January 13, 2004, 8:46 a.m., National Review Online

Guns vs. Teddy Bears

There's no competition when it comes to regulation.

By Tim Wheeler & Dave Kopel

Should unelected officials be allowed to order the confiscation of some or all guns and ammunition in the United States? This is the question posed by Sen. Jon Corzine (D., N.J.) and Rep. Patrick Kennedy (D., R.I.), in their proposed Firearms Safety and Consumer Protection Act. As one might suspect, the bill is about neither firearm safety nor consumer protection, but is an especially clever stratagem by the gun-prohibition lobby. The Kennedy-Corzine bill would give the Treasury Department and the courts nearly unlimited powers to restrict firearms manufacture and sales, and to confiscate guns.

The bill is premised on the gun-control activists' claim that guns are an unregulated consumer product. Teddy bears, they preach, are more heavily regulated than guns; though anyone who has tried to buy a gun lately would probably disagree. For example, there is no federal agency like the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) that licenses teddy-bear manufacturers, wholesalers, and vendors. Teddy-bear stores do not have to keep permanent records on all their customers, and make those records available for government inspection. 

You don't need permission from the FBI to buy a teddy bear, but you do if you want to buy a gun. No other consumer product requires federal-government approval for every single retail transaction.

The Supreme Court accurately characterizes the gun trade as a "pervasively regulated business" (United States v. Biswell, 1972). Thus gun stores, but not teddy-bear stores, are subject to warrant-less inspection by federal agents, notwithstanding the Fourth Amendment requirement that searches are only allowed with a warrant based upon probable cause.

It's not as though no one ever thought of setting safety standards for guns and ammunition. The original consumer safety regulations for American firearms were the standards set for the industry by the Sporting Arms and Ammunition Manufacturers Institute (SAAMI), an industry trade association. SAAMI was created in 1926, pursuant to a request from the federal government. SAAMI has promulgated over 700 standards, which are updated every five years. SAAMI standards are examined and reviewed by the American National Standards Institute (ANSI) and by the National Institute of Standards and Technology.

Although SAAMI standards are not legally binding, manufacturers bidding for government contracts must meet the standards, since the FBI, the U.S. military, and many state or local government agencies often require that procured firearms meet SAAMI specifications.

Of course Congress and the state legislatures enact all sorts of "gun-safety" laws. The federal "assault-weapons" law bans over 200 models of firearms. (Most of the guns are banned by the generic "assault-weapon" definition, rather than by being specifically named.) Some states ban small, inexpensive "junk guns"). Federal and state laws require a variety of safety information to be supplied by gun stores, and some states require consumers to take a test or pass a class before purchasing a handgun. So the legislative branch — that is, the law-making branch — is certainly capable of passing laws that it thinks will promote gun safety.

SAAMI standards should satisfy true consumer advocates. Seeking additional legislation is the proper approach for people who want additional restrictions. But gun-prohibition activists have realized that most Americans believe they have a right to own guns, and a right not to have their property confiscated. Because legislators have to answer to their constituents, passing gun-prohibition laws is difficult even in states such as New York and California. Gun confiscation is even more difficult to enact. Hence the campaign to authorize unelected bureaucrats to confiscate guns — under the guise of consumer safety.

The first effort to set up bureaucrat-based gun prohibition came shortly after the creation of the Consumer Product Safety Commission. In 1975, congressmen from Illinois and Michigan tried to push an amendment that would give the CPSC the power to control and ban guns and ammunition. Members of Congress lined up to excoriate the amendment's authors for their attempt at back-door gun prohibition. The Congressional Record from July 29, 1975, documents the comments from outraged representatives:

Representative Ketchum (California): "The issue of gun control is one which must be decided by Congress, as the elected representatives of the people. It would be an absolute outrage to give this kind of authority to a Federal bureaucracy."

Representative Dingell (Michigan): "The amendment gives CPSC the right to test every firearm and every round of ammunition and to issue all manner of regulations, harassing the firearms manufacturers, harassing sportsmen, harassing licensed firearms dealers, and generally getting their nose into those things that the Congress said they should not get their nose into."

Representative Evans (Indiana): "Mr. Chairman, I have received more letters from my constituents on the issue of banning handgun ammunition as a hazardous substance than perhaps any other matter. The people in the sixth district were irate that the Commission was considering, in effect, handgun control by a back-door method."

Congress reacted by passing legislation in 1976 that explicitly denied the CPSC authority over firearms and ammunition. The 1975-76 debate showed that the proponents of administrative gun prohibition could not show any real problem of gun injuries from improper labeling of guns or ammunition. In the three decades since that debate, accidental gun-related injuries and deaths have plummeted — proving that prohibition imposed by a federal bureaucracy is not the only path to ever-greater safety.

Take true consumer-product safety advocates, who would target defective guns. For example, if a bullet gets stuck in the firing chamber, the energy gunpowder explosion will not travel down the gun barrel, but will be directed outward in all directions from the firing chamber — destroying the gun, and possibly injuring the shooter's hand. Such malfunctions are what the SAAMI standards prevent.

Importantly, tort lawsuits are available if a manufacturer makes guns or ammunition which malfunction dangerously. Such lawsuits have helped drive some low-quality manufacturers out of the market, and the potential of such lawsuits provides a continuing incentive for manufacturers to maintain high quality control.

Most states have enacted tort-reform laws to restrict junk lawsuits against gun companies, and federal legislation passed the House this summer. Neither the state nor the federal reforms restrict product-liability suits for guns which really are defective.

The social problem with guns does not involve mislabeling or malfunctions: The problem involves people who deliberately misuse firearms. Likewise, the problem of criminals driving cars to escape from the scene of convenience-store robberies does not involve defective car design; it involves deliberate misuse of a properly functioning product. Robberies and gun crimes are serious problems, but they are criminal-justice problems, not product-regulation problems.

Yet now, the Kennedy-Corzine bill would authorize administrative bans on guns and ammunition. It is a founded on the 1970s campaign for administrative gun prohibition, except that the Treasury Department, rather than the Consumer Product Safety Commission, would have the gun-banning power. All it would take is a Democratic president (Howard Dean excepted) to make the right appointments, and the gun-prohibition juggernaut would roll.

The Kennedy-Corzine bill is loaded with special clauses that make it especially dangerous, even beyond the obvious danger of authorizing firearms prohibition.

It applies to firearms accessories, and thus would set the stage for the prohibition of laser sights. Laser sights have become very popular in the last decade, as their price has declined. Pro- and anti-rights activists agree that such sights make it significantly easier for the shooter to fire the gun accurately under intense time pressure — as in a self-defense situation. Since the antigun movement is founded on the premise that it is immoral to use guns for self-defense unless you are a government employee, laser sights are anathema to them.

The Kennedy-Corzine bill also applies to airguns, such as the Daisy Red Ryder BB gun. Antigun activists in Canada, the U.K., and other nations have imposed severe restrictions on hundreds of models of such guns, and Kennedy-Corzine would allow similar restrictions in the United States. BB gun opponents refer to the guns as "non-powder firearms," although the term is an oxymoron. A firearm uses fire (the gunpowder explosion); something which is powered only by compressed air can be a gun (which shoots an object down a barrel), but it cannot be a "firearm."

Not only would the Treasury be allowed to prohibit the future manufacture and sale of some or all guns, it would also be allowed to "recall" guns — that is, to confiscate some or all guns currently in private hands. No compensation would be paid to the owners.

A Treasury official would be authorized to take "emergency action" to ban or confiscate guns, without having to comply with normal administrative procedures — such as those that require public comment before the promulgation of a rule, or which require public notice before a rule is created.

And most important of all, Kennedy-Corzine allows private enforcement of the Act. This means that even if Tom Delay were the secretary of the Treasury, a gun-ban group could sue in a sympathetic court (perhaps in New York City or San Francisco), and a single federal judge could order gun confiscation, prohibit gun manufacture, or do almost anything else he wanted to eliminate or restrict gun ownership.

Putting aside the merits of gun policy, and ignoring the Second Amendment, we are still left a fundamental question: Since Article I of the U.S. Constitution gives "all legislative powers herein granted" to the Congress, why should unelected officials in the executive branch be given the power to ban guns which Congress has not voted to ban? It violates the text of the Constitution for Congress to delegate law-making power to executive-branch agencies such as the CPSC. Moreover, allowing Congress to delegate law making to administrative agencies allows Congress to dodge tough decisions, as detailed in David Schoenbrod's fine book, Power Without Responsibility: How Congress Abuses the People through Delegation.

Under the Constitution, it is supposed to be hard to make new laws; the proposed law must be passed by the House of Representatives, by the Senate, and then signed by the president (or re-passed by two-thirds of each house of Congress over the President's veto).

By making it difficult to impose new laws, the Founders created a system in which liberty would be the norm, and restraint would be the exception. But law making by executive agencies inverts the whole process; a single bureaucrat, with the wave of his pen, creates new laws. Then, victims of the new restriction carry the difficult burden of trying to get Congress to pass a law to remove the infringement on liberty.

An additional liberty protection implicit in the Constitution's grant of law-making power to Congress alone is that there are a finite number of hours in the day. If only Congress can make the laws, then we will have only as many laws as Congress has the time to pass. Delegation, though, enables hundreds of executive-branch agencies to make laws, even while Congress is adjourned.

Foisting the hard choices off onto federal agencies undermines democracy, since a person who does not like a congressional vote can vote against the congressman in the next election, but no one can vote against a bureaucrat.

For most of our country's history, Congress did not attempt to give its law-making power to the executive branch. In the few instances when Congress did, the Supreme Court said "no." For example, in 1935 a unanimous Supreme Court struck down the National Industrial Recovery Act, which a delegated to President Roosevelt and his National Recovery Administration the authority to regulate the entire economy (Schecter Poultry Corp. v. United States).

But a few years later, the Court, under intense political pressure from the Roosevelt administration, abandoned its constitutional duty of enforcing the separation of powers between the legislative and executive branches. As a result, the volume of laws unconstitutionally made by the executive branch (which are contained in the Code of Federal Regulations) is roughly four times larger than the volume of laws constitutionally created by Congress (contained in the United States Code).

Several years ago, Sen. Sam Brownback (R., Kan.) and Rep. J. D. Hayworth (R., Ariz.) proposed legislation to specify that no new administrative regulation would go into effect unless Congress voted to implement it. Such legislation would be a gigantic step forward for strict and appropriate enforcement of the Constitution. Just as the mere risk of gun prohibition by the CPSC in 1975 spurred Congress to take protective measures, the new Kennedy-Corzine bill suggests that citizens who are serious about the Second Amendment should also get serious about enforcing Article I.

— Timothy Wheeler, M.D., is director of Doctors for Responsible Gun Ownership, a project of the Claremont Institute. Dave Kopel is co-author of the new book Supreme Court Gun Cases.