Ian Ayres and Frederick Vars, Weapon of Choice (Harvard Univ. Press, 2020)
Ian Ayres and Fred Vars set forth several innovative proposals for firearms regulation in their 2020 book Weapon of Choice. The first part of the book sets forth and expands upon the authors’ proposals for “Libertarian Gun Control,” i.e., self-imposed legal restrictions on gun purchases, which they have set forth previously in a series of articles which this blog has previously featured here. I have argued for something similar here. The discussion below, however, focuses on one of their newer proposals, explained near the end of the book.
The last two chapters of the book propose legislative initiatives to permit third party Unlawful Possession (UP) petitions – that is, to allow others to petition for gun removal from prohibited persons, including felons. Currently, a major barrier to enforcing the felon dispossession laws is how difficult it is to know who possesses firearms illegally, unless law enforcement officers search the person or their property pursuant to an arrest or investigation of another crime. Ayres and Vars propose harnessing private information to increase enforcement. (pp. 122-25). Many prohibited persons who possess firearms are known to relatives, acquaintances, and neighbors, and the proposed legislation would allow such individuals to file a petition in court to have the firearms removed and/or have the individual arrested. Unlike a tip directly to the police (who often ignore such tips), this would come before an impartial judge, who would make a judicial evidentiary determination whether the individual is, in fact, ineligible to have firearms, and has firearms nonetheless. The court would then issue an order for firearm removal that the police could carry out. For Ayres and Vars, this would also help address the massive under-reporting (mostly by states) of prohibited persons to the NICS database (p. 128-32). Based on statistics about drug use and hospital admission for mental health problems, they estimate that there are tens of millions of individuals who cannot possess guns legally (p. 132), of whom hundreds of thousands nationwide probably possess firearms anyway. (p. 139) Police normally view illegal firearm possession by itself as a low-priority item for enforcement, they posit, but would give higher priority to gun removal if someone filed a petition for this in court. (p. 126).
Ayres and Vars explain the variety of ways in which prohibited individuals end up in possession of firearms, even though it is illegal for them to purchase them. Some purchase their guns from licensed dealers and pass the background check because their name is not in the NICS database, due to underreporting. Some who are in the NICS database bypass the background check system through private (unlicensed) sellers, such as internet sales, acquaintances, and some gun show sales. Still other prohibited persons receive guns as gifts or inheritances from friends or relatives, and some obtain them through theft. Importantly, many individuals who bought and owned guns legally become ineligible for gun ownership, and simply keep the guns they already have. (p. 134) More than 300,000 people in 2020 failed background checks when attempting to buy guns from a licensed dealer (an all-time high, almost doubling from the previous year), because their name is in the NICS database, and very few (around .01%) of these individuals face federal prosecution for attempting to buy guns illegally. Ayres and Vars report that only three states – California, Connecticut, and Nevada – have laws expressly requiring individuals to provide “proof of compliance to courts or law enforcement verifying they relinquished their guns after conviction.” (pp. 135-36). Based on California’s extensive efforts to locate and confiscate illegally possessed firearms, Ayres and Vars believe police can conduct such removals with a minimal risk of violence. (p. 151) (For a new report on the pros and cons of California’s gun removal program, see here.)
If this sounds like a turn toward more heavy-handed enforcement (or not very “libertarian”), Ayres and Vars also include large categorical exceptions in their proposed legislation. Unlawful possession petitions would not apply for those whose ineligibility is due solely to being marijuana users, undocumented residents, citizenship renouncers, and (importantly) nonviolent felons and violent felons twenty years post-conviction (pp. 143-44). They do not define “violent” versus “nonviolent” felonies. These categories of individuals, they explain, show little empirical evidence of posing a danger to others, a point that the Third Circuit countered in its Folajtar opinion last year. Ayres and Vars acknowledge that simply tracking with the federal categories without exceptions would be likely to reduce the overall number of guns, including illegally owned guns, and would probably save lives, but they believe “political prudence and justice” weighs against allowing unlawful possession petitions against individuals they deem non-dangerous. (p. 144).
Anticipating a few objections, they believe that their exceptions will mitigate or eliminate the problem of racial disparity in enforcement of their proposed law. (pp. 148-52) Their proposal also includes sanctions for those who file removal petitions in bad faith to address the potential for misuse of the system. (p. 152)
Ayres and Vars follow this proposal with a chapter on incentivizing enforcement by paying cash bounties for UP petitions that result in the removal of illegally owned firearms (p. 155), and mandatory reporting requirements (with threat of fines and tort liability) for employers and universities that know someone poses a threat and should not have firearms. They also propose ratcheting up the existing rewards and punishments of federal funding to states based on their performance in reporting prohibited persons to the NICS database. (pp. 164-65) (For up-to-date reports on existing incentive programs for reporting to NICS, see here and here).
I agree with Ayres and Vars that underreporting to NICS continues to be a serious problem, and that there would be significant benefits to fixing this. One way to do this is to expand the range of who can report to the NICS database (for example, any court personnel who are aware of a felony conviction or even a no-gun order in bail hearings, probation sentences, some child custody cases, and non-marital restraining orders – this rarely happens now), and to have citizen petitions that could either flag someone already in the NICS system who has illegal firearms, or flag individuals for inclusion in the NICS database if their prohibited status can be easily verified, as with convictions or involuntary confinement in a mental health treatment facility.
My main concern about this is that their exception for “nonviolent” felonies would prove as indeterminate and unworkable as “crime of violence” has been for the last few years in the context of the Armed Career Criminal Act (ACCA), provisions of 18 U.S.C. § 924(c), and the federal sentencing guidelines. Deciding in each individual case whether a specific conviction was for a crime of violence has become extremely labor intensive for the judiciary, fraught with uncertainty and inconsistencies. Other scholars have decried its unfairness, its indeterminacy (noting discrepancies in whether state manslaughter charges constitute “violent” crimes), and its inappropriateness for non-jury determinations. Adopting a limitation on felon-in-possession laws based on dangerousness or “violent felonies” would import these same problems and burdens into the context of our most frequently enforced firearms law. The Third Circuit made a similar point in footnote 10 of the recent Folajtar opinion (referencing a more thorough argument along these lines in Judge Fuentes’ partial concurrence in Binderup v. Attorney General), analogizing to the unworkability of the now-defunct statutory scheme for felons to petition for restoration of gun rights in 18 U.S.C. § 925(c), which Congress defunded in 1992. In the context of the ACCA and the sentencing guidelines for “crimes of violence,” the Supreme Court avoided the overly-subjective factual inquiry that had unraveled the restoration-of-rights statute, and adopted a “categorical” approach – looking at whether the statute under which the felony conviction occurred included an element of use or threat of violence (force). This requires an exercise in complex statutory interpretation rather than a review of the facts of the crime committed or the felon’s present dangerousness. The categorical approach, in turn, has forced lower courts to parse numerous state statutes, reaching the inconsistent and counterintuitive results delineated in the commentary mentioned above. In the end, distinguishing “violent/dangerous” felonies from nonviolent/non-dangerous ones will require one or the other approach – either a factual inquiry into the felon’s original crime or a categorical-statutory approach, and neither of these has worked well in answering this same question in other areas of criminal law.
Moreover, it would be infeasible for local police to make the complex legal determinations of whether a conviction was for a “crime of violence” that have become requisite for this same legal term of art in the arena of the ACCA and sentencing. There are recent examples of police making good faith errors in determining whether a suspect’s prior convictions constituted misdemeanors or felonies for purposes of making an arrest under the felon-in-possession law – and this would add new layers of complexity and uncertainty to the inquiries that must precede routine warrant applications and arrests.
I was surprised that the Ayres and Vars proposal did not include eliminating long prison sentences for unlawful possession of firearms and replacing prison time with simple gun forfeiture (via streamlined asset forfeiture proceedings) and possibly subjecting the individual thereafter to administrative searches. In the context of regulatory enforcement, warrants for administrative searches (such as the audits and inspections that now happen for licensed gun dealers) require less supporting evidence than search warrants in the criminal context – for example, if individuals or enterprises are subject to monthly inspections, all that is required for officials to obtain a warrant is evidence that the last inspection or search occurred more than 30 days prior. While I think the felon-in-possession statute is good public policy, it has contributed significantly to the problem of mass incarceration and the troubling racial disparities inherent in the carceral system. Simply removing (confiscating/forfeiture) the guns might serve the purpose of ensuring public safety just as well, without the need for subjecting violators to long prison terms. (Note: in 2017, the Texas Supreme Court held in Tafel v. State that unlawfully carrying a weapon in a prohibited location did not constitute “use” of the weapon and therefore the gun was not subject to forfeiture under the relevant statute).
A growing body of literature advocating for prison abolition has made a strong case for finding alternatives to incarceration that would still ensure public safety. Firearm bans combined with gun forfeitures and periodic inspections/searches, at least for those who commit serious crimes, will have to be part of the package for moving away from mass incarceration. The Ayres/Vars book presents many thought-provoking, innovative proposals for addressing gun violence in ways that minimize intrusion on the rights of lawful gun owners, and I was surprised they did not include some suggestions for replacing prison terms with simple gun removal orders and periodic inspections.