Treating guns like consumer products.

• Author: Kopel, David B.
• Position: Response to article by Jon S. Vernick and Stephen P. Teret in this issue, p. 1193 - Statistical Data Included

"Guns are the most lethal, least regulated product in the U.S.," says the gun control lobby Handgun Control, Inc.(1) Advocates of more restrictive firearms laws, including gun bans, have taken up the mantra of treating "guns like other consumer products."(2) The fathers of this idea, and its most articulate champions, are Stephen Teret and Jon Vernick, and I am honored to have the opportunity to contribute to the dialogue about this new concept.

Teret and Vernick are among the smartest and most fair-minded people working on the gun issue; they consistently frame their arguments to appeal to reason rather than to negative emotions. Were all of the Great American Gun Debate conducted in Teret and Vernick's style, our political life would be more civil.

I will essay a closer look at the implications of treating guns like consumer products. First, I compare the regulatory treatment of guns to that of two other consumer products associated with a large number of deaths: automobiles and alcohol. I suggest that, statistically speaking, automobiles and alcohol are at least as dangerous as guns. Yet were we to treat guns like automobiles or alcohol, we would have to remove most gun restrictions because guns are already regulated much more strictly than automobiles or alcohol.

Next, I examine several particular proposals for "treating guns like consumer products" which have been advanced by Teret and Vernick and by other proponents of the slogan, such as Handgun Control, Inc., and the Violence Policy Center. These proposals include censoring gun advertising, imposing certain design modifications on firearms (including "smart gun" mandates), and banning handguns--actions to be accomplished by administrative decree rather than by legislative choice. I suggest that the censorship proposals aim simply to silence one side of a controversial policy debate; that the proposed design modifications would increase firearms accidents and impair life-saving defensive firearms uses; and that banning handguns is too momentous a decision to be undertaken by unelected administrators.

Finally, I argue that firearms should be treated like other consumer products, such as newspapers and books, which are all protected by the Bill of Rights and by state constitutions.

1. TREATING GUNS LIKE CARS

   The United States has both more guns and more cars per capita than any other nation.(3) Both products are seen by some as quintessential tools of American individualism. Advocates of a more European-style social order, in which people rely more on the government for mobility and security, decry the widespread use of these products. Yet, while a minority of Americans might prefer that these products had never been invented, the majority appear content to live in a world with cars and guns--and also content to have reasonable regulations placed on these potentially dangerous products. This Part explains the true consequence of regulating guns in the same fashion as cars, and then examines the relative dangers of these two consumer products.

   1. Car Laws vs. Gun Laws

      Should we start treating guns like cars? Handgun Control, Inc. has been saying so for years, and Vice President Gore agreed in the summer of 1999. As he stated,

      As President ... I will fight for a national requirement that every state issue photo licenses [for handgun buyers].... We require a license to drive a car in this nation, to keep unsafe drivers off the road.... Now we should require a license to own a handgun--so people who shouldn't have them can't get them.(4.) Gore further suggested that prospective licensees should have to "pass a background test, and pass a gun safety test," a plan that would cause the gun lobby to "have a fit."(5)

      If one extended Gore's analogy between gun licenses and drivers' licenses to the proposal that guns should be generally treated like cars, it could lead to the most massive decontrol of firearms in American history. Vice President Gore's proposal seeks a high degree of administrative regulation of guns--but a closer examination of current regulations reveals that guns are already far more regulated than cars. Laws that would really treat guns more like cars would be much less restrictive than most current gun laws, and I would welcome such a result. Let us truly treat guns like cars and sweep away most existing regulations.

      The first law to go would be the 1986 federal ban on manufacture of new machine guns for sale to ordinary citizens.(6) Machine guns were banned because they fire much more rapidly than ordinary guns, and this high-speed potential was considered dangerous and unnecessary--since no ordinary person had a need for such a high-speed gun. We do not ban cars like Porsches just because they are high-powered and can be driven much faster than the speed limit. Even though it is much easier to exceed the speed limit in a Porsche than in a Hyundai, we let people choose their cars regardless of their potential for speeding abuse. We even allow people to buy 13,000 horsepower Pratt & Whitney Jet Cars, which seem almost deliberately designed for speeding.

      Likewise, we do not ban automobiles because they are underpowered, or are made with poor ,quality metal. Those who want a Yugo can buy one. Under this analogy, the state-level bans on inexpensive guns(7) (so-called "Junk guns" or "Saturday Night Specials") and federal rules against the import of cheap guns would have to go. These laws are based on the theory that consumers should not be allowed to purchase guns made from metal that melts at too low of a temperature, because such guns are not well-made enough.

      Further, if we agree with Handgun Control, Inc. President Robert Walker that we need to "treat[] guns like cars,"(8) we must repeal the thousands of laws regulating the purchase of firearms and their possession on private property. The simple purchase of an automobile is subject to essentially no restrictions. When a buyer shows up at the dealer's showroom, the dealer does not conduct a background check to find out if the buyer has a conviction for vehicular homicide or drunk driving. The only "waiting period" for car purchases runs from the time of the buyer's decision to purchase to the time the salesman hands him the keys. This waiting period may last a half hour or more if the auto dealership has a great deal of paperwork, or it may be even shorter.

      In contrast, several states impose a waiting period on firearms purchases of several days to several weeks.(9) Furthermore, firearms are the only product in the United States for which FBI permission, via the national background check, is required for every single retail consumer purchase.(10) Every time a person attempts to buy a gun, the gun store's owner must call the FBI for permission to complete the sale. If the FBI gives permission for a gun sale on Monday and the buyer returns on Tuesday to purchase a second gun, the store must call the FBI again.

      Virtually no restrictions are imposed on car owners who operate their automobiles on private property. A ranch owner whose driver's license is revoked can still drive his jeep all over the ranch without penalty. Indeed, he can drink a case of beer before driving around his ranch and still enjoy the ride knowing that he is not violating a single law,(11) provided that he does not injure an innocent person.

      If we followed the analogy about treating guns like cars, we could abolish all laws concerning gun storage in the home, as well those banning gun possession by certain persons on private property. Current federal law outlaws gun possession, even on private property, by those previously convicted of a violent or nonviolent felony(12) or a misdemeanor involving domestic violence,(13) (such as two brothers having a fistfight on their front lawn thirty years ago), those dishonorably discharged from the military,(14)drag users (defined by regulation as any use in the last year),(15) illegal Miens,(16) and various other "prohibited persons."(17) Several states go even further by conditioning gun possession (or all handgun possession) on special state-issued licenses,(18) If we really treated guns like cars, all of these laws would be swept away.

      Most cities do prohibit property owners from storing their cars in an unsightly manner (for example, on cinder blocks in the front yard), or from parking too many cars on the public street in front of their house. Thus, gun owners will have to accept laws against leaving nonfunctional guns strewn about their front yard, and will not be allowed to leave excessive numbers of guns on the street (gun control groups frequently complain that there are "too many guns on the street").

      If a person keeps a car on his own property, he can tow the car to a friend's property and drive it on that property. As long as he is merely towing the car, he needs no license and no restrictions apply. Thus, gun owners should be allowed to transport their unloaded guns to private property such as a shooting gallery for use on that property. Jurisdictions such as New York City would no longer have the power to require a separate "target permit" just to take a gun to the local pistol range.(19)

      Supposing that the auto owner wants to use his car on public property, as most people do, a driver is required to be duly licensed. To obtain a license to drive a car anywhere in public, most states require that the licensee be at least fifteen or sixteen years of age, take a written safety test that requires an IQ of no more than eighty to pass, drive the car for an examiner, and demonstrate to the examiner that the driver knows how to operate the car and obey basic safety rules and traffic signs. The license will be revoked or suspended if the driver violates various safety rules or causes an accident while driving in public. Except in egregious cases, first or second offenses do not usually result in license revocations. Once the license is issued, it is good in every...