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SMART GUNS/FOOLISH LEGISLATORS:FINDING THE RIGHT PUBLIC SAFETY LAWS, AND AVOIDING THE WRONG ONESCynthia Leonardatos [FNa1] Paul H. Blackman [FNaa1] David B. Kopel [FNaaa1]
Copyright © 2001 by Connecticut Law Review; Cynthia Leonardatos, Paul H. Blackman, David B. Kopel Table of Contents II. Child
Proofing Guns: Locks and Gun Storage Requirements III The Personalization of Firearms IV. Policy Issues VI. More "Smart"
Guns, Less Gun Safety?
I. INTRODUCTIONGun misuse by unauthorized gun users is a serious problem. About one-seventh of police officers who are fatally shot are shot with their own guns. [FN1] Many guns used by criminals have been stolen from their proper owners. While gun suicide is quite rare for most young people and children, the gun suicide rate is not insubstantial for males aged fifteen to nineteen. [FN2] Although gun accidents involving children have fallen to an all-*158 time low, [FN3] any fatality involving a child is tragic. Accordingly, policy-makers have begun looking for ways to reduce or eliminate gun misuse by unauthorized users. This Article examines the possibilities and the policy implications of current proposals to prevent gun misuse by persons who are not authorized by the gun's owner. [FN4] In other words, are there technologies that gun owners, including police officers, can use to prevent their guns from being misused by children, teenagers, or thieves? Should the government mandate the manufacture, sale, or use of such technologies? Policy-makers considering mandates must evaluate two different kinds of gun safety. First, a functioning gun in the hands of an irresponsible child or criminal is an unsafe gun. Second, a gun that cannot be used for its intended purpose by its law-abiding owner is also an unsafe gun. For example, a built-in gun lock might make a policeman's gun safer, by preventing the policeman's small children from misusing the gun when it is stored in the home. Yet the very same gun lock might also make the gun unsafe, by preventing the policeman from using the gun quickly during an emergency while on duty. Likewise, a homeowner might feel safer when buying a gun with a built-in palm print reader, because she knows that the teenagers who live next door will not be able to steal her gun and use it. But that same homeowner might be terrified one night when she hears the glass of her bedroom window shatter, sees a man entering, reaches for her handgun--and discovers that because the battery on the palm-print reader has run low, the gun will not function. To focus only on one form of safety (stopping unauthorized gun use) can fatally damage another form of safety (authorized gun use). In Merced, California, a seven-year-old and a nine-year-old were murdered by a pitchfork- wielding home invader. Their teenage sister could have stopped the murderer, but she could not retrieve the family gun which was locked in a safe in compliance with California's felony gun storage law. [FN5] Are there gun storage devices, gun personalization devices, or laws about these devices that can promote both types of firearms safety? Personalized handgun designers face the daunting challenge of merging *159 twenty-first century computer technology with firearms, whose current design is not greatly different from firearms design in the late nineteenth century. Can tiny computers function reliably when gunpowder explosions are taking place inches away, jarring the gun, producing intense bursts of heat, and sending smoke in all directions? How much reliability can be sacrificed before the gun becomes unreliable for defensive purposes? Besides the direct effect on defensive gun use, what are the secondary consequences of gun storage and gun design mandates? For example, Canada has determined that registration of every firearm and police inspections of the homes of gun owners are necessary to enforce the nation's safe storage requirements. Given the near-certainty of evasion of gun storage laws by a substantial number of Americans, would pressure build for similar home inspections in the United States? A different secondary consequence stems from presence of 250 million firearms in civilian hands in the United States today. [FN6] If legislators mandate new types of firearms design, will the new designs change gun safety habits? Imagine that ten years from now, there are twenty million new "smart" guns, plus the old supply of 250 million "dumb" guns. Persons used to "smart" guns can handle them carelessly, because the "smart" guns' built-in technology prevents accidents. Will people who are used to "smart" guns act carelessly with older, "dumb" guns? Will people be able to distinguish the "smart" guns from the older guns--and then act appropriately? Are there constitutional problems with the legislative mandates? Can laws about gun
storage be enforced without routine government inspections of the home? Such inspections
are standards in Great Britain and Canada in order to enforce storage laws. [FN7] Do laws that drastically raise the price of firearms, by mandating
the use of various technologies, infringe poor people's exercise of state or federal
constitutional rights? Broadly speaking, government mandates fall into two broad categories. The first of these mandates, which we discuss in Part II, is a requirement that guns be locked up, using existing technology, such as trigger locks or gun safes. We examine the utility of existing technology in preventing gun misuse, as well as the degree to which existing technologies may impede *160 use of a firearm for defense in an emergency. We then examine policy issues regarding storage/locking mandates, as well as public opinion regarding the issue. Part III examines new, high-technology devices intended to "personalize" guns--biometric, computer, and other devices--which are meant to enable a gun to recognize the authorized user, so that the gun will not fire when it is in the hands of an unauthorized user. After surveying the various technologies and their particular strengths and weaknesses, we examine broader issues regarding the reliability of all the personalization devices. The reliability discussion concludes with analyses of the Sandia Laboratories report on personalized firearms for law enforcement. In Part IV we address the policy issues regarding legal mandates for personalized guns, including the absence of market demand for such guns, police resistance to such guns, enforcement issues arising from consumer deactivation of such guns, and particular problems with the Model Act that is used as the basis for proposed mandates. Part V examines two very different critiques of personalized gun mandates. The Violence Policy Center, [FN8] a gun prohibition organization, argues that personalized gun mandates will lead to the dangerous proliferation of firearms. The other critique comes from firearms safety instructors, who worry that the proliferation of personalized guns will lead people to neglect basic rules of firearms safety--such as never pointing the gun in a dangerous direction. We conclude that all of the proposed legislative mandates significantly impede the utility of firearms for defensive purposes, and in some cases may actually increase the risks of gun accidents or other misuse. Since the value of defensive gun possession by law enforcement officers is undisputed, we conclude that executive branch officials and legislators should not force law enforcement agencies to use the various devices discussed in this Article. We do not attempt to resolve the debate regarding the legitimacy of defensive gun ownership by civilians. We do note that, if one believes in the legitimacy (or the constitutional protection) of civilian defensive firearms ownership, then mandates for civilians would be bad policy. Indeed, as we detail, the dangers of some civilian mandates may be even more acute than the dangers of law enforcement mandates. This article does not address the constitutionality of the various mandates, under the Second Amendment or under the right to arms guarantees *161 that are contained in forty-four state constitutions. [FN9] At the outset, we should disclose our contrasting ideological view-points on the gun
control issue. One of us (Leonardatos) is a law enforcement officer who supports much
stricter gun control. Another (Blackman) is Research Coordinator with the National Rifle
Association (NRA), who opposes most of the controls that Leondardatos favors, but who does
favor some federal gun laws, and their strict enforcement. The third of us (Kopel) works
for a think tank, and is skeptical about both the Leonardatos and the Blackman proposals
on federalism grounds. Thus, this article does not take any position for or against gun
control in general, or for or against vigorous enforcement of the Second Amendment.
Rather, we offer an analysis of the practicalities of laws which mandate the use of
various technologies on firearms; whatever one thinks of the Second Amendment implications
of such mandates, decision-makers ought to consider the real-world consequences of
legislative tinkering with deadly weapons. II. CHILDPROOFING GUNS: LOCKS AND GUN STORAGE REQUIREMENTSWhile Part III of this article examines various cutting-edge high-tech devices, Part II concentrates on well-developed products that are currently available on the market. These devices include a wide variety of locks and safes, as well as more obscure products known as magazine disconnects and removable hammers. For each type of product, we survey the advantages and disadvantages, paying particular attention to two distinct risks: that the product could fail to stop unauthorized users, or that the product could fatally impede authorized users. After laying the factual foundation, we turn to policy issues and social science research regarding the costs and benefits of mandated use of these products. We also look at the Fourth Amendment implications of government control of gun storage within the home. A. Types of Locking and Storage Devices1. Trigger LocksTrigger locks are in many ways the simplest locks. They have been in existence since 1969 [FN10] and seem to be the most promoted among politicians. *162 Trigger locks vary from expensive battery-powered coded devices to cheaper mechanical locks. [FN11] The locks are placed on or around the trigger, and are intended to prevent the trigger from being pressed. Gun owners and others criticize trigger locks for several reasons. Unlike padlocks, trigger locks lack a quality rating system and vary extensively in effectiveness, durability, and price. [FN12] Many trigger locks can be defeated with pliers or wire-cutters, or other workshop tools. [FN13] Trigger locks are suitable only for unloaded guns. Indeed, when used on a loaded gun, trigger locks can cause accidental discharges. First of all, the act of placing or removing the lock may move the trigger, and thus cause the gun to fire. In addition, all firearms currently manufactured or imported into the United States can pass a "drop test." That is, if the loaded gun is accidentally dropped, it will not fire. [FN14] But when a trigger lock is placed on a loaded gun, and the gun is dropped, it may discharge. In other words, the trigger lock can cause a variety of accidents that would have been impossible but for the trigger lock. Even with a trigger lock in place, it may be possible to fire the gun: "[w]ith trigger locks, you can still load it. Sometimes, if you drop it, [the gun] will still fire. And sometimes, you can force the lock back and still use [the gun]." [FN15] Since the trigger lock must not be used on a loaded gun, it is unsuitable for use on a gun which must be ready for defensive use in a sudden emergency. Protective guns are typically stored or carried loaded; if a rapist is coming through the bedroom window, there may not be time to load the *163 gun. The homeowner would have to take a trigger lock off and then load the gun, all in the few seconds between the time a criminal enters the home and the time that a violent attack might begin. On the other hand, trigger locks may be reasonable choices for gun owners who do not need their firearms ready for use. For example, a man who owns two hunting rifles that he uses a few times a year might choose to put trigger locks on the rifles. 2. Cable LocksA trigger lock could be used on a loaded gun, but should not be. A cable lock is literally impossible to use on a ready-to-fire loaded gun. A cable lock consists of a metal cable (sometimes surrounded by rubber), which is similar to a bicycle lock, but thinner. Each end of the cable connects to an ordinary padlock. The cable either goes through the barrel or through the action [FN16] of a handgun or long gun, thus preventing a round from being chambered or fired. On a double-action revolver, the cable blocks the cylinder from closing in place. [FN17] On a semi-automatic pistol, if the cable is threaded through the barrel, the cable prevents a round of ammunition from entering the firing chamber. If the cable is threaded through the opening for the magazine (ammunition feeding device), the cable prevents insertion of a magazine. The padlock portion is most commonly operated by a key, although combination locks may also be used. [FN18] There are two obvious disadvantages to cable locks. In order to use the gun for protection, the cable lock must be unlocked, and only then can the gun be loaded. The other disadvantage would be readily recognized by most bicyclists: cables are thin and easily cut--and the narrow diameter of gun barrels precludes the use of thick cable. [FN19] As with bicycles, cable locks are designed more to discourage casual theft than to stop people who have the time and the determination to obtain good wire cutters. Because trigger locks and cable locks are both rather easy to defeat, the Consumer Product Safety Commission ("CPSC") recently instituted a voluntary recall of thirty different locks, ranging in price from about six to *164 twenty-five dollars. About half were cable locks and the other half trigger locks. [FN20] 3. Internally Installed Combination LocksThe Saf-T-Lok is a combination lock that its manufacturer says can be used on a loaded
gun. [FN21] The lock does not fit over the trigger, so it does not
pose the risk of causing a loaded gun to fire accidentally, as trigger locks might. Almost
alone among the manufacturers of gun locks, gun safes, and personalized guns, the
Saf-T-Lok company has lobbied for legislation to mandate the sale and use of its products.
[FN22] The Johns Hopkins Center for Gun Policy and Research--which is the main intellectual force behind the mandates discussed in this article--reports that "[t]he company claims that the gun is quick and simple to use, and can be fired in under three seconds, even in complete darkness." [FN24] Three seconds is longer than the typical gunfight lasts. [FN25] Three seconds is roughly twelve times longer than the time considered acceptable based on a United States government study of personalized guns for law enforcement. [FN26] The manufacturer's three-second scenario presumes that the shooter will remember the gun's combination within those three seconds and overcome any stress that may factor into the situation. The difficulty of using a Saf-T-Lok under even minimally stressful conditions was unintentionally demonstrated by Dennis Henigan, the head attorney at Handgun Control, Inc., when Henigan was making a presentation for U.S. Conference of *165 Mayors. [FN27] Attempting to convince the mayors that gun companies should be sued by municipalities for not incorporating devices like the Saf-T-Lok, Henigan "fumbles and fails to unlock the gun in a well-lit room with no intruder at the door. Hair grays. Epochs wane. Finally, disengaging the safety, he apologizes, 'Most people aren't as klutzy as I am."' [FN28] Asked about the incident, Henigan stated, "[e]ven if a klutz like me fumbles on the first try, the benefits of having a lock outweigh the risks." [FN29] Henigan was attempting to use the device in good light and during a calm demonstration, while a police officer or a homeowner might have to unlock the gun in the dark and under stressful conditions. In early 2000, Maryland Governor Parris Glendening held a press conference to promote
the gun control legislation that was the top item on his legislative agenda for the year.
[FN30] He too attempted a Saf-T-Lok demonstration to show how easy it
was to use a gun lock. After minutes of fumbling, he was still unable to remove the
Saf-T-Lok. [FN31] The governor was finally able to remove the lock,
but only with assistance. [FN32] 4. Hammer Locking DevicesWhen a gun's trigger is pressed, the trigger releases the gun's hammer. The hammer then swings forward, and hits the firing pin, which then hits the cartridge, and ignites the gun powder. On most self-loading pistols, the hammer is concealed. On most revolvers, the hammer is exposed. One type of hammer locking device was developed in 1999 by Saf-T-Hammer. [FN35] It features a removable firearm hammerhead, which can either be incorporated into new guns or retrofitted onto most existing handguns. [FN36] The idea is that the top of the hammer can be removed when the gun is not in use. [FN37] This device is promoted as capable of being used on loaded or unloaded guns, without sequences, codes, or combinations which an owner would have to remember. [FN38] According to a confidential source at the Bureau of Alcohol, Tobacco & Firearms (BATF), with just a single quick motion, a BATF firearms expert was able to manipulate the gun so that it could shoot without the Saf-T-Hammer. The device is designed to be used with a loaded gun, which could lead to unsafe storage practices and accidents. [FN39] Consumer response to the Saf-T-Hammer appears to be low. [FN40] The company trades on the Nasdaq Bulletin Board. [FN41] According to the Charles Schwab web site's research center, the company has no net earnings, and no earnings are forecast for the next five years. [FN42] The company's stock trades under a dollar a share, and has dipped as low as nine cents per share. [FN43] A more reliable hammer lock appears to have been developed by Taurus International, a
large manufacturer of revolvers, pistols, and rifles. [FN44] *167 The
Taurus Security System is built into the gun by the manufacturer; it places a tiny lock
underneath the hammer, at the back of the gun. [FN45] The lock is
engaged or disengaged by turning a tool that is about the length of a toothpick. The tool
is about the width of a micro screwdriver at the working end, and about the width of a
finger at the handle end. 5. Magazine DisconnectsIn a revolver, the ammunition is held in a revolving cylinder that is attached to the gun. In a self-loading pistol, the ammunition is held in a rectangular case called a magazine. Usually the magazine is inserted into a hollow space in the grip of the pistol, although some pistols have another spot to insert the magazine. A magazine disconnect prevents the pistol from firing if the magazine is not in the gun. So even though the pistol might have one round of ammunition in the firing chamber (where a round of ammunition is held ready for the trigger to be pulled and the hammer dropped), the gun would not fire. A magazine disconnect costs very little for a manufacturer to insert- perhaps about 25 to 50 cents. An advantage of a magazine disconnect is that the gun can be stored partially loaded (with a round in the firing chamber), and quickly made usable for protection by inserting the magazine into the gun. Of course if the magazine is stored near the gun, an unauthorized user could also insert the magazine. Magazine disconnects have been around for many years. Some handgun manufacturers put them on their guns, but most do not. Police officers who prefer guns with magazine disconnects support the idea of a magazine safety to protect them if they are in imminent danger of losing a weapon to a perpetrator. The officer could eject the magazine, which would delay or prevent his assailant from using the weapon against the officer. Other law enforcement officials fear that an officer, armed with a self- loading pistol, might wish to switch magazines before she is actually out of ammunition, especially if she has lost count of how many rounds she has fired. Or she might drop the magazine while attempting to reload. Even though her gun would have a round in the firing chamber, she would not be *168 able to use the gun for a shot, which might be necessary to save her life. Similar pros and cons apply to civilians concerned with defensive gun use. Many gun safety trainers are skeptical of magazine disconnects. [FN46]
First of all, safety instructors strongly discourage gun owners from counting on any
mechanical device to work as intended. Instead, trainers insist that gun owners always
follow safety rules, even if mechanical devices might make the rules unnecessary. The most
important of these rules are:
For magazine disconnects, the danger is particularly acute. Even if a new law mandated that all new pistols have magazine disconnects, the majority of existing pistols--tens of millions--will have not have magazine disconnects. A young gun owner who relies on the magazine disconnect from his 2004 Smith & Wesson could make a fatal error by presuming that the 1990 Beretta pistol he borrowed also has a magazine disconnect. Also, the magazine disconnect is entirely hidden, and is not visible to the gun owner, even when the gun is disassembled for ordinary cleaning. How can the gun user be sure that a previous owner did not have the magazine disconnect removed--which can be done with just a snip of a metal-cutter? 6. Gun Lock Boxes and Gun SafesFor those gun enthusiasts who own many firearms, safes are often a preferred means of storing and securing firearms. Federal law, which requires that some sort of locking device be made available by gun dealers, defines "secure gun storage device" as "a safe, gun safe, gun case, lock box, or other device, that is designed to be or can be used to store a firearm and that is designed to be unlocked only by means of a key, a combination, *169 or other similar means." [FN48] Lock boxes for guns cost from around $50 to $150. Most of these boxes rely upon keys or combination locks. They are generally designed to house one or two loaded handguns. [FN49] Lock boxes can be broken open--as one writer demonstrated when she put some candy inside a lock box, and then told her pre- adolescent children that they could have the candy if they could get it out of the lock box. Armed with little more than screwdrivers, they retrieved the candy within minutes. [FN50] Gun safes range in cost from a couple hundred dollars to several thousand. Like lock boxes, gun safes are impenetrable to very small children, but can often be broken open by teenagers using ordinary household tools. [FN51] One proposed federal law would require dealers to deliver a lock box, or safe with each gun purchase regardless of whether the buyer already has the means to safely store his new gun. [FN52] This law would not, therefore, recognize large gun safes as adequate secure storage receptacles for more than one handgun. While the above list covers the vast majority of currently available gun lock devices, entrepreneurs are hard at work inventing new devices. For example, a police officer has a holster that is designed to lock the gun within it and that would also alert authorities to any attempt to remove the gun. [FN53] Since police typically carry their guns in holsters, the device may be particularly useful for law enforcement. B. Policy IssuesIn this section, we address some of the policy implications of the facts about gun locks, detailed herein. 1. Resistant to Small Children, But Not "Childproof"If there is one thing that should be clear, it is that discussion of "childproofing" guns is dangerously misleading. A device may slow down child access, but none of the devices can really deliver "childproofing." Most of the locks could prevent a five-year-old from using the gun. Few of the *170 locks could prevent a fifteen-year-old from using the gun, especially if the fifteen-year-old had some tools and some time. As the Violence Policy Center recognized regarding the distribution of some trigger locks, "[w]e have defeated those locks with one smash of a hammer and opened them with paper clips and everything else .... To pass them off as gun locks is consumer fraud." [FN54] Indeed, the Consumer Product Safety Commission has initiated a voluntary recall of hundreds of thousands of gun locks. [FN55] Gun accidents with small children are by far the smallest part of the problem of unauthorized gun use. [FN56] Gun accidents involving reckless teenagers (mostly male), gun suicides involving older male teenagers, and gun thefts by criminals are each much larger problems than accidents with small children. Most locking devices, except very expensive safes, can slow down but not prevent gun misuse by unauthorized teenagers or adults. Accordingly, one of the unintended dangers arising from legislative attention to gun locks may be the frequent use, especially in the media, of the word "childproofing." Most of the products discussed in connection with "childproofing" guns are not capable of stopping a determined assault from a twelve-year-old child. If parents hear about cable locks for "childproofing" guns, they may expect their cable lock to be absolutely impervious to their twelve year old; but in fact, the cable lock may only be able to resist a twelve year old with wire cutters for a few seconds. "Child-resistant" would be much more accurate term to use--and therefore a much safer term. 2. Interference with Self-DefenseAs detailed above, all of the various types of locks add at least several seconds to
the time it takes to use a firearm in an emergency. If the lock does not function
properly, or causes the gun to malfunction, then the gun may become useless in an
emergency.
Second, McClurg, as a tort specialist, with substantial expertise in product liability, would presumably not deny that many consumer products do not always perform as well as manufacturers claim. As detailed herein, there is substantial reason to doubt that many of these products can be *172 "opened or released in a matter of seconds, even in total darkness." Third, the experts who write for gun magazines stress safe storage, and they stress that the conditions for safe storage vary greatly from family to family. None of these experts support government mandates. Fourth, governments that enact gun lock mandates sometimes specifically exempt themselves from liability for deaths or injuries that result from the locks' interference with self-defense. The New York City gun lock law contained such a liability shield, as well as a shield against liability for accidents caused by the locks. Tellingly, the lock law also exempted personal firearms owned by police officers, even in their homes and when off duty. [FN58] Finally, McClurg asks us to ignore the social science evidence from John Lott [FN59] that shows substantial crime-producing results from gun lock mandates. McClurg does not criticize the methodology of Lott's study; so far as we know, no one has pointed to flaws in that study. Rather, McClurg makes a common-sense argument, asking for anecdotal evidence. Unfortunately, such evidence can now be supplied, as the next section details. C. Governmental Approaches Regarding Childproofing-and the Slippery Slope to Home Inspections1. Gun Lock GiveawaysAcquisition of gun locks by people who already have guns is widely encouraged by civic groups, church organizations, and law enforcement agencies. [FN60] For example, the National Shooting Sports Foundation, in conjunction with dozens of police departments, ran Project Homesafe to distribute gun locks for free. The program ran into controversy, however, when it was discovered how easily the locks could be destroyed and removed. [FN61] While people are often happy to be given something for free, it is difficult to see what practical difference these give-away programs really make. Anyone can buy an inexpensive gun lock already, either at a gun store, or at large discount stores like Kmart or Walmart. Perhaps there are a few gun owners who have no familiarity with guns (maybe they inherited the gun, rather than buying it in a store), and were so ignorant that they never considered going to a gun store or a Kmart to buy a gun lock. But when they saw a newspaper article advertising the availability of free gun locks at a nearby police station, they got in line. Even so, it seems doubtful that *173 the attention given to gun lock giveaways is even remotely proportionate to their real-world effect. 2. Mandated Sales of Gun LocksCongress has adopted legislation requiring that federally licensed firearms dealers to
have gun locks available for sale. [FN62] Some states require that a
gun lock be sold every time a firearm is purchased. [FN63] These state
laws contain no exemption for a gun-owner who has a large safe, and thus does not need a
$6.95 trigger lock. [FN64] So far, legislative proposals for mandatory lock purchases do not require that owners use the locks. Thus, gun owners who rely on their firearms for protection can throw away the unwanted locks that they were just forced to purchase. There is a federal proposal to exempt persons from liability for misuse of their
firearms by persons gaining access without permission if the firearm was stored as
intended, using the device the gun purchaser was obligated to acquire. [FN66]
One effect of this federal liability exemption would be to indirectly encourage courts to
hold that failure to use the lock the buyer was forced to purchase would be presumptively
or per se negligent. 3. Mandatory Use of Gun LocksThus far, Washington, D.C. is one of the very few American jurisdictions that requires that all guns be locked up. In 1999, New York City voters defeated a Charter revision package which would have, inter alia, mandated that owners lock their guns. [FN67] If laws were passed that compelled owners to keep their guns locked, the simplest way to minimize the delay in obtaining and using the firearm would be to store the key with, or even in, the handgun. New York Senator Charles Schumer, one of the strongest gun control advocates in Congress, acknowledged, "in most likelihood you'll keep the key to the trigger lock right ... where you locked the gun." [FN68] Such storage would, obviously, negate much of the lock's ability to prevent unauthorized use. Below, we discuss the fact that gun storage legislation requires follow-up legislation, including authorizing the police to inspect conditions of safe storage to ensure that they actually are safe. For the present, however, the more common legislative approach is not to mandate that all gun owners use gun locks. Instead, fifteen states have enacted Child Access Prevention laws, generally referred to as "CAP" laws. [FN69] These laws mandate that gun owners store their guns, by whatever means they choose, in order to limit children's access to guns. [FN70] These laws are occasionally supported by the NRA, as in Florida. In some other states, the NRA remained silent as to their passage, if the legislatures carefully drafted the statute to define the negligence and endangerment*175 restrictions. [FN71] Legislative mandates might provide for criminal as well as civil enforcement, with some specified methods of storage (such as use of a safe or a lock) immunizing the gun owner from civil liability. Additionally, CAP laws apply only to households where children (defined by a specific age, which varies from state to state) reside or where they might reasonably be expected to have lawful access to the firearms. [FN72] Two studies of CAP laws have been conducted, although neither study measured compliance with the CAP laws, or enforcement levels of the laws. One study, published in JAMA (the Journal of the American Medical Association) found a statistically significant reduction in gun accidents following the enactment of such laws. [FN73] This study could be criticized because its statistical significance depended disproportionately on results from the single state of Florida. [FN74] Another study compared crime, accident, and suicide trends in states with CAP laws with
trends in other states, while controlling for the effect of numerous sociological factors.
[FN75] The study found no statistically significant reduction in
accidents involving children or teenagers. [FN76] Teenage gun suicide
decreased, but not the overall teenage suicide rate. [FN77] There were
also large increases in violent crime and homicide. While the precise increase in crime was impossible to measure, it was possible, using ordinary statistical methods of estimation, to provide data at the 95% confidence level. [FN78] That is, to offer estimates which were 95% likely to be less than one standard deviation away from the result that would be obtained if every single real-world incident could be counted. [FN79] These results were:
The crime increase was most severe in states where CAP law violation was a felony--the only states where JAMA found the law to be effective. (Again, the results are statistical estimates. Not every state would have nine percent more rape; but on the average, rape would increase by roughly nine percent after the enactment of a CAP law.) A real-world example of the statistical evidence found by Lott and Whitley was the
incident in Merced, California, in August 2000. There, a pitchfork- wielding man cut the
phone lines to a home, then broke in and began attacking the four children, while their
parents were not home. [FN81] The oldest child, fourteen-year-old
Jessica Carpenter was unable to retrieve her father's guns from a locked cabinet. [FN82] She ran to a neighbor's home, and begged him to use his own gun to
confront the attacker. [FN83] The neighbor did not do so, but 911 was
called. By the time the police arrived, Jessica Carpenter's seven-year-old brother and
nine-year-old sister had been murdered. [FN84] Jessica's fathers guns
were locked up in accordance with the California felony CAP law. [FN85] Even if we rely on the JAMA findings about a reduction in gun accidents, it is not clear that CAP laws are a net gain to society. Fatal gun accidents involving children are already low and falling, so even a large reduction (say, ten percent) in the fatality rate saves relatively few lives. Suicide by gun is a by far the largest source of gun deaths, but these suicides are strongly correlated with age, being especially common among elderly white males. [FN86] Gun suicide by children is very rare, while gun suicide by older male teenagers is lower than the rate for any older group. Thus, even a large reduction in the rate saves relatively few lives. The finding that CAP laws change the method of suicide, but do not prevent suicides, should not be surprising, given that other, highly lethal means of suicide are readily available. [FN87] In contrast, violent crime perpetrated against people in their homes is far more common than gun accidents and suicides involving children and teenagers. Thus, even a small increase in rate of violent crime results in a large increase in deaths and other victimization. Accordingly, even if the benefits of CAP laws (reducing accidents with children and teenagers) are ten times more powerful (a ten percent reduction) than the harms (increased victimization because guns are less available for protection) of CAP laws (a one percent increase in crime), the net effect is a large increase in the number of deaths of innocents, as well as even larger increases in rape, burglary, and other harms. But there is an important caveat to this last conclusion. If one presumes that guns should only be used for sporting purposes, and not for defense, then the reduction in lawful defensive gun use can be viewed as socially neutral, or even beneficial. Since reducing defensive gun use is not a harm, then CAP laws would be beneficial, even if the decrease in accidents or suicides were so slight as not to be statistically noticeable. *178 Mrs. Sarah Brady, the head of the most powerful lobby that pushes for CAP laws, states, "To me, the only reason for guns in civilian hands is for sporting purposes." [FN88] Likewise, her husband Jim Brady was asked if handgun ownership should be permissible. Mr. Brady replied, "For target shooting, that's okay. Get a license and go to the range. For defense of the home, that's why we have police departments." [FN89] Under this paradigm, CAP laws are clearly a net gain to society. Besides accomplishing the formal goal of slowing down or stopping unauthorized users, the gun storage laws may sometimes prevent defensive gun use by authorized users. As Part III details, the legitimacy of defensive gun use is also at the heart of the debate over whether legislatures should mandate personalization technology on firearms.\ 4. Gun Owner Resistance and Government ReactionFor a moment, let us put aside the issue of whether gun lock mandates actually
interfere with self-defense. Likewise, set aside the question of whether impeding armed
self-defense is a good idea or a bad idea. Regardless of the answers to these questions,
there can be no dispute that many gun owners think that such mandates will impede
self-defense. The long-term consequence of gun owner resistance to gun lock mandates may
be police home inspections, as are currently the rule in Canada and Great Britain. Carrying a concealed gun is, after all, a rather easy offense to commit with low fear
of being caught, as long as one stays away from metal detectors. Nevertheless, millions of
people fill out paperwork, pay fees, submit fingerprints, and undergo training--all in
exchange for a little card that authorizes the person to do what he could easily get away
with doing anyway. Jessica *179 Carpenter's father was obviously
the type of gun owner who was careful to obey all gun laws, even when the risks of being
caught are close to nil. But when the gun is kept for home defense, it is "in use" almost all the time. And that is why many gun owners will refuse to comply with gun lock mandates. They may consider the words of Mafia turncoat Sammy "the Bull" Gravano, whose testimony helped jail the likes of John Gotti: "If I'm a bad guy, I'm always gonna have a gun. Safety locks? You pull the trigger with a lock on, and I'll pull the trigger. We'll see who wins." [FN91] His views are consistent with those of former San Jose Police Chief Joseph McNamara: "You can't have it two ways. If you really safeguard your gun so that innocent people in your house--your children or visitors or someone else--can't get hurt with it, then they won't be able to get that gun for the kind of emergency that they bought it for in the first place." We are not as pessimistic as Chief McNamara--it is possible to keep a gun in a home in a way that is useful for protection and safe for the occupants. But our point here is that many gun owners are not going to lock up their guns, no matter what the government says, because they agree with McNamara that locks are absolutely incompatible with defensive ownership. Indeed, Gun Owners of America disseminates the McNamara quote in its legislative alerts. [FN92] Will this defiance provoke a legal escalation by the government? In Canada, legislation in the 1980s mandated that guns in the home be stored safely. In the 1990s, the Canadian government enacted legislation allowing the government to inspect all homes containing firearms, to verify *180 the conditions of storage. [FN93] Canadian police have the authority to enter homes with "reasonable" notice based on either an administrative warrant or the consent of the owner in order to inspect storage conditions. [FN94] Universal gun registration was imposed as a means to ensure that the government would know which homes to inspect. The presence of a registered gun in the home is all that was necessary for the police to obtain an administrative warrant to inspect the home. In Great Britain, gun owners are required to keep their guns in high-quality safes, and the police routinely conduct home inspections before issuing or renewing a gun license. [FN95] Less frequently, they also conduct unannounced spot checks on homes to ensure that gun storage requirements are being obeyed. [FN96] In the United States, gun storage laws have not yet led to home inspection laws. But Handgun Control, Inc., the largest anti-gun lobby, [FN97] in its flagship "Brady II" bill, proposes universal gun registration, along with a requirement that people who own more than a certain number of guns or gun parts consent to thrice-yearly inspections of their homes. [FN98] If it is legitimate to have thrice-yearly inspections of people who own a certain number of guns, it is not particularly difficult to justify inspections of the homes of people who own a smaller number of guns. One cannot be certain whether American courts would uphold such searches. We do know
the "reasonable search" doctrine was created in order to allow unconsented
safety inspections of housing. [FN99] The Supreme Court has also held
that welfare recipients may be required to allow warrantless home visits by caseworkers. [FN100] For people who find the idea of home inspections by the police
repellent, it might be prudent to work against the enactment of laws that give rise to the
need for home inspections *181 rather than to expect that
courts will definitely rule such inspections unconstitutional. [FN101] III. THE PERSONALIZATION OF FIREARMSPart II discussed ordinary items (such as locks and safes) that may be used to restrict usage of a firearm. We now turn to more futuristic devices--those built into the gun itself. These devices may be mechanical, radio-based, or computer-based. Collectively, these devices are called "personalization technologies." One reason for avoiding the term "smart gun," aside from questions as to whether it is accurate, is that the O.F. Mossberg shotgun company has trademarked something it calls a "Smart-Gun." [FN102] So whatever products are introduced by other companies, they will not be called "smart guns" (in order to avoid trademark infringement)--just as carbonated sodas are not called "cokes" unless they are made by the Coca-Cola company. In this Part, we first survey the different personalization technologies. Next, we discuss the results of Sandia Laboratories' testing of personalization technologies; we also discuss Sandia's conclusion that none of the personalization technologies appear to be acceptable for law enforcement needs. This leads to analysis of reliability problems from the viewpoint of law enforcement and civilians. Finally, we look at how reliability-focused police officers or civilians may attempt to bypass their guns' safety features.*182 A. Personalization Devices1. Radio Frequency Identification Device (RFID)One type of personalization is the Radio Frequency Identification Device, which equips a gun with radio waves and an antenna to receive those waves. The waves are transmitted from a ring or wristband worn by the shooter. [FN103] The gun would be capable of accepting several memory codes; this would be helpful for families that have more than one authorized user. It would also satisfy law enforcement's need to have several officers capable of firing the same weapon (so that, for example, if one officer is killed in a firefight, another officer can use his gun). The waves would easily pass through an officer's gloves. Although this invention has been promoted by Colt, it is still, like many similar technologies, in the prototype phase. When Steven Sliwa of Colt's Manufacturing Company slipped his wristlet in place and pulled the trigger of a gun, nothing happened. Sliwa sheepishly explained, "[f]or a while it worked fine." [FN104] A November 1998 position paper by Colt foresaw the development of a personalized gun for police within 2 to 3 years, and a gun for civilians 2 to 3 years after that. [FN105] Two-and-a-half years later, nothing on the Colt web site reports any progress since November 1998, or suggests that a RFID gun will be available anytime. [FN106] Some potential purchasers of the RFID may have some concerns about the effectiveness of this mechanism. For example, considering that a power source would be required, the absence or destruction of this source would be an issue for someone seeking to use a failure-proof weapon. Additionally, an officer may have some questions about the interaction of his weapon's radio waves with his car radio, walkie-talkie, or another officer's firearm or equipment. [FN107] Officers would also be concerned about dead *183 spots for their antenna reception, and the distance at which their reception would fail. Civilians would have similar concerns about interference from nearby radio sources, such as wireless Internet devices. Another risk with RFID technology is that it would be dependent upon "an item such as a ring, or a watchband, that they could forget." [FN108] While officers could probably be trained to include this new gadget as part of their daily equipment checks, civilians may have a more difficult time remembering to grab their gun-watchband/ring as they chase burglars from their homes. [FN109] As a practical matter, some persons keeping a loaded gun in the home would also keep the unlocking device similarly close to the firearm. While this would decrease the time necessary to make the gun operable, it would also substantially undermine the goals of personalization since everything necessary to use the gun would be in one place. Moreover, depending upon the strength of the radio wave, children playing with the gun near the unlocking jewelry would still be endangered. If they play with the gun while it is five feet from the radio ring, the gun might still fire. Burglars and adolescents familiar with RFID devices would simply take the device with the gun before attempting to shoot. Another issue is that the RFID ring would make it easy for third persons to identify its wearer as a gun owner. Even if the gun were kept at home, the owner would presumably keep the ring on at all time (the better to prevent unauthorized use). Los Angeles City Councilman Michael Feuer proposes banning the sale of all handguns that do not use radio technology. [FN110] Would forcing gun owners to identify themselves in public be *184 as constitutionally objectionable as forcing everyone who has had an abortion to wear a scarlet "A"? Does the answer depend on whether gun ownership is a constitutional right? (California is one of six states without a right to keep and bear arms in its state constitution.) Is forcing someone to wear a ring in exchange for exercising a government-granted privilege an infringement of the First Amendment--akin to forcing someone to wear (or not wear) an armband or other item of adornment? [FN111] 2. Remote ControlAnother idea is a remote-control device in which a small hand-held transmitter would
enable or disable a firearm. [FN112] While the device would require
positive human action for its operation, it would be transferable to other persons. As
with the RFID technology, there would be the constant threat of battery failure and
interference with other radio waves. The temptation for any gun owner, civilian or law enforcement, would be to keep the remote control device even closer to the gun than most television owners keep their remotes to the TV set. All the burglar has to do is make sure he steals both the gun and the remote. 3. Bar Codes or Magnetic StripsA gun with a bar code is similar in operation to a grocery store's check-out machine,
which scans the bar codes on the products. The magnetic strip is similar to the strip in
access cards that are now used as hotel or office building keys. [FN113]
As with other technologies, these keys could be transferred, thereby satisfying the needs
of law enforcement and civilians who may wish that another person have access to their
firearm. Problems would appear to outnumber any possible advantages regarding the use of bar codes or magnetic strips. Anyone who has had to wait in a grocery store check-out line while his food is repeatedly scanned over the bar code reader, or who had to swipe his hotel key-card several times through the door lock, can appreciate the reason why these inventions would not be appropriate for firearms--at least for firearms which are meant to be used for emergency protection. In order to unlock the firearm, the card-key would have to be placed in a precise position with relation to the gun, which could be difficult to accomplish in a stressful situation. Additionally, if the owner is wearing gloves or is using the weapon in inclement weather, he may also be unable to unlock the gun. A power source would be required to operate the codes, which naturally leads to the same problems of dead or purposefully defeated batteries that were discussed for RFID and Remote Control devices. As with other inventions, officers and civilians would be inclined to keep the key in close proximity to their gun for emergency situations--thus weakening the device's utility in stopping unauthorized access. The most important problem, however, is that so far, no-one has been able even to conceive of a practical way to implement this technology in a personalized gun. [FN114] 4. Touch MemorySimilar to the radio frequency device, the Touch Memory device involves a ring or some other item that is capable of being read by the gun. [FN115] The gun will work only if a particular spot on the gun is touched by a particular spot on the ring. The advantage of this invention is that when it works properly, the reading is fast enough to satisfy most police or other defense needs. The touch memory does require an electronic connection, making it dependent upon a power source with all of the accompanying complications. In addition to the problem of a power supply, the reading could be impaired not only by a user's gloves, but also by dirt, blood, sweat, and oil. (Oil is used to clean guns, and a clean gun may have some residual oil.) Like the bar code scanner, the touch memory device suffers from the requirement that
precise alignment be present for the memory to be read. Thus, a ring that had rotated
around its user's hand during the day would render the gun temporarily inoperable. 5. Biometric TechnologiesGuns equipped with biometric technologies would fire after reading a voice, a fingerprint, a handshape, or some other personal characteristic of the user. [FN116] Unfortunately, this most personalized of approaches has too many inherent flaws at this time to be promising. At best, these devices operate like magnetic cards with the same accompanying problems. The obvious disadvantages of this mechanism would include failure of the power source, slow operation of the device, and the impact of environmental factors, such as gloves or contaminants on the hand or change in a tone of voice due to stress, or the incorporation of outside noises. [FN117] To enhance the speed of the biometric technology, promoters of these devices envision imprecise readings which would not require identical fingerprints or voice exemplars, but which would limit false negatives while allowing false positives. [FN118] 6. Magnetic CodingMagnetic devices on firearms, such as the Magna-Trigger, have been on the market for several years. The Magna-Trigger is an after-market product which can be installed on most Smith & Wesson revolvers, and on the Ruger Security Six revolver. [FN119] Available only through Tarnhelm Supply Co., Inc., the Magna-Trigger must be installed by a gunsmith at the company. [FN120] Once the Magna-Trigger is installed, the revolver can only be fired by someone wearing a special magnetic ring. [FN121] The device costs *187 $250, including installation, plus $40 per ring. [FN122] Any ring will operate every gun with a Magna-Trigger. [FN123] Efforts to develop personalized guns include efforts to install devices similar to the Magna-Trigger on a wider variety of guns. The advantages of magnetic ring locks are that a power source would not be required and the firearm would be easily transferable to other users. Unfortunately, if an owner is looking for a personalized firearm, a magnetic gun would not suffice-- because simple magnetism is the key. Any powerful magnet would unlock the gun's trigger. If a manufacturer designed a more complex magnet based on the magnet's orientation, this development would increase the necessity for precise placement of the magnet. This in turn could slow the operation of the weapon. Of course if the user misplaces the magnetic lock and key, the gun is inoperable. 7. Mechanical LocksA mechanical lock, is as its name implies, a lock with a key or a combination that usually safeguards the trigger. In contrast to the locks discussed in Part II, the locks discussed here are built in to the gun. [FN124] While these devices are not really "personalized" or "smart," they are often included in such debates. [FN125] When the Maryland Legislature rejected Governor Glendening's call to ban the sale of all handguns that do not have personalization technology in a few years, the Legislature instead enacted a requirement that all new handguns must have integral locks, starting in 2003. [FN126] These locks vary in cost, they require no power source for their operation, and they can be transferred to anyone with the key. [FN127] These devices are relatively effective as a means of storage because they are difficult to remove without the key or combination, and most people would find it troublesome to shoot the gun with the lock in place. There are several drawbacks, however, associated with the mechanical locks. The process of unlocking the gun slows its operation. A police officer or other defensive user would have to go through the required mental and physical steps before being able to unlock her weapon during a life-threatening situation. [FN128] Once the gun was unlocked, it would stay ununlocked--*188 which would benefit the officer who is searching a house for a burglar, and the burglar who subsequently steals the gun to shoot the unsuspecting officer. [FN129] Civilians also may experience problems with mechanical locks if they need their guns in
an emergency. Not only would they have to find their keys or recall their combinations,
but they would also have to quickly load their weapon. 8. Electronic LocksSwiss Industrial Company ("SIG") is a well-established, highly reputable handgun manufacturer, based in Switzerland. [FN131] SIG sells to both law enforcement and civilians. In 1999, SIG announced plans to begin building into some of its handguns a device that is somewhat similar to the mechanical lock, but which is electronically controlled by a personalized PIN code to lock or unlock the gun. While the mechanism does not engage automatically, it does allow the owner to unlock the firearm for either a one-hour or eight-hour period of time, after which the gun would automatically lock. [FN132] Because of SIG's reputation in the firearm industry, buyers would be unlikely to have
quality concerns about the SIG lock. Yet as with other electronic gadgetry, owners may
have concerns about what would happen to the firearm when the battery dies. As of late 2001, the SIG electronic lock is not available on the market, and SIG's
website gives no indication that it will be anytime soon. [FN134] B. The Scientific Evaluation of "Smart Gun" Technologies1. The Purpose of the Sandia National Laboratory StudyWhile much of the "gun safety" rhetoric has focused on children, the initial idea for a "smart" or "personalized" gun was prompted by concern for the safety of law enforcement officers. [FN135] A significant fraction of police officers who are killed in the line of duty are shot with their own weapons or with weapons taken from fellow officers. [FN136] By personalizing the guns that officers use, the U.S. Department of Justice's National Institute of Justice sought a solution. [FN137] With the idea that law enforcement officers would benefit from technology that would prevent unauthorized individuals from firing an officer's gun, the National Institute of Justice asked the U.S. Defense Department's Sandia National Laboratories to evaluate "Smart Gun Technologies." Sandia's task was to determine the desirability, acceptability, and feasibility of developing handguns that are designed to decrease or prevent the chance that the gun could be used against the officer or an innocent bystander. [FN138] There was also the idea that "smart gun technology may also help eliminate the
value in stealing officers' weapons." [FN139] That anti-theft
goal was quite clearly secondary. For the most part, the goal of a "smart gun,"
as envisioned by Sandia Labs, was to prevent immediate use of a gun quickly taken from an
officer so that the officer had the chance to escape from the threat of a newly-armed
criminal. [FN140] The goal was not to permanently prevent the gun
from being fired; it was understood that the technology could be overcome given sufficient
time and tools. Instead, the aim was to provide enough time for the officer to pursue
other options, such as regaining control of the gun, running away, or calling for and
receiving assistance. [FN141] Sandia Labs set this time at over one
minute. [FN142] 2. Implications of the Sandia Laboratories StudyPerhaps Sandia Labs' most significant conclusion was that reliability was the officers'
main concern. [FN145] In the limited conditions under which a gun may
be used, "the firearm must work because the officer's or another person's life is at
stake." [FN146] The attention drawn by Sandia to the battery issue has important implications for civilian personalized guns. While police would inspect their guns before the beginning of each shift, and thus discover a battery that was about to wear out, most civilians do not handle their guns daily. Many guns maintained for home protection would not normally be checked often enough to be confident that the battery still had life. It would be ironic if policymakers who believe that all firearm handling is risky mandated that civilian firearms be redesigned so that frequent handling became necessary in order to inspect the battery so as to guarantee reliability in time of unexpected emergencies. Since many gun owners never actually face an emergency which requires use of a firearm, these owners might be better off without a technological mandate that forces them to handle their guns much more frequently than they would if there were not a mandate. Whether new gun designs, if required by law, would actually increase accidents cannot be predicted. The handgun manufacturer, Beretta U.S.A., has noted a potential conflict in the desire for reliability and safety: should the gun be designed so that if the battery fails, the gun will work, or the gun will not work? If the batteries fail and the gun cannot be activated, the homeowner who depends upon the weapon to save his or her life, may find that *191 the gun does not work. If, on the other hand, the failure mode of the batteries leaves the gun unlocked, a homeowner might be relying on the batteries to keep the gun locked and safe, only to discover that a child can now use the gun without impediment. [FN150] For police officers concerned primarily about reliability, they want to ensure that their sidearms will operate regardless of personalization devices. They overwhelmingly "desire a smart gun that will still fire if the smart technology fails .... The term officers often use is 'fail-safe' meaning guaranteed not to 'fail to fire."' [FN151] Thus, officers desire that if the batteries fail, that the firearm not be rendered useless. The firearm should default to armed if batteries fail. [FN152] If the manufacturers of "smart" gun technology comply with the officers' demands, two obvious inferences can be drawn regarding imposing the "fail to fire" rule on civilian handguns. First, civilians who want a reliable handgun need only kill the batteries, remove them, or allow them to die, to assure a reliable handgun. Second, "smart gun" inventions will only minimally impair criminal access to
guns. If a dead battery restores a gun's effectiveness, the only deterrent from theft
would be if the criminal needs the weapon for immediate use. For later use, the thief
could simply exercise patience, refrigeration, or minimal mechanical ability, and the gun
would be ready for the next crime. This requirement would render unacceptable some of the devices such as remote control, some magnetic coding, voice recognition, and combination locks that are slow to operate. Other mechanisms like fingerprint or other biological recognition systems would have to be developed in a way *192 to insure speed. [FN156] Considering that Sandia Labs placed a quarter-second time limit for the device to recognize the shooter, it seems doubtful that any perceptible delay would be acceptable by a police officer who is convinced she needs immediate access to her weapon. [FN157] Defensive civilian users would have generally similar issues. For guns that are kept on a closet shelf or a drawer, rather than worn in a holster, the need for fast activation might be even greater--since it would take a second or two, at least, to retrieve the gun from its storage place. The second most significant concern for officers, which would also be relevant for civilians with protective guns, was environment and circumstances. Specifically, the gun would have to be capable of firing regardless of weather--including heat, rain, fog, mud, sand, salt, snow, and ice (as well as perspiration). [FN158] After the firearm was exposed to cleaning fluids *193 and oil, the user would also have to be confident that the gun would function properly. [FN159] Police officers expressed other views regarding "smart" gun technology. They provided contradictory responses regarding the appearance of these new weapons. On the one hand, the officer hopes that the "smart" guns would look like ordinary guns to preserve their intimidating appearance; also, if the officer's gun were readily identifiable as a "smart" gun, some criminals might be tempted to target the officer on the assumption that the officer would be inexperienced with his new sidearm. [FN160] On the other hand, the officers indicated that personalized weapons should be easily recognized so that at a distance, an officer could identify such a gun. [FN161] Many officers believed that civilians should not be permitted to own personalized weapons. Officers wanted to prevent the criminal element from studying these devices in order to discover ways to defeat their operation. [FN162] Of course the police desire for a monopoly on "smart" guns cannot be reconciled with proposed mandates (such as the proposals in Maryland and New Jersey) that such guns be the only types of guns that are sold to civilians. [FN163] Sandia Laboratories doubted that the judicial system would allow the firearm industry to withhold such an innovation from the civilian market. Sandia Laboratories concluded that law enforcement officers thought that personalization technology, whether in the form of radio frequency identification, remote control, bar codes or magnetic strips, touch memory, biometric devices, magnetic coding, or mechanical locks, were good ideas, but only if the technology could be advanced and improved so as not to decrease the reliability of the firearm. [FN164] Sandia Labs did not dismiss the idea of efficient "smart" guns, but simply noted that it "may take a generation of smart gun systems to come and go before a smart gun is not only *194 common but is favored over a non-smart gun." [FN165] Thus far, none of the technologies envisioned or reviewed by Sandia Labs shows any signs of working quickly and reliably or would be accepted by both law enforcement officers and civilians. 3. The Cost of Personalized GunsA concern for police departments is the cost of the technology. The goal for police as set by Sandia Labs was that the invention should add no more than $60 to the cost of a gun and no more than $5 to the annual maintenance costs. [FN166] Manufacturers, however, who have developed or who are in the process of developing personalization technology, claim that the costs for their products would be between $100-$400. [FN167] As the Wall Street Journal noted, "the cost and reliability of smart guns are very much in doubt." [FN168] The additional cost could negatively impact the budget of a small police department. If personalized guns became mandatory, the extra cost could also make guns unaffordable for people near the poverty level. Currently, the least expensive new guns cost around $125. Used guns may be available for much less. The Johns Hopkins model bill, versions of which have been pushed (unsuccessfully) in Maryland and New Jersey, would ban the sale of all non- personalized handguns. [FN169] Even if manufacturers add no extra mark-up for the personalization technology, and even if we assume that personalization is actually feasible at the very lowest point on the cost scale, the price of firearms would greatly increase--especially the cost for formerly-inexpensive firearms. A current issue in the gun control debate is whether bans of inexpensive handguns amount to a denial of equal protection for poor people. [FN170] Suppose that, in the name of consumer safety, a legislative body required abortion providers to use a very expensive kind of new equipment that *195 doubled the cost of abortion. Or suppose that a legislature banned the sale of all conventional contraceptives, allowing the sale only of new high- tech (and somewhat less reliable) contraceptives that were very expensive? What if the proponents of these abortion or contraception restrictions could point to important benefits from these expensive restrictions--such as reduced injury from abortion accidents or from contraceptive side-effects? In this hypothetical, it seems very likely that many reproductive rights advocates would sue on equal protection grounds. And they would argue that, as a matter of policy, the government has no business interfering with a woman's right to control her body by forcing her to use contraceptives that are even slightly less reliable. Are these hypothetical arguments of reproductive rights advocates really greatly different from the arguments that would be raised by gun rights advocates, in the event of a ban on non-personalized firearms? Nicholas Johnson observes the general similarities of abortion rights and gun rights arguments, even though the enthusiasts for each right are sometimes reluctant to recognize the other right. [FN171] It is true that, over time, technological advances might reduce the cost of personalized gun devices, or of high-tech abortion or contraceptive devices. But the prospect of a future decline in costs does not erase the present effect of making it nearly impossible for poor people to exercise constitutional rights. It is also true that many people question the morality of gun ownership, contraception, or abortion, and question whether they should be constitutional rights. We will not attempt to resolve those issues, but we will point out that, even if one takes the Second Amendment, [FN172] Griswold v. Connecticut, [FN173] and Roe v. Wade [FN174] out of the picture, there are forty-four state constitutions which explicitly protect a right to arms, and many state constitutions have been interpreted to protect reproductive choice. [FN175] C. Reliability as The KeyMany gun owners are cautious of restrictive gun control measures because of their fear that the "gun safety" laws will adversely impact their ability to quickly obtain and use their firearms during an emergency. This fear is particularly real for law enforcement officers and for civilians who own and carry guns for protection. The reliability issue is not so pertinent *196 for hunters or target shooters who own their firearms for purposes of sport or recreation. The great importance of reliability for defensive gun users is illustrated by the decades-long police debate about whether to replace revolvers with self- loading (semi-automatic) pistols. The main advantage--in fact, the only advantage--of the revolver was slightly better reliability, and this advantage was sufficient to keep the revolver the police weapon of choice for many years. [FN176] In the debate over which gun was better for officers, the self-loading pistol had a clear edge on most issues. They were more accurate, had more firepower, were more dependable in inclement weather (as evidenced by the use of these weapons by the military), and they were more compact. [FN177] While switching experienced revolver shooters to self-loaders may be a problem if the shooter is comfortable with her weapon, the training for the new officers was easy. In short, self-loaders were better for almost everything, and much better for firepower. For most law enforcement officers, the choice was between the slightly greater reliability of the revolver and the significantly greater firepower of the self-loading pistol. [FN178] Revolvers were preferred, however, because the self-loaders had a tendency to malfunction occasionally. [FN179] Therefore, in order for the self-loader to be accepted by law enforcement officers, the officers would have to be shown that these guns were just as reliable as revolvers. [FN180] The FBI encouraged the shift by issuing a report stating that the semi-automatic "pistol functions more reliably in the training situation," and concluding that, "[t]he modern double action pistol is more reliable and more durable than the revolver." [FN181] An important breakthrough for police switching to semi-automatics came in the late 1980s, when the Glock self-loading pistol was introduced. The Glock used plastic polymers for most of the frame and was therefore *197 much lighter and more comfortable to carry. [FN182] The Glock was also an extremely simple and dependable gun. [FN183] Tests showed that it could fire tens of thousands of rounds without a cleaning, and still function very reliably. [FN184] If a gun owner (police or civilian) perceives her gun as being too complex, she will believe that the gun's complexity negatively impacts its reliability. That was one of the advantages of the Glock; it was a very simple gun. Notably, the Glock (like most revolvers, but unlike most self-loading pistols) does not have a manual safety that the shooter must disengage in order to use the gun. Almost every form of personalization makes the gun appear more complex to the user. The user must wear a ring, use a card, turn a key, press a code, etc. This extra complexity may contribute to a perception that the gun is less reliable. As the Law Enforcement Alliance of America noted:
While endorsing personalized guns in theory, Daniel Rosenblatt, Executive Director of the Association of International Chiefs of Police remarked, "You're asking cops to take a reliable product and give them a gun that will be, by definition, less reliable." [FN186] The reliability and the functional complexity of a firearm is also a key issue for civilians also who wish to own guns for protection. Whether the restriction is labeled as "childproofing," with accompanying locks or storage requirements, or couched in terms of "personalization," the constraint will be seen as decreasing the reliability of the weapon in a time of emergency. Both law enforcement officers and ordinary citizens are concerned about the dependability of their weapons when the protection of their lives or the lives of others is at stake. D. Chip TwiggliesSome advocates of restrictive gun laws frequently make analogies to other products that are subject to similar regulations. One such product is the automobile, where legislators imposed safety features that increased the cost and inconvenience of the product but that were ultimately accepted by the public. [FN187] In terms of reliability, there was only one automobile safety device that adversely affected the reliability of cars in the same way that personalization would affect firearms. Approximately thirty years ago, government regulations mandated that car manufacturers include an interlock device that would allow the automobile to operate only after the seat belts in the occupied seats had been fastened. [FN188] Although the government envisioned that this requirement would encourage seat belt use, the public opposed the restriction after they hypothesized emergency situations where lives might be threatened by an inability to quickly drive away from a scene. Whether the hypothetical involved a woman fleeing a rapist, or a police officer in hot pursuit, the public rejected this invention because it would render their automobiles unreliable in a life or death situation. It might be argued that the public was wrong to oppose ignition interlocks. Automobile accidents were the leading non-natural cause of death in 1970, as they are today. [FN189] It is very possible that the number of lives saved by greater seat belt usage might have far exceeded the number of lives lost because people needed an extra three seconds to start a car. Whether personalized guns have a similar cost-benefit calculus is unclear. Gun accidents are much more rare than auto accidents, and defensive gun use is much more common than defensive automobile use. [FN191] The threat of making protective handguns unreliable during a crisis is similarly
unacceptable to gun owners (regardless of the net social benefits). If forced by law to
purchase guns with unwanted features, owners may react the same way that motorists did who
were faced with the interlock on their seat belts: they would find ways to defeat the
dangerous device. In *199 the gun industry, such efforts by
an owner to defeat personalization are called "chip twigglies." Among the
obvious methods, depending upon the particular personalization device, are: removing the
personalization equipment; removing the battery; allowing the battery to die; destroying
the magnetic images; cooking the gadget to expose it to extreme heat; and gluing the
button to maintain the unlock position. Most of these evasion techniques could also be
accomplished by criminals intending to use a stolen gun later. IV. POLICY ISSUESNow that we have a foundation of knowledge about the practicalities of personalized guns, we turn to the policy issues--first business policy issues, then government policy issues. Despite the reliability problems discussed in Part III, many gun companies believe, probably correctly, that companies that invent personalized guns will have the opportunity to sell firearms to a large market of the public that does not currently own guns, and to sell more guns to current gun-owners. That said, reliability concerns mean that personalized guns will not displace conventional guns from the market (the way that compact discs displaced vinyl music recordings but not audio cassettes). Personalized guns will tend to mean additional gun sales, rather than the replacement of the sale of conventional guns. Accordingly, advocates who want personalized guns to be the only kinds of guns available for purchase are pursuing various executive branch and legislative branch efforts to eliminate the choice to buy a conventional gun. After analyzing those mandates, we conclude by looking at law enforcement and consumer resistance to those mandates and some of their unintended consequences. A. Some Consumers Are Ready to Buy Personalized GunsThere are some firearms companies that do not believe that investments in personalized guns will ever pay off. For example, Glock, whose handguns have an especially simple and reliable design, is not working on *200 a personalized gun project. On the other hand, Colt is heavily invested in personalized guns, and has received Department of Justice research grants. Likewise, the O.F. Mossberg shotgun company is hard at work on personalized guns, and has trademarked "SmartGun." [FN193] On the Colt firearms web site, one can find what appears to be some of the best news ever for investors in firearms companies: a report of a survey claiming that "thirty percent of those who don't currently own a firearm would be in favor of gun ownership for personal safety or for sport if an electronic personalization technology existed." [FN194] Since about fifty percent of American homes have no guns in them, [FN195] the potential that up to thirty percent of non-owners living in those homes would be interested in buying a personalized gun represents up to fifteen million households of potential new customers for firearms manufacturers. Let us present a profile of the intended audience. In this profile, we paint in some broad strokes, and we simplify in order to make our point. The profile is similar to describing the typical customer of a Volvo station wagon as an affluent, safety-conscious, well-educated suburban family with two or more young children. The profile is accurate as a general description, but of course does not fit every Volvo customer. For personalized guns, the prime target market is upscale suburbanites, typically a married couple with children. He wants a gun, but she is afraid of accidents, and does not know enough about guns to be reassured by adherence to safety training, nor is she reassured by ordinary locks or a safe. [FN196] But she will let him buy a high-tech gun with a built-in safety computer. And he may be willing to pay several hundred dollars extra to acquire such a gun, thus preserving domestic harmony. At least that is the scenario for the companies that hope to make a fortune with "smart" guns. If the consumer just wants the shotgun for skeet shooting on the weekend, then the
computer gun might be perfect. If he misses a shot once in a while because the computer
does not activate, no harm is done, except that he might lose a few points in a shooting
contest. On the other hand, if the consumer wants a gun for home protection, then the
manufacturer has two possibilities for success. First, the manufacturer solves all the
technical reliability problems discussed in Part III, herein. Second, the would-be
consumer decides that a gun which works most of the time, and which his wife will let him
buy, is better than a gun which works all the time, and which is wife will not let him
buy. Besides expanding the market by selling guns to families that would not buy ordinary guns, the personalized gun offers another important marketing tool for firearms manufacturers. Gun-makers have a disadvantage faced by hardly any other consumer product makers: the product never gets used up, and never becomes obsolete. Except perhaps in the hands of a target shooter who fires many thousands of rounds per year, a firearm will, for all practical purposes, never wear out. Even for the competitive target shooter, it is easy to buy a new barrel, or to replace a worn-out spring; there is no need to buy a brand- new gun. There are millions of shooters today who are using guns that belonged to their fathers or grandfathers. Unlike computers or automobiles, firearms do not become obsolete. Firearm designs from the 1930s (e.g., the Luger pistol), or from the turn of the previous century (e.g., the Colt 1911 pistol) are still in common use. When an automobile company sells a consumer a car, the company can feel reasonably confident that--several years hence--the consumer will need a replacement car. The company that sells a computer today can feel confident that five years from now, the consumer will need a faster, more powerful computer. But the company that sells a handgun today has no confidence that the consumer will need to buy a second handgun five, ten, or fifty years from now. The personalized gun is, arguably, the first dramatically new gun that the firearms
industry has seen for many decades. Many consumers who already own one or more guns might
be amenable to buying a new-fangled "smart" gun. B. Many Consumers Will Never Be ReadyBut it also seems likely that, as long as consumers can choose, personalized guns are not going to take over the firearms market, and may not even displace many sales of conventional guns. The only detailed polling on personalized guns was conducted for the Johns Hopkins firearms research center. The Center, headed by Stephen Teret, is the leading scholarly advocate of personalized gun mandates. The Teret survey provided respondents with a favorable description of personalized guns, and also noted: "But personalized guns will cost more than other guns, and the chances that the gun will not fire when you want it to *202 may be increased slightly." [FN198] Teret then found that fifty-nine percent of gun owners would not oppose a personalized gun mandate. [FN199] Since the remainder of gun owners would still oppose the mandate, one may infer that they would not want such a gun for themselves. Among gun-owners who did not mind personalized guns, support fell dramatically if there were significant added costs, [FN200] as there almost certainly would be for at least the foreseeable future. One securities underwriter concluded that the "smart" gun would sell only if the law commanded it. [FN201] While this conclusion might be too pessimistic, in light of the potential new markets for personalized guns, it seems very doubtful that personalized guns would, on their own, conquer the entire firearms market. That is one reason why some government officials are attempting to force manufacturers to include the product with their guns-- because many consumers choose not to buy those products. [FN202] As with more mandates for the sale of conventional locks, mandates for the sale of personalized guns involve government officials deciding that a very large number of consumers should not be allowed to make their own choices in the market. We now turn to the various forms of personalized gun mandates--and then to issues arising from police or consumer resistance to those mandates. C. Executive Branch MandatesUnder the coordination of America's leading gun prohibition organization, the Center to Prevent Handgun Violence (CPHV), [FN203] over two dozen cities and New York State have sued firearms manufacturers. [FN204] While the allegations vary in each suit, most of the suits complain that firearms manufacturers have failed to build into their guns some of the currently available devices described in Part II herein, such as magazine disconnects. [FN205] Many of the lawsuits also complain that firearms manufacturers *203 have not yet invented personalization technology and incorporated it into all their guns. [FN206] Regarding the issues relating to currently available devices, the lawsuits really amount to a complaint that firearms manufacturers have been too responsive to consumer preferences. Almost all of the currently available devices are available on the aftermarket, and consumers who want them can buy them. For devices that require manufacturer installation, such as magazine disconnects, some buyers prefer guns with magazine disconnects, and others prefer guns without. Basically, the two groups of buyers have different preferences for the safety and reliability issues raised by magazine disconnects. Just as the free market supplies the devices discussed in Part II above, to consumers who want them, the market will supply personalized guns to consumers who want them. As detailed herein, many firearms companies believe that substantial profits can be reaped from personalized guns. [FN207] The question for the lawsuits, then, is whether gun companies should be penalized for not forcing customers to buy accessories or integrated devices that the consumers do not want. All of the devices in question involve trade- offs between reliability and the prevention of unauthorized access. Only if one accepts the premise of the CPHV's leaders, Mr. and Mrs. Brady, that defensive gun use by civilians is per se illegitimate, do the product design claims in the lawsuits appear legitimate. [FN208] If civilian guns are only for sport, and not for defense, then gun companies might, arguably, be at fault for not making consumers accept products that degrade defensive use while preventing some unauthorized use. While many of these suits have been dismissed, and no suit has yet proceeded to trial, the suits have led to the most significant personalization mandate thus far. In exchange for being dropped from some of the suits, Smith & Wesson agreed to begin selling only personalized guns, starting in 2003. [FN209] The Smith & Wesson guns will incorporate an internal mechanical combination lock. Smith & Wesson was, as of early 2000, the largest American handgun manufacturer. No one can say with certainty whether the police officers or other consumers will find the Smith & Wesson guns attractive. The "Smith & Wesson Sellout" (as it was described by Second Amendment activists) led to a consumer boycott that has sent the already-troubled company into even deeper financial trouble, necessitating lay-offs and the temporary shutdown *204 of some manufacturing. [FN210] It is not at all clear that there will even be a Smith & Wesson company making handguns in 2003. Should Smith & Wesson survive, consumer resistance to the company's personalized guns might have more to do with resistance to perceived anti-Second Amendment stance of the company's owner than the merits of the guns themselves. Since even Smith & Wesson's public relations spokesperson admits that the lawsuit agreement created difficulties for the company, it is extremely unlikely that any other firearms manufacturer will enter into a similar agreement. [FN211] Many of the municipal lawsuits are not surviving motions to dismiss. [FN212] Yet even if one of the plaintiffs should eventually win a verdict, it would be very unusual for court-ordered relief to include a mandate that a company invent and market a new product. Accordingly, executive branch lawsuits are unlikely to lead to the proliferation of personalized guns, other than whatever guns Smith & Wesson begins to make in 2003, assuming the company survives that long. D. Legislative MandatesMost proposals to "childproof" or personalize guns originated with individuals who support virtually any gun control measures including federal, state, and local bans on all or some types of firearms or who appear to see little value in defensive gun ownership. [FN213] Maryland Attorney General Joseph Curran, for example, endorsed Governor Parris Glendening's call for personalized-gun legislation as a "beginning" to the public policy goal "to rid our communities of handguns." [FN214] Similarly, the Washington Post, when endorsing personalized guns, responded to complaints that the technology for such guns did not exist, by assuming that engineers could develop such a gun, and, "if they can't, that's all the more reason for stronger *205 action in the name of public safety: a ban on concealable weapons altogether." [FN215] According to the Los Angeles Times, the L.A. City Council is pushing toward the ultimate goal of personalized weapons that actually recognize their user. The Los Angeles Times, which supports complete gun prohibition, endorsed a City Councilman's proposal to ban the sale of all guns not using RFID. [FN216] And, of course, the most powerful lobby behind the personalized gun mandates is Handgun Control, Inc. (the lobbying/political arm of the CPHV), whose leadership opposes defensive gun ownership, and that has lobbied, sometimes successfully, for a wide variety of firearms prohibition bills. [FN217] "Smart-gun" proposals should not necessarily be rejected because of the advocates' ulterior motives. These motivations, however, suggest that the promoters of such legislative ideas have minimal interest as to whether their proposals may adversely affect the interests of persons who own guns for protection. Such concerns include the reliability of their firearms, and whether the proposals will inevitably lead to further restrictions, regardless of whether the initial restrictions are effective. On the legislative front, proposals to prohibit the sale of all existing handguns,
allowing only the sale of personalized handguns, were a major issue in the New Jersey
legislature in 2000, and have been introduced in dozens of legislative bodies in 2001. In
Maryland, gun prohibition advocates and Governor Parris Glendening pushed hard for
legislation in 2000 to outlaw the sales of any guns in Maryland except "smart
guns." [FN218] The Maryland proposal closely followed the model
law developed by Stephen Teret and his Johns Hopkins colleagues. The sale or transfer
(even gifts between family members) of all non-personalized guns would be prohibited. [FN219] An administrative body would be authorized to create new
standards; thus, a gun that might have met the standards for sale in 2003 might become
illegal to sell in 2006, based on updated standards. That legislative effort did not
succeed, but the legislature did pass a bill requiring that, in a few years, new handguns
sold in Maryland must have internal locks (similar to the locks being developed by SIG and
by Smith & Wesson). [FN220] 1. Law Enforcement ResistanceIronically, while the idea of personalized handguns was originally proposed for law enforcement officers based on data that their handguns are sometimes taken away and used against them, proponents of legislation requiring personalized handguns would exempt the law enforcement community from any such legislation. The purported reason for this exemption is that law enforcement "may require guns with slightly different technology than [civilians who own] guns for domestic use." [FN221] This statement is plainly untrue if defensive gun use by civilians is legitimate. If we assume that police guns are for protection, whereas civilian guns are only for sport (and not for protection), then police guns need entirely different--not "slightly" different technology. The police need absolute reliability, whereas civilians do not need reliability. On the other hand, if civilian and police guns are both legitimate for protection, then there are no great differences between the two groups, except for the fact that officers are inclined to handle their sidearms more often than civilians. The environmental conditions which officers and civilians may encounter, such as darkness and rain, would be the same. Civilians may be expected to be more affected by stress, which could manifest itself in perspiration and loss of a strong grip on the weapon. As detailed in Part III herein, whatever slight differences there are between police and civilian defensive needs militate against a civilian-only mandate. For example, because police handle their guns daily, they are likely to discover a weak or dead battery promptly, so that they do not face a life-or-death situation with a dead or dying battery. When bans on non-personalized guns are introduced, civilian gun owners ask why they should be forced to accept firearms which the police consider absolutely unacceptable because of insufficient reliability. It is not necessarily easy to see why civilians should be forced to use a product, in the name of "safety," which police consider to be dangerously unsafe. 2. The Absence of Actual ProductsPe |