The Consumer Product Safety Commission (CPSC) regulates the safety of products used “in and around the house” and in recreation. The Food and Drug Administration (FDA) monitors the food supply and also evaluates drugs before they are permitted on to the market. The Environmental Protection Agency (EPA) is in charge of toxic chemicals and ensuring that pesticides presenting unreasonable effects on health or the environment are not sold.
Unlike other inherently dangerous consumer products, however, firearms are virtually unregulated. No federal agency is empowered to ensure that firearms manufactured and sold are safe for their intended use. Moreover, no entity has the authority to prohibit the manufacture or sale of firearms technology that poses a significant threat to public safety. Although the ATF has limited authority to regulate commerce in firearms and ammunition, it has virtually no authority to regulate safety. Furthermore, it has no explicit authority to regulate such firearm- related products as laser sights.
The unique position of firearms in the pantheon of consumer products has more to do with the special niche society has carved out for them than with a rational debate on how best to regulate the industry and its products. Regardless of how we came to where we are today, firearms are viewed, and hence treated, differently from all other products.
For most products, comprehensive regulation is enacted when the obvious dangers of the product can no longer be ignored or the death toll associated with a class of products is determined to be unacceptable. Yet firearms have remained immune from regulation. The first step toward reducing firearms violence is to recognize firearms for what they are–inherently dangerous consumer products. The second is to design a comprehensive, workable regulatory framework that can be applied to firearms and firearms products.
Ultimately, meaningful regulation of the manufacture, distribution and sale of firearms, firearms products and ammunition will come about only through comprehensive legislation giving the ATF the regulatory tools wielded by other federal health and safety agencies whose job it is to protect citizens from unreasonably dangerous and defective products.
As with products regulated by the EPA, the CPSC and the FDA, there is a consensus that some firearms should remain available to the civilian population. There is also a consensus that more controls should be enacted. Before progress toward a safer, less violent country can be made, there must be a recognition that regulation of firearms is not inconsistent with continued availability. In short, it is possible to create a regulatory system that treats firearms just as we currently control other potentially dangerous consumer products.
The foundation for comprehensive firearms regulation is an expansion of the authority of the ATF. Just as regulation of pesticides has not led to an outright ban on their use, neither would expanding the ATF’s authority result in a gunless America. It could, however:
- Reduce the availability of specific categories of weapons shown to pose an unreasonable risk of injury.
- Place controls on an industry that today is free to manufacture and sell firearms or related products without any consideration of the consequences to the public’s health and safety.
- Protect firearms owners from products that present a serious risk of injury because of a hazardous design characteristic or manufacturing defect.
- Rein in the abuse of federal firearms dealer licenses.
A review of the origins of federal regulation of different categories of products is instructive in placing firearms in their proper perspective as potentially dangerous consumer products.
Consumer Product Safety Commission
When the CPSC was created in 1972, the enabling legislation that passed the Senate included firearms and ammunition within the purview of the CPSC. The House bill, however, specifically exempted firearms and ammunition, and this version was adopted by the conference committee. Today the agency is responsible for regulating virtually every household or recreational product. The CPSC oversees everything from baby walkers and coffee makers to all-terrain vehicles. The agency even has jurisdiction over pellet and air guns.
The CPSC’s creation represented a recognition by Congress that a comprehensive strategy for product safety was necessary to replace the ad hoc approach employed previously. The CPSC has the power to ban products, set mandatory standards, issue recalls of defective products, monitor industry compliance with standards and disseminate safety information to the public. In addition, the CPSC maintains the National Electronic Injury Surveillance System, a network of approximately 90 hospital emergency rooms that reports product-related injuries. The CPSC then conducts in-depth follow-ups on a select number of cases. This system allows the CPSC to identify emerging product hazards and to quantify the injury rates associated with the products within its jurisdiction.
National Highway Traffic Safety Administration
The National Highway Traffic Safety Administration oversees the safety of automobiles and related equipment. The agency has the power to set mandatory standards necessary to protect the public against unreasonable risk of accidents resulting from design and manufacturing defects as well as unreasonable risk of injury or death in the event that accidents do occur. The agency may also issue recall orders.
The House Report on the Highway Safety Act of 1966 set forth the need for legislation: “Despite the pre-eminent role of highway transportation in American society and in our national economy, we have failed to develop a realistic and comprehensive safety program. As President Johnson noted in his transportation message on March 2, ‘Neither private industry nor government officials concerned with automotive transportation have made safety first among their priorities. Yet we know that expensive freeways, powerful engines and smooth exteriors will not stop the massacre on our roads. It is therefore well past the time when the United States should have a comprehensive nationwide program to reduce the toll of death and destruction on our highways.’ ”
Environmental Protection Agency
The Environmental Protection Agency regulates the manufacture, sale and use of pesticides pursuant to the Federal Insecticide, Fungicide and Rodenticide Act, enacted in 1947 in response to the rapid development of new pesticide chemicals and the widening scope of their use. No pesticide may be sold in the United States that has not been registered under the FIFRA. In addition, under the Federal Food, Drug and Cosmetics Act, the EPA establishes acceptable levels of pesticide residues that may be present in food.
Although many in Congress supported continued pesticide use, there was a general recognition that controls needed to be exerted over their manufacture, sale and use. The report of the Senate Agriculture and Forestry Committee stated: “Their wise control based on a careful balancing of benefit versus risk to determine what is best for man is essential.”
If the EPA determines a new pesticide presents an unreasonable risk, the agency may deny the registration altogether, restrict use to specific crops or geographic areas or require that it be applied only under the supervision of specially trained applicators. This logic also works in the case of firearms. Where the risks associated with a specific class of firearms are unreasonable when compared with the benefits of use, that use can be controlled without threatening the availability of weapons whose benefits are viewed as exceeding the risk.
Food and Drug Administration
The Federal Food, Drug and Cosmetics Act authorizes the FDA to oversee the development and marketing of drugs and medical devices. Under the FFDCA, the FDA must review a drug before it may be tested on humans or marketed. Final FDA approval of a drug follows an intensive process involving clinical trials and extensive filings of information about the new drug. Once the product is approved, the agency mandates proper dosages and labeling. Subsequent to approval, the FDA monitors the use of the drug through post-market surveillance and reporting by the manufacturer. Drug makers must report serious and unexpected reactions.
The Appropriate Approach for Firearms
Each system of regulation offers approaches useful in constructing a strategy to effectively regulate firearms as potentially hazardous consumer products, and some are exceptionally instructive.
For example, the primary reason for the creation of the CPSC was the acknowledgement that the number of deaths and injuries associated with certain consumer products was unacceptable, combined with the realization that a piecemeal approach to product regulation was ineffective. The parallels to gun control are striking. As illustrated by the debates over armor-piercing ammunition, plastic nondetectable handguns and assault weapons, Congress persistently deals with these issues bit by bit, while the ATF can take no action on its own to deal with known hazardous products.
Also, Congress tends to consider gun-control legislation only in response to tragedy. While the killings of Robert Kennedy and Martin Luther King, Jr. helped ensure passage of the Gun Control Act of 1968, the massacre of schoolchildren in Stockton, Calif., in 1989 sparked efforts to restrict semiautomatic assault weapons. As the proponents of the CPSC recognized more than 20 years ago, this is not an efficient way to conduct public policy.
The common thread running through all of these regulatory strategies is the protection of consumers and the general public from unreasonable risk of injury or death. Using the unreasonable-risk standard, a workable legislative framework can be developed that incorporates aspects of the regulatory approaches applied to other dangerous products but that recognizes the unique properties of firearms and the firearms industry.
The ATF and Comprehensive Regulatory Authority
The ATF already possesses the expertise and experience to effectively regulate firearms. Therefore, comprehensive regulatory authority should be vested in the ATF with accompanying budget and staff increases where necessary. Although suggestions have been made to place firearms and ammunition under the jurisdiction of the CPSC, this agency has suffered from severe budget and staff cuts, leaving it unable to effectively regulate the 15,000 products already within its jurisdiction.
ATF should be empowered to operate as a health and safety agency with the ability to:
- Set safety standards for firearms, monitor compliance with such standards and issue recalls of defective firearms.
- Restrict the availability of specific firearms, classes of firearms and firearm products when appropriate, i.e., where the products present an unreasonable risk of death or injury and no feasible safety standard would adequately reduce the risk.
- Take immediate action to stop the sale and distribution of firearms or firearms products found to be “imminent hazards.”
It is essential that the ATF develop complete data on the deaths and injuries associated with firearms. Even today, available data are limited to incidents of murder compiled for the FBI’s Uniform Crime Reports and information culled from death certificates. There exists no coordinated data collection on gun injuries and deaths that includes such vital information as the specific type of weapon and caliber. This sort of data is critical for the ATF to identify weapons and weapon types that present a particular public hazard and help prioritize its compliance and enforcement efforts.
Expansion of the ATF’s Jurisdiction
The ATF’s jurisdiction should be expanded to give the bureau explicit authority over such firearm-related products as ammunition and laser sights. Moreover, the ATF’s jurisdiction should be explicitly expanded to encompass such weapons as rocket and grenade launchers. Currently, the ATF can regulate only the actual rocket or grenade.
The ATF’s jurisdiction should also be expanded to include nonpowder firearms (air and pellet guns). Many adult shooters use air and pellet guns as target weapons, and many new nonpowder weapons more closely resemble traditional firearms. Recognizing this, it would be logical to transfer jurisdiction over them from the CPSC to the ATF.
Pre-Market Approval Power
Extensive pre-market testing like that utilized by the FDA for drugs and medical devices does not seem appropriate in the case of firearms. The ATF, however, should be given pre-market notification of any and all new firearms technology and firearms products that might pose a threat to public safety and should have authority to prevent the marketing of new firearms or firearm products such as caseless ammunition, armor-piercing ammunition and nondetectable firearms that present a threat to public safety.
Regulation of Firearms Manufacturers, Importers and Dealers
The ATF must be given enhanced authority to regulate the manufacturers, importers, distributors and dealers in firearms. Stricter regulation of dealers in automatic weapons should also be imposed.
Bans on Specific Classes of Weapons
The availability of specific classes of firearms where the evidence clearly demonstrates that such weapons present an unreasonable risk of death and injury should be severely restricted.
Weapons regulated under the National Firearms Act–including silencers, “destructive devices” such as missiles used in grenade and rocket launchers and land mines–should be banned from future sale.
Weapons that fall within the definition of assault weapons should be banned in the same manner as were machine guns in 1986, and no new versions of assault weapons should be made.
Handguns should be banned from future sale except for military and law- enforcement personnel.
These are the primary components of the legislative model developed by the Violence Policy Center that would explicitly authorize the ATF to operate as a health and safety agency.