In an essay in The Regulatory Review, Joseph Blocher, Distinguished Professor at Duke University School of Law, and Darrell A. H. Miller, a professor at The University of Chicago Law School, argued that gun rights scholarship, which mainly focuses on constitutional issues such as liberty and state power, should incorporate more concepts from regulatory scholarship. Blocher and Miller contended that the “risk versus risk” framework used in regulatory regimes to balance costs and benefits can fill a gap in the “rights versus rights” approach commonly seen in gun scholarship debates. Blocher and Miller claimed that introducing risk management principles from regulatory law rather than treating gun policy as purely rights-based could help tackle the problem of how to handle guns.
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Firearms law and regulatory scholars must come together to tackle the gun control problem.
It would be an understatement to say that gun debate partisans have different views about the proper relationship between gun rights and regulation. From a scholarly perspective, those differences are typically refracted through the lenses of constitutional law, public health, political science, and—with increasing precision and clarity—history and sociology. When it comes to regulatory law, however, the interdisciplinary conversation has barely begun.
Firearms law scholars—ourselves included—have not taken full advantage of advances in regulation scholarship, focusing instead on constitutional law in general and the U.S. Constitution’s Second Amendment in particular. On the other side, regulatory scholars generally have not given the same attention to firearms as to other subjects like pharmaceuticals, financial services, and the environment.
There are many reasons why this might be so. The relative paucity of federal law is an obvious factor, as are legal obstacles to research imposed by laws such as the Dickey Amendment and the Tiahrt Amendment. In any event, our goal here is to suggest ways in which the two fields—regulation and firearms law—would benefit each other going forward.
One place to begin is with the concepts of risk and precaution—topics about which scholars of regulation have thought deeply, but which tend to lack conceptual clarity in the gun debate. Indeed, one way to understand the intensity and seeming intransigence of gun partisanship is to recognize that it results from two diametrically opposed invocations of the precautionary principle—the notion that regulation should minimize worst-case scenarios in situations of uncertain risk.
For some proponents of gun regulation, the worst-case scenario resembles the status quo: a world in which guns kill or wound about 100,000 Americans every year, mass murders with guns are a regular occurrence, and firearm-related suicide occurs at epidemic levels. For some proponents of gun rights, the worst-case scenario is a tyrannical government against which a disarmed populace is helpless.
The former wants regulation to reduce the risk of firearm-related death to near zero; the latter wants deregulation to reduce the risk of universal disarmament to near zero. Each side sees itself as protecting an essential value, and the other as recklessly threatening it. They differ in their conceptions of the worst case, to be sure, but they unite in arguing for strong versions of the precautionary principle—albeit one that favors regulation and one that opposes it.
But, as scholars of regulation have long recognized, risk and precaution must be managed.
Any regulatory regime will involve tradeoffs, generating what our colleague Jonathan Wiener and others call “risk versus risk” scenarios. This is true of firearms regulation. As we have argued elsewhere, admittedly through the lens of constitutional law, the gun debate raises scenarios where the right to keep and bear arms may be in tension with other fundamental rights and interests, including free speech, control of property, and personal safety—“rights versus rights” scenarios. As Justice John Paul Stevens put it, “Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence.”
This kind of argument might appear hollow—even deluded—to someone whose primary concern is protecting private arms to ward off a potentially tyrannical federal government. Many gun rights advocates invoke Justice Joseph Story’s claim that the Second Amendment constitutes “the palladium of the liberties of a republic” because “it offers a strong moral check against the usurpation and arbitrary power of rulers” and that, even if the Amendment does not check the rulers “in the first instance,” it will “enable the people to resist and triumph over them.”
And yet, after the U.S. Supreme Court’s decision in District of Columbia v. Heller, courts have resisted the kind of absolutism that this stance might imply.
The prevailing doctrine in the federal courts allows for consideration of public safety and other values. So long as a government regulation recognizes that the Second Amendment requires some level of risk to health and safety from the private possession of firearms, then courts will not strike down the regulation because of tail risks feared by gun owners.
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What Firearms Law and Regulatory Scholarship Can Learn from Each Other
