Forget the Courts and Legislatures. Our Only Hope for Gun Control Is the Free Market. 

The law, lawyers, and the court.
May 30 2014 4:23 PM

Not in My Backyard

The courts and legislatures won’t solve our gun problem. Maybe the free market can.

Members of the gun rights group Open Carry Texas pose in a Chipotle restaurant.
Members of the gun rights group Open Carry Texas pose in a Chipotle restaurant.

Photo courtesy Moms Demand Action for Gun Sense in America

After the tragic events in Isla Vista, California, last week, we’ve seen another uptick in talk of stricter gun regulation and the regular depressing response. But while the debate over solving the problems of gun violence legislatively or judicially falters along its predictable path, with feints toward meaningful reform followed by crushing defeats as memories fade, one interesting aspect of the gun wars has gone relatively unnoticed: Gun opponents have been racking up some small victories in demanding that family restaurant chains deny service to patrons seeking to openly carry firearms on the premises.

Last week the gun control group Moms Demand Action for Gun Sense in America began circulating a petition in response to members of Open Carry Texas visiting a Dallas Chipotle. Despite OCT’s efforts to loudly reassure diners that “We always let the manager know we’re coming. We try very hard to make people feel comfortable,” it seems the people do not, in fact, feel comfortable, dining with their children as men parade around displaying long guns and posing for photos. And Chipotle, forced to take sides, issued a statement last week indicating that state law notwithstanding, open carriers should leave their weapons at home or not come to Chipotle.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

This follows similar episodes in which open-carry groups terrified employees at a Fort Worth Jack in the Box, who thought they were being held up and hid themselves in a freezer, and at a Chili’s and a Sonic in recent days. (Open Carry Texas took the videos of these incidents down, but Mother Jones still has them.) Both chains say they are evaluating their customer/gun policies in response to the gun-toting demonstrations. (Update: After this piece posted on Friday, both Sonic and Chili’s announced policies requesting gun owners to leave their guns at home.) And now Home Depot will have to pick sides this weekend, when open carriers descend on a Texas location to make the point that anyone who is afraid of hundreds of armed men browsing among the hydrangea planters is a Second Amendment-hating idiot.

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Let’s call it the new NIMBY. Guns? They are your right. But not in my backyard. It may just be the case that if we can’t regulate guns legislatively, a combination of rational self-interest, zoning, and economic pressures will start to limit at least the most aggressive of the gun nuts. And it may not be limited to open carriers and fast food. Reasonable people, time and time again, may opt to afford broad gun rights to everyone but the men with military-grade weapons who want to hang out where they live.

The new NIMBY is hardly complicated: The only people who want to bring small children into a chain restaurant populated by men posing with assault rifles are the people posing with assault rifles. In some settings, that will be a draw. But simple math—and recent events in Texas—suggest that if forced to choose, businesses will pick sane policies over dangerous ones, or at least more customers over fewer.

But the NIMBY impulse extends beyond the rational self-interest on display among the owners of our finest burrito chains, and perhaps even beyond the fight between proponents of open carry and concealed carry. The NIMBY factor is what is at work every time a legislature affords sweeping and generous gun rights to everyone, except people likely to shoot at them. So when the Georgia legislature passed its infamous “guns everywhere” bill this spring, it allowed for the carrying of weapons virtually everywhere, including in bars, churches, school zones, government buildings and parts of airports.

But, oddly enough, guns were not permitted in the state Capitol, which is, according to Georgia Gov. Nathan Deal, “a uniform carved-out area all across our state.” Convenient. Similarly, last year, pro-gun Idaho legislators flew into a panic when an armed man walked through the Capitol because, as one irate lawmaker (who has the endorsement of the NRA) put it: “What happens when six people come and sit in the front row of the gallery with shotguns across their laps?” Imagine. This is the same Idaho that’s just legalized “campus carry” laws over strong opposition from police chiefs, the state’s eight college presidents, faculty, and students. And last year GOP Rep. Steve Stockman of Texas held a meeting to deride the whole idea of “gun-free zones” (seeking to repeal legislation making schools gun-free). It was held in the in the U.S. Capitol. A gun-free zone. Because people with guns can be dangerous.

Another manifestation of the (wholly reasonable) NIMBY impulse when it comes to guns occurred with Justice Antonin Scalia’s announcement in D.C. v. Heller, the watershed Second Amendment case from 2008, which struck down the District of Columbia’s ban on handguns that were kept in the home for self-defense, saying it violated the Second Amendment. But after determining that there is now an individual right to “keep and bear” handguns, the court then pivoted and accepted the reasonableness of any laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings.” As professor Pamela Karlan of Stanford law school has argued, this has less to do with originalism and more to do with the fact that the justices “care about consequences. They engage in interest balancing: governments are entitled to conclude that the social costs of permitting weapons in schools or government buildings outweigh any individual right.”

In an interview this week, Adam Winkler, who teaches law at UCLA and is the author of the important book Gunfight: The Battle Over the Right to Bear Arms in America, wondered whether there wasn’t a tiny bit of judicial NIMBYism at work in the Supreme Court’s persistent refusal to take another Second Amendment case since 2010, despite conflicts among the appeals courts. “They had good cases presented this term,” he said. “They chose not to take the cases despite a split in the circuits. I wonder if that is at all related to the fact that the city they live and work in has some of the strictest gun regulations in the country.”

But it gets better. Way better. You know what else is a gun-free NIMBY zone? The NRA Convention. Another good one? The Republican National Convention. Last year Rep. Bob Goodlatte, R-Va., a staunch gun advocate with an A rating from the NRA, patiently explained to C-SPAN’s Washington Journal that the reason guns were not allowed inside the Republican National Convention in Tampa was that the Secret Service “want to provide protection to these folks.” And as ThinkProgress documented just last year, most gun shows also ban loaded weapons because “Safety is our Number One Priority, and a safe environment in the show can only be maintained if there are no loaded guns in the show.” It’s impossible not to see at least some NIMBYism at work when, as here, legislators beholden to the NRA vote one way when it comes to allowing loaded guns to be carried anywhere, and vote quite differently when those weapons are anywhere near them. Beneath all the bluster and financial obligation there lies a recognition that when huge groups of armed citizens gather in small spaces, it’s probably a good idea to take away their guns, most especially if you’re going to be there.

It’s unclear today, as it is always unclear after a brutal killing spree, whether the ideal of achieving any kind of meaningful gun control is illusory or finally possible. But if we can glean anything at all from the lessons of rational self-interest, economic incentives, and the ways in which even the most avid gun rights supporters regulate the spaces around themselves, maybe it’s not all hopeless. Maybe the same hypocrisy that pervades pro-NRA legislators, and the same self-interest that impels fast-food customers to vote with their feet, will result in more and more gun-free zones for the simplest of reasons: We’re selfish—because guns kill people, and we all want to live. If the cold, hard calculations of the invisible hand on the right can pry the gun out of the cold dead hand on the left, the free market will have worked precisely as it should.