Vol. 13 No. 1 (January2003)
CAN GUN CONTROL WORK? by James B. Jacobs. New York: Oxford University Press, 2002. 287pp. Cloth. ISBN 0-19-514562-3.
Reviewed by William J. Vizzard, Division of Criminal Justice, California State University-Sacramento. Email: vizzard@csus.edu .
James Jacobs’s most recent book, CAN GUN CONTROL WORK, reflects two dominant themes, pragmatism and law. Expanding on his earlier articles with Kimberly Potter in the JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, Jacobs approaches the volatile issue of gun control from a dispassionate analytical perspective with a focus on the details of implementation. In doing so, he provides a useful contribution to both the literature on gun control and to the broader literature on policy. Although well organized and very accessible to a wide range of readers, the book falls somewhat short in a couple of ways. My first criticism may seem somewhat picayune, but any diligent reader could get the essence of Jacobs’s critique from his earlier articles without bothering to buy the book. My more serious concern centers on the book’s failure to respond to my critique of that earlier work. In that critique I explored alternatives for overcoming the legal and practical problems of enforcement and implementation presented by Jacobs, and I examined indirect benefits that could result from regulations not universally enforceable or complied with.
In the following paragraph from his introduction, Jacobs summarizes the book’s core theme and presumptions:
I approach gun control as a problem of regulation….It is no doubt far easier, and certainly more satisfying, to debate gun control in principle, to locate oneself on the moral high ground and to demonize those who take the opposite position, than to deal with the extraordinarily difficult problems of designing, implementing, and enforcing a regulatory regime that would successfully deny access to firearms to some or all civilians, or keep track of the whereabouts and ownership of every weapon.
His focus on the mechanics of implementation provides a perspective too often ignored, particularly by policy advocates. As with any public policy, the devil is in the details of implementation, and implementation always proves more difficult and complex than foreseen by supporters. Failure to foresee and address potential problems may serve to facilitate adoption, but it can also undercut policy in the long term by precluding the rigorous examination and careful crafting that allow for success. Although incrementalist theory favors getting some policy adopted on the assumption that correction will come with time, early failure can undercut legitimacy and serve to block future initiatives. At the same time, measuring the success of any policy against the idealistic and inflated claims of its advocates provides the skeptic a decided and deceptive advantage. By this standard, virtually every criminal law and regulatory scheme would prove a failure.
Jacobs begins with a brief but useful review of existing federal gun laws. His subsequent encapsulation of state laws provides only a cursory overview of limited value to anyone with a background in the field. He then examines the level of firearm ownership and the deeply rooted position of guns in American culture. He correctly makes the case that any regulatory control must contend with both the huge existing population of firearms and the entrenched political and social support for individual gun ownership. Firearms are deeply imbedded in American culture, and the political support for private ownership needs little documentation. In addition, any new regulatory approach must address the 250 million firearms in the possession of at least one-third of American households. Though concise, this discussion provides a cogent and well-reasoned analysis of a critical component of any gun regulation. In addition, Jacobs touches on both federalism and the Second Amendment as obstacles to new regulation. This chapter presents a well-reasoned examination of implementation obstacles specific to guns and common to general regulatory policy. His critique of regulatory implementation cogently notes, “if a regulatory scheme is not enforced, it loses credibility.” This is a concept that all pro-regulation advocates should take to heart.
While Jacobs does a good job of foreseeing implementation problems he fails to devote much attention to devising solutions. The chapter sets a tone of skepticism with little attention to how problems in a regulatory regime might be addressed. One example can be found in his discussion of the difficulties of a federal mandate for state regulatory action in light of the Supreme Court’s ruling in PRINTZ v. U.S. Although Jacobs correctly characterizes the case as a serious hurdle, he fails to address some of the more innovative means for overcoming it, such as limiting the issuance of dealer licenses in states that fail to meet a federal standard or instituting federal licensing of owners that exempts residents of states with similar requirements. This skeptical theme repeats itself throughout the book and constitutes the book’s greatest failing. An examination of alternative conceptualizations of success and alternative means for accomplishing goals would increase the balance, and in my opinion, the value of the book.
The book devotes four chapters to the politics, content, and inadequacies of the Brady law. Jacobs provides an excellent discussion of the law’s content and mechanics, but I found the lack of theoretical or structural analysis addressing the origins of the law’s shortcomings a disappointment. Interested observers foresaw the weaknesses in Brady long before its passage, yet it became the Holy Grail for many advocates of gun control. Jacobs builds most of the remaining book on addressing the potential remedies for Brady’s shortcomings, among them restricting gun shows, controlling sales in the secondary market, requiring gun registration and imposing owner licensing. It is in examining the details of implementing these hypothetical strategies or regulatory schemes that Jacobs makes his most significant contribution to the literature of gun control and provides a useful model for other policy areas. He presents a thoughtful and insightful, albeit an incomplete, walk through the impediments that any such scheme would face. As a lawyer, he focuses on such problems as how enforcers would discover violations, locate evidence and assure compliance. He also considers such real world problems as jury appeal and prosecutorial resources and priorities. His list of issues is comprehensive and insightful. Yet, this discussion does have shortcomings. Jacobs essentially uses the remedies for Brady as straw men, constructing them only to knock them down. Although he correctly characterizes potential remedies like licensing and registration as inadequate to directly preclude most dangerous persons from attaining firearms – something he endorses on principle, or to reduce crime – he ignores any potential secondary effects. Public attitudes that shape jury, judge and prosecutor actions, as well as the mechanics of investigation, could change over time in a regulated environment. Although prosecution of violators with little criminal intent might prove difficult, prosecution of convicted felons with guns and illegal gun traffickers would likely become far easier. These individuals would have to bypass routine and widely known procedures to acquire or sell firearms, and by doing so, they would remove all defenses, legal or emotional, of innocent error. Jacobs makes extensive use of other regulatory policies to demonstrate the difficulty of obtaining public compliance but fails to acknowledge the implications of the high level of voluntary compliance with drivers license, vehicle registration and tax laws. He makes no examination of the recent success of anti-smoking and mandatory seat belt laws that have apparently shaped public behavior very effectively. Nor does he consider how potential civil liability might encourage compliance over time. I do not present this critique to dismiss Jacobs’ analysis. He presents cogent and well-reasoned arguments that any advocate of gun regulation should ponder long and hard, but one gets the feeling that he has decided the outcome before the game has begun.
Jacobs concludes his book with a survey of other gun control options such as safe storage laws, regulation of assault weapons and ammunition regulations, and he provides solid, but abbreviated, consideration of these issues. He correctly sees them as more symbolic than utilitarian, though he again fails to locate his analysis in much of a theoretical context. These proposals sometimes represent the musing of the uninformed, but more often serve as chess pieces in the ongoing policy conflict between control advocates and opponents. Ironically, Jacobs devotes very attention to the two most active policy debates of the present—mandatory issuance of concealed carry permits and ballistics databases.
Overall this book deserves serious consideration. It provides a direct challenge to control advocates to address the mechanics of their proposed regulatory schemes and to think more realistically about the details and potential difficulties of implementation. Gun control, like any regulatory policy, should be based on the probable cost and benefit rather than emotional reaction. Although much of Jacobs’s critique of potential regulation runs parallel to criticism expressed by gun rights advocates, it differs in its attention to detail and insight into legal process. Even a cursory reading reveals that Jacobs, who cannot distinguish a cartridge from a bullet, is not a gun enthusiast. His doubts reflect a concern for law and not a concern for firearms.
REFERENCES
Jacobs, James B., and Kimberly A. Potter. 1995. “Keeping Guns out of the ‘Wrong’ Hands: The Brady Law and the Limits of Regulation.” 86 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 93.
Jacobs, James B., and Kimberly A. Potter. 1999. “Comprehensive Handgun Licensing and Registration: An Analysis and Critique of Brady II, Gun Control’s Next (and Last?) Step.” 89 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 81.
Vizzard, William J. 2000. SHOTS IN THE DARK: THE POLICY, POLITICS AND SYMBOLISM OF GUN CONTROL. Boulder, CO: Roman and Littlefield.
CASE REFERENCES
PRINTZ v. U.S., 521 US 98 (1997).
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Copyright 2003 by the author, William J. Vizzard