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The Right To Keep and Bear Arms in Self-Defense, and Taxes, Fees, or Regulations That Indirectly Raise Gun or Ammunition Prices:

In this post and the two that surround it on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

The article is quite long, so I thought I'd just blog some excerpts; if you're interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government's proprietary role [if that's present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

* * *

Taxes on guns and ammunition, or gun controls that raise the price of guns and ammunition, would be substantial burdens if they materially raised the cost of armed self-defense. A $600 tax proposed by Cook, Ludwig & Samaha [in another article in the same symposium for which my article was written -EV], justified by an assertion that "keeping a handgun in the home is associated with at least $600 per year in externalities," is one such example. "The poorly financed [self-defense] of little people," like their "poorly financed causes," deserves constitutional protection as much as the self-defense of those who can afford technologically sophisticated new devices or high new taxes. (See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) (striking down ban on door-to-door solicitation, partly on the grounds that "[d]oor to door distribution of circulars is essential to the poorly financed causes of little people"); see also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (striking down ban on display of signs at one's home, partly on the grounds that "[r]esidential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute.").) This is true whether the tax or expensive control is imposed on gun owners directly, or on gun sellers or manufacturers, just as a restriction on abortion can be a substantial burden even if it's imposed on doctors and not on the women who are getting the abortions.

High gun taxes should remain presumptively impermissible even if they are based on some (doubtless controversially calculated) estimate of the public costs imposed by the average handgun: The average takes into account both the very low cost stemming from guns that are always properly used by their owners, and the very high cost stemming from guns that are used in crime. The law-abiding owners thus are not just being required to "internalize the full social costs of their choices," even if you take into account as a "cost" the possibility that any gun will be stolen by a criminal. They are also being required to internalize the social costs of choices made by criminal users of other guns -- much as if, for instance, all speakers were charged a tax that would be used to compensate those libeled by a small subset of speakers.

Nonetheless, some modest taxes might not amount to substantial burdens, as a review of taxes and fees on other constitutional rights illustrates. Taxes based on the content of speech are unconstitutional, regardless of their magnitude. But this is a special case of the principle that discrimination based on certain kinds of characteristics -- race, sex, religiosity, or the content or viewpoint of speech -- is unconstitutional. Setting aside these special areas of constitutionally forbidden discrimination, and setting aside poll taxes, which were constitutional until the Twenty-Fourth Amendment forbade them, other kinds of taxes, fees, and indirect costs imposed on the exercise of constitutional rights are often permissible.

The government may require modest content-neutral fees for demonstration permits or charitable fundraising permits, at least if the fees are tailored to defraying the costs of administering constitutionally permissible regulatory regimes. The same is true for marriage license fees and filing fees for political candidates (though the Court has held that the right to run for office is protected by the First Amendment). The same is doubtless true of costs involved in getting permits to build on your own property, a right protected by the Takings Clause.

Likewise, regulations of the right to abortion are not rendered unconstitutional simply because they increase the cost of an abortion. The Court so held when upholding a 24-hour waiting period even though it required some women in states with very few abortion providers to stay in a hotel overnight or miss a day of work, and when upholding viability testing requirements that might have marginally increased the cost of an abortion. So long as the extra costs don't amount to "substantial obstacle[s]" to a woman's getting an abortion, they are constitutional.

At the same time, when a cost is high enough to impose a substantial obstacle to the exercise of a right for a considerable number of people, it is unconstitutional. This is likely also true when a cost goes materially beyond the cost of administering the otherwise permissible regulatory scheme, as several federal circuit court cases hold and some U.S. Supreme Court cases suggest. And if a law substantially burdens rightholders who are relatively poor, an exemption would likely be constitutionally required, as it has been with regard to permit fees for speakers and candidates.

I acknowledge that any such regime necessarily creates linedrawing problems and poses the danger that a genuinely substantial burden will be missed by judges who are deciding how much is too much. But, first, there is ample precedent for such tolerance for modest fees in other constitutional rights contexts, and it seems neither likely nor normatively appealing for the courts to conclude that the right to bear arms is more protected than these other rights. Second, the caselaw from those other areas can provide guideposts for the linedrawing process. And third, the caselaw from those other areas (as well as the general logic of the substantial burden threshold) can provide justification for a constitutional requirement that poor applicants be exempted from fees -- say, fees that dramatically increase the cost of a new gun, or that are required for periodic reregistration of an old gun -- that are substantial for them even if relatively minor for others.

PersonFromPorlock:
They are also being required to internalize the social costs of choices made by criminal users of other guns....

...and the choices made by sentencing judges and parole boards where the released criminal commits a new crime within the period he might have been incarcerated for.
4.9.2009 10:04am
~aardvark (mail):
Let me flip the argument on its head--if the primary intent of the gun owner is to use the gun for self-defense, then it is in his interest to provide funds for the general protection that would minimize the chances of 1) his gun being stolen and 2) the necessity of violent self-defense. So, if the "tax" were being diverted directly into a local police crime-prevention program and gun education program (i.e., something from which the owner also may well benefit), he should only be glad to part with the money.

The claim of self-defense intent is based on a probabilistic argument. So why not make an "enhancement"? That's right--a $600 gun tax is not a "burden", it's an "enhancement"!

Another theory may well be based on classic strict liability for dangerous items. If something is inherently dangerous, no matter how careful you are with it, if it causes damage due to its nature, you'll be liable for it. Torts are a bitch. So, let's consider this a preemptive cost. Firearms are inherently dangerous. Suppose the $600 charge is not for "tax" but for a mandatory insurance that absolves the owner of social costs (but not criminal liabilities or actual negligence) associated with potential negative effects of the use of an inherently dangerous item. We have mandatory insurance on cars--with no regard to the means of the owner--why not on firearms?

So, if the item is stolen through a break-in or other act that does not implicate negligence on the owner's part, and it is then used in a crime, the owner would not be liable. If the item is stolen because of owner's negligence or regulatory violation (e.g., keeping the gun in an unlocked car), then the owner may be held liable--the "insurance" would not cover it.
4.9.2009 10:22am
SeaDrive:

High gun taxes should remain presumptively impermissible even if they are based on some (doubtless controversially calculated) estimate of the public costs imposed by the average handgun: The average takes into account both the very low cost stemming from guns that are always properly used by their owners, and the very high cost stemming from guns that are used in crime.


1. As statistics, averages have virtues, but also many, many vices. The layman may take 'average' as a synonym for 'typical', but that is often wrong. The average US income, for example, is unduly influenced by the very high incomes of a few, and even the US Gov't uses medians for a lot of policy purposes. In this case, the median gun costs a lot in regulation, and next to nothing in enforcement.


poorly financed causes of little people


2. I assume the little people are of low social and financial standing, and not of small physical stature. By today's standards, this is very non-PC, and I'm surprised to see it as recently as 1943. Was it really in a court document?
4.9.2009 10:25am
PubliusFL:
~aardvark: So, if the item is stolen through a break-in or other act that does not implicate negligence on the owner's part, and it is then used in a crime, the owner would not be liable.

So it insures you against liability you would not legally have anyways! That's as good a deal as when that nice man with the tattoos offered to provide "protection" for my inner-city grocery store for only 50 bucks a week!
4.9.2009 10:52am
Rr:
"The same is doubtless true of costs involved in getting permits to build on your own property, a right protected by the Takings Clause."

This type of tax already very much exists for firearms. The amount of money the BATF requires from you to be a producer - even in "for personal use amounts" of firearms - is certainly a huge barrier to "build your own." Even modifications to firearms is subject to BATF rules and taxes if it results in the creation of certain, restricted classes of firearms.

A more apt comparison would perhaps be taxes levied on the sales of a house.
4.9.2009 10:55am
Melancton Smith:
Since there are vastly more guns not used criminally in this country an average cost per firearm would be negligable. Probably too small to even present a bill for.
4.9.2009 10:57am
Han Solo:
"A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government." - George Washington


"Arms in the hands of citizens may be used at individual discretion in private self defense." - John Adams

"No free man shall ever be debarred the use of arms." - Thomas Jefferson

"Americans have the right and advantage of being armed, unlike the people of other countries, whose people are afraid to trust them with arms." - James Madison (federalist papers)


"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." - George Mason
4.9.2009 11:00am
Rr:
On a related note - if we indeed assume that there is the right to self-defense, then we can no longer take the "the arm has to have a sporting purpose" argument seriously.

There are quite a few experts who would argue that for in-home self-defense, a small rifle-style weapon is superior to a handgun. However, short-barreled weapons, which one would desire in such a circumstance, are already restricted and require a tax stamp from the BATF. A new "assault weapons" ban would of course further impede choice.


What I'd really like to know (and I'm probably just very under-educated on that part) is why the states that have very broad right-to-bear-arms-clauses should put up with such things as a federal AWB.
4.9.2009 11:07am
~aardvark (mail):
So it insures you against liability you would not legally have anyways!

You may want to re-read. Although this may be a controversial point, it is not so far-fetched to classify guns ownership as inherently dangerous. If you have a stash of dynamite in your shed and some kid throws a firecracker in there on a lark, blowing up the whole neighborhood, you'll be liable even if you did nothing wrong. The kid's liability is not an issue--you are liable simply by keeping an inherently dangerous substance in a place where it may do harm.

This approach did not work with gun manufacturers. But a manufacturer is not in the same position as an owner. For example, in the situation above, the manufacturer of the dynamite would not be responsible.
4.9.2009 11:08am
Eugene Volokh (www):
Han Solo: I generally find that such general sentiments tell us little about many specific controversies. This is especially true when it comes to matters such as taxes and fees -- general sentiments about the social value of home ownership, for instance, hardly tell us that the property tax is unconstitutional.

But more specifically, are you sure that the Washington post isn't bogus?
4.9.2009 11:11am
~aardvark (mail):
Eugene, unless the entire speech is made up, the reference on the Washington quote is George Washington, January 8, 1790, First State of the Union Address.

But that quotation is still a cheap shot. The reality is that the statement had absolutely nothing to do with individual arms--the subject was collective defense, which is precisely the point that is made by the less charitable interpreters of the Second Amendment. Here's the full segment:


Among the many interesting objects which will engage your attention, that of providing for the common defence will merit particular regard. To be prepared for war is one of the most effectual means of preserving peace.

A free people ought not only to be armed but disciplined; to which end a uniform and well digested plan is requisite: And their safety and interest require that they should promote such manufactories, as tend to render them independent on others, for essential, particularly for military supplies.

The proper establishment of the troops which may be deemed indispensable, will be entitled to mature consideration. In the arrangement which will be made respecting it, it will be of importance to conciliate the comfortable support of the officers and soldiers with a due regard to economy.

There was reason to hope, the pacifick measures adopted with regard to certain hostile tribes of Indians, would have relieved the inhabitants of our southern and western frontiers from their depredations. But you will perceive, from the information contained in the papers, which I shall direct to be laid before you, (comprehending a communication from the Commonwealth of Virginia) that we ought to be prepared to afford protection to those parts of the Union; and, if necessary, to punish aggressors.
4.9.2009 11:27am
Freely speaking:
Thank you Eugene, I'm enjoying these excerpts quite a bit.

One issue I had, however:

They are also being required to internalize the social costs of choices made by criminal users of other guns -- much as if, for instance, all speakers were charged a tax that would be used to compensate those libeled by a small subset of speakers.

While I agree with your premise (and conclusion), I found this statement to be a little misleading. Wouldn't a better analogy be the fact that I pay a tax funding police in order to compensate for the criminally bad drivers out there? I may drive the speed limit and use my turn signal, but I accept that I internalize the social cost of choices made by reckless drivers ("criminal users").

Though I doubt it was your intent here, bringing up the specter of free speech too often feels like a cheap way to arouse an emotional response.
4.9.2009 11:27am
Rr:

Let me flip the argument on its head--if the primary intent of the gun owner is to use the gun for self-defense, then it is in his interest to provide funds for the general protection that would minimize the chances of 1) his gun being stolen and 2) the necessity of violent self-defense. So, if the "tax" were being diverted directly into a local police crime-prevention program and gun education program


I'm not sure the second bullet makes logical sense. It suggests that "minimizing the necessity of violent self defense" (leave aside for a minute my doubts on how non-violent self-defense is a suitable option) is a desire upon itself. It ignores the root cause (well, one step removed) and that is the existence of criminals who want to perpetrate violence on others.

To suggest that gun-owners somehow should have a higher interest in preventing crime, and should bear a disproportionate burden in financing crime prevention programs (of which I doubt the efficacy anyway) I find disingenuous.
4.9.2009 11:37am
PubliusFL:
~aardvark: You may want to re-read. Although this may be a controversial point, it is not so far-fetched to classify guns ownership as inherently dangerous.

No, I got that part. But that's not currently the law. So you're proposing changing the law to create substantial new liability for gun owners, then forcing them to "buy" insurance against it. That's what inspired my comparison to a gang shaking down business owners for protection money as insurance against a risk created by the gang itself.
4.9.2009 11:41am
Zaphod Beeblebrox:
"You may want to re-read. Although this may be a controversial point, it is not so far-fetched to classify guns ownership as inherently dangerous."
---

huh? *may* be controversial? It seems like that flies in the face of pretty established tort law. Have any states classified guns as inherently dangerous? Here's the restatements position:

--
a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
(2) the activity is not one of common usage.
--

I think it's a longshot to say (b)(1) applies to guns and (2) definitely keeps it out. Practically, how do you plan to rewrite that to include guns but not cars or knives? Or do you just a want a statute saying guns are inherently dangerous to impose strict liability? If so, lots of luck at the ballot box.
4.9.2009 11:41am
Dan Hamilton:

High gun taxes should remain presumptively impermissible


You don't talk about the NFA. Short barrel shotguns are very good self defense weapons. Short Barrel Rifles in 3 shot mode are also very good. If they weren't SWAT wouldn't be using them.

A tax along with a ban on production used to drive up the cost and make them unaforadable. This should fit right in with this section. Why didn't you talk about it?

The NFA was put in for REVENUE. It was a lie then. It is a lie NOW. It was unconstitutional then and now.

The 68 New Machine gun ban. Again a unconstitutional law.
Would a ban on the manufacture of all semi-auto firearms be constitutional? What is the difference?

I know, I know that it is just to controversial. It might get the ignorant people that know nothing about firearms confused.

BTW: Why do Democrats fight like he!! to stop ANY gun safty classes from being taught in schools at any grade level?

They want to make sure that the majority of people have no knowledge of firearms. That way the Democrats can confuse them into thinking that semi-autos are the same as Full autos. That Assualt Weapons are highpower weapons instead of the mid-range power that they are. And many other lies.
4.9.2009 11:42am
James Gibson (mail):
Eugene, an additional point. On the BATF web site http://www.atf.gov/ you will find a news item on the declining number of FFLs in America. When Janet Reno came into office they "tightened up" and increased the cost of FFls causing a large drop off nationwide. It wasn't a tax, or for insurance, or even to cover the cost of processing. It was simply a political attack on gun ownership. The fewer FFLs meant people had fewer places to go to legally buy a gun. Please note the difficulty people in DC are having now buying a gun for the lack of a resident FFL holder in the city.

Thus, its not the direct taxes or fees that are important, but the variety of other little cost increases that can be imposed. People can be required to practice with their arms only to find the nearest range 50 miles away. A high level of security can be imposed (such as requiring the arm to be dismantled when not in use). The cost of ammunition can be increased by requirements for documenting how the ammo is to be used and by what firearm of the purchaser (now before the California assembly). Given that the majority of FFL holders that gave them up in the 90s were actually ammunition makers and the making of artificial shortages in turn increases costs.
4.9.2009 11:47am
PubliusFL:
Freely Speaking: While I agree with your premise (and conclusion), I found this statement to be a little misleading. Wouldn't a better analogy be the fact that I pay a tax funding police in order to compensate for the criminally bad drivers out there? I may drive the speed limit and use my turn signal, but I accept that I internalize the social cost of choices made by reckless drivers ("criminal users").

I don't know. I think comparing an explicitly protected constitutional right to another explicitly protected constitutional right is a better analogy than comparing an explicitly protected constitutional right to something that's not explicitly protected, when the goal is to assess the likelihood of burdens imposed on that activity being unconstitutional.
4.9.2009 11:49am
Malvolio:
Let me flip the argument on its head--if the primary intent of the gun owner is to use the gun for self-defense, then it is in his interest to provide funds for the general protection that would minimize the chances of 1) his gun being stolen and 2) the necessity of violent self-defense. So, if the "tax" were being diverted directly into a local police crime-prevention program and gun education program
OK, why would it be in my interest to divert money from my self-defense to the obviously less-effective defense of local police and the completely ineffective "gun education program"?

Even if you make the (unsupportable) assumption that police are underfunded and home armories are overfunded, it's clearly not in the interest of any individual to personally make up part of the difference, since he will give up all of the $600 and only receive a tiny portion of the improved protection.
4.9.2009 11:49am
Monty:
I would think two type of fees/taxes would be permissible:
1 - General taxes that apply to a large range of products and are not target at gun owners - as in sales tax.
2 - Fees/taxes designed specifically to cover the administrative expense of licenses if required.
Anything beyond that is in my opinion a tax designed to punish those who excercise an unpopular constitutional right, they are retaliatory and therefor shouold be unconstitutional.
4.9.2009 12:02pm
James Gibson (mail):
I wonder if Arrdvark can explain something. Given that this speech was made in January of 1790, how does it apply to a "Collective Defense" when the government neither had the 2nd amendment yet (ratified in 1791) or a Militia Act (1792). Further, collective rights advocates state the militia Act was "virtually ignored (Perpich Vs Department of Defense). And according to these same sources there was no independent manufacture of arms nor any government intent to allow any.
4.9.2009 12:11pm
Dan M.:
Would you also consider the banning of so-called Saturday Night Specials unconstitutional if the ban is not narrowly tailored to weed out defective guns, especially when bans like this seem specifically tailored to keep "cheap" guns off the streets so poor (black) people can't afford them?
4.9.2009 12:35pm
pintler:

I would think two type of fees/taxes would be permissible:
1 - General taxes that apply to a large range of products and are not target at gun owners - as in sales tax.
2 - Fees/taxes designed specifically to cover the administrative expense of licenses if required.
Anything beyond that is in my opinion a tax designed to punish those who excercise an unpopular constitutional right, they are retaliatory and therefor shouold be unconstitutional.


I think you nailed it. Churches may have to pay for electrical permits and sales tax on candles like anyone else, but you can't institute a special tax on pulpits.
4.9.2009 12:43pm
PubliusFL:
James Gibson: Given that this speech was made in January of 1790, how does it apply to a "Collective Defense" when the government neither had the 2nd amendment yet (ratified in 1791) or a Militia Act (1792).

His point is it relates to the United States' collective defense as facilitated by the militia and army/navy clauses of the original Constitution, not a right of collective defense.
4.9.2009 12:45pm
glangston (mail):
If you could not make the case that the original $200 NFA tax stamp on a $20 short barrel shotgun was excessive and even confiscatory, or likewise this same $200 on an even cheaper suppressor (maybe $10) then how can one contest these new proposals? Nearly every item subject to the $200 NFA tax stamp was cheaper than the stamp itself.

Legally owned NFA weapons have been used only a few (maybe 2) times in crime.

Illegally owned or modified weapons of the same variety many times.

The NFA tax has been extremely successful at raising the price of NFA weapons 30 fold or more. At least now, the $200 stamp doesn't amount to "takings" on a $10=$15,000 M-16.
4.9.2009 12:54pm
PubliusFL:
glangston: The NFA tax has been extremely successful at raising the price of NFA weapons 30 fold or more. At least now, the $200 stamp doesn't amount to "takings" on a $10=$15,000 M-16.

It wasn't the tax that caused the 30-fold increase, it was the ban on new production. If M-16s for civilians could be manufactured today, they wouldn't BE $10-15,000. They'd be about the cost of a semi-auto AR-15, plus $200 for the stamp.
4.9.2009 1:00pm
Poor old dirt farmer:

"They want to make sure that the majority of people have no knowledge of firearms. That way the Democrats can confuse them into thinking that semi-autos are the same as Full autos. That Assualt Weapons are highpower weapons instead of the mid-range power that they are. And many other lies."


I agree 100%. When I hear people talking about "assault rifles" and banning guns it usually doesn't take long to realize they don't understand even the simple difference between semi and full automatic. Of course, most of the media (and Congress) play on the fears of the ignorant public. That's how we end up with useless gun control laws that do nothing to control gun violence. I actually had a lady in our office tell me the govt should ban "assault rifles" because they "look mean". When I showed her pictures of an AR-15 vs a Mini-14 she maintained the AR was more dangerous due to looks. They are both 5.56mm, semi-auto rifles with removable magazines. However the Mini-14 has a more traditional look with a wood stock while the AR is a black synthetic gun that looks like a M16/M4. It still amazes me even though it should not.

Mini-14 Pic

AR-15 Pic
4.9.2009 1:14pm
~aardvark (mail):
Rr: It ignores the root cause (well, one step removed) and that is the existence of criminals who want to perpetrate violence on others.

You missed the point entirely. The reason I said that the necessity for self-defense would be minimized (should have said "reduced") is immediately preceding that I said that the funds thus collected would go entirely to crime prevention. In simple terms, it would be a boost to the local police department in the same way that property taxes go to the support of local schools. Given that quite a high percentage of gun-crime victims come from the ranks of law enforcement and most of the direct costs associated with guns (criminally used or otherwise) are related to law enforcement and medical expenses, it seems reasonable to offset some of those costs directly.

Publius: But that's not currently the law. So you're proposing changing the law to create substantial new liability for gun owners, then forcing them to "buy" insurance against it. That's what inspired my comparison to a gang shaking down business owners for protection money as insurance against a risk created by the gang itself.

As a self-proclaimed store owner, do you not purchase liability insurance to account for accidents that occur beyond your control? Furthermore, if you store dangerous chemicals in your store, for whatever reason--and I don't mean Draino or bleach, but something substantially and inherently more dangerous--in case of an accident, you would be liable for damages even if the accident may not be directly caused by your negligence or error and even if you take all the normal precautions. High level of inherent danger is sufficient. If you don't have insurance, you'd be ruined.

We are not talking about criminal liability here, but merely torts. Pick up any basic textbook on torts and you will recall what I am talking about. The question is not in creating new law, but rather in recognizing existing ones.
4.9.2009 1:39pm
SeaDrive:

much as if, for instance, all speakers were charged a tax that would be used to compensate those libeled by a small subset of speakers.


Or if all drivers had a surcharge on their insurance to cover the liabilities of uninsured motorists...which is not so far-fetched.

Let me ask this question: Is the purpose of gun regulation to facilitate gun ownership, or is the purpose of gun control to protect the general public?
4.9.2009 1:54pm
Rr:
@aardvark -

You're attributing the exact same cause and effect, so I don't think I'm "missing the point entirely." Simply put, you want gun owners to bear a disproportionate cost of general crime prevention. But let's say that what you say is even remotely possible (reduce gun deaths by taxing legally owned firearms), I STILL don't see why a group that is exercising a constitutionally guaranteed right (even if we argue that it's only per their state constitution) should be excessively taxed to do so -- on top of the NFA taxes that are already levied. There are many costs (and indirect deaths) from 1st, 4th, 5th, and so on - it's a cost we, as a society, choose to bear. Constitutional amendment, fine, back-handed erosion of said right, not so much.

But I have a feeling we'll need to agree to disagree here.
4.9.2009 1:59pm
Zaphod Beeblebrox:
aardvark:
"High level of inherent danger is sufficient"

Under the restatement definition of an inherently dangerous activity/instrumentality (posted above), that is wrong and possessing a firearm simply does not qualify.

Is it the law of any state that possessing a gun is an inherently dangerous activity/instrumentality for strict liability purposes?
4.9.2009 2:07pm
James Gibson (mail):
Poor Old Dirt Farmer- HR1022, which the gun control movement want inacted as the new Assault weapon ban bans by name the Mini-14. They no longer make any distinction between that gun and the ARs. They also want banned the M1 Garand, the M1A, and the old Army M1 carbine.
4.9.2009 2:07pm
Rr:
@SeaDrive

Driving is not a constitutionally guaranteed right. This is a private party (the insurance company, which is for the shareholders by the shareholders) playing games with the public. The government is not allowed to do so - it is for the people by the people. Your insurance policy really is 'just a GD piece of paper' ... the constitution is not.

On the second point - gun ownership is already facilitated by way of the constitution. The purpose of gun control is purportedly to protect the general public, specifically from firearm deaths and violence. However there doesn't appear to be any consistent research that shows that (in the U.S., as a lot of this is also cultural) gun controls that have a measurable effect on gun violence if you allow any level of firearm ownership in general.
4.9.2009 2:08pm
RowerinVa (mail):
I'm all for a very high tax, and here's how it would work. Make it outcome-based.

If you don't use your gun in a crime, the tax is zero.

If you do use your gun in a crime, the tax is $100,000 or up, depending on the crime. And then, if you don't pay your tax, you get an extra five years in jail, or up, depending on the crime/tax.

Simple.
4.9.2009 2:25pm
Dan M.:
Saying that gun owners should bear the burden of funding the police department is ridiculous. Putting undue burdens on them would discourage gun ownership and then the police wouldn't get those funds. Or you'd promise those funds to the police and then tax something else to make up for it.

Just like right now they're raising tobacco taxes to pay for children's health care, but those taxes are causing more and more people to quit smoking. So then they have all that money committed and now no funding source for it, so they just tack it onto the general debt.
4.9.2009 2:53pm
SeaDrive:
@Rd:

1) I understand the difference between a right and a privilege, but I thought Prof V's example was pretty arcane, and supplied an example that seemed to me less obscure. I think that you would agree that the thinking behind the taxes and fees the Prof V is discussing here has more in common with the treatment of privileges than rights. (Granting him some skill as a writer, he probably chose the speech/libel example just because it would seem ridiculous and thereby suggest that the gun tax would also be ridiculous.)

2) My question was meant to illustrate that if the purported purpose of the taxes was to protect the general public, they should fall on the public at large, not on gun owners. Taxing gun owners is especially unjustifiable since the gun users who cause the lion share of the cost to the public are not going to be paying the tax.


"It's nothing until I call it" -- Bill Klem, NL Umpire and native Rochesterian


There is a big problem in matters of this kind that humans rely on instinctual associations of like things. This is often misleading, and while experts can shake loose from first impressions, but it's difficult in big groups. It is the first characteristic of populism. In the decision space that Prof V is dissecting, the most obvious division is gun/no gun. An alternate division might be public/bad guy.

Is there actually a reason to levy a charge against a good guy with a gun for costs attributed to a bad guy with a gun? Do we levy a charge against a good guy with a ski mask for costs attributed to a bad guy with a ski mask?

Presumably, the bad guy has more than one item subject to regulation. In addition to an illegal gun, he may have an illegal car, an expired drivers license, illegal drugs, etc. How much of the cost should be offset by a gun tax? How much by a car tax? Et cetera.
4.9.2009 3:04pm
pintler:

Given that quite a high percentage of gun-crime victims come from the ranks of law enforcement


In 2007, there were 55 officers murdered on the job by firearms.

In 2007. there were 10086 total firearms murders.
4.9.2009 3:19pm
PubliusFL:
~aardvark: We are not talking about criminal liability here, but merely torts. Pick up any basic textbook on torts and you will recall what I am talking about. The question is not in creating new law, but rather in recognizing existing ones.

I understand that you're not talking about criminal liability, just civil liability. The problem is that existing tort law does not support the civil liability you're talking about. As Zaphod Beeblebrox pointed out, neither the Restatement nor the law of any state supports strict liability for firearms ownership under an inherently dangerous activity theory. Don't think the argument hasn't been tried before, it's just been rejected by the courts every time it has been raised. So in order to charge gun owners "insurance" against strict liability, first the law would have to be changed to create strict liability for gun owners, since it doesn't exist now. That's equivalent to the hypothetical tattooed gentleman who walks into my hypothetical store and casually observes: "Say, you pay fire insurance to prevent against the risk of a fire, right? I noticed that the risk of you having a fire just happened to go up when I came into the neighborhood. Howzabout you pay me fifty bucks a week to, ah, insure against the increased risk?"
4.9.2009 3:29pm
Rr:
@SeaDrive -

Apologies - I misunderstood the intent of your comments then. It's sometimes challenging to keep track of who is quoting who.

I think we're agreeing on the principles. The example of the ski mask is funny to me - I was born and raised in a small European country where it's more or less forbidden to wear one in public, because only criminals need them to hide their identity.

What I really want to see is better research and a discussion based on facts, not feelings. Not only into what causes crime, but also - as they promise, but never do in pretty much any bill - the effect of a piece of legislation (the AWB for example).

The ultimate measure of these acts should be to reduce gun violence, but I have a hunch (based on what limited reading I've done of Kleck's work and other gun violence research) that any measure including taxation - unless it heavily infringes on the 2nd - will only defray some of the associated costs at best. That's not good enough for me in a case where it pertains to a right instead of a privilege.
4.9.2009 3:59pm
Clayton E. Cramer (mail) (www):

In 2007, there were 55 officers murdered on the job by firearms.

In 2007. there were 10086 total firearms murders.
And amazingly enough, this enormous disparity happens in spite of police officers having to carry those incredibly dangerous weapons with them!
4.9.2009 5:19pm
Clayton E. Cramer (mail) (www):

Is there actually a reason to levy a charge against a good guy with a gun for costs attributed to a bad guy with a gun?
Yes, the same reason that we should assess special taxes on all males because rapes are disproportionately committed by men. And a special tax on all blacks because violent crimes are disproportionately committed by black people.

What? The idea isn't so attractive now?
4.9.2009 5:23pm
Clayton E. Cramer (mail) (www):

I actually had a lady in our office tell me the govt should ban "assault rifles" because they "look mean". When I showed her pictures of an AR-15 vs a Mini-14 she maintained the AR was more dangerous due to looks.
The initial California Assault Weapons Control Act didn't include the semiauto Thompson (the Tommy Gun). Most people when I showed them the guns to be banned--and not banned--started laughing at the stupidity of the legislature.
4.9.2009 5:27pm
seadrive:

What I really want to see is better research and a discussion based on facts, not feelings.


As is common, the statistics of gun deaths and gun control is confounded by other factors. The crack epidemic caused a huge increase in gun deaths, and the end of the epidemic saw a big drop. The ground is fertile for both sides to frame the question to get a favorable answer.

The underlying problem in the evaluation of statistics is always "as compared to what?" Just the other day, I saw a spokesman for the Brady Campaign saying that the current rate of gun deaths would not be tolerated as a rate for deaths from salmonella in peanut butter. He did not point out how much less it is than the rate of deaths due to automobiles. Ironically, a DUI (with no gun involvement) can (depending on jurisdiction) cause a permanent loss of gun rights, but only a temporary loss of the driving privilege.

I understand that the recent boom in kayaking has caused paddle boats to be implicated in a high percentage of boating deaths, but no one is lobbying for national kayak registration that I know of.
4.9.2009 6:56pm
PersonFromPorlock:
Say! Shouldn't there be a special tax on legislators to cover the costs that corrupt ones inflict on society?
4.9.2009 6:59pm
Larrya (mail) (www):
Firearms are inherently dangerous. Suppose the $600 charge is not for "tax" but for a mandatory insurance that absolves the owner of social costs (but not criminal liabilities or actual negligence) associated with potential negative effects of the use of an inherently dangerous item. We have mandatory insurance on cars--with no regard to the means of the owner--why not on firearms?
Back when I worked in the insurance industry I looked up the statistics on the "social costs" involved. It turns out that common homeowner's insurance covers what you describe. The liabilities you worry about are so insignificant that the paperwork involved in writing separate policies or riders for clients who own firearms would cost more than the coverage.

But the principle is interesting. If studies showed that gun owners actually reduced "social costs" by deterring crime, would we get a rebate?
Although this may be a controversial point, it is not so far-fetched to classify guns ownership as inherently dangerous.
But we'd have to do the same with five-gallon buckets, ladders, swimming pools, and a lot of other things that take more lives than legally-owned firearms.
Wouldn't a better analogy be the fact that I pay a tax funding police in order to compensate for the criminally bad drivers out there?
But you pay that as a taxpayer. The tax doesn't depend on you're being a driver. Besides, I could make a better argument that non gun owners should pay an extra tax, since they rely more heavily on police protection.

BTW, there's already a federal 10 or 11% excise tax on all firearms, ammunition, bows, arrows, and fishing rods and reels. It funds wildlife programs and shooting ranges, which are a lot more legitimate as user fees. See Pittman-Robertson Act.
Let me ask this question: Is the purpose of gun regulation to facilitate gun ownership, or is the purpose of gun control to protect the general public?
the purpose of gun control is to protect the general public. It says so on the label. The problem is that gun control prevents violence about as well as laetrile treats cancer.
4.10.2009 5:46am

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