Does the Number of Guns Matter?
A pair of recent reports address the number of firearms being manufactured and already in circulation: one from the ATF (a 2019 AFME report/update on manufactured, imported, and exported guns for 2017), which, along with previous ATF annual reports, furnished part of the basis for an industry annual report published by the National Shooting Sports Foundation (NSSF) on December 4 (see also here for a nice brochure-style report with colorful tables). The two big takeaways are that the NSSF now estimates there are 17.7 million “modern sporting rifles” in circulation (AR-15’s and similar long guns), and 423 million firearms total in the U.S. - the latter being a significantly higher number than major news outlets, nonprofits, criminologists, or public health researchers have been using for the existing stock of firearms.
The NSSF and the pro-gun blogs touted these numbers as having political significance, either because the numbers are so large now that (Democratic) proposals for mandatory buybacks seem fiscally infeasible and administratively impractical, even for assault rifles, or because the numbers suggest that bans and buybacks are less politically viable than anyone had imagined. (The gun control blogs were strangely silent about these numbers, despite the attention and discussion they received by pro-gun writers). For gun control advocates, of course, larger numbers merely raise the sense of urgency for curbing the production and sale of more guns.
Apart from political realities and policy alternatives, these reports raise some questions about whether the number of guns matters for courts, and whether it should. On the one hand, could the number of assault rifles (or some other subcategory of guns) get high enough to normalize/mainstream a weapon enough that courts would invalidate a ban on that type of weapon, at least partly due to the sheer number in circulation? Does the current stock of firearms play a part in the proposed "history, text, and tradition" approach, or does that approach only look nostalgically at previous eras for guidance? The pending cert petition in Worman v. Healey involves a challenge to a state ban on assault rifles, and the arguments include a point about how many people already own these weapons. The number of guns in circulation also came up in the district and circuit court opinions in Kolbe v. Hogan. Joseph Blocher discusses the too-common-to-ban idea in his new article Bans.
On the other hand, this raises the opposite question as well: whether there is a maximum threshold for Second Amendment protection in terms of sales. Suppose, for example, that in a few years there were a billion guns in circulation in the United States - say, three or more for every person in the country - would it still count as an infringement on the Second Amendment to ban all sales of new firearms? Could there be a Second Amendment saturation point, either in terms of number of guns already available, or rate of ownership (suppose hypothetically that in twenty years, 90% of Americans have firearms in their homes), a point at which a ban on production or new gun sales could not infringe on the right to bear arms - because there are plenty of arms available? For bans on manufacturing or new gun sales, the notion of infringement becomes far less relevant at a certain point. The Second Amendment’s purposes are satisfied. Of course, other government actions could still constitute an infringement, like a government confiscation or severe restraints on use. The Second Amendment is unique within the Bill of Rights for tying a right to an object, and the logical implication of that is that the object could eventually become so abundant (or over-abundant) that banning new production of the item would pose no practical risk of infringement on a right to acquire, keep, or bear them. Guns last a long time – a person’s lifetime, if the gun receives routine maintenance and care. There must be some threshold, therefore, where replenishing the supply is superfluous from a Second Amendment standpoint.
Naturally, there is room for debate about where the line should be, but the debate would not be meaningless. Advocates can make rational arguments for where a court should draw the line, and a court could have good reasons for drawing the line at X. There are some nuances to consider: banning new production normally raises the market price of the item on the secondary (used) market, so a ban on new production would, theoretically, raise the resale price of existing guns, though it is not clear how much, if we are already at a point of a flooded market and super-abundant stockpiles of a long-lasting, reusable item. As far as I can tell, price changes on the used firearm market resulting from major fluctuations in production have not received much (or any) academic study to date. Even if the resale value of guns rises, this could be a net wealth increase for those who already have guns, which in this hypothetical scenario is most of the eligible population – especially if used guns are currently undervalued by the market due to overproduction of new guns. Oversupply of a consumer item can have complex effects on prices or cause certain types of market failure. And resale prices are not the only concern here – the Second Amendment protects the rights of people to keep and bear arms, but not necessarily a right to resell them.
The extreme position for line-drawing would be the functional equivalent of universal armament (something close to 100% of the eligible adult population), and this is a helpful benchmark for the sake of discussion. Nevertheless, there is reason to think the Second Amendment could be functionally infringement-proof at some point before that. I would suggest, for the sake of symmetry, that we reach Second Amendment saturation not at a billion guns, nor at 90% ownership, but at the point when the guns in question are clearly too common for a government buyback or confiscation to be feasible.
Thus far, I have been distinguishing between a ban on new production/new sales and a ban on possession/resale. Suppose, however, a scenario with a proposed ban on possession, either of guns in general, or a certain type of gun, or even large-capacity magazines. If the primary problem with this proposed ban on possession is that too many people already own the guns in question, or that the guns are already too abundant, then it is arguable that they are abundant enough to ban for new production without infringing on the Second Amendment. If some other issue – besides abundance – is the primary legal problem with a ban on possession, then it may not trigger saturation concerns. While the saturation argument is mostly relevant for bans on new production, it is not irrelevant for discussions about bans on possession.
The number of guns in circulation also comes up in discussions about smart guns (I have a draft article about this topic here). On the one hand, even if gun manufacturers started producing smart guns exclusively, the new ones would be insignificant in number compared to the existing supply of traditional-mechanical guns, though this would slowly change over the course of a century or so, if current purchase rates continued. On the other hand, the controversial (now repealed) New Jersey statute that banned the sale of traditional firearms once any smart guns become available was, in fact, a ban on new production of traditional firearms – for which Second Amendment saturation would be relevant, at least in the future.