This post was written by O’Neill Institute Faculty Director, Lawrence O. Gostin and O’Neill Institute Associate, Aliza Glasner. Questions about this post can be directed to firstname.lastname@example.org or email@example.com.
Yesterday, President Obama took a modest, but critical first step to strengthen America’s existing regulatory framework aimed at preventing firearm-related injuries and deaths. Speaking from the White House to a crowd of gun violence survivors and advocates, the President explained that some restraints on freedom are the well-accepted consequences of living in a civilized society. We respect our right to free speech along with the limitation that we cannot yell fire in a movie theater. We cherish our right to privacy, while accepting inspections through metal detectors before boarding a plane. And, we do public health research to inform laws to better protect our society. We regulate childproof-caps on aspirin. We regulate our roads to reduce traffic fatalities.
And yet, the President explained, “when it comes to an inherently deadly weapon… Congress actually voted to make it harder for public health experts to conduct research into gun violence. Made it harder to collect data and facts, to create strategies to reduce gun violence…That’s not right.”
America’s greatest limitation in addressing our culture of gun violence is our willful refusal to understand it as an epidemic. Imagine another public health problem that killed tens of thousands each year, and Congress refused to act. Or, worse yet, affirmatively blocked public health authorities. Firearm injuries are, first and foremost, a public health problem. We can and should use the law as a tool to prevent and control firearm injuries. Vaccine laws, driver’s licenses, the height of fencing around a pool, are just a few of hundreds of examples of how public health law and regulations foster a civilized society where one’s right to certain freedoms does not infringe on another’s most basic right to life, liberty and the pursuit of happiness.
Keep firearms out of the hands of potentially dangerous individuals
The President’s executive action is modest compared to what Congress could and should do, but his goal is compelling—to keep guns out of the wrong hands through background checks. The President’s action clarifies a crucial regulation from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) defining who is a seller of firearms and who is required to conduct background checks. Accordingly, “[i]f you’re in the business of selling firearms, you must get a license and conduct background checks.” The President’s action will strengthen this crucial layer of accountability and liability on gun sellers. ATF clarified that there are criminal penalties, including jail time and fines, for failing to comply with these principles. Additionally, ATF clarified that a licensee who ships a gun is responsible for notifying law enforcement if they learn that it was lost or stolen in transit. In support, the US Attorney General Loretta Lynch issued a statement to the United States’ Attorneys to go after gun crimes, this could include everything from falsifying firearm applications to straw-man purchases.
Still, the President’s action will not close the loopholes in the system, namely preventing gun sales from unlicensed sellers. This country is plagued by an enormous person-to-person, and Internet market for firearm sales. While the President’s clarification of the existing law is significant, much work remains to be done in Congress to pass legislation aimed at gun sales from non-licensed sellers.
Make our communities safer from gun violence
America’s problems with gun violence are multifactorial, requiring authority and action at the local, state, and federal level. Accordingly, the President’s actions foster coordination at varying levels of government by improving the reporting systems, dedicating more resources to tracking illegal gun sales and stolen guns, increasing federal personnel dedicated to background checks and other ballistic reporting systems, and encouraging states to provide records to the background check system and to improve reporting. Clarifications on reporting, including in the case of mental illness, will foster a more robust federal database aimed at keeping firearms out of the hands of dangerous people.
The president singled out a pledge to victims of domestic violence, urging local law enforcement to work with the office of United States Attorneys to prevent prohibited persons from obtaining firearms. In families experiencing issues of domestic violence, access to a firearm leaves vulnerable family members 12 times more likely to die in an assault. Ironically, a great majority of the statistics on domestic violence related-injuries comes directly from the Centers for Disease Control (CDC), the same agency that is hamstringed when it comes to researching ways to prevent gun violence.
Increase mental health treatment and reporting to the background check system
Mental health is a buzzword thrown around both sides of the gun control debate. Time and again, especially after a mass shooting, Republicans and Democrats alike call for stronger mental health regulations. Mental health services and equitable laws are crucial. More than half of all gun-deaths in America are firearm-inflicted suicides. Extending mental health services to this vulnerable group is a key strategy to reducing the staggering number of suicides in America each year. Still, society should not have the knee-jerk reaction that persons with mental illness are, as a class, more dangerous. In fact, mental illness is only an indicator of future violence when coupled with a history of violence or substance abuse. (That is true also of individuals not diagnosed with a mental illness). All the research demonstrates that simple fact.
Of course, there should be more mental health treatment, much more. But society and lawmakers in particular should not stereotype and stigmatize persons with mental illness suggesting they are dangerous.
While the attention given to the issue of mental health is significant, President Obama’s proposal lacks funding for critical research necessary to guide mental health policies and to better understand the root cause of so much of America’s problem with gun violence.
Shape the future of gun safety technology: safety through design
Politicians, and the public generally, tend to think public health professionals have competence mainly or solely to stem infectious diseases. To be sure, firearm injuries are an epidemic, but not the way we commonly think of that term. The truth is that public health agencies can prevent injuries far more effectively than they can prevent infectious disease outbreaks. We have learned that if the means with which harm is caused (e.g., a car, a hazardous mine, a rapid fire gun) can be designed with safety in mind, we can prevent many injuries and deaths. For example, airbags, passive restraints, and crash avoidance systems have resulted in a precipitous drop in traffic deaths. The one factor that did not change was the driver.
The lifeblood of public health is the ability to study a problem and examine which measures work best. President Obama’s executive order recognizes the power of research. As, he explained in his address “With more research we could further improve gun safety just as with more research we’ve reduced traffic fatalities enormously over the last 30 years… research, science, those are good things. They work.” Yet he vests the responsibility for research with the Department of Defense and Department of Homeland Security. The CDC is the most competent and experienced agency to conduct injury prevention research. This move is acknowledgment of the reality of our current Congress’ reticence towards the CDC. Why? The CDC has a strong track record with every other public health problem, and the agency should be amply funded and encouraged to conduct firearm research to inform policymakers of the best solutions.
And so, an Executive Order…
Left with no other choice, the President is using the vehicle of an executive order rather than waiting for Congress to act. It is virtually certain that firearm advocates will sue, challenging the President’s authority in order to deflect attention from the real issue. Firearm injuries are one of the most preventable threats to the public. We can prevent a great deal of gun violence and unintentional injuries such as by suicide, and accidental shootings in the home. But unlike the President’s Executive Order on immigration, the courts will have no difficulty upholding these Executive Orders. The President has acted squarely within his powers. The Executive Branch has the power, and duty, to interpret laws and to implement them effectively. That is what the President’s order has done—nothing more. Far from being an executive over-reach, it is a modest effort to use the powers of the presidency within the law and for the public good.
Firearm injury prevention emphatically does not diminish the right to bear arms through the lawful and reasonable use of guns and rifles. And, President Obama’s executive order will begin the long overdue process of addressing America’s gun violence epidemic.
 White House, Office of the Secretary, FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer, January 4, 2015
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.