How Obama can use government procurement regulations to control guns.

Making government work better.
April 29 2009 7:05 AM

Gun Control Without Gun Laws

How Obama can use government procurement regulations to limit gun violence.

Ever since Al Gore lost the presidency in 2000, the national Democratic Party has avoided the issue of gun control. The Obama White House recently made it clear—abandoning a campaign pledge—that it won't push for a legislative ban on the sale of assault weapons. Yet a series of provocative recent events has revived the gun debate: the international tension arising from Mexican drug gangs using guns purchased at American stores, the 10th anniversary of Columbine, and a Supreme Court case invalidating a District of Columbia law prohibiting the possession of guns at home.

Political reality makes even a modest gun law a difficult legislative sell. But if the Obama administration really cares about limiting gun violence, it could pursue a different strategy, one that doesn't involve Congress and isn't likely to provoke a storm of opposition.

Modern government is not only a lawmaker. Indeed, the most effective executive powers may not derive from statutes at all. The government that President Obama oversees is also a gigantic, well-funded procurement agent. And it can—and should—use that power to change American gun policies. Specifically, the government buys lots of guns, for sheriffs, patrol officers, and detectives; for FBI agents, DEA agents, IRS agents, Postal Inspectors, immigration agents, and park rangers; and for soldiers, sailors, airmen, Marines, and spies. The government buys guns by the crate.

What is striking is that the government buys guns from manufacturers who also sell them to criminals—either knowingly or by willfully overlooking the behavior of the retail outlets that the gun companies use as their distribution system. Those of us who were in law enforcement in New York City in the late '80s and early '90s remember how drug dealers pioneered the use of 9-mm guns. We heard over and over from our friends in the police department that they were outgunned, that their service revolvers were no match for semi-automatics in a shootout. So what did the police do? The New York City Police Department finally bought 9-mms, too. It was a classic arms race, with the gun manufacturers in the economically enviable position of selling bigger and better guns to both sides.

This prompts a simple question: Why do we buy guns from companies that permit their products to be sold to bad guys?

In this era of government ownership of financial institutions, we are getting more used to the notion that government as an economic actor can exercise its power in differing ways. After all, firms that received TARP money are subject to a bevy of pay restrictions—wisely constructed or not—and were forced to cancel showy parties and retreats.

If we can use a capital infusion to a bank as an opportunity to control executive compensation and to limit use of private planes, why can't the government use its weight as the largest purchaser of guns from major manufacturers to reward companies that work to keep their products out of criminals' hands? Put another way, if it is too difficult to outlaw bad conduct through statutes, why not pay for good conduct? Why not require vendors to change their behavior if they want our tax dollars?

Just as we now "purchase" good corporate behavior in the financial industry, let it be so with guns. Governors and mayors and federal officials should buy guns from only manufacturers that control their product distribution, from manufacturers that cut off dealers whose guns end up disproportionately in the hands of criminals. In the New York attorney general's office nine years ago, we proposed several ways of constraining gun manufacturers within existing laws. These same proposals could be implemented now. Nongun manufacturers across the nation routinely control how their product is distributed and impose contractual obligations on wholesalers and retailers. Gun companies should have to use a similar approach. They should sell their product through only authorized dealers. And the authorized dealers should have to keep track of how many times they got "trace" inquiries from law enforcement—that is, how many guns they sold were later used by criminals. Dealers that sold a disproportionate number of "crime guns" would have to fix the problem, something that might be as easy as retraining staff to react to "straw" purchasers who were trying to evade existing laws. Data showing that a high percentage of guns used in crime come from a small subset of dealers suggest that closing these few retailers could have a dramatic impact on access to illegal guns. Likewise, the government could require manufacturers to make a few simple design changes in the interest of safety and tracking: trigger locks, or hidden serial numbers, or a magazine safety disconnect on every pistol.

More fundamentally, companies could be told to stop selling certain types of weapons to the general public. If a manufacturer did not comply with any of the limitations, then it would be excluded from the list of companies with which the government would do business.

In 2000, this idea's time had not come. The government did not so boldly exercise its prerogatives as owner and purchaser. It did not freely insist that companies receiving our tax dollars change their practices—even in fundamental ways—if they wanted our money. Today, of course, this is the way business is done.

If President Obama wants to devise a creative way to limit gun violence, he will use his power as the world's largest consumer to require the cooperation of gun manufacturers. If government cannot legislate the conduct it wants, then it can use market power to buy it. For the money we are spending, we should buy not only guns but some peace from gun violence.

Eliot Spitzer, the former governor of the state of New York, hosts Viewpoint on Current TV. Follow @eliotspitzer on Twitter.

Peter B. Pope practices law at Arkin Kaplan Rice in New York City.

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