Reasonable Gun Control

 
“I support the Second Amendment, but I think we should have reasonable gun controls.” This is a line frequently heard from politicians and certain special-interest groups. While it’s often disingenuous—since what the most vociferous gun-control proponents really desire is total prohibition, presumably in the noble but misguided hope of creating a non-violent society—I will nevertheless take the statement on its face for the sake of discussing reasonable gun-control measures.¹

As the U.S. Supreme Court has repeatedly held, all civil rights, no matter how fundamental, are subject to some degree of regulation in a society structured on ordered liberty. The Second Amendment right to keep and bear arms is no different. Furthermore, in D.C. v. Heller, while affirming the individual right to arms for self-defense and other lawful purposes, the high court opined that many longstanding gun-control regulations are presumptively lawful.

This brings us to the fact that most of the reasonable gun controls commonly demanded have already been in place for many years or even decades. However, not all of these regulations have been fully or properly implemented. I will examine each of these reasonable proposals below and offer suggestions for more effective improvement. Some of these gun-control schemes are more reasonable than others and will probably pass constitutional muster in the face of ongoing legal challenges, but some will fail this test and are likely to be stricken.

Background Checks

No one wants guns in the hands of violent criminals or the dangerously insane, so background checks have been federally indicated pursuant to all commercial firearms sales since the Gun Control Act of 1968 and much earlier in many states. Though their actual effectiveness is questionable due to the durable nature of firearms² and the propensity of criminals to acquire their guns via illegal means, the process has become relatively painless with the advent of the National Instant Check System (NICS) in the 1990s, and most transactions can now be cleared or denied within a matter of minutes. Since nearly instant background checks don’t unduly burden the right to arms, they will probably be ruled constitutional if challenged.³

Nevertheless, the system does have its flaws. First, NICS depends on data gathered from a number of sources. When the various agencies responsible for collecting this information fail to input disqualifying criteria, the system may still clear someone who should have been prohibited. Second, due to the high volume of false positives, law-enforcement agencies are unable to investigate denials. While most denials are overturned on appeal, a few are undoubtedly the result of legitimately prohibited persons,⁴ who may then proceed to obtain guns illegally. Both problems can be mitigated with greater attention to accurate and thorough data collection and by improved database integration.

Furthermore, despite the largely successful implementation of NICS, various provisions of the Gun Control Act keep gun sales mired in mid-20th century practices, particularly when interstate transactions are involved. By law, a Federal Firearms License (FFL) is required to deal in firearms, but licensees are restricted to face-to-face transactions with residents of their own states, except when dealing with other licensees. This can actually compromise the security of an interstate transfer, as the firearm must pass through many more hands on its way to the legal buyer, increasing the likelihood that it may be lost or stolen along the way.

There are two possible and relatively easy solutions to this problem, though both would require that the law be amended. First, leveraging the NICS service, outdated residency requirements could be eliminated, allowing any cleared customer to take delivery of a firearm without being forced to first have it shipped to a licensed dealer in the customer’s home state. Second, an existing category of FFL could simply be expanded to include a wider variety of firearms, affording the licensed collector more convenience while exposing him and the community at large to less risk.

These reforms would also have the added benefit of further discouraging undocumented and potentially unlawful private sales, which I will discuss in more detail below.

Registration

We’ve had de facto gun registration at the federal level (as a result of the record-keeping requirements for FFL holders) and de jure registration in several states for many, many years. Though registration is of dubious utility to law enforcement, it has also done little harm to law-abiding gun owners, despite dire predictions from some quarters within the right-to-arms camp. Implementing a standardized federal registration system would work very well in conjunction with the modernized interstate-transfer procedures described above.

That said, there is some evidence from the courts that registration may be deemed unconstitutional. It certainly contradicts the Fourth Amendment right to privacy. Arguably, however, the militia clause of the Second Amendment suggests that the government may have a constitutional interest in understanding the disposition of arms suitable for militia service—and I will discuss which firearms should be considered militia weapons in detail below.

Licensing

Beyond the FFL system described above, there has long been a call to license gun owners. We license drivers after all … or so the argument usually goes. In fact, though, licensing regimes are now present in all states but Illinois—a problem being addressed in the courts right now. Unfortunately, several of the most populous states (including California and New York) still continue to discourage their citizens from becoming licensed, despite having had licensing systems in place for many decades.

Indeed, licensing reform is currently the top priority within the right-to-arms movement, where it is viewed as the gun-control measure offering the single most immediate benefit to public safety. To that end, multiple legal challenges to unconstitutional licensing practices are working their way through the federal courts and will likely reach the Supreme Court within the next two years. The high court is widely expected to rule that while states may regulate when and where their citizens may carry guns for self-defense and other lawful purposes, there must also be a legal mechanism for them to do so that is administered equitably and that doesn’t unduly burden the core right.

I have reported on liberalized or shall-issue licensing before. Whenever and wherever such licensing reforms have been adopted legislatively, there have been exaggerated claims by opponents that gun violence would explode as licensees instigated shootouts for all manner of trivial reasons. Of course, no such thing ever happens. Instead, licensees have proven to be exceptionally law-abiding, and the data suggest that right-to-carry laws contribute to an at least slight decrease in violent crime.

This decrease is due mostly to the deterrent effect of an armed populace. Even though only a tiny fraction of the eligible citizens choose to obtain licenses, would-be attackers are still dissuaded and seek out softer targets. Over time, this effect should become more pronounced as a larger percentage of the population becomes licensed and, hopefully, as other criminal-justice reforms are implemented.

However, I won’t argue that armed citizens are a perfect antidote for episodes of mass murder.⁵ Both are statistically rare, so the likelihood that a licensee will be immediately present when one of these very unusual events erupts is exceedingly small. While the chances that an armed citizen will simply be nearby are significantly higher, licensees are not police officers and are trained to avoid confrontation whenever possible. In any case, the event wouldn’t be recognizable any longer, since the headline would read: “Gunman opens fire in crowded shopping center. Dozens injured.”

Safety Training

Safety and competency training will always be valuable where firearms are concerned. In fact, voluntary safety programs formalized in the 1950s and championed by the National Rifle Association are probably responsible for reducing the rate of fatal firearms accidents to statistical insignificance. Nevertheless, states that don’t include any training as part of their licensing requirements still haven’t seen an increase in accidental shootings, which suggests that stringent training demands would provide little additional benefit to public safety.

That said, any potential training requirements that weren’t unduly burdensome would probably be deemed constitutional. Here again, the Second Amendment provides for a well-regulated militia, and in its 18th-century context, well regulated was understood to mean well trained. To this end, basic firearms safety could reasonably be included in school curricula, possibly helping to reduce accidental shootings even further.

Waiting Periods

Waiting periods have come and gone over the years, but they were sold politically to accomplish two goals. First, waiting periods allowed time to conduct the mandatory background checks, though NICS has essentially obviated this need. Second, they provided a cooling-off period for any gun buyer who might be acting on some temporary murderous impulse, though I’m aware of no correlation between waiting periods and reduced homicides.

In short, waiting periods have probably outlived any utility they may have had. Nevertheless, in California and other states where they remain, there is speculation that at least initial waiting periods for first-time gun buyers would survive constitutional challenge. If this proves to be the case, though, the state may be left in the position to delay access to firearms to those who may legitimately and suddenly develop an immediate need for effective self-defense.

Unfortunately, I see no remedy for this problem, if cooling-off periods are allowed to stand. It may simply be a matter of personal responsibility for those living within an imperfect system. It’s probably too late to buy the fire extinguisher once the fire has already started.

Private Sales

This is the so-called gun-show loophole. While gun shows enjoy no special exemptions, under federal law and in many of the several states, private sales are largely unregulated. Private parties are free to dispose of their own property as they see fit, so long as they aren’t knowingly transferring firearms to prohibited persons or dealing without a license.

For those less familiar with gun laws, you may find the dinner-party loophole somewhat easier to understand. This is the gap in health-and-safety laws that allows you to serve food and drink to your own family or to host a dinner party for friends and associates without having to obtain FDA approval or a conditional-use permit from your county of residence. Closing this loophole would require you to obtain the services of a licensed caterer before dining at home.

While there is much talk about requiring all private firearms transfers to be conducted through the agency of licensed dealers, as they currently are for the most part in California, it’s unclear whether such restrictions would be deemed constitutional. In addition to the Second Amendment, controls on private property also implicate the Fourth, Fifth, and Ninth Amendments. On top of this, such regulations are very difficult to enforce, effectively guaranteeing a low rate of compliance.

A better approach would be to encourage voluntary participation in the national background-check system. Providing private sellers with access to NICS would be well received by the vast majority of gun owners, who are generally eager to follow the law and who would appreciate the extra peace of mind while still avoiding the gross inconvenience of conducting private sales through licensed dealers. While this certainly wouldn’t eliminate all undocumented transactions, it would minimize them to a large extent, allowing law-enforcement resources focused on the illegal arms trade to be targeted more efficiently.

“Dangerous and Unusual Weapons”

In Heller, the Supreme Court explicitly ruled that weapons “in common use” by the people are protected by the Second Amendment, implying in its historical analysis that “dangerous and unusual weapons” could be subject to more stringent controls. However, these terms were left somewhat vague. The specific weapon “in common use” in this case was a personally owned handgun, but which weapons are “dangerous and usual”? And how does this decision square with the only previous Second Amendment ruling, U.S. v. Miller?

In Miller, the high court held that weapons suited for militia service were constitutionally protected. While this ruling may be regarded as partly erroneous due to the incomplete briefing process before the court, at present time, the weapon best suited for militia duty would be a select-fire assault rifle chambered for the 5.56×45mm NATO cartridge—or at the very least a semi-automatic analog thereof. However, select-fire weapons, other fully automatic firearms, and various “destructive devices” have been tightly controlled since the National Firearms Act of 1934 and essentially banned from production for the civilian market since 1986.

If the prohibitions on “dangerous and unusual” military weapons are constitutional, then that leaves us with semi-automatic versions of military rifles as the de facto protected militia weapons “in common use” by the people. However, despite their involvement in only a fraction of gun-related homicides, these are the very same “assault weapons” that so many gun-control proponents would like to see banned.

Now, as I’ve written before, so-called assault weapons are fictitious. The term was used to frighten the uneducated public into support for the federal ban that expired in 2004. A semi-automatic rifle is a semi-automatic rifle, regardless of whichever secondary features it may have—and like millions of other Americans, I own one myself. My modern Kel-Tec SU-16 rifle with its traditionally shaped stock is really no different than a 50-year-old Colt AR-15 with a pistol-grip stock. Both are chambered for the same intermediate 5.56mm cartridge.⁶ Both can accept the same five-, 10-, 20-, 30-, 60-, or even 100-round magazines. And both can fire only one shot for each pull of the trigger.

Therefore, per Heller, semi-automatic rifles are “in common use” and thus constitutionally protected for lawful purposes. They are also the only readily available militia weapons protected per Miller. Unless the prohibitions on more appropriate military-grade weapons are to be relaxed, any bans on semi-automatic “assault weapons” are both pointless and very likely unconstitutional.

Gun-Free Zones

Gun-free zones are a dangerous fiction and should be eliminated immediately. Vague, poorly defined zones have been ruled unconstitutional once before and doubtlessly will be again when an appropriate challenge arises. In the meantime, as we’ve learned tragically and repeatedly, the only guns these zones are free from are those held by law-abiding citizens.

Specific zones are more legally tenable, but to effectively implement truly gun-free zones would require secure perimeters, controlled access points with thorough searches of all incoming traffic, and ubiquitous surveillance.⁷ In other words, we would have to turn these “sensitive places” into prison camps. This would be both impractical in economic terms and antithetical to a free and open society.

Let’s reserve the prison-camp mentality for places where we really have no other choice … such as in actual prisons.

The foregoing gun-control proposals represent what reasonably can and cannot be achieved. Properly implemented, they can provide us with a constitutional and functional right to arms while still allowing both practical and symbolic legal tools for reducing violent crime. Most are already in place and need only minor adjustments to be made more effective.

This goal is politically possible for those who honestly wish to enhance public safety while also protecting our civil rights. The vast majority of gun owners already support these reasonable measures, and none of us expect to win a completely unfettered Second Amendment. What we do not appreciate is continually being blamed for the wrongdoing of the minority of willfully evil and dangerously insane people in this world, and we will certainly no longer tolerate being punished for their crimes.

1. The intellectually honest supporter of reasonable gun control will ultimately find himself in the right-to-arms camp. I should know, because I was that person. While my views have evolved toward libertarianism and away from the utilitarianism implicit in the unreserved support for gun control, that doesn’t change the fact that we will be living with some degree of utilitarian regulation until long after the subject has lapsed into irrelevance.


2. A well-maintained firearm will remain functional for hundreds if not thousands of years, and there are at least 800 million already in circulation worldwide. We will never run out of guns. This is one of many reasons why outright prohibition is an unacceptable proposition.


3. Of course, if background checks are acceptable for the exercise of a fundamental civil right, then arguably they should be applied to other less protected areas as well, such as voting rights, driving automobiles, or the receipt of public benefits.


4. I would argue that there should also be a way for prohibited persons to eventually restore their civil rights. Otherwise, the utilitarian argument dictates that anyone too dangerous to be trusted with a firearm is too dangerous not to be incarcerated.


5. It certainly wouldn’t hurt to allow licensees to go armed in otherwise unsecured “sensitive places.” Existing laws vary widely in this respect.


6. Military assault rifles and their semi-automatic civilian analogs are chambered for intermediate cartridges, more potent than low-powered handgun cartridges but less powerful than the high-powered rifle cartridges used for hunting and long-range precision shooting.


7. Even the strictly enforced gun-free zone only relocates the problem. Instead of a bunch of unarmed victims congregated inside the zone, we would have a bunch of unarmed victims queued up outside the zone waiting to be screened for entry. Either way, the would-be mass killer is presented with a target-rich environment.

Self-Defense, the Right to Arms, and the Concealed-Carry Revolution

The video I’ve shared is from a recent Cato Institute policy forum on self-defense and “stand your ground” laws. Though fairly long, it provides solid historical, political, and legal analysis, so I encourage everyone to watch. As you might suspect, I disagree in part with the last commentator,¹ but I still think he made valid points about the application of the law and the possible need for further guidance. After all, if “stand your ground” laws were a reaction to the misapplication of other statutes by prosecutors, are they not at risk for misapplication themselves? Absent political motives, the mere fact that relative experts disagree on the meaning of these laws suggests there is yet a degree of ambiguity, but that is a matter for legislators and judges to resolve.

As noted in the video, the adoption of such affirmative self-defense statutes has followed the proliferation of right-to-carry laws throughout the country. However, many if not most people are still largely unaware of this quiet revolution, both because the laws encourage or even require the concealed carry of firearms and because the mainstream media usually does their best to ignore the laws once they’ve been passed.² Naturally, there is a long and troubling history behind the right-to-carry movement, and I can touch on that only briefly here.

In A.D. 1986, only a handful of states would readily issue licenses to common citizens. In the rest of the country, the carrying of firearms was either broadly prohibited or the licensing authorities had almost unlimited discretion in issuance. This was the legacy of the two-pronged gun-control efforts³ of the 1920s and ’30s, which were ostensibly intended to combat the dramatic increase in violent crime that accompanied alcohol prohibition.

That began to change when Florida became the first state in recent decades to adopt a shall-issue statute, which required the licensing authority to issue licenses to all applicants who were not legally disqualified. Florida’s concealed-carry law became a model for reform, and by the mid-1990s, over half of the United States had enacted similar shall-issue statutes. The causes have not been widely explored, but I think that they will prove clear enough once this chapter of history is written.⁴

Opposition to the shall-issue movement has been and continues to be fierce, and in each case it has usually taken several years for liberalized concealed-carry legislation to make it through state legislatures and past gubernatorial vetoes. Without fail, opponents have warned of dire consequences should the reforms pass into law. Blood would run in the streets, they assured, as minor disputes and disagreements escalated into shootouts. Invariably, though, such grim outcomes have failed to materialize, and violent crime has continued to decline⁵ as right-to-carry laws have continued to expand.

Today, all but a handful of states enjoy shall-issue licensing or better. California, New York, and several other “liberal” states still maintain discretionary, may-issue regimes, while Illinois is the only state with no licensing system. Legislative reform is unlikely in these gun-control strongholds, so multiple constitutional challenges are now making their way through the federal courts.

The U.S. Supreme Court is widely expected to hear one or more of these cases within the next two years.

1. I am far, far more worried about misconduct by the police and prosecutors than I am about the potential that a criminal might “get away with it” here or there.


2. After vigorously campaigning against a right-to-carry reform, the news media seem to conveniently forget about the topic, except for occasional “investigative” pieces designed to expose or embarrass licensees. Here is a recent exception to that rule. “New Fashion Wrinkle: Stylishly Hiding the Gun.” The New York Times (2012).


3. These efforts resulted in the National Firearms Act of 1934, which sought to regulate firearms at the federal level via taxation (since the federal government was presumably bound from direct infringement on the right to keep and bear arms by the Second Amendment), and the “uniform acts,” which sought to control guns at the state level (since state governments were presumably not bound by the Second Amendment). In practice, though, the various prohibitions on concealed firearms found within the uniform acts were mostly used to disarm “undesirable” people (i.e., minorities and immigrants), and that was probably a large part of the true intent behind them. Otherwise law-abiding white citizens were generally unaffected for several decades, and the wealthy and influential could always count on getting licenses or at least special consideration in the event of any embarrassing incidents.


4. I contend that the right-to-carry revolution developed as a response both to the equalized enforcement practices reached in the 1970s and ’80s and to the political successes of the national gun-control movement from 1968 to 1994. Note that the number of shall-issue states had almost doubled within two years of the enactment of the federal ban on “assault weapons.”


5. The FBI’s Uniform Crime Reports show that homicides (gun related and otherwise) have continued to decline from 2006 to 2010. Firearms-related homicides specifically dropped from 10,225 to 8,775. More guns on the street simply do not correlate to—let alone cause—more violence.

Ever the Rush to Judgment

In all very numerous assemblies … passion never fails to wrest the sceptre from reason.

–James Madison

It has been a bitter few weeks in the struggle for human freedom, not so much because of actual setbacks or defeats—though we’ve had those too. Instead, we’ve seen the usual political opportunism that attends controversial events but this time in the ugly company of both popular disregard for the constitutional separation of powers and the emotionally expedient disrespect for fundamental American legal principles, such as due process of law and the presumption of innocence. For me, this is always a painful reminder of how little the people understand or value liberty.

My disappointment is the greater, because it is my own friends and colleagues whom I cannot sway in the face of salacious hearsay spread by the mainstream media. These are otherwise intelligent individuals who profess desire for “social justice” but have let their own emotions and prejudices blind them. Now, in fits of vengeful rage, they would forsake the social and legal barriers that preserve and defend actual justice in a rush to condemn people and events about which they are not properly informed.

It’s moments like this when my own resolve weakens. If reason will always face defeat at the hands of passion, why continue the pretense of debate? Why not abandon the polite, legalistic contest for ordered liberty and hoist the black flag of bloody revolution? Or somewhat more mildly, should I simply surrender to the unhappy idea that to live free means to live as an outlaw—or at least to live as an outsider within a society ruled by the mob’s caprice?

No. I am not ready to retire from the battle of ideas just yet. Important victories for civil rights are in the offing, even if they seem perpetually two years away at the moment.