, on the state level, courts throughout the United States interpret state laws regarding background checks, upholding, striking down, and/or modifying those laws.

7. Identify Barriers to Change and Supports for Change

Barriers to requiring background checks for all gun sales — including private sales at gun shows and online — would logically include: stakeholders disqualified by required background checks, such as convicted felons; gun advocacy groups such as the NRA; and "private" merchants who currently sell firearms without background check requirements. Supports for change would logically include gun control groups such as Third Way, the Brady Campaign to Prevent Gun Violence, and Americans for Responsible Solutions.

1. Write Goal Statements Specifying the General Outcome to Be Obtained

The goals statement is the closure of private-sale loopholes by requiring all gun sales — whether in primary or secondary markets, brick-and-mortar or online — to be subject to background checks.

2. Write Specific Outcome Objectives for Each Goal

The specific outcome objectives of closing private-sale loopholes are: the key result of plugging the existing gaps in the Brady Act's background check requirements; the target population of all individuals who would properly be disqualified from gun ownership; and a yearly assessment of the number of individuals refused gun sales through background checks in "private" sales currently exempt from those checks as the timeframe and specific criterion for measuring impact.

3. Participation from Different Individuals and Agencies in Goal Setting

Considering this step from the top down, one would seek the participation of: the President of the United States; the U.S. Congress; the U.S. Supreme Court; the U.S. Justice Department, including the Bureau of Alcohol, Tobacco and Firearms and the U.S. Attorney General; federal law enforcement agencies; the legislatures of all 50 states; the governors of all 50 states; state and local law enforcement; state and local courts; firearm sellers; and firearm purchasers.

4. Specify an Impact Model

The impact model is the undiluted application of U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Form 4473 requirements to all gun sales, whether in primary or secondary markets, in the United States. By requiring uniform background checks at every gun sale, this measure will eliminate the loopholes allowing otherwise-disqualified individuals to legally purchase firearms in the United States.

5. Identify Compatible and Incompatible Goals in the Larger System

The values of stakeholders such as persons disqualified by background checks and gun advocacy groups overlap in that they desire the least restriction possible on gun possession and use. The values of those stakeholders conflict with those of gun control groups — such as Third Way, the Brady Campaign to Prevent Gun Violence, and Americans for Responsible Solutions — who seek to restrict gun possession and use by individuals who would be disqualified by the standards of ATF Form 4473.

6. Identify Needs and Opportunities for Interagency Collaboration

Nationwide success of this program/policy will require the cooperation and participation of: the President of the United States; the U.S. Congress; the U.S. Supreme Court; the U.S. Justice Department, including the Bureau of Alcohol, Tobacco and Firearms and the U.S. Attorney General; federal law enforcement agencies; the legislatures of all 50 states; the governors of all 50 states; state and local law enforcement; state and local courts; firearm sellers; and firearm purchasers.

1. Choose an Intervention Approach

The intervention approach will include required application of ATF Form 4473 at every sale — whether primary or secondary, whether by gun dealers or "private" vendors, and whether at a physical location or online. Both policy and a strictly enforced program will be employed. The State of California requires comprehensive background checks, and its system appears workable. All firearm transactions must go through a Federal Firearms Licensed (FFL) dealer, who charges a fee for the background check. Enforcement is aided by requiring every handgun to be registered to its owner, thereby holding owners accountable for the disposition of every handgun. In addition, the uniform background check system can be enforced through law enforcement presence and oversight of all firearms transactions and undercover "buy and bust" sting operations by police officers. Finally, the most daunting task is assembling, training, funding, and maintaining a web task force to constantly monitor firearms transactions online, compile and report data to centralized federal agencies, and shut down websites violating the background check requirement — tracing sales from point of origin to point of delivery.

2. Program Design

The target population will be every firearms seller and every firearms purchaser. Participation of the target populations will be triggered by the act of selling firearms — whether primary or secondary, whether by gun dealers or "private" vendors, and whether at a physical location or online. Use of background checks at the point of sale will follow current procedures but will be applied to every firearms sale. All firearm transactions must go through an FFL dealer, who charges a fee for the background check. Enforcement is aided by requiring every handgun to be registered to its owner. The uniform background check system will also be enforced through law enforcement presence, oversight of all firearms transactions, and undercover "buy and bust" sting operations. At the point of background check review by the FBI, hundreds of additional agents will be needed to review completed ATF Form 4473 for each prospective sale. Finally, web-based sales of firearms can be monitored, analyzed, and ideally thwarted by a web task force tailored for addressing online transactions.