The accidental shootist.

The accidental shootist.

The accidental shootist.

The law, lawyers, and the court.
Feb. 14 2006 4:02 PM

The Accidental Shootist

Both sides in the gun lobby need to rethink their targets.

Dick Cheney was not the first politician to mishandle a loaded weapon this year. Virginia Delegate John Reid accidentally discharged his pistol last month while unloading it at his office desk. Reid's unintended victim, hanging on a hook on his door, was a Kevlar vest—given as a gag gift last year for protection from political flak. But the vest ultimately failed him since the mishap prompted closer scrutiny of gun-rights groups whose work may eventually liberalize the vast majority of the nation's gun laws.

Virginia already dispenses concealed-weapons permits as easily as drivers' licenses, with no mandatory test of firearm proficiency or safety. I, for example, qualify for a permit to carry a concealed pistol, though I've never shot one or been trained to do so, because I once took a hunter-education course. Maybe that's how Reid got his. It's impossible to say, of course, that his mistake could have been prevented if the permit process were more stringent. What's demonstrable is that he and his colleagues oversee a legislative process awash in bills proffered by the gun lobby, and that Congress can act to fill the policy gap created by the states' patchwork of regulations. There's a way to balance the interests of gun owners against the need for public safety. But it would require ramping down the hysteria on both sides of the debate.

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Because the states have traditionally regulated matters pertaining to guns, the relevant federal laws can be counted on one hand; any bill Congress may consider must contend with the commerce clause of the Constitution as well as the NRA's peerless lobbying machine. They and other like-minded groups have historically found state legislators easier and cheaper to lobby than Congress because state elections' generally low voter turnout heavily favors candidates who appeal to the die-hard partisans and single-issue voters. Statehouse races depend on margins of victory that can be preposterously small, and candidates in hotly contested elections know their fortunes rise and fall at the whim of local special-interest groups. In rural, sparsely populated districts across the country, this fact of political life often brings the toes of state legislators right up to the line of the NRA. This explains the plethora of bizarre legislation currently pending before Reid and his colleagues in Virginia's General Assembly.

The roster of proposed gun bills in Virginia reads like a long series of bad jokes: One bill would do away with the concealed-weapons permit altogether; anyone at all could carry one, as long as they so inform the police if they're ever detained. This law is a shootout waiting to happen, since one can't exactly reveal a weapon without reaching for it. Another bill would prohibit health-care professionals—in the course of educating parents about home safety hazards like drain cleaner and gateless staircases—from suggesting a family may want to keep its guns away from children. And the states also legislate downward: Two proposed laws would repeal all gun ordinances passed by localities before 1995 and forbid them any further regulation of the discharge of weapons within their jurisdictions.

Take a minute to absorb all that. Then indulge me if I play the devil's advocate for a moment. The gun lobby does, in fact, present solid statistical evidence that armed people defend themselves and others against significant numbers of violent crimes. It also argues, correctly, that terrorist incidents in public buildings and rampage shootings in schools might be resolved more quickly by armed citizens within than by SWAT teams entering from without. There are good reasons for a decent, law-abiding person to own and carry a gun for purposes of recreation or self-defense. Her rights are just as precious as those of a non-gun-owner, and she shouldn't be treated like a criminal until and unless she behaves like one. No good law can erode her right to life, liberty, and the pursuit of skeet merely in the interest of keeping others with darker motives from getting their hands on a gun.

Evaluating the various bills proffered by the gun lobby should simply be a matter of totting up these rights and measuring them against issues of public safety. But such evaluation currently relies on a risk-benefit analysis that's skewed by state politicians' reliance on the gun vote. Perfect honesty, for instance, might force us to acknowledge that the threat to public safety these pro-gun laws pose probably far outweighs whatever value they may hold in preserving individual liberties, since criminals would be as likely as lawful gun owners to avail themselves of their right to bring a gun on their next trip downtown.

But such candid calculations are impossible because our national discourse on gun policy has become polarized and extreme, with both sides now forced into polarizing and extreme positions. In fact, gun-control proponents are as guilty as the NRA of putting their lobbying shoulder behind tactics that are both ineffective and misleading.

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Two examples of poorly conceived gun-control tactics are the federal assault-weapons ban and liability lawsuits against gun manufacturers and dealers. Even the nomenclature of the former—which expired in September 2004—is misleading, since Americans legally bought and owned assault weapons, high-capacity magazines, and combat accessories for the duration of the alleged "ban." The bill did nothing to keep these weapons off the street, but the gun-control community claimed it as a major victory; the law didn't need to be effective in practice to be helpful in raising money from the left-leaning public. Again in the interest of candor, one would have to agree that's a cynical and dishonest approach.

The same is true of liability suits, which simply don't target criminals; they target companies, American ones, who provide skilled jobs to American workers. Suing Smith & Wesson as a result of a shooting is like suing GM because of a drunk-driving arrest (or Prada because someone wears white shoes after Labor Day …). Responsibility should fall to individuals who make dangerous decisions, not to corporations that make inanimate objects.

Bracket, then, the extreme positions espoused by either camp, and pose the simple question: What would a truly principled addition to our current gun laws look like? We'd be better off with common-sense laws that treat gun owners fairly while assuring everyone else that the government has a real interest in public safety. Assuming this, the best course of action for Congress is, unfortunately, probably off-limits because of the aforementioned commerce clause: They should, in a less perfect union, have the power to pass a federal child-access-prevention law. Failing that, we can only hope people love their kids enough not to let them get their hands on a gun.

Congress can and must act, though, within its constitutional bounds, to counterbalance the disproportionate political weight the gun lobby brings to bear at the state level. Left to its own devices, the Commonwealth of Virginia would require me to be a licensed dealer of cars if I were to sell more than five of them in a year; it wouldn't, however, consider me a gun dealer even if I were to sell 100 guns in a weekend at a gun show. This loophole presents a glaring error in the cost-benefit assessment of our current gun policy. And there's an end run around this discrepancy that should be at the forefront of our national debate on gun policy.

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That end run is the passage of a law that should please everyone across the political spectrum: universal background checks. The Brady Law already mandates FBI background checks when anyone buys a gun from a federal firearms-licensed gun dealer. There's no question that Brady is constitutional, and that Congress had the right to pass it. Given sufficient legislative spine, then, it follows that they could mandate the same check on all private sales as well.

These off-the-books sales in the secondary market account for roughly 40 percent of annual gun transfers. They make possible the gun-show loophole and straw-man purchases like the one that gave the Columbine killers the semiautomatic pistol * in their cache. In fact, the only lawmakers who could possibly oppose universal checks are those who'd argue that known terrorists, sex offenders, felons, maniacs, drunks, drug addicts, and domestic abusers should be able to skip the FBI check and buy their guns from private sellers. That's what our current law allows, which raises the question: Why is the gun-control community not focused on a straightforward law that would directly address one of the main sources of guns used in violent crimes?

The universal background check is not only good policy—it's good business. Almost all gun shops in America are mom-and-pops that face the same shrinking profit margins, rising labor costs, and astronomical bills for insurance and employee benefits that make life so difficult for America's other legitimate small businesses. Federally licensed dealers performing universal FBI checks would reap the benefit of ancillary high-profit-margin sales, and the public could feel more secure in the knowledge that person-to-person gun transactions have a degree of oversight they now lack. Gun-control groups would, it appears, prefer to sue gun dealers out of existence rather than back a law that might include them in a real-world solution.

Eventually, the Brady Campaign and the Violence Policy Center must acknowledge that they'll lose in most statehouses most of the time; the deck is stacked against them except in predominantly urbanized states. Given finite resources of money and lobbying power, they must choose whether their federal efforts should target gun violence or the gun industry. Their historical focus on civil suits and weapon-specific laws (assault weapons, .50-caliber sniper rifles, Saturday night specials) suggests strongly that compromise, in the form of co-opting the gun industry's self-interest, may require a jarring change in their institutional mission. If they commit to it, this bill can support small business and the jobs it represents, close the gun-show loophole without ever mentioning the shows themselves, and keep more guns out of the hands of more criminals with a straightforward law that should be palatable to both sides of the aisle.

As for Delegate Reid's mistake, no one should gloat. And, thankfully, no one was hurt. The episode may, though, have had a couple of incidental victims we shouldn't mourn. At this writing, one Virginia bill that would have kept universities from banning guns on campus died a quiet, unremarkable death in committee. Another that would permit guns in most of the state's airports will almost certainly meet the same end. Even in the Virginia capital, where lawmakers can and do pack heat, no one is prepared to defend them when the rhetoric involves real bullet holes rather than inchoate rights.

Correction, Feb. 23:The TEC-DC 9 pistol used at Columbine is not a machine pistol, but a semiautomatic pistol. (Return to the corrected sentence.)