New Gun Control Efforts: Prudence or Performance?

President Biden promises to fight crime, but his gun control proposals prove only to be enlightening examples of how public policy has become performative and imprudent. Policy becomes imprudent when it offers very little marginal gain but extracts a very high cost in liberty and undermines what Hayek praised as legal predictability. Policy debates become “performative” when politicians, pundits, and celebrities not only play to type but are driven more by fantasy than reality.

Perhaps we can all be forgiven a little fantasy given the events of the last year. If our lives were films, “Outbreak” gave way to “The Omega Man,” and then “Do the Right Thing.” Betrayal by elites elicited conspiracies on par with “The Manchurian Candidate.” Violent crime is rising for the first time in over two decades. Think “Death Wish” or “Dirty Harry.” It is therefore not surprising that Americans have rushed to buy guns and ammo over the last year, redoubling their efforts when candidate Biden’s ambitious gun control plans made him America’s greatest gun salesman, as was his boss before him.

Guns have never been more popular. Insofar as background checks through the FBI’s National Instant Check System (NICS) are indicative of nationwide sales, 2021 will beat the record-breaking year of 2020. While President Biden’s election encouraged gun purchases, gun ownership is bipartisan with the largest increases in sales among first-time buyers, women, people of color, LGBTQ persons, and Asian Americans hoping for greater protection than public service announcements can provide.  

While NICS is valuable for discerning statistical trends, its intended purpose is to prevent sales to drug users, felons, fugitives, the mentally ill, criminal aliens, and perpetrators of domestic abuse: presumably all people who may be a threat to others. As regulations go, the NICS check is fast and federal law prohibits it from becoming de facto registration. Nevertheless, NICS still exemplifies the inherent limitations of federalizing and bureaucratizing policy.

How does NICS obtain the data necessary to identify disqualified persons?  It relies on state and local agencies that routinely fail to upload timely and relevant data. The federal government then works at cross purposes by making particular mental health data unreportable due to HIPPA regulations, while the Department of Justice enables federal agencies not to report relevant drug use data. One of America’s most infamous mass shootings was enabled by failure by the US Air Force to upload criminal data. The system also cannot keep up with demand, leaving some checks incomplete. But rather than improve the federal system, or decentralize it to improve substance use or mental health data for example, the president proposes expanding NICS.

This NICS expansion and other proposals directly affecting firearms owners have rising social and legal costs that far exceed benefits. Presuming that a “gun show loophole” even exists, the trope used to defend the expansion, it could be better closed by restricting public exhibitions to Federal Firearms Licensees (FFL) subject to oversight by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The “gun show loophole” becomes a bait-and-switch: legislation passed by the House subjects all private party transfers to ATF oversight, whether sales or gifts, among friends, families, or strangers.

Imagine the outcry if every automobile transfer was subject to direct federal regulation, and errant buyers and sellers were sent to federal prison. Now consider that guns outnumber automobiles by two-to-one. Risk management in automobile ownership is mostly decentralized into state-by-state requirements relying on entrepreneurial insurance markets. Firearm deaths outnumber automobile deaths, but risk management of firearms is centralized with bureaucracies in Washington.

Some states have reacted to this kind of federal overreach by asserting implicit nullification or other powers. The result may soon resemble our current confusion of marijuana laws. Such pushback demonstrates how laws lose moral authority when they neglect the virtue of prudence and choose symbolism over substance. Three of Biden’s favorite proposals are particularly imprudent and performative, favoring fantasy to reality and offering a much greater cost to liberty and law than benefits to public safety.  

Biden repeatedly calls for reviving federal bans on both magazine capacity and “assault weapons.” Defining an “assault weapon” has proven challenging even for the president’s proposed ATF director, but supporters of the ban would probably identify them (and their high capacity magazines) from movies and television. As photogenic as they are, police departments like to display them when confiscated. However, the now-expired ban did not prevent the sale of the guns but only the inclusion of features like bayonet lugs or flash hiders. Admittedly, there were no criminal bayonet charges during the ten-year “assault weapon” ban.

The firearms industry calls these weapons “Modern Sporting Rifles” (MSRs). Hunters may have conflicting opinions about them, but gun buyers love MSR’s: there are about 20 million in circulation. Though cameras may shoot a lot of these guns, the guns very rarely shoot people; murderers almost never use rifles. Even though MSR’s have been used in highly publicized mass shootings, the Rand Corporation discerns no effect on violent crime by banning either these rifles or high capacity magazines. One leading gun control advocate recently explained the opportunity cost of this proposal when he said, “It is both wrong and counterproductive for advocacy organizations and elected leaders to use the moments when the public is focused on gun control to push an assault weapons ban.” In short, insisting on a 1990s-era policy ignores what 27 years have taught us about the disconnect between assault weapons and violent crime.

Effective crime reduction strategies have nothing to do with guns, just as factors that increased violent crime from 1960 through 1992 had nothing to do with guns.

Two additional Biden demands are regulatory rule changes that don’t even require approval by legislators. Both arguably lay a foundation for national registration. Proposed Rule 2021R-08 addresses the MSR’s little brother–the “Modern Sporting Pistol” (MSP). Though called pistols, any novice would immediately notice a difference in heft and mechanics between traditional pistols and the MSP, usually a long gun with a shorter barrel. While a sling might make MSPs easier to use, shooters otherwise lack a “third point of contact” for stabilization (typically the shoulder) that rifle stocks provide. This third point of contact is what all the fuss is about.

Without getting into the minutiae of mechanics and a legal timeline, skyrocketing popularity of the MSP is actually owed to initial ATF rulings about the “pistol brace,” a Velcro wrap attachment invented to assist disabled veterans stabilizing an MSP with their forearm. Braces evolved into de facto shouldering stocks when the ATF essentially tolerated their use as such. Thus began an unintended experiment testing the National Firearms Act’s (NFA) topcoat-and-running boards-era proposition that criminals prefer short-barreled long guns.

So fearful was Washington of these guns in 1934 that the NFA treated them no differently than machine guns. Almost a century later, owners of NFA-classified “Short Barrel Rifles” must still submit approval forms, fingerprints and photographs, and be subjected to additional background checks, taxation, registration, and additional storage and transport requirements. But because those requirements were not applied to braces, MSP’s soared in popularity. There are now between ten and forty million braced weapon owners in the United States who are not currently subjected to NFA registration and taxation.  

What has been the result of this unintended experiment? Did MSPs, shortened long guns, prove to be weapons of mass destruction on our streets once they were allowed to proliferate without registration and taxation? Did short barrel rifles even prove dangerous as predicted a century ago? In its June 2021 proposed ruling to treat braces as stocks, and thereby turn millions of owners (and sellers) into potential felons if they do not successfully navigate the NFA process, the Justice Department cited only two mass shootings and then offered the kind of managerial mentality Hayek decried: what was made criminal almost a century ago (despite 90 years of data) must remain illegal.

The Biden administration also wants additional regulations on “ghost guns” constructed from kits. Kit guns first became available in the 1990s and increased in popularity over the last decade. In 2006, the ATF ruled that kit guns were not subject to regulations, which is consistent with noncommercial do-it-yourself alcohol, dairy, auto repair, or home improvement, for example. While instituting a background check for buyers is hardly onerous, Proposed Rule 2021R-05 threatens to subject common parts–those purchased for already serialized and purchased guns–to superfluous and expensive regulation. More importantly, misunderstanding a new federal rubric of classification involving time, ease, expertise, equipment, availability, expense, scope, and feasibility when selling or buying parts would constitute a felony. The headlines tell us that “ghost guns” are the preferred weapons of criminals. However, when California sued the federal government for its refusal to classify kit guns as firearms, the Justice Department fired back that California failed to demonstrate that an increase in ghost gun use necessitated more policing. The same Justice Department is now claiming them to be prolific in criminal enterprises.  

All these proposals ignore the inverse relationship between year-over-year declines in violent crime and steadily increasing gun ownership–especially MSRs and MSPs over the last ten years. What’s more, when one compares the number of documented uses in violent crime relative to the number of firearms in circulation, especially the more “cinematic” guns, an imprudent zero-risk, zero trade-off strategy–much like Covid policy–becomes evident. Furthermore, incoherent and inconsistent federal regulation creates potential for mass entrapment. Finally, not only are there far deadlier threats to public safety, the selection of these particular weapons owes more to fantasy than to reality. Prudent policy is better than performative policy, however.

Performative and imprudent policies such as Biden’s are also simplistic. With the exception of high capacity magazine bans, none of the president’s plans involve pistols. Why not? Pistols are more easily concealed than MSPs and are used 32 times more often than rifles in murders and homicides. Has the president ignored pistols because pistols are far more popular than rifles? Because likely voters support concealed carry of pistols? Similarly, candidate Biden implied that shotguns are off-limits when assuring a voter that no one wants to take his guns. But why? Shotguns require less training than pistols or rifles to inflict mass casualties, and the president acknowledged as much when giving what amounted to poor legal advice concerning home defense. And yet, no one is interested in regulating shotguns except those with shorter barrels. 

Performative and imprudent policies such as Biden’s are also simplistic. Effective crime reduction strategies have nothing to do with guns, just as factors that increased violent crime from 1960 through 1992 had nothing to do with guns. An alternative to federal policy is, of course, local or state policy that emphasizes who buys over which kinds of guns are purchased. Gun control advocates may have a point about local permitting, though empirical evidence is sketchy and state restrictions are being challenged under incorporation of the Second Amendment.

Even pivoting to unintentional firearm-related fatalities, which still outnumber mass shooting deaths, as an excuse to regulate guns, is unpersuasive. These deaths, just like violent crime, have declined and even reached their lowest level ever in 2020 thanks to a much more prudent private-public partnership including locks with every firearm. Preventable gun-related deaths have declined 41% since 2009.

Insofar as legend becomes fact, politicians are once again attempting performative illusion to create legend. The last two decades of declining violent crime teach us that any hoped-for decrease now will have little if anything to do with federal gun policy. The most reliable outcome is that Americans see both liberty and the rule of law undermined unnecessarily.

To call to mind another film, one imagines Joe Biden riding the train from Shinbone. We hear the conductor say, “Nothing’s too good for the man who stopped violent crime.” In The Man Who Shot Liberty Valance, Tom Doniphon chose to bear the cost to enable that legend. If imprudent and unpredictable laws prevail, millions of Americans facing unpredictable laws and regulations will not get that choice.