30, 2002 9:00 a.m.
if the government had to obey gun-control laws?
By Dave Kopel
& Robert Racansky
CLA law school professor Eugene
Volokh has asked
his weblog readers to "imagine that you had the superpower to add
one amendment to the U.S. Constitution...What would it be?"
Here's one proposal: the Goose and Gander Amendment. Since it works as
a supplement to the Second Amendment, we'll make it Amendment Two-and-a-Half:
No government agency, nor employee of any government agency, shall be
allowed to possess firearms prohibited to the citizens of the state, county,
or municipality in which they serve.
2. No government agency, nor any employee of any government agency, shall
be exempt from laws and regulations regarding the possession or use of
firearms which affect the citizens of the state, county, or municipality
in which they serve.
3. All exemptions inconsistent with sections 1 and 2 shall be void beginning
on the 30th day after the ratification of this amendment.
4. Nothing in this amendment shall be construed to exempt agencies and
employees of the federal government from federal, state, or local laws
and regulations related to firearms.
5. Nothing in this amendment shall apply to the Department of Defense
or states' National Guards.
This amendment does not in any way restrict existing powers of the federal,
state, and local governments to pass gun-control laws. Rather, the gun
laws would be strengthened by being of more general applicability. Removing
government exemption would provide an incentive for politicians and regulators
to pass only those gun-control laws which are truly reasonable.
Suppose that a state wants to outlaw so-called "junk guns" (inexpensive
handguns used by poor people for self-defense). The prohibitionists make
sanctimonious claims about merely wanting guns to be safe and reliable.
Yet their proposed bans always contain an exemption allowing policemen
to possess and carry such guns as though the police should have
unsafe and unreliable firearms. And in fact, "junk guns" are
quite popular with many police officers, who carry them as back-up guns,
often on an ankle holster because the guns are compact and lightweight.
Under the Goose and Gander Amendment, the prohibitionist legislators must
explain to the police why guns that they like to carry for police work
may no longer be carried because legislators, after all, understand
gun design and function much better than do police officers.
Alternatively, the legislators could admit that the reliability issue
is a sham, and that the real goal is to deprive poor people of the only
guns they can afford. This goal is so important, the legislators could
argue, that it is worthwhile to deprive police officers of their backup
guns since the officers will still be able to carry their expensive
Besides wanting to
outlaw guns that are too small (inexpensive handguns), gun prohibitionists
also want to outlaw guns that are too big such as 50-caliber
target rifles and so-called "assault weapons." (Unlike Goldilocks,
the prohibitionists are unable to find any gun which is "just right.")
Under the Goose and
Gander Amendment, cities will still be able to ban "assault weapons."
Politicians will still be able to claim that the guns have no legitimate
purpose, and are not suitable for target shooting (even though many of
the banned guns are the primary firearms for rifle competition) or for
hunting (even though some of the banned guns are particularly designed
for game hunting, such as the Valmet Hunter) or for lawful self-defense
(for which almost all the guns are
quite effective). While enacting "assault weapon" bans,
politicians can continue to assert that only mass murderers and drug dealers
would want to own such guns, which are supposedly only good for spray-firing
at crowds of innocent people.
Very well, then. We certainly don't want the police to spray-fire at crowds
of innocent people. Nor do we want guns that are uniquely attractive to
psychopaths to be available to police, since the possibility of owning
such a gun might induce a clever psychopath to join the police force for
purposes of obtaining extra weaponry.
While it is very, very rare for ordinary people or for law-enforcement
officers to use an "assault weapon" in a crime, it is not unheard
of. For example, in December 1992, an off-duty Bureau of Indian Affairs
police officer opened fire and shot 50 rounds into a bar in Bemidjii,
Minnesota. He used the Colt AR-15 semiautomatic rifle he had been issued
by the government, as well as his own 9mm. handgun.
On September 13, 2004, the federal "assault weapon" ban will
sunset. Advocates of renewing the law would certainly, we hope, propose
removing the loophole contained in 18 U.S. Code section 922(v)(4), which
allows unlimited use and possession of "assault weapons" by
law-enforcement officers, "whether on or off duty" and
even allows possession and use by retired law-enforcement officers. If
the claims of the gun-prohibition groups are to be believed, we certainly
should not allow this loophole to continue to exist; after all, these
groups assure us that the guns have no good purpose, that the mere presence
of such an awful-looking gun can incite an otherwise law-abiding person
to commit a mass murder, and that no amount of background checks or training
can ensure that a person is safe enough to own an "assault weapon."
Will the gun-prohibition groups work to close the "assault weapon"
loophole? Or will they cynically fight to protect the loophole which,
by their own reasoning, is morally indefensible?
Opponents of the Goose and Gander Amendment will point out that police
officers are better trained than ordinary citizens. While this may be
true, there are plenty of citizens who have voluntarily taken defensive
firearms training that is far more extensive than what many police officers
have received. Besides, allowing highly trained people to own guns whose
only purpose is (allegedly) to murder a lot of people quickly would be
In any case, the
Goose and Gander Amendment would still allow governments to impose training
for gun owners, or for people who want to possess certain types of firearms.
The amendment would simply require that everyone who passes whatever tests
and/or background checks the government mandates be treated equally.
The Goose and Gander Amendment would, of course, apply to more than just
gun bans. If a state wants to impose a three-day wait to buy a handgun,
then the police officers in that state would be required to wait three
days before taking possession of a handgun, which is what happens to ordinary
citizens. For example, in Illinois a gun owner must obtain a Firearms
Owner Identification Card (FOID), which takes 30 days. Yet every time
she buys an additional handgun, she still has to wait three days.
It's hard to see the public safety benefit of imposing a "cooling
off" period on someone who already owns guns, but if this cooling
off period is good for the general public, it would also make sense for
government employees. Domestic-violence groups frequently point out that
a very large number of police officers are domestic abusers which
is precisely the kind of crime that cooling off periods are supposed to
While many people think that police officers are the only government employees
who carry guns, many other agencies also have armed agents, including
the Environmental Protection Agency, the U.S. Forestry Service the Internal
Revenue Service, agricultural inspectors, and many, many others. Under
the Goose and Gander Amendment, these employees would still be allowed
to carry firearms while on duty so long as they complied with state
In a few states, concealed weapons are entirely illegal because
the legislature has determined that no matter what kind of background
check and training one has, there is too great a risk that people carrying
guns will shoot each other in traffic jams.
It would be difficult to argue that, simply by virtue of a person's employment
by the U.S. Forestry Service or the Department of Agriculture, he is immune
to the surges of homicidal emotions that, we are told, strike anyone at
Finally, the Goose and Gander Amendment is progressive, because it ensures
that gun laws will sensibly keep up with changing social needs. Gun prohibition
lobbies have recently begun to push for outlawing the sale of all handguns
except for high-tech
"personalized guns" that meet standards to be set by a bureaucratic
commission. Although guns incorporating palm-print readers or similar
technology are still in the unreliable prototype stage, the proposals
would outlaw all existing handguns within a few years.
prohibition proposals also contain a government-employee exemption
even though the original reason the federal government began subsidizing
personalized gun research was to protect police officers whose guns were
snatched by a criminal. (About
one-twelfth of police officers who are fatally shot are killed with their
Yet the proponents
of outlawing all current handguns and forcing citizens to buy only new-fangled
gadgets quite accurately recognize that if the proposal were to apply
to the police, the police lobbies would quash the proposal instantly.
Police officers are not going to stand for being forced to rely on guns
that won't work if the battery wears out, or if the palm-print reader
has trouble recognizing a dirt-covered hand. 99 percent reliability isn't
good enough for a gun that you are using against a violent criminal attacker.
Yet the gun-prohibition lobbies are ready to force everyone except government
employees to use firearms of questionable reliability because they
consider defensive gun use by non-government employees to be immoral.
That antigun politicians
and the lobbyists who support them are so willing to exempt the government
from the gun laws suggests that many gun-control laws have less to do
with protecting public safety than with disarming the citizenry and exalting
the government. The policy reflects a philosophy that sovereignty belongs
to the government rather than to the people which is just the opposite
of what the Constitution says.
Dave Kopel and
Robert Racansky both write from the Independence