A new report on federal firearm offenses shows that the vast majority involve illegal possession, often without aggravating circumstances or a history of violence. The data undermine the assumption that people who violate gun laws are predatory criminals who pose a serious threat to public safety. They also highlight the racially disproportionate impact of such laws, which is especially troubling given their excessive breadth.
In FY 2021, the U.S. Sentencing Commission (USSC) reports, 89 percent of federal firearm offenders were legally disqualified from owning guns, typically because of a felony record. Half of those cases involved "aggravating criminal conduct." But in the other half, the defendant's "status as a prohibited person solely formed the basis of the conviction."
The aggravating conduct, which triggered sentencing enhancements under the USSC's guidelines, covered a wide range.
In 11 percent of the cases involving aggravating conduct, "an offender or co-participant discharged a firearm." In 4 percent of the cases where a gun was fired, someone was killed; someone was injured in 18 percent of those cases.
Some cases involved a stolen gun, a gun with an "altered or obliterated serial number," or a prohibited weapon, such as a machine gun or a sawed-off shotgun. Some defendants were engaged in gun trafficking. In more than a quarter of the cases, "the firearm facilitated, or had the potential to facilitate, another felony offense (most commonly drug trafficking)." That last category would include drug dealers who never threatened or injured anyone but kept or carried guns for self-defense.
As you would expect, aggravating factors resulted in relatively long prison sentences. The average was 55 months for cases involving stolen firearms or guns with altered serial numbers, 58 months in cases involving a prohibited weapon, 62 months in cases involving gun trafficking, and 119 months—nearly 10 years—in cases involving "the use of, or conspiracy to use, a firearm in connection with a crime of violence or drug trafficking crime." In other words, the combination of drug possession and gun possession can be enough to put someone behind bars for a decade, which starkly illustrates the interaction between those two kinds of prohibitions.
In half of the cases involving "prohibited persons," the defendant "did not engage in additional aggravating conduct." The average sentence for such defendants was about three years. Even in those cases, you might surmise, the defendants' prior criminal records probably indicated violent tendencies that justified sending them to prison for possessing a gun. But that is not necessarily true.
Overall, 61 percent of firearm offenders had been convicted of violent crimes. Assault was the most common offense, accounting for 49.4 percent of prior convictions. Robbery was the next most common offense (19.9 percent), followed by "other violent" crimes (14.8 percent), homicide (3.8 percent), and rape (3.3 percent).
Many of these defendants surely posed a continuing threat to public safety. But the federal prohibition of gun possession by people with felony records (technically, people convicted of crimes punishable by more than a year of incarceration) is a lifetime ban except in rare cases where people manage to have their Second Amendment rights restored.
That policy, which threatens violators with up to 15 years* in prison, is hard to justify unless you assume that people convicted of violent crimes cannot be rehabilitated and do not change their ways as they mature. That assumption does not seem reasonable in light of research indicating that recidivism declines sharply with age. Yet federal law is based on the premise that, say, a man convicted of assault in his early 20s can never be trusted with a gun, even if he stays out of trouble for decades. Because of that youthful crime, he forever loses the right to armed self-defense.
Furthermore, the USSC's numbers indicate that two-fifths of firearm offenders had never been convicted of a violent crime. Many prior convictions involved drug trafficking (31.6 percent) or previous weapon offenses (44.2 percent). Five percent of the defendants were disqualified from owning a gun because they were illegal drug users. If a decades-old assault conviction seems like a thin pretext for permanently depriving someone of his constitutional rights, a decades-old drug conviction, involving conduct that violated no one's rights, seems even thinner.
The irrationality and injustice of this policy look even worse when you consider the demographics of federal firearm offenders. In FY 2021, 55 percent of them were black. A similar racial disparity is apparent at the state level. According to FBI data, African Americans, who represent about 14 percent of the U.S. population, accounted for 42 percent of arrests for weapon offenses in 2019.
Such disparities are not surprising, because black people are especially likely to have felony records. A 2017 study by University of Georgia sociologist Sarah Shannon found that 33 percent of male African Americans had been convicted of a felony, compared to 8 percent of the general population. The upshot is that the burdens of excessively broad restrictions on gun ownership are concentrated in that segment of the population.
If those restrictions made sense, you might dismiss the disparities, citing cross-racial differences in crime rates. But those restrictions do not make sense, since they apply to millions of people who either are not currently dangerous or never were.
*CORRECTION: The Bipartisan Safer Communities Act, which was signed into law last month, increased the maximum penalty for gun possession by people with felony records from 10 to 15 years.
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