Is Gun Regulation Maturing?

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.

Nicholas J. Johnson

Nicholas J. Johnson is Professor of Law, Fordham University School of Law is the author of Negroes and the Gun: The Black Tradition of Arms. He is the lead editor of Firearms Law and the Second Amendment: Cases and Materials (Aspen Press, 2012).

About the Author

Comments

  1. Brett Bellmore says

    NICS was big, and “easy” if you’re not trying to buy a gun on a weekend when they shut the system off for “maintenance”, but is there evidence it actually did much benefit? Cutting off legal access to firearms might not have much impact if illegal access was convenient enough.

    • nick johnson says

      Big an easy in the sense that it was easy for everyone to agree that allowing a sociopath to come right out of the pen and buy a gun at retail would be a big policy mistake. Easy in the sense that in the electronic era this is relatively easy to avoid. Is it cost free? No, nothing is. But it was pressed by NRA because it is far preferable to the antigun lobby’s proposed alternative of a waiting period and manual check (initially advanced before the instant check was feasible).

      As for the weekend inconvenience, I have heard about it but never experienced. it.

      PS. Asked where he got his guns. Jeff Cooper borrowed the response of a matron of Boston who was asked where she got her hats. “We don’t get our guns. We have our guns.”

      • Brett Bellmore says

        “Big an easy in the sense that it was easy for everyone to agree that allowing a sociopath to come right out of the pen and buy a gun at retail would be a big policy mistake.”

        I think you, like so many prohibitionists of various stripes, need to wake up to the reality of black markets. The sociopath can and does come right out of the pen, and buys a gun at retail. He just does so at retail outlets that don’t charge sales tax, or enforce waiting periods.

        You’re imposing one heck of a burden on the exercise of a CIVIL LIBERTY, just so you can indulge in the fantasy that you’re keeping guns out of the hands of criminals.

        • Nick Johnson says

          Not sure how on could read any of my posts and conclude that I am a prohibitionist. In the two decades that I have worked on RKBA issues you are the first to suggest it.

  2. Boyd says

    Many gun rights activists object to “requiring people to report gun thefts within 48 hours of discovery,” in my mind primarily because 1) it would potentially criminalize the victim of a crime rather than doing anything about the actual criminal, 2) provide another avenue for abuse by anti-gun law enforcement personnel, and 3) would have approximately zero impact on the supply of stolen guns.

    • nick johnson says

      I appreciate the objection. Attaching criminal penalties to the reporting obligation would be a giant step beyond the reporting requirement. There are a variety of renditions of the reporting obligation that I and many others would object to. If you think about the actual incentives tho, there are powerful incentives for a victim of gun theft to report and very few downsides. This maybe suggests that the laws are unnecessary and carry the residual potential for abuse. But if your gun is suddenly in the hands of some criminal nitwhit, what is the incentive to keep that a secret. If you bought the gun on a 4473, do you want the boys investigating the nitwhits crime to knock on your door? Maybe a different incentive if the your stolen gun was a no-paper gun. See my Wake Forest L Rev article for the many variations on the theme.

      • Boyd says

        I heartily concur that immediately reporting the theft of a firearm is the smart thing to do, generally speaking. But your word “requiring” implies a law, and a law implies punishment for failure to comply. If there’s no punishment, then why have the law in the first place?

        And don’t get me wrong, I’m not saying I think there should be punishment for not reporting the theft, or other loss, of a firearm. I’m just pursuing the logic.

    • Brett Bellmore says

      Having a bad day, I guess. That “sociopath” line sounded so much like what I normally here from the gun prohibitionists, I didn’t look further. My bad.

  3. Brett Bellmore says

    I think the deadline to report thefts is probably motivated by the thought that claims your guns were stolen might be fraudulent. If you have to report the theft, they can either get you for filing a false police report, or failing to comply with the reporting requirement.

    Either way, it doesn’t seem to have much potential to disarm criminals. After all, guns can’t be that much harder to smuggle across borders than drugs, and Mexico is awash in guns stolen from military warehouses and points south.

  4. Windy Wilson says

    But filing a false police report is already a crime. Adding the reporting requirement with the all-important addition of “or should have known of the theft” expands the ability to persecute gun owners without, as you (Brett Bellmore) correctly note, reducing Malum in Se crime at all.

  5. Brett Bellmore says

    Ok, I’ve now read your paper.

    Set aside the implausibility of a gun ban being legally imposed in a democratic fashion in this country. (Judicial ‘repeal’ of the 2nd amendment, OTOH, is all too plausible.)

    Set aside the hilarious notion that the feeble protection of Heller would inspire gun owners to comply with registration.

    There seems to be a conceptual gap here, concerning the nature of defiance. Forgotten the militia movement already? You’re talking about a basic civil liberty, (So understood by a large and armed faction of the nation, regardless of what the Supreme court might say.) and some remarkably intrusive measures to suppress it. This isn’t going to result in active resistance? Especially if we see repeats of some of the previous atrocities committed in the name of gun control, such was Waco?

    • Nick Johnson says

      The Wake Forrest article intended to avoid preaching to the choir and aimed to show the neutral or unsympathic audience the prosaic reasons why supply controls are weak policy.
      As far as the more elementary but more inflammatory point that people might resist violently against gun bans, I advanced that argument in my very first effort in this area. In 1992 I published Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L. J. 1-81. The article shows how even absent the Second Amendment, we could derive a right to armed self-defense from the 9th Amendment. Giving content to the 9th has been troubling for modern thinkers, made more difficult partly by the virtual abandonment of the idea that the Federal government is one of limited, enumerated powers.
      You will see at pages 67-70 the argument you find missing from the Wake Forest piece. Here is a quote: “Maybe it is the citizenry itself that must validate unremunerated rights. [Compare Larry Kramer’s 2004 book, “The People Themselves”] Perhaps these rights can only be truly identified when their violation generates such resistance that government is forced to stand down. [this credits the idea that small scale resistance can be politically costly for the state to suppress] The question may then settle on whether possession of arms is an individual interest that large numbers of ordinary citizens simply will not sacrifice regardless of legislative commands. … Many people who embrace the bumper sticker sentiment ‘you can take my gun when you pry my cold dead fingers from around it: are apparently serious.’ Such visceral oppositional rhetoric and the trend of defiance to confiscatory legislation may be signals of protected Ninth Amendment interests.”
      As I look back on it now, there are many changes that I would make to this article, but it does a decent job of sharpening and expanding some of the basic points that anyone who thinks a bit about these issues would raise.

      One can’t put everything in one paper and simply repeating old arguments does not advance the project.

  6. Brett Bellmore says

    Nick, I think the problem I’m having here, (And I blame myself.) is that, even when you’re not saying anything objectionable in itself, you say it so much in the manner of the gun controllers I’ve argued with, all sorts of alarm signals are going off in my head. And they’re getting in the way of processing what you’re saying.

    I’ve often had arguments at lefty blogs, where people relentlessly insist on arguing with the me inside their heads, instead of the one that’s talking with them. They react to the connotations they assign to the words I’m writing, (The “dog whistles” they imagine.) not the denotations I intend. To the point where, often, they couldn’t even notice when I was agreeing with them!

    I’m quite irritated to find myself doing the same thing.

    I gather you spend a lot of time arguing with gun controllers, and have tried to craft your arguments to persuade them. Aside from the verbal tells, this has resulted in your arguments incorporating a lot of dubious premises, or at least leaving them unchallenged. I don’t know, perhaps it works when you’re arguing with them, but it really grates on the ears of anybody else. Well, anybody else who’s a politically engaged NRA life member, I should say.

    • Nick Johnson says

      It is generally fun and often productive to talk with people who agree with you. But many of the most important conversations are with people who are unconvinced. You learn and they learn. I hope that my tone reflects my openness to those conversations. To the degree that it creates temporary misunderstandings among friends, those are easily resolved as is ours here.

  7. z9z99 says

    The “supply” of firearms dies not originate in the transaction with the retail purchaser. Controlling firearms must necessarily contend with the fact that manufacturing firearms is not rocket science. Serviceable weapons can be made with with a minimum of technical skill, and transported with ease. Government controls are one form of price signal for black markets, and when black markets make clandestine manufacture of firearms profitable enough, the supply of these, perhaps technically inferior but still deadly, arms will expand, to the benefit of criminals and the detriment of their victims.

  8. says

    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).

    Reducing the number of guns that are stolen might not be easy, but some progress can be made. Legal gun owners don’t want their guns to be stolen and are disposed to accept suggestions for preventing theft.

    The intractable problem is too many criminals, which is a result of many things but a big one is that 41% of children are born to single mothers. In the Black population that number is approaching 70% if it isn’t already there. That’t the intractable problem that leads to gun crime, and it has nothing to do with guns.

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