Scholarship Highlight: “Libertarian Gun Control”

Most legal scholarship and public debate about gun rights and regulation focuses on whether and how gun laws can prevent homicide—understandably so, given the astounding number of gun homicides in the United States every year. But as those closer to the debate are well aware, the majority of gun deaths are by suicide. And far less discussion has been devoted to that uncomfortable and seemingly-intractable topic.

All of which means that Ian Ayres and Fred Vars’ “Libertarian Gun Control,” just published in the University of Pennsylvania Law Review, is an especially welcome addition to the literature. In it, they describe a system by which people could choose to waive their right to keep and bear arms—and to credibly communicate that decision to others, thereby setting up something of an associational marketplace. Such a system (distinct from the waiver that Dru Stevenson has discussed on this blog) could help prevent both homicides and suicides, all based on individual choice rather than traditional regulation.

From the abstract:

Individuals should have the option to waive their Second Amendment rights to keep and bear arms by adding their names to the National Instant Criminal Background Check System. Every year, over 20,000 Americans kill themselves with firearms. We present a low-cost and constitutional system that could, in just a few years, easily save thousands of lives as people with mental health or other recurring problems, during moments of clarity, rationally opt to restrain their future selves. Moreover, our system, which includes the option of providing email notifications of an individual’s waiver to third parties, can promote a marketplace of informed association. Just as Heller emphasizes the Second Amendment right to keep and bear arms as furthering the “core” individual right to self-defense, credibly communicated waiver of Second Amendment rights can facilitate the self-defense choices of individuals to limit association with those who may possess weapons. Forcing Second Amendment interests to contend with First Amendment associational interests can thus enhance the joint liberty of those seeking to best defend themselves.

Admittedly, I’m sympathetic to this general frame, having argued that the Second Amendment itself encompasses a right not to keep or bear arms. But Ayres and Vars have a broader take, both as a matter of theory and a matter of practice. As to the former, they note the ways in which constitutional rights and interests appear on both sides of the ledger when it comes to gun possession. This is manifested, for example, in the degree to which one person’s right to keep and bear arms can come into tension with another person’s right not to associate with gun-carriers.

As a practical matter, the immediate response might be: “No one would ever sign up for a ‘No Guns’ list!” But the Ayres/Vars proposal anticipates this objection, and includes the results of an interesting survey suggesting that roughly a third of the general population—and an even higher proportion of those previously diagnosed with a mental health concern—would be willing to do so. And this makes sense, logically, if one accepts that those battling a mental health condition can be fully aware of the risks they face and looking for ways to limit them: what Vars has elsewhere called “self-defense against suicide.”

In short, the article is well worth a read.