[Note: This post elaborates an idea Joe Miller and I explored on an episode of Oral Argument. That discussion is in places more detailed and in places less.]
This American carnage, as the president put it on the occasion of his inauguration, can indeed stop. While it is unrealistic in a country of over 300 million to believe we can eliminate all interpersonal violence, it is equally absurd to insist that mass shootings and thousands of gun suicides are as inseparable from our landscape as oxygen. To shout down even the possibility of change is not only ignorant and unimaginative, it’s callous.
To say that there is no solution to this new and deadly parade of spectacular violence is a grievous insult to all those who struggled before us, and against much greater odds, for justice and for survival. Our founders, our revolutionaries, our heroes, from Washington to Harriet Tubman to Lincoln to MLK, of course they didn’t end forever the risk of upheaval or destroy for all time all social ills. But they gave to us a fighting chance, one that is now ours to blow. Have we grown so inept and passive that the instant an actual challenge confronts us we pronounce the task politically insurmountable? Again, what a shocking insult such an attitude is to those who have come before us. We must not only try to fight evil in our time, but, more fundamentally, we must resolve to organize ourselves to do so. And we can.
Our primary problem here, as with too many other issues, is not one of human nature but of social organization. The minds and experience that could be directed to reducing gun violence are instead consumed with fending off any and all gun regulation. This dynamic has caused extensive damage not only to victims of violence but also to our body politic. I do not believe in seeking an end to politics, a perpetual bipartisanism. No, it’s important and good that we disagree with one another vehemently about things that matter. But the gun debate has become so caricatured and at the same time so stagnant that it has fostered in too many of us the insidious belief that our greatest problems are beyond our ability even to address. From it has grown a cynicism that politics cannot ever be responsive to social problems. The gun debate is a cancer that has spread to other vital issues, and it must be cured.
I propose a first step that centers directly on the political problem. It is not a suggestion of guns to ban or background checks to be performed. Before all else, we must begin rowing in the same direction, and there is a way to accomplish this critical first step: liability. Not private liability, with lawsuits, discovery, and punitive damage awards, but an unambiguously required and automatic payment by a gun manufacturer to a special fund after one of its guns causes a death. This change would not be the end of our effort to stem gun violence, but a necessary beginning that would unlock rational policymaking. A civilization cannot long exist that fails to respond deliberatively to urgent social problems. It is a damning indictment of ours and a great challenge to our existence as a great democracy that we did not respond to the mass-murder of twenty first-grade students in their classroom and six teachers and school workers. And the murders have continued. Democracy is hard work, and ours must find a way to ensure that social problems are perceived, that deliberation is had, and that efforts to solve them are implemented. The process of perceiving, considering, and responding, after all, is what distinguishes the actions of an intelligent being from the mechanics a clod of earth.
I Don’t Know Anything About Guns
Guns are the means by which almost 40,000 Americans die each year. 40,000 is a useful number to use a yardstick of risk in the United States. It’s roughly the number of people who die annually in car accidents. It’s a little less than the number of people who died from opioid overdoses in 2016. It is about the number of suicides. It’s a little more than the total of all pre- and post-natal infant deaths. It’s roughly a quarter of all deaths from all accidents. And it’s between one and two percent of all deaths. These figures are approximate, but – see here for details – 40,000 deaths marks one social problem after another.
Now if you’re a proud gun enthusiast, you and I are not going to have the same intuitions about the costs and benefits of gun ownership. The evidence is that keeping guns is, all things considered, somewhat risky. That said, we all do lots of risky things, and if the worst risks guns imposed was a heightened risk of suicide and accidental death, then maybe we could put gun ownership in the same category as smoking or motorcycle riding: things adults should be able to do if their eyes are open to the dangers.
But guns impose enormous costs that are not born entirely by gun owners and not at all by gun manufacturers. These costs are measured in medical bills, death, and grief. The one thing everyone can agree on is that this level of suffering is horrible and that it would be good to eliminate it.
I want to compromise. You see, I care nothing for guns. I know little about them other than what I’ve read and what I’ve learned watching PUBG matches on Twitch. I’m not a gun guy. If it were up to me and if I had no humility about the importance others might attach to guns, I’d propose we ban them entirely and that we confiscate the existing stock without compensation. Sounds extreme, right? Well, I don’t believe they are even close to worth their cost, that they make safety-obsessed owners much less safe, and that the fantasies they engender of fending off either bad guys or (even more ludicrously) a tyrannical government are unhealthy.
But I do understand that guns have important and unknown-to-me meanings for others and that more carful analysis of the “how maintained” and “what kinds of guns” questions could, possibly, point toward an acceptable regime of private gun ownership. How do we get there?
Automatic Liability to a Fund
If you suggest an assault weapon ban, gun people, in my experience, immediately assail the idea as ineffective and reflecting profound ignorance of what guns are and how they work. Whatever. I’ll concede that I just don’t know much about guns. I’m not the right person to decide whether and how guns and gun sales could be safer. But the beauty of economics and thoughtful politics is that I don’t have to know “the one right answer” to optimal gun production and distribution to make a boring suggestion that will help us all:
If gun manufacturers had to pay the costs of gun deaths, then a number of good things would begin to happen.
I propose that gun manufacturers be required to pay $6 million for a death caused by a firearm they manufacture. The manufacturer would be liable not to a private party but to a federal fund, which could be called the Firearm Safety Fund and be administered by the Centers for Disease Control and Prevention. Liability would be automatic and avoided only when the death is the result of a legitimate use of force by a law enforcement officer or an exercise of justifiable self defense. Such defenses to payment could be raised in an administrative hearing before the CDC (and appealed from there as any other administrative adjudication). There would be no private plaintiffs’ attorneys, no fights over punitive or compensatory damages or comparative negligence or discovery or any of the usual but often necessary sources of inefficiency in litigation. This would be closer to a death tax than a lawsuit.
The details, of course, matter. For example, I would make the findings of responsible medical examiners concerning which gun caused a death (and whether it did) conclusive for these purposes, and it would be a federal offense for any agent of a firearms manufacturer to attempt to influence such an examiner. I’d also probably discount the payment owed for gun suicides - not because such lives are less valuable but to require payment only for the excess number of successful suicides caused by guns – i.e., the number of suicides over and above what that number would be if only alternative methods of suicide were available. See, e.g., chapter two of Liza Gold, Gun Violence and Mental Illness. I’d perhaps require a bi- or triennial determination by the CDC of this figure through the normal informal rulemaking process.
This is not intended to be a perfect Pigouvian tax. The amount of the payment I suggest would be significantly less, in aggregate, than the cost of actual harms flowing from the use of guns. It would only require payment for deaths and not for injuries, which number more than twice the number of deaths. And the $6 million figure is less than what most agencies identify as the monetary value of a human life for cost-benefit analysis purposes. But perfect internalization of externalities, a theoretically dubious propositions for reasons well trodden by Ronald Coase, is not the point.
The Ordinary Benefits
First, the obvious: at least some of the costs of gun violence, accidents, and excess suicides would be spread over all gun owners rather than born primarily by victims and secondarily by society at large. That seems both fair and an appealing political argument in favor of shifting costs. Why should everyone and especially victims pay for the downsides of gun ownership? Why should we all subsidize gun manufacturers who stand alone in reaping all the profits of their activities but not a very substantial portion of their costs? Higher retail gun prices would result from the automatic payment regime, and these higher prices would reduce the rate of gun ownership, but rationally so. Of course, if you can manufacture a safer gun, it will incur less liability and so can be made cheaper. People will therefore be more likely to purchase safer guns.
All this is a traditional sort of argument for strict liability. Put the costs of injury on the entity that could most cheaply avoid or minimize them and you wind up with a system that more optimally balances costs and benefits. And so, on this ground, we might be inclined to repeal the Protection of Lawful Commerce in Arms Act, which, with some exceptions, shields gun manufacturers and dealers from liability for injuries arising from crimes committed with their products. I do not favor that and believe that the automatic CDC payment should be the exclusive form of liability. That’s because I think it would be a cleaner and more certain way to regularize the expectation of manufacturer cost.
I’m not suggesting this novel form of liability in order to achieve the most “economically efficient number of gun deaths.” There are many possible solutions to reducing gun violence, and we have eschewed all of them. I’d settle for less than optimal. No, our problem is getting anything done at all when there are powerful incentives to do nothing. And I want the manufacturer to think differently about their social role.
The payment regime’s most important effect, and one that I hope would have positive spillover effects on other political issues, would be to make gun manufacturers a key and willing participant in stemming gun violence. When you are the one who will pay the cost of a bad outcome, you become directly concerned with preventing that outcome. Liability gives us a chance to flip the script and to get those who know these weapons best thinking hard about how to stop their being used to kill in large numbers.
Yes, manufacturers would seek to manufacture safer guns and to advertise and market in ways that minimize the risk of death. But they would also be far more likely to advocate for state and federal legal restrictions on gun ownership and sales, background checks, enforcement, and research. For the riskiest guns, manufacturers might support or even engage in gun buybacks.
Because I am not sure what the most effective mix of regulation and prohibition might be, I want to align incentives so that those who do have expertise reveal it. To be clear, we shouldn’t tax gun deaths because we think that the amount of the tax is what life is worth and that if you can pay then death is fine, but, rather, because it would alter the organization of social forces in such a way that we begin to strive for the same goal, even if we continue to disagree about means. By putting some of the costs on guns back on their manufacturers, we might even wind up with a new NRA that is committed to researching and identifying effective regulations. After all, manufacturer lobbies lobby for manufactures.
“What about the Second Amendment?” Read Part III of Scalia’s opinion in District of Columbia v. Heller. For example: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He also strongly suggests that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”
“Why do you equate the lives of children with money?” I do not. The purpose of a payment requirement is not to suggest that a manufacturer’s moral duty to the killed and maimed has been discharged with a financial transaction. Personally, I cannot imagine making a living manufacturing assault rifles. But people are different, and we cannot ignore that people do in fact make these weapons and do in fact pay nothing for the deaths that result from their work. I believe that internalizing these costs would force a change to the way they understand their work, breaking free of the ideologically pure and oppositional politics that have, in my view, corrupted their relationship to the community. Forcing a change in conceiving of one’s business from “not my concern” to “my job is making sure that never happens” is the goal. And while forcing payment will in the first instance change incentives, it just might, in the second instance, change minds and attitudes.
“But with this number of deaths, even discounting for suicide, the industry might be on the hook for over $150 billion!?!?” The costs of gun violence are shockingly high aren’t they.
“This is a ridiculous suggestion because gun manufacturers won’t be able to pay these astronomical costs and stay in business.” Drop absolutely everything else you are doing, find a quiet place, and think very, very hard about what you just said.