The VICE Guide to the 2016 Election

Assessing Hillary Clinton's New Plan to Stop Gun Violence

With a new set of policy proposals, Democratic presidential candidate Hillary Clinton is trying to change the tired national narrative around gun violence.
October 6, 2015, 4:00am

Photo via Wiki Commons user Marc Nozell

Every time there's a gun massacre in this country, we put on a sort of national kabuki theater. The typical pattern begins with all of us reacting to the news with shock and horror, even though mass shootings happen all the time in the United States—there have been 294 in this year alone. Then people start pointing fingers. Some blame mental illness. The far right says there weren't enough guns around to stop the bad guy with a gun. The left says that there are too many guns, and that the interests of the NRA are overpowering the concerns of average citizens. Then the nation watches as Washington makes nervous moves to placate angry constituents who are either afraid of the direction the country is going without new laws that curtail the power of guns or afraid of the direction the nation is going if anyone tries to curtail of the power of guns. And then, after all the bickering and grandstanding, our politicians ultimately do... Nothing.

On Monday, though, Democratic presidential candidate Hillary Clinton challenged the country to change that narrative, presenting a new set of solutions in the aftermath of last Thursday's mass shooting at an Oregon community college, which left 10 people dead and nine more injured.

This is perhaps the most important issue for American politicians today, considering how big of a role guns play in American deaths. As Nicholas Kristoff recently noted in theNew York Times, "more Americans have died from guns in the United States since 1968 than on battlefields of all the wars in American history."

While it's tough to determine today whether or not any of Clinton's ideas could actually get through Congress in 2017, lots of policy proposals seem politically unfeasible until someone can show that they are not. So for now, I think it's valuable to simply look at some of Clinton's ideas, and determine if they would actually make a difference when it comes to gun violence. Some of the proposals she's put forward would make little difference, but she also has one idea that could lead to great change.

Universal Background Checks

This is generally the first idea advanced by any politician who favors gun control, or gun safety. It seems like common sense: The US government should make sure gun retailers know who is trying to buy their guns. Most Americans, including 84 percent of gun owners, support expanding background checks.

In addition to expanding the federal background check system, Clinton proposes cracking down on gun sales that take place at gun shows and through the internet, both of which allow buyers to skirt background checks. She also wants to close a loophole that allows gun sales to go through if a background check is not completed within three days.

This "default proceed" posture is known as the "Charleston loophole" because it is how the mass killer behind this year's massacre in Charleston, South Carolina, was able to obtain a weapon. It's another example of how US gun laws can take us through the looking glass into a world shaped not by the reality of gun violence, but by legislators acting as marionettes for their puppet masters at the NRA—An organization whose mission is to help gun manufacturers sell as many guns as possible.

But do background checks even work? There is data that supports both sides of the argument. In 2010, the FBI denied 72,650 attempted gun buys, which amounts to about 1.2 percent of the 6 million gun purchase applications submitted that year. Who was barred? Anyone who had been imprisoned for more than two years, people convicted of domestic abuse, fugitives from justice, undocumented immigrants, and others with a criminal record. All of this is good. Except the background check system doesn't protect society from non-convicts—these measures seem to say that if we keep guns away from people with criminal records, the country will be OK.

Background checks make common sense, but they are of limited value in a world where the ATF lacks the muscle to protect the spirit of the law.

But the real rub here is that the NRA has worked hard to castrate the Bureau of Alcohol, Tobacco, and Firearms (ATF). From 2006 to 2013, the group blocked every presidential nominee for ATF director, leaving the agency to be run by acting directors for seven years. A permanent director was finally confirmed in July 2013, but after less than two years in the chair, he left for a job at the NFL. The ATF is now once again being run by another acting director.

The ATF is also forbidden by law from inspecting a licensed gun dealer more than once a year, and its agents are prevented from posing as felons to make undercover purchases. There are seemingly more restrictions on the ATF than there are on gun dealers. With the ATF weakened, it's hard for the agency to provide robust enforcement of gun laws, or to make sure that retailers are distributing guns legally. Research shows that while most gun suppliers do follow the law, a small percentage of gun dealers are willing to sell firearms anyone. Background checks cannot protect us from unscrupulous dealers and straw purchasers, who legally buy guns for people who wouldn't pass a background check.

Background checks make common sense—and the "default proceed" posture is absurd—but they are of limited value in a world where the ATF lacks the muscle to protect the spirit of the law. It's politically easy to propose, but it's unclear whether or not it would make a major difference without a robust ATF to back it up in practice.

Combat ready SA-80 L85A1 rifle in 1996. Image via US Military

Banning Military Assault Weapons

Again, this proposal seems obvious, and is widely supported in the law enforcement and military communities. After the massacre in Newtown, Connecticut, former US Gen. Stanley McChrystal told MSNBC, "I personally don't think there's any need for that kind of weaponry on the streets and particularly around the schools in America."

Congress did pass an assault weapons back in 1994, but the legislation had massive loopholes, and anyway, it expired in 2004. And while reviving the ban may seem like common sense, it's worth remembering that in the real world, there was virtually no ban the first time around. The slipperiness of the term "assault weapon" makes it difficult for any ban on those weapons to actually be effective: Manufacturers are experts at making small changes to their guns—and to legislation—that change whether or not a given gun can be classified as an assault weapon.

It's also difficult to make the case that assault weapons are the real problem when it comes to gun violence in the US. It's true that these firearms can do significantly more damage to the body more quickly than a handgun. But while about 33,000 Americans are killed by guns each year, FBI data from 2012 found that only 322 of those people were killed by any kind of rifle, regardless of classification.

The bigger problem, by far, is handguns, not assault weapons. So while Clinton's proposal to ban these types of firearms sounds good—and seems to put Republicans in the unenviable position of defending unfettered access to military-grade weapons—it's not likely to have a significant impact on the nationwide issue of gun violence.

Hold Retailers and Manufacturers Accountable for Gun Crimes

Here Clinton has finally come up with a proposal that could have a real and serious impact. It relates to a federal law passed in 2005 that protects gun dealers and manufacturers from being held liable when crimes are committed with their products. Virtually all other products sold in America are governed by regulation from the Consumer Product Safety Commission, but somehow the most lethal product available is not.

As Erwin Chemerinsky, a leading constitutional scholar and dean of the University of California, Irvine School of Law, argued in 2012, blocking victims from holding the gun industry accountable in court represents a deviation from basic principles of product liability.

"It is outrageous," Chemerinsky wrote, "that a product that exists for no purpose other than to kill has an exemption from state tort liability. Allowing tort liability would force gun manufacturers to pay some of the costs imposed by their products, increase the prices for assault weapons and maybe even cause some manufacturers to stop making them."

The law, titled the Protection of Lawful Commerce in Arms Act, was a major priority for the NRA, which sought to protect gun manufacturers from being held liable for negligence when someone committed a crime with one of their guns. While manufacturers can still be held liable for damages from defective products, the industry knows it could do more to protect the public from its products. In a 2003 affidavit, Robert A. Ricker, a former lobbyist and executive director of a major gun industry trade association, testified, "Leaders in the industry have long known that greater industry action to prevent illegal transactions is possible." According to Ricker, leaders resisted voluntary action because "if the industry took action voluntarily, it would be an admission of responsibility for the problem."

As Harvard professor David Hemenway writes in his book Private Guns, Public Health: "Public health has not been a prime manufacturer concern. Indeed, the industry often seems to go out of its way to circumvent the public safety intent of the few regulations that Congress has passed."

No industry has the widespread amnesty from litigation that the gun industry currently enjoys.

If manufacturers were forced to bear responsibility for guns, the industry might be pushed to make changes. For example, gun makers could add unique serial numbers to each gun that would be impossible to remove—Hemenway suggests placing serial numbers inside the gun, making them readable only with infrared light. Manufacturers could also fingerprint each bullet as it's fired from a weapon. And they would have an incentive to make sure that dealers are not acting irresponsibly when selling their products.

The notion that gun manufacturers can aggressively market and sell millions of guns and then act as if they have nothing to do with what happens next is absurd. When hot coffee burns someone, a lawsuit is filed and the entire food industry reacts. When children die because of a toy the industry leaps into action. No industry has the widespread amnesty from litigation that the gun industry currently enjoys.

Citizens wouldn't have to win or even file lawsuits to have an impact on an industry. "It is not necessary to win a suit to achieve a change in corporate business and behavior,"Hugh Jim Bissell wrote on the liberal DailyKos blog. "Often, the threat of lawsuits alone provide a powerful financial incentive to an industry to make its products safer, and reduce the risks associated with the use of their products."

But Congress, swayed by the power of the NRA, has set up a firewall that protects gun manufacturers from being held liable for their products, and blocked Americans from the protections that such liability might create. That Clinton is proposing to change that is, to me, the most interesting proposal she has introduced, and the one most likely to spark massive change in America's gun culture because it could force the firearms industry to monitor itself. If gun manufacturers fear they would not be able to survive lawsuits, forcing them to grapple with that fear would restore a powerful check and balance on the industry.

Clinton has vowed to combat the gun problem by following the money—which is kind of revolutionary because it doesn't have anything to do with taking people's guns away or even with the Second Amendment. Instead, she is insisting American corporations take responsibility when their products hurt Americans.

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