THE BLOG
09/04/2014 11:01 am ET Updated Nov 04, 2014

Guns in America: Will We Ever Get Beyond Knee Jerk Lawmaking?

Despite how it's played up in the media, public safety is a universal societal good that all people have more in common on than the divisiveness lobbyists and pundits care to admit. What's important for all citizens to concern themselves with when looking at proposed legislation is whether or not the solutions crafted by lawmakers address real public needs while avoiding negative consequence effects. Each legislative season in every governmental jurisdiction begins with notional bills that legislators attempt to improve sufficiently to pass the test of becoming public law. Shortcutting the process too often leads to bad laws that create turmoil and in come cases open rebellion. The courts eventually act to negate the excesses after years of public suffering. Overall it's not the best way to tend to matters so important.

When it comes to exploring firearms legislation the state to watch is California. Here is where many legal concepts are tested. For instance, all the so-called "assault weapon" laws in the United States are patterned after the 1989 Roberti-Roos model. In the quarter century since it became public law, California has continued to explore how to find balance between rights and control with this class of firearm; most recently, when Governor Jerry Brown vetoed additional restrictions in 2013 because the legislature had "gone too far". California is also a model for gun control excess being reined in by the judiciary. In 2014, federal court decisions calling the State to account for overly broad restrictions on concealed weapons permits and excessively arbitrary waiting periods speak to a continuing quest for legal balance in this arena.

As another legislative season ends in California, another set of bills that have survived the State Legislature arrive on Governor Brown's desk for consideration.

A Delicate Quest to Address Mental Health

AB 1014 is a bill that attempts to answer a universal outcry that something be done about mentally unstable individuals who constitute an active and elevated danger to public safety. The bill specifically tries to create a means for immediate family members and law enforcement officials to intercept people like Isla Vista shooter Elliot Rodger. If you read the text of AB 1014 you'll see it's a tailor made description attempting to contain someone just like him. Truthfully, it's refreshing to finally see some action being taken on the mental health front of violence prevention seeing as it's been too long ignored by people more intent to vent their spleens at gun owners than deal with the real problem, the criminally insane perpetrator.

The bill has made it to Governor Brown's desk but I'm a little worried about it in its current form. The reason is that it's weak in one critical area. Properly designed laws - particularly additions to the penal code - constrain the span of that law. Specifically, they should pay close attention to preventing unintended misuses of that law. AB 1014 pays lip service to the worry that a relative may try to falsely accuse a person or convince a relative to do so. It creates a misdemeanor penalty for doing but it's one that has no teeth. There's no specified penalty. Well there is, a falsely accusing police officer could be found guilty and that would end their career. Prosecutors have total discretion to ignore abuses and the judge could do nothing more than wag a finger at you. That tells me it was placed there with too little thought. The sparse paragraph sticks out of an otherwise highly detailed piece of legislation designed to facilitate rapid, clean up the mess later, action should a mentally ill person burble at the tipping point of active violence.

This is brash law. False positives are sure to arise with such a law and cases of harassment among persons in domestic squabbles will surely constitute a fair number of these. Given the predilection of people to be petty we may be creating a law intended to save lives at the cost of heaping malicious abuse on tens to thousands of people for each case where it may help. That's a pretty high social cost.

My recommendation to Governor Brown on this one is to seriously ponder whether this bill is actually ready to become California public law or whether to send it back to the legislature to tighten up how the bill prevents malicious misuse. When it comes to brash laws, my gut says it is always better to get something as important as this right than start a chain reaction that could undermine future attempts to deal with something as delicate as mental illness constructively.

Technology Marches On ... Weirdly

The other bill that reached Governor Brown's desk is SB 808. This is a really interesting bill because it deals with home made firearms. Under federal law people are allowed to manufacture guns from scratch for personal use; that's one of those things that goes all the way back to the American Revolution. Nationwide, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) controls the commercial manufacture of firearms and requires serial numbers on these weapons to facilitate tracking and collecting - let's be real - taxes. The federal government does not require tax stamps for personally made firearms. With SB 808, California wants to create a system of tax stamps for these personally made guns. It's $20.00 per tax stamp aka serial number according to the text of the bill.

The reason this is interesting to me is because of the advent of computerized manufacturing. Before the arrival of desktop sized CNC machines and 3D printers, making a gun from scratch was hard; now, it's not so hard. Cottage industry class machinery has advanced to a whole new level. Indeed, the proliferation of such machinery is in my view one of the important developments that may allow the U.S. to repatriate some of the manufacturing capabilities lost to outsourcing in the last few decades. The reality is we want more of these advanced manufacturing machines in people's hands and one of the consequences is certain complex objects that once required aerospace grade commercial manufacturers can now be done in apartments and garages. Quite the quandary not just about guns but many other things too. We'll be dealing with design, patent and process issues at least until mid-century learning to incorporate these machines into our lives.

Back to SB 808, the question being begged here I think is whether this taxation scheme is California's prerogative or the rightful domain of the BATFE to tax? The answer to that is I'm not so sure SB 808 as written (a) isn't stepping on federal tax territory and (b) is an overreach of the taxing authority of government in a larger sense. As I read the text, my main trouble with this bill is that it does not just want to tax future made firearms; it wants to impose a retroactive tax on home made firearms made prior to the enactment of the law. That's a problem because you aren't supposed to do that. It's arguably egregious because the text of SB 808 wishes to impose this retroactive tax all the way back to the year 1968 and to the beginning of time for handguns. That's the point in time a federal law called interestingly enough the Gun Control At of 1968 says guns made prior to that time that do not have serial numbers are not required to have them. That's clearly recognition by the State of federal prerogative and further an example by the federal government that it does not have the authority to create or impose retroactive taxation on personal property. The bill seems to be doing stuff it shouldn't and that's a problem in the larger sense of such a law being a gateway for California to impose arbitrary retroactive taxes on other things.

Taxes aside, that's not the really weird part about the probable consequences of SB 808. By enacting this into law, California is about to sanction - dare I say encourage - the proliferation of homebuilt guns on a scale not seen before. Contrary to its sponsor's intent, it's more likely SB 808 will create an expansion market for what has to date been a rather novelty item in the firearms industry. What could this really mean? I remember when the AR-15 was a novelty item in the California firearms market. And then Roberti-Roos started it on a path to becoming the most desirable firearm in America spawning a multi-billion dollar industry that makes a lot of tax stamp money paid to the BATFE. Well you know, be careful what you ask for.

Governor Brown's able legislative analysis team should ponder these things before advising him on whether to sign it or chalk it up as this year's "gone too far" items from the legislature.