An Analysis of Virginia's Concealed-Carry Law and Proposed Fingerprinting Legislation
by Val W. Finnell, MD
Prior to July 1, 1995, the Commonwealth of Virginia had in place a discretionary concealed-handgun law that gave Circuit Court judges sole discretion in the issuance of permits. The result of this policy was a discriminatory pattern in how the judges applied the law. In practice, citizens in rural areas were granted concealed-handgun permits while those in more urban areas were arbitrarily denied. For example, according to the Richmond Times-Dispatch, during 1990-91 there were about 10,000 carry permits in Virginia, however, Fairfax and Prince William Counties only issued three and seven permits, respectively during this time frame.1 So, we can see that a fair number of people were already carry permit holders prior to reform of the law, but Virginia's law-abiding citizens in more urbanized areas were left behind.
In order to correct this imbalance in the law, the legislature passed the Personal Protection Act in 1995. The passage of the Act removed the discretionary language from the old law that required applicants to "demonstrate need." This resulted in a large influx of concealed handgun permit applications in July of 1995.
The passage of this Act caused much public-safety concern over the possibility that the non-discretionary issue policy would lead to a surge in violent crime. Others voiced their opinion that with more Virginians carrying firearms there would be an increase in small disputes escalating into gun-battles and that criminals would be lining up to get their carry licenses. As we shall see, none of these concerns have proved true.
Statistical Information
According to the Commonwealth of Virginia, Department of State Police, some 47,157 permits have been issued from July, 1995 through November , 1996. Nineteen (19) permits have been revoked for various reasons. About twenty (20) were denied permits upon application.2
An analysis of this information reveals that approximately 99.96% of applicants were approved and have not had their permits revoked. Put another way, the denial/revocation percentage was only 0.04% which is virtually insignificant.
National Trends
University of Chicago Professor John Lott provided the most methodologically sound national study to date regarding concealed-carry-weapons (CCW) laws. Unlike previous "research," Lott did not restrict his study to a few hand-picked counties to prove a foregone conclusion, but rather analyzed FBI Uniform Crime Report data from each of the 3,054 counties in the United States from 1977 to 1992. The results indicate that in counties where CCW reform was enacted: Homicide fell by 8.5% Rapes fell by 5% Aggravated assaults decreased by 7%3 Importantly, there appeared to be no increase in accidental deaths. Also, the deterrent effect of CCW laws seemed to be greatest in counties with the highest crime rates. Lott's data suggest that in the 19 states that have not enacted CCW reform, there would have been approximately 1,570 murders, 4,177 rapes, and over 60,000 aggravated assaults prevented annually.4 One must at least consider from the results of the University of Chicago study, that permissive concealed-carry laws have some deterrent effect on crime. In the worst case scenario, they clearly have not been detrimental to public safety as predicted by certain gun-prohibitionists.
Vermont: A Model for Virginia
One State in the U.S., Vermont, recognizes her citizens' right to carry a concealed handgun without any government permit process. Rather than subjecting law-abiding people to background checks and fingerprinting schemes, the law only prohibits the carrying of a firearm with the intent or avowed purpose of injuring a fellow man.5 Thus, those not otherwise prohibited from owning a handgun may carry one for personal protection. The results of this law have had no negative impact on public safety. Recently, Vermont was rated the "Safest State" in the nation by Morgan Quitno Press, an independent research and publishing company located in Lawrence, Kansas.6 The Vermont experience empirically refutes the gun-prohibitionists' argument that easy access to firearms and permissive carry laws increase violent crime. If this were true, then Vermont would be the most dangerous state in the U.S., and the District of Columbia (where handguns are virtually banned) would be the safest area.
Pennsylvania: A Permit State Without Fingerprinting The Commonwealth of Pennsylvania has a "shall issue" permit system, but does not require fingerprinting of applicants. As of January 1992, there were 362,142 carry permits state-wide (about 3% of the population), and the easy availability of the permits has not resulted in making Pennsylvania a more dangerous place.7 Current estimates place the number of carry permits over 500,000. The Pennsylvania experience reaffirms the overwhelming success of concealed handgun laws without subjecting law-abiding citizens to fingerprinting.
Fingerprinting - de facto Federal Registration of Gun-Owners
Legislation is now pending to formalize fingerprinting procedures so that prospective concealed-handgun applicants must undergo an FBI NCIC criminal records check (HB 1566, SB 641). The argument is that a name only check is insufficient for a thorough background check and that criminals would be able to easily obtain a concealed- carry permit without it. Such reasoning is flawed and should not be used as the basis for public policy. Let us examine the reasoning behind these assumptions:
1. That criminals will submit themselves to a background check.
Proposals for background checks and fingerprinting are based on this premise. For if criminals would not submit themselves to a background check, then having one instituted would be illogical. It is widely known that up to 93% of firearms used by criminals are obtained illegally. 8 After getting the gun, they in turn use it to violate the law once again. In the process, it is folly to assume that criminals would place their "livelihood" at risk by subjecting themselves to any form of background check. Evidence that few criminals submit themselves to these checks is reflected by the trivial denial and revocation rates of permit holders. Therefore, this premise is based on a false assumption.
2. Fingerprinting will ensure that only qualified applicants can carry handguns.
First, it should be noted that there is no fingerprinting requirement in order to purchase a handgun. Secondly, in Virginia, one can carry a pistol openly without any type of permit. So, the fingerprinting requirement will not prevent legal open-carry. Finally, there is nothing to prevent a criminal from concealing a gun if he desires merely because a concealed-carry law is in place. As in Vermont, the law should, instead, focus on how the gun is used. This way, the law is focused on the criminal, not the law-abiding citizen.
3. That citizens must undergo government approval to exercise their right to self-defense.
The firearm is perhaps the most effective self-defense tool available.9 By enacting draconian fingerprinting requirements, some individuals may be deterred from applying for a permit for fear of registering themselves with the government. The right to self-defense is an inalienable right recognized in all fifty states. The entire permit system assumes that government "grants" rights to citizens who ask for them. The power to grant rights implies the power to destroy them. This concept is inconsistent with the founding principles of our Commonwealth and the United States in general.
4. That fingerprinting does not place an undue burden on law-abiding citizens and poses no threat to an individual's rights.
Fingerprinting has long been a procedure reserved for the criminal element of our society or for identification purposes for those in dangerous jobs. The proposed legislation to make FBI fingerprinting mandatory creates de facto gun- owner registration at the federal level.
After running the fingerprint cards, there is nothing short of a promise from keeping this federal agency from compiling a list of gun-owners. Perhaps even more dangerous is the computer tracking system developed by the Bureau of Alcohol, Tobacco, and Firearms (BATF) know as FIST (Firearms Inquiry Statistical Tracking) that sets the framework for gun-owner/firearm registration at the federal level. Having a set of fingerprints at the FBI is no guarantee that information will not be "shared" with other agencies. Consider for a moment the current FBI files scandal where classified documents were entered into a White House computer system.
Once a centralized list of gun-owners is created, confiscation is only a step away. In New York City, gun-registration lists were used to confiscate firearms even though the list was never intended to be used for this purpose.10
Does the Commonwealth of Virginia want to expose her citizens to potential federal abuses that continue to compound on almost a daily basis?
In conclusion, mandatory FBI fingerprinting will have little, if any, deterrent effect on criminals using guns in crime, increases the permit application costs/time, and exposes law-abiding citizens to potential federal abuses including, but not limited to, centralized registration. Registration, historically, has always been the prelude to confiscation or more severe restrictions. Should public policy be based on the 0.04% of permit holders who had their licenses taken away, or on the other 99.96% of permtees?
Where Should Virginia Go From Here?
The Personal Protection Act reformed Virginia's previously discretionary CCW law to the point where now all law-abiding citizens must be issued a permit if they meet the qualifications set by law. There is much room for improvement, however.
First, the proposed mandatory fingerprinting legislation should be defeated for the reasons outlined above. The Vermont and Pennsylvania experiences also prove that this is an unnecessary measure.
Second, the current restriction on carrying concealed handguns into establishments licensed to serve alcohol on premises should be eliminated. The only thing that this prohibition is doing is preventing law-abiding citizens from taking their handguns into restaurants. Not only will this make them easy prey, but it may increase gun theft from permitees leaving firearms in their vehicles while they dine.
Third, since the right to self-defense is inalienable and extends to all, Virginia should recognize all other states' CCW permits. This policy of universal recognition, rather than mere reciprocity, will be a good first step in enhancing public safety for all people who come to visit our Commonwealth.
Finally, Virginia should eliminate the permit system altogether and adopt the example of Vermont. Punishing criminals for their actions is a far more effective deterrent to crime than making honest people jump through legal hoops in order to exercise their rights.
Notes
1. Carlos Santos, "10,000 in State Legally Carry Guns," Richmond Times-Dispatch, October 3, 1993.
2. Commonwealth of Virginia, Department of State Police. Facsimile transmission from Jean Richardson, Superintendent of Special Programs, December 19, 1996.
3. John R. Lott, Jr. and David B. Mustard, "Crime, Deterrence, and Right-to-Carry Concealed Handguns," Draft dated July 13, 1996, p. 13. The research will be published in the January, 1997 issue of the Journal of Legal Studies.
4. Ibid.
5. VT Stat. Ann. T.13-4003
6. Press Release, "Nevada Comes up Craps Tops the List as America's 'Most Dangerous State.' Vermont Earns the 'Safest State' Award," Morgan Quitno Press, June 27, 1996.
Morgan Quitno Press specializes in reference books and reports that compare states and cities in several different subject areas. Interestingly, Morgan Quitno considers the number of police currently employed by a state to be inversely proportional to its safety: "While most people agree that having more police is a good thing, our thinking is that in the best of all worlds a state has low crime and low expenditure for police protection. The next best scenario is to spend tax money on police but have a low crime rate. The worst option is to spend resources on police and still have a high crime rate. This does not mean that the police are doing a bad job, only that police alone are not able to solve a crime problem." (From Press Release).
7. Clayton E. Cramer and David B. Koppel, " 'Shall Issue': The New Wave of Concealed Handgun Permit Laws," Tennessee Law Review, Volume 62, No. 3, Spring 1995, p. 697.
8. Department of Justice, "Survey of Incarcerated Felons," p. 36.
9. Gary Kleck. Point Blank: Guns and Violence in America. Hawthorne, NY: Aldine de Gruyter, 1991. Table 4.4.
This book, by Florida State University criminologist Gary Kleck, won him the American Society of Criminology's prestigious Hindelang Award in 1993 for "the most important contribution to criminology in 3 years."
Kleck's research demonstrates that when a crime victim resisted with a gun, they were least likely to be injured (17% ). By comparison, injury rates for evasion were 35%, seeking help 49%, and no self-protection, 25%.
10. John Marzulli, "Weapons ban defied: S.I. man, arsenal seized," Daily News, September 5, 1992.
On August 16, 1991, New York City Mayor David Dinkins signed Local Law 78 which banned the possession and sale of certain rifles and shotguns.