A Rational Perspective on Gun Control From Eugene Volokh

guns and liquorLaw professor and Constitutional Law specialist Eugene Volokh (of Volokh Conspiracy renown) has weighed into the often hysterical gun control debate with useful perspective by suggesting an analogy between alcohol and guns. Some highlights of his post, titled “So What Are We Going To Do About It?:

  • “So what are we suggesting should be done about the shootings? If we’re not suggesting gun controls (as opposed to proposals such as allowing teachers to be armed, increased concealed carry rights outside schools, providing school guards, and the like), the argument goes, we’re not taking gun tragedies seriously.”
  • “Every day, about 30 to 35 people are killed in the U.S. in gun homicides or gun accidents (not counting gun suicides or self-inflicted accidental shootings). And every day, likely about 30 to 35 people are killed in homicides where the killer was under the influence of alcohol, or in alcohol-related drunk driving accidents, again not including those who died in accidents caused by their own alcohol consumption. If you added in gun suicides on one side and those people whose alcohol consumption killed themselves on the other, the deaths would tilt much more on the side of alcohol use, but I generally like to segregate deaths of the user from deaths of others. So what are we going to do about it? When are we going to ban alcohol? When are we going to institute more common-sense alcohol control measures? Well, we tried, and the conventional wisdom is that the cure was worse than the disease — which is why we went back to a system where alcohol is pretty freely available, despite the harm it causes (of which the deaths are only part). We now prohibit various kinds of reckless behavior while using alcohol. But we try to minimize the burden on responsible alcohol users, by generally allowing alcohol purchase and possession, subject to fairly light regulations.”
  • “And if someone says, “you’re obviously not serious about preventing drunk driving and alcohol-related homicide, because you’re not proposing any new alcohol bans or alcohol sales restrictions,” our answer is generally, (1) “just because there’s a problem out there doesn’t mean that we should impose new regulations that are likely ineffective and possibly counterproductive,” and (2) “punish misuse of alcohol, rather than burdening law-abiding users.”
  • “My point is simply that the right answer to “so what are we going to do about it?,” even when the “it” is horrible, is sometimes “not much.”

Do read the whole article. Prof. Volohk is a libertarian, and I am not. I believe that government often has a legitimate role to play by regulating and even prohibiting harmful substances and conduct that on balance corrupt or otherwise undermine a productive, peaceful, healthy and safe society. His analogy is excellent however, because the relevant similarities between guns and alcohol are illuminating. Just as alcohol was a traditional, long-standing, accepted and legal components of the culture before Prohibition, so are guns today. Both guns and alcohol are safe when used legally and responsibly, and dangerous, even deadly, when abused. The differences between guns and alcohol are also striking and worth pondering. Guns are undeniably useful tools, and have significant social utility, far more so than alcohol. On a purely utilitarian basis, the social burdens of alcohol abuse are not outweighed in any way by the pleasures of  moderate alcohol consumption; it is difficult to make the argument that society would not be better off—healthier, more productive, safer— if there were no alcoholic beverages at all. With guns, the opposite is true. Except to irrational anti-firearms fanatics, guns are useful, valuable and beneficial in their place.

Hosannahs to Prof. Volokh for reminding us how a reasonable analyst considers a public policy issue: responsibly, unemotionally, and fairly, without accusations, exaggerations or false assumptions.

I wonder what Piers Morgan would call him….

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Source: Volokh Conspiracy

Graphic: Razzi

 
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16 thoughts on “A Rational Perspective on Gun Control From Eugene Volokh

  1. One big difference between alcohol during prohibition and firearms; although banning alcohol (legally, anyway) happened, there is no prospect of a legal gun ban in America. The most that’s on the table, realistically, is increased regulations of what kind of guns can be sold and who can own them.

    Another major difference: We’ve tried banning alcohol and we know it doesn’t work. In contrast, we really haven’t tried many of the proposed gun regulations; those that do exist are badly written and full of loopholes.

    There’s a certain cherry-picking aspect to the posts I’ve seen from gun advocates since the shooting in Connecticut; rather than addressing proposals and regulations that could conceivably become law, or the best pro-gun-control arguments available, what I’ve seen them discuss is the most extreme anti-gun rhetoric, impossible calls for banning guns, and mockery of any gun control advocate who doesn’t speak fluent firearms.

    Calling out stupid anti-gun advocacy is something that should be done. But it’s not ALL that should be done.

    • I respect your opinion and the reasonable way in which you made the case for gun control. But I have to admit that I am extremely skeptical of “reasonableness” of proposed gun control laws. You only have to watch the debate to see the absolute hatred and loathing that gun control advocates have for law abiding citizens who have guns. It is extremely difficult to have an honest and productive dialogue with someone who means you harm.

      I also doubt the reasonableness of gun control after watching how cigarette bans have evolved. I live in Minnesota and about 6 months a year the weather is extremely cold. “Reasonable” cigarette regulations have gone from banning smoking indoors, to forcing smokers into designated areas, to smoking bans on business property including parking lots. So on cold days I drive by local business and see employees standing huddled on curb to have a smoke.

      There is no good reason to turn smokers into pariahs and force them to leave the property. I am not a smoker but seeing people treated this way really bothers me. There is a self-righteousness in proponents of smoking bans that is based in pettiness and viciousness. I see the same self-righteousness in gun control advocates and I truly fear where it will lead.

      • If your view is that all gun regulations, however reasonable, must be opposed because they might hypothetically lead to unreasonable regulations, then how is conversation possible? You seem to be saying that absolutely no regulations are acceptable to you.

        Furthermore, I’m not convinced that slippery slope arguments have much merit. Passing law A doesn’t mean that more extreme law B requires fewer votes to be passed; in our system, each law must be fought for on its own. And in the case of guns, something as extreme as a gun ban would have to overcome not only the opposition of (according to polls) most Americans, but also a Supreme Court ruling.

        Finally, gun control advocates are as human and varied as gun control opponents are. Generalizations like saying gun control advocates are motivated by “absolute hatred and loathing” are not only unfair and untrue, they are poison to reasonable discourse,

        I’m sure that some gun control advocates have contempt for gun control opponents – and vice versa. But there are many people who aren’t like that on both sides.

        • I am being unfair to gun control advocates. Not all gun control advocates hate gun owners. Pointing out hatred of gun control advocates is what is poisoning the debate. Slippery slope arguments aren’t convincing despite the example of smoking bans. I think that is a fair summary of your position. If not please clarify.

          I think I am being fair, especially since gun control advocates are trying to exploit the Sandy Hook shooting to advance their agenda. They are trying to push their agenda when emotions are high and they can exploit the fear and grief of Americans. This is something I have seen before. I vividly remember the bridge collapse in Minneapolis. It wasn’t even 24 hours before liberals were blaming the bridge collapse on Republicans and low tax policies. I remember the same thing with the Trayvon Martin case. It’s the same thing again and again. “Shut up” my honest interlocutor explained, it’s time to have a national dialogue on guns, taxes or race. You can blame me but the debate has already been thoroughly poisoned.
          Also can you honestly argue that gun control advocates would be satisfied with a ban on so called “assault rifles” and high capacity magazines? There is no chance that gun control efforts would cease if gun control advocates got their way. You know it and so does everyone else. You can’t argue that slippery slope arguments are invalid when one side is trying to achieve their policy goals incrementally.

        • It doesn’t help, though, that the most visible anti-gun zealots are emerging in the media, or that cartoonists fram the issue as “one side values kids over guns” and “the other side values guns over kids,” I think that’s a hateful and provocative characterization.
          Slippery slope fears are justified, I’d say, when the arguments following the Sandy Hook shooting involve almost entirely measures that wouldn’t have stopped that shooting. So when the next shooting occurs, “we have to do something!” translates into another restrictive regulation on gun ownership.

          I have never owned a gun; never will. I think America’s deeply imbedded gun culture is an unfortunate bi-product of its other unique features, and I am philosophically on board with thorough restrictions regarding who can buy weapons. I find myself on the side of the gun advocates because the other side’s approach is so based on bullying, ignorance, hate—especially towards the NRA— and bias that it is impossible not to find it objectionable.

          • I think that if you want a responsible discourse, you should seek out intelligent opposition and highlight it, rather than exclusively highlighting what you see as stupid and unethical opposition.

            It’s interesting to me that you say “almost entirely measures that wouldn’t have stopped that shooting.” So if “almost’ all the measures proposed are ineffective, which proposed measures do you think might have been effective?

            I think it’s plausible that a ban on legal ownership of external magazines holding more than four bullets might have, if not prevented the Sandy Hook shooting, made it less deadly and given victims more time to escape. There’s nothing to indicate that the Sandy Hill shooter either had access to illegal firearms, or the skills necessary to manufacture his own high-capacity magazines (as far as I know);

            But in the end, we can never know for sure. There are simply too many factors involved to precisely measure the causes of mass shootings, and there are too few data points to work with. All we can do is try measures that seem reasonable and prudent, but realistically, we will never know with 100% certainty if they worked or not.

            So when the next shooting occurs, “we have to do something!” translates into another restrictive regulation on gun ownership.

            I think it’s reasonable to pass a regulation, see what the results are (is it too repressive? Does it not appear to have any effect?), and then pass modifying legislation if the original legislation doesn’t work. The alternative is to believe that all legislation must be perfect on the first try; I don’t think that’s a realistic approach.

            • “I think it’s reasonable to pass a regulation, see what the results are (is it too repressive? Does it not appear to have any effect?), and then pass modifying legislation if the original legislation doesn’t work. The alternative is to believe that all legislation must be perfect on the first try; I don’t think that’s a realistic approach.”

              Of course. But we also know that’s not how the world works, and how irratioanally human beings think. We don’t make carefully considered laws in the cool, objective environment when logic and reason are unburdened by hysteria. We make laws, especially restrictive laws, as fevered barn door exercises, after a high profile event creates a massive attack of hindsight bias. It isn’t just guns: it’s 9/11, it’s the Gulf oil spill, its the Tuscon shooting and “violent rhetoric,” it’s the Hindenburg and the SST.

              The NRA fights all restrictions on gun ownership, even obvious ones like banning cop-killing, armor piercing ammunition, because they know this is how it works: the government camel, spurred by the most hostile opposition to guns, will get its nose under the tent, and then all is at risk. The pro-abortion groups operate exactly the same way—there is no justification for permitting elective late-term “live birth” abortions that are essentially baby killings protected by a technicality. The ACLU does the same thing, or would, if it had the integrity it once did. They draw a line and take up an absolute position, because they know only absolutist ballast will keep utilitarian excess in check.

              I agree, in theory, with your sensible argument that the fear of mission creep, camel-nose and slippery slopes shouldn’t impede well-thought out attempts to fix a problem. In reality, however, experience tells us that caution is justified. Do you have any doubt, for example, that another 9/11 would prompt more government incursions on our freedoms? Let’s say a grocery store or a Target was blown to bits by a suicide bomber. There would be bills requiring airport-style security outside every store. If it happened again, there would be restrictions on how many shoppers could be in a store at one time, or bans on bringing children to shop.

              “I think that if you want a responsible discourse, you should seek out intelligent opposition and highlight it, rather than exclusively highlighting what you see as stupid and unethical opposition.”

              I agree with this as well, except in cases where the whole debate is being driven by stupid and unethical advocacy—and I think this one is. There In the Sandy Hook case, an objective response would focus on the mental health situation, which is a due process and First Amendment problem. Then it would be the ACLU being perceived as blocking the proposed measures. We used to just declare people crazy and lock them up. I think the legal and cultural decision that this was unconstitutional was correct, but it also put crazies in a position to get guns. I’m uncomfortable with a system of involuntary commitment based on periodic irrational behavior or a doctor’s diagnosis—it isn’t that far away from a system that would lock up Ed Schultz or Michael Savage. But the ALCU is on the job. Conservatives hate the ACLU, though not nearly as much as the anti-gun advocates hate the NRA. If it was 1988, and we were listening to a full-fledged attack on the ACLU, I’d be defending Mike Dukakis…as in fact, I did.

      • Agreed. The gun control crowd is unusually pernicious and submit that THEY destroyed any chance of meaningful debate a long time ago. I don’t debate people who are incompetent, immature, entirely emotion driven, hypocritical, nasty, and have ulterior motives. They are pathologically un-ethical and will say or do anything to get what they want. Furthermore, I don’t need to prove that, anymore, as most of them do an excellent job of that on their own. Thanks guys!

        I’m sure there is a handful of gun-control folks who are knowledgeable, honest and genuinely mean well. There are a few changes that *I* would like to make: Mandatory training classes, for example. The thing is, the anti crowd does not care about that… why bother training someone in something they are determined to take away? To most of them, “compromise” translates to “give me exactly what I want!”.

        Face it: almost everything we have heard from anti-gun politicians and the media is demonization of law abiding gun owners. They defy facts, reason, and logic. There were MANY aspects to the Newtown massacre that require dissection (and, yes, gun control was one of them), however politicians and the media saw fit to focus like a laser beam on that ONE aspect, and ignore every other angle. They danced in the blood and demonized the law abiding almost non-stop.

        This entire “debate” is nothing but an attempt to put the screws to a hated demographic. For example, the proposed Feinstein “assault weapons ban” is mainly just fluff that won’t do ANYTHING but tie law abiding gun owners in miles of red tape, invade our privacy, and give cover to expanding the reach of BATFE, a thug operation if there ever was one. Again, few of these people care about public safety, they just hate people who own guns or have a different point of view.

        We ALREADY surrender our privacy at point of purchase: Full name, SSN, background check, and we need permission from the federal government to complete the sale. Imagine what would happen if we proposed that those seeking abortions be held to the same standards? The far left would go completely foaming at the mouth nuts, THAT is what would happen. The point is, we are infringed ENOUGH already, and you can just as easily point to too much gun control as you can too little.

          • Given that standards for gun ownership have already been implemented, I think it is WAY past time we set standards for voters. Limit 2nd amendment rights? Fine, lets limit the rights of voters: How is this for a standard… To vote, everyone MUST pass a background check and have one of the following in hand: A 1040, W2 or 1099. Anyone who fails be turned away. Anyone who does not contribute meaningfully does NOT get a say. Sounds like a good compromise to me!

    • Another major difference: We’ve tried banning alcohol and we know it doesn’t work. In contrast, we really haven’t tried many of the proposed gun regulations; those that do exist are badly written and full of loopholes.

      The biggest loophole is the ease of the manufacture of certain types of guns, like Sten guns.

      • I’d suggest that we start by closing the so-called ‘gun show loophole.’ It may not be the biggest loophole (although then again, maybe it is), but it is the lowest hanging fruit.

    • The MAJOR difference is that gun ownership by citizens is a cornerstone of the Bill of Rights and, thus, of the Constitution itself. Alcohol is not.

      Correct.

      Alcohol regulations that do not rely on suspect classifications like race are subject at most to rational basis scrutiny, while rational basis is insufficient for Second Amendment challenges.

      • A citizen has to be an adult, mentally competant and a non-felon. That eliminates the vast bulk of armed criminals. The armed citizen remains the bulwark and prime deterrant against crime. That’s rational enough for me… and for the Constitution.

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