What sort of gun control options are there for America?

For purposes of this article, I am ignoring the issue of lobbying around the issue of gun control. That is a separate issue from the policy discussion I am interested in. Lobbying involving gun control is a very complicated issue that deserves its own analysis, independent of the issue of what is legally possible in this issue, as opposed to what is politically possible.

Americans are estimated to own over 300 million firearms. That’s essentially one per person in the US. All states and the federal government prohibit minors from owning firearms. Almost all states prohibit felons from owning firearms. Most states prohibit the profoundly handicapped from owning firearms. The ownership of machine guns is restricted to possessors of class III firearms permits issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). ATF has an exhaustive list of the sorts of firearms and accessories which are illegal to possess, and which are restricted to possess, and which most people can possess. These are determined by federal regulation. The default position of the federal government, though, is that law-abiding US citizens should not be barred from possessing a firearm. This is enforced by the 2nd Amendment.

Courtesy of Wikipedia, I offer the following short list of Congressional gun control already on the books:

• National Firearms Act (“NFA”) (1934): Taxes the manufacture and transfer of, and mandates the registration of Title II weapons such as machine guns, short-barreled rifles and shotguns, heavy weapons, explosive ordnance, silencers, and disguised or improvised firearms.
• Federal Firearms Act of 1938 (“FFA”): Requires that gun manufacturers, importers, and persons in the business of selling firearms have a Federal Firearms License (FFL). Prohibits the transfer of firearms to certain classes of persons, such as convicted felons.
• Omnibus Crime Control and Safe Streets Act of 1968 (1968): Prohibited interstate trade in handguns, increased the minimum age to 21 for buying handguns.
• Gun Control Act of 1968 (“GCA”): Focuses primarily on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers and importers.
• Firearm Owners Protection Act (“FOPA”) (1986): Revised and partially repealed the Gun Control Act of 1968. Prohibited the sale to civilians of automatic firearms manufactured after the date of the law’s passage. Required ATF approval of transfers of automatic firearms.
• Undetectable Firearms Act (1988): Effectively criminalizes, with a few exceptions, the manufacture, importation, sale, shipment, delivery, possession, transfer, or receipt of firearms with less than 3.7 oz of metal content.
• Gun-Free School Zones Act (1990): Prohibits unauthorized individuals from knowingly possessing a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.
• Brady Handgun Violence Prevention Act (1993): Requires background checks on most firearm purchasers, depending on seller and venue.
• Federal Assault Weapons Ban (1994–2004): Banned semiautomatic assault weapons and large capacity ammunition feeding devices. The law expired in 2004.
• Protection of Lawful Commerce in Arms Act (2005): Prevent firearms manufacturers and licensed dealers from being held liable for negligence when crimes have been committed with their products.

So, what authority does Congress have to legislate regarding firearms? Congress may only legislate pursuant to specific grants of power under the Constitution. All of these are located in Article I, Section 8 of the Constitution. They are known as the enumerated powers of Congress.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Generally, the authority to regulate guns is believed to rest in the Commerce Clause. Since that is the basis for all existing Congressional gun legislation, I will not deviate from it. In short, the guns have to be in interstate, international, or tribal commerce for Congress to be able to regulate them. Congress can regulate the channels of interstate commerce, the instrumentalities of commerce in interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and activities which “substantially affect” interstate commerce. Lopez v. United States, 514 U.S. 549, 558–9 (1995). The trade in guns pretty much fits into all three of those categories. It’s pretty clear that Congress can regulate quite thoroughly any interstate trade in guns, short of banning them or putting companies out of business.

The overwhelming majority of homicides in the US every year occur via handgun. The overwhelming majority of gun deaths in the US every year are suicides. Mass shootings are an outlier, statistically, and outliers are not a good basis for legislation. Why? No skin in the game, in the words of Nassim Nicholas Taleb. Regulations based on preventing outliers tend to make people feel good and achieve little (example: the codification of “castle doctrine” self-defense laws). Regulations should be based on things that happen often. How often is an important question that needs to be addressed particularly in this case because of the prevalence of “assault weapons” in the gun control discussion. Leah Libresco catalogues the many categories of victims of gun violence in this piece where she explains the statistics.

Consider the Federal Assault Weapons Ban, passed in 1994, expired in 2004. It banned firearms on the basis to their similarity to “assault weapons,” which is a non-technical term for dangerous looking guns. Based on one metric, it was highly successful, in that it reduced the incidence of use of “assault weapons” in crime by 66%. That’s right, a reduction of 66% OVER FIVE YEARS. From 4.82% of all guns used in crime, to 1.61% of all guns used in crime. Effect on the remaining 95% of guns used in crime over those five years? None. Effect on gun use in crime over those five years? Not capable of being measured.

Most serious analysts of gun control believe that handgun control would be the single most effective means of limiting gun deaths in America. This has proven to be the case in countries that have in the past two generations adopted confiscatory gun control policies that favored allowing people to retain long guns in their possession, i.e., UK and Australia. The UK is considered to have one of the most extreme gun control policies for a free nation in the world, while Australia’s policies are more relaxed. But neither permit the private ownership of handguns to any serious extent, and certainly not on the level of the United States.

If you want to play a macabre statistical game, I invite you to evaluate this ‘classification of gun deaths’ quiz offered by fivethirtyeight.com. What is an accident versus a suicide versus a homicide is an important question in this debate. Gun safety experts will tell you that true accidental discharges are rare; guns rarely malfunction. What people think of as accidents involving guns are really unintentional discharges; i.e., the shooter was unaware that the gun was loaded, or was unaware of the mechanism that made the gun ready to fire. It is almost impossible for a modern gun to discharge without human action upon the trigger, because the mechanical operation of firearms is well-understood, and ammunition is of generally high quality.

State gun control schemes in the US are generally not uniform; regularity is emerging primarily through the promotion of constitutional carry laws, which have replaced the previous pro-gun scheme of “shall issue” licensing. These laws are focused primarily on not restricting further the availability of firearms to law-abiding citizens. Illinois has one of the most comprehensive gun control schemes of any state in the union, exceeding in severity every other state except New York, and the District of Columbia. Yet Illinois and specifically Chicago suffer from a gun crime epidemic, blamed chiefly on lax enforcement in neighboring states and straw purchasers.

Confiscation of handguns is neither politically nor legally viable in the United States, for several reasons: first, it would legitimately lead to armed insurrection among those unwilling to surrender their firearms; second, the Supreme Court held in DC v. Heller, 554 U.S. 570 (2008) that the 2nd Amendment guarantees, as against the federal government, the right of a person to possess a firearm for traditional lawful purposes such as self-defense within the home, a right incorporated via the 14th Amendment against the states in McDonald v. Chicago, 561 U.S. 742 (2010). Also, confiscation would be costly; the cost of Australia’s gun buyback in 1996 exceeded $500 million AUD. That was for a buyback of 660,959 firearms.

Options for Congress would include the following:

• Propose a constitutional amendment to amend the 2nd Amendment, and
• Further regulate the sale of firearms in interstate commerce ala the assault weapons ban.

Much beyond this would get into serious constitutional difficulties, based on Heller and McDonald. It follows, then, that the most effective manner to regulate firearms is through the states.

Up to this point, over the previous article and this article, I have ignored the actual text of the 2nd Amendment. I have to disagree with Justice Scalia whose linguistic analysis of the 2nd Amendment was rife with anachronism. The modern rules of punctuation, as such, did not exist when the 2nd Amendment was enacted. Punctuation occurred then not as legally operative formal clause construction dictates, but rather to indicate a pause. Lindley Murray’s Grammar, published in 1794, has 20 rules for the use of commas, and not a single one of them encompasses the use of commas to set off subordinate clauses. Subordinate clauses were set off by semi-colons at the time. Murray’s Grammar is considered the authoritative grammar of the post-colonial period. I hereby take away the comma and offer the 2nd Amendment as it should be understood:

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.

No more arguments about commas. Let’s unpack this sentence.

First, who is the militia? You likely don’t know this, but each state maintains a militia. In Mississippi, as in most states, the militia is defined by Miss. Code Ann. 33–5–1:

The militia of the State of Mississippi shall consist of all able-bodied citizens of the state between the ages of seventeen (17) and sixty-two (62) years, who are not exempt by law of this state or of the United States, together with all other able-bodied persons who shall voluntarily enlist or accept commission, appointment or assignment to duty therein, subject to such classifications as may be hereinafter prescribed.The militia shall be divided into three (3) classes: The National Guard, the Mississippi State Guard, and the unorganized militia. The unorganized militia shall consist of all persons liable to service in the militia, but not members of the National Guard or the Mississippi State Guard.

A seventeen-year-old person shall not be allowed to enlist or be assigned to duty without the written consent of both parents, if living, or one (1) parent if one (1) is deceased, or if both parents are deceased, the guardian of such person.

The militia has duties, defined in Miss. Code Ann. 33–5–3, et seq. The unorganized militia can only be activated after the National Guard and the State Guard have already been activated, and the unorganized militia has numerous classes of exemptions to service.

The militia is, therefore, all of us. The State is responsible to arm us, but historically this responsibility was placed upon the citizens of the states themselves. There is absolutely no doubt that for the most part states have the power to regulate an individual’s right to bear arms. The states also have the responsibility, since Congress’s power is limited under the 2nd Amendment, and the federal government lacks the general police power. If actual gun control is the goal, then that must come from the states, and not the Congress.

There are several ways that the states could regulate guns: first, they could imbue the militia with certain requirements regarding gun training. This is something that several nations (Israel, Switzerland, Finland) have done with great success. Imagine a situation where every seventeen year-old in Mississippi has to, within one month of his or her 17th birthday, attend a sixteen-hour, weekend-long course on firearm safety and training. Couple that with an obligation to maintain training. Only those persons who could be exempted under the unorganized militia law would get to avoid this class.

Second, states can ban certain classes of firearms wholly. Such bans would need to be carefully worded to avoid unconstitutional vagueness and overbreadth, and particularly would have to avoid handguns. This does not address that the vast majority of gun deaths are suicides committed with handguns; that is going to require a public health approach to address, and frankly, is unlikely to be effective through gun regulation. Handguns, however, from a self-defense standpoint, are the most effective; almost no self-defense events are resolved through the use of high-velocity rifles. Handguns are also the firearms most protected under the 2nd Amendment.

Third, states can require the registration of firearms and the licensure of their owners. This does not run afoul of the 2nd Amendment, and, in fact, can be part of the militia regulations. It is certainly a significant governmental interest for the state to know who in its unorganized militia has what weapons, particularly if the State devolves supply of firearms to the unorganized militia.

Fourth, states can ban certain gun accessories, such as bump stocks, suppressors, large-capacity magazines, etc.

Hopefully it is becoming clear that the states have both more power and more responsibility regarding firearms than the federal government. Congress is limited by its enumerated powers to regulating through the commerce clause. The states have the most opportunity to test different solutions to these problems, and many states have already done so. But I suspect that there are many creative solutions available that have yet to be pursued.