There has been a lot of talk about gun control legislation in the aftermath of the horrific elementary school shooting in Sandy Hook, Connecticut. This is a natural response to such a senseless tragedy. We want to do something to prevent it from happening again. I sympathize with this feeling; I feel it too.
Here in modern America, we tend to think in terms of government action . . . so when we see a social problem that needs to be fixed, we expect the government to do something about it. And because so much of the news cycle is dominated by the activities of the federal government, we too-often expect Washington to step in when our local statehouses (or county seats) might be a better place to start.
I think it is important that we get a grip on ourselves and re-adopt the founding doctrines of the American republic: First, government is a necessary evil, and should only be used to solve problems when they absolutely cannot be solved some other way. Second, when government must be used to solve a problem, we must try to solve it at the state and local levels, and only defer to the national government in its specific areas of responsibility (cf., U.S. Constitution, Article 1, Section 8).
But it is what it is. Today, too many of us think that government is always the solution, and those old ideas about federalism aren’t worth paying any attention to. So be it. There is a real possibility that President Barack Obama’s (D) suite of gun control proposals will come up for serious debate, and so we need to take a serious look at them.
Before we start, however, we need to get a few things out of the way.
First, we need to bear in mind that we’re not talking about health care, or immigration policy, or automotive safety standards. No, we’re talking about one of the enumerated civil liberties codified in the Bill of Rights. The founders of this country wrote this text into the U.S. Constitution: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed” (emphasis added). This is an individual right, extended to ‘the people,’ not to ‘the militia.’ The first clause is explanatory, not restricting. The Second Amendment also doesn’t restrict the definition of ‘arms,’ which makes sense because it was meant to allow the people to exercise all authority, even the authority to use violence, in defense of their liberties from criminals, invaders, and their own government (should it become tyrannical).
So we need to consider all gun control proposals in this light. Just because a proposal might reduce gun violence is not automatically a reason to make it the law; we also have to weigh the impact that law might have on innocent citizens, and how it might impact their exercise of a fundamental civil liberty. We must handle the Second Amendment the same way we handle the First Amendment: erring on the side of allowing too much freedom.
What this means is that we should not accept a particular limitation on the Second Amendment if we would not accept a similar limitation on the First. As an example, we can’t argue that the Second Amendment only applies to muskets (because that is what existed at the time it was written) if we are not also willing to argue that the First Amendment only applies to small-distribution printed newspapers (because, likewise, that is what existed at the time it was written). We can’t argue that ‘nobody needs this type of firearm to exercise their Second Amendment rights’ unless we are also willing to argue that ‘nobody needs this kind of web site to exercise their First Amendment rights.’ We must be consistent. If we want to impose greater restrictions on arms that we impose on other liberties, there is a way to do it: We can repeal or amend the Second Amendment. Although it is worth noting that the only time we ever amended the Constitution to take away a liberty was when we banned alcohol, and we repealed that fifteen years later because it didn’t work out very well.
Second, we need to avoid the temptation to over-simplify the problem. Violence isn’t caused by firearms. No gun ever leaped from its safe, pointed itself at somebody, and fired. Every gun crime—every murder, every assault, every threat, and, yes, every gun accident—happened because a person did something wrong. Demonizing the tool is a cop-out. An argument can be made that guns make certain crimes easier. An argument can also be made that gun crimes and accidents are more likely to result in death than, say, knife crimes and accidents. These are fair arguments, and they should be weighed accordingly in our consideration of these proposals. But in the end, we must also recognize that limiting or eliminating a particular tool cannot and will not eliminate individuals’ tendencies toward violence or irresponsibility.
We have volumes of evidence supporting this truth. There is no correlation between prevalence of guns and prevalence of violence, since violence is rooted not in availability of weapons, but in individual and cultural influences. Although the United States ranks first in gun ownership per-capita, we rank somewhere between tenth and twenty-eighth in firearm-related deaths (depending on which survey you believe). When you expand the statistics to include all intentional murders, a whopping ninety-nine countries have higher murder rates than the United States (says the United Nations Office on Drugs and Crime). The United Kingdom, often cited as a positive gun control example, does indeed have a very low gun violence rate . . . but their overall violent crime rate is more than twice as high as ours according to their own governments’ statistics, and their overall murder rate is only slightly lower than ours.
There are gun-friendly countries with low murder rates (e.g., Switzerland), gun-friendly countries with high murder rates (e.g., Uruguay), anti-gun countries with low murder rates (e.g., Japan), anti-gun countries with high murder rates (e.g., Honduras), and everything in-between. Even within the United States there is no correlation between guns and crime; if there were, Chicago would be the safest city in the nation. It isn’t.
Third, we need to craft any legislation that we do enact with a view toward actual, measurable outcomes. Many elements of Obama’s gun control proposals have been tried, either on a national or localized scale, and we have at least some data about how effective or ineffective they might be. In addition, we can apply some critical reasoning skills. If a particular kind of weapon is only used in 0.05 percent of gun crimes, then we know that outlawing that particular weapon—even if it was completely successful at stopping those crimes—would only reduce gun crimes by 0.05 percent. But we can also assume that would be an overly-optimistic number. That outlawed weapon could still be obtained through black-market dealers and other sources, at least in a limited volume, and a certain percentage of people will just use a different weapon and commit the same crime.
More fundamentally, we need to set reasonable goals and express them clearly. Let’s be crystal clear here: The goal should not be to simply ‘reduce gun violence’ or ‘reduce gun crime.’ The goal must be to reduce all violence, and all crime. Coming back to the example of the United Kingdom, their gun bans were very effective at reducing gun murders, but the part that CNN’s Piers Morgan doesn’t want you to hear is that they were completely ineffective at reducing murders and violent crime as a whole. If your stated goal is to reduce gun murders, maybe strict gun laws will work. But if we successfully reduce gun murders without reducing the overall murder rate, that’s not really success. The murder victim doesn’t care whether he was killed with a gun, knife, hammer, car, poison, anvil, or blow-dart. Neither should we.
So with all of these things in mind, let’s look at each of the specific proposals put forth by President Obama and evaluate whether or not they deserve our support. Obama has enacted a number of changes by executive order (PDF link), which are not the subject of this review as they are administrative actions within the confines of existing law. I am reviewing the proposals that will require a change to the law, which are listed in his ‘Now is the Time’ document (PDF link). Note that I don’t cover everything in that document, since many executive order and discretionary funding items are mixed in with the proposed changes to our laws.
Require criminal background checks for all gun sales.
All federally licensed firearms dealers are required to run a prospective gun-buyer’s information through the National Instant Criminal Background Check System (NICS) to determine whether they are eligible to buy a gun. This applies both to retail and gun-show sales made by a licensed dealer. These checks generally take only minutes, and do not unduly interfere with citizens’ Second Amendment rights. Gun sales between individuals—either at gun shows or privately—are unregulated, which is what people mean when they refer to the ‘gun show loophole’ (which is neither limited to gun shows, nor is it a ‘loophole’).
Obama calls for requiring background checks on these kinds of private sales, although he would allow exceptions for transfers between family members (e.g., inheritance) and ‘temporary transfers for hunting and sporting purposes.’ Since it is clearly in the public interest that felons and the mentally ill not have access to firearms, and the NICS background check system has proven itself generally reliable and does not unduly burden firearms purchasers, I support this proposal (with reservations).
My reservations are as follows: First, with regard to gun shows, a mechanism should be provided by which attendees can pass a background check and receive a certificate allowing them to make purchases within the show (whether from licensed dealers or individuals); they should not have to go through repeated checks at each purchase point. Second, since private sales will need to go through licensed dealers [because they are the ones with access to NICS], the cost of private firearms sales will increase. This should be mitigated by limiting how much dealers can charge for performing a NICS background check. $10-20 would be acceptable. Third, the exception for transfers between family members must be robust and broad, although it would be acceptable to also include stiff penalties for somebody who transfers a firearm to a family member they know or suspect is ineligible to purchase one. Fourth, the NICS must not keep any record of who had their background checked or how many times it was done (due to the Second Amendment chilling effect of a permanent record).
Improve and broaden the NICS background check system.
Obama calls for lowering legal barriers that discourage states from submitting information to NICS and improving data sharing between the states and various federal agencies. As it stands today, NICS is only as good as the information that the various states submit to it. Although the system is very effective at disallowing firearms sales to convicted felons, it is more ‘hit and miss’ with regard to mental health issues and other legal impediments to firearms ownership. For example, Seung-Hui Cho—the Virginia Tech shooter—purchased his guns after passing a NICS check, even though he had well-documented mental issues.
Because the NICS system has not been shown to unduly burden law-abiding citizens, and because it serves an important public function (keeping firearms out of the hands of those legally ineligible to have them), I support this proposal (with reservations).
My reservations are as follows: First, rather than back-handed incentivizing, Congress should simply require that all states submit the appropriate information to the NICS database. No need to beat around the bush. Second, we need to be very careful with the mental health components. No doctor or mental health official should be able to arbitrarily declare a U.S. citizen ineligible to exercise their Second Amendment rights, any more than they should be able to declare somebody ineligible to exercise their First Amendment rights. This kind of a restriction on individual liberty must be adjudicated very seriously—used sparingly, and only in the most serious of situations. After a doctor or mental health official judges somebody ineligible to purchase a firearm, that recommendation must be reviewed and approved by a judge before that person’s name is submitted to NICS. There must also be clear, robust avenues for appeal.
Reinstate and strengthen the ban on ‘assault weapons.’
The so-called ‘assault weapons’ ban that was in effect from 1994 to 2004 was utter nonsense, and it had no discernible impact on violence or crime in the United States. Obama proposes bringing it back and ‘strengthening’ it in some unspecified way. These bans are based on nothing more than how a firearm looks and what accessories an owner wishes to fasten to it.
As such, this ban would be a meaningless ‘feel-good’ measure. We already know it won’t accomplish anything—in part because we already tried it, and in part because we know that there is no actual functional difference between an ‘assault weapon’ and your average hunting rifle. It is often said that ‘nobody needs an assault weapon,’ which may be true, but as discussed in my introduction a lack of ‘need’ is not sufficient reason to limit an enumerated civil liberty. I strongly oppose this proposal.
Limit ammunition magazines to ten rounds.
Like the ‘assault weapons’ ban, a magazine limit sounds pretty reasonable on its face . . . but isn’t. First and foremost, the only justification for this limit is the argument that ‘nobody needs more than ten rounds.’ As mentioned before, we don’t confer civil liberties on the basis of ‘need’—nor should we. Furthermore, there are plenty of real-world defensive situations when more than ten rounds would be necessary. In multiple-attacker situations, expending ten rounds is a real possibility (especially given that even trained law enforcement officers don’t hit their target every single time). Even in single-attacker situations, certain drugs can limit an assailant’s pain response and allow him to continue an attack even after being shot ten times (as we have seen in a number of police shootings over the years).
A ten round limit will have little impact on mass shooters, who will simply carry multiple magazines and change them as necessary (losing only a few seconds in the process). But for citizens exercising their self defense rights, who are much less likely to carry backup magazines and much less likely to be thinking methodically in a defensive situation, it would significantly reduce their capability. Some who support such a limit claim that magazines with more than ten rounds serve no defensive purpose; if that is true, why do law enforcement officers—who also carry guns for self defense purposes—insist on being exempted? In a truly free country, there cannot be a double standard between the defensive tools that state officials can use to protect their lives, and the defensive tools that average citizens can use to protect theirs.
Although a ten round magazine limit may have a very small positive effect in rare mass-shooting situations, it is far outweighed by the negative impact on millions of citizens who wish to exercise their self defense rights. I oppose this proposal, but would be willing to reconsider with a more reasonable twenty- or thirty-round limit.
Tighten punishments for gun trafficking.
Obama calls for laws that would criminalize ‘straw purchases’ where somebody who can pass a NICS check purchases guns and immediately hands them over to somebody who can’t. Currently, this kind of purchase is not actually illegal, and those who do it can only be charged with minor paperwork violations. I support this proposal, although requiring background checks for all non-family transfers would make this unnecessary (since the transfer would already be illegal without a background check). I also support making it a crime to transfer a firearm to anybody you know or suspect is ineligible to purchase one.
Allow gun violence research.
It is currently against the law for U.S. scientific and research agencies like the Centers for Disease Control (CDC) to advocate or promote gun control. I agree with this law; we wouldn’t accept federal agencies advocating for ‘web site control’ or ‘religion control,’ since federal agencies should not be advocating any restriction on civil liberties. However, some have broadly interpreted this law to mean that the CDC can’t conduct any research on gun violence. Obama proposes ending the de-facto moratorium on gun violence research. I support this proposal (with a reservation).
My reservation is as follows: Although the CDC and other agencies should be permitted to research gun violence, the intent of the law in question was correct. Federal agencies must never advocate for restrictions on our Second Amendment liberties. We should clarify that these agencies can research the topic, but we must leave the underlying restriction on gun control advocacy in-place.
Increase funding for mental health and anti-violence programs in schools.
Obama proposes a new education initiative that would provide fifteen million dollars for teacher training on mental illness, forty million dollars for mental illness referral programs in schools, twenty-five million dollars for other anti-violence and mental health programs in schools, and fifty million dollars for training mental health professionals for placement in our schools. The total cost of these proposals would be about 130 million dollars.
I applaud Obama’s effort to include mental health policy in addition to more ‘traditional’ gun control proposals. Violence is the problem, not guns. But I don’t understand how individual mental health is a federal issue. Although I have no real objection to his proposals in this area, it would be better handled at the state and local levels, and would be better funded from existing school and health services budgets.
Our schools in particular are among the best funded in the world. I’m sure they can find some dollars for counseling and mental health screenings in-between suspending kids for pointing fingers at each other. Regardless, I am neutral on this proposal.