The Gun Ban Checklist

Inevitably after every horrific mass shooting in America (and there are lots of them), the drum beat for stricter gun regulations picks up. Some of the proposals, including criminal background checks and waiting periods, are not bad ideas and can be uniformly enforced without significant interference with people's rights.

But other commentators and random folks on Twitter want to go further, banning some (or all) guns outright, or banning some people from owning them. The idea is that by restricting legal access to guns, we can reduce or eliminate mass shootings like the kind in Orlando last weekend.

First of all, selective bans must incorporate some form of due process. To restrict individual rights, the government must do so equally, consistently, and with a process that allows the restricted person to contest the restriction. Many proposals fail this requirement.

Second of all, any kind of comprehensive ban would run directly into the Second Amendment, which says - or at least has been interpreted to say - that all Americans have a right to private gun ownership. Non-comprehensive bans may be doable, but that's currently up for debate in the federal appellate courts. Some say you can ban certain guns like "assault rifles" while at least one says you can't. But assuming the Second Amendment can someday be repealed, the problem isn't so easily solved; other complications would arise.

I propose the following list of logistical concerns to the most commonly asserted "solutions" to gun violence:

No-Fly and Terror Watch List Restrictions

A common suggestion is that anyone listed on a "no-fly" list or "watch list" for potential terrorists should be prohibited from legally purchasing guns. That sounds like a no-brainer. But those lists are a huge mess. For one, they're secret. People are placed on those lists by government law enforcement agencies without any public trial or hearing. And there is no reliable process for getting the falsely-accused off the lists. There's a reason groups like the ACLU have long battled against these lists. They are a due process nightmare.

Semi-automatic Assault Weapons

Mass shootings inevitably spark outrage at so-called "assault weapons," which are generally just military-style rifles such as the AR-15. They have elaborate body styles with larger magazines, long barrels, and folding or collapsible stocks. They look scary. The rhetoric against them tends to focus on their rate of fire, which is semi-automatic. Semi-automatic rifles fire one bullet per trigger pull, as opposed to automatic weapons which fire bullets continuously as long as the trigger is pulled. That's a big functional difference.

Rifles like the AR-15 aren't the only semi-automatic weapons, either. Most handguns are semi-automatic, and shotguns are available in that style as well. Handguns are far more prevalent than AR-15s, and kill far more people annually, but rarely get the kind of attention that their larger cousins get in the wake of high profile acts of violence. Semi-automatic handguns are quite capable of killing lots and lots of people. For example, the shooter at Virginia Tech killed 33 people with just two handguns. And in state-sanctioned acts of violence, police officers all over the country have demonstrated how fast a handgun can be fired, like the time a Chicago police officer shot Laquan McDonald sixteen times in just a few seconds.

If your primary concern is the number of people a gun can kill, then singling out AR-15s and similar rifles makes little sense. Handguns and shotguns can kill lots of people very quickly as well, and do so more frequently. So if the goal is to rob potential shooters of the ability to cause mass casualties, a more comprehensive anti-gun approach is necessary than just restricting the sale or purchase of "assault weapons."

The Number of Guns in America

Some estimates suggest that there are over 300 million privately-owned guns in America. That's almost one gun for every person. Of course, a minority of Americans actually own all those guns,  but we're still talking about millions of owners with millions of guns. A future ban on the sale and ownership of guns would instantly create a very well-stocked black market that is its own means of violent enforcement. As we saw with alcohol Prohibition and still see with the War on Drugs, black markets are violent things because disputing parties cannot turn to the courts to resolve their differences - they have to take matters into their own hands. You can't sue someone for stealing your heroin, so you have to seek some other method of punishing or deterring the affront. The method, as we've seen over and over and over, is violence.

Because of the risk of increased violence associated with a black market, a ban without some form of mass confiscation would be a toothless ban incapable of preventing future mass murders. (We'll ignore, for the purposes of this post, the problem of America's very long and porous borders and coastlines and the explosion of international smuggling that would inevitably arise if a domestic ban successfully disarmed the population).

The Fourth Amendment Problem

Even if a ban on guns could be legal, the problem becomes one of enforcement. How do you effectively disarm the most well-armed civilian population on the planet? One method would be a voluntary gun buyback program, where the government shells out millions of dollars to pay people to turn in their guns. No doubt this would be successful to an extent. Lots of people own guns that they never shoot and have no particular affinity for (heirlooms and inheritances from relatives). And lots of people would just like to make a quick buck.

But lots of other people would have no interest at all in turning in their guns, even if paid well for them. So millions of guns would remain in private hands. How do you get them? You could simply wait until people commit crimes and then take their guns (which is what we already do), but that isn't going to accomplish the goal of preventing mass shootings. And in the meantime lots of guns would trade hands in the black market, which would have its own violence problem.

To be even remotely effective, a gun ban would need to include a mass confiscation program. But that runs into another constitutional problem totally separate from the Second Amendment. The Fourth Amendment prohibits unreasonable searches and seizures, and our courts have long interpreted searches and seizures without probable cause or some kind of solid basis for suspicion to be unreasonable. The question becomes: how would the government become sufficiently suspicious to justify a search of a person's home for a gun? Someone would have to exhibit some kind of outward behavior to tip off the police. But simply owning a gun and storing it in the home can be done in secret quite easily. All gun owners would have to do is not tell anyone who might tell the police.

So lots of guns would remain unconfiscated, which means a large black market would persist, and mass shootings would still be quite possible (if not more frequent). Remember, in order to actually accomplish its goal of reducing violence, a ban would have to actually remove guns from private circulation, not just make people more inclined to hide them. Short of a nationwide, house-to-house sweep, that seems impossible. One need not look much farther than the Drug War to see how the Fourth Amendment makes prohibition of hideable things quite futile (despite our best efforts to water down the Fourth Amendment).

The Determined Shooter

One frustrating thing about people determined to hurt other people is that they are rarely dissuaded by laws against their behavior. Consider, first, that murder is illegal and has been forever. Yet people still commit murder. That old saying that gun bans only take guns out of the hands of law-abiding people is true - those who intend to break our laws against murder will not be stopped by laws against guns. It may slow them down a bit (and dissuade the less-determined) but those who are truly bent on mass violence will not be stopped by regulation.

That doesn't mean regulation is pointless - reducing violence (assuming regulation does that) is a fine goal - but it can't ever fully eliminate the threat of mass shootings. What tough regulations will do is restrict and punish totally peaceful behavior like gun ownership (merely owning a gun and storing it in the home is not the same as murdering someone with it). So, the question becomes: is it worth it to punish the peaceful in an ultimately futile effort to stop the violent? Perhaps most people will answer yes, because feeling like you're doing something, even at the expense of certain freedoms, can bring peace of mind (at least until the next mass shooting). But when those prohibitions ultimately fail to rid America of mass violence, just as the War on Drugs failed to rid America of drugs (and its associated black market violence) what will be the next step? How much farther can you go than a total ban?

No Easy Answers

I won't pretend to have good answers to the problem of gun violence in America. Our problem is not unique, but it is rare in the post-industrial world, and our history, culture, and legal system combine to make mass shootings not only common but fairly easy to commit. We have a truly incomprehensible number of firearms floating around.

But if we're going to keep brainstorming how to make our country less violent, we'll need to squarely address the logistical concerns raised above. Otherwise we risk enacting reactionary policies that only hurt the peaceful and do little to actually reduce violence. We often assume the law can solve our social problems, but that is rarely the case. The law works best when it operates as a peaceful means of dispute resolution. It does not work so well as a way to force people to not do bad things or hurt others in the first place. A concerted effort to reduce violence must be much larger than mere laws. It will require a major cultural shift.

My fear is that it is too late to close Pandora's Box.

The Sudden (and Curious) Allure of the Traditional Grand Jury

In the wake of the announcement that a Missouri grand jury had declined to indict police officer Darren Wilson for the brutal killing of teenager Michael Brown, many have criticized the actions of the local prosecutor and the procedure the grand jury followed. And for good reason.

As the saying goes, a grand jury would indict a ham sandwich if a prosecutor wanted them to. Grand juries hand down indictments almost every time they're given the chance. After all, their primary role is just to determine if there is probable cause to suspect a crime has been committed by the accused. They are not required to conclude ultimate guilt. They're just a way station on the route to a public trial.

Making the rounds is a passage from a 1992 Supreme Court case which clearly states the traditional role of the grand jury:

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

United States v. Williams, 504 U.S. 36, 51-52 (1992).

Indeed, the procedure followed by the grand jury in case of Darren Wilson is highly unusual, if for no other reason than the inclusion of extensive testimony by the accused himself. Normally only the prosecutor or a couple of witnesses in favor of indictment will be presented. Government attorneys are not even obligated to produce evidence suggesting the suspect's innocence if they possess it (like they would be in an actual trial).

If you think the Missouri grand jury got it wrong and should have indicted Wilson for the murder of Michael Brown, United States v. Williams gives you a lot of rhetorical ammo. But the full context of the case and the scope of its holding goes beyond just one incident of police homicide. It applies to all criminal defendants in all criminal cases where a grand jury is called to consider an indictment. A more extensive discussion of Williams is useful.

The Underlying Case

In 1988, a federal grand jury indicted investor John Williams for making numerous false statements overstating the value of assets owned by four Oklahoma banks.

After his arraignment, Williams moved the trial court to disclose all exculpatory evidence from the grand jury transcript. Exculpatory evidence is evidence which suggests a suspect is not guilty of the accused crime. The court granted Williams' motion. After reviewing the grand jury record, he moved for the court to dismiss his indictment, arguing that the prosecutor was obligated to present "substantial exculpatory evidence" to the jury but failed to do so.

The trial court eventually dismissed the indictment. The government prosecutors appealed, but the Tenth Circuit Court of Appeals affirmed the lower court's ruling, holding that the government had "substantially influenced" the grand jury to indict or otherwise raised doubt that the grand jury's decision was "free from such substantial influence." United States v. Williams, 899 F.2d 898, 903 (10th Cir. 1990).

The government appealed to the Supreme Court, which accepted the case.

The Supreme Court Ruling

The issue considered by the Court was "whether a district court may dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury substantial exculpatory evidence in its possession." Williams, 504 U.S. at 37.

The Williams opinion, written by Justice Antonin Scalia and joined by four of his colleagues, extensively explores the history of grand jury procedure in the United States. The grand jury is not actually a part of the judicial branch of government - "it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people." Id. at 47.

This separation from the normal judicial apparatus defines the grand jury's unique function:

Unlike [a] court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not. It need not identify the offender it suspects, or even the precise nature of the offense it is investigating. The grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses, and deliberates in total secrecy.

Id. at 48 (internal quotations and citations omitted).

As the Court clearly explains, a grand jury does not operate under the rules to which trial courts are bound. For that reason, it also provides far fewer protections to criminal defendants, who, in every other aspect of the criminal justice system, receive significant due process protections under the Fifth, Sixth, and Fourteenth Amendments to the Constitution.

For example, in a criminal trial, the government may not use against a defendant evidence that was seized in violation of the Fourth Amendment. This is called the "exclusionary rule." But that rule doesn't apply to a grand jury. Similarly, grand juries may also consider hearsay testimony.

On the other hand, while illegally obtained evidence and second-hand testimony may be admitted, the grand jury is under no obligation to consider the suspect's side of the story. The reason is because "the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side." Id. at 51 (internal citation omitted).

The rules governing grand juries are so lax that indictments cannot be challenged after they are handed down on the basis that the evidence considered by the grand jury was insufficient or incompetent. "[T]he mere fact that evidence itself is unreliable is not sufficient to require a dismissal of the indictment, and . . .a challenge to the reliability or competence of the evidence presented to the grand jury will not be heard." Id. at 54 (internal quotations omitted).

Ultimately, the Court in Williams ruled that prosecutors are not obligated to present exculpatory evidence during the grand jury procedure. They may present only one side of the story - their belief that the suspect has committed a crime - and the grand jury may decide to indict in reliance upon that alone.

The Implications of the Grand Jury Tradition

It should dawn on you by now that the traditional grand jury proceeding is extraordinarily biased in favor of the government. Suspects facing a motivated prosecutor rarely have any chance to avoid indictment. And the stats prove it - indictments are handed down so often that grand juries are effectively just rubber stamps for prosecutor prerogatives.

But what happens if a prosecutor seeks an indictment for nefarious reasons? Perhaps a prosecutor has a grudge, or engages in extensive misconduct. Even if an unfairly accused suspect is ultimately exonerated at trial, they still must endure numerous negative effects of a criminal accusation: lost time, expensive legal fees, embarrassment, injury to reputation, and even jail time if the charges are severe enough for a judge to deny bail. Innocent suspects may even be convicted and endure long prison sentences or worse.

There are few safeguards, at the grand jury stage of the proceedings, to prevent that kind of harm to innocent people. That's why Justice Scalia's history lesson in United States v. Williams must be approached with some apprehension. It is true that Darren Wilson received special treatment from a grand jury of a sort almost never extended to anyone else facing potential indictment. But that kind of special treatment could easily protect legitimately innocent people from being indicted when they otherwise would be under the prevailing tradition of the grand jury system.

Which would we prefer? Even if you believe Wilson should be charged with a crime for killing Michael Brown, is a lax grand jury system highly vulnerable to prosecutorial misconduct and abuse really preferable to something more thorough and protective of constitutional rights?

Maybe only the end result matters when it comes to public opinion. How many people would happily quote Justice Scalia if an obviously innocent person had been indicted instead? It's a question worth considering, because that's a far more common outcome than the deference given to Darren Wilson.

More on Police Immunity

I've recently commented on the ways our legal system protects police officers from civil liability for excessive force and other constitutional violations. See:

Ferguson proves police militarization is a problem, but worse is their immunization from civil liability


Deference to Authority Based on Questionable Authority

Now, the author of the Constitutional Law textbook I used in law school, professor Erwin Chemerinsky, has also chimed in about the topic, in an excellent piece titled "How the Supreme Court Protects Bad Cops." A snippet:

Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person.

I highly recommend this piece, not just because it echoes the points I've recently made, but because this topic is important and worth everyone's attention. Judges shield police officers from accountability. Without accountability, there will be no restraint.

Deference to Authority Based on Questionable Authority

Police use of force is currently the hottest topic in the news. On August 9, 2014, a teenager named Michael Brown was shot and killed by a police officer in the St. Louis suburb of Ferguson. Though the events that led to his shooting are still disputed, two facts are now clear: (1) Brown was unarmed, and (2) he was shot six times, including twice in the head.

In response to Brown's death, Ferguson residents launched immediate street protests, to which local and state police responded with massive, militarized force. Tear gas, smoke grenades, rubber bullets, and sonic cannons have been used against the demonstrators who have remained - with a few exceptions - peaceful but defiant.

These events have captivated the country. #Ferguson has been the top trending hashtag on Twitter for more than a week now. News outlets like MSNBC and CNN have run live coverage late into the night from the scene of the demonstrations. Images of gas clouds, injured protesters, and heavily-armed police pointing weapons at civilians in Ferguson have now become iconic.

The Fourth Amendment to the U.S. Constitution regulates the use of force by police officers, from individual confrontations and arrests to large scale operations like riot control. The Amendment prohibits unreasonable searches and seizures. Courts have interpreted the term "seizure," to include nearly any police interference with a citizen's bodily freedom or integrity. When people sue police officers for using excessive force, they do so under the Fourth Amendment.

Lawsuits against police officers and police departments are frequently unsuccessful. It is difficult to prove that police officers used excessive force because they are held to a relatively deferential "reasonableness" standard. If the actions of the officer are deemed to have been reasonable at the time of the incident - even if in hindsight they seem quite unreasonable - the police officer is not held liable for causing harm.

The rules and principles applied to Fourth Amendment excessive force cases are reasonably well-established. Though there are occasional modifications and exceptions created depending on the circumstances (such as "Terry stops"), excessive force is not, generally speaking, uncharted legal ground.

However, sometimes new issues arise. New policies, procedures, and tactics adopted by police forces can create novel legal questions to answer. For example, the Louisville Metro Police Department has adopted a "matrix" to determine whether the service of search or arrest warrants requires the use of a SWAT team. The matrix is a spreadsheet with certain threat criteria, each assigned a point value. If a suspect or his residence carries enough threats and therefore reaches a certain point score, the SWAT team is sent in. Warrants are now regularly served by the LMPD SWAT team.

This matrix has been the subject of at least two lawsuits in the Sixth Circuit over recent years. The first arose from a 1997 Louisville SWAT raid. While serving an arrest warrant, police confronted Larry Whitlow, who they alleged pointed an unloaded gun at them. The police shot Mr. Whitlow dead, and his estate sued, arguing that the police used excessive force and were poorly trained and supervised. The trial court granted summary judgment to the police and dismissed Mr. Whitlow's case.

The Sixth Circuit Court of Appeals upheld the trial court's ruling in what is called an "unpublished" opinion. Whitlow v. City of Louisville, 39 Fed. Appx. 297 (6th Cir. 2002). In theory, these opinions are meant to resolve the case at hand without setting controlling precedent in other cases. The Sixth Circuit allows lawyers to cite to unpublished cases in their briefing with the understanding that the court is not bound by them.

The unpublished Whitlow opinion assumed, to some extent, that the use of the SWAT matrix by Louisville police was faulty. However, the use or misuse of the matrix wasn't dispositive, because Mr. Whitlow pointed a gun at the police officers serving the warrant (an allegation the court accepted as fact). His actions - not the misuse of the matrix - were the proximate cause of the SWAT team's use of force and his death, the court reasoned.

The Sixth Circuit in Whitlow is not very instructive on the issue of pre-raid police procedure. It did not actually address whether a misuse of the SWAT matrix could constitute a constitutional violation or how severe such misuse had to be. And the Whitlow opinion is "unpublished," so any discussion of the matrix should only be "instructive" to future panels, not considered as binding precedent.

However, several years later, the use of the SWAT matrix by Louisville police became the subject of another lawsuit. In 2007, Louisville police used the matrix to approve a SWAT raid on the home of Sharon Ramage, the mother of a man suspected of child pornography because he developed photos of himself taking a bath with his son. A 35-man SWAT team stormed Ms. Ramage's home with a flash bang grenade, battering rams, and guns drawn. She was handcuffed and held at gunpoint while the police searched (for five hours) the otherwise empty house, finding no incriminating evidence. Her son was arrested peacefully the next day, but obscenity charges against him were ultimately dismissed.

Ms. Ramage filed suit, alleging that her Fourth Amendment rights were violated by an excessive use of police force. She argued that police reliance on the matrix was unreasonable because an actual investigation of her property would have revealed that she posed little threat to them, and the SWAT team's actions during the raid itself were excessively violent. Some of Ms. Ramage's claims were dismissed in summary judgment, and a jury ruled against her on the remaining claims.

On appeal, the Sixth Circuit Court of Appeals also ruled against Ms. Ramage. In doing so, the court very briefly addressed the use of the police matrix, relying entirely on the Whitlow case to find that it was not "per se unconstitutional." The court wrote:

This court has never directly addressed this issue before, nor does it appear that any other federal court has done so. In Whitlow v. City of Louisville, 39 F. App'x 297, 307 n.1 (6th Cir. 2002), which involved similar facts with respect to the completion of a Risk Assessment Matrix prior to execution of a search warrant by a  SWAT team, we held that the use of the matrix without additional investigation into the context of the factors was at worst negligence, which did not support municipal liability. We never suggested that the use of a matrix could be per se unconstitutional. Based on this precedent, we find no error in the use of the matrix here.

Ramage v. Louisville/Jefferson County Metro Gov't, 520 Fed. Appx. 341, 345-346 (6th Cir.  2013).

"Based on this precedent" is interesting language for the court to use considering that Whitlow is not a published case, and is therefore not actually precedent. The court in Ramage spent just two brief paragraphs discussing the matrix, and made no effort to analyze whether or not it was reasonable for the police to rely upon it to send in the SWAT team considering the home they raided was easily accessible and occupied only by an unarmed, elderly woman. Instead, the court relied entirely on a previous, unpublished opinion to brush the issue aside.

Ramage is also an unpublished opinion, which means there remains no published, binding precedent in the Sixth Circuit on whether the use of a spreadsheet - rather than a more thorough investigation - to determine the need for a SWAT team to serve a warrant is reasonable under the Fourth Amendment.

The Fourth Amendment "reasonableness" standard is deferential to police actions already. Relying upon unpublished opinions and foregoing substantial analysis to rule against plaintiffs suggests courts will go beyond the reasonableness standard in order to dismiss excessive force claims. This deference to executive authority, built, at least partially, on questionable judicial authority, makes it less likely that police officers will be held accountable for unreasonable actions in the future.

Disclosure: the plaintiff in Ramage was represented by my current law firm, Clay Daniel Walton & Adams, led by Daniel Canon. I provided assistance as a law clerk.

The State's Power to Prevent Private Negligence

In late March, I wrote a post called Gun Laws Implicate More Than Just the Second Amendment. I discussed how laws which regulate home gun storage implicate the Fourth Amendment (search/seizure) as well as the Second Amendment (right to bear arms). The short of it is that regulations which dictate proper methods of home storage require otherwise impermissible home searches to enforce - otherwise they're merely cumulative criminal punishments stacked on top of other offenses for maximum punitive effect.

In response to that post, a fellow attorney posed a hypothetical situation I had neglected to discuss:

[W]hat about situations in which the prohibited storage of Bob's handgun results in actual harm to someone? Suppose Bob leaves his handgun loaded and on the dining room table, where his ten year-old son and a friend discover it. Bob's son then picks up the gun and accidentally shoots his friend, who dies. Is a gun regulation like San Francisco's a good way (or the only way) to ensure Bob is punished for his failure to safely store his gun?

Well, this situation isn't really hypothetical because accidental shootings of children occur with grim frequency. Back in March, a young boy in Arizona shot himself with a small pistol owned by his parents. From the report:

The boy apparently pulled a small chair up to a counter where his mother was working on a laptop computer, saw the .32-caliber semi-automatic pistol there and shot himself, according to reports. The gun was in an ankle holster with the trigger exposed “and could easily be pulled by almost anyone,” according to a report.

The boy survived, luckily, but required surgery. In response to the shooting:

Sheriff's detectives obtained a search warrant for the house in Elephant Head and found 20 guns along with boxes, cans and bags of ammunition in several rooms. The weapons included shotguns, rifles, a Ruger and a Colt .45 handgun in a holster affixed to the headboard in the master bedroom. The family owns a gun safe where several weapons were found but it was not locked, according to the report. One of the couple's four children told detectives he knew the safe was not locked; another said his father “did not remember the combination to the safe.”

Most of the weapons in the house were not loaded; several had rounds in the chamber and others had rounds in magazines, according to the report.

This is more or less exactly the situation posed in response to my original post. Almost certainly, situations like this inflame the passions of people who fear guns or otherwise wish we could eradicate them from our society. Gun defenders, on the other hand, would no doubt hang the blame not on the guns but on the parents, who made the situation possible by failing to secure the large number of firearms they kept in a home with four young children.

My concern is the proper role played by the state in this situation. Is it (or should it be) the government's job to prevent unfortunate accidental shootings like this?

Let's presume, for the sake of argument, that it is the government's job to prevent negligent gun storage in order to protect children. How would the government do that? The first step would be to pass a law prohibiting unsecured gun storage in homes with children. But how does that law get enforced in order to actually prevent (not punish after the fact) negligent gun storage?

The government would need the power to conduct searches of people's homes looking for unsecured guns. Because it would be difficult to know which houses have unsecured guns without going inside each one, the police would need to conduct periodic searches of all homes, regardless of whether any violations were actually known. Waiting until a child is shot is too late to prevent situations like the one in Arizona, so searches will have to be done frequently and without warning. It's the only way such a preventative law would be effective.

A hurdle to such a law is the Fourth Amendment, which, at least theoretically, requires probable cause to suspect someone has committed a crime (usually through a warrant) before a search of their property can be conducted. How would the police gain probable cause for searches of homes looking for unsecured firearms? What indications outside the home would tip them off? Other than self-reporting or tips from nosy neighbors, the police can't know that a home contains unsecured firearms without going inside themselves and looking. You can see the problem here. In order to search a home, police have to have probable cause to suspect a violation of the law, but the only way to learn if such a law was being violated is to search the home.

So even if it is the government's job to prevent private negligence (which is highly debatable), doing so without violating the Fourth Amendment becomes exceedingly difficult.

The question for supporters of firearm home storage laws is this: do you also support frequent, warrantless searches of people's homes by the police? Would you gladly submit to cops rifling through your belongings looking for unsecured guns when you've done nothing else wrong? There's no other way to effectively enforce these laws. Otherwise they exist only to increase the punishment for people who already broke the law by hurting someone through their own criminal negligence.*

Maybe cumulative punishment makes us feel better, but laws such as these empower the police to overstep their bounds in the name of public safety. And these laws can't turn back time to undo the harm done by negligent gun owners. So unless the police can truly enforce them through aggressive and frequent home searches, are they really necessary?

The balancing act is portrayed as safety versus freedom, but the real balancing act is state power versus private space. Are incremental increases in public safety worth the greater surrender of privacy they require? It would be an ideal world where all tragedies like the one in Arizona could be prevented by passing home firearm storage laws. Unfortunately, we don't live in an ideal world, and such laws require a drastic surrender of private space to state power in order to even approach effectiveness.

*In Kentucky, a parent who left a gun sitting out which accidentally killed a child could be charged with reckless homicide under KRS 507.050.