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Thursday, February 07, 2013

I'm Sorta Against An Assault Weapons Ban

If one is not an absolutist, and one is honest about the inherent limits to all rights, and one recognizes that government's function is to preserve rights whilst resolving conflict between them, and one is serious about trying to address a societal epidemic, then one would think that nothing in Democratic proposals to curb gun violence is unconstitutional.  That said, just because something is constitutional doesn't mean it's a good idea.  As Justice Oliver Wendell Holmes observed:

It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible...to mark the difference between what I would forbid and what the Constitution permits.

While I think we could use more data--and will get it now that Obama has directed the CDC to study the public health impact of firearm violence--it seems clear that hardware bans do have some positive impact on our problem.  Australia is a good case example, the lone bit of published research we have appears to show a correlation between the original weak AWB and a drop in crimes using those weapons, and the same study was eerily prescient about what might happen should the ban expire.

Again, I think a complete prohibition on semi-automatic weapons would pass constitutional muster because they can be considered "dangerous and unusual" (per Heller and Miller), the state interest in reducing firearm deaths is compelling, the law would be narrowly tailored enough, and it would even be (at least one of) the least restrictive means to achieve the very specific goal of limiting circulation of weapons that can be acquired through illicit means.  Yet from a pure policy standpoint I'm not entirely convinced that a ban is effective enough to justify that particular expansion of limits on the right to keep and bear arms.

The biggest problem is the fact that there are 3-5M weapons that would fall under this law already floating around.  While any attempt to limit future sales could have some marginal benefit, we still need to address the existing weapon stockpile, and absent a massive buyback I'm not sure this is the most practical option.  A parallel approach would perhaps mesh better with current law and the proposals to strengthen other approaches: expanding the National Firearms Act.

Consider that we already have a fairly decent background check system that only requires some increased data access/sharing and some loopholes regarding private sales to be closed.  We also already have a registration system in place for full-auto weapons (and others that are clearly dangerous and unusual).  We have a tax in place to increase the cost of entry while still allowing access to deadly firearms.  And we want to develop a stronger relationship between firearm ownership and responsibility.

There are about 500k machine guns in private, responsible hands, and none of them have had documented use in crimes.  While not just everybody will want to jump through the various legal hoops, the NFA is not so much of a burden on exercise of the right that people can say they are completely barred from it (heck, the $200 tax has not been inflation adjusted since the 1930s).  I'm honestly not sure if this approach is less restrictive than a ban--there probably would be more owners than nil because it's legal, but the registration component opens up another can of worms--though it seems on par so is worth exploring as an alternative that might be better from a political and pragmatic standpoint.

Regardless, maybe the heavy regulation reduces the number of people who try to acquire machine guns and whatnot.  And maybe it encourages greater responsibility so the weapons sold are less likely to fall into the wrong hands.  And maybe backing off from a ban means we get other measures passed that enjoy greater consensus and thus have more of a chance to mitigate the problem.  And maybe as we study firearm violence we get more data to make better policy decisions going forward.

Given all that, it strikes me as counterproductive to be wedded to a ban (or really any single solution) right now.  Sometimes constitutional ideas are still stupid, or at least sub-optimal.

ntodd 

February 7, 2013 in Constitution, Schmonstitution | Permalink

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Comments

the ideal would be for a clean universal background check bill (which gets 90 percent approval ratings with public according to PEW) to be introduced to the house, then get killed by the GOP, then used as a wedge in 2014

Posted by: matt | Feb 9, 2013 4:03:57 AM

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