Gun Control Advocates are Playing Chess

The President was on television recently stumping again for his gun control agenda.  He spoke in his favored repetitive mode except for one sort of new flourish, which was the acknowledgment that there are good people on both sides, and we all need to walk a bit in each other’s shoes. This advice actually might illuminate our way through the coming teeth gnashing-debate about the Senate’s vote on expanded background checks, among other things.

 First let’s acknowledge that everybody has a personal stake in the gun debate because it impacts our individual security strategies. This explains a good deal of the rancor. Our political fights are a kind of substitute war. The criminal lunatics who shoot up schools and malls are way too small to carry our collective anguish. So we pour big doses of that grief into fighting each other.  How else to explain opinion-makers writing that gun owners or the gun lobby or similar offenders should be outlawed, pilloried, or dragged behind trucks.

There are many styles of personal security calculations made in this debate.  At one end of the spectrum, the calculations of ardent gun owners are transparent and predictable.   They conclude that within the window of imminent threats, government is impotent and so they have to take care of themselves. This means among other things, having guns though hoping they will not need them.  It is not a perfect strategy.  It requires some discipline, skill and luck.   Significant impediments are laws that say you cannot own or carry one.  Most of these prohibitions have fallen for now and in the majority of American jurisdictions, trustworthy people can obtain permits to carry guns in public.  No real surprises here except that many find it bewildering why some gun people or anyone really, would oppose expanding the screening process to ensure that criminals and lunatics can’t buy guns in private sales. 

The answer rests at the other side of the spectrum (yes there are lots of people in the middle but the issue is driven by the edges).  It grows out of the calculations of people who abhor guns. The individual security calculations of these folks are more complicated and ultimately not so transparent.  They would say that the best approach to public and private safety is for no one except government to have guns.   This approach depends on expansive laws strictly enforced, massive societal cooperation and government performing at high levels of efficiency.    

FeinsteinThis approach has some superficial appeal, resting on the simple logic of no guns equals no gun crime.  But the curious thing is that many people embrace this strategy, actually live it on a daily basis, in the midst of a society saturated with guns.  Theirs are difficult and complicated shoes to walk in.  On one view, they are simply living in a fantasy world, in denial about the fact that Americans own 320 million guns and under the delusion that no one they know, no one who counts, no one sane, owns guns.   On this fantasy world assessment, these folks really might be satisfied with the President’s gun control agenda. This is an illusory system of not quite universal background checks even though most crime guns come from theft, and an assault weapons ban, even though it’s basically the equivalent of banning red cars on the theory that they are the fast and dangerous ones.  Because in the fantasy world one simply needs enough “data” or policy initiative to maintain the view that self defense with guns is unnecessary or even a bad idea.   So if people in Washington say that expanded background checks and 10 round magazine limits are the path to safety and security, then drink it in deeply and sleep soundly at night.

The problem is this view assumes people are foolishly naive.  I know some of these people and they are no fools.   So we must credit that their calculation is rational and thus a bit more complicated and less transparent. The alternative assessment is that the intelligent and fully rational hopolophobe  is deeply disappointed with modern American gun culture and committed to an agenda of profound change.  He realizes that nothing currently on the table pushes supply controls far enough to have any measurable impact on mass shooting or ordinary gun crime.  He also appreciates that things can change.  This must be his hope.  

So what kind of regulatory agenda would it take to satisfy someone whose private security calculation is to abhor guns and hope that no one else (except government) has them either?    The answer was evident a generation ago when Howard Metzenbaum acknowledged the basic reality about gun bans, unless you ban all of them, you might as well ban none of them.  And that simple statement of the basic demands of supply control theory is at the heart of the objections to universal background checks.  This may seem like a big leap, but it is really just a few simple steps.   

Even in theory, supply controls are either nonsense or window dressing unless you get sweeping reductions in inventory. Anyone who has thought this through must confront the fact that with over 300 million guns in the inventory, sweeping reductions in inventory are not plausible absent a system of registration. If you don’t know who has the guns, you can’t really get at them because our pesky fourth amendment would bar random or house to house searches.  So even if you passed sweeping gun bans, evidence from countries that have tried, shows that people who have guns that you don’t know about will just keep them, fueling a tremendous black market inventory that will make things worse.   

So it turns out that the inventory of unrecorded, “no paper” guns, is a far stronger barrier against sweeping gun bans than any pronouncement of the Supreme Court or other such parchment limits. It is in fact a hard practical block that renders gun confiscation in America a pipe dream.  But this barrier is not insurmountable.  

If you actually knew where the guns were, managed to get sweeping bans through congress, and got a slightly differently configured Supreme Court to nod yes, gun confiscation goes from impossible to at least plausible.  And while that scenario seems unlikely today, not so long ago, it was the openly articulated agenda of many of the people and organizations in the vanguard of the current battle.  And that helps explain the “bewildering” opposition to universal background checks.

Mandatory checks on all secondary sales, supplemented by some type of data recording (either open or surreptitious) means that within the life span of those alive today, the inventory of “no paper guns” (which again forms the hard practical barrier against sweeping gun confiscation in America) would evaporate.  So the objection to universal background checks, which in isolation many find unobjectionable, is really rooted in a fear of gun registration. And the objection to registration is really an objection to the grand ambition of sweeping supply controls.

The President probably understands all of this. Many people who casually answer yes to the question do you support universal background checks probably do not. But before the issue is settled, perhaps they will take a short walk in the shoes of those who have been fighting on this field for decades. Will they sympathize with the slippery slope to confiscation worry? Hard to say? But at least the President has invited them to think about it.  And if nothing else this may allow us to have a conversation about expanded background checks, which in some configurations many of us would support, without the screed that anyone who objects to the details ought to be dragged behind a truck.   

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. libertarian jerry says

    Interesting essay. However, I think what Prof. Johnson fails to realize is that in today’s America the Constitution is a dead letter and that we do not live in a world of laws but a world of powerful men who seek even more power. With the 16th,17th Amendments to the Constitution,the New Deal,the Great Society,the U.N. Treaty plus the Patriot Act and it’s follow on legislation there is no doubt, to any fair minded person, that the Constitution has been gutted of its real intents and protections as envisioned by the Founders. One of the last things that stands between the final nail in the coffin of the American Republic and the establishment of an American fascist police state is firearms in the hands of its citizens. The slippery slope from background checks to national registration to confiscation is obvious to any neutral observer. This sequence of events has happened over and over again in history and will,no doubt, happen in America despite a gutted 4th Amendment to a dead letter Constitution. In my lifetime I’ve heard it said over and over again that “it can’t happen here.” Well it can happen. Its only a matter of the right circumstances and the right timing. And that is what the political elitists are waiting and counting on.

  2. John Johnson says

    Make no mistake about it, gun advocates are also playing chess, the difference is we have more pawns on our side.. many many more, and the gun control loons are still using the same fake stats and fake issues from 1993 lol

    • dbjack46 says

      Our country has been “evolving” at an ever increasing rate during the last 20 to 30 years. The changes are most evident in the debate rhetoric, polarization of all sides expressing opinions/solutions (especially MSM unanimity re: pro gun control bias) and majority of court decisions generally favoring gun rights.
      Public school systems nationwide, once neutral on the issue, have become virtual lap dog sounding boards and sycophants to gun control proponents (e.g. zero tolerance policies).
      IMO all the arguments reduce down to reasoned debate versus emotional hyperbole.
      My concern is that the gun rights/gun control question will not be resolved in our lifetime and may, if continuing to fester, evolve into another American revolution.

  3. Brett Bellmore says

    The biggest advantage the gun control loons have, is that a favorable attitude towards gun control isn’t evenly distributed through the population. It’s concentrated, highly concentrated, in the political class and the media. You literally can’t buy enough advertising to zero out an advantage like having 90% plus of the media on your side. And a massive advantage in numbers is barely enough to make the fight competitive when your average politician starts out wanting gun control, and only refrains from fear of the ballot box.

    Make no mistake, Manchin and Toomey may have temporarily had NRA “A” ratings, but they’ve always been on the other side. They just didn’t see an opening to do what they really wanted until now. Our majority in Congress is lousy with people like them. Even the NRA board may have one or two, remembering that pivotal vote by John Dingell.

  4. Laka says

    The Chechens who did the Boston bombing are being reported to be in the US illegally for over a year. Still, the President refuses to modify his position on open borders. If tougher immigration would save only one life, wouldn’t it be worth it? Shouldn’t Congress restrict immigration for the sake of the children?

    • JoyO says

      I’ve been wondering why Obama didn’t use the same “if it saves only one life” philosophy on border control. Over 60% of the people illegally entering the USA are OTMs (Other than Mexicans). In 2012, they caught people from 25 different countries–including China and Pakistan. Now they say that Hamas and Hezbollah have a training camp in South America where they train radical Islamists and teach them Spanish and how to assume a Mexican persona. They are also working with the Mexican drug cartels to get these people across our borders.
      That is why Border Security must be Phase I of any new immigration policy. We let the politicians put it in Phase II in the Eighties and now we have 11 million new illegal immigrants.

  5. Lou Gots says

    Mostly correct.
    The anti-gun strategy is registration preparatory to prohibiton and confiscaton during a brief period of national derangement following some notorious incident such as a school shooting or the assassination of a popular pubic figure.

    The gun-rights strategy is to place barriers to .prohibition and confiscation far out of front of our position, the way a military defensive plan sets up barbed wire and mine fields to break up the attack before it can get to us. The barriers are sheer numbers and gun-owner anonymity. We don’t know who has what, not very well, anyway, and we need to keep it that way.

    The key is to buy time, until the anti-gun flash-in-the-pan* fizzles out. We have just seen this classic defensive strategy in operation. It has served us well.

    I suggest that we look at trends. I have been deep, deep in the gun culture for a lifetime, a competitor since high school through college, in the military and now as civilian Second Amendment activist, and I have never seen anything like the dramatic expansion of the RKBA we are experiencing. Hunting is fading, defensive and recreational shooting are burgeoning. The numbers don’t lie and the numbers are SPECTACULAR.

    The gun culture war is over. Guns won. Now what should we do about it. Crime with guns is down, accidents are down, guns are way up. What should we do to make it better? Guns are normal. Let us work together to make the new normal an even better normal. Teach gun safety in school. Put public service spots on television, on billboards, on the sides of busses.
    __________________________________________
    *”Flash-in-the-pan” — more “Gunspeak.” American idiom is gun talk, lock, stock and barrel. This should tell us something about the vitality and longevity of the gun culture. Guns are who we are. The American Revolution started over resistance to gun confiscation. Guns tamed the frontier, and seized the land from the others. Guns are our story, our power, spirit and song. Th anti-gun message is a hard sell in a country which wouldn’t be here without guns..

  6. Robert says

    “…, gun confiscation goes from impossible to at least plausible. And while that scenario seems unlikely today, not so long ago, it was the openly articulated agenda of many of the people and organizations in the vanguard of the current battle.”

    You mean “not so long ago” as in “just yesterday”?

  7. Steve Adams says

    This long game is exactly why many gun owners push back at any changes. They know the true goal and objectives of all these laws. Plus we get sick of stupidity -passing laws like this won’t protect the kids.

    This is why if there ever is a gun registration a high percentage of gun owners will not comply.

  8. Biff says

    One word: England.

    (For many years, gun rights advocates in the UK have been warning Americans that confiscation starts with registration.)

  9. Donald Campbell says

    I am reminded of Thomas Sowell’s “A Conflict of Visions”. The two sides have very different world views, and thus their solutions are irreconcilable.

    Pro-Gun… P.T. Barnum’s “A sucker born every minute”
    Pro-Control… John Lennon’s “Imagine all the people, sharing all the world”

    Now, I don’t disagree that the pro-gun’s worldview is darker, thus their conclusion to have a gun and hope never to use it; however, at least that worldview is credible. It acknowledges that humans are imperfect and fallible.

    My own personal example would be those wonderful reusable grocery bags. I like them far better than flimsy plastic, even if they weren’t saving the environment. Unfortunately, I have about a 50% usage rate of remembering to carry them along to the store.

    Much like the President’s “even if it saves only a single child”, there is no reasonable solution when arriving at the store empty-handed. Drive home and emit CO2 to get the bags? Use demon plastic and kill a fish? Whichever one I choose as the ‘cure’, it greatly outweighs the consequence of being infallible. When our belief system is based on this assumption, it will lead to far more reasonable opinions than expecting “expansive laws strictly enforced, massive societal cooperation and government performing at high levels of efficiency”.

    By the way, I choose the plastic as the less evil of the two options, but I acknowledge that I am making the best of two bad choices.

  10. dwdude says

    obama wants to walk in your shoes, but he only wants to do it with the help of a staffer and then tell you he doesn’t like them

  11. An Observation says

    The second amendment stopped the Japanese from even considering an invasion of the US in World War II. When asked about it Adm. Yamamoto pointed out that every other house in the US had guns and that the people could really shoot well. Even the Japanese army didn’t want to face 70 million snipers. All the gun owners in the United States are members of the Unorganized Militia of the US

    In the minutes to the Constitutional Convention the founders of this country made it clear that they wanted an armed populace to make sure that if the government ever became dictatorial that the people would have the means to overthrow it.

    That raises an interesting philosophical point: “What is the enforcement mechanism for the second amendment?” The answer is very simple: the armed people will rise up and kill the peopletrying to infringe their right to keep and bare arms. You may think me a crude and murderous simpleton for saying so – but that is exactly what the founders had in mind.

    Gun control is not about guns, it is about control. Armed and free citizens are difficult to control – disarmed helpless people are easy to control.

    Control guns, and you control the citizens. Two fundamental problems face the gun controllers: 1.) both sides know that fact 2.) the pro gun side is armed.

  12. Alan Fahrner says

    Great article, whether or not I agree 100%. However, if it was penned on or around 4/18, I’m kind of surprised that you credit our president for a throw-away thought about good people on both side/etc. His chess moves have included demonization the entire time, which is probably why he “lost” his first gun-control match. That strategy probably was because he knew he couldn’t win the way his cohorts have won in several states—rush through legislation (without allowing public review) before the electorate had a chance to know what was in it and it implications. Oh, that and because demonization is a favored tool, except when he throws in a “charm offensive” so his press can talk about how much he is willing to work with others…and then _they_ use it to attack the intransigent crazy Tea Party-controlled Republican Party.

    Especially considering Obama’s speech reacting to the Senate loss, do you still extend the implication that he has done something to make this debate civil?

    Or perhaps is it tricky chess move where you can say, “See, even though I disagree with our president, I can acknowledge when he does nice things”? :-)

  13. lehnne says

    The debate over gun control is one of ideology vs history. One side believes that the bigger threat to their safety comes from armed citizens. This POV enables them to ignore or discount evidence to the contrary. The opposing view believes that bases on the evidence government are the biggest mass murders in recorded history. Even the casual observer will note that governments always possess the most lethal, highest capacity weaponry available and never voluntarily reduce either and consider government to be the biggest threat.. The latter POV does not make one anti-government just suspicious about the magnanimity and motives of the State. Those in the middle focus on the process of the debate.

  14. Weisshaupt says

    SHALL NOT BE INFRINGED. That is what we agreed to. Anyone saying they want more regulations is saying they don’t care what we agreed to and they are immediately trying impose their preferences by violence – using the govt as a weapon rather than as the protector of rights we agree it should be. Nor can they repeal it. Its a statement of Natural rights. My right to protect my family from all harm – including those imposed by a tyrannical government is given to me by God. If Liberals want to make different security arrangement for themselves, that is fine. If they want to wait till the police show up, that is fine. I would never dream of interfering with their personal liberty and force them to won a gun. All I ask is they they afford me the same civil courtesy- the same one we agreed to in the beginning and the same one dictated by the Natural Rights of man. Liberals need to learn to mind their own business. Of course they won’t- because they see their fellow citizens as slaves of the collective, their rights to be sacrificed to the “common good” and their lives to be coerced as defined by a few, arrogant, self-righteous, elitist fascists. The government is a far more powerful weapon than any semi-automatic rifle, and the liberals want nothing more than the proliferation of this weapon so they can point it at the heads of their fellow citizens. They never talk about the government banning its AUTOMATIC rifles.. Every leftist regime that has disarmed its citizens has ended up mass murdering them, yet I hear nothing from the liberals on that point. Liberals want gun control because they want to bully others into living according to their values and in service of their agenda, and no bully likes their victim to be armed.

  15. Steve says

    So in simpler terms this article is saying that because you can’t stop 100% of illegal gun purchases that there should be no laws in place. So because some people driving vehicles speed we should just get rid of all speed limits? It’s a free country I bought a car that can get up to 120 mph. So no one should impede my right to drive that fast. Why do we have lawmakers in the first place if that’s our answer. Don’t slow me down cause others do it too. You may infringe on my ability to buy and sell guns so screw it lets just let any felon, terrorist, or person with mental problems get them as well.

    • says

      Hyperbole and strawman arguments is all you can bring to the table?

      No, that’s not what the article was stating in “simpler” or in any other terms.

      How about letting the grownups talk, we’re having a serious conversation here.

  16. tom swift says

    “Mandatory checks on all secondary sales, supplemented by some type of data recording … means that … the inventory of “no paper guns”… would evaporate. ”

    This is the obvious fatal flaw in the argument. All “prohibition” programs founder on the same rock; no law actually regulates supply. Laws only regulate legal supply. Prohibition laws failed with alcohol, they’re failing now with narcotics, and they will fail with hardware control.

    And, even worse, unlike alcohol or narcotics, guns are not consumed by use, and wear is negligible. In other words, the guns which exist today will still exist centuries from now, and, with even minimal care, they will still be perfectly functional.

  17. mikee says

    The problem with the background check expansion first proposed, and the Schumer-written compromise version of Toomey-Manchin, was that transfers of guns, not sales, without background checks could make one a felon.

    The breadth of the definition of “transfers” of firearms made it a felony, for example, to leave one’s guns locked in a gun safe at home while away on vacation, if there was a house sitter feeding the cat while you were away.

    The proposed laws to expand the background checks were intentionally badly written to entrap honest, otherwise law-abiding citizens into serious felonies. The proposed laws deserved to be voted down.

  18. tom swift says

    “So the objection to universal background checks, which in isolation many find unobjectionable, is really rooted in a fear of gun registration.”

    That is, obviously, a major concern. But there are other objections. Two come to mind immediately.

    First, the huge and expensive NICS system has never been shown to enhance public safety. Even before Obama’s gun-demonization program, the NICS system averaged over a million checks every month. That’s a serious load of bureaucratic work. Can anyone show, with real data, that this vast system prevented any criminals or madmen from acquiring guns? (Note that stopping any particular retail gun transaction is not the same as preventing the same person from acquiring firearms through some other channel, so simply quoting numbers of “failed” checks doesn’t answer the question.) If the system can’t be shown to be of any utility, then perhaps is really isn’t of any utility, and our money and effort might be better spent elsewhere. Further, expanding an already useless system, if it is indeed useless, is no sure formula for success.

    Second, there is a cost involved. One of the axes along which gun control efforts have proceeded in the past is to raise the cost of gun ownership. Licenses (for which fees must be paid) and “education” (required training or courses for which fees must also be paid) are an obvious way to increase costs. The substantial federal excise tax on all guns and ammunition, currently something over ten percent, is another. A third is the campaign against “junk” guns or, in press-speak, “Saturday Night Specials”, both terms undefined though they sound nasty enough. In practice, the tactic is to outlaw guns with design or manufacturing features intended to lower the cost of the firearm. An early gun-control effort, intended to disarm freedmen after the Civil War, was to outlaw all handguns except the “Army” model – another unsatisfactorily vague term, but apparently a reference to a relatively large, sturdy, and expensive revolver – but one which successfully increased the cost of ownership, putting it out of budgetary range of the typical postwar black farmer. Background checks are another way to increase costs. Expanded background checks would necessarily be performed by an FFL dealer, and his time isn’t free – there is a charge involved, adding anything from $20 to $50 to the cost of the transaction. And that’s rather a lot, when one considers that it’s for something which has yet to be shown to be of any actual benefit to anybody (except, of course, to FFL dealers, who will make money for, essentially, nothing).

    Incidentally, a little-known fact is that currently the NICS CANNOT be used by non-FFL dealers. So, even if a private seller wants to perform a background check on a buyer, he can’t do so. The transaction MUST go through an FFL dealer, which of course means money, and a paper trail.

  19. says

    Let’s test the sincerity of advocates for background checks.

    As proposed, a dealer would submit a prospective buyer’s name to some agency which would then pass that name through a filter of disqualifications (felon, mentally ill, under a TRO). Advocates for background checks assert that modern technology can make this process quick and cheap (why is voter ID so hard, then?). How about we turn this around and compile in advance a list (name, date of birth, place of birth) of all people who are ineligible to possess firearms and penalize dealers who sell to people on the list? Dealers and honest buyers would get what they want, no registration or paper trail to legitimate owners. Control advocates would get what they (say they) want, a bar to purchases by criminals and the insane.

    We could also use the list to scrub voter rolls.

  20. John Moore says

    It is technologically feasible to create a system where the background check left the government with very little information, and laws could require that information to be destroyed.

    Of course, these measures will not be adopted because, as the author says, the goal of universal background checks indeed is to build a database.

  21. richard40 says

    I dont understand this article. First it spends a long time explaining and documenting exactly why “registration equals confiscation” is indeed a valid worry for pro gun forces, in light of long time past positions of anti gun forces. And he then agrees that the background check bill would indeed lead to universal gun registration. And then he blithely tells us not to worry about it. Sorry guy, but I am worried about it, and according to your own article I should be, and thus I consider the universal background check bill to be just another step toward confiscation, and will definitely oppose it.

  22. Lavaux says

    You don’t give concessions to an opponent whose goal is total victory because the concessions are ultimately worthless to your opponent. This is why Israeli concessions to the Palestinians are worthless, and why the abortion lobby opposes banning partial birth abortion. These are zero-sum competitions: I win everything, you lose everything, and neither of us will stop until total victory is achieved.

    The NRA presents a great role model in how conservatives must fight the left: (1) Ongoing grass-roots organization, promotional activity, information activity, civic activity and fund-raising; (2) no holds barred push-back against anti-gun legislation and propaganda; and (3) continuously improving the ability to punish political perfidy should it occur.

  23. Yashmak says

    One issue plaguing the debate over gun control which I have encountered a few times lately (see the comment on this thread by Steve), is the “if the laws won’t stop XXXXX, why have any laws” hyperbole.

    I will give those who take this position the benefit of the doubt, and act as if it is a sincere question. I believe it stems from a naive notion, held by a growing portion of our population, that laws prevent crime. Fact is, laws do NOT prevent crime. They never have. A law is nothing more than a line of demarcation. . . “beyond this point, you have committed a crime.” We have lived in a land where most enjoy the rule of law for so many generations, that it is now believe that it is the mere existence of our laws which stops crimes from occurring, when that is far from the truth.

    It is the enforcement, the application of the consequences for crossing the line of demarcation, which deters crime. Well, that and the moral character of individuals.

    ATF records demonstrate that as many as 27% of firearms used in crimes are purchased through licensed dealers, without the necessary background check paperwork having been filed. These transactions have been traced back to a relatively small percentage of total licensed dealers, but although their identities are known, very few are prosecuted for these violations.

    To many gun control advocates, this is used as an argument that stronger laws are needed. . .since it’s the law itself which prevents the crime.

    But to pragmatist, it should indicate the reverse. It should serve as a demonstration that additional laws will be useless, unless enforced. Assuming that the dealers selling illegally are doing so because they lack whatever moral character would indicate to them that it is wrong to do so, what motivation do they have to stop the practice in the absence of any consequence? It is an open question why we should believe additional legislation would be enforced any more adequately than the laws already on the books. When there are tens of thousands of convicted felons in this nation with firearms registered to them, and yet the consequences of such a fundamental violation of federal firearms law is seldom applied, what deterrent is there to criminals who choose to possess guns? This should be a central part of the debate, as FBI statistics have shown that it is individuals with prior felonies who are responsible for 90% of all murders in this nation.

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