In general terms, licensing and registration proposals usually include the following components.
License or Permit to Purchase
Licenses or permits to purchase are designed to restrict those who can legally buy specific categories of firearms. Prior to obtaining a specified class of firearm, the purchaser must fill out a license or permit application form with the licensing authority (usually administered at the state or local level) and pay all required fees. A background check—ranging from local police approval or other state or local criteria to a computer check through the National Instant Check System—is then conducted. If the purchaser is approved, a license or permit is issued to the applicant. Licenses are of varying duration and often do not limit the number of weapons a person can buy. In some states, permits are issued to the applicant for each specific weapon acquired.
Unlike the licensing systems of many foreign nations, current federal proposals in the United States are shall-issue, that is, the licensing authority must issue a license to anyone who is not in a restricted category. Most foreign licensing regimens are may-issue, that is, they are needs-based licensing systems under which the licensing authority retains discretion to withhold licenses. That discretionary authority has been used to severely limit civilian access to specific classes of weapons, most notably handguns.
So what does U.S.-style shall-issue licensing add to current law? The background check in an ideal shall-issue licensing system would increase the ability to identify those in prohibited categories attempting to purchase a firearm through legal channels. A licensing system could also be used to expand the background check from solely retail sales at gun stores to include all secondary, private sales conducted intrastate, such as those at gun shows or between private individuals. In addition, the application process itself could discourage sales to casual buyers. It has been argued that the process itself would increase owner responsibility, both through a “safety training” requirement and the threat of a misused weapon being traced back to its original owner.
However, outside of inserting the license itself into the transaction, most of the benefits promised under a licensing regimen would be accomplished just as easily by expanding the Brady Law to intrastate secondary sales and expanding the list of prohibited categories. In addition, as will be seen later in this study, safety training may in fact place gun owners and their families at increased risk. And finally, whatever incentives licensing could in theory provide to limit irresponsible gun use are for the most part already available under current civil liability law.
It has become common to think of registration as always existing in tandem with licensing. But what is registration and what does it have in common with licensing? Registration involves the creation of a master list on which national, state, or local authorities record the ownership of specific firearms owned by citizens. A basic registration system would in fact add more to the existing National Instant Check System than would licensing. For example, the increased information generated by a registration system could speed the tracing of firearms used in crime and could aid police in identifying the type(s) of firearms to which an individual may have access. It would also be a necessary precursor to so-called one-handgun-a-month laws, recognizing that such a system would be essential to keep track of when an individual buys a gun, as well as the type of weapon purchased. Registration would in effect function as a super tracing system, offering clear benefits to law enforcement.
However, as detailed later in this study, it would be far easier to bring handguns under the strict registration requirements of the National Firearms Act of 1934 (NFA)—the federal law governing the possession of full-auto machine guns—than to establish a completely new system. Just as importantly, pro-gun advocates strongly believe that “registration leads to confiscation.” As a result, in the gun lobby’s eyes a political debate over registration would be equal to a battle over actually banning handguns, with none of the attendant public health benefits that a handgun ban would offer.
The Car Analogy
In arguing for licensing and registration, the question is often asked, “We license drivers and register cars, why not do the same with guns?” Unfortunately, the car analogy—while appealing in its familiarity and simplicity—does not bear up under scrutiny. State systems to license drivers have been in place since 1903. Yet they had little or no bearing on the sharp reductions we have seen in motor vehicle death and injury over the past 30 years. In fact, the dramatic rise witnessed in motor vehicle death and injury during the 1950s and 1960s came at a time when all drivers were licensed and registration was commonplace. It was only after federal regulation and the creation of the National Highway Traffic Safety Administration (NHSTA) in 1970, implementation of comprehensive regulation of vehicle crashworthiness, and changes in the driving environment (breakaway lampposts, guard rails, etc.) that deaths due to motor vehicle crashes began to decline. [See Figure 1]
In promoting a system of licensing and registration in the United States, comparisons are often made to similar systems implemented in other nations with lower levels of gun death and injury. As the California State Assembly Select Committee on Gun Violence was told in December 1999: “Around the world, handgun registration and owner-licensing are acknowledged as the most effective way to minimize handgun-related death and trauma.”1 In advocating licensing and registration, the licensing and registration regimens of such foreign nations as Canada are frequently cited as proof of such systems’ effectiveness.
The Canadian comparison is understandable. Both the United States and Canada share a common language, their cultures are similar in many ways, and they are contiguous. Most importantly, Canada has a firearms death rate one eighth that of the United States. Yet to use Canada as an example of how current licensing and registration proposals in the United States could lower our nation’s rates of firearms death and injury ignores the profound differences between Canadian licensing and registration and proposals being proffered here.
Unlike all current licensing proposals in the United States, which would grant a license for a handgun to virtually anyone without a felony conviction, Canada’s (like the vast majority of non-U.S. licensing systems) is needs-based and has been used to severely restrict its handgun population. As noted in a 1998 Canadian government analysis, “Handgun ownership [in Canada] has been restricted to police, members of gun clubs or collectors. As a result, Canada has roughly 1 million handguns….”2 Just as importantly, Canada’s licensing and registration system was implemented at a time when its society had a relatively low gun density. In comparison, the United States today has an estimated handgun population of more than 65 million, with an additional 1.3 million produced for public sale each year.
The result is that Canadian licensing and registration has acted as a de facto handgun ban, limiting civilian access to these deadly weapons. The effect of this policy can be seen by comparing Canada’s handgun density to that of the United States. While only 4.8 percent of Canadian homes have a handgun, 28.4 percent of U.S. homes have such a weapon. [See Figure 2]
The lower gun death rates seen in Canada and other foreign countries, such as Australia and New Zealand, are not due to U.S.-style shall-issue licensing, but to far lower rates of gun—most notably handgun—ownership per capita as the result of extremely restrictive may-issue, needs-based licensing systems that are not even being debated in the United States. [See Figure 3] It is this wide disparity in gun density, most notably handgun density, that is the single most important factor in the differences between the firearm death rates between the U.S. and Canada, not the presence of a licensing system per se. For Canada and other foreign nations, licensing was a means to an end, not an end in itself.
The Lost Opportunity: The National Firearms Act of 1934
There was a time when a strict licensing and registration regime could have been implemented in America and perhaps had a real effect, especially on handgun violence. That time was the passage of the National Firearms Act of 1934 (NFA), which has kept the pool of legal machine guns relatively small. Handguns were initially part of this legislation, but were eventually excised from the final version of the bill as the result of pressure from the National Rifle Association.3 Under the NFA, applicants for machine guns and other restricted weapons (such as sawed-off shotguns, short-barreled rifles, explosive devices, silencers, and weapons greater than 50 caliber) must undergo a rigorous application process, including: submission of a detailed application, including photo and fingerprints; submit to an extensive background check, including local police sign-off; and pay a transfer tax of up to $200 (to limit the availability of the weapons). The proposed transfer tax for handguns in 1934 was only one dollar.
According to ATF figures, between 1934 and 1986 (when the production of new machine guns for civilian use was banned by federal law), nearly a quarter-million machine guns were legally purchased by civilians. And, such weapons are infrequently used in crime. During roughly the same time period, according to ATF, more than 44 million handguns were manufactured in the United States for domestic sale. If the NFA had been applied to handguns 66 years ago, the effect of the law—as seen in other nations that put in place such a strict regimen when their handgun populations were low—could have been to keep the handgun population down as a whole. It may even have changed the way our nation views these weapons.
The passage of the NFA stands not only as the great lost opportunity in the history of gun control in the United States, but also as a reminder of how little the debate has changed. Although the proposals themselves were innovative and far more restrictive than measures being debated today, the arguments in their favor have an all-too-familiar ring. Gun control advocates pointed to the licensing and registration of cars and drivers as a useful analogy and cited the lower murder and crime rates of European nations with strict handgun controls. A memorandum released at the 1934 hearings comparing the firearm laws and murder rates of Great Britain with those of the United States concluded: “It is unnecessary to discuss the infrequency of crimes committed with firearms in England, for repeated comparisons between such conditions there and in this country are becoming much too unpleasant for the law-abiding American citizen.”4