Ethan Kessler: So, what does good gun policy look like?

Wednesday, April 10, 2019 - 2:28pm

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The Michigan Daily

Gun policy is a delicate balancing act. On the one hand, optimal gun policy is about gun control: regulating guns and gun ownership with the aim of making society safer. On the other hand, reducing the volume and lethality of civilian arms should not reduce, to the extent possible, the capacity of those same arms to do good and make individuals safer.

An adequate balancing of these interests is what American society, currently plagued by nearly 100 firearm fatalities per day, screams silently for. As I opined in my last column, this balancing is not impossible. Permit-to-purchase laws, which require prospective gun buyers to acquire a permit from state or local law enforcement in addition to passing universal background checks, are tried and tested. These laws make society safer because they ensure that those buying guns are qualified to enjoy their benefits, rather than targeting certain guns or gun attachments. However, they, and other laws like them, will need to be introduced at the state level for their benefits to be enjoyed.

For any staunch Second Amendment supporters still reading at this point, the main grievance with my position is almost certainly a constitutional one. Ammunition for this defense of the Second Amendment is often found in the curt opinions of Supreme Court Associate Justice Clarence Thomas, who has launched his own crusade against the supposed relegation of the Second Amendment “to a second-class right” by the Court. To adequately protect what Thomas terms the Court’s “constitutional orphan,” many Second Amendment supporters claim that we should disregard all gun control regulations but those most substantially beneficial to public safety and least burdensome to individual rights.

Even though applying this strict standard to gun laws has scant legal precedent, for the sake of argument, we can assume that legitimate gun control measures have to both further a “compelling governmental interest” and be narrowly tailored to do so. Reasonable people would agree that the government has a compelling interest in reducing firearms deaths. And requiring a permit from law enforcement in order to obtain a firearm definitely qualifies as a narrowly tailored measure, in that it entails neither an assault weapons ban nor limits on magazine capacity – measures that arguably reduce the capacity of law-abiding gun owners to defend themselves. Anyone worried that local or state gun registries would inevitably lead to the feared “federal registry” would do well to review the concept of federalism.

As for the efficacy of permit-to-purchase laws, I am confident that even die-hards such as Justice Thomas would be satisfied. A study published four years ago detailed how Connecticut’s 1995 permit-to-purchase laws were correlated with a significant decline in firearm homicides.

Another found strong evidence that Missouri’s repeal of its own permit-to-purchase law in 2007 led to increased gun violence. Yet another study supported these findings. In 2015, the Court denied certiorari, an order in which a higher court reviews the decision of a lower court, to an appeal of a local-level assault weapons ban, and Thomas dissented by noting that if a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing."  Permit-to-purchase laws not only stop short of broadly banning firearms, but demonstrably make the public safer as well.

So why do federal efforts to enact much more restrained measures flounder, such as the recent Democratic-led bills expanding background checks to nearly all firearms transfers? There’s a lot of lying, of course. Graced by frequent support from the president himself, the National Rifle Association has used its platform to persuade Americans that universal background checks will “make it harder for good people to defend themselves and their families.” Keep in mind, background checks are only meant to flag those who shouldn’t own guns. How, then, could those same checks possibly inconvenience “good” people?

More importantly, perhaps, are the institutional dynamics halting any chances of success for federal gun control measures. High numbers of Americans support universal background checks, but pro-gun voters prioritize halting such measures more than pro-gun control voters care about passing them. Gun control simply isn’t that high of a policy priority for many Americans. Additionally, contemporary partisan divides make the Senate a disproportionately Republican place. When only rural states receive a relative advantage in the Senate, and rural states are now almost entirely dominated by Republicans, the result is a Senate more conservative than the country it represents. It’s no surprise that the universal background check bill will likely pass in the House but not in the Senate.

For these reasons, advocates of permit-to-purchase laws should look to the states. Last year’s midterm election saw Democrats make more gains in state legislatures and governorships than did Republicans, including in several states where gun control measures have already been passed and met with severe backlash from Second Amendment supporters. States also passed an increasing number of gun control laws after the Parkland shooting last year, proving correct former Associate Justice Louis Brandeis’s assessment of states as laboratories of democracy. Passing gun laws state-by-state certainly has limitations, such as encouraging cross-state gun transfers. But the relatively homogenous considerations of state governments, contrasted with the myriad political pressures that burden the federal government, still make them excellent for addressing those problems like gun policies that have trouble gathering nationwide traction.

I think it’s fitting to end this column with the mantra of NRA executive vice president Wayne LaPierre, who is for many the face of pro-gun advocacy: "The only thing that stops a bad guy with a gun is a good guy with a gun.” Yes, Mr. LaPierre, the only thing that stops a bad guy with a gun is a good guy with a gun (that “good guy” usually being a trained law enforcement officer, or several, with the requisite force to overcome an attacker). But wouldn’t we much rather the bad guy didn’t have a gun in the first place? The best way to do that, as of now, is with permit-to-purchase laws. We have every reason to lobby for their passage. But it’s a task best left to the states.

Ethan Kessler can be reached at ethankes@umich.edu.