Supreme Court’s gun ruling an opportunity for Maryland and other Blue States
The Supreme Court seems to want States to experiment and adopt different rules on any number of matters. Maryland and other deep Blue States could experiment by drastically restricting the number of guns owned in the State and carried outside the home. Although we don’t have proof of what effect a substantial reduction in guns would have, it seems worth trying. Instead of just nibbling around the edges, how about an approach that would get many guns off the street. This could be done through a combination of a tax on gun ownership and a voluntary buyback plan. The tax would make it more expensive to own a gun, which would provide part of the incentive for the buyback program. The latter should be well funded so as to make it attractive for people to turn guns in.
For background on taxing guns, see https://www.rand.org/research/gun-policy/analysis/essays/firearm-and-ammunition-taxes.html#fn8
States have a plenary right to tax, and a tax can be structured so as to be consistent with the Second Amendment, as long as the tax is genuinely imposed for revenue reasons as opposed to being a disguised regulation. Murphy v. Guerrero (D. Northern Mariana Islands, Sept. 28, 2016) struck down a $1,000 excise tax on handguns. While the decision can be questioned, and it is any one’s guess how the U.S. Supreme Court would rule, there is a reasonable likelihood that a tax on guns would be upheld, as long as there is a strong revenue reason for imposing the tax. (For a discussion of the constitutionality of a tax on guns, see Hannah Shearer and Allison Anderman, Analyzing Gun-Violence-Prevention Taxes under Emerging Firearm Fee Jurisprudence, 43 S. Illinois Univ. Law Journal 157 (2018)). This implies that while tax rate can be high, it should not be set at such a level as to make it impracticable to own a gun. In practice, this can be done by setting the tax rate with revenue maximization in mind. Such a tax can be expected to reduce the number of weapons somewhat but not enough to endanger revenue from the tax.
I suggest a tax on the sale, ownership, or possession of a gun in Maryland. There would be an exemption for a narrowly defined category of weapons that pose a minimum danger when carried in public. To be exempt, the weapon should be difficult to conceal (therefore, a gun with a short barrel should not qualify) and should not be able to fire multiple rounds rapidly. I am not an expert on guns, so I am not sure of the details on how the line should be drawn. Single shot rifles and shotguns should qualify, and other guns that do not allow rapid fire and have a long barrel can be exempted, if there are such. The guiding criterion should be safety: exempt weapons should be difficult to conceal and not suitable for firing multiple rounds in a short period of time, thereby posing a risk to be used for mass killing. The rationale for the exemption is that there is no need to discourage the ownership of guns used for hunting or home self-defense, as long as the gun cannot easily be concealed or used for a mass shooting. Also, the administrative burden of taxing such weapons should be taken into account, and favors exemption. Finally, the exemption of guns that pose a minimal public safety risk can be used to bolster the argument that the plan is not intended to encroach on Second Amendment rights, but rather to increase safety. (Some have suggested a graduated tax rate, with higher rates on each subsequent gun, but my reaction to this is that this would make the tax more complex and would also lead to avoidance, for example by spreading the ownership among family members. Best to keep the tax simple.)
For any other type of gun, whether a semi-automatic weapon or a handgun, the tax rate should be fairly high. The rate should not be confiscatory, since otherwise courts can view it as a backdoor way of banning guns. Rather, the rate should be set at a rate that maximizes revenue. The tax should raise substantial revenue, hopefully enough to fund a buyback program. while also discouraging gun ownership. Those who feel strongly that they need a handgun for self-defense are free to own one, as long as they pay the tax.
The tax would initially be imposed on the sale of a gun in Maryland. For those who bought a gun in the past, tax would be due annually (there would be no annual tax in the year the gun is acquired, if tax was paid at the time of purchase). Finally, anyone who possesses a gun in the State at any time would have to pay the tax.
There should be stiff penalties for tax evasion. Anyone caught with a gun on which tax has not been paid would be subject to substantial fines, as well as criminal penalties if tax evasion is proved. Someone owning a handgun who keeps it in their home could of course evade the tax by not paying it, but the penalties for tax evasion would discourage them from taking their gun outside their home, in case they are caught with it. This would have a salutary effect, since a gun in someone’s home is not dangerous to others on the street.
Imposition of a tax would also provide valuable statistics on gun ownership, which could be used to guide future regulation, as well as providing data for research.
The tax would not be the only means of reducing gun ownership. Certain kinds of dangerous weapons, such as assault rifles, should continue to be banned. The carrying of guns in public places should be restricted to the extent allowed by Supreme Court decisions. Moreover, creative ways can be found to discourage the carrying of guns in public. For example, merchants could put a sticker on their door informing the public that entry on the premises implies consent to a contract whereby substantial liquidated damages can be imposed if a gun is found. State contract law could be clarified to recognize this kind of contractual right by use of a standard sticker that could be easily recognized. Procedures for enforcement of this contractual right could be streamlined. If enough merchants displayed the sticker, carrying a gun outside the home would be made much more difficult. Similarly, landlords could be encouraged to prohibit any tenant from owning or possessing a gun on the property, again with liquidated damages. Again, if enough landlords participated, such a program would make it difficult to own a gun in certain areas, particularly cities.
Anti-violence programs could be strengthened in schools.
A gun buy-back program should also be initiated, allowing people to turn in weapons and get cash. The cash payment should be substantial, perhaps as high as the purchase price of the gun in question.
Through a combination of approaches, the number of guns in the State could be substantially reduced, particularly the number of guns carried on the street. Guns would not be eliminated, but the reduction should be substantial enough to lead to a significant reduction in gun violence. At least the experiment should be tried to see if it works, and how many lives can be saved. If it does result in a substantial reduction in gun violence, there can be a “virtuous circle” as people further reduce their appetite for owning guns for self-defense reasons.
Note also that this approach overcomes the perverse incentives that arise from banning certain types of weapons. When such bans are discussed, a lot of people go out to buy more guns. Instead, imposition of an annual tax will create an incentive for people to turn in their guns.
The approach I suggest will be strongly protested by a vocal minority. This is why it is not something that will work in most states as a political matter, at least not in the short term. It is an experiment that States with a strong Democratic majority can try. If successful, it can perhaps provide a path forward for more of the country, but in the meantime gun violence in a few cities can be drastically reduced, which would be immensely valuable and improve quality of life for many.
