Asymmetrical Information - Megan McArdle

You Can't Save Gun Control With Word Games

Bans on ammunition sound clever, but probably not quite clever enough for the Supreme Court

12.19.12 2:48 PM ET

In two rulings, one in 2008 and the other in 2010, the Supreme Court ruled that the Second Amendment protects an individual right to bear arms.  Which means it's now pretty much impossible to ban guns outright--the policy, as I wrote on Monday, that would be most likely to prevent school shootings.  So naturally, gun control advocates who are familiar with the law have started thinking about close substitutes.  

One obvious possibility that some have settled on is a ban on semi-automatics, which automatically reload from a magazine for faster shooting.  (Though not, as some seem to be picturing, machine gun fast; it still takes a little while to aim and shoot, particularly if you are not on a nice, orderly shooting range).  This would force people to use only bolt-action rifles, pistols, and shotguns.  

This wouldn't even be as effective you might think, in a world of speedloaders.  But even if it were, the prospect of such a ban surviving Supreme Court scrutiny seem fairly dim, given that this describes most of the handguns in private hands.   In the 2008 Heller case, they ruled that an entire class of weapons in common use for self defense (handguns), could not be banned: "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid." 

Others are suggesting a de-facto ban, accomplished either through a huge tax, or a ban on ammunition.  Oh, I've also seen calls to limit the amount of ammunition people can buy, but I don't think those people have thought this through.  For starters, the number of bullets used by a typical rampage shooter is about what a target shooter or hunter might go through in an afternoon or two of range practice.  And most gun homicides are not rampage shootings; they have one or two victims, and a correspondingly small number of cartridges expended.  Moreover, even a very strict per-purchase limit would permit people to accumulate ammunition over time.  

No, the people who want to tax guns at 17,000%, or ban ammunition, or make cartridges cost $2,000 apiece, are the only ones hinting at something that might make a real dent in America's unusually high rate of gun homicide. Except for one thing: you can't do an end-run around an enumerated right with some sort of semantic game.  Chief Justice John Roberts is not Rumplestiltskin; he is not bound by the universe to disappear if you can only find the correct secret word.  

You cannot accomplish back-door censorship by taxing at 100% all profits of any news corporation named after a "carnivorous mammal of the dog family with a pointed muzzle and bushy tail, proverbial for its cunning." You cannot curtail the right to protest by requiring instant background checks and a 90-day waiting period on anyone who wants to assemble with 500 of their friends in a public area.  Nor can you restrict the supply of ink used to print Korans.  If you pass a law like that, the Supreme Court will say "nice try, guys" and void all the painstakingly constructed verbal origami that was supposed to make civil liberties infringement look like an innocent exercise of the taxing power.  

Like any libertarian, I've had the pleasure of interacting from time to time with the tax nuts, the folks who think that they don't have to pay taxes because they've found some sort of escape clause in the constitution.  That the Supreme Court has ruled against all of their arguments except the most frivolous and bizarre ones does not seem to have made much impression; they keep insisting that the tax system is voluntary, or that the first amendment means they can't be forced to write information on their tax return.  

I've spent a fair amount of time diving down the rabbit hole with these lunatics, and the thing is, some of their arguments are even kind of plausible . . . at least, after you've spent four hours of arguing about it.  What they won't accept is that it doesn't matter: even if you're right, you lose.  The Supreme Court is not going to completely defund the government by arguing that it now operates on the same financial basis as the PTA bake sale.  You can argue until you--and everyone else--are blue in the face, and still, if you don't pay your taxes, the IRS will seize your bank account, and then the police will come and take you away.  

In the Heller ruling that struck down DC's handgun ban, the Court explicitly ruled out laws that made the weapon defacto impossible to use for self-defense.  "We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times.  This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." I am of course not a lawyer, but I find it improbable that the same Supreme Court which struck down a requirement to keep long guns disassembled and trigger-locked is going to go along with your clever quasi-ban on the cartridges necessary to fire them.