I generally have a lot of respect for Eugene Volokh, but he's fighting a straw man in his post on regulating guns like cars. The people who argue for this have in mind especially two ordinary car regulations they would like to see applied to guns, neither of which he mentions.
1) Registration of all cars with the government at time of sale or transfer,
2) Mandatory insurance to cover likely potential costs should you operate it in a way that causes harm.
So that would mean universal registration of firearms, as well as mandatory (and rather expensive) insurance for each and every firearm you intend to operate.
In other words, the proposal is for a much stricter regime of firearm regulation than currently common across the country -- not a lesser regime.
17 comments:
Heh. Nice catch.
Such folks also elide the fact that possessing cars isn't a Constitutionally protected right, however necessary they might seem to be in today's world.
I might be able to support a firearm requirement that says if I want to carry in public I have to be able to show that I know how to use the tool (to which I would add, maintain it). But such training, while reasonably rigorous, would have to be unusable as a barrier to public carry, and the "license" would have to be a will-issue document.
A further requirement: the cop who wants to see my "license" should be allowed to see it, but he should not be able to make a record of that--even to the extent of noting that he saw a "license." The cop might have a legitimate use for seeing the thing; the state has no use at all.
But how to write such a requirement and then enforce it. That difficulty mitigates against the thing's existence.
Eric Hines
Devil is in the details. And people let the Left get away with details often enough that it has come to this.
I'm not convinced that a state-level insurance requirement isn't reasonable, if it can be kept at a level that isn't a bar ('an infringement') to keeping and bearing arms. It's certainly the case that 'knowing what you are doing' is a reasonable requirement for the state to impose on its militia; being able to stand good for any harm you may likely do is also reasonable.
The trick is that these goods depend on reading the 2nd as a protection of state militias, and not on the individual right that Heller confirms. Still, I don't know that it isn't a plausible standard if the cost can be set at a level that isn't prohibitive or unnecessarily restrictive.
One cost that would make it prohibitive to me would be the state's accumulating a database of who has a license (and by extension, who does not). Hence the bar to the cop's making a record of the fact that he saw mine. The state can be satisfied with the cop's statement that he's seen all the licenses he thinks he needs to see.
The state requires me to be insured to drive a car, but again, driving is not a Constitutionally protected right. I certainly agree with the principle of a requirement to make an injured party whole, in some way, for an unjustified injury I might do him with my firearm, but by state mandate?
That comes close to the state engaging in prior restraint of me; our social compact is designed for us to priorly restrain our state. There's also plenty of law, and case law, for sanctioning me after the fact if I choose not, or cannot, make someone whole. The state needs no more power.
Eric Hines
The trick is that these goods depend on reading the 2nd as a protection of state militias, and not on the individual right....
Not necessarily. The reasoning can be valid by analogy rather than by precedent.
Eric Hines
I don't really see all that much of a problem with Volokh's post, though. First of all, I'm not sure all people who say, "Why can't guns be regulated like cars?" want the same things.
The salient point is that all regulation of cars is State, not federal regulation. So if guns *were* to be regulated exactly like cars, that would mean no federal regulation of gun ownership -- just as there's no federal regulation of car ownership. The laws vary by (and are set by) each State.
The insurance requirement would (again) be a state-by-state matter, as would registration on the sale or transfer of guns.
As for the cost of insurance, if insurance rates are risk based, the rates should actually be quite low for registered (legal) gun owners, unless of course guns are more dangerous than it is argued they really are. Absent federal intrusion, it's hard to see what would drive rates up to the point of being burdensome.
The problem with the post lies in the conclusion:
Now I suspect that many gun control advocates would in reality prefer a much more onerous system of regulations for guns than for cars. Of course, one can certainly argue that guns should be regulated more heavily than cars; thoughtful gun control advocates do indeed do this. But then one should candidly admit that one is demanding specially burdensome regulation for guns — and not claim to be merely asking “why can’t guns be treated like cars?”
If you read them as wanting a mandatory registration and mandatory insurance on a per-firearm basis, the scheme they're suggesting is much more onerous than the one Volokh paints for us. In other words, the bad faith imputed to 'non-thoughtful' advocates is not present: they can be committed both to an onerous regulation and also to a 'guns like cars' metaphor.
As for a state rather than Federal model, I agree that's quite right. That seems to me to be a large part of the meaning of the 2nd Amendment, except in those (quite rare) cases where the citizen militia is called into Federal service in accord with Article I, Section 8.
If you read them as wanting a mandatory registration and mandatory insurance on a per-firearm basis, the scheme they're suggesting is much more onerous than the one Volokh paints for us.
Yes and no. First of all, as I already mentioned, the "mandatory" aspect would be on a state-by-state basis (as is regulation of cars). If it's federal law, then by definition it's already radically different than regulation of car ownership.
It seems to me that by definition, if one thing is regulated differently than another (federal vs. state, onerous vs. light regulation) then they're not being regulated in the same manner at all.
I took his point to be that if guns *were* regulated just like cars, that wouldn't make gun haters happy because gun owners would (in most cases) have *more* gun rights as a result! Read that way, I thought he made some good points.
It seemed like the typical scenario (why can't a woman be more like a man?) where the questioner really hasn't thought the matter through very well at all :p
As for the cost of insurance, if insurance rates are risk based, the rates should actually be quite low for registered (legal) gun owners...
Maybe that's the road out of the problem Mr. Hines' raises, too. If we do guns-like-cars, we do end up with a registry of guns.
On the other hand, I'm not a 'registered' gun owner but I do have a license to carry weapons in Georgia. So perhaps we can't do guns exactly like cars, but we could make a condition of such a license a kind of blanket policy that actuaries could price based on the class of licensed carriers compared with some sort of compiled costs of injuries done by same. My sense, like yours, is that the numbers would work out in a non-burdensome way.
I took his point to be that if guns *were* regulated just like cars, that wouldn't make gun haters happy because gun owners would (in most cases) have *more* gun rights as a result!
That part of his point is fair, especially as regards the (Federal) good faith clause for licensing. My Georgia license entitles me to drive in Maryland, but not to carry arms there. That would go away if we treated guns exactly like cars: although Maryland would still have a right to its own take on gun/traffic laws, it would have to respect my Georgia license to carry or drive.
But you can't ignore the other aspects of the question. You might even get a compromise out of the gun-control class if you were willing to go all the way and admit to a comprehensive registry of firearms and the full-on insurance-per-gun plan.
...go all the way and admit to a comprehensive registry of firearms and the full-on insurance-per-gun plan.
That's part of my problem with mandatory gun insurance: it's a government database in the making. Voluntary insurance? Sure--let the market decide whether it's a viable product (and it wouldn't, at that point, necessarily be weapon by weapon), and if so, at what price. The insurance policies still would represent a government database in the making, but an incomplete one.
Incidentally, car insurance per se, isn't a universal requirement. In Texas (and, I think, New Mexico), if I don't want to pay for insurance, I can instead make a deposit into a state-observable account of $10,000 (last I checked). That deposit then would serve as my insurance policy. Of course, compared to the costs incurred/inflicted by a car accident, that's a risible sum; the insurance might as well be mandatory.
Eric Hines
If I weren't concerned about a crazy political tradition of trying to ban guns in the mistaken belief that we can in that way decrease the violence of our society, I'd say this is a situation very much like our regulation of things like explosives that are used in the construction industry. We make them a bit difficult to buy, we may force people to get certified in the ability to use them safely, and we require bonds or insurance.
But the sensibleness of that approach in a vacuum make have to give way before the dangers of letting a government decide whether its citizens may be armed. History tells us that never works out well.
I like Tex's point about balance - policy has to weigh pros and cons of individual situations and cars aren't exactly like guns(though they do cause many more deaths than guns do! So in that sense, they're more "dangerous" than guns).
I don't really see some limits on owning/using arms as preventing citizens from being armed at all. I think most of us can imagine situations were completely unrestricted gun use/ownership might make guns into a big enough problem that eventually we'd put more limits in place than we have even now.
But I don't trust the federal govt. to make those rules.
Right--if we could trust the federal government to be purely concerned about public safety, we probably wouldn't worry too much when they made sensible suggestions about insurance or registration. But because they also have a historical uncontrollable temptation to disarm their own citizens so as to have to worry less about rebellion against tyranny, we need to be suspicious.
Suspicious, yes. But also aware of the balance between liberty and license, security and freedom :)
Right now I see little evidence that private gun ownership is a threat to public safety. But if circumstances changed (for instance, if gun violence started invading even normally crime-free neighborhoods and public shootings became common), my assessment might change, also.
And then I'd have to decide what the appropriate remedy for that problem might be: where the right balance lay.
a situation very much like our regulation of things like explosives
and
if we could trust the federal government to be purely concerned about public safety
Even a government that wants to be concerned, it can't be effectively. From my high school mates and I, in the dark ages of print libraries and hard books only, making our own explosives and firearms to today's terrorists cobbling together explosives and mass poisons out of ordinary household materials, courtesy of the Interwebs, it's just too easy to defeat government regulation.
It always comes down to We the People.
Eric Hines
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