Writing in the Los Angeles Times, Jeffrey Fagan, professor of law and public health at Columbia University, and Stephen D. Sugarman, a professor of law at UC Berkeley, propose in the wake of the Supreme Court decision in Heller, that gun manufacturers should be subject to what they call “performance-based regulation.” According to Fagan and Sugarman, gun manufacturers should be forced “to deal with the negative effects of their products in ways that promote the public good.”
They claim that this should occur because 12,000 Americans will be shot to death by firearms this year. They don’t cite the source of that impressive-sounding figure. We must assume they are referring to homicides only, because a far greater number — roughly 17,000 or so — will die in gun-related suicides this year. This is based upon CDC statistics as cited by the Illinois Council Against Handgun Violence, which noted that 55% of gun-related deaths in 2005 (the most recent year for which statistics were available) were suicides, up from 52% in 2004.
Why would they ignore the cause of the majority of firearm deaths in this country to focus on the second-leading cause? This rather bizarre focus is purposeful but required. Suicides are intensely personal acts which cannot be blamed on other individuals, nor on the implement used to cause death. Fagan and Sugarman would rather not deal with the complexities of admitting that these suicides expose their scheme as being predicated upon blaming inanimate objects for the willful actions of human beings.
Firearms manufacturers are obsessed with two design goals: safety and reliability.
Firearms must be reliable 100% of the time. If a weapon is unreliable and fails when it is needed most it could cost the weapon holder — a police officer with a pistol or a soldier with his rifle — his life.
As for safety concerns, few devices are designed with as much security in mind as firearms. Firearms have multiple safety devices designed to prevent an accidental discharge, from frame- or slide-mounted thumb safeties, to grip safeties, to half-cock mechanisms. Most modern gun designs include these features or others such as firing pin safeties or even trigger-mounted safeties. Guns can also have cross-bolt safeties, magazine disconnects, chamber-loaded indicators, cocking indicators, or even keyed internal locks. Those are just the various safety features that can be found on the weapons themselves. It is no exaggeration to note that modern firearms can be dropped, kicked, thrown, or run over with a vehicle without going off. They only go “bang” when the trigger is pulled.
A specific example of these kinds of features is found on the Smith & Wesson M&P series of semi-automatics, which possess passive safeties that prevent the gun from firing if dropped or sharply struck, a disconnect device that requires the trigger to be fully depressed to fire, and the availability of a keyed internal lock that locks the weapon and/or a magazine disconnect which renders it unable to fire without a magazine in place, even if a bullet is in the chamber and the trigger is pulled. Many other firearms have similar internal safety features as part of the gun itself.
External safety devices — from trigger locks to cable locks and gun safes — are also commonly available and suggested by the industry. Firearms education programs are widespread. Gun safety courses are available in most communities in all 50 states, and there is even a prepared classroom curriculum designed to keep children away from firearms, though I’d hasten to add that the program has often been rejected by educators such as Fagan and Sugarman, precisely because it was developed by a gun organization — the National Rifle Association.
Various other “smart gun” technologies have been tried or are in development, from weapons that require users to wear a special ring or punch in code, to futuristic plans to develop firearms that will only work for those with a specific biological signature. All of these technologies to date are still unreliable, and because unreliability is dangerous, they are not commonly in use. When a safety technology becomes reliable, history suggests that gun manufacturers will adopt it readily.
Precisely how can manufacturers make firearms safer than they are currently? The authors offer no solutions, but Fagan and Sugarman aren’t actually interested in increasing product safety.
As a point of fact, they would hold manufacturers of products designed with multiple safety features at fault for not only the criminal misuse of that product, but for the legal use of the products as well. Nowhere in their proposal do they differentiate between an illegal homicide committed by a felon and a justifiable homicide committed by police officers or private citizens defending their lives or the lives of others. In their proposal, all homicides account against the total. They obsess over figures — not people.
To get an idea of how preposterous Fagan and Sugarman’s scheme is, compare it to another legal product that has been used illegally in well-publicized current events. City vehicles in Orlando, Florida were defaced with anti-Obama graffiti over the weekend. Shouldn’t we also apply “performance-based regulation” to the paint companies because of out-of-control graffiti?
Sherwin-Williams should have the responsibility of designing devices that restricts the use of a matte latex to its original purchaser, and Behr should render the color mauve nonfunctional if stolen or given to a friend who hasn’t had a background check. Perhaps Krylon should design spray cans that recognize pending illegal intent — thoughtcrime — and vents the propellant in cans of those individuals the paint suspects to be prone to “tagging” instead of refinishing. No runs, no drips, no errors… and no individual freedom.
It is the attack on personal freedom that is at the core of Fagan and Sugarman’s proposal. From taking away your rights to defend your life to regulating how much salt that you can have in your food, Fagan and Sugarman have determined that they know what kind of life you should have. Given latitude, they will regulate all your choices, trading away your responsibilities, desires, and individuality for an inert, bland life that is utterly safe — and one many might feel is perhaps no life at all.
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