Sunday, December 30, 2012

The NRA's Influence and the Virtues of Finality

Senator Schumer's recent opinion piece in the Washington Post is a fine piece of bridge-building in advance of the now-inevitable introduction of some form of gun control legislation next year, but it's also remarkably insightful. I want to comment on the core of his argument: that liberals should stop worrying and learn to love Heller.

This argument rests upon the conventional Democratic wisdom that the NRA's outsized influence on elected officials is corrosive to a productive debate about firearms. That's no surprise, and it's probably correct. The surprising part is Senator Schumer's claim that Heller weakened the NRA's influence by taking the threat of complete bans off the table.

This insight is not unique to Schumer, but to my knowledge he is the only national politician to espouse the benefits of Heller for gun regulation.  In its 2008 decision the Court found an individual right to keep arms for lawful purposes and struck down the District of Columbia's outright ban on handgun possession in the home. Most liberal politicians, judges, commentators, and media either excoriated the opinion or downplayed its significance. A recent decision applying Heller's reasoning outside the home was met with anger and denial. To much of the Left, the opinion is illegitimate and should be confined to its facts.

Senator Schumer is correct that Heller hurts the NRA, and I applaud his courage in expressing this nuanced opinion. To understand why Heller is good for what he characterizes as a "middle ground" on gun rights, it's helpful to imagine any given contested question of gun control as containing a spectrum of possible outcomes. The figure below represents the range of outcomes on hypothetical handgun legislation prior to Heller:
Because a ban is possible in this scheme, and indeed many of those currently involved in the debate over gun control have expressed their desire to impose such bans in the past, rational handgun owners who have little control over legislative outcomes should always push for No Law instead of the theoretically Ideal Restriction. This is true even if they personally prefer the Ideal Restriction and even if No Law is socially very costly. Why? It's too risky to do otherwise. The individual cost of losing one round of this legislative battle is enormous if it results in a Ban. Bans don't get rolled back, and because they result in a loss of property, they generally can't be reversed. Moreover, even little "wins" for gun control appear dangerous if you have no control over outcomes, and may actually be dangerous if they forge a voting bloc for a subsequent ban.

This is where the NRA comes in. Rational handgun owners who want to push for No Law face steep collective action and agency problems: they don't know how to organize or get what they want from legislators. In return for a modest membership fee, the NRA takes care of it for them. It opposes virtually all new gun control legislation and it keeps score, mounting well-financed, organized, and extremely effective campaigns to oust incumbent legislators at the state and local level. It keeps track so rational handgun owners don't have to. There's even a monthly magazine.

This set of problems, and the NRA "solution" to them, is the source of a fundamental schism among U.S. gun owners: most support socially efficient regulation of firearms, but many also belong to the NRA. This isn't because they are troglodytes or sociopaths, it's because they are rational actors trying to avoid a catastrophic outcome in an area they care deeply about and they have no other options. Now compare the range of outcomes after Heller took a handgun ban off the table:
Because a ban is not possible in this scheme, rational handgun owners should contest the nature of the restriction, pushing for Ideal Restriction or Light Restriction, instead of No Law, because efficient regulations directly benefit the handgun owner at very little cost (ex: instant background checks for handgun purchases). A rational handgun owner with a constitutional right still faces collective action and agency problems, but with no chance of a catastrophic outcome, many would simply free-ride on the efforts of others, while still more would actively oppose efforts to push for No Law. While the NRA doesn't disappear in this model, it loses not just its power, but its relevance. The NRA knows this: that's why they actively tried to stop Heller, and even asked Congress to lift the D.C. gun ban during its pendency to render the case moot.

So: Senator Schumer is right. Bestowing a property right on private handgun ownership resolves a problem for handgun owners that otherwise could only be addressed by the advocacy of a group like the NRA or the SAF. But as he also recognizes, it's not that simple. For one thing, many on the Left show no indication that they are willing to "move on and work within the ruling." Many still "harbor[] ideas of a future liberal majority on the court someday overturning Heller." And although Senator Schumer urges states and municipalities to "abide by the spirit of the ruling, not just its letter, and not seek to impose undue burdens upon law-abiding citizens," many are doing just that--indeed, his home state of New York is among the worst offenders.

Because Heller left so much undecided, and because states and cities construe the Second Amendment's protections so differently, Senator Schumer's vision of a productive conversation about gun control is probably premature. I would love to sentence the NRA to the junkbin of history, but it remains relevant today because citizens who want to carry firearms for self-defense or own AR-15 rifles for lawful purposes have no legal right to do so. Or to be more precise, their rights have not been finally adjudicated by the United States Supreme Court. The carry question remains controversial, and the stakes are just as high as in Heller.  The Second Amendment also may or may not protect the right to own an AR-15 or other non-handgun firearms. The AR-15 question, though controlled by Heller, has been the subject of an enormous amount of chest-beating, virtually all of it focused on the politics and the equities, and none of it on the legal question presented. The truth is, nobody knows.

Until these two questions get an up or down vote in the Supreme Court, I believe the NRA will remain not just relevant but central to the debate, even if only behind the scenes twisting arms. Because the controversy over the next pieces of federal and state gun control will play out in the unknown hinterlands of Heller, the NRA remains the only thing standing between gun owners and a disastrous legislative outcome. Recognizing the stakes rational gun owners face, as Senator Schumer does in his piece, is perhaps the only other way to ensure the looming debate is civil and productive.

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