An Open Letter to Vice President Biden

Dear Vice President Biden:

Tomorrow you will recommend gun control measures to the President.

You, the President, and the nation are between a rock and hard place. Truly effective gun control may not be possible.

Not because gun control measures don’t work. As I’ve described here, there are ample data – from studies comparing states with different gun control regulations, nations with different regulations, and places that have changed their regulations over time – showing that gun control does work. However, it may be that only one kind of gun control significantly reduces murders, injuries, and robberies: whatever reduces the numbers of handguns in general circulation. It is, after all, handguns that are responsible for the overwhelming portion of gun-related deaths. But following the Supreme Court’s 2008 and 2010 decisions in the Distict of Columbia v. Heller and McDonald v. Chicago, which hold that people have a constitutional right to have handguns in their homes, restrictions that are so designed may be unconstitutional.

Moreover, any kind of gun control is exceedingly difficult politically. Except for Democrats from metropolitan areas in the Northeastern cities and the West Coast, members of Congress believe that voting for gun control is political suicide. I believe they are wrong about that, but even in the post-Newtown environment they will not be easily convinced, and getting anything through the House of Representatives will be difficult.

What to do?

Stick with what’s truly meaningful, keep it simple, and don’t again succumb to the temptation to propose merely cosmetic measures designed to lead the American public to believe that something effective has been done when it has not, as was the case with the Brady Law and Federal Assault Weapons Ban in 1994.

First, propose legislation to make it unlawful to own a gun magazine (also called a clip) that will hold more than five rounds. It’s been reported that Governor Andrew Cuomo will propose a seven-round restriction in New York State. That number would also be okay. The expired Federal Assault Weapons Ban and current legislation in four states and the District of Columbia make ten rounds the limit; but smaller is better because it complicates schemes of madmen intent on mass murder. The issue for them is how many times they have to change gun magazines to fire, say, 90 rounds. With 30-round gun magazines, which are common today, it’s twice; with ten-round magazines, it’s eight times; with five-round magazines, it’s seventeen times. Meanwhile, it is not asking a great deal of hunters and sportsmen to change a magazine after firing five rounds. It may be inconvenient, but they can be asked to suffer inconveniences for the good of the nation.

Don’t complicate this proposal by focusing on other attributes of so-called assault weapons, such as pistol grips, bayonet holders, flash suppressors, and the like. It’s the number of bullets that matters. Stick with that.

Most important: Do not grandfather existing magazines, as did the Federal Assault Weapons Ban. Because magazines last for decades, that would render the law a nullity. Requiring gun owners to purchase new, lower-capacity magazines will not impose large financial burdens on them. As NRA President David Keene himself told Candy Crowley on CNN yesterday, gun magazines are inexpensive. Because they would make money selling new magazines, gun manufacturers – and the NRA, which the gun industry helps support – may secretly even welcome this restriction even while publicly denouncing it.

Second, close the gun show loophole for background checks. This loophole is so large that an estimated forty percent of gun sales currently avoid background checks. That is, require "universal background checks" for all gun buyers, regardless of whether a gun is sold by a licensed dealer or a private party.

These measures will not reduce most of carnage, but they are truly meaningful.

There is, of course, much more that should be done. For example, the Bureau of Alcohol, Tobacco, and Firearms (ATF) should be permitted to gather information that will help law enforcement officials and researchers; the Centers for Disease Control and Prevention (CDC) should be permitted to study gun violence; and the President should nominate – and be prepared to fight for – an effective leader at ATF.

But for now, keep the proposals short, simple, and meaningful.

Respectfully yours,

Carl T. Bogus

image of edmund burkeEDMUND BURKE


Edmund Burke -- the great eighteenth century British statesman -- was both a liberal and a conservative.  For a relatively concise but complete profile of Burke, and an explanation of why by today's standards Burke may be considered either a liberal or a traditional conservative -- but emphatically not a libertarian, neoconservative, or social conservative -- read Professor Bogus' article Rescuing Burke, 72 Missouri Law Review 387 (2007).

Here are some quotes from Edmund Burke:

"We must all obey the great law of change.  It is the most powerful law of nature, and the means perhaps of its conservation."

"Society become a partnership not only between those who are living, but between those who are dead, and those who are to be born."

"The individual is foolish; the multitude, for the moment is foolish, when they act without deliberation; but the species is wise, and, when time is given to it, as a species it always acts right."

"Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he a right to all which society, with all its combinations and skill and force, can do in his favor.  In this partnership all men have equal rights; but not to equal things."


EDMUND is a blog by Professor Carl T. Bogus.


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