Richard Epstein: Will Banning Guns Prevent Another Aurora?

Once more, America gropes for a magic bullet.

The macabre tragedy in Aurora, Colorado, which left at least 12 people dead and 58 seriously wounded, is a grim reminder of the helpless position in which innocent people can find themselves at the hands of a maniac. No fictional film can top the tale of James Holmes, a former graduate student in neuroscience, who was decked out in “ballistic” regalia as he entered the Century 16 movie theater shortly after midnight during a showing of “The Dark Knight Rises.” Armed with assault weapons and tear or smoke gas bombs, he first immobilized and then shot his victims without reason or remorse. To top matters off, he then booby-trapped his apartment in an apparent effort to kill or maim the police officers that were likely to search it.

It is easy to condemn Holmes’s dastardly actions. It is harder to figure out what to do now. No one should make light of the difficulties involved in trying to craft a sensible policy in response to such senseless behavior. But the sad truth is that there is precious little that any society can do to defend itself against these periodic tragedies that crop up every several years or so.

To see why, it is necessary to adopt a clinical, detached, and cautious attitude, which seems so utterly ill-suited for the occasion. That analytical approach divides the inquiry into two parts. The first asks about the sanctions that can be directed against the individual miscreant who committed the particular actions. The second asks about the institutional responses that could be enacted to nip such tragedies in the bud. Both face many pitfalls on the path toward implementation.

In dealing with individual criminals, every legal system imposes punishments on particular actions once the wrongdoer has been caught. There is a long-standing disagreement as to the proper grounds for this punishment. Some argue that it is a form of retribution for the wrong done, which society imposes to express its eternal distaste for the conduct in question. Others regard that position as a form of posturing and think that the proper justification for the use of criminal sanctions, including capital punishment, is to deter other individuals from performing similar actions.

In many ways, the debate between the two sides is overwrought, because there is a high level of operational agreement between the two sides on the proper principles for governing that punishment. The common view is to make the punishment fit the crime so that, roughly speaking, the more serious the offense, the harsher the punishment in question.

In working with the criminal justice system, the deterrence theory has, on balance, won out if only because its instrumental approach seems to offer clear guidelines for the use of public force. But the economic analysis that drives modern punishment theory also explains why any social response to mass murder is likely to fall short. The first difficulty arises in connection with the theory of proportionality, which implies that the more severe the crime is, then the more severe the punishment should be. Unfortunately, this approach cannot be strictly applied so long as death sets an upper bound on punishment. That difficulty is even more acute in places like Norway, where Anders Breivik, the self-confessed murderer of 77 people, faces a maximum sentence of 21 years in prison for a crime that everyone knows he committed. The sad truth is that there is systematic under-deterrence for the most severe crimes, which is offset only partially by the proper social willingness to criminalize attempted murder and other activities, like conspiracy and aiding and abetting, that deserve state punishment even in the absence of actual harm.

Another problem is that the assumption of rational behavior often does not hold in dealing with mass murderers. The usual model of economic behavior postulates normal—I use this word consciously—individuals who respond to incentives. The higher the price, either in cash or personal inconvenience, that they have to pay for a given activity, the less likely they are to engage in it. This basic model, which explains why people decrease their purchase of a good whose price has increased, can also explain why people are less likely to engage in criminal behavior when the legal sanctions increase.

This model may work well with hired killers and bank robbers, but it often does not hold with weird people who, on a single occasion, choose to commit mass murders. Both Holmes and Breivik are unusual in that they were captured alive after committing their atrocities. Mass killers often commit suicide after wreaking mayhem or put up fierce resistance so that law enforcement officers will kill them.

The gunman who took the lives of 32 people at Virginia Tech in 2007 committed suicide after the event; the same is true with the two students who killed 13 people and wounded over 20 more in Columbine. This often happens on a smaller scale: It is estimated that about one-third of distraught men who kill women commit suicide afterward. Neither the theory of deterrence nor the theory of retribution works for persons who choose to take their own lives.

Given the systemic weaknesses of individual deterrence, is there a set of sanctions and regulations that can be implemented before these pathological maniacs can wreak harm on other individuals? This is the question that every serious analyst must ask. The most common response demands the imposition of some form of gun control laws that can take weapons out of the hands of miscreants, both rational and irrational, before they can do any harm.

As I have already argued here, we can put aside any misguided claims that the Second Amendment offers special protection to gun holders. The harder question is whether gun control laws actually do any good. The issue here involves both the choice of social ends, and the means to achieve them. Gun control laws score high on the first point: Protection against armed violence is, even in the most libertarian of states, a legitimate social objective. The control of force includes elimination of the threat of the use of force as well.

All of the action, however, lies on the second point, which asks whether the means chosen (gun control) advance the end in question (fewer murders). For many people, like New York’s Mayor Michael Bloomberg, the answer to this question rises to an article of faith:

You know, to arm everybody and have the Wild West all the time is one of the more nonsensical things you can say. . . The bottom line is if we had fewer guns, we would have a lot fewer murders.

Unfortunately the underlying reality is a lot more complicated than Bloomberg’s simplistic syllogism suggests. It is always hard to design licensing systems to stop dangerous behaviors like driving automobiles, controlling the sale of hard drugs, or using guns. The root of the problem is this: The ex post remedy that goes after wrongdoers runs only a small risk of over-breadth, which can usually be limited by having suitable punishment procedures. Licensing regimes, in contrast, are always overbroad. They will result in social losses by stopping the use of guns, cars, or drugs (think medical marijuana) by people who will make perfectly legitimate use of the dangerous instrument in question.

Perhaps those like Mayor Bloomberg will respond that these losses are a small price to pay for the prevention of unnecessary deaths. But even that generalization may turn out to be false, as the bad actors whom the licensing system targets are the most willing to circumvent that system. The selective enforcement of these tough prohibitions could easily cause more harm than good: Think of the black market trade in drugs fostered by the war on drugs.

This same dynamic could be at work in dealing with guns. Today, upwards of 200 million firearms of all descriptions are available for general use in the United States. Amnesty programs have made only a tiny dent in that number. The imposition of a tough registration program will lead to a substantial reduction in the number of guns in circulation. But even tough gun laws may have had little impact on people like James Holmes. Holmes showed no danger signs, except perhaps that he was a bit of a loner, not an uncommon trait. He had cleared all background checks when he purchased his weapon. If Colorado banned guns, would he have acquired the same weapons out of state or in the illegal market? No one knows.

The situation is even more complex when the focus shifts to the impact of gun laws more generally. Here, the key insight is that reducing the total number of guns is not the only likely effect of the law. The prohibitions in question will also shift the ratio of guns held in lawful and unlawful hands to favor the latter. To take the extreme case, suppose that a gun control law can eliminate 99.9 percent of the guns now in circulation and that all of the remaining 200,000 guns are in the hands of hardened criminals. We can confidently predict that crime will go up unless and until there is a vast expansion of the public police force.

Less dramatic shifts in that critical ratio should produce less dramatic results, but ones that cut in the same direction. Potential criminals, knowing that they are less likely to meet armed resistance will, on average, be more likely to commit various kinds offenses. The empirical data suggests that this grim logic might even apply to mass killers intent on suicide, who do not like the prospect of being gunned down by strangers before they can kill their desired targets.

Indeed, at least one serious academic paper by the economists John Lott and William Landes finds a positive connection between tough gun laws and an increase in mass killings. That data could easily be disputed. But what cannot be denied is the intelligible economic theory that undergirds its conclusions. The basic point here is that in any gun-free environment (such as that of Virginia Tech), the assailant knows that he will not meet with any immediate armed resistance, and this puts innocent people at risk.

So what then to do? It may well be that the best strategy is a combination of both carrots and sticks. A ban on the sale and possession of assault weapons makes sense on the ground if it is true that there are few lawful uses of guns and many dangerous ones. One does not have to lurch to Mayor Bloomberg’s intemperate Wild-West scenario to think that it may well be wise to increase the use of concealed firearms by off-duty police officers, military people, and private security guards who normally carry these weapons as part of their jobs. The task of preventing violence requires a difficult balancing act that is inconsistent with both a fierce defense and a fierce denunciation of all gun control measures.

Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.