Some people who believe that changes in American gun laws would save lives seem to think that somehow it will help to demonize the millions of peaceable (and voting) Americans who own guns or who are members of the National Rifle Association. This is despite the fact that many gun owners favor certain changes to gun laws and that many have good reasons to oppose certain changes.
Is the goal to gin up partisan rage for the 2018 elections or to actually achieve the most sensible set of laws? Demonizing people might further the first goal but it distracts from the second. It also worsens the polarization threatening to rip the country apart. Do we want a reasoned discussion or just another screaming match?
The horrific mass murders in Las Vegas, Texas, Florida, and elsewhere weigh on all of our minds. So, yes, if it might be possible to tighten up certain gun laws in a way that keeps people safer while protecting people’s moral and constitutional right to own guns for self-defense, then we should think seriously about such proposals.
Before I get into current gun laws and possible changes to them, I want to briefly review some reasons why the gun debate so often goes badly off the rails.
First, do some people assert the right to own a gun as a matter of dogma? Yes, obviously. For example, when someone cheers on the government for deporting a peaceable, productive person who has lived in the country for decades, who is married to a U.S. citizen, and who has children who are U.S. citizens, that person’s claims about “God-given rights” ring hollow.
But just because some people offer poor reasons for owning a gun does not mean that there aren’t good reasons. Do we want to spend our time fighting over straw men or do we want to have a real conversation?
Next I want to point out some of the important issues often excluded from discussions about guns. In no particular order:
1. Defensive Gun Use: Obviously mass murders get an enormous amount of media attention, and understandably so. (I do wish media would stop splashing the faces and names of perpetrators continually across every screen and newspaper in the world, as that gives such murderers the infamy they seek.) But we should remember that people really do use guns defensively to protect themselves from violent criminals.
Media give such defensive gun uses hardly any attention, precisely because the intended victims often survive unharmed. Many cases of defensive gun use are not reported at all; literally no one knows about them except the thwarted criminal, the gun owner, and perhaps a police officer who files a report.
A related issue is that it is impossible to tell exactly how many lives are saved from defensive gun use, because in most cases we cannot know how a situation would have gone otherwise.
By the way, if at this point to denigrate defensive gun use you invoke a statistic regarding the low number of criminals killed when guns are used defensively, I will point out that successful defensive gun use hardly ever results in a dead perpetrator.
2. Deterrence: Gun ownership helps deter certain sorts of crimes, particularly home invasions. Obviously a home that is never invaded because of the deterrence effect of gun ownership does not make the news.
3. Substitution of weapons: Criminals can and often do substitute other weapons, especially when a criminal is physically stronger than the intended victim (as is often the case with muggings and domestic violence). So focusing only on gun-related violence does not tell the whole story.
If we could magically push a button and make every gun in America disappear overnight, the next day (once the news got out) the amount of non-gun-related violence would skyrocket and remain radically higher than it is now. Although the rhetoric surrounding guns often suggests otherwise, a case of non-gun-related violence is not somehow less reprehensible than a case of gun-related violence, other things equal. Perhaps the amount and severity of crime would on net be less, but clearly it will not do to ignore the substitution effect.
Let’s not forget that the 9/11 attacks, which killed 2,996 people, were carried out by hijackers with boxcutters.
4. The black market: Criminals by definition do not obey the law. There already is a thriving black market in guns, and this market will continue regardless of what politicians do. (We should bear in mind that gang violence is responsible for a large portion of American gun violence, and criminal gangs do not obey gun laws.) Granted, laws can affect the nature and scope of the black market, just as they affect the nature and scope of the black market in drugs. We should be aware that a) some people wil get around any gun law, even total prohibition, and b) the black market in guns is itself a source of violence, just as the black market in drugs fuels gang violence.
5. Failures of laws: Laws are by their nature imperfectly enforced. We know that the police “repeatedly” investigated the Florida perpetrator and that the FBI failed to follow through on his publicly published threats to shoot up a school. We know that in at least two cases a perpetrator of a mass murder was able to buy a gun because the relevant background-check database was not updated with the information that would have blocked access. So we cannot assume perfect enforcement of a given law.
6. Costs of enforcement: Every minute that a law enforcement officer spends making a peaceable gun owner jump through bureaucratic hoops is a minute that the officer does not spend investigating and preventing violent crimes. Apparently FBI agents just didn’t have the time to pursue the threats of the Florida perpetrator. Gun laws do not enforce themselves.
7. Individual rights: Violence has causes other than gun availability, yet, largely for reasons of partisan politics, guns typically dominate the discussion. I don’t know exactly what is the ratio of peaceable gun owners to criminal gun users, but the ratio is very large. The millions of peaceable American gun owners count. They have rights, and they do not deserve to be disarmed, subjected to senseless bureaucratic controls, or put in legal jeopardy for inadvertent and trivial violations.
The ideal is to get guns away from those in the tiny fraction of the population who use them for violence while leaving alone everyone else. Yet, judging from some of the rhetoric I’m hearing, some people seem to want to disarm peaceable people just from spite.
The upshot is that if you ignore defensive gun use and the deterrent effect of gun ownership for certain crimes, if you ignore the ability of many criminals to switch to other weapons, if you ignore the black market in guns, if you assume perfect or zero-cost enforcement of gun laws, if you treat gun availability as the only contributor to violent crime, or if you presume that the millions of peaceable American gun owners don’t matter, then I will assume that you are acting in bad faith and uninterested in having an honest discussion about guns and gun laws.
What follows is for those interested in having a serious conversation.
Before turning to some changes to gun laws that I think might be a good idea, I want to mention a proposal that is a terrible idea—the so-called “assault” weapons ban (which means a ban on licensed sales, not on ownership).
The term “assault weapon” most sensibly refers to a fully automatic gun. The difference between a semi-automatic “assault” gun and any other semi-automatic is largely cosmetic. The insidious purpose of creating a legal category of “assault” semi-automatics is to establish the basis for the eventual ban of all semi-automatics, because there is no functional difference in basic operation. The proposed “assault” weapons ban (which has already been tried) is a bad-faith measure that cynically depends for support on raw emotions and on widespread ignorance of firearms.
Now, if we want to talk about caps on magazine capacity, then that applies to all semi-automatic guns. I don’t support caps on magazine capacity because normal-capacity magazines are useful for self-defense and because limits on them have little or no impact on the capacity of criminals to hurt people. But I acknowledge that caps on magazines, although inherently arbitrary (the roundness of the number ten is the only point in its favor), at least is a coherent proposal. If I actually thought that restricting magazine capacity (at the stage of new sales) would measurably reduce violent crime, I’d reconsider my position. Realistically it won’t do that.
What legal changes might actually make a difference? Here I offer some tentative remarks. (I reserve the right to change my mind in light of new evidence and arguments.)
Universal Background Checks
Yes, I get it: All licensed dealers already must comply with the background check system. But, to my mind, the entire federal licensure program of gun dealers is peculiar and artificial.
As I discussed some years ago, it is possible to have a universal background check system that, unlike the existing system, does not effectively register gun owners with the federal government. Yes, I know; there’s no official central database of gun owners. Still, licensed dealers are required to keep the paperwork, and federal agents may access that paperwork whenever they want. At any time Congress could authorize the incorporation of all that data into a central database of gun owners. (Here is where you call me paranoid and I refer you to past cases of gun confiscation and to the endless stream of articles published in the U.S. calling for gun confiscation.)
The basic idea of my proposal is that any citizen would be able to access the background-check database, and anyone who sold a gun to a person in the database by failing to check it would be subject to criminal and civil sanctions. Yes, there are a lot of complications here, but I think they could be worked out satisfactorily.
Incidentally, if we moved to the sort of system I outline, we could do away with the federal system of licensed dealership, but that’s tangential to my proposal.
What of the problem of government wrongly denying people their ability to buy a gun, say, because they have a name similar to someone in the database? One possible way to partly remedy that problem is to require government to promptly issue a certificate to anyone having such problems confirming identity.
But there’s no getting around the fact that any background check system will have problems of incomplete data, inaccurate data, straw purchases, and confusion of identities. There is no omnipotent background check angel behind the curtain.
Gun-Violence Restraining Orders
David French has gotten a lot of attention for his proposal for “gun violence restraining orders”:
[B]efore the deadly act itself, there is no clear path to denying [someone who gives off warning signals] access to guns. Though people can report their concerns to authorities, sometimes those authorities fail or have limited tools to deal with the emerging danger. What if, however, there was an evidence-based process for temporarily denying a troubled person access to guns? What if this process empowered family members and others close to a potential shooter, allowing them to “do something” after they “see something” and “say something”? I’ve written that the best line of defense against mass shootings is an empowered, vigilant citizenry. There is a method that has the potential to empower citizens even more, when it’s carefully and properly implemented. It’s called a gun-violence restraining order, or GVRO.
Is there a potential that such a thing could be abused? Of course. But, thinking about it, it doesn’t seem like the only relevant legal standard for restricting someone’s access to guns should be the criminal one of “beyond a reasonable doubt.” Surely police may sometimes act on a lesser standard of evidence. By comparison, police can arrest someone on probable cause. Offhand, it seems reasonable to me that a person can be denied access to guns if there is something like a “preponderance of evidence” that the person has, through deed or action, made a tangible threat to harm others.
When someone says they’re going to shoot up a school or otherwise hurt people, I think we should take the threat seriously.
Jacob Sullum worries that the proposal gives “short shrift to due process and the Second Amendment.” And he writes, “there is much potential for abuse by malicious or mistaken petitioners, abetted by judges who will be inclined to err on the side of what they believe to be caution by revoking the Second Amendment rights of possibly dangerous people.”
These are definitely concerns worth worrying about. But, if there are clear standards regarding a tangible threat and good due process provisions built in, I don’t see why the problems that Sullum discusses can’t be substantially overcome. If law enforcement can never act if there is a potential for abuse, then we just have to throw out the entire criminal justice system, because it is rife with abuse. Of course we can build in better or worse safeguards.
In my view it’s an idea worth considering, though by no means a slam-dunk for the reasons Sullum discusses.
Consider a scenario. Someone posts on social media, “I hate all Jews [or black people or white people or whatever] and I plan to buy a gun and shoot a bunch of those people.” Are we saying that there is literally nothing police can do about this except try to monitor the person? So the police have to watch the person walk into a gun store and buy a gun, and the police can do nothing else? If the police do not have the resources to monitor the person or the monitoring is interrupted, the person easily could attempt the crime he said he’d perpetrate.
Of course, the proposal for the restraining order is toothless unless it is folded into the background check system. So whatever a person concludes about the background check system should be applied here too.
My general stance is that, once a person has the responsibilities of adulthood, the person ought not be denied the rights of adulthood.
At the same time, the age of 18 is fairly arbitrary. Reports I’ve read indicate that the male brain does not fully mature until the mid-twenties.
So long as people are required to register for the draft at age 18, I will oppose any gun restrictions for people older than that. Of course, if we abolished draft registration, which is the right thing to do anyway, then we could talk about creating more of a transition period to adulthood, perhaps with judicially reviewed early admittance.
Offhand, I can’t think of strong reasons not to set the usual purchase age for semi-automatic rifles at 21.
If we talk about handguns, we have to consider the case of the 18-year-old woman, living independently, who might want to buy a semi-auto handgun to protect herself from her violent ex-boyfriend. Hence, I think existing law gets things pretty much backwards.
We should realize that raising the age limit probably would have no measurable effect on crime. But it’s not unreasonable to think that it might prevent some young fool with hate in his heart from easily getting a rapid-fire rifle.
Here’s the problem: Any bill along these lines almost certainly will be a cynical ploy to restrict access to guns beyond what is reasonable. Such is the case with Dianne Feinstein’s proposal.
Here is the Huffington Post’s headline: “Dianne Feinstein Wants To Raise Minimum Age For Assault Weapon Purchases To 21.” The headline is a lie. Feinstein does not merely want to raise the age for buying “assault” guns (i.e., semi-automatic guns that Feinstein deems scary-looking) or even just semi-automatic guns. She wants to raise the age for “all firearms.” She says, “If you can’t buy a handgun or a bottle of beer, you shouldn’t be able to buy an AR-15” (by which she means any gun).
Consider this scenario. An 18-year-old man joins the military, gets married and has a child, gets his foot blown off in combat while serving in Afghanistan, then returns home on medical leave at age 20. According to Feinstein, this soldier, who has extensive experience with military-grade weapons, should not be allowed to purchase a bolt-action .30-06 to hunt deer or even a single-shot twenty-two to hunt rabbits—and never mind a revolver to protect his family. Also, he should not be able to buy a six-pack of beer or a bottle of wine to enjoy with his wife. That’s ridiculous. No honest person thinks that preventing such sales is going to keep anyone safer (at least relative to preventing such sales for a random person over 21).
If you’re old enough to die for your country, you’re old enough to buy a gun or a beer. If you’re not old enough to buy a gun or a beer, then you have no business fighting in the military. One possibility is to set the usual age for all those things at 21, but then let a judge sign off for early adulthood status as early as 18 (or maybe even 17).
Regarding such proposals as Feinstein’s, let’s not pretend that obviously idiotic and hypocritical standards are somehow sensible.
February 22 Update: Jeff Flake says a bill he’s “working on” with Feinstein would pertain to “non-military buyers.”
Let School Officials Carry
Look, contrary to what I’ve read in irresponsible social media posts, no one is suggesting that teachers and other school administrators be forced to carry a gun. But if a teacher or administrator wants to carry a gun and wants to get appropriate training, why prevent it?
Indeed, why prevent anyone with a concealed carry permit, which requires extensive background checks, from carrying a gun onto campus? If people are worried about inadequate training, we could create a “concealed carry plus” category that lets people carry in more places after getting more training.
It is just a raw fact that many mass murders occur in so-called “gun free zones” where guns are forbidden either by law or by proprietor directive. Apparently this is a real head-scratcher, but criminals seem to ignore the restrictions of “gun free zones.” Obviously would-be criminals are less likely to attempt a crime if they think they will be unsuccessful in carrying it off, and the real possibility of facing armed resistance makes a criminal “success” less likely.
Scale Controls by Capacity
Contrary to widespread belief, fully-automatic guns are not illegal in the United States. Some of my friends own them, and I’ve shot one. They are, however, regulated extraordinarily tightly, and due to the sales ban for new guns they are extremely expensive. I actually think that full-autos are dramatically over-regulated.
At the same time, it makes no sense to draw a sharper line between full-autos (and a few other types of guns we needn’t discuss here) and everything else than between a semi-automatic rifle and a single-shot twenty-two. In terms of capacity, the semi-auto is a lot closer to the full-auto than the single-shot twenty-two is to the semi-auto. (Full-autos often have a selector switch such that they can function as semi-autos.) In this respect, America’s gun laws make no sense.
Okay, there is one rationale for treating full-autos differently: firing on full-auto mode is useful mainly for laying cover fire, not for firing discriminately at individual targets. But then we also have to consider that full-autos can be set to fire three-round bursts, and a semi-auto can be fired into crowds (as we have unfortunately seen). So I still think it’s true that the dividing lines are largely arbitrary. Just consider: Would a soldier going into battle be indifferent between trading his full-auto for a semi-auto and trading it for a single-shot twenty-two?
Arguably it would make a lot more sense to restrict access to items according to their capacity to facilitate the killing of a lot of people in the wrong hands. If we follow this line, then on one side of the spectrum is the single-shot twenty-two rifle, which is pretty good for plinking cans or hunting rabbits, and on the other side is the full-auto. (Potentially far more dangerous than guns are explosives and such, but we needn’t get into that here.)
Imagine two scenarios. In the first scenario, a father buys his 14-year-old daughter (or his 18-year-old daughter) a single-shot twenty-two rifle for her birthday. Let’s assume the father keeps the gun locked up and oversees his daughter’s use of the gun. Does anyone seriously have a problem with that? (Let me help you out: If you have a problem with it, you’re just being irrational.)
In the second scenario, a father buys his young daughter a fully-automatic (or even a semi-automatic) rifle and lets her use it unsupervised and without any training. Does anyone seriously think that’s a good idea?
So, yes, I’m open to the idea that a single-shot twenty-two should be regulated hardly at all whereas a semi-automatic rifle should be restricted somewhat more tightly, perhaps with higher age restrictions. At the same time, I think that new full-autos should again become available on the civilian market, albeit with relatively tight restrictions. (One reason to consider this is to increase military readiness.)
February 23 Update: As I’ve mentioned elsewhere, I also think it makes sense to treat bump stocks the same as full-autos. However, this should be done by Congressional action, not bureaucratic fiat.
Here is the main problem with this idea of scaling restrictions based on capacity: Those intent on total gun bans would seize on this proposal to try to regulate everything other than single-shots (and perhaps revolvers) out of existence or nearly so.
If gun owners could reasonably believe that people who say they only want “reasonable, common-sense gun-safety laws, for the children” didn’t actually often want to eventually ban practically all guns for normal people and send in the (heavily armed) jack-booted thugs to collect them, it would be a lot easier to have these kinds of conversations.
As it is, the chant on the streets is “no more guns.” When I hear people chant “no more guns” and demonize peaceable gun owners, I think that perhaps they mean what they say. And that makes me hesitant to put forward proposals that I reasonably believe cynical and dogmatic politicians and activists will twist for ideological satisfaction, partisan gain, and Bloomberg cash.
Yet I also know that there are a lot of good and well-meaning people out there, on both sides of the gun debate, who actually do want to have a real conversation about ways to curb violence while respecting people’s rights. I’ve put my ideas on the table; what are yours?
Image: Wikimedia Commons