What if we passed a law knowing that even usually law-abiding people wouldn't comply with it? This fall, California voters may do just that if they approve Lt. Gov. Gavin Newsom's Safety for All gun reform initiative. The result could be a small enhancement in public safety, and a potentially significant increase in disrespect for the law.
The Safety for All ballot measure has two main provisions: a requirement that purchasers of ammunition undergo a background check, and a ban on the possession of magazines that hold 11 or more rounds of ammunition. The first is a worthwhile reform, but there are reasons to worry about the effect of the second.
Requiring background checks for ammunition makes sense. California already requires people buying a firearm to undergo a background check to ensure they are legally authorized to have a gun. Yet if a felon already has a gun, today he can walk into any gun store and buy all the ammunition he wants. If Newsom's initiative passes, some bad guys will still be able to find ammunition on the black market, but the new law would at least shut down the easiest way for people who shouldn't own a gun to buy ammunition.
The ballot measure's ban on the possession of large-capacity magazines has more downsides. California already bans the sale of such magazines, but people who owned them before that law went into effect in 2000 are allowed to keep them. Newsom's initiative would outlaw possession of those grandfathered magazines.
The desire to ban high-capacity magazines is understandable. Mass shooters often use large magazines to fire dozens of rounds without having to reload. If forced to rely on smaller magazines, they would have to stop shooting momentarily to reload their firearms. That can be done quickly, but those few seconds can be enough for someone to intervene. Indeed, the Tucson man who shot Rep. Gabrielle Giffords (D-Ariz.) was stopped when he tried to reload with a new magazine.
If we really want to reduce gun violence, however, our laws should focus primarily on reducing the daily death toll from guns, not mass shootings. Even in countries with the strictest gun laws, mass shootings occur. In this country, mass shootings grab headlines but they represent only a fraction of the gun deaths each year. The magazine ban will have little impact on ordinary criminals in California, who don't need or use more than 10 rounds of ammunition to commit their misdeeds.
Even the slight benefit promised by a ban on large magazines — forcing mass shooters to delay momentarily — is outweighed by the unfortunate consequences of passing a law that normally law-abiding people won't obey. If past experience is any guide, the magazine ban is just such a law. In 2013 Sunnyvale banned high-capacity magazines and, after a grace period for gun owners, police reported that not a single person had turned in a magazine. Los Angeles and San Francisco enacted similar laws and few, if any, gun owners have disposed of their magazines.
As more gun laws that gun owners believe are wrong or foolish have been adopted, noncompliance has become a significant problem. When California required registration of assault weapons in 1990, only about 7,000 of the estimated 300,000 assault weapons then in the state were registered. In New York, which required registration of assault weapons in 2013, the compliance rate is about 5%. Connecticut has also seen a remarkably low rate of compliance with its law mandating registration of large magazines.
Why is compliance with such laws so low? Some people have an ideological opposition to any gun control law. Yet when 95% of gun owners don't comply with a law, it's not just the die-hards objecting. Legal theorists argue that people are more likely to comply with laws they view as morally or socially just. To a person whose gun came standard with one of these magazines and who has owned it for years without incident, the idea that these devices are inherently dangerous does not resonate.
In the absence of cooperation from gun owners, the large-magazine ban is unenforceable. It would be practically and politically impossible for the government to go door to door to find and collect the magazines. The ban will be enforced only when someone gets caught with one, say in a search related to an arrest.
This means that the magazine ban is likely to be enforced primarily against racial and ethnic minorities, who are disproportionately the target of police investigations, searches and suspicion. Such selective enforcement further threatens the public legitimacy of gun laws, and the overall unenforceability of a large-magazine ban all but eliminates its already minimal public safety benefits.
Americans have tried over and over to outlaw things that some insist are objectionable and others enjoy. Prohibition was repealed when its supporters realized that the disobeyed laws against alcohol brought the whole legal system into disrepute. The war on drugs is widely recognized as an abject failure. We haven't even been able to stop music file-sharing, which despite a 10-year effort by the recording industry is as popular as ever.
Like alcohol, drugs and file-sharing, guns — including the ones with large magazines — are here to stay. Gun policy is going to be more effective when we stop fighting against that simple fact.
Adam Winkler is a professor at UCLA School of Law and the author of "Gunfight: The Battle over the Right to Bear Arms in America."
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