INTRODUCTION 922 I. SCOPE 928 A Registration Access and Informational Prerequisites 928 B. Choice Architecture 932 II. WHO WOULD WAIVE 943 A. Theory 943 B. Empiricism 950 C. MTurk Survey 951 D. The Alabama Survey 958 E. Estimated Lives Saved 959 III. LIBERTARIAN CONTRACTING AND ITS LIMITS 960 IV. IMPLEMENTATION 967 CONCLUSION 970 APPENDIX 972 MODEL FIREARM SELF-RESTRICTION ACT 972 INTRODUCTION
Two-and-a-half years ago, Cheryl Hanna had many reasons to be happy. (1) At forty-eight, she was a tenured professor at Vermont Law School beloved by students and colleagues alike. She was married with two adorable children, Samira and Elias, ages eleven and eight. She had achieved much professionally with publication in elite journals and was an acknowledged expert on violence against women. But Hanna was privately battling severe depression. She had twice voluntarily admitted herself to a hospital for psychiatric treatment. Shortly after her second hospitalization, she legally bought a handgun and used it the next day to kill herself. (2)
People at risk for suicide, like Hanna, should have the option to make it more difficult for themselves to buy a gun during a suicidal crisis. A simple change to state law would give individuals the ability to add their own names into the existing federal background check system and thereby prevent themselves from buying a gun from a licensed dealer. This legal possibility is not a pipe dream. During the time that this Article has been in draft, the ideas advanced here have gained legislative traction across the country. Several states have drafted legislation. And six states--Alabama, California, Massachusetts, Tennessee, Washington, and Wisconsin--have introduced legislation that would create registries that would give residents the ability to exercise their right not to bear arms. (3) Indeed, this liberty-enhancing proposal has attracted support from politically diverse constituencies. On January 26, 2018, the Washington State Senate voted unanimously--Republicans and Democrats alike--in favor of a voluntary firearm waiver bill (on which we consulted) that went on to become law effective January 1, 2019. (4)
The individual right to keep and bear arms includes the right of individuals to make choices about how best to defend themselves--for some people that means choosing not to keep and bear arms. While we will often describe our proposal as giving individuals the option to waive their Second Amendment rights, it can more formally be seen as giving the individuals an additional way to exercise their constitutional right to not bear arms. (5) Government should give individuals the right to commit not to purchase and possess guns and give them the additional right to credibly communicate that commitment to others. Just as it is constitutional for individuals to contract to bear arms, (6) it is constitutional for government to allow individual commitment not to bear arms.
While we will discuss giving individuals a variety of waiver choices, we will focus attention on an Internet platform that gives individuals: (1) an all-or-nothing option of registering to cede their right to purchase or possess firearms, (2) the option to automatically rescind any prior registration after a 21-day waiting period, and (3) the option of providing email addresses that will be automatically notified of an individual's waiver or its subsequent rescission. Because our proposed system would give waiving individuals the option of automatically regaining full rights to purchase and possess firearms after 21 days, our proposal is equivalent to giving individuals the right of opting into a waiting period, a fully constitutional commitment technique already employed in a number of states. (7) In a sense, our proposal provides individuals with a virtual gun safe: by registering for self-exclusion, they can commit to safely being dispossessed of firearms with the waiting period representing the time needed to reopen the legal lockbox. Indeed, the state might give registering individuals a more literal lockbox, by offering to store any firearms with local police while a registration is in effect. The state routinely creates "sticky" rights--such as marriage--where reversing an initial exercise requires time or effort. (8)
This Article details how modest changes to state law could create these new rights by allowing individuals to add their names to the existing National Instant Criminal Background Check System (NICS). (9) The NICS "No Guns" list already prevents certain individuals (like convicted felons) who are prohibited from possessing guns from purchasing firearms. (10) The NICS statute gives states the option of adding new categories of its residents to the federal "No Guns" list (and states have already exercised this option by passing statutes which have added more than 1,000,000 new individuals to the federal list). By passing a statute that prohibits voluntary registrants from purchasing and possessing guns (and forwarding the registrants' names to NICS), states can create a credible system whereby registrants will be incapacitated from purchasing a firearm from gun dealers not only in their state of registry but throughout the country. Far from creating a huge new federal bureaucracy, our proposal imposes no additional burdens on gun dealers and merely requires a credible mechanism for registration--something that has been accomplished by hundreds of online finance and commerce websites as well as several online government portals administered by the IRS and the Social Security Administration. (11)
Facilitating these options to waive and to communicate such waiver is likely to produce three social benefits: (1) self-exclusion, (2) negotiated exclusion, and (3) political expression. First, the waiver right will reduce gun violence as those who rationally want to limit their future selves from misusing guns will be able to tie their hands against future misuse. Just as state gambling self-exclusion registries allow individuals to commit not to gamble at casinos in the future, (12) a "No Guns" registry allows people to self-exclude from the dangers of gun ownership. The "No Guns" registry would be particularly attractive to people with mental health problems that put them at heightened risk of suicide. The story of Ulysses tying his hands to the mast is a frequent metaphor for precommitment proposals, (13) but the analogy is especially close because Ulysses' present self was worried that his future self would become delusional and do harm to himself or others. There are hundreds of thousands of people in the United States suffering from mental health illnesses who realize during moments of clarity that their future selves are at risk of misusing firearms. In this Article, we detail the results of a new survey in which more than forty percent of people who self-reported that they had been previously "diagnosed with a mental disorder" indicate that they would be willing to waive their rights to bear arms. (14) Over 20,000 Americans kill themselves each year with firearms. (15) One study estimated that a person's risk of suicide in California in the first week after a gun purchase is fifty-seven times the rate in the general population. (16) This proposal would not only incapacitate registrants from purchasing firearms, but also expose registrants to the risk of prosecution, further deterring firearm purchase or possession. (17) Based on our surveys and ancillary empiricism, we conservatively estimate that a self-exclusion registry would annually save hundreds of lives.
Second, the right to credibly communicate one's waiver can facilitate negotiated-exclusion and thereby enhance libertarian autonomy. Our proposal would also give individuals registering for the "No Guns" list the option of including email addresses of individuals or entities that the participants want to receive notice of waiver and of any subsequent rescission. Providing the email address of a healthcare professional can not only provide immediate information about a patient's risk profile, but also alert the professional if the patient subsequently chooses to rescind his waiver. The health care professional would have twenty-one days to inquire whether the rescinding patient was likely to be a danger to himself or others. (18)
This option to credibly communicate whether one has waived can also facilitate informed association. Currently, the association marketplace is skewed because it is far easier to demonstrate that one is exercising the right to bear arms than that one is exercising the right not to bear arms. A condo association that wants to require gun possession--because the association believes gun ownership deters crime in common areas, for example--can require that residents physically reveal to management the presence of a firearm in their unit. (19) But without a registry it would be more difficult for an association to verify that residents do not possess firearms. Our proposed registry evens the evidentiary terrain.
The Article describes why cotenants, landlords and homeowners' associations, as well as life and property insurers, have legitimate self-defense interests in conditioning their association on other people's waiver of the right to purchase and possess firearms. Individuals who by themselves would not be willing to self-exclude from gun ownership may voluntarily opt to waive their firearm rights in order to secure particular associational opportunities. Just as citizens routinely waive their First Amendment free speech rights in order to associate with the government, (20) a government sponsored "No Guns" registry with optional email notices to third parties can promote social welfare by forcing Second Amendment rights to compete with the First Amendment. This Article's notion of gun control is "libertarian" not only in that it gives the individual enhanced rights to durably commit to not bear arms...