Pieces Reviewing Ayres and Vars' Weapon of Choice

The Quinnipiac Law Review recently published a series of essays from a symposium discussion of Ian Ayres and Frederisk Vars' recent book, Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights. I wasn't able to find publicly accessible copies, but some excerpts are below (including from our own Joseph Blocher). 

• Joseph Blocher, Two Concepts of Gun Liberty, 39 Quinnipiac L. Rev. 363 (2021)

From the Article (footnotes omitted):

Gun rights are celebrated by many as a form of liberty--“America’s First Freedom,” as the title of the NRA magazine puts it. But what kind of liberty is at stake, and for whom? Ian Ayres and Fredrick Vars’ Weapon of Choice provides a novel and important approach to those questions by proposing a system by which people can voluntarily restrict their own access to arms. The lessons it suggests are relevant to discussions of gun rights and regulation more broadly; namely, that gun rights can be understood as both positive and negative liberties (to borrow Isaiah Berlin’s famous frame from “Two Concepts of Liberty”), and that efforts to regulate guns can also be understood in those terms.

Putting liberty on both sides of the scale is important. The gun debate in the United States is usually framed as if it is a matter of constitutional liberty on one side--that of gun owners--and “policy” interests on the other. As a matter of litigation, this is not necessarily a losing frame for would-be regulators, since constitutional rights can sometimes be restricted if the government can show that the regulation in question is adequately tailored to achieving a sufficiently weighty governmental purpose. And, since no one doubts the importance of the governmental purpose in lessening the catastrophic number of fatal gun injuries (about  40,000 in 2018), the question typically becomes whether any particular law does so effectively enough. In the vast majority of litigated Second Amendment cases, the answer has been “yes.”

But the “liberty versus policy” frame nonetheless distorts constitutional litigation and public discourse, effectively stacking the deck--legally and rhetorically--against efforts to reduce gun harms.

• Stephen G. Gilles, Weaponized Associational Choices and Second Amendment Rights, 39 Quinnipiac L. Rev. 371 (2021)

From the Article (footnotes omitted):

I commend Ian Ayres and Fredrick Vars for writing Weapon of Choice with the goals of reducing gun violence and gun deaths, while simultaneously finding common ground between gun-control advocates and defenders of gun rights. Part I of their book promises to achieve both goals: Ayres and Vars focus on gun suicides--which account for “[w]ell over half” of gun deaths in America. They have an ingenious plan to reduce gun suicides by enabling persons who are worried about their own suicidal tendencies to waive their rights to purchase--or even continue to own--a gun, using a state-sponsored registry that will feed into the federal background check system. Enabling people to protect themselves from their own suicidal impulses is a great idea, and one that gun-rights supporters should embrace.

…The subject of this essay, however, is Part II of Weapon of Choice, which I will argue cannot possibly meet its authors' goals. In Part II, Ayres and Vars propose several laws that they argue will reduce gun violence by “Harnessing Others' Association Preferences.” I will focus on their broadest and--from the standpoint of Second Amendment rights--most burdensome proposal, which they refer to as the “email option.” After summarizing how the email option would work, I will argue that the proposal is unconstitutional, in part for reasons that would also make it bad public policy. Finally, I will explain why proposals such as the “email option” are far more likely to further polarize the gun-control debate than to build consensus on how best to reduce gun violence.

• Brannon P. Denning, A Skeptical Look at Associational Marketplaces and Gun Ownership, 39 Quinnipiac L. Rev. 397 (2021)

From the Article (footnotes omitted):

Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights is an important and timely addition to a polarized and tired debate about gun violence in the United States. Ian Ayres and Fred Vars offer concrete policy proposals beyond the usual jejune calls to “close the gun show loophole,” “ban assault weapons,” or implement some large-scale confiscation program. The bottom-up approach advocated by the authors holds the promise that some proposals might be adopted in some states and furnish data on which, if any, could be scaled up nationwide. It is a very important contribution to the literature on stopping gun violence and though the authors tend to favor more regulation, they write for the most part with an understanding of, and respect for, the fact that tens of millions  of Americans cherish the right to keep and bear arms guaranteed by the Second Amendment.

Specifically, the Ayres & Vars' proposals to reduce gun suicides are an important contribution to an aspect of the gun violence problem in the U.S. that has long been overlooked in debates over gun control. Likewise, they make a valuable contribution to debates over how best to make sure that guns do not belong in the hands of people who may not legally possess them or whose mental state makes gun possession by them a hazard to public safety. The middle third of the book also proposes the creation of “associational marketplaces” that would require certification of non-possession a condition of engaging in certain types of private contracts, such as leases. I will argue here that these associational marketplaces have constitutional problems that are soft peddled by Ayres and Vars. In addition, I think that widespread implementation of association marketplaces for gun ownership and non-ownership have potentially harmful societal implications.

Part I of this essay briefly describes how Ayres and Vars envision the societal marketplaces functioning, including the limit that the authors would place on their use. Part II then sketches some potential constitutional problems; Ayres and Vars concede that constitutional values are implicated, but ultimately dismiss them as overstated. I find their dismissal of the values they say are implicated a little too breezy, and I think that they overlook other, possibly more serious, constitutional problems with their proposal. Part III then argues that whatever the merits of the constitutional case against associational marketplaces, there are implications for society as a whole that counsel against their adoption.

• Katrina Brees, The Story Behind Donna’s Law, 39 Quinnipiac L. Rev. 359 (2021)

From the Article (footnotes omitted):

As a teenager, I was the first to diagnose my mother as bipolar. At the time, it was called Manic Depression, and I found her extreme episodes labeled as such in a psychology book I found at the local library. She would be voluntarily hospitalized a dozen or so times more over the years.

…

June 26, 2018 we ran out of time.

She searched on her phone for “gun stores New Orleans” and left her house for the gun shop. Her partner called the police, hoping they would be able to intercept the inevitable. She purchased a Smith and Wesson 38  and a box of pink bullets that claimed to support breast cancer. She drove to the park and shot herself. It was all very quick.

…

Two days after her suicide, I posted this on my Facebook page:

My mom bought a gun in New Orleans on Tuesday and drove to the Tree of Life and opened the box and shot herself. I'm telling you all because gun control is not only about homicide, it is twice+ as likely to be a suicide. People suffering from bipolar and depression have no way to protect themselves from a suicidal gun purchase in Louisiana. I wish my mom could have registered herself as being unfit to buy a gun. She would have signed it years ago to protect herself and our family. I hope one day we can give people with bipolar and depression a better chance at living, but we are a long way off. I'm sorry to be so raw, I feel raw. I can't believe how impossible it was to get my mom help and how easy it was for her to buy a gun. RIP Mama Donna Nathan. It's OK to share this if you like.

The post went viral. The media helped with sharing my story and supporting my efforts to create a voluntary registry to prevent suicidal gun purchases. I had recently been hired by the Republican party as a sculptor to create art for their convention. My employer saw the articles and promised to help find me a sponsor. As the former head of the Louisiana Republican Party, he was very helpful. The convention would prove to be an amazing opportunity. I was able to make the connections I needed and get bipartisan support for Donna's Law. While it did not pass the House in Louisiana, it has since passed in Virginia and I look forward to supporting families across America as they attempt to adopt this life saving tool.