Gun control advocates are on the warpath in the wake of the Tucson tragedy and other recent events involving guns. Second Amendment supporters must demand a cost-benefit analysis of any proposed gun restrictions.
By now everyone knows about Jared Loughner’s shooting spree in Tucson. Less well known is the bizarre case of Brett Reese challenging the owners of a radio station to a shootout (LD Jackson discusses the case here). In response, New York Republican Congressman Peter King (yes, Republican) is proposing a law to make it illegal to bring a gun within a thousand feet of a government official.
As quickly as King moved on this issue, there is no way he performed any kind of cost-benefit analysis of his proposed law. At the very least, he has not enunciated the costs and benefits. Thus, he is apparently justifying the law with “better safe than sorry” logic, also known as the precautionary principle. Unfortunately for King, the precautionary principle is a discredited decision making process. I say unfortunately because this flawed process is still in widespread use.
The precautionary principle is frequently invoked (knowingly or unknowingly) in response to tragic events like the Tucson tragedy. For example, I lost a good friend and her 4-month old baby grandson last summer in a fiery car crash. If I were Congressman King, I would propose a ban on transporting infants in motorized vehicles. Obviously, that would be absurd.
The precautionary principle gets really nasty when it is mixed with bad law. That’s what is happening around the country with playgrounds. I’ll wrap up the post explaining what I mean.
The Precautionary Principle
The precautionary principle is a lazy-minded way to avoid cost-benefit analysis. Essentially it is “better safe than sorry” logic. The key thing is that it assumes that safe is better without addressing the costs. So my proposed ban on transporting infants in vehicles would on its surface eliminate infant deaths in traffic accidents, but at what cost? What new risks have we created? We cannot wish away cost-benefit analysis.
Cass Sunstein wrote an excellent article, debunking the precautionary principle, appropriately called The Paralyzing Principle. I feel comfortable citing the current “regulatory czar,” as I disagree strongly with his politics; when people on opposite sides of the fence agree, there’s a good chance the conclusion is correct.
In this article, I have argued not that the Precautionary Principle leads in the wrong directions, but that if it is taken for all that it is worth, it leads in no direction at all. The reason is that risks of one kind or another are on all sides of regulatory choices, and it is therefore impossible, in most real-world cases, to avoid running afoul of the principle. Frequently, risk regulation creates a (speculative) risk from substitute risks or from foregone risk-reduction opportunities. And because of the (speculative) mortality and morbidity effects of costly regulation, any regulation — if it is costly — threatens to run afoul of the Precautionary Principle. We have seen that both regulation and nonregulation seem to be forbidden in cases involving nuclear power, arsenic, global warming, and genetic modification of food. The Precautionary Principle seems to offer guidance only because people blind themselves to certain aspects of the risk situation, focusing on a mere subset of the hazards that are at stake . . . A rational system of risk regulation certainly takes precautions. But it does not adopt the Precautionary Principle.
Gun Laws and the Precautionary Principle
Most gun restrictions, in my opinion, have been implemented without a proper cost-benefit analysis. Because they are frequently put in place to prevent tragic events, I believe the precautionary principle provides the justification for many of these laws. So let’s do a quick analysis of Congressman King’s proposal to create a 1000-foot gun-free zone around government officials.
How much will it cost to put a ring of security with a diameter greater than the width of two football fields around every government official? Who will pick up the tab? How many legal gun owners will be accidentally ensnared by the law?
And as far as the benefits go, what are they? Does anyone think that Jared Loughner would have obeyed the law if it were in place? Would the law have saved any lives if it were on the books?
This very quick cost-benefit analysis shows that King’s proposal is a poor one. I believe the same can be said about most gun restrictions. But as long as gun control advocates continue to use the precautionary principle in their decision making, we will continue to get restrictions with high costs and low or even negative benefits.
Gun-free zones are another good example. “Better to keep everyone safe by banning guns than to be sorry if someone is shot and killed.” But those who would use a gun aggressively aren’t deterred (see, e.g., Virginia Tech), and those who obey the law have their ability to defend themselves reduced. Thus, gun-free zones do little to reduce the risk of gun violence (the benefit is low), and increase the danger to law-abiding gun owners (the cost is high).
Swing Sets, Bad Law, and the Precautionary Principle
The precautionary principle becomes downright detestable when government creates the risk. As this video shows, Cabell County, West Virginia is removing playground equipment from school yards:
What are the costs and the benefits? The benefit, if it could be called that, is a reduced risk of lawsuits. The obvious cost is depriving children of a fun and healthy activity. But how much would it cost to the increase the policy limits on the board’s insurance policy to cover a catastrophic verdict? Because I didn’t hear that mentioned, the action strikes me as being driven by the precautionary principle, with a million dollar verdict as the risk that drew, in my opinion, a knee-jerk response.
Notice, however that the lack of clear law is the risk. The school board doesn’t know whether it will get sued. It doesn’t know if any such suit would succeed. It doesn’t know how much a jury might award. The bottom line is that we live in tort anarchy that has injected a new form of risk that haunts our every footstep.
Let me explain “tort anarchy.” Assume, for a moment, that a little girl fell off a slide on a Cabell County playground and broke her arm. One jury might award her nothing. Another jury might give her a small award to cover medical costs. A third might give her medical costs plus two million in other damages. There is, for all intents and purposes, no law regarding playground equipment! Law is decided on an ad hoc, case-by-case basis.
We need judges to reassume their role of drawing boundaries for permissible conduct. For example, I would like a West Virginia court to decide that school boards cannot be held liable for injuries incurred on properly installed and maintained playground equipment. Even if a court determined that playground equipment is inherently dangerous it would give school boards certainty to act.
So tort anarchy created a risk for the Cabell County school board. The school board took a “better safe than sorry” approach by removing playground equipment to avoid the risk of a million dollar verdict instead of increasing its insurance policy limits (or even discussing it from what I could tell).
The precautionary principle is a discredited decision making process, but it is still in widespread use. It is used to justify gun restrictions all the time, such as Congressman King’s proposed “bubble law.” We see it in the global warming debate. We see it in many health and safety laws. We see it in the Gulf drilling moratorium.
It gets worse when applied to government-created risks such as tort anarchy. Yes, tort anarchy is the government’s fault, as judges and legislatures have the power to reduce tort risk by establishing clearer guidelines for daily conduct.
Second amendment defenders, as well as fans of playground equipment, need to demand a thorough cost-benefit analysis for any proposed policy change. Here are some indications that the precautionary principle is being used:
- The precautionary principle is invoked by name
- “better safe than sorry”
- “This law will prevent a tragedy like this from ever happening again,” or other similar language.
Until policy makers consistently use sound decision making processes, we will continue to get bad policies.