A Conversation About Guns

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0:00:07.7 Trevor Burrus: Welcome to Free Thoughts, I’m Trevor Burrus. Joining me today is Clark Neily, Senior Vice President for Legal Studies at the Cato Institute. Welcome back to the show Clark.

0:00:17.0 Clark Neily: Good to be with you Trevor.

0:00:19.0 Trevor Burrus: So, we’ve had a uptick in mass shootings over the past month or so, which of course produces a discussion about gun violence as it should, and I think we sort of start by going and saying, there’s an unfortunate tendency of gun rights supporters to kind of throw up hands and say, “We really can’t do anything about this.” And that seems to be the wrong… At least the wrong approach.

0:00:44.6 Clark Neily: I think that’s right. I think it’s wrong both as a policy matter, it’s wrong morally as well. I think two things are true. On the one hand, we’ve done a lot and we’ve seen gun deaths plummet in the last several decades, homicides are down, obviously there’s been an uptick lately, but that seems to be to some extent associated with COVID, but on balance, we’ve seen a significant decrease in homicides, including gun homicides, also deaths by gun accident. Suicides I think are kind of a separate category, very troubling issue that we’ll get into, but we actually have adopted smart policies with respect to guns, and it makes me think, for example, of traffic fatalities, those are down as well over roughly the same time, and I don’t think anybody thinks that we’re ever gonna get to a world where there are no traffic fatalities, and I think getting to a world where there are no gun fatalities is similarly impossible, but the idea that there’s nothing further we can do, or even that there’s nothing further we can do in a kind of a cost-​effective way, I’m not persuaded by that, even if some people have exaggerated the ability of public policy to further reduce gun deaths, I think the truth lies in the middle somewhere.

0:02:02.1 Trevor Burrus: Yes, and it’s a complex question. One of my frustrations in this debate is that there is a tendency to focus on guns when actually the problems are multifaceted, and we can see what gun was used by the last shooter and we could ban that gun, and I’ve often made this analogy to immigration restrictions, ’cause on the anti-​immigrant side, they do a similar thing, if an immigrant commits a crime, then they see how he got into the country and then go after that loophole, and if someone does a shooting, a horrific shooting with a certain type of gun, we go after that gun, and that’s not the most productive way of I think addressing especially the mass shooters problem because they are highly motivated. This is the difficulty of doing gun policy that a given policy proposal around guns will affect the marginal criminal. This is one of the big fallacies that gun rights supporters I think commit saying guns don’t cause crime, people cause crime. Guns absolutely can cause crime in the following way, there is someone out there who is too scared to rob a 7-​Eleven with a knife or with their bare hands, and so if you give them a gun, it gives them the ability to project force over a distance which is the most important characteristic of a gun, both in terms of using it for violence or using it for self-​defense, it’s the same characteristic, and you give them that gun and then they decide to commit a crime that they wouldn’t have committed before.

0:03:31.4 Trevor Burrus: That is not a mass shooter in almost every circumstance, that is not a person who is just on the edge of maybe committing a crime, they plan for a very long time, and so trying to come up with a gun policy to address mass shooting is probably not going to be as effective as other possibilities.

0:03:49.5 Clark Neily: Yeah, I think that’s self-​evidently true and not to be pedantic, but really, we cannot ban guns. We can prohibit them, but look, we do that with many different kinds of illicit drugs, and does that mean that those drugs no longer exist or that people no longer are able to acquire those drugs, absolutely not. And we know that non-​compliance with gun laws is rampant, there’s been a lot of study of this that has been done, and that doesn’t entitle you to just throw up your hands and say, “Well, then I guess there’s nothing we can do,” but I think it does require that you be realistic about it, and just to give an example, I mean, there’s a reason why AR-​15s have become so popular with certain gun owners in the modern era, and it’s because a lot of… Well, one of the reasons is that a lot of people have come back from service in the US military, where they have been trained on a similar platform, they’re very comfortable with that style of weapon, it has of course certain real advantages for personal protection.

0:04:51.0 Clark Neily: It’s unfortunate to see so many people sort of pooh-​pooh the idea that a so-​called assault weapon, and specifically an AR 15, the idea that it has no real use for personal protection, it’s just been… That has been falsified over and over again. It’s not ideal for every situation, but there are some situations and some owners for whom it is ideal. So the idea that we can just pass a law then suddenly by prohibiting AR-​15s, they will all disappear has been falsified time and time again, and we have to ask ourselves a really stark question, I think, and that is, in a given jurisdiction, if you get to the point where you ban so-​called assault weapons, are you really ready to start putting soccer moms and Iraq and Afghan War veterans who are otherwise law-​abiding in every way, are you really ready to start putting them in prison for years or even decades?

0:05:44.0 Clark Neily: I don’t think we are. And if you don’t do that, then your only other alternatives are to just not enforce the law at all, which is of course a disastrous policy choice or… And this is what we do with drugs, enforce it against a particular demographic that sort of has the least ability to push back in the political process and various attributes that make it easier to sort of single them out for the adverse consequences of this partial enforcement policy. And look, if you think that racial disparities in the enforcement of drug laws are objectionable and they are, you should see the racial disparities in the enforcement of gun laws, they’re even worse, and that’s unconscionable.

0:06:22.3 Trevor Burrus: Yes, and we often forget that Mayor Bloomberg’s stop and frisk program was ostensibly a gun control program, and it was used in an incredibly racially discriminatory way with basically a pretext to stop almost any, often young black male on the street to see if they have a gun and all the kind of maleficence that arose from that, and I agree with you completely, the assault weapons thing, it’s just… It’s frustrating.

0:06:46.9 Trevor Burrus: First of all, to say that there’s a certain type of gun that is kind of whatever… Meant only for death or meant only to kill, that’s not true about any gun, guns are… All guns are dangerous, they all can be used for self-​defense and mayhem. An assault weapon… We’re kind of doing scare quotes when we talk about this ’cause Clark and I know that’s not really a category of guns and their… We talk about the AR-15, there’s about five million out there, and clearly it’s not only good for mayhem, because vast… Huge amounts of police officers have an AR-15 in their trunk for which they use it to protect… They offer protection of self and others, and if it was only good for spraying death, then that would not be true.

0:07:28.3 Trevor Burrus: Assault weapons, we could talk about that ban, generally they’re defined mostly aesthetically with a barrel, the ’94 ban had one of two characteristics where it had to be a semi-​automatic rifle with a pistol grip, a barrel shroud, a bayonet, a collapsible stock, and these are the kind of non… They’re not functionally making the weapon more lethal, now why are shooters preferring this weapon? My theory, ’cause I’ve read too many of their journals, which I don’t advise, but my theory is that they are emulating the Columbine murderers, and that’s the… The Columbine murderers who kind of started off the modern tragic trend of school shootings are still considered to be almost heroes to these murderers, and that’s the kind of weapon that they used, and they’re doing it to be ostentatious to some degree, in my theory, it’s hard to say, of course, but they’re doing it to be somewhat ostentatious because they wanna look the part that is in their head, but of course, getting into these people’s head is no fun, and it’s such a small number that it’s hard to even extrapolate a trend.

0:08:39.5 Clark Neily: Yeah, and it’s important for people to understand, if they don’t know this already, that it is still the case that the majority of mass shootings, which is not an easy term to define really, but the vast majority of mass shootings have been committed with hand guns, hand guns are easier by and large to obtain, they’re much easier to conceal, and frankly, when you’re shooting unarmed people, it doesn’t really matter that much what kind of weapon you’re using when you’re shooting people who can’t defend themselves, so… But there is a tendency, I think, for a variety of reasons, I think this sort of concept of assault weapons has certainly been polarizing, it arouses probably the most passion in the discussion, and I think that both sides must be careful not to dismiss the concerns of the other, that includes us, I suppose, even though we kind of think of ourselves as perhaps being in the middle somewhere.

0:09:42.4 Clark Neily: But to go back to an earlier point, I think the idea that you can realistically eliminate from a given jurisdiction or largely eliminate from a given jurisdiction sort of every AR-15 looking weapon is unrealistic, and in part because of what it would take to do that, and that would include imposing severe punishments, I’m talking about life and family destroying punishments on people who have not committed any sort of an immoral act, there’s nothing immoral about owning a particular weapon, just as there’s nothing immoral about possessing or even ingesting a particular intoxicant. The behavior that you engage in after ingesting that intoxicant or the behavior that you engage in with a particular weapon can certainly be immoral, but the act of owning a particular weapon or the active owning a particular…

0:10:37.9 Clark Neily: Or consuming a particular intoxicant is not itself immoral, and it is an incredibly fraught question when you propose inflicting savage punishments on people, not because of the harm that they’ve done or the immorality of what they’ve done, but simply to discourage them and others from engaging in particular conduct like owning a weapon that you don’t think they should own. Again, I don’t think that we have the stomach for that as a society, and I think therefore that these prohibitory approaches, the prohibitory response is unlikely to… Really to materially ameliorate the harms that they’re going for. I just don’t think they’re practical.

0:11:21.3 Trevor Burrus: I agree, and I think it’s become more common over the last 20 years, because there’s a subtext to the gun debate, which is that it’s really part of the culture wars, it’s become that way in a way that’s different, that I think was different, say in the early ’60s where you had shooting clubs in high schools in New York state or something like this, and now there’s… I often ask crowds, especially if I suspect they’re kind of against guns when I give a speech, a couple of questions, one, who is disgusted by guns, and I get a fair amount of hands for that, that they’re actually… Their reaction to a gun is a version of disgust, and they use language that treats guns like a pollutant, we have guns polluting our campuses, polluting our culture, and I’ve been around people… Some of my European friends, one time they were at my parent’s house and they were kind of whispering to each other and they said, “Does your dad have a gun?” And I’m like, “I mean, yes.” And so they asked to see it, so I bring it, it’s a little revolver, I bring it up, hold it out of my hand and they all kind of recoil back, like it’s a coiled up Cobra or something.

0:12:28.3 Trevor Burrus: So that’s a difficult… So those are people who never grew up around guns, and that’s a difficult emotion to argue against from a matter of public policy. Yes, there are people who have guns, I know people who have said they don’t wanna come into my house because there are guns in my house, like that kind of attitude. And then the other question I ask when I give speeches is, “Who thinks that a civilized, whatever that means, society would have no guns in private hands?” This is kind of the Star Trek question where you say, “Oh, look at Star Trek, they all treat… The time when people owned guns as some sort of primitive barbaric time, and so what we should be moving towards is just a method of civilizing, is the slow elimination of guns in private hands.” Let’s say I accept that premise, I don’t. If only the government has guns, we have different problems, but let’s say I accept that premise. It’s not gonna happen in America, it’s just… It’s not. 400 million guns at least, you could… Even as you said Clark, doing it with the criminal justice system would be a civil liberties violations to the point of just insanity to try and do this.

0:13:34.7 Trevor Burrus: And so you have to start at this base, I would say. It’s not gonna have that we have [0:13:37.9] ____ guns, guns themselves are not disgusting. You don’t have to own one, but for most people, it’s an inert piece of steel in their house that they occasionally shoot. And on the criminal justice side, is it reminds me you of living here in Virginia and the legislator was discussing expanding gun prohibitions probations, and they had done it to point the… One of the laws that was suggested was that it would be a single-​factor test for an assault weapon. So whether having to have two of these characteristics, you would only have to have one. Of which one of them was a bayonet, a bayonet mount.

0:14:08.5 Trevor Burrus: So I own a M1-​carbine used in World War II that is a semi-​automatic rifle, and it had a bayonet at 70 years old, it’s been… They were like 80 years old. It had a bayonet, has a bayonet mount put on it actually after the war, and it just sort of astounded me thinking that if they passed this law, I would suddenly become a felon for possibly 10 years in prison, because this 80-​year-​old rifle in my closet has a bayonet mount on it, which I’m not sure that mass bayoneting is exactly the problem we should be going after. And then you suddenly realize, Wow, I could become a felon. And that’s the reality of gun owners when they start passing laws that don’t really do anything in terms of like the bayonet mount is not a characteristic that is contributing, and rifles themselves are killing a vanishingly small amount of the total people who are killed. And so you just wonder why they’re doing this. And then again, the hard use of the criminal justice system to go after this problem ends up being, as you said, extremely immoral in the most of its applications.

0:15:10.7 Clark Neily: Yeah, let’s go back to your intriguing kinda factual about a world in which there are no guns if that were actually something that were feasible. You and I certainly believe that it’s not. That’s in part because of our experience with drug prohibition. We’ve been waging that so-​called war for more than 50 years, and like talked to… I talked to… I remember I was teaching a, guest teaching a class of, I think middle school students from Washington DC. The teacher was late, I was just chatting with them and I asked them how easy or difficult it would be for them to get drugs, and they laughed at me, because it was easy, and I asked the same question about a gun and they laughed again and said it was easy, so… But let’s put that aside and imagine a world in which somehow guns have been eliminated. It’s not at all clear that this would be a safe or desirable place to live for everybody.

0:16:02.7 Clark Neily: Violence has always been a part of human interaction and it remains so today, some places more so than others granted. But even in America today, there are people who in fact in effect are exposed to the risk of violence by virtue of where they live, or David French, for example, who writes for the dispatch and National Review, famously, if you follow his stuff, has been subject to so much vitriol and stalking because of his family situation, he and his wife adopted a girl from Africa. And he tells the story about how they armed themselves and they train to defend themselves and their daughter because of what they’ve experienced in terms of, not just online, but they’ve actually had people come to their house.

0:16:55.7 Clark Neily: Just within the last few days, a man with a gun was arrested outside Brad Kavanaugh’s house. Supreme court justice Brad Kavanaugh now, he has the luxury of armed security provided by the government, most of us do not. And even something as simple as if you live in one neighborhood, in a place like Chicago or New York City, and you have to go through another neighborhood to get to work or to a bus stop, you are or you can be at great risk simply by virtue of being in the wrong neighborhood at the wrong time. And of course, that doesn’t even get into the issue of women who are being stalked or attacked by their current or former domestic partner, and for whom, it’s just a fact that generally speaking, men are bigger and stronger than women, not always, but usually. And it sounds trite, but it’s really not. The ability to own a gun is an equalizing factor for many women, and it’s the only thing that’s keeping them safe. And maybe this is a the time to get into this, but it is… For those who don’t know, it is in fact true that police have no legal duty to protect you even if you have a restraining order, for example, against a violent ex-​boyfriend or ex-​husband, no duty to enforce that restraining order.

0:18:18.6 Clark Neily: If there is someone shooting and killing people at your child’s school, like in the tragedy in Uvalde last month, there is no legal duty. The police have no legal duty to do anything in that situation, and there have been several instances where they have simply stood around outside the school while children were murdered inside. This reason for this is that the Supreme Court has held that it’s a matter of essentially just but a default common law rule that the police and other government officials do not have a legal duty to protect us. They may, if they wish, they may even have a policy of doing so, but there are no legal consequences for failing to protect us. And I think this poses a really serious question to those who favor aggressive gun control up into and including dispossession. If the government is going to take away your ability to defend yourself and your family then, while simultaneously saying, and we don’t have a legal duty to protect you either, this raises, I think profound moral and political questions. Some of which were explored by our colleague Roger Palan in an article that you like to site, and I think should not lightly be dismissed by anybody in this debate or discussion.

0:19:39.0 Trevor Burrus: The self-​defense question is very interesting. It kind of surprised me when I first started doing gun research for Dave Kopel at law school, who sat at the council table at the Supreme Court, but during the Heller oral argument, as you did too Clark as one of the attorneys there, as you were. I was stunned at how any sort of reasonable conservative guess at how many times people defend themselves with guns a year is sort of stunningly high. You’d think you’d hear more about it, or it’d be more common in the news or something like that. And I remember at the time, according to the Bureau of Justice statistics and the National Crime Victimization Survey, which is a horrible way of measuring this, but nevertheless, their number was 110,000 times a year people use a gun and defend themselves. Now, sometimes people treat this as overinflated and like a lot of the gun control, they dismiss this fact for two reasons.

0:20:35.5 Trevor Burrus: One, they think it’s overblown, because they are thinking about somewhat discharging the gun to protect yourself as opposed to the fact that it’s the guns power, means you only have to show it which would be very different for a knife. Imagine a small woman, as you pointed out, walking on the street and she has a knife that she could show to a large man who’s going to attack her, or she has a gun that she could show. And just showing it is the vast majority of ways that people defend themselves with a gun, but that 110,000 number is almost assuredly magnitudes or too low because of the way that the survey was done by the government, and later Gary Kleck and others did different surveys. So a good conservative estimate is about a million to maybe a million and a half times a year, people defend themselves with guns, which is a stunning number.

0:21:22.7 Trevor Burrus: Again, now another problem here with the gun discussed, which I think is dismissed, is sort of dismissive by gun control advocates, is that they don’t like that fact. Even if they accept the number, they wish… They don’t want people defending themselves with guns, ’cause it has this Wild West civilisation breakdown to it, and I think some part of the gun control position for some people is that they think that civilisation is often teetering on the edge of barbarism and giving people guns is a way of pushing it over into barbarism. Especially letting them carry, ’cause they expected shoot-​outs to be over parking spaces if you let people carry. Not that that doesn’t happen occasionally, but much less than the predictions that were said in the 1990s when the carry laws were being passed. And so they don’t like the fact that people are defending themselves with guns. To which I’ll say, “Okay, okay but nevertheless, these people need to defend themselves as you pointed out.”

0:22:18.1 Clark Neily: So this is a good time to tell a powerful story from the Heller lawsuit. A lot of people don’t realise there were actually six plaintiffs in Heller, only Dick Heller was found to have standing because of a preposterous ruling by the DC Circuit about standing. But one of the plaintiffs was a former colleague of ours, Tom Palmer, who was then a Vice President at Cato and happens to be openly gay, which is relevant to the story. He was pursued and threatened and he believes nearly murdered by a skinhead mob in California that somehow realised that he was gay and chased after him and were yelling just incredibly ugly things at him about what they were going to do and the fact that no one would find the body when they were done. And I’ve heard this story a number of times.

0:23:03.9 Clark Neily: In fact, Tom related it to me as I put it into an affidavit for the Heller case. And what happened is exactly what you described just now, Trevor, which is that when they cornered him, Tom pulled a pistol out of his backpack and instead of shooting anybody, he simply brandished it. That was enough to cause this entire gang to back up. And this is an astonishing part of the story because it actually gets funny here, you wouldn’t think that it would. But as the entire skinhead gang backs up, the leader looks at Tom and says, “Hey man, do you have a permit for that?” And Tom says, “No, but if you don’t leave me alone, I’ll shoot you.” And that was… He believes that saved his life. Now, of course, none of us were there, but you and I both know him well, and I don’t believe that he would exaggerate and I’m confident that he wouldn’t make this up. So it happened as far as I’m concerned. And I credit his belief that this saved his life.

0:23:55.3 Clark Neily: The epilogue to this story, I think is quite powerful as well, which is that the reason he had that pistol was that his mother gave it to him and she said, “Tom, if you’re going to be openly gay, I’m afraid that you’re going to need this one day.” And there was a really powerful brief in the Heller case, an amicus brief by the Pink Pistols, which is a gun club for gay and lesbian shooting enthusiasts. And part of the Pink Pistols amicus brief was empirical and what they demonstrated was that when people are attacked on the basis of sexual orientation it’s much more likely to involve multiple assailants and horrifyingly, much more likely to involve torture and mutilation. So the stakes for someone who is the target of that kind of attack are much higher than for other people. And to say to somebody like Tom Palmer, “Well, if you’re pursued by a skinhead mob that wants to kill you and bury the body where no one will ever find it, you’re just gonna have to sort that out with a 911 call and/​or some pepper spray,” is at minimum a morally dubious response. Right?

0:24:55.7 Clark Neily: So where does that leave us? You can’t wish a world in which there’s no violence in which people are never at risk. That’s utterly irresponsible. And then the question becomes, well, what is a reasonable accommodation between people who believe that private ownership of guns produces significant harm and social externalities and puts other people at risk, which is not a completely baseless point, versus the point of other people, which is that, “I have both the right and potentially a need to own a gun in order to effectively defend myself, and just because you’ve never needed one doesn’t mean I never or I have never or will never need one.” And so somewhere, in effect what we have to do as a society is find what is the right accommodation between these plausible and reasonable concerns on both sides, where neither side gets to simply dismiss all of the concerns of the other.

0:25:48.7 Trevor Burrus: And in addition, of course, to two people of the LGBTQ, other minorities of, most prominently in America, African-​Americans have an incredibly important relationship to gun control. In my experience, African-​Americans remember more than, I think, White Americans sort of dismissive of what this condition was like after the Civil War in terms of protecting yourself from the KKK, which with the original KKK was a, “Take the guns from the free men,” organisation, essentially. And then also your government, this is… There’s a dismissive thing when you say, “Oh, guns were the defend against your government.” And then someone says, “Oh yeah, you’re gonna fight the US Army, all the tanks and F-​16s and whatever with your hunting rifle.” Like, “No.” But usually… Often the government you had defend against is like the local sheriff in Alabama in 1876 who might only not be part of the lynch mob, but actually running the lynch mob and they’re not going to protect you.

0:26:52.0 Trevor Burrus: I’ve always thought it would have been fascinating for Thurgood Marshall to be on the bench in the Heller case, because he knew when he was travelling through the South, he was one of my heroes, especially his defense of accused Black men in the South under the NAACP Legal Defense Fund, he pretty much had to have someone with arms around him all the time, ’cause he’s staying in these very, to say the least, inhospitable places with someone sleeping on his porch with a gun, ’cause the cops aren’t going to be the ones to protect you. They might be the ones to come after you. And of course, we also have Don Kates, who’s one of the sort of premier scholars in Second Amendment, he wrote the first defense of the Second Amendment as an individual right, published it in a major law review, I think it was 1982 in the Michigan Law Review. But he was lifelong liberal, the ACLU, but that’s how he learned about the need for self-​defense, armed self-​defense, was participating in the civil rights movement and realising that this stuff was necessary. A gun was necessary when the state is not on your side. So those are other concerns that are just, I think, are dismissed pretty blindly by the gun control crowd, and especially for African Americans.

0:28:05.7 Clark Neily: Yeah. A lot of people are surprised to hear, for example, Martin Luther King was famously a proponent of non-​violent resistance, and yet people who were inside his house during the civil rights era described it as an arsenal, that there were guns everywhere. And I would say that virtually everybody who is familiar with that time in our country’s history, and honest, will acknowledge that many leaders of the civil rights movement had asserted credibly that guns kept them alive. And to go back to a point you made, I think maybe it’s worth just a little bit of elaboration because it is such a tired canard that we hear so often that this idea that you could effectively resist a tyrannical government in the modern era with nothing more than personally owned weapons like an AR-15 or even a handgun is preposterous because the government has tanks and fighter planes. It evinces a complete misunderstanding of military tactics and how these things work.

0:29:09.0 Clark Neily: Of course, nobody can stand up to an armored assault by a bunch of tanks or a squadron of fighter bombers, but that’s not how these conflicts work, because in order to oppress an entire people, you have to occupy the place where they live, you have to put individual soldiers on the ground that can go, for example, house-​to-​house and make sure that people are not meeting together to conspire, and that they don’t possess things like the tools that you would need to build and improvise an explosive device. That has to be done on a retail level by individual soldiers who are absolutely vulnerable to small arms of the kind that people can possess. You don’t have to defeat the occupying power, you just have to make it so costly that they’re unwilling to continue with the policy. And it’s astonishing to me that people continue to make this argument in the 21st century after what we’ve seen in Iraq and Afghanistan.

0:30:02.7 Trevor Burrus: Yes. People with small arms have done pretty well against the American Army in recent history, yes.

0:30:07.3 Clark Neily: Yeah. And, look, it may seem preposterous and apocalyptic that Americans might ever have a valid reason to engage in armed resistance against the government of the United States or a particular state. And I hope that’s right. I hope that is a completely preposterous scenario. But another point that I think bears emphasis is that to think of the Second Amendment is being categorically distinct from every other constitutional right in the sense that the Second Amendment alone has a single purpose, or maybe two purposes, and no other purpose, no other valid purpose. So, if you’re not using it to overthrow a government or resist tyranny on the one hand or protect your life from violent attack on the other, then there’s no other reason why you could own a gun.

0:30:55.9 Clark Neily: Think how incredibly sophomoric and disrespectful it would be to consider the First Amendment as protecting freedom of speech for the sole purpose of promoting political discourse. And if you’re just trying to tell a joke or comfort a grieving relative, then you have no protection from censorship because you’re not using the First Amendment for its “purpose.” But people who would scoff at the idea that the First Amendment has a purpose or even some small subset of purposes, will absolutely turn around some of them and make that exact assertion about the Second Amendment and essentially say, “Well, look, unless you’re using it for militia service or unless you’re using it to resist a tyrannical government, then the right doesn’t exist, in effect.” And I think it’s no accident that those arguments, and they come at a whole variety of flavors, have been utterly unpersuasive to people who do not already embrace that position.

0:31:51.3 Trevor Burrus: Let’s talk about, we kind of opened up by saying there are… We can’t just shoot down every gun control measure or other type of safety measures and say, “Well, we can’t do anything,” and talk about some of the things that maybe we can do, especially when it comes to mass shootings, with the proviso of what I said before, these are very, very difficult to figure out how to stop. And there are sort of three things you could… Just three general categories that can, go after the gun and figure out who the shooter is beforehand, or you can secure locations. One of those, I think it’s fairly clear that it’s sensible to put more defense into schools. That does not mean teachers carrying weapons, that does not mean… That can mean a bunch of different things based on what the community this should be, not a federal law, what the community is comfortable with. If they’re comfortable with armed service officers, maybe armed teachers, increased security of various sorts, that to me is just sensible.

0:32:54.4 Trevor Burrus: Unfortunately, I agree. Going back to this, I agree that it is not the world I want to live in where we have an uptick, I think, and will continue to have an uptick of these tragic and disgusting shootings, because the other options are really difficult. Finding the shooter, finding the gun… We already talked about how going after the gun is not terribly effective, especially when there are 400 million guns and they’re highly motivated. Can we identify the shooter? This is a little bit more possibilities here. We’re discussing red flag laws. There’s a discussion in Congress right now on red flag laws, and whether or not we can identify the shooter. Well, it is true that in a fair amount of these shootings, including the most recent ones, and especially for Parkland, there was a lot of notifications that this person was not okay, they had made threats. The next question is, what can we do in terms of getting their guns, and that’s something that’s worth looking into, I would say. There’s a bunch of details, we have to figure out what the due process is, how long their guns are taken away from them, and what the standard of proof is. But some of these shootings could possibly have been stopped with a little bit more diligence on paying attention to the threats. I’m not sure, where you on that, Clark? If you’re in the same kind of place as me.

0:34:14.9 Clark Neily: Well, clearly that’s true, right? And I think that you and I have the same policy. I never say the names of the shooters in part because I think that’s what some of them want, and so I tend to refer to it as the Parkland shooter, which was the one at the high school in Florida. Yeah, I mean that person was already very much on the radar screen of not only school officials, but law enforcement in that area, and to the point where we can look back and just say, “How could anyone have failed to take further steps? This is just jaw dropping.” So that’s the easiest case, right? And you should always go out of your way to get the easy cases right. You know, there was the shooter who murdered a bunch of people at a church in Texas and that person was ineligible to purchase the rifle that he used because he had a domestic violence conviction, while in the air force and that paperwork was simply not reported to the relevant authorities. And then when they started digging into it, they discovered that it wasn’t just him, it was, I think, more than a thousand instances. So, these are in effect kind of holes in the system that we could absolutely do a better job of shoring up and we should, right?

0:35:28.5 Clark Neily: Where it gets challenging and where, I’m afraid that our friends, who are strongly in favor of a more aggressive approach here, maybe fail to appreciate the nature of the challenge is that, it’s very easy to work backwards from a known shooter and identify things that should have raised red flags. It is much more difficult to work forward. And you talk to any mental health professional and they will tell you that it is so difficult, as to be virtually impossible to identify someone who is imminently likely to commit an act of violence. Again, this doesn’t mean that we simply throw up our hands and not even make an effort, absolutely not! Instead, what it means is, we’ve got to be very careful about… To not overestimate our ability to predict who’s going to commit an act of violence and therefore the efficacy of these policies. And so, it has to be, as you suggested Trevor a moment ago, it has to be a multi-​pronged effort and no one, you know, hardening the schools is not going to be a complete fix, making it more difficult to obtain these weapons will not be a complete fix and trying to identify potential shooters will not be a complete fix. But we can do better across all of those axis and we should do better.

0:36:43.4 Clark Neily: But again, there has to be an awareness both of, the right of somebody to not permanently go on some list because you made a stupid joke at one point, or because, for example, either the one spouse or another sought mental health counseling during a particularly ugly break-​up and because they went and got mental health counseling, they’re on some list that’s problematic. Deeply problematic. So, I think that… Oh! And then, one other point to make is that, it’s also the point of intended consequences, which everybody who does public policy has an obligation, I think, to recognize and I’ll just… I’ll give you one example. I was actually at a meeting of a non-​profit recently, where one of my fellow board members was talking about a meeting that he had held among the most pro-​gun people in the country and some of the most pro-​gun regulation people in the country and a point that came out that… Well, he surprised him because there were such a consensus that emerged was, that the empirical data seems to indicate that when a jurisdiction adopts a strong red flag law.

0:37:51.8 Clark Neily: That’s the one that enables somebody to go into court, whether it’s a police officer or somebody else and say, “Look, I think this particular person represents an imminent threat and I need a court order… We need a court order to take away their firearms,” which a number of jurisdictions have. That when a jurisdiction adopts a red flag law, what you’ll see is that military veterans suddenly start seeking mental health treatment at a much lower rate than before. For a number of reasons, including because they’re concerned that someone will come and take their guns. Now, maybe you just take that as a necessary consequence of the policy, but to fail to be aware that that is likely to happen is incredibly irresponsible. And the same goes for all unintended consequences. Including for example, that as you suggested earlier, many of these shooters are actually as mentally ill as they obviously are, that doesn’t necessarily mean that they lack the capacity for rational thought and for incredibly detailed planning. And some of them will absolutely take proactive measures like hiding their weapons somewhere, if they begin to suspect they might be the… A subject of someone trying to implement one of these Red Flag laws, right? So again, that doesn’t mean you don’t try, but you have to be realistic about what is going to happen in the real world and not your idealized version of it.

0:39:13.9 Trevor Burrus: And that gets into a really important point about the make-​up of gun deaths in the country and the first thing here is to… Whenever you see such data published by whoever it is, the New York Times, Cato, check whether it says gun deaths or gun homicides. Because gun deaths will include suicides, which are about two-​thirds of gun deaths in America. And the thing that frustrates me is the discussion of policy proposals that will have nothing, no effect on suicide. Magazine restrictions, for example. Elizabeth Warren, when she was running, still running for president, put forward, I think, a 32-​point plan to what she said, “Reduce gun deaths by 80%.” Only one of those points addressed suicide at all. And so even if she was able to eliminate all gun homicides, she still would only eliminate 33% of gun deaths, so it doesn’t even make sense within her own calculus. And it’s very frustrating because right now we have upticks in suicide, I think pandemic-​related to some extent, for men between the ages of 25 and 64, that is around 37% of gun deaths.

0:40:26.2 Trevor Burrus: And then, young Black males connected to drug war, shooting each other. And any policy that tries to lower gun deaths by 50%, that ignores the heart of these, where the gun deaths are… And I personally think that suicide prevention is something where there can be more gains from gun control policies, because suicide by gun is often a quick, rash decision that is… That you can’t take back and often involving substance abuse and so some of the… And people who commit suicide, 50% or so of them reach out to someone in the months or weeks beforehand, looking for help. And we cannot dissuade that with a red flag law, this would be actually catastrophic, really, if people who own guns and are getting massively reported because they’re depressed, let’s say, and then they don’t seek help because they’re afraid of this, this would be a really… It would cause more problems than people really expect.

0:41:26.9 Trevor Burrus: So I’m open to many discussions on what to do with suicide. I think that people should be aware of this. And if their loved one or their friend seems to be in a bad place, you ask them if they could take… I’ll keep your guns for a couple of weeks, just so you’re not in this bad situation. There just needs to be much, much more awareness of who are actually dying with guns and which guns are doing it and under what circumstances. So suicide prevention and the other one, in the drug war, not to sound like a broken record in the libertarian sphere, but that would do more than any gun policy to lower gun homicides in the inner city than any reasonable gun policy that could be imposed.

0:42:09.3 Clark Neily: I think that’s right. I mean, it’s very difficult to find numbers to support that, right? But what we do know is that there’s probably no more powerful generator of criminal activity, including violent crime than a black market. We saw this with alcohol prohibition between 1920 and 1933 when violent crime rates across America spiked. We see it with the drug trade. And it’s obvious why this would be the case, right? Because a black market naturally attracts people who excel at the use of force to eliminate competitors and to protect their market share. If you’re very proficient at violence but not so good at product distribution or development or marketing, you can still flourish in a black market, right? And they do, people do. So that is a… I think self-​evidently, is a problem.

0:43:00.6 Clark Neily: And of course, the other thing with homicide, including gun homicides, is that they are unlike other crimes in a very important way which is that they tend to provoke a cycle of retribution. So that, particularly, when a member of one group, it could be just a neighborhood or a grant gang or other discernible group, commits an act of violence against someone outside of that group, there is very often going to be retribution. And these things become cyclical. So if we can prevent that first killing from happening, then there’s a strong likelihood that we also will prevent a number of downstream murders that are likely to occur as acts of retribution. And so if you have a policy in this case, drug prohibition, that sets this… Not only sets the stage for it, but engenders a tremendous amount of violence that wouldn’t occur otherwise. That’s… You’re paying an enormous cost for that policy. Now, maybe that doesn’t mean you get rid of the policy, but if you refuse even to acknowledge that your policy comes with this cost that is, that you have created a black market which is again probably the most powerful generator of criminal activity including violent crime known to man, then you’re being incredibly irresponsible as a policy maker. And so I think two things are true, right?

0:44:17.8 Clark Neily: We can almost get tremendous gain… We almost certainly get tremendous gains if we would eliminate the drug war. We would almost certainly see a significant drop in gun homicides. And to go back to your point about gun suicides which again represent about two-​thirds of all deaths caused by guns. Imagine that you had to choose between putting all of your resources, your public policy resources into providing better mental health support for people who are potentially suicidal, or you could choose to spend no money on that and all of your money in essentially trying to take… Make sure that none of them possess a gun. I just can’t fathom that you wouldn’t… Again, you don’t have to make this choice, but if you did… And I think it’s a helpful exercise, because it points us in the direction of, I think, appreciating that you are much more likely to get a significant return on your investment of public resources if you’re trying to come out the problem of suicide by trying to make sure that essentially you identify people who are feeling that way and provide them with the support that they need to no longer wish to take their own lives. Then if you put those same resources to work trying to deprive them of the means to take their own lives. I agree with you, by the way.

0:45:31.8 Clark Neily: I think that to a high degree of certainty, lives would be saved if at least some people didn’t have easy access to a firearm when they’re contemplating suicide. But that’s not a complete solution by any stretch. And it seems to me that we should be looking for… In a sense the kind of the low-​hanging policy fruit here. Where can we get the most return on the investment of public policy dollars and helping people emotionally who are feeling suicidal is very clearly one of those areas. And as you pointed out, and of course, this is us showing our libertarian colors, but I don’t think there should be lightly dismissed. Taking a fresh look at the drug war and saying, “Is this really worth the cost that we’re paying for it and the cost of creating this black market that has demonstrably engendered tremendous amounts of crime both inside the United States and, let’s keep in mind also, outside the United States where it has had tragic consequences for people in developing countries including Mexico and Colombia, other places around the world?”

0:46:39.1 Clark Neily: So anyway, it’s a complex problem, right? So at the end of the day, the issue of gun deaths is a very complex problem. One that for a variety of reasons, I think inclines people to advance sometimes overly simplistic policies that fail to take into account the limitations on our ability to implement those policies in the real world, give short shrift to the legitimate interests of people who wish to exercise their constitutional right to keep and bear arms, and that systematically over-​estimates the efficacy of those policies while systematically under-​counting the consequences including unintended consequences that are difficult to quantify. And we can and should do better.

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0:47:39.1 Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple Podcast or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.