Yes, the feds had a plan for Malheur

One of the occupiers of the Malheur National Wildlife Refuge is dead after a shoot-out with federal and state authorities. Eight of the crew, including ringleader Ammon Bundy and his brother, were pulled over while driving to a meeting in a neighboring county. Five of the survivors, including the Bundys, have been arrested, and a sixth man was arrested in a nearby town. The officers had arrest warrants charging several of the occupants of the car with “conspiracy to impede or injure an officer,” a less serious charge than “seditious conspiracy” but still good for up to six years.

It’s possible that they’re in much worse legal trouble than that: the death of their co-conspirator might well be covered by the felony murder rule.  The fact that the person killed was one of them has no legal significance; in general, if a group of people agrees to commit a felony which could reasonably be expected to put lives at risk, and someone dies, all are liable to the charge of first-degree murder.

The feds have announced that the remaining occupiers are free to leave the refuge: as long as they do so at once.

In the aftermath of the takeover, there was considerable grumbling that the Administration had not moved with sufficient force to retake federal property, especially after having been forced to back down in the Bundy Ranch confrontation.  But it looks as if slow-walking the process worked well, giving the occupiers time to become a national laughingstock.

A recent story focused on the activities of the Hammonds, whose five-prison sentences this crew was protesting, made it appear that the Hammonds got no more than they deserved after a long career of not only ignoring the law but threatening violence against those who were trying to carry it out. In polite company, one does not threaten to wrap a man’s son in barbed wire and throw him down a well. So far as I know, none of the pundits and politicians who expressed sympathy for the Hammonds – all, for some reason, on the Red Team – have expressed any sympathy for the federal officials they terrorized for years.

In this case, both the local sheriff and the governor of the state were on the side of sanity. Unfortunately, that was not the case in the Bundy Ranch confrontation. Of course I hope that the feds have a plan in their back pocket to collect the judgment against Cliven Bundy, and even perhaps a plan to indict, arrest, and try some of the people who pointed loaded weapons at federal law enforcement agents two years ago. But I’m not sorry that a bloodbath was avoided, even at some damage to the majesty of the law. And while I can’t imagine that Barack Obama or Attorney General Loretta Lynch will ever claim – or get – the credit for how deftly the current confrontation was managed, they amply deserve it.







Firearms management

After some initial trampling of the grass, I am going to suggest a new framework for gun control. Nothing wrong with the president’s idea that a lot of gun sales are slipping through cracks nearly everyone wants closed, but I think background checks through bureaucratic databases is the wrong approach.

First, let’s do some naming of parts.  Firearms can be divided into four classes with very little overlap, and they’re not all that hard to distinguish:

  1. Sporting arms, including rifles and shotguns suitable for going after game.  These are shoulder weapons, with long barrels, and hold about seven or fewer cartridges (you don’t get to shoot at a deer, or a duck, a hundred or even ten times).  They can be semi-automatic (chamber the next round themselves when the trigger is pulled) or repeating (requiring operation of a bolt or lever or pump between shots).shotgunrifle
  2. Guns for target shooting.  These are shotguns for trap and skeet, interchangeable with shotguns for game, and rifles or long-barrel handguns with small magazines or even single-shot, chambered for low-power rounds (usually .22LR).  “Varmint rifles”, for shooting woodchucks from very far away, and some high-power rifles for national match shooting at 1000 yards, could be classed rifletarget pistol
  3. Guns for killing people, usually many at a time, at close range.  These are (i) military shoulder arms with large magazines (as many as 100 rounds), relatively short barrels and semi-automatic actions (one shot per trigger pull with no other action needed) or actual machine guns, (ii) handguns, including those with short barrels, often streamlined for quick access, almost always semi-automatic,  (iii) sawed-off shotguns. These items have no value whatever in taking game or precise fire at a target: they are for killing people, especially close up.ar15pocket automaticsnubnosesawed-off
  4. Exotica like large-caliber sniper rifles, mortars, and antique muzzle-loaders.

The “gun problem” is about category 3 items in the hands of civilians. Group 3(i) are relevant to a “well-ordered militia” and I’m fine with National Guard members, whose names and addresses we know, having theirs in a gun locker at the armory, or even at home in a safe in the Swiss style. Police misuse of their handguns is an issue, but not a gun issue. I don’t worry about people with deer rifles, duck guns, or even .50 cal rifles even though they are occasionally tools of lethal behavior and tragic accidents.

I don’t even worry about most people who own people-killers. Some perfectly trustworthy folks get off shooting combat handguns at paper targets, and others live under the illusion that their pieces are more likely to protect them against a home invader or street assailant than to kill  members of their family, but they keep them away from kids and burglars. Most of the sad cases who think they are going to protect America from a tyrannical government that has tanks and Apache helicopters aren’t actually going to do any harm, either.  But enough thugs, careless people, and crazies remain to author a national bloodbath of suicides, accidental shootings, and murders, and to justify demanding that anyone who possesses anything in category 3 needs a license.  The idea that that license is a dive down a slippery slope, at the bottom of which the government is using the information to take away everyone’s gun is fever-swamp nonsense; no-one is going around confiscating dogs or cars with a list of licensees. Nothing in the constitution says you’re allowed to secretly have a device for killing people; neighbors have a right to know what toxic chemicals DuPont is messing with in the plant down the street, who owns a two-ton iron projectile scooting down the road at sixty miles an hour…and who is equipped to shoot a lot of people.

American culture and tradition demands that the license be easy to get. But how should we figure out who is safe to have such a license? Well,  all those law-abiding gun owners don’t go around shooting people for the same reason most of us behave ourselves, because of social and peer influence: friends don’t let friends drive drunk.  So let’s ask the people who know them. Mark Moore, years ago, floated the idea that if you needed a license from the NRA to own a gun, the NRA would suddenly rethink the idea that anyone who asks should have one, or many.  I like that idea, but I think it would be even better to simply require a notarized statement every year in support of your application for a license to own any handgun or military weapon, from each of three adult non-relatives, whose name on your license application would be public record. All members of your play-guerrilla militia club? OK with me. Don’t know three people who are willing to have their names come up should you do something crazy and dangerous?  Then you can’t be trusted with a category 3 firearm. Try archery, or Tai Chi, or computer games; very challenging and fun; no license required.

Presidential action on gun dealing

John Hockenberry interviewed me this morning on the latest from the White House on changing the definition who is “engaged in the business” of selling guns and therefore required to get federal firearms license (and, therefore, do a background check on each buyer before selling a gun). [More on that in this previous post.]

As I told Hockenberry, this seems to me like a fairly clever move politically, since roughly 90% of the voters – even Bill O’Reilly – want background checks on all gun sales.

The President doesn’t have the power to do that, but this gets part of the way there. It’s also obviously within Executive Branch authority. But Republicans – both Senators up for re-election and candidates for President – have to be against anything this President is for, especially when it comes to guns.  As could have been predicted, all the Republican pols and pundits who weren’t busy making fun of the President’s display of emotion this morning (see video below) – obviously, if you shed tears at the thought of children dying, you’re not fit for office – had to denounce this as a ruthless power grab and threat to Second Amendment rights, though none of them actually managed to back up either half of that proposition with fact.

The perfect US Constitution?

The US Constitution, as of 1787:

Article I.2.3:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Article IV.2.3:
No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

Mistakes: entrenched a gross violation of human rights, contributed to Civil War. Cancelled for slaves by the Thirteenth Amendment, 1865. The Fugitive Slave Clause may theoretically still be in force for convicts condemned to forced labour, but has no practical application.

18th Amendment, 1919:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Mistake: unenforceable, unintended consequences. Repealed in its entirety 1933.

Second Amendment, 1791:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Mistake: false premise, category error in identifying a contingent as a fundamental right, unintended consequences, obsolescence (end of threats from slave revolts and Indians, establishment of a large peacetime standing army and other military forces, [update] and uniformed police).
Still in force.

Robert Dear was obviously dangerous–once we saw what he did.

Robert Dear apparently shot several people in a politically motivated attack on a Colorado Planned Parenthood clinic. After the fact, it’s painfully obvious that he was seriously troubled and not someone we should trust with a gun, let alone with a semi-automatic rifle. He was, as the Washington Post‘s Kevin Sullivan, Mary Jordan, and William Wan put it, alienated and adrift. He had assaulted his wife. He had bothered or creeped-out several neighbors. He was an angry and strange loner. He may have been a peeping tom. At some commonsense level, the man had serious issues.

Yet as far as I know, he satisfied no obvious criterion that would have made him a prohibited possessor of firearms virtually anywhere in the U.S. His wife didn’t press charges on the DV issues that might have blocked his access to a gun. To my knowledge, he was never convicted of a felony or a violent misdemeanor. He was never involuntarily committed or legally determined to pose a threat to himself or others.

An estimated 8.9 percent of American adults have serious anger issues and have access to guns. I wish I could propose some simple ingenious tweak. I’m not sure one can be found. As long as our gun safety policies permit anyone who avoids the narrow category of prohibited possessor to obtain powerful weaponry, it will be very difficult to prevent this sort of random atrocity.

Don’t just stand there, do something! (Provided there’s something useful to do.)

Of course my brilliant old friend and longtime UCLA colleague Eugene Volokh is right (and Jeb Bush was also right, though tin-eared and hard-hearted).  The impulse do “do something” in the face of a bad situation, and especially after a disaster, can lead to policies that make things worse instead of better (for example, invading Iraq), and it is wiser to resist that impulse than to do something foolish. The “Yes, Minister” syllogism – “We must do something; this is something; therefore we must do this” – is not a form of reasoning that leads to good results.

That’s especially true for gun policy, because the debate heats up after a mass shooting, and mass shootings are completely atypical of gun deaths overall. The question “What would have prevented this particular disaster?” is inevitably the wrong question.

And Eugene is also right – being right in the service of really bad policy choices is one of his annoying habits – to compare guns to alcohol as two commodities whose consumption in the United States leads to the deaths of tens of thousands of people other than consumers, in addition to deaths among the consumers themselves.

But that’s where Eugene stops being right and becomes ridiculously and disastrously wrong. He assumes, falsely, that just because we’re not currently doing much to stop the violence involving guns and alcohol it must be the case that nothing useful can be done.  In the case of guns, the cross-national statistics offer a strong hint that there’s something very wrong with policy in the United States, since no other developed country has anything like our rate of gun deaths. Our rate is three times that of Finland or Switzerland – our closest competitors among developed nations – four times that of Canada, and ten times that of Australia. That suggests we might have something to learn from their policies.

John Donohue’s recent work showing that adopting a “shall-issue” concealed-carry law correlates with future increases in homicide rates  suggests that state-level gun policies matter, though it’s hard to tell whether the results are due specifically “shall-issue” as opposed to “stand-your-ground” and other elements of the NRA policy agenda; states that loosen their gun laws are likely to do so along more than one dimension.  But even if there’s nothing positive to do, reining in the desire of Eugene’s gun-crazed allies to increase the prevalence of gun ownership and gun-carrying would be a good place to start.

One obvious positive thing to do about guns would be to tighten the rules about background checks. Right now, registered gun dealers (Federal Firearms Licensees, or FFLs) must verify that gun buyers are eligible to purchase; that’s the Brady Law background check. But about a third of all gun transfers don’t involve an FFL: they’re private sales, including sales at gun shows, or they’re gifts.

There’s no good reason not to require a check for every transfer; no doubt the gun stores would be happy to provide the service at a competitive price.  That simple change, supported by the vast majority of voters and proposed by the Obama Administration, fits perfectly the NRA slogan that what we need is better enforcement of the laws already on the books. But in fact the NRA opposes it, and if Eugene supports it he’s keeping that support a secret.  No one can estimate how many lives it would save, but surely that number isn’t zero.

If Eugene wants to say – as apparently Jeb wants to say – that protecting the convenience of gun owners and gun merchants is more important than saving lives, that’s his right. But to say that there are no lives to be saved,  at reasonable cost to other goals, is simply false.

That’s even more obviously true with respect to Eugene’s comparison case, alcohol. He writes as if the only alternative to our current insanely loose alcohol policies would be a return to Prohibition, and that what we can do  about controlling alcohol-related deaths is “not much, other than trying to catch and punish alcohol abuse.”

Nonsense. There are at least two options out there that would substantially reduce the number of people who die as a result of other people’s drinking (while also reducing the number who die, suddenly or slowly, as a result of their own drinking).

The first and most obvious (except to a libertarian) is raising alcohol taxes. When something costs more, people use less of it, especially people who use enough of it so its price matters in their personal budgets. Most of the damage from alcohol-related violence comes from heavy drinkers, not casual ones.  So higher alcohol prices will lead to less drinking by heavy drinkers and therefore fewer drunk-driving deaths and fewer drunken homicides.

Philip J. Cook’s Paying the Tab estimates that a 10% increase in the price of drink (which could be achieved by doubling the current federal alcohol tax) would reduce all violent crime – not just alcohol-related crime, but of course including a lot of gun crime – by about 3%.  The effects on traffic fatalities are of about the same magnitude. The effects seem to be roughly linear.

So tripling the alcohol tax – which would cost the median drinker less than 20 cents a day, and which wouldn’t be nearly high enough to create a black market – would eliminate about 6% of the 13,000 murders we suffer each year, saving about 800 lives. It would also eliminate about the same proportion of 32,000 traffic fatalities, saving something more than 2000 additional lives.  In other words, a simple change in the tax code could eliminate about one 9/11’s worth of sudden death per year.

The other straightforward approach to shrinking alcohol-related damage, including homicide, is to deter drinking by people who commit crimes under the influence. That’s the approach of South Dakota’s Sobriety 24/7, which requires people with prior DUI convictions arrested for a fresh DUI to come in twice a day for an alcohol-breath test, under the threat of a night in jail if the result isn’t 0.0.

The results are spectacular: being on the program (for an average of 90 days) reduces DUI recidivism by 50% over the next two years. Applying the program at a county level reduces auto fatalities by 12% and domestic-violence complaints by 9%. (Beau Kilmer and his colleagues at RAND are about to publish an estimate of the effect on all-cause mortality that will blow the top off everybody’s head, but that work is still under review so I can’t more than hint at the results.)

Here’s a more speculative idea, but one I’d like to see tried. A third activity that leads to lots of sudden deaths on the part of bystanders is driving. One thing we do to reduce the carnage is to forbid people to drive if they’re under the influence. Alcohol effects coordination, but it also influences anger management, impulse control, and judgment. So why do we let someome walk around armed when he’s drunk out of his gourd? The old-fashioned Western saloon had a “hang ’em here” policy; customers were expected to disarm before getting loaded. Why not enact that as law, requiring that anyone possessing a gun in public either (1) remain sober or (2) lock it and unload it? You could think of that as either a modification of gun policy or a modification of alcohol policy.

So Eugene’s comparison case is almost uniquely poorly chosen. There are some things we could do today to reduce gun violence by changing gun policy, but those effects would mostly happen slowly and can’t be estimated with much confidence.  But there are things we could do about alcohol policy today that would reduce violent death, including violent death by firearm, predictably and measurably six months from now.

Yes, the activist impulse to “do something” can and does lead us astray. But so does the libertarian impulse to just sit there and watch people die, all in the name of limited government.











Guns again/still

The world is not short of discourse about guns and violent crime at the moment, but some facts bear highlighting, and more emphasis, throughout that discourse.

First, the NRA is the lobbying and PR arm of a small industry whose business is to make and sell as many guns as possible.  If the corn merchants could make up a story about high-fructose corn syrup protecting Americans from government and burglars, and find a piece of the constitution to misread, they would do it and we would all gain ten pounds.  The NRA’s business is not freedom, or recreation, or American tradition; it is money. Mass killings are especially profitable for their masters, as frightened citizens run out and buy more weapons.

Second, there are guns and guns. When I was a teenager, before I got interested in girls, I was something of a firearms hobbyist and dispatched reams of paper targets and some small game, even spending a year on the college rifle team before I got bored with it. Distinctions can be firmly drawn among guns whose purpose is target shooting, guns whose purpose is killing animals in the wild, and guns whose purpose is killing people. The ideals in the last category are automatic pistols with large magazines, short-barrel cylinder-choke shotguns, and machine guns; the last of these are illegal but fairly easy to make out of their close cousins, semi-automatic assault rifles and carbines. Killing (i) a lot of (ii) people, period. The targets with which these are practiced are human silhouettes, with higher scores for hitting lethal areas.

Sporting firearms are almost entirely owned by a shrinking but still large group of people who keep them locked up and use them for hunting and target (paper or clay pigeons) practice. They teach their kids to shoot safely for people and lethally for the game, and know not to mix gunpowder and alcohol. No firearms legislation contemplated or proposed by anyone puts those weapons at risk, or should.

Most of the people-killing hardware is in the hands of two categories of owners. One is plain criminals, and everyone agrees they should be relieved of them. The second is folks who are more or less deranged in one or more of three ways. Some are afraid that the US government is going to take over the country and become the government of the US, and have the completely loony idea that their firepower will be more than a bee sting against the real army, should the US government try to compel them to obey the laws of the United States.  Others imagine violent criminals accosting them in the street or in their homes, and expect that they will get their piece out of the drawer by the bed, or their holster, like a movie action hero in time to make a difference.  Both groups ignore the amply demonstrated fact that their self-defense weapon is many times more likely to kill a loved one, in an argument that escalates or in a suicide, than to ever deter a crime.

Many years ago, my colleague Mark Moore floated an idea that makes more and more sense to me in the current political paralysis. Congress should require everyone owning a handgun, or a long gun not suitable for hunting, to have a license, renewable every five years at no charge, and should authorize/deputize, and fund, the NRA as the sole issuer of that license. When a firearms outrage takes place, it will be a matter of public record which NRA functionary, supervised by which NRA executive implementing what protocol, thought it would be OK for that perp to be armed, on the basis of what evidence, and not just that Wayne La Pierre is mouthing bromides about abstract rights. (That history would of course be of special interest to plaintiffs’ lawyers.)

The constitutional provision requires deference, and I am quick to say that I am a strict constructionist on this issue.  I have no problem explicitly authorizing every citizen to possess the most lethal weapon the founders could have imagined when the second amendment was drafted: any muzzle-loading black powder single-shot flintlock (or touchhole) firearm, from a dueling pistol right up to a naval cannon, is OK with me as an American birthright privilege, and I would march in the street to protect your right to have any of those things.

Yes, you can have a bayonet on the rifle.