Imagining Gun Control in America: Understanding the Remainder Problem Article and Essay

than real-people for whom defiance might be the norm. Another category of distrust is harbored by people who think they have not gotten a fair shake from local, state, or national governments. Robert Cottrol and Raymond Diamond's examination of the Second Amendment from a minority perspective reflects some of this distrust.59 More recently, the complaints of some Katrina survivors, and members of urban communities in the wake of police shootings of unarmed men, suggest that some governments have earned not just distrust, but also contempt. 0 People pushed to this 54. See SMALL ARMs SURvEY 2007, supra note 21, at 61. 55. See Jacques Billeaud, Some Governors Worry Plan Could StretchGuard Too Thin, DALLAS MORNING NEWS, May 16, 2006 (reporting thata group of governors expressed worry about Guard availability for domestic emergencies), available at http://www.dallasnews.com /sharedcontentAPStories/stories/D8HKJU181.html. 56. The competing impulse is that on the rare occasions where need for the weapon arises, the perceived cost of not having it is extremely high. 57. Shaila Dewan, New Orleans's New Setback: Fed-Up Residents Giving Up, N.Y. TIMES, Feb. 16, 2007, at Al. 58. Brownsville Borough's financial crisis reached such proportions that it recently had to lay off police and all but one borough employee. Cindi Lash, Brownsville's Last Stand: Struggling Fayette County Town Furloughs Its Entire Work Force, Except for Its Part-time Municipal Manager, PITT. POST-GAZETTE, Dec. 17, 2006, at Bi. 59. Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309 (1991). 60. Whether one is inclined toward a collective or an individual solution to the problem is influenced by factors deeper and more complicated than I can [Vol. 43 IMAGINING GUN CONTROL IN AMERICA view will not suddenly come to believe in benevolent government to such a degree that they will hand over the weapons they believe (accurately or not) keep them safe. Finally, the evident collective action problem presented by the supply-side model should fuel defiance of confiscation. Effective supply restrictions require the selfless cooperation of many tens of millions of self-interested citizens and stellar performance by layers of government employees. The risk seems real that many Americans will not cooperate, starting with the truly bad among us. Self-help, on the other hand, requires a gun, competency with it, good judgment, and some amount of luck-variables that seem more subject to personal control. People who reason this way should selfishly but rationally decide to resist the collective experiment. I have tried here to illustrate the kind of thinking that might cause people to resist serious moves toward the supply-side ideal. A real test, though, requires actual legislation and assessment of responses to it. Aggressive experiments with supply-side legislation and gun registration supply this test. B. Defiance in Practice Data tracking defiance of registration and prohibition internationally, and similar domestic experiments, provide a basis for projecting how people will react to aggressive supply-side rules. The most notable domestic experiment with prohibition was in Washington, D.C. Until the challenge culminating in Heller, the District of Columbia banned handguns and required long guns to be kept disassembled and locked away from their ammunition.61 Overall, this was the most aggressive set of supply restrictions in the country.62 There is no dispute that handgun prohibition failed to stop gun crime in D.C.6" The District has been perennially at or 64 close to the top of the list for gun crime in American jurisdictions. evaluate. What I can say is that the choice is not entirely logical. Part of it certainly is cultural. People who are more comfortable with collective solutions to life's challenges might naturally be less worried about turning over individual security to a collective fix. The individualist response seems grounded in a distrust of collective action or a perception that the collective fix in this case is simply impractical. Part of this may be projection an analysis something like, "I would not turn mine in, so I must believe that many others would not turn in theirs either and the collective fix will fail in implementation." 61. D.C. CODE ANN. §§ 7-2502.02, -2507.02 (LexisNexis 2001). 62. District of Columbia v. Heller, 128 S. Ct. 2783, 2818 (2008). 63. See Jacobs & Potter, supra note 5, at 88 n.29 (citation omitted) (noting that D.C. leads the nation in percentage of "handgun related homicides"). 64. Gun rights activists say it confirms the idea that demand will find 2008] WAKE FOREST LAW REVIEW The efforts of other restrictive U.S. jurisdictions tell more about the defiance impulse and the character of the remainder problem. New York City imposes stringent requirements on purchase and ownership of handguns. Still, handgun crime persists. New York City Mayor Michael Bloomberg's straw purchase "stings" confirm that tough municipal laws alone are not enough.65 The source of some of the contraband guns in Bloomberg's sights come from 66 scofflaw dealers from other states. But this is literally only a basketful of guns. The number of illegal guns in New York City is in the range of two million.67 This is in a region where the overall rate of gun ownership is lower than average and gun culture is less robust.6' The roughly two million guns owned by the residents of New York City are from sources much more disparate than rogue dealers.69 Some of these guns are new, but an inventory this large suggests that many New Yorkers have had guns, have been acquiring guns, and deciding to keep guns illegally for a long time. This type of defiance should be stronger in most other parts of the supply. Supporters of strict gun control argue that the D.C. approach is a failure because national policy has failed to keep pace. Guns reach D.C., goes the argument, from less stringent jurisdictions. This suggests that cheating is a significant problem for supply-side restrictions. But is it inevitable that cheating will overwhelm stringent controls? 65. See, e.g., Posting of Ray Rivera to CityRoom, http://cityroom.blogs .nytimes.com/2008/02/15/bloomberg-on-illegal-guns-and-rampages (Feb. 15, 2008, 12:10 EST). 66. Id. 67. It is estimated that as many as two million illegal guns were in circulation in New York City in 1993. Ninety percent of the guns seized in New York City that year were originally purchased in other states. There are no precise measurements of what proportion of New York's total contraband inventory are recent imports versus classic remainders. See U.S. DEP'T OF JUSTICE, OFFICE OF JUVENILE JUSTICE & DELINQUENCY PROGRAMS, GETTING GUNs OFF THE STREETS (1994-2008), http://ojjdp.ncjrs.org/pubs/gun-violence /profilel9.html (last visited Nov. 19, 2008). 68. Gun ownership varies significantly in the United States with the Northeast lagging behind the Southeast and the West. See Mark S. Kaplan & Olga Geling, Firearm Suicides and Homicides in the United States: Regional Variations and Patterns of Gun Ownership, 46 Soc. SCI. MED. 1227, 1232 (1998). In many regions of the country, there are multiple retail outlets for firearms ranging from Wal-Mart, to sporting goods chains, to mom-and-pop gun shops. By contrast, it is nearly impossible to find a retail gun seller in New York City. 69. The roughly two million illegal guns in New York City have been there for some time. Some will be pure black-market guns. Some might have been owned for decades. Some will have come into the city as the property of people who acquired them legally in other jurisdictions and then moved to New York where, either knowingly or not, they are breaking the law by possessing the