Keeping Guns out of the "Wrong" Hands: The Brady Law and the Limits of Regulation

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Keeping firearms out of the hands of dangerous and irresponsible persons is one of, if not the primary goal of United States gun control policy.(1) The logic of restricting gun ownership to responsible, law-abiding citizens is immediately apparent and relatively uncontroversial, even to the National Rifle Association.(2) It reflects a widely-shared belief that members of certain social categories pose an unacceptably high risk of misusing firearms.(3) As in the case of denying a driver's license to people who are legally blind, there is a strong consensus that people who have demonstrated certain kinds of irresponsible and unstable behavior should not possess weapons which are capable of injuring or killing the possessor or others.(4) Federal gun control law attempts to strike a balance between permitting law-abiding citizens to obtain firearms with relative ease and preventing certain categories of presumptively irresponsible people from purchasing and possessing firearms. Those that are conclusively presumed irresponsible include ex-felons, former mental patients, drug addicts, juveniles, and illegal aliens.(5)

Both federal substantive criminal law and federal administrative law contribute to the regulatory effort. The former makes it a crime for ex-felons and other ineligible persons to possess a firearm. The federal "felon-in-possession" law makes it a crime for any person convicted of a state or federal felony to possess a firearm;(6) the same prohibition also applies to drug users, former mental patients, and illegal aliens.(7) Such criminal laws, in theory, work ex-ante by deterring ex-felons and other ineligibles from purchasing or even possessing a firearm and ex-post by confiscating their weapons and punishing them for unlawful possession.(8)

Federal regulatory law, especially the recently enacted Brady law, seeks to regulate firearms transfers in such a way that ineligible persons will not even be able to obtain a firearm and therefore, will never have an opportunity to violate the criminal law.(9) Congress established the federal regulatory foundation in the Gun Control Act of 1968,(10) which prohibits the sale of long guns (rifles and shotguns) and handguns to anyone who is: (1) not a resident of the state in which the federal firearms dealer does business;(11) or (2) under eighteen years old for long gun purchases and twenty-one years old for handguns.(12) In addition, the Act prohibits the sale of firearms to anyone who is: (1) under indictment for or has been convicted of a "crime punishable by imprisonment for a term exceeding one year";(13) (2) a fugitive from justice;(14) (3) an illegal narcotics user or addict;(15) and (4) either an adjudicated mental defective or someone who has been committed to a mental institution.(16) The Act also prohibits those listed under [sections] 922(d) from possessing firearms.(17) In 1987, Congress expanded the category of persons ineligible to purchase or possess firearms to include illegal aliens, persons dishonorably discharged from the armed forces, persons who have renounced United States citizenship, and anyone subject to a restraining order for domestic violence, harassment, or stalking.(18) Under this regulatory scheme, a person who seeks to purchase a handgun from a federally licensed dealer must provide the dealer with a written assurance that he or she is not an ineligible purchaser.(19) It is a criminal offense for a dealer to make a sale without such an assurance,(20) or to knowingly sell a firearm to an ineligible person.(21)

The Brady Handgun Violence Prevention Act of 1993(22) furthers this regulatory goal by prohibiting federal firearms licensees (FFLs)(23) from selling handguns to persons who fall into a few categories conclusively presumed to be dangerous and/or irresponsible. These categories include ex-felons, adjudicated mental defectives, former mental patients, illegal drug users and addicts, juveniles, persons dishonorably discharged from the armed forces, persons who renounced U. …