It Is a Car Analogy

Arguments between pro- and anti-gun folks often end up at the "guns don't kill people, people kill people" chestnut. Once the argument gets to this, the car analogy is usually close to follow (warning: radically simplified argument):

Pro: Car accidents kill more people than guns every year. If it's all about saving lives, should we ban cars?

Anti: No, but maybe guns should take a cue from cars. To drive a car you need a license which must be periodically updated, and insurance; when you buy a car, even a used one, you have to register the car with the government in some form. Why not have these safeguards for guns?

I want to explore this so let's ignore the fact that there's no constitutional right to have a car. If there was such a right, though, it would probably be expressed as the right to a horse, or carriage, because even though the founders could not have possibly imagined the internal combustion engine, lithium-ion batteries, or hydrogen fuel cells, they'd have recognized the right to personal autonomy through private transportation. That's neither here nor there, however. The failure of the car analogy ("let's regulate guns like cars"), in my mind, is the fact that all of these safeguards in the car realm are due to the fact that the motorist wishes to operate his vehicle on public roads. The license, the tests, the mandatory insurance, the registration - it can easily be argued that this whole framework is in place because when I operate my motor vehicle - a multi-ton assemblage of metal and plastic capable of great speed - I am doing so alongside thousands of others. I am also doing so at, statistically, a significant risk of at least damaging my vehicle, or someone else's. The government has an interest in making sure I'm capable of doing this safely and that there is recourse (money for the injured party, taking my car away) if I do something stupid.

Imagine an auto racing hobbyist. His cars are fast, able to go from 0-60 in under 7 seconds and capable of an incredible top speed that you couldn't even hope to reach on a public highway with a production car. Most of the time his cars sit in his garage where he works on and tunes them. Every so often he'll get them trailered and take them to a private raceway where he drives them around the track, testing out the things he's done in the garage and making more adjustments. Maybe sometimes he'll compete against fellow racing hobbyists. His cars never touch a public road. Can you articulate a reason that these cars should be subject to the same regulatory framework as the car I drive to work? Indeed, if he limits all the driving he does in his life to taking his race cars around the track, should he even be required by law to obtain a driver's license? Given the time he puts into his cars, it would probably be prudent for him to insure them, but should he be legally obligated to insure them? Should he have to enter into the entire public road regulatory framework on the off chance that someone breaks into his garage, steals his car, and commits vehicular homicide with it, or crashes it into an occupied building?

Let's take the analogy in the opposite direction. Imagine that the National Highway Traffic Safety Administration has promulgated some new automobile regulations. The first is a mandatory speed governor on all automobiles that makes no changes to the engine but causes the car to top out at 75 mph - after all, does anyone really "need" to go faster than that? There is also a new category of automobiles for regulatory purposes: let's call them "muscle cars." Any car with an engine displacement over 3 liters is a muscle car. A car is also a muscle car if it has at least two of the following features (one in New York): a spoiler, a hood or roof scoop, a large-diameter exhaust pipe, wheels over a certain diameter, or tinted windows. Owners of muscle cars are required to take certain steps to secure their muscle cars, such as disengaging the battery when the car is not in use. High-octane fuel is limited to 20 gallons per month and you need to show an ID when you buy it, so the transaction can be recorded. Depending on your locality you may need to obtain special permission from your regional NHTSA office to purchase a muscle car.

How do you feel about this?

The car analogy, while not perfect, fits better when you limit the discussion to CCW. A person who carries concealed is walking around in public with a loaded firearm on their person. He is not the racing hobbyist, he is the person driving his car to work every day - of course that driver should have to prove his ability to safely operate the vehicle in public. I realize that this can be viewed as an argument for 1.) more stringent CCW testing and other requirements and 2.) ending the "constitutional carry" policies in places like Vermont (where, essentially, the 2nd amendment is all the justification one needs for carrying concealed). If we're going to use car analogies, though, CCW at any rate seems a marginally better place for them than guns as a whole. 

Or perhaps we should quit with the analogies altogether - guns are unique things and you're always going to find something about them that doesn't fit into a framework established for something else.

Gun Control Ideas

We all know that something is going to happen soon to the gun laws in this country. I don't know what it is, but here are a few ideas I've had of things that a.) most gun owners would likely be ok with and b.) may actually help.

The first and probably best option is expanding NICS in several ways. I've written about NICS before - the National Instant Criminal background check System, operated by the FBI and staffed by three contracted call centers' worth of phone answerers. There is a fascinating video here showing how it all works. This system is robust and it does the trick - I believe I read that since its inception its been responsible for turning down 700,000 gun purchases - but it could be better. A surprisingly even-handed CNN article indicates that Seung-Hui Cho of the VTech shooting had been previously diagnosed as mentally ill, which is exactly the kind of thing that should be showing up on a NICS check and should be leading to a denial - but a lack of funding has largely prevented states from reporting these sorts of things. Not only should the funding be increased, but some kind of standard should be developed for precisely what should be reported - I think all states should have to report the same things to the system.

This will raise HIPPA-type issues but I think mental health should be a stronger consideration when one purchases a firearm. It remains to be seen what the threshold is - I, for example, saw a clinical psych for a couple of months for help with some nervous habits, and plenty of people seek therapy for what amounts to just having someone to unload personal issues on and talk things out. Should this throw up a flag? Should psychiatric/therapeutic help be divided up into different "classes" that lead to different red flags? What about drug rehab? What about prescription of psychoactive drugs? There's a spectrum, of course - mild sedatives for the occasional panic attack all the way up to heavy antipsychotics. Maybe if someone in treatment wants to buy a gun they should have to talk it out with their care provider first, and if the psych agrees they're no risk then it can be formally reported and change the "flag" in NICS. Of course the issue here is since we're talking about a constitutional right, someone deprived of that right would need notice, a hearing, an appeal procedure, and other procedural due process necessities. I'm beginning to think that this would require an entirely new or at least heavily altered mental health care infrastructure, but we're changing health care radically in this country anyway so this actually might be a fine time to implement this kind of sweeping change.

I also think that I, as a private citizen, should be able to access NICS if I am privately selling my firearms. If NICS is receiving more funding than this should be free or perhaps a small ($5 at most) fee for access. I am almost inclined to think this should be mandatory (if it's mandatory it should be free). If I sold my gun to someone and it ended up being used to kill kids or theatergoers, even if I was able to show that the sale was lawful and thus escape legal liability, I wouldn't be able to sleep at night. At present there's nothing stopping a resident of most states from disposing of his guns to a fellow resident, with no FFL and thus no background check necessary. Personally, if I did sell to someone, I'd ask to see the person's CCW, or do it through an FFL, just to make sure I wasn't selling it to someone who shouldn't have it, but access to NICS would make this easier. An option for private civilians (not just FFLs) to access the NICS and run a background check on private buyers would essentially close this "gun show loophole" that politicians talk about (that doesn't really happen at gun shows anymore) and would help prevent the horrible possibility I described above. 

Something I read indicated that Wal-Mart is apparently pushing for (or at least ok with) a new code of conduct for gun retailers. This code includes not selling the gun when NICS doesn't come back with a report - apparently now, if it's the 3rd day of a NICS check and nothing comes back, it's assumed that the buyer is legit and the retailer has the discretion to sell it. This is something that could stand to be fixed. If it also takes an improved/expedited procedure for people who are victims of identity theft or have common names to identify themselves to NICS, then so be it, but this 3-day thing strikes me as a bad idea. Maybe someone with a NICS horror story can tell me why this is ok, but I don't understand it.

I have a friend whose main problem with the way things currently work is that he, someone who's never owned a gun, hardly ever fired one, and doesn't quite know how they work would could walk into a store today and walk out with something very powerful. I don't quite know the solution to this, but he brings up a strong point. Not everyone grew up hunting or shooting, and not everyone is motivated enough to watch youtube videos, internalize the four rules, and otherwise do their individual part to become an educated firearm owner. Classes make sense, but you shouldn't condition the exercise of a constitutional right on what amounts to paying money (see poll taxes and the recent debate on voter ID laws - though it is true that many states condition even the ability to buy a gun on licenses, fees, and sometimes even classes). I think what would work better is incentivizing classes with something more than "it'll make you a better shooter." What if the major firearm manufacturers offered a discount on their products for taking an NRA (or state, or any other provider) safety course? To expand on this idea, if it was required to be done before the gun is purchased (rather than a mail-in rebate type of thing), it would provide one more point of contact between the prospective buyer and someone who could evaluate that person. Say someone takes an NRA class and acts strangely, constantly interrupting with weird questions about how to take down a moving target or what kind of bullets best penetrate body armor. There could be a way for the instructor to report this - of course, asking a few odd questions shouldn't disqualify someone outright, but it might be the kind of thing that would serve as a "tipping point" to a denial finding on the NICS when taken together with other red flags.

These ideas all have in common the emphasis on refining and toughening the background check system - an existing infrastructure that's proven and works - and making it work better. They also have in common that they in no way restrict the types of firearm one may own, and have nothing to do with magazine size. They also, admittedly, assume that someone of the type to shoot up a school or theater will buy their firearms legitimately. Cho would have been stopped by a more robust NICS, but Lanza stole his guns from his mother, who may well have passed an improved NICS with flying colors. There's no way to get guns out of the hands of criminals who intend to use them, even by a radical civilian disarmament - what criminal would give up his guns? To truly eradicate gun crime we must eradicate the criminal (not literally), a topic far beyond the scope of this blog.