YESTERDAY, I POSTED ABOUT THE TITLE of a Washington Monthly article: “License to Kill: How the GOP helped John Allen Muhammad Get a Sniper Rifle.” I pointed out that the Bushmaster in question is what is more commonly called an assault weapon and appears to have morphed into a “sniper rifle” in response to the political needs of gun-control groups, and noted that blaming the GOP seemed rather over the top.
In response (at least, their email implied it was in response) the Washington Monthly has now made the entire text available online, so you can read it and make up your own mind. There’s nothing in there addressing the “sniper rifle” question, and the article certainly seems to blame the gun — and the Republicans — more than it blames, say, the actual shooter. This overwrought paragraph should illustrate what I mean:
One such gun was a .223-caliber semiautomatic Bushmaster XM15 rifle, which Bull’s Eye received from the manufacturer on July 2 of last year. On Sept. 21, a bullet from that gun blew through the back of a liquor store manager in Montgomery, Ala. (she died in the emergency room soon after). Two days later, another bullet burrowed through the head of a beauty store manager in Baton Rouge, La., who died instantly. Between Oct. 2-3, bullets from the gun ripped through the bodies of six people in Montgomery County, Md., killing all of them. Over the next three weeks, the gun claimed seven more victims–including a bus driver, a female FBI analyst, and a 13-year-old schoolboy–killing four of them. Finally, on Oct. 24, law enforcement authorities found the Bushmaster in the back seat of a blue Chevy Caprice occupied by John Allen Muhammad and John Lee Malvo.
Note that the gun and bullets are apparently responsible for the deaths, not Muhammad and Malvo, who in this report merely occupied a Chevrolet Caprice — an offense against automotive taste, perhaps, but no more.
The gist of the complaint is that, because of politics, the ATF lacks enforcement power. I don’t know if this is true — that’s more Dave Kopel’s department, and I’m no Dave Kopel. (Nor, as we’ve established, am I Michael Barone). I only know a couple of gun dealers, but my impression is that they take the ATF and its regulations seriously. That’s hardly a statistically valid sample, though.
Read it and make up your own mind.
UPDATE: I’m not Dave Kopel — but Dave Kopel is, and he emails as follows:
The important thing that the Wash. Monthly leaves out from its description of why Congress limited BATF’s enforcement powers was BATF’s egregious abuse of civil liberties under FOPA. Some of the details are in “No More Wacos,” and also in my Oklahoma City Law Review article, which is available at www.davekopel.org
The short version is that a Congressional investigation officially concluded that seventy-five percent(!!) of BATF prosecutions were constitutionally improper. Agencies like IRS have had their powers curtailed for an abuse rate far below that. It’s true that DEA has a lot of powers that BATF doesn’t, but that doesn’t mean that the DEA model is right. There’s been plenty of abuse by DEA, too, but DEA doesn’t have a powerful watchdog.
The figure about a high percentage of crime guns traced to about 1% of FFLs is less impressive than it sounds. There are a lot of FFLs which are very low volume dealers, selling a few dozen guns a year, as an adjunct to a small business, or as a weekend activity. In major metro areas, the small number of major gun stores will account for a very large percentage of guns sold. Those large stores which sell to customers who live in poor neighborhoods are going to show up in traces quite frequently, no matter how scrupulously the dealers obey the law; some of the customers of that dealer are going to have their guns stolen, and those guns will turn into crime guns. That happens a lot more to a dealer in central Detroit than to a dealer on the Upper Peninsula, but it doesn’t prove that BATF needs new powers to use against the Detroit store.
The claim that dishonest gun dealers are immune from inspections 364 days a year is nonsense. The one-per-year limit applies only to random investigations involving no probable cause or suspicion. There is no limit on the number of audits which may be conducted pursuant to a genuine criminal investigation.
The fundamental thing wrong with the article is that he complains that the sniper shootings were caused by the Republicans/NRA because BATF didn’t shut down Bulls Eye. (Of course there’s the absurd presumption that the killers would not have been able to obtain a gun from another store, or from somewhere else.) But if Bulls Eye is in fact guilty of everything that the author charges, then BATF had full power to have Bulls Eye’s FFL revoked. Once again, we have a case where the existing law wasn’t enforced, and the gun prohibition groups then turn around and claim that more laws are needed.
Hypothesizing that BATF failed in this case, perhaps the solution isn’t to demand more powers for a failed (supposedly) agency which egregiously abused greater powers when it had them. Instead, we need to begin thinking about whether a federal agency should be the main licensing agency for retail businesses. States are competent to license doctors and liquor stores — why can’t they be the ones to license firearms dealers? Federal licensing is a relic of a 1938 federal law, and like a lot of economic regulation from that era, is obsolete, and never worked very well to begin with. How about retaining existing restrictions on interstate gun sales, turning the licensing of firearms dealers over to the states (some states license dealers already, which is duplicative), and sending the BATF out to conduct criminal investigations of terrorists attempting to obtain guns. Of course these criminal investigations could legimately include investigations of stores suspected of selling to criminals.
So there you are. I like this business where I mention people and a few hours later have email from them answering my questions. I wonder if Britney Spears is really — no, never mind. Let’s not go there.
UPDATE: Reader David Lonborg (not Britney Spears) writes:
OK, I read the WM piece. And you’re right, it’s pretty horrendous. Maybe Mr. Kendall ought to consider the possibility that an awful lot of us find the idea of more “felony record-keeping charges” a lot scarier than the occasional armed nut.
Indeed.
ONE MORE UPDATE: Kendall replies:
I appreciate the interest you and Mr. Kopel have taken in the story I wrote in The Washington Monthly. Let me address your main criticisms.
First, while aficionados may object to using the term “sniper rifle,” the Bushmaster was mounted with a scope and a bipod, and was capable (as we’ve seen) of murdering people from several hundred yards away. It has been referred to as a sniper rifle by the nation’s leading newspapers, wire services, and television stations.
Second, the article clearly does not argue that Republicans and the NRA “caused” the killings, as Mr. Kopel says; I argue that restrictions on ATF’s ability to crack down on wayward gun dealers made it far easier for the snipers to get their weapon. Mr. Kopel states that ATF had full power to revoke the license of the store in question, Bull’s Eye Shooter Supply. While that’s technically true, and I say in the piece that ATF should have done more, Kopel is dodging the central point: that the best way to enforce better compliance from stores like Bull’s Eye is with penalties short of shutting them down–fines, temporary suspensions, etc. These more modest penalties are precisely the ones that the NRA and GOP made sure that ATF didn’t have. This paralyzes ATF by putting them in the position of either putting a store owner out of business
completely, a rather draconian move, or doing nothing at all.
Kopel argues that there were ATF abuses before the 1986 restrictions were added, but the way to solve abuses is by disciplining the abusers, not robbing an agency of the tools it needs to do its job. If some police officers misuse their firearms, we don’t respond by stripping the police force of its weapons.
Kopel says our statement that ATF can only audit a dealer once a year is nonsense, arguing that there is no limit on the number of audits than can be conducted in a criminal investigation. But we’re talking about civil audits, not criminal ones. And ATF can only conduct a civil audit on a dealer once a year. If ATF had more flexibility in its ability to audit stores, the bureau could do more to prevent guns from hitting the streets, instead of having to wait until they’ve been used in crimes.
Kopel also takes issue with the data that show a high percentage of crime guns are traced to about 1 percent of FFLs, arguing that many FFLs in the remaining 99 percent are low volume dealers and located in more rural areas. So what? The point of the article is that ATF is restricted in its ability to discipline stores within that 1 percent, regardless of their volume or where they’re located. Of course stores near high crime areas will have more crime guns traced back to them.
Some of those stores are doing nothing wrong. Others, through sloppy procedures, or out-and-out law breaking, are creating a menace to their communities. The gun store where the sniper suspects got their gun may be one of them. Our argument is that ATF is hamstrung in its ability to pursue precisely these bad actors.
This is more in answer to Kopel’s point than to mine — and in particular doesn’t really answer my point about the blame-the-gun character of the language that I excerpted, which pervades the article. Nor — given the generally ignorant and biased treatment of firearms in the mass media — does the fact that newspapers called it a “sniper rifle” make it correct. Monthly magazines of ideas, like the Washington Monthly, are supposed to take the time to get things like that right in a way that daily papers can’t.
What’s disturbing about the efforts to call the Bushmaster a “sniper rifle” is that they dovetail so neatly with the latest campaign by advocacy groups. When journalists use the latest buzzphrase from anti-gun groups under circumstances where it really doesn’t fit, it suggests that they’re in the tank with those groups, or that they are sufficiently ignorant about the subject matter that they swallow the groups’ points whole. And here, as near as I can tell, is their strategy:
“Saturday Night Specials” (cheap handguns) = Bad, must be banned
“Military Style Handguns” (expensive handguns) = Bad, must be banned
“Assault Weapons” (inaccurate, short-range rifles) = Bad, must be banned
“Sniper Rifles” (accurate, long-range rifles) = Bad, must be banned
As I said in my original post pointing this out, I think I’m starting to see a pattern here. And when an article seems to fit too neatly with that pattern, then I do tend to find it less credible.
FINAL UPDATE: Kopel replies to Kendall:
1. Mark Twain is reported to have said, “If a hundred people call a cow a dog, it’s still a cow.” The Bushmaster isn’t a “sniper rifle,” and no-one who knows anything about firearms would say that it is. There are thousands of guns which use scopes and bipods and which can kill from hundreds of yards. Only a small fraction of these guns are “sniper rifles.” A cow has four legs and two eyes, and lives in multi-animal social groups, but the fact that a cow and a dog share some attributes which are also shared by many other animals doesn’t mean that you can call a cow a dog. Even if the Associated Press calls a cow a dog, the fact that daily news outlets make a mistake doesn’t justify the mistake being copied by a monthly magazine article that is supposed to be based on in-depth research.
2. BATF’s abuse rate of 75% — according to the findings of the U.S. Senate Subcommittee on the Constitution — wasn’t the result of a few bad agents. Such an abuse rate can only be the result of a pervasively flawed institutional culture. I don’t think it