Testimony before the U.S. Senate Committee on the Judiciary
Hearing: Combating Gun Trafficking and Reducing Gun Violence In Chicago
December 13, 2021
Amy E. Swearer
Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
Chairman Durbin, Ranking Member Grassley, and distinguished Senators,
My name is Amy Swearer, and I am a Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation. My areas of scholarship and study include, among other things, the Second Amendment, school safety, and the intersection of gun violence and mental health. I was heavily involved in Heritage’s School Safety Initiative, which was developed after the tragic 2018 school shooting in Parkland, Florida, to ensure that conservative voices played a prominent role in national conversations on gun control and student safety. I have testified on firearms policy at both the state and federal level, including before the Virginia State Crime Commission on the heels of the 2019 Virginia Beach mass shooting, the Texas House Committee on Mass Violence and Community Safety following the 2019 El Paso Walmart shooting, the House Judiciary Committee in 2019 with respect to a proposed ban on so-called “assault weapons,” and this Committee several months ago on gun violence prevention strategies.
I repeat now what I said to you this past summer—there are no “sides” to gun violence. We are on the same team. Every single person in this room today showed up to work with the same goal—preventing needless death and suffering without infringing on the rights of law-abiding Americans. We are all here because we are invested in saving lives. This bears repeating, for while we are not in Washington, D.C., for this hearing, it would be naïve to pretend that the divisive politics inside the Beltway do not have a tendency to follow us outside of it. And this is, indeed, unfortunate.
While we sit today in Chicago for a hearing specifically on Chicago’s recent spikes in gun violence, in reality Chicago is merely a stand-in for an unprecedented national spike in violent crime. Homicide rates soared by almost 30 percent between 2019 and 2020, the sharpest one-year increase in the nation’s history. After three decades of a downward national trend in violence, most major cities are experiencing unparalleled, acute rises in homicides and other forms of gun violence. We could just as well be in Philadelphia or any of the other eleven cities that have already set, or are on pace to set, new records for homicides in a single year. There were roughly 4,000 more Americans murdered in 2020 than in 2019. While the rate of increase seems to have slowed slightly in 2021, and while it is difficult to discern a “trend” after only two years, there is no one who fails to understand that this is a very serious problem.
The Chinese philosopher Confucius once said, “Life is simple, but we insist on making it complicated.” With all due respect to the ancient sage, I have to believe he never encountered politicians trying to combat gun violence. You see, violence is very complicated. Its causes, on an individual and a societal level, are varied and complex. And yet we all know that complicated doesn’t make for very good politics. We often insist on taking the intricate, the convoluted, the perplexing, and making it simple—even if the simple solution is really no solution at all. That’s politics. Politicians prefer neat, uncomplicated talking points that can be easily repeated. If you are here hoping that I, or anyone else who is acting in good faith, have some concise and simple policy solution, I am sorry to disappoint you.
I want to accomplish three things today. First, we need to understand why the “easy solutions” that often get spouted off to “combat gun violence” make absolutely no sense in context, either for Chicago specifically, or for the nation as a whole. Second, we need to home in on factors we know, to a meaningful extent, played and continue to play a role in facilitating this unprecedented spike in gun violence. When we do, we find many public policy decisions made in response to other problems, like the COVID-19 pandemic and high-profile instances of police brutality, had unintended effects on society that indirectly created a perfect climate for a sudden category 5 storm of violence. And that makes finding a solution messier than we would like, because any solution will implicate these policies and force us to confront whether they were, in the long run, good ideas. Finally, while we have brought many of these problems on ourselves, there are still viable avenues forward to undo much of the damage that has occurred.
Debunking “Easy Solutions” That Are Overly Simplistic and Driven by False Narratives
Americans bought an estimated 22 million firearms in 2020, and another 18 million through the first eleven months of 2021, both far surpassing the previous record of 16 million set in 2016. Perhaps as many as 11 million of these firearms were purchased by first-time gun owners. It is certainly easy, without providing context or conducting additional research, to look at this unprecedented spike in gun sales, then look at the unprecedented spike in gun violence, and draw a causal connection. At the same time, it is certainly easy for a state such as Illinois, with its high ratings from gun control groups over its restrictive gun laws, to immediately blame the supposedly “lax” laws of another border state. Neither of these “easy solutions” is grounded in reality.
While these answers may have a simple and superficial appeal, alas, they are not true. Neither lawful gun sales nor Indiana’s lack of a gun purchase waiting period meaningfully factors into the equation of our ongoing national spike in gun violence.
A. Increases in Legal Gun Sales and Lawful Gun Ownership Do Not Drive Violent Crime
Between 1993 and 2013, Americans bought roughly 170 million firearms, for a 56 percent increase in the number of privately owned guns per person. Despite this, national violent crime rates—including gun violence rates—experienced a sharp decline throughout the 1990s and early 2000s, before leveling out at consistently low rates until 2020’s unprecedented spike. Homicide and gun homicide rates halved between the early 1990s and the early 2010s, while number of non-fatal firearm crimes committed in 2011 was one-sixth the number committed in 1993. And while different American cities experienced various levels of “crime waves” throughout this time, the overall trend was the exact opposite of the national bloodbath one would expect if the problem were as simple as “more lawfully purchased guns mean more gun crime.” Similarly, 2020 was not the first example of Americans rushing to legally buy guns in higher-than-average numbers. In 2016, Americans bought a then-record number of firearms without seeing the same immediate, nationwide spike in violence that began in the late spring and early summer of 2020. Annual gun sales have also been steadily increasing for almost two decades, even as many cities hit all-time lows for violent crime.
This all makes sense, given the plethora of evidence that most firearms used to commit gun crimes are illegally possessed by the perpetrator, that most criminal gun offenders do not obtain their firearms through lawful channels, and that most violent gun offenders are already prohibited persons by the time they use firearms in furtherance of a crime. It is little wonder that recent, comprehensive analyses have not found any association between state-level increases in lawful gun purchases and increases in overall violent crime.
B. “Lax” Gun Laws in Other States
Nor does it make sense to cast significant blame on other states for problems experienced by cities in states with restrictive gun control, which is often what happens in Chicago with relation to neighboring Indiana. Because there are no gun stores within the city limits of Chicago, the reality is that all guns possessed in Chicago, whether lawfully or unlawfully, must have been bought outside the city. The top three locations of origin for crime guns recovered in Chicago are actually gun stores in its Illinois suburbs, but it is true that many also originated in Indiana. But this has been true long before 2020, and cannot account for the sudden spike in violence. Illinois has long had stricter gun possession laws than neighboring Indiana. It is not as though, in the beginning of 2020, criminals in Chicago looked around and, for the first time, noticed that Indiana also sells guns.
Moreover, it is unclear why the origin of the firearm matters, as it is no easier for an Illinois resident to legally obtain a firearm in Indiana than in Illinois. Under federal law, the only way for an Illinois resident to legally purchase a gun in Indiana is to first obtain an Illinois Firearm Owner’s Identification Card and go through a background check, as there is no “private sale” exception for interstate sales or transfers. Additionally, if the firearm at issue is a handgun—by far the type of firearm most often used in gun crime—the Illinois resident must first have it shipped to a Federal Firearms Licensee in the Illinois. Regardless, the Indiana federal firearm licensee must ensure that the sale complies with Illinois law.
The most rational explanation for why so many Chicago firearms originate in Indiana is not that Illinois or Indiana residents are exploiting some non-existent loophole in interstate gun sales. Rather, it is that Indiana is a stone’s throw away from Chicago. According to Google Maps, from this very building, Whiting, Indiana, is about 20 minutes closer than the Chicago suburb of Wheaton. And, importantly, Indiana does not impose an additional tax on retail gun sales, like the one imposed by Cook County, meaning firearms are likely to be less expensive for law-abiding citizens looking to exercise their Second Amendment rights without breaking the bank.
Factors to Consider in Recent, Widespread Spikes in Gun Violence
Instead of pretending that the longstanding realities that Americans sometimes rush to buy guns or that federal law permits interstate gun sales offers us some easy policy solutions, we should instead ask the question: “What changed in recent years?” In answering this question, there does not appear to be one single factor in play, but a combination of several different factors—some of which arose rather recently and very suddenly—that combined to create a perfect climate for violence.
A. COVID-19 Disruptions To Violence Prevention Infrastructure
The research is clear about the vital role community violence prevention groups and other nonprofit intervention and social service organizations play in reducing gun violence rates. State and local efforts to combat the spread of COVID-19 suddenly and severely disrupted these important social networks and services, to the detriment of countless high-risk community members. Stay-at-home and social distancing policies made it far more difficult—and sometimes, impossible—for these organizations to carry out their vital work. Those that could switched to virtual case management, which often proves a poor substitute. Funding and volunteer rates plummeted. Former outlets for high-risk young men, such as recreational centers, sports leagues, and gymnasiums, were suddenly closed off. Schools went to virtual learning, where many districts saw large drop-offs in the percentage of students actually logging on to “attend” class.
Additionally, the weight of the evidence suggests that people experiencing significant physical, social, or emotional “stressors” are more likely to act in violent ways than people who are not experiencing those same stressors. Obviously, the last two years have brought sudden and significant stressors for violence into the lives of countless Americans. Millions of sudden job losses and the financial worries, disruptions of routine, and lost sense of purpose that can come with long-term unemployment. Isolation. Deep political tensions playing themselves out on national television to a largely captive audience. Fears over health and well-being. General apprehension over the state of a world none of us had ever experienced before. Far too many people, including youths in the highest categories of risk for violence, have had far too much time on their hands under far too much stress and with far too few of their normal support networks for deterrence. This is a recipe for disaster.
COVID-19 policy decisions—even the most necessary and reasonable ones—had consequences. According to one study, family-related gun homicides in particular have increased by 34 percent since 2019. Instances of domestic violence, including domestic violence homicides, shot up dramatically in many states. That is, unfortunately, what one might expect when dysfunctional families are effectively forced into long-term quarantine together, without their normal means of finding healthy outlets, accessing help, or having dangerous warning signs noticed by others.
B. Significant Changes to Law Enforcement Resources, Tactics, and Trust
There is substantial evidence that police departments around the nation suddenly and significantly altered the ways in which they deployed resources and interacted with communities as a result of COVID-related necessities, widespread civil unrest, and high-profile anti-police sentiment. These changes very likely played and continue to play a role in the ability of impacted police departments to deter criminal acts, investigate violent crimes, and bring the perpetrators of those crimes to justice before they can reoffend.
Consider the slew of problems faced by officers during the height of the pandemic, when many departments found themselves decimated by the virus itself. At one point in the spring of 2020, nearly 20 percent of NYPD’s uniformed workforce was out sick or in quarantine, with many other major police departments facing similar shortages. Almost overnight, police forces around the country began taking steps to minimize interactions with civilians. This not only hampered pro-active policing efforts but also brought community policing tactics and outreach initiatives to build trust to a screeching halt. At the same time, in many cities, officers were diverted to the enforcement of COVID-related social distancing and closure orders.
There is also ample evidence that widespread social unrest and the high-profile proliferation of anti-police sentiment measurably shifted the deployment of police resources and led to unconscious (or perhaps entirely conscious) changes in policing styles. Because proactive, officer-initiated law enforcement is precisely the type of policing designed to disrupt patterns of violence, its sudden scaling back was bound to have devastating consequences for gun violence. Worse, it coincided in many cities with “defunding” measures, the cutting of vacant job openings, higher rates of retirement or quitting, and lower recruitment rates to fill the emptying ranks.
C. Widespread Implementation of Overly Lenient Approaches to Violent Crime
Let me be clear, while there is room for good faith discussions about criminal justice reform, including bail reform, these reforms must be tempered by reality, especially where violence is involved and the overall safety of the public is at stake. Far too many rogue prosecutors and other local officials, including Kim Foxx, the State’s Attorney for Cook County, have implemented poorly designed bail reforms and lenient prosecutorial tactics. The devastating results of these practices pre-date the 2020 homicide spike, but the problem has certainly been exacerbated during the last two years.
This is not speculation. This is hard data. Defenders of Cook County’s 2017 bail reform measures only succeed if they are permitted to fudge the numbers and mischaracterize reality. A comprehensive February 2020 study took a harder look at the actual numbers and found that the changes “appear to have led to a substantial increase in crimes committed by pretrial releasees in Cook County.” After the new bail policies were implemented, 45 percent more released defendants were charged with committing new crimes, and 33 percent more were charged with committing new violent crimes.
Progressive prosecutors like Kim Foxx insist that there’s no proof the individuals facing serious felony charges who are released on low bail or electronic monitoring are the ones committing further acts of violence. But just last month, a Chicago lawful gun owner got into a shootout with a man trying to steal a catalytic converter. The lawful gun owner won. But based on public media reports, the armed thief was the 51st person accused of killing or trying to kill someone in Chicago while out on bail for a felony offense this year. In fact, the man was simultaneously on parole from a felony prison sentence, out on bail for a felony gun offense, and facing charges for a second felony gun offense in another county. As of December 10, 2021, the number was up to 56 such instances, involving 83 victims.
The reality is that violent crime clearance rates in Chicago and other cities are abysmally low. We have no idea whether most individuals released on bail are behaving themselves or re-offending without being caught, because we actually have no idea who is committing most crimes. What we do know is that a majority of gun violence tends to be perpetrated by a small subset of repeat offenders, and that recent violent behavior is a good predictor of future violent behavior. It is statistically almost certain that we are dramatically undercounting the rates at which many of these repeat offenders continue to re-offend while on bail. This problem is not unique to Chicago. Rogue prosecutors from Philadelphia to Los Angeles are forcing communities to reap the consequences of their progressive and overly lenient policies.
There is so much more that could be said about these rogue prosecutorial practices, but perhaps nothing could summarize the sheer breadth of absurdity as well as single recent charging decision right here in Chicago. On a Friday morning in early October, during what appears to have been an intra-gang dispute, four people drove up to a house and began indiscriminately shooting into it. Individuals in the house returned fire. At least 70 rounds were fired, and in the end, one man was dead and two more were injured. The whole confrontation was caught on video. Police officers quickly tracked down and arrested five suspects, seeking for them to be charged with murder and aggravated battery. Given the reality of Illinois gun laws and the statistical likelihood these suspects were in illegal possession of firearms for which they did not have valid carry permits, several felony gun charges were also likely warranted. By Monday all five suspects had been released without charges. According to the police reports, the state attorney’s officer rejected all charges, citing “mutual combatants” as the reason.
This is truly astounding. Putting aside the reality that “mutual combat” neither applies to this situation nor is a complete defense to the charge of murder (it merely enables the defendant to be convicted of the lesser charge of manslaughter), the state of Illinois gun law is such that it is virtually certain at least one of these suspects could have been charged with a felony gun offense. But instead, they were all released. And this, truly, is the heart of the matter. Rogue Chicago prosecutors have reached a point where they will release suspects who fired dozens of rounds into a residential neighborhood being decimated by gun violence during an unprecedented spike in homicide and, with a straight face, tell the community, “It’s fine, they only ever shot at each other.” Which at the same time tells those who perpetrate violent gun crimes, “It’s fine, as long as you shoot at each other.” And then we wonder aloud to ourselves in Congressional hearings why Chicago suffers from a gun violence problem.
Viable Avenues For Meaningfully Addressing Gun Violence Spikes
The good news is that, while there are no simple or politically easy solutions, there are nonetheless viable avenues for addressing and combating the major factors driving this recent spike in gun violence. Even so, some of these avenues require us to pay careful attention to the paths taken, to ensure that we do not swerve off course too far in the opposite direction, but stay squarely centered in the lane.
1. Robust Enforcement of Existing Gun Laws
On the surface, enforcing existing laws may seem like an easy solution. After all, it is already illegal to trafficking in firearms, to sell or lend guns to prohibited persons, or for violent felons to possess firearms. It does not necessitate new laws. But to meaningfully enforce laws, many cities do need to change their policy approaches when it comes to law enforcement. This does not mean that we cannot engage in conversations about also funding important social services to complement law enforcement or make it easier for officers to stay focused on their own jobs instead of being mental health experts or mediators. It certainly does not mean we should refrain from conversations about better training or healthier models for police engagement with certain communities. It does mean that we need to accept the devastating effects of cutting jobs, undermining officer morale, and hamstringing officers’ abilities or willingness to engage in proactive policing.
The most recent and comprehensive studies demonstrate that, on the whole, more officers deployed in high-crime areas using “hot spot” policing tactics means fewer lives lost to gun violence. If black lives matter—and they do—then why is any city cutting police jobs and funding when statistics demonstrate that larger police forces save black lives from gun violence at a rate roughly twice that of white lives? And, importantly, this does not have to come with the additional problems of excessive force, profiling, or arrests being disproportionately leveled at people of color. The re-funding of departments and rededication to proactive policing can be pursued in tandem with efforts to professionalize law enforcement, implement better de-escalation and use-of-force training, and hold officers accountable for abuses.
Of course, pro-active policing is just one part of a complex picture. Unnecessary collateral sanctions continue to hold back many former offenders from pursuing lives as law-abiding, responsible citizens. Moreover, hiring and training officers (especially training them well and continuing to train them over time) is expensive and time-consuming. It cannot be accomplished overnight. But when it comes to gun violence, it turns out that everyone benefits from well-trained, pro-active police departments. But poor people and people of color have the most to gain in terms of reduced victimization from violent crime. This is particularly true when adequate policing is combined with addressing the other very real factors driving gun violence.
2. Combine Swift, Certain Punishment for Gun Crime Combined with Removal of Burdensome Gun Laws
Pro-active policing is not the only possible solution that comes as a balancing act. The same is true of what it means to scale back “progressive” prosecutorial tactics. On the one hand, it is clear that violent criminal offenders should be deterred from carrying firearms in public by ensuring that those who illegally possess weapons are caught and that their punishment is both swift and certain. On the other hand, states like Illinois [to say nothing of New York and California] make it very difficult for ordinary, law-abiding citizens to obtain and carry firearms in public. Where the lawful exercise of the right to keep and bear arms in self-defense is turned into an expensive, time-consuming, and logistically challenging bureaucratic nightmare, there is a genuine and well-founded fear that crackdowns on the public carrying of firearms will lead to many otherwise law-abiding gun owners being swept up as “violent felony gun offenders” for carrying a lawfully owned gun without a permit.
A recent study from Loyola University on arrests for illegal gun possession in Cook County help demonstrate the punitive effect of Illinois’ burdensome process for obtaining a concealed carry permit. A significant percentage of individuals arrested for illegal firearm possession are not otherwise prohibited from possessing guns and are not accused of using their gun in a violent manner or in furtherance of a crime. Their sole offense was a failure to obtain a concealed carry permit, something that under Illinois law they—as non-prohibited persons—could in theory obtain. The question is why individuals who want to carry in public and would actually qualify for the permit to do so nonetheless fail to obtain one. The answer seems to be, in large part, that obtaining a carry permit Illinois will cost several hundreds of dollars, require a working knowledge of the legal process, and impose serious time and logistical burdens.
So while the unlawful carrying of firearms by otherwise law-abiding and nonviolent people is certainly not something to be condoned, it is a very real phenomena that is exacerbated when states impose heavy burdens on the Second Amendment right. This becomes even more problematic in “may issue” states that effectively deny the right of self-defense in public with a firearm to ordinary citizens, who nonetheless feel compelled to carry because of a genuine fear of criminal harm. The goal, therefore, should be to avoid problems of needless criminalization of the right to keep and bear arms while still effectively combatting illegal gun possession by truly violent individuals. States should balance swift, certain punishment with public carry schemes that do not price out poor people or make the process so complicated as to deter ordinary Americans from trying to go through it in the first place.
3. Invest in and Rebuild Community Networks for Violence Prevention
States and local communities must invest in and help rebuild the community networks and services that are vital for violence prevention, while also understanding that these important buffers will not reach their pre-pandemic levels of effectiveness overnight. Many of these programs and networks will have to repair not only the lost bonds of engagement with their communities, but their own operations as well—funding, hiring, training lost support staff and volunteers. This will be much like restarting physical therapy after tweaking a healing knee. It is much easier to destroy previous progress than it is to repair it.
4. Encourage and Support Responsible Gun Ownership
Part of this hearing is to focus on illegal firearm trafficking, which is the driving force behind much of the criminal gun violence in this country. A significant source of black market firearms is the mind-blowing number of guns that are stolen from private citizens every year. The best estimates available suggest that hundreds of thousands of firearms are stolen annually from their lawful owners, often finding their way into the hands of criminals through illegitimate channels. Gun owners, as a general rule, would prefer their guns not to be stolen. But truly safe storage—not just a lock box that can be easily removed from a home and then pried open later—is expensive. Measures like tax credits for first-time purchasers of qualifying gun safes or for those who take certain gun safety training classes on safe storage could go a long way toward reducing the number of firearms stolen from homes every year.
Additionally, a significant percentage of stolen guns are taken from vehicles. Far too often, the gun owner keeps the firearm in his or her vehicle because state law prohibits him or her from carrying the gun into the public location where the owner needs to be. Relaxing overly strict prohibitions on public carry could serve to allow gun owners to keep their guns on their person instead of in their cars.
Conclusion: The Right Answers Are Not Always Simple Answers
None of the strategies outlined above provide particularly simple or quick solutions. They are not easily implemented overnight. They may be difficult to boil down into memorable slogans or pithy talking points. They may be far less appealing to constituents than the standard laments about having too many guns and too few gun laws. But the right answers are not always the simple answers. These strategies are the right ones. They pull us back in the right direction, which in this case, means saving lives. And for all of the demagoguery, division, and animosity that so often infiltrate the world of national politics, I continue to believe that in this endeavor to save lives, we are still on the same team.