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Regulating Guns Out of Existence
"Cap-and-trade" for murder victims?


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You know what they say about those who teach.

Sunday’s Los Angeles Times brought us as glorious an example of ivory-tower impracticality as ever put forth, this one by a pair of university professors who, if one may judge from their curricula vitae, are well steeped in academic theory but lacking sufficient practical experience to realize what they propose is manifestly absurd.

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In an oped piece running under the headline, “How gun makers can help us,” Jeffrey Fagan, a professor of law and public health at Columbia, and Stephen D. Sugarman, a law professor at U.C. Berkeley, suggest a novel approach to reducing gun violence in America, where about 12,000 people will be shot to death this year. They acknowledge that the recent Heller decision in the Supreme Court “made the problem a little more difficult to solve,” but, like many of their fellow academics, they apparently see the Constitution not as a guarantor of civil liberties but rather as an obstacle to be surmounted along the shining path to Utopia.

What Fagan and Sugarman propose is a scheme only a lawyer could love, for it would invite litigation (and more work for lawyers) at virtually every turn. “By using a strategy known as ‘performance-based regulation,’” they write, “we would deputize private actors — the gun makers — to deal with the negative effects of their products in ways that promote the public good.”

Under this plan, no specific course of action would be imposed on gun makers. Rather, Congress would require the manufacturers themselves to devise ways to reach “performance targets” of reductions in the number of firearm deaths. They might achieve these goals, the authors say, by “add[ing] trigger locks to their guns, or to work only with dealers who meet certain standards of responsibility. They might withdraw their semiautomatic weapons from the consumer market, or even work hand in hand with local officials to fight gangs and increase youth employment opportunities. Surely they will think up new strategies once they have a legal obligation and financial incentive to take responsibility for the harm their products cause.”

And how would Fagan and Sugarman allocate their “performance targets” among the various gun manufacturers? They claim that in more than half of all gun homicides police are able to identify the precise type of weapon used. Based on my experience responding to hundreds of shootings over the course of my police career, this figure strikes me as overly optimistic. But for the sake of the discussion let’s assume it to be accurate. Bullets recovered from shooting victims are very often disfigured to the point that they offer limited information on the type of gun that fired them. The most reliable way to determine the type of weapon involved in a crime is through the examination of expended shell casings left at a crime scene. The casing itself tells the investigator the caliber of weapon, obviously, and a microscopic examination of firing-pin impressions and ejector marks can indeed reveal the make and model of weapon the casing came from.

Now let’s assume that gun manufacturers respond to the Fagan-Sugarman plan by, as they suggest, withdrawing semiautomatic weapons from the consumer market. Will the learned professors sleep easier if criminals turn to revolvers to commit their murders, thereby denying the police — and the bean counters who under their plan will assign responsibility and financial penalties among the gun manufacturers — the forensic evidence needed to identify murder weapons?

Fagan and Sugarman propose an even more preposterous element to their plan: a “cap-and-trade” arrangement that would allow a gun manufacturer who somehow reduces its body count to sell its excess allotment to a rival company. One can envision exciting new horizons opening on Wall Street as murder futures come to be traded alongside those of crude oil, coffee, and pork bellies.

Of course this plan, like almost any regulatory plan hatched inside the ivied walls of the academy, comes down to money. More precisely, it comes down to the transfer of money from those who earn it, i.e. the gun manufacturers, to those who don’t, the lawmakers, other government bureaucrats, and the lawyers who will profit from the confusion this would undoubtedly engender. “If gun makers fail to reach the performance targets,” write Fagan and Sugarman, “they would face substantial financial penalties that would hike the cost of the guns they make and drive home the huge negative social consequences they now cause.”

Thus the authors ascribe “social consequences” to inanimate objects rather than those who employ them for illegal purposes. And with this the authors reveal their true agenda: to bankrupt the gun manufacturers by concealing the iron fist of government in the velvet glove of “performance-based regulation.” And if they can enrich a few trial lawyers in the process, so much the better. In this regard, in the eyes of Fagan and Sugarman, perhaps the idea isn’t so impractical after all. The Supreme Court may have affirmed the Second Amendment, but if this regulatory scheme can drive gun manufacturers out of business, it will render the Second Amendment as moot as the Third.

Jack Dunphy is an officer in the Los Angeles Police Department. “Jack Dunphy” is the author’s nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.



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