Librarian
01-20-2009, 02:45 PM
h/t David Hardy (http://armsandthelaw.com/archives/2009/01/what_if_heller.php)
What if Heller had turned out the other way?
Prof. Nick Johnson asks the question (http://lawreview.law.wfu.edu/documents/issue.43.837.pdf), in the Wake Forest Law Review. His points are practical rather than legal ones. (1) The only supply-side gun control that would have a chance of affecting crime is a ban and confiscation, all this toying around with assault weapons and similar issues is mere symbolism that affects nothing. (2) Anyone who thinks a ban and confiscation would work is delusional.
55 pages, a lot of it is footnotes.
IMAGINING GUN CONTROL IN AMERICA:
UNDERSTANDING THE REMAINDER PROBLEM
Nicholas J. Johnson
INTRODUCTION
Gun control in the United States generally has meant some type of supply regulation. Some rules are uncontroversial like user- targeted restrictions that define the untrustworthy and prohibit them from accessing the legitimate supply. Some have been very controversial like the District of Columbia’s recently overturned law prohibiting essentially the entire population from possessing firearms. Other contentious restrictions have focused on particular types of guns—e.g., the now expired Federal Assault Weapons Ban. Some laws, like one-gun-a-month, target straw purchases but also constrict overall supply. Various other supply restrictions operate at the state and local level. Proposals for stricter gun control typically involve expansion of supply controls toward the goal of bringing the U.S. rate of gun crime down to the levels of other first-tier industrialized nations—places where background conditions along with supply-side restrictions have resulted in dramatically lower inventories of guns than in the United States.
None of these measures have been particularly successful and, upon reflection, have been somewhat peculiar. We have pressed supply-side rules at the margin—e.g., with prospective limits on supply and restrictions on obscure categories of guns—all while denying that disarmament is the ultimate goal. This recipe for gun control has yielded disappointing results.
Stringent de jure supply restrictions actually have correlated with higher levels of gun crime. This is not surprising. De jure supply restrictions are not the same as de facto supply reduction. Effective supply-side regulation requires earnest pursuit and eventual achievement of an environment where the civilian gun inventory, both legitimate and contraband, is very small (“the supply-side ideal”). In the handful of municipalities that have attempted true gun bans, supply has continued to meet demand primarily because the existing inventory of guns is vast, and people have real world incentives to defy gun bans. These two phenomena, elaborated here as the “remainder problem” and the “defiance impulse,” have confounded supply restrictions for decades.
Now that the Supreme Court has ruled in District of Columbia v. Heller that the Second Amendment prohibits general disarmament, the temptation is to view Heller as the central obstacle to effective gun controls. This is a mistake born of our failure to confront the incoherence of supply-side controls pre-Heller. While Heller technically prohibits the supply-side ideal, supply-side rules are, and long have been, blocked by structural barriers rooted in the nature of our armed society—viz., 300 million guns tightly held by people who believe they are uniquely useful tools.
Two things are foreseeable. First, supply regulations on the edges of Heller will have only symbolic effect because Heller plainly bars laws intended to cut supply to zero. Second, because Heller formally blocks the supply-side ideal, its trajectory will be the focus of political and constitutional warfare. Underlying this will be the mistaken perception that, with sufficient political shift and Heller nullified, supply controls still might work in America. Understanding the structural barriers to supply controls will help us avoid that mistake.
This Article will illuminate those structural barriers by removing, theoretically, the constitutional impediment of Heller and the political impediments to the supply-side ideal. Assume, therefore, that Heller is reversed or explained away. Assume further that the political barriers to sweeping supply controls are overcome. Now imagine gun control in America.
What if Heller had turned out the other way?
Prof. Nick Johnson asks the question (http://lawreview.law.wfu.edu/documents/issue.43.837.pdf), in the Wake Forest Law Review. His points are practical rather than legal ones. (1) The only supply-side gun control that would have a chance of affecting crime is a ban and confiscation, all this toying around with assault weapons and similar issues is mere symbolism that affects nothing. (2) Anyone who thinks a ban and confiscation would work is delusional.
55 pages, a lot of it is footnotes.
IMAGINING GUN CONTROL IN AMERICA:
UNDERSTANDING THE REMAINDER PROBLEM
Nicholas J. Johnson
INTRODUCTION
Gun control in the United States generally has meant some type of supply regulation. Some rules are uncontroversial like user- targeted restrictions that define the untrustworthy and prohibit them from accessing the legitimate supply. Some have been very controversial like the District of Columbia’s recently overturned law prohibiting essentially the entire population from possessing firearms. Other contentious restrictions have focused on particular types of guns—e.g., the now expired Federal Assault Weapons Ban. Some laws, like one-gun-a-month, target straw purchases but also constrict overall supply. Various other supply restrictions operate at the state and local level. Proposals for stricter gun control typically involve expansion of supply controls toward the goal of bringing the U.S. rate of gun crime down to the levels of other first-tier industrialized nations—places where background conditions along with supply-side restrictions have resulted in dramatically lower inventories of guns than in the United States.
None of these measures have been particularly successful and, upon reflection, have been somewhat peculiar. We have pressed supply-side rules at the margin—e.g., with prospective limits on supply and restrictions on obscure categories of guns—all while denying that disarmament is the ultimate goal. This recipe for gun control has yielded disappointing results.
Stringent de jure supply restrictions actually have correlated with higher levels of gun crime. This is not surprising. De jure supply restrictions are not the same as de facto supply reduction. Effective supply-side regulation requires earnest pursuit and eventual achievement of an environment where the civilian gun inventory, both legitimate and contraband, is very small (“the supply-side ideal”). In the handful of municipalities that have attempted true gun bans, supply has continued to meet demand primarily because the existing inventory of guns is vast, and people have real world incentives to defy gun bans. These two phenomena, elaborated here as the “remainder problem” and the “defiance impulse,” have confounded supply restrictions for decades.
Now that the Supreme Court has ruled in District of Columbia v. Heller that the Second Amendment prohibits general disarmament, the temptation is to view Heller as the central obstacle to effective gun controls. This is a mistake born of our failure to confront the incoherence of supply-side controls pre-Heller. While Heller technically prohibits the supply-side ideal, supply-side rules are, and long have been, blocked by structural barriers rooted in the nature of our armed society—viz., 300 million guns tightly held by people who believe they are uniquely useful tools.
Two things are foreseeable. First, supply regulations on the edges of Heller will have only symbolic effect because Heller plainly bars laws intended to cut supply to zero. Second, because Heller formally blocks the supply-side ideal, its trajectory will be the focus of political and constitutional warfare. Underlying this will be the mistaken perception that, with sufficient political shift and Heller nullified, supply controls still might work in America. Understanding the structural barriers to supply controls will help us avoid that mistake.
This Article will illuminate those structural barriers by removing, theoretically, the constitutional impediment of Heller and the political impediments to the supply-side ideal. Assume, therefore, that Heller is reversed or explained away. Assume further that the political barriers to sweeping supply controls are overcome. Now imagine gun control in America.