The provisions of the unfunded 1993 Federal Brady mandate never intended and further specifically exempted private party transfers from the Brady background check system. This was not a loophole in the law, but was included in each of the legislative drafts of Brady from 1987 until its passage in 1993. The Brady check initially covered only handguns, and as of November 1998, covers all firearms purchased from any federally licensed dealer regardless of time, location or circumstance.
Currently Utah is anticipated to check some 75,000 firearms transactions in calendar 1999 under the DPS/BCI Instant Check System as was implemented to comply with the unfunded Federal Brady mandate. Rejections for disqualified individuals attempting to purchase under the Utah system currently run slightly over 2% of all transactions. This means NEARLY 98% of those purchasing firearms under Brady are being charged $7.50 in state fees per transaction to prove their innocence to the state before being allowed to exercise an enumerated Constitutional right. Criminals do not, will not and never have obtained their firearms from legitimate sources, regulated or not. In other words, Brady, as based on the actual numbers, is arguably a 98% failure in both concept and in execution. Expanding Brady to include private party transfers at gun shows or at any other time, place or circumstance, will yield similar dismal crime reduction results. Demanding that before one citizen, a friend or a neighbor might sell a privately owned firearm to another, or before a grandparent might give a grandchild the a gift of a firearm on Christmas morning that a Brady check must be run on all parties involved is not good public policy, and it is contemptible that the idea should even be discussed with a straight face in a legislative forum such as this.
According to recent discussions with Utah DPS/BCI personnel, of the more than 3000 individuals who have been denied purchase of a firearm under Brady in the last 5 years, a grand total of ZERO have been arrested on the charge of attempting to purchase in violation of existing law by Utah authorities. It follows that referrals to prosecution were also ZERO, as were prosecutions, convictions, sentencing and incarcerations.
ZERO + ZERO + ZERO + ZERO + ZERO + ZERO = ZERO.Currently a reported grand total of federal convictions for attempts to purchase under Brady over the last 5 years throughout all 50 states stands at SEVEN. Out of the supposed tens and hundreds of thousands of disqualified individuals denied under Brady, only SEVEN were convicted of violation of Brady by Federal authorities over 5 years, and an impressive total of ONE in the last three years.
It becomes abundantly clear that if arrest, prosecution and punishment of those disqualified individuals attempting to purchase under Brady is not a priority, what then is the underlying purpose of the Brady program? In our opinion, it is two-fold.
First, the fees from Brady provide the administering agency with a most attractive non-appropriated revenue stream. Based on 1999 projected checks, Utah firearm purchasers will be charged by DPS/BCI a total of some $562,500 in Brady fees, and yet $549,000 of that amount WILL COME FROM THOSE WHO ARE NOT PROHIBITED for purchase or possession.
Fee increase as proposed by DPS/BCI during the 1999 General Session would double Brady fees, and new fee-setting authority given to DPS/BCI during that session makes such fee increases both inevitable and in all likelihood, abusive and punitive. Will we see improved user services provided by DPS/BCI in exchange for these fee increases? No. For example, BCI reportedly no longer conducts on-site Brady checks for FFL dealers at gun shows. BCI reportedly has stopped sending out permit renewal notices to Utah's 25,000 CCW holders as of March 1999. If a CCW renewal is more than 30 days late, the entire CCW application process with full application fees, less the training class, must be repeated. It is doubtful any other state license or permit renewal is handled in this manner. Clearly the DPS/BCI policy direction is increased user fees and less service for Utah gun owners and purchasers. That is why we strongly opposed the recent fee setting authority moving from legislative oversight and justification to administrative agency control.
Law abiding Utahns lawfully purchasing firearms are now being charged more than ONE-HALF MILLION DOLLARS EVERY YEAR to prove they are law-abiding citizens before they can exercise a Constitutional right. However, for this ONE-HALF MILLION DOLLARS annually, Utah's firearms owners receive NO DIRECT,, INDIRECT OR TANGIBLE BENEFIT WHATSOEVER. If any benefit, however dubious, comes from the Brady check system, it is an alleged benefit to society as a whole, not to firearms owners or purchasers as a group. Therefore, as the supposed beneficiaries, society as a whole should fund any such system in its entirety. As such, GOUtah! will be working on legislation to place all Brady administrative costs under general state funding, rather than user fee-based funding, for the duration of the Brady program. We, as law-abiding citizens and as gun owners will not be taxed to exercise a Constitutional right. We will not be forced by the state to pay for the rope with which we'll be hung.
Secondly, the purchase and transaction records generated by the Brady system, or any other firearms registration proposal, are now clearly subject to abuse by the administrative agencies involved. The FBI is widely reported as, and admits to retaining NICS records on the firearms purchases by law abiding citizens, in direct and knowing violation of existing federal law. This practice has resulted in lawsuits being filed against the FBI by the National Rifle Association and by others. Rep. Chris Cannon of Utah's 3rd District is currently developing legislation to force FBI compliance with existing federal laws in this area. Further, BATF is widely reported as scanning the many years worth of sales records of the hundreds of thousands of federally-licensed firearms dealers forced out of business by the current administration's anti-gun policies, again in violation of existing federal laws prohibiting the creation or maintenance of any such centralized database of firearms or firearms owners.
The purpose of any scheme or system to register firearms or firearms owners has historically been to either tax such firearms ownership, or to provide the information needed to implement confiscation of privately owned firearms, or both. Make no mistake, and harbor no illusions. These existing and proposed systems are not about crime prevention. They are about firearms registration, taxation and/or confiscation. This pattern has been demonstrated repeatedly throughout the world in this century and is being implemented in places like New York City, Chicago and New Jersey even as we speak.
Current existing federal and state law prohibits those adjudicated by a court as mentally incompetent to own, posses or purchase a firearm. In one recent instance, an individual who may have been so adjudicated was able to purchase a firearm used in violence at retail from a licensed dealer. In this instance, it is reported that court records of commitment were not available to the DPS/BCI information system. It is clear the problem is one of reasonable information sharing and access, not expansion of the definition of mental incompetence or criteria for denial of firearms ownership, purchase or possession. Any such disqualification must be strictly limited and defined, have competent legal and medical representation, a full measure of due process and judicial review for the subject, and any individual so defined should be in the physical custody of the state or other agency for confinement for the duration of such treatment. If they are adjudicated as too dangerous to be trusted with a firearm, they are also too dangerous to be freely circulating in our communities.
Our society and our legal system has always provided a clear and unambiguous 'line in the sand' regarding the criteria for a lifetime loss of the civil rights held by its citizens. That line is a the conviction in a court of law of a felony crime. With such conviction comes the loss of the right to vote, to hold office of public trust, engage in certain professions, possess dangerous weapons or materials, move freely within our society and other restrictions and prohibitions.
We are firmly opposed to any loss or restriction of any basic constitutional and civil right, including the right to own, possess or purchase a firearm, based on anything less than the lawful conviction of a felony level crime, period.
It becomes clear that those whom we consider a threat to our society, based on their violent criminal actions, are currently breaking numerous felony-level laws already on the books. For example the theft of or possession of a recently stolen firearm, like auto theft, is a second degree felony under Utah law, and also a federal violation if the firearm has moved in interstate commerce. Yet our prosecutors and courts constantly play 'let's make a deal' with violent felony level crime in hopes of streamlining the process of justice. Yet this criminal justice 'barter bazaar' plea bargaining system is at the root of the problem. If an individual has broken the law, and it can be proven in a court of law, then it should be properly tried, a verdict rendered, and appropriate punishment swiftly administered. That's the way the criminal justice system works, and that's the way it must work. Justice 'on the cheap' is not justice. It's institutionalized contempt for the very core values and principles our justice system is sworn to uphold.
As a society we have collectively decided which violent crimes are serious enough to warrant a lifetime loss of rights, and we call them felonies. We need to administer our criminal justice system based only on that standard, not based on 'how many beds are available at the gray bar hotel tonight' or what our 'public indignation flavor of the month' might be. If Judicial and Correctional resources are the limiting factor driving this public policy equation, then you, as Legislators, must stop creating non-violent, victimless crimes where none now exist, and you will soon find the resources are available to punish violent crimes where they do exist. That's the proven way to a safer and more tolerant society. To tamper with the civil rights of any citizen, absent their lawful conviction of a felony level crime, is both unfair and unacceptable.
Utah's peaceable firearms owners are not the problem, Utah's current gun laws are enough. They don't need to be fixed. The laws now in place need to be enforced. The criminal justice system needs to get up off its knees and administer effective justice. The public's safety needs to be protected, and our citizens rights need to be preserved.
As peacable firearms owners, we will stand with you to help implement meaningful improvements to our public institutions. We will also stand squarely in the middle of this political debate, without apology and without compromise, to delay, block, derail and otherwise prevent the rights and interests of Utah's peaceable firearms owners from being trampled or sacrificed on the altar of public hysteria or political expediency.
If you wish to be added to or taken off the GOUtah!
list, please send an e-mail to goutah@goutahorg.org or send a FAX to (801) 944-9937 asking to be added to or removed from the GOUtah! list.
If you wish
to forward or share this copyrighted information with others, you are welcome
to do so, on the condition that you pass along the entire document intact and
unmodified, and that GOUtah! is clearly indicated as the original source of
the material.
Return to GOUtah! Home Page
Return to GOUtah! White Papers Index