Regulating Guns Through Litigation
Peter H. Schuck
Yale University - Law School
SUING THE FIREARMS INDUSTRY, T. Lytton, ed., University of Michigan Press, 2004
In this chapter of "Suing the Firearms Industry" (T. Lytton, ed., U. of Michigan Press, 2004), I conduct a comparative institutional analysis of the regulatory competence of courts and legislatures/agencies in reducing the risks of gun-related violence. Needless to say, the gun control movement is reluctant to forswear litigation about gun risks in favor of legislative and administrative regulation. After all, they have already tried and failed in their political pursuit of the latter. Nor is it necessarily true that regulation and litigation are mutually exclusive. In this paper, I take the perspective of an Olympian designer of an optimal regime for controlling gun-related risks, one who compares the litigation option as it now exists to the regulatory option that would become viable were the gun control movement to achieve greater political success in the future.
After discussing the logic of institutional comparison, I propose six analytic criteria for the comparison, each of which pertains to the institutions' propensity to develop and implement sound gun control policies. In order for an institution to make and implement policy effectively, it must (1) generate the technocratic information needed for gun-related policymaking; (2) generate the political information needed to frame an acceptable policy; (3) mobilize the array of different policy instruments necessary to establish and implement the policy; (4) promote social learning (short feedback loops) and flexible adaptation to new conditions; (5) generate predictable rules; and (6) secure and sustain the policy's legitimacy.
After elaborating and applying these criteria to the problem of gun-related violence, the analysis finds that risk regulators are far better equipped than judges to address and manage the problem. In a brief conclusion, I argue that existing and proposed laws to keep guns out of the hands of those who should not have them - a "Brady-plus" approach - are unlikely to succeed. A more promising approach is technological in nature - making guns safer (although relatively few gun-related injuries are inflicted on or by careless, innocent users) and more easily traceable to those who fire them. An even more promising approach is the use of surveillance technology to enable the police to detect guns in public spaces and at safe distances while obviating the need for making dangerous, discriminatory, and intrusive stop-and-frisks of individuals without probable cause for suspicion. This would vastly increase the ability of police officers safely and effectively to disarm people who have no legal right to carry weapons. If it is to be deployed, however, it must safeguard individual privacy rights under the Fourth Amendment. My guess (and it is only a guess) is that the vast majority of Americans will view the use of a reliable surveillance technology limited to concealed guns in public spaces and subject to strict legal controls against unwarranted profiling and intrusion as constituting a reasonable search, one whose crime- and violence-reduction benefits would more than justify the small invasion of privacy entailed.
Number of Pages in PDF File: 38
Date posted: December 9, 2003
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