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The Restricted Firearms License: A Proposal to Preserve Second Amendment Rights and Reduce Gun Violence in the United States

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This post was co-written with Egon Cohen of the Temple University Religion Department.

This past week, Vice President Biden held meetings with a wide variety of gun policy organizations in order to address the problem of gun violence in America. So far, the NRA and other gun lobby groups have introduced proposals that would put armed guards in schools, and regulate the creative process of filmmakers and video game programmers. It goes without saying that neither of these steps would materially alter the ability of criminals and mentally unstable individuals to acquire firearms.

On the other hand, most gun control proposals have consisted of three principal elements: (1) Requiring all firearms transfers to be subject to National Instant Criminal Background Check System (NICS) approval, (2) limiting firearm magazine capacity, and (3) banning models of semi-automatic firearms that possess certain "military purpose" features. We strongly support the first principal element, which would eliminate the "gun show loophole" or lack of background checks on private party firearm sales. However, instead of the latter two elements, which together comprise what is commonly referred to as an "Assault Weapons Ban" (AWB), we have an alternative proposal: the establishment of a "Restricted Firearms License" (RFL) program that utilizes a proven extensive background check and a five-year renewable license for the ownership of handguns and semi-automatic weapons.

The reason we believe that an RFL is superior to an AWB is that most of the AWB proposals are similar -- if not functionally identical -- to the AWB that was in place in the U.S. from 1994 to 2004. This legislation limited magazine capacity to 10 rounds and banned hundreds of models of semi-automatic weapons as well as dozens of features. But despite being in place for ten years, the AWB was, by many measures, ineffective in reducing gun violence.

Gun manufacturers simply eliminated military-inspired features and continued to produce semi-automatic weapons that, while less comfortable and less maneuverable, continued to fire the same bullets, at the same speeds, and with the same rate of fire. As former Senator Ted Kaufman (D-DE) acknowledged to the New York Times, "actually banning guns was difficult. As soon as one gun is outlawed, another pops up." Moreover, most provisions of the AWB are concerned with semi-automatic "assault rifles" and not with the handguns that are responsible for 86 percent of gun crime (in 2008, the U.S. Supreme Court ruled that a comprehensive handgun ban would be unconstitutional).

However, while the AWB was not as effective as envisioned, there is another piece of legislation that has been undeniably effective in curbing gun violence: the National Firearms Act (NFA) of 1968. The NFA requires that certain types of particularly dangerous weapons -- such as fully automatic firearms, silencers, and short-barreled shotguns -- be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), and that the purchaser be required to undergo a comprehensive background check and pay a $200 transfer tax.

The NFA's stringent background check requirement is focused on ensuring that NFA weapons do not fall into the wrong hands and registration with BATFE makes these weapons much less appealing to criminals. Despite the existence of 456,930 BATFE registered fully automatic firearms, there have been only two documented murders involving NFA registered machine guns since 1968. In fact, the NFA regime has been so successful in regulating these weapons that crime involving illegal, non-registered fully-automatic machine guns (as opposed to semi-automatic weapons) is exceedingly rare.

A new AWB would not prevent a firearms enthusiast like Sandy Hook killer Adam Lanza's mother from acquiring AWB-compliant handguns and semi-autos (as we noted earlier, a complete ban would be unconstitutional). However, an NFA-style background check would have investigated the Lanza household and therefore, at the very least, have had a real chance of keeping the weapons that killed Mrs. Lanza and 26 others out of her son's hands.

Thus, our proposal follows the example of the NFA: Using a proven, comprehensive background check process to ensure responsible ownership. And this sort of program is by no means unique. Every state in the union requires a license to drive a car. Why? Because while there are many legitimate uses for cars, they are also dangerous machines and we, as a society, have decided it is reasonable to set minimum standards to ensure their safe use.

We fail to see how it is any less reasonable to require a license for those who choose to own the handguns, semi-automatic rifles, and semi-automatic shotguns that are primarily responsible for gun violence in the U.S.

This is also the only constitutional method for ensuring that all of these weapons are effectively regulated and is essential to protecting our citizens from random gun violence at the hands of unstable individuals.

Ultimately, the Restricted Firearms License program represents a rare "win-win" for all the stakeholders in this uniquely passionate and contentious debate. Law-abiding gun owners get to retain their property. Those who do not wish to own guns may sleep safer knowing that the people who do own guns have been thoroughly vetted by a federal law enforcement agency and not a stranger from a gun show or internet forum. The gun manufacturers get to keep making guns. But most importantly, the RFL will spell an end to the days when individuals with documented histories of mental instability and violent behavior -- or the persons in whose households they reside -- can so easily obtain weapons for slaughter.

Our full policy proposal, with detailed analysis and references, will appear shortly in Yale Law & Policy Review Online, and a preprint is available for download on the Social Science Research Network. We encourage you to download the RFL proposal and share it with your friends, neighbors, and members of Congress.