Is Gun Regulation Maturing?

Nicholas Johnson in Library of Law and Liberty, November 20, 2012

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Article written by: Professor Nicholas Johnson

Retired Justice John Paul Stevens was recently in the news commenting on the right to keep and bear arms that was affirmed in the Heller decision, where he dissented.  Speaking  at the Brady Center to Prevent Gun Violence, Stevens said he is surprised Congress has largely sidestepped policy debates over “the damage that is done by the unregulated use of firearms.”  Referencing shootings in Colorado and Wisconsin Stevens lamented, “when an issue is a subject both of such importance and such widespread discussion, the fact that Congress doesn’t address it, I find mind-boggling, to tell you the truth.”

The implication here is that there is a good fix sitting on the shelf that could be implemented but for the failure of political will.   The implication is false.   The reality is that with more than 320 million guns already in the civilian inventory the supply control agenda – urging peripheral gun bans, one gun a month laws, limits on ammunition sales, etc., -  is substantially an exercise in symbolism.   Neutral policy critiques acknowledge this.

Two assessments of  U.S. gun control policies, one by the CDC and another by the National Research Council are agnostic about the effectiveness of existing gun control measures.  At a recent symposium at my law school, a colleague who is no friend of the gun lobby, came to the same conclusion from a review of the literature.     The folly of de jure supply control policies (extrapolating from the simple logic that zero guns equals zero gun crime) in an environment that is saturated with guns was evident in the high rates of gun crime in the District of Columbia and Chicago, before D.C. v Heller and  McDonald v Chicago.  The lesson is that just saying guns are banned is far different from actually making them disappear.

The underlying theory of supply controls (that even on the margin, more guns equal more gun crime and vice versa) is also refuted by long term trends.  The gun supply has steadily increased while the gun crime rate has oscillated.  And in the last decade, with record gun sales driving the inventory to new heights, gun homicides and gun crime are both down to historic lows.

There is no consensus among criminologists about the cause of this trend.  But one fair surmise is that the distribution of guns (between the trustworthy and the untrustworthy) is more important than the gross number of guns.  This is borne out in the data surrounding concealed carry permits.  The trend toward shall issue concealed carry legislation in the states has dramatically increased the number of guns in the public space.   Worries that this would lead to carnage in the streets were unfounded.  It turns out that the people who apply and qualify for permits to carry are not the people who commit gun crimes. Letting them carry guns has been benign and perhaps salutary.

Grandiose claims and vague intimations that we could solve this or that strand of the gun crime problem but for the NRA, the Heller decision or other bogymen are unserious.   Those who find it mindboggling that Congress has not stopped gun crime simply don’t understand the problem.    At the risk of seeming Pollyannaish about the motives of the political class, perhaps the answer to Justice Steven’s befuddlement is that a broader constituency of Americans and perhaps even some public officials are coming to appreciate the false promise of the supply control policies in the United States.

There is a hint of this in Craig Whitney’s new book Living with Guns: A Liberal’s case for the Second Amendment, which faces candidly the question, “is keeping guns out of the hands of as many law abiding Americans as possible really the best way to keep them out of the hands of criminals”.  Whitney proposes to show liberals “how we can live with guns – and why, with so many of them around, we have no other choice.”

Whitney’s acknowledgment of the exceptional nature of our armed society (Americans own almost half the civilian firearms on the planet) is an essential step to sound thinking about firearms policy.  I have shown in detail (Wake Forest Law Review, 2008) how even absent constitutional protection of individual arms, U.S. firearms policy is constrained by the size of our civilian gun inventory and our robust gun culture.

Whitney’s proposals for “what can be done” avoid much of the symbolic and the implausible.  He urges filling in the holes in the National Instant Check System (which screens out disqualified retail purchasers) ; increasing penalties for crimes committed with guns; requiring people to report gun thefts within 48 hours of discovery.   On these things he probably finds common ground with many gun owners and the NRA.

But  Whitney also proposes several things that would provoke fierce political combat and invite serious substantive criticism.  For one, he suggests putting all private firearms sales through the NICS or some other government filter.  Many would object to this out of latent fear that it would facilitate a registration system that could be used for confiscation (this already has happened at the state level for certain guns)  if the fragile individual right were ever reversed by a more left leaning Supreme Court.  People committed to defying gun confiscation will fight registration like it is the last battle.

Another of Whitney’s proposal channels the mantra of the Mayors Against Illegal Guns (MAIG)  to “crack down on straw purchasers and on firearms dealers who knowingly sell them to disqualified buyers.”  This is harmless in substance but misleading in the implication that it constitutes a substantial cut into the illegal gun problem.   Although it is one of the highest profile gun control initiatives on the table, it rests on a false premise that dooms it to overpromising and under delivering.  Here is why.

In the main, the illegal gun supply does not come from scofflaw dealers or straw purchasers.  There may be some of that, but the main problem is gun theft.  Estimates put the number of stolen guns at around 500,000 per year.  Some fraction of these will be lost or confiscated over time, and some stolen guns are already stolen (thus not really additions).  But it is safe to say that the inventory of black market firearms, fueled mainly through theft, is in the millions and grows substantially each year.

Renowned criminologist Gary Kleck shows that most illegal guns can be accounted for by theft.   MAIG complains about small concentrations of recovered crime guns sold by particular retail dealers.  Kleck explains that this mainly reflects the fact that people buy guns legally from popular dealers who sell most of the guns in a particular area.  Some fraction of those legitimately sold guns are then stolen, traded into the black market and recovered in crimes.

The large scale trafficking narrative rests on the assumption that a licensed gun dealer, with capital invested in a legitimate business  would risk it all plus jail time in order to sell guns to criminals.  This dealer would at the very least have to worry  that the illegal buyer would fail to obliterate the serial number or botch the job (allowing an easy back trace to the dealer), would get caught in some crime and turn in the seller under a plea deal,  or that the “illegal buyer” is working an undercover sting.  Kleck’s research confirms the instinct that very few dealers are willing to take such risks and suggests that widely circulated claims that large scale gun trafficking accounts for substantial numbers of illegal guns are false.  So on this count Whitney advances an initiative, popular in some circles, that is strong on symbolism but weak on substance.

Whitney offers a few other proposals he optimistically suggests are pragmatic and should be achievable within the boundaries of our social and political reality.  But the broader point is that nothing on his list would have stopped the shootings in Colorado or Wisconsin,  lack of response to which has so flummoxed  Justice Stevens.

In the field of Environmental Law, which I also teach,  it is common to talk about regulatory policy in two stages.  The big command and control statutes of the 1970’s did a good job of addressing a variety of “easy problems” (e.g., regulation of industrial discharges to surface waters alleviated concerns about rivers catching fire).  What remains are the “hard problems”, the stubborn externalities of modern society defy our bureaucracies (e.g., non-point source pollution resulting simply from rainfall draining off of the modern landscape).

Firearms regulation is similar.  We currently operate under a series of state and federal laws that have done the big easy things (e.g., the NICS prevents criminals from buying guns from retail outlets, including gun shows).    What is left are difficult, intractable problems (e.g., Americans own lots of guns, some fraction of which are stolen and feed the black market).

We will continue to fight about gun policy at the margins with different assessments about effectiveness and constitutionality of particular measures.  That we proceed gingerly might be a sign that our gun policy assessments are maturing beyond the reflex to do something, nay anything and toward thoughtful pragmatism that considers real world constraints, consequences and incentives.  Now that would be truly mindboggling.