The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Cato Institute published my monograph "The Costs and Consequences of Gun Control." The policy analysis examines several gun control proposals which have been promoted by the Obama administration and the gun control lobby: bans on so-called assault weapons; bans on standard magazines; confiscation; and the prohibition of all private sales, loans and returns, except when processed by a gun store. After explaining why each of these proposals is likely to do little good and much harm, the paper discusses realistic alternatives which really can save lives. The most important of these is providing a much broader safety net for people seeking help for severe mental illness. In addition, respecting the right to bear arms has been demonstrated to be successful in thwarting would-be mass murderers.
Prohibiting certain guns or magazines will be futile without confiscation of such arms currently owned by citizens; so said a 2013 memo by Greg Ridgeway, acting director of the National Institute of Justice (the research arm of the Justice Department). Likewise, the NIJ memo explained that "universal" background checks are useless without comprehensive registration of all guns and all gun owners. Yet Americans have historically resisted gun registration, precisely because of concerns about confiscation. These concerns are not unfounded; registration lists have been used to enforce confiscation in New York City, in Australia and in Great Britain. In Australia, the confiscation was euphemistically called a "buy back," although it was in fact involuntary confiscation, with only partial compensation paid for the confiscated items.
Moreover, all of the the gun control laws discussed above affirmatively harm public safety. The term "assault weapons" is a political gimmick designed to foster confusion. These guns are not machine guns; they fire only one bullet each time the trigger is pressed, just like every other ordinary firearm. They are not more powerful than other firearms. To the contrary, their ammunition is typically intermediate in power, less powerful than ammunition that is made for big-game hunting.
The vague epithet "assault weapon" has been used against everything from airguns to double-barreled shotguns. Many current definitions outlaw guns because they have a "feature" (such as a forward grip on a long gun) which make the gun more accurate, and thus better-suited for lawful purposes such as self-defense and hunting.
Magazines holding more than 10 rounds constitute nearly half of the magazines in the modern United States. Citizens choose them for self-defense for the same reason that law enforcement officers do: Violent confrontations are unpredictable. For example, if a person is fighting against one or two perpetrators, he may not know if there is an additional, hidden attacker. Thus, defensive gun users need to keep a reserve of ammunition. So even though armed defenders do not usually fire more than 10 shots, reducing reserve capacity (e.g., from a standard 17-round magazine to a 10-round substitute) will reduce the number of defensive shots. Fewer shots fired at the attacker reduces the risk of injury to the attacker, and thereby raises the risk of injury to the victim.
As I detailed in articles in early November, federal proposals and recently-enacted state laws about "universal background checks" are a bait-and-switch. Instead of applying to only the private sale of firearms, they also impose onerous, impractical restrictions on short-term loans and returns. These have enormously destructive effects on safety training and self-defense, on safe storage, and on informal target shooting. Further, they indirectly impose handgun prohibition on adults aged 18 to 20.
Instead of ineffective measures which do much more harm than good, the better approach is laws which can enhance public safety while respecting individual rights. Pretend "gun free zones" (which are enforced only by signage, rather than by metal detectors) have been proven to be magnets for psychopaths, and they should be repealed. The Cato papers lists some of the instances in which armed persons have thwarted a criminal intent on mass murder.
By far the single most effective step we could take to reduce violent crime would be to greatly increase spending to help the severely mentally ill. The biggest crime reduction would be fewer crimes against the mentally ill, since they are more vulnerable than the general population, and are victimized at a much higher rate. The mass murderers in Tucson and Aurora could have been committed for observation and treatment under existing state laws, with due process protections, but people who knew about the danger failed to take the appropriate steps. More broadly, there are many persons with severe mental illness who voluntarily seek temporary hospitalization, but who are turned away due to insufficient treatment capacity. Greater spending to help the mentally ill today will more than pay for itself in the long run, by reducing criminal justice and incarceration costs. (The mental health issue is addressed in greater detail in my forthcoming article in Howard Law Journal.)
Although some persons demand that we immediately "do something" about guns, we would do better to carefully examine whether particular proposals will be helpful or harmful. The best prospects for saving lives are by helping a politically powerless group—the severely mentally ill—and not in a culture war against the Second Amendment.