Epilogue: Is there an issue here?

One striking fact about this fascinating discussion of gun control is the extent to which the various sides of the discussion agree, or at least fail to disagree. Samuel Wheeler and Lance Stell argue against banning guns, while Hugh LaFollette informs us that he is not really advocating a ban, but only the far more moderate measure of strict liability: that is, he recommends tort liability for gun owners, regardless of intent or negligence, for damage done by their guns. Stell and Wheeler hold that gun ownership is a right, but Cynthia Stark informs us that the idea that such ownership is a right is quite compatible with LaFollette's basic argument. Indeed, I should think it would be easy to flesh out that argument in such a way that it would require us to recognize such a right. This suggests three questions almost immediately: (1) Is there a major disagreement on matters of policy here? (2) If there is, is it based on deeper disagreements on matters of principle? (3) If it does, how deep does this disagreement go? What I would like to suggest is that we are in fact contemplating a very considerable disagreement on policy, and that it rests on differences of principle. Further, these differences, both of policy and principle, are very large indeed. To begin with the first point, I would like to suggest that LaFollette's policy proposal is not as moderate as it appears, that it differs much more, and more deeply, than might at first appear to be the case, both from the alternative represented by Weaver and Stell and from the actual legal and political status quo. The appearance of moderation stems, as I have already suggested, from the fact that a strict liability rule seems intuitively to fall far short of a ban. The difference between them is at least as large as the difference between the criminal law, which punishes actions thought to be wrong, and tort law, which transfers the cost of an action from the victim of an action to the perpetrator. A tort rule merely increases the costs of the act to the one who does it. However, even in this respect these two approaches are not as different as they might appear. Threats of fines or prison terms for gun ownership also increase the cost of the act to which they are attached, and the threat of liability judgments would to some extent have the same effect on the rate at which the thing is done: it would make gun ownership less common. Indeed, legally imposed costs that are high enough can virtually eliminate the associated act, even if they fall short of criminal sanctions, as when the federal government virtually eliminated the Thompson machine gun in the early thirties by the simple expedient of imposing a tax of $200 per weapon. More importantly, the purely pecuniary costs imposed by a liability rule would tend to discourage gun ownership on the part of the poor, for whom the marginal value of money is higher than it is for the rich. Since the poor are more likely to live in high crime areas and consequently more likely to need handguns for self-defense, this would raise the likelihood that people who are persuaded by Wheeler's self-defense based argument would object to such a rule. More importantly, a rule of the kind that LaFollette proposes would seem to require a radical change in our system of tort law. Strict liability, as it presently exists, despite the fact that it is sometimes misleadingly called "absolute liability," is not unlimited in the manner of LaFollette's rule. (1) The strict liability that presently applies to blasting with high explosives would not, for instance, hold me liable for the actions of a group of terrorists who steal my dynamite and use it to blow up a building full of innocent people. Yet LaFollette suggests that I should be held liable in analogous circumstances if the item stolen from me is not a stick of dynamite but a handgun. Against a claim of strict liability the law affords a number of potential defenses. …