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Comments of the Violence Policy Center on Regulations Proposed by the Bureau of Alcohol, Tobacco and Firearms to Implement the Brady Handgun Violence Prevention Act, Notice Number 857, May 20, 1998 The Violence Policy Center1 (VPC) prepared the following comments on notice number 857, the proposed rule to implement public law 103-159, the Brady Handgun Violence Prevention Act, as published at 63 Fed. Reg. 8379 on February 19, 1998. These comments are endorsed by the Children's Defense Fund, the Lutheran Office for Governmental Affairs, the National Coalition Against Domestic Violence, the National Council of Jewish Women, Physicians for Social Responsibility, Orange County Citizens for the Prevention of Gun Violence, the Women's Shelter of Long Beach, the Colorado Coalition Against Domestic Violence, Georgians Against Gun Violence, the Illinois Council Against Handgun Violence, Citizens For Missouri's Children, Pennsylvanians Against Handgun Violence. The NICS Exemption Should Not Apply to Concealed Carry Permits Our comments are confined to one specific aspect of the proposed rule: to allow state permits to carry concealed firearms (hereinafter CCW permits) issued within the last five years to substitute for the national instant criminal background check system (NICS). The above-listed organizations strongly oppose this proposal. An Exemption from NICS for Concealed Carry Permits is Not Supported by the Statutory Language or by Legislative History The Brady Handgun Violence Prevention Act at 18 U.S.C. � 922 (t)(3)(A)(i)(I) exempts from the national instant criminal background check system transactions in which a person presents to a federally licensed firearms dealer a permit that allows the purchaser "to possess or acquire" a firearm. It is clear from both the plain meaning of the statutory language as well as from legislative history that this provision is intended to apply only to permits specifically authorizing the purchase of a firearm. There is no support for the interpretation that this provision was intended to include state-issued permits to carry concealed handguns. In fact, the inclusion of CCW permits within the NICS exemption was rejected in 1991 by the Judiciary Committee of the House of Representatives and by the full House of Representatives. Representative Harley Staggers (D-WV) offered an amendment that would have exempted from an instant background check system persons holding permits authorizing that person to "purchase, possess, or carry2 a firearm." The Staggers amendment was rejected on a resounding vote of 11 to 23 when offered as a substitute to the Brady Bill at the Judiciary Committee.3 When Representative Staggers offered his amendment as a substitute for the Brady Bill on the floor of the House, it was rejected by a roll call vote of 193 to 234.4 Exempting Concealed Carry Permit Holders From NICS Would Significantly Expand the Number of Exempt Transactions The proposed exemption for individuals holding state concealed carry permits would expand from 12 to 41 the number of states with permitting systems that would exempt many gun buyers from the NICS background check. Only 12 states currently have requirements that all handgun (and some long gun) purchasers obtain a license before they can legally buy a gun, while 29 states without permits to purchase now have systems under which applicants meeting a minimum set of criteria must be issued a permit to carry a concealed weapon. Exempting Concealed Carry Permit Holders from NICS Would Allow Many Persons with Criminal Records to Escape Detection VPC research has documented the inadequacy of the concealed carry background check systems in Florida and Texas, the two most populated states with concealed carry laws. The VPC has conducted three in-depth studies of the concealed carry permitting systems in these two states. 5 VPC research has shown that: 1) many individuals with criminal records are able to obtain concealed carry permits; and 2) many concealed carry licensees commit crimes subsequent to licensure yet are able to retain valid concealed carry licenses for months or even years. For example, VPC analysis of records obtained from the Florida Division of Licensing found that between October 1, 1987 and May 31, 1995, at least 167 individuals were issued concealed carry permits despite previous criminal convictions that should have made them ineligible for licenses. Many of the convictions were for violent crimes, including homicide, or weapons violations. It took the state of Florida up to 25 months to identify their criminal records and begin revocation proceedings for some license holders. VPC analysis of Florida records also disclosed examples of persons who had no previous criminal history, obtained a concealed carry license, committed a serious crime�and yet were able to keep the concealed carry license for months. For example, Raul Garcia was issued a concealed carry license in November 1992. In October 1993 Garcia was arrested on felony charges of conspiracy to traffic in cocaine and trafficking in cocaine. Garcia was found guilty of both charges in January 1995 and sentenced to five probation. Garcia's license was revoked 10 months later in November 1995. Moreover, the VPC's 1996 study of the Florida concealed carry licensing system found that the rate at which Florida's concealed weapons law is arming criminals is increasing. Concealing the Risk reveals a one-year increase of nearly 30 percent over the previous seven-year total. This study also found 65 license holders who received concealed carry permits despite having disqualifying convictions on their records. One of these individuals held a license for more than two years. VPC analysis of data from the Texas Department of Public Safety suggests that concealed carry licensees may be more prone to firearm-related violations than the general public. The VPC calculated that Texas concealed handgun license holders were arrested for weapon-related offenses at rates significantly higher than that of the general population of Texas aged 21 and over. In the first six months of 1997, the weapon-related arrest rate among Texas concealed weapons license holders was more than twice that of the general population of Texas aged 21 and over. Furthermore, the Philadelphia Inquirer has documented how a Pennsylvania concealed carry permit holder, Dana Mason, used his license to escape the existing Brady Law background check and buy more than 50 handguns and assault weapons that he trafficked to street criminals in Philadelphia. Regional ATF agents were responsible for Mason's capture. The experience of states with concealed carry licensing systems confirms the dangers inherent in allowing state CCW licenses to substitute for the Brady Law-mandated NICS background check. ATF's own agents have had experience with how dangerous exempting CCW holders from the Brady background check can be. In fact, a senior ATF agent is quoted in the Inquirer story as stating, "We are experiencing more straw purchasing in Philadelphia because they changed the requirement for the permit to carry." The new NICS background check can serve as a valuable tool to help identify potential gun buyers�including those who currently hold state-issued CCW permits�who have a criminal record. Concealed carry permitting systems should not be allowed to function as a huge loophole in the new federal background check. The Violence Policy Center, the Children's Defense Fund, the Lutheran Office for Governmental Affairs, the National Coalition Against Domestic Violence, the National Council of Jewish Women, Physicians for Social Responsibility, Orange County Citizens for the Prevention of Gun Violence, the Women's Shelter of Long Beach, the Colorado Coalition Against Domestic Violence, Georgians Against Gun Violence, the Illinois Council Against Handgun Violence, Citizens For Missouri's Children, Pennsylvanians Against Handgun Violence, and the Women's Shelter of Long Beach, California strongly urge ATF to consider the findings of the enclosed VPC research. We furthermore strongly urge ATF to amend the final rule to implement the Brady Handgun Violence Prevention Act to delete any reference to concealed carry permits as a substitute for the NICS background check. Respectfully submitted,
M. Kristen Rand, Esq.
1) The Violence Policy Center is a national educational foundation that conducts research on violence in America and works to develop violence-reduction policies and proposals. The Center examines the role of firearms in America, conducts research on firearms violence, and explores ways to decrease gun death and injury. 2) H.R. 1412, the "Felon Handgun Purchase Prevention Act of 1991," �2(a)(2)(A). 4) 137 Cong. Rec. H2831 (May 8, 1991). 5) Concealed Carry: The Criminal's Companion, Florida's Concealed Weapons Law�A Model for the Nation? Violence Policy Center (November 1995); Concealing the Risk: Real-World Effects of Lax Concealed Weapons Laws, Violence Policy Center (1996); License to Kill: Arrests Involving Texas Concealed Handgun License Holders, Violence Policy Center (January 1998).
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