Inevitably after every horrific mass shooting in America (and there are lots of them), the drum beat for stricter gun regulations picks up. Some of the proposals, including criminal background checks and waiting periods, are not bad ideas and can be uniformly enforced without significant interference with people's rights.
But other commentators and random folks on Twitter want to go further, banning some (or all) guns outright, or banning some people from owning them. The idea is that by restricting legal access to guns, we can reduce or eliminate mass shootings like the kind in Orlando last weekend.
First of all, selective bans must incorporate some form of due process. To restrict individual rights, the government must do so equally, consistently, and with a process that allows the restricted person to contest the restriction. Many proposals fail this requirement.
Second of all, any kind of comprehensive ban would run directly into the Second Amendment, which says - or at least has been interpreted to say - that all Americans have a right to private gun ownership. Non-comprehensive bans may be doable, but that's currently up for debate in the federal appellate courts. Some say you can ban certain guns like "assault rifles" while at least one says you can't. But assuming the Second Amendment can someday be repealed, the problem isn't so easily solved; other complications would arise.
I propose the following list of logistical concerns to the most commonly asserted "solutions" to gun violence:
No-Fly and Terror Watch List Restrictions
A common suggestion is that anyone listed on a "no-fly" list or "watch list" for potential terrorists should be prohibited from legally purchasing guns. That sounds like a no-brainer. But those lists are a huge mess. For one, they're secret. People are placed on those lists by government law enforcement agencies without any public trial or hearing. And there is no reliable process for getting the falsely-accused off the lists. There's a reason groups like the ACLU have long battled against these lists. They are a due process nightmare.
Semi-automatic Assault Weapons
Mass shootings inevitably spark outrage at so-called "assault weapons," which are generally just military-style rifles such as the AR-15. They have elaborate body styles with larger magazines, long barrels, and folding or collapsible stocks. They look scary. The rhetoric against them tends to focus on their rate of fire, which is semi-automatic. Semi-automatic rifles fire one bullet per trigger pull, as opposed to automatic weapons which fire bullets continuously as long as the trigger is pulled. That's a big functional difference.
Rifles like the AR-15 aren't the only semi-automatic weapons, either. Most handguns are semi-automatic, and shotguns are available in that style as well. Handguns are far more prevalent than AR-15s, and kill far more people annually, but rarely get the kind of attention that their larger cousins get in the wake of high profile acts of violence. Semi-automatic handguns are quite capable of killing lots and lots of people. For example, the shooter at Virginia Tech killed 33 people with just two handguns. And in state-sanctioned acts of violence, police officers all over the country have demonstrated how fast a handgun can be fired, like the time a Chicago police officer shot Laquan McDonald sixteen times in just a few seconds.
If your primary concern is the number of people a gun can kill, then singling out AR-15s and similar rifles makes little sense. Handguns and shotguns can kill lots of people very quickly as well, and do so more frequently. So if the goal is to rob potential shooters of the ability to cause mass casualties, a more comprehensive anti-gun approach is necessary than just restricting the sale or purchase of "assault weapons."
The Number of Guns in America
Some estimates suggest that there are over 300 million privately-owned guns in America. That's almost one gun for every person. Of course, a minority of Americans actually own all those guns, but we're still talking about millions of owners with millions of guns. A future ban on the sale and ownership of guns would instantly create a very well-stocked black market that is its own means of violent enforcement. As we saw with alcohol Prohibition and still see with the War on Drugs, black markets are violent things because disputing parties cannot turn to the courts to resolve their differences - they have to take matters into their own hands. You can't sue someone for stealing your heroin, so you have to seek some other method of punishing or deterring the affront. The method, as we've seen over and over and over, is violence.
Because of the risk of increased violence associated with a black market, a ban without some form of mass confiscation would be a toothless ban incapable of preventing future mass murders. (We'll ignore, for the purposes of this post, the problem of America's very long and porous borders and coastlines and the explosion of international smuggling that would inevitably arise if a domestic ban successfully disarmed the population).
The Fourth Amendment Problem
Even if a ban on guns could be legal, the problem becomes one of enforcement. How do you effectively disarm the most well-armed civilian population on the planet? One method would be a voluntary gun buyback program, where the government shells out millions of dollars to pay people to turn in their guns. No doubt this would be successful to an extent. Lots of people own guns that they never shoot and have no particular affinity for (heirlooms and inheritances from relatives). And lots of people would just like to make a quick buck.
But lots of other people would have no interest at all in turning in their guns, even if paid well for them. So millions of guns would remain in private hands. How do you get them? You could simply wait until people commit crimes and then take their guns (which is what we already do), but that isn't going to accomplish the goal of preventing mass shootings. And in the meantime lots of guns would trade hands in the black market, which would have its own violence problem.
To be even remotely effective, a gun ban would need to include a mass confiscation program. But that runs into another constitutional problem totally separate from the Second Amendment. The Fourth Amendment prohibits unreasonable searches and seizures, and our courts have long interpreted searches and seizures without probable cause or some kind of solid basis for suspicion to be unreasonable. The question becomes: how would the government become sufficiently suspicious to justify a search of a person's home for a gun? Someone would have to exhibit some kind of outward behavior to tip off the police. But simply owning a gun and storing it in the home can be done in secret quite easily. All gun owners would have to do is not tell anyone who might tell the police.
So lots of guns would remain unconfiscated, which means a large black market would persist, and mass shootings would still be quite possible (if not more frequent). Remember, in order to actually accomplish its goal of reducing violence, a ban would have to actually remove guns from private circulation, not just make people more inclined to hide them. Short of a nationwide, house-to-house sweep, that seems impossible. One need not look much farther than the Drug War to see how the Fourth Amendment makes prohibition of hideable things quite futile (despite our best efforts to water down the Fourth Amendment).
The Determined Shooter
One frustrating thing about people determined to hurt other people is that they are rarely dissuaded by laws against their behavior. Consider, first, that murder is illegal and has been forever. Yet people still commit murder. That old saying that gun bans only take guns out of the hands of law-abiding people is true - those who intend to break our laws against murder will not be stopped by laws against guns. It may slow them down a bit (and dissuade the less-determined) but those who are truly bent on mass violence will not be stopped by regulation.
That doesn't mean regulation is pointless - reducing violence (assuming regulation does that) is a fine goal - but it can't ever fully eliminate the threat of mass shootings. What tough regulations will do is restrict and punish totally peaceful behavior like gun ownership (merely owning a gun and storing it in the home is not the same as murdering someone with it). So, the question becomes: is it worth it to punish the peaceful in an ultimately futile effort to stop the violent? Perhaps most people will answer yes, because feeling like you're doing something, even at the expense of certain freedoms, can bring peace of mind (at least until the next mass shooting). But when those prohibitions ultimately fail to rid America of mass violence, just as the War on Drugs failed to rid America of drugs (and its associated black market violence) what will be the next step? How much farther can you go than a total ban?
No Easy Answers
I won't pretend to have good answers to the problem of gun violence in America. Our problem is not unique, but it is rare in the post-industrial world, and our history, culture, and legal system combine to make mass shootings not only common but fairly easy to commit. We have a truly incomprehensible number of firearms floating around.
But if we're going to keep brainstorming how to make our country less violent, we'll need to squarely address the logistical concerns raised above. Otherwise we risk enacting reactionary policies that only hurt the peaceful and do little to actually reduce violence. We often assume the law can solve our social problems, but that is rarely the case. The law works best when it operates as a peaceful means of dispute resolution. It does not work so well as a way to force people to not do bad things or hurt others in the first place. A concerted effort to reduce violence must be much larger than mere laws. It will require a major cultural shift.
My fear is that it is too late to close Pandora's Box.