The day of the Newtown massacre, another lunatic attacked a group of helpless school children, in the Henan province of China. There, because the assailant wielded a knife and not a gun, the result was 23 children and an adult with nasty injuries, but no deaths. This follows an established pattern. China, like the United States, has experienced a spate of mentally disturbed men attacking school children. But without easy access to guns, Chinese maniacs seldom succeed in killing many.
America’s inability to protect the public from gun violence is a case study in several kinds of democratic failure: the single-issue minority that overrides the weaker preference of the majority; the in-built rural bias of our politics; the entrenched power of a well-endowed lobbying organization; and the runaway interpretation of certain politically congenial rights by a conservative Supreme Court majority. Because of the scale of these systemic obstacles, liberals like Barack Obama, who are naturally inclined to support sensible gun-control laws, have in recent years shied away from taking on the issue at all.
If that is to change, and if America is ever to move toward the kind of gun policies that the rest of the civilized world lives with, there are two possible paths to reform. The first is a civil rights or moral model, along the lines of gay marriage or President Obama’s recent executive order to stop deporting illegal immigrants brought to the United States as children. The other is a public-health model, as with seat belts or smoking, where better policy advances through a complex of regulation, litigation, and incremental political change at multiple levels.
Obama’s first instinct is for the moral approach. He gives a powerful speech, like the one he delivered in Connecticut on Sunday night, announces that the time for change has finally come, and calls on Congress to act. This is the classic, and preferable model of reform. It is transparent, persuasion-based, employs the democratic process, and doesn’t smack of the nanny state. At this point, however, we would do well to acknowledge that America’s gun problem is not amenable to that kind of change. At best, the moral model yields a halting, one-step-forward, two-steps-back type of reform. In the wake of a horrific school massacre in Stockton, Calif. in 1989, Congress passed a ban on assault weapons, which Bill Clinton signed in 1994. A decade later, with the help of the National Rifle Association, it expired. Even in the wake of the Newtown shootings, it is unrealistic to expect Congress to pass any kind of comprehensive gun-control legislation.
New York City Mayor Michael Bloomberg has been the exemplar of the alternative, paternalistic model, in which government uses any regulatory, legal, or political power at hand to protect its citizens from harm, self-inflicted or otherwise. The case study is smoking, where Bloomberg in 2002 championed an initially unpopular ban on smoking in bars and restaurants. This became, in a few short years, the national and even global norm. Combined with punitive taxes and a program of supportive services for people who wish to quit, New York has reduced smoking rates, which had been stagnant for years, from 22 to 14 percent over a decade. Teen smoking has gone from 19 to 7 percent in the same period. Bloomberg has lately been trying a similar approach with unhealthy fast food.
With guns, a public health approach would begin by focusing on the legal anomaly that federal agencies can regulate devices meant to keep people alive, but not those designed to kill them. Creating the Consumer Product Safety Commission in 1972, Congress gave it the power to regulate toy guns but not real ones. The logic was that weapons were already covered by the Treasury Department’s Bureau of Alcohol, Tobacco, and Firearms. But ATF has authority only to enforce existing criminal law, not to apply health and safety standards. The single most important change Obama could undertake would be pressuring Congress to give ATF the same power over guns that the National Highway Traffic Safety Administration has over cars.
The other big change has to do with liability law. After lawsuits by state attorneys general forced tobacco companies to pay billions of dollars toward public health costs, trial lawyers and municipalities around the country trained their sights on gun makers. In response, the NRA in 2005 got its minions in Congress to pass a bill that shielded firearm manufacturers and dealers from negligence suits. Obama should try to have this decision reversed.
Regulation and tort law are suboptimal ways to make public policy. At the same time, there’s little rationale for treating guns as a uniquely special and protected class of product. What gun-control advocates need to succeed is simple parity.
A slightly different version of this piece appears in the Financial Times.