Regarding yesterday’s big government post, a friend remarked that many laws have good intentions, and that things are frequently more complicated than a simple-minded opposition to “big government” would suggest. He also pointed out that this is not an easy problem to solve.
I’m sure it’s not an easy problem to solve politically, but philosophically I don’t think it’s that hard.
1) Stop trying to control everything.
It would be nice if the government would recognize that there are some things it simply can’t control. A YouTube video of instructions on disassembly of a rifle is “technical data” on “significant military equipment.” So are the gazillions of copies of CAD models and blueprints in circulation for 1911’s, AR-15/M-16/M-4 rifles. Or photographs of the insides of silencers, and load data, and a thousand other things we all thoughtlessly post to help each other out. There is simply no way that the government can control this dissemination of information.
Does some information need to be controlled? Sure. Classify it, punish leakers. But don’t try to put information about ordinary firearms in this category, because even trying is futile.
2) Stop making secondary and tertiary laws regulating innocent conduct.
Probably the greatest example of a secondary law is “gun free school zones.” The evil to be prevented is the murder of children and schoolteachers. The secondary law is the prohibition on gun possession. It doesn’t take sophisticated criminological research to tell you that the kind of person who wants to murder children doesn’t mind breaking the law against gun possession on campus—so the only people who obey it are the ones you don’t have to worry about. And meanwhile you’ve inconvenienced (or made felons out of) people who have never done anything actual wrong.
Another example is the law requiring banks to report currency transactions in excess of $10,000—and making it a crime to “structure” your deposits to avoid the reporting requirements. The primary evil is drug dealing, and the secondary—I can’t even call it “evil”—is depositing cash at your bank in amounts the government doesn’t like (note also that inflation has taken $10,000 years ago to something like $50,000 today, but the law hasn’t changed, so more and more people are getting snagged by it). There are people who have had their legitimately earned money seized because they happened to be depositing the “wrong” amounts.
Yesterday I was discussing the requirement that “manufacturers” of “defense articles” register with the State Department, at substantial expense. The primary evil to be prevented is the shipment of weapons overseas contrary to official foreign policy. Registration of manufacturers is tangentially related—except that the majority of them don’t export. So why should they be registering, and being threatened with jail time for failing to do so? The idea of committing the primary evil hasn’t even occurred to them!
3) Stop making laws that are not enforced
If you’re going to have a gun free zone, you really should put metal detectors at the entrance and armed guards to stop any attacks. It’s completely pointless to declare “this is illegal!” when you’re not going to do anything to actually prevent it.
I’m going to give credit to the ATF here for sound enforcement here. FFLs have to register, and keep lots of records, and show them to the ATF on demand. These are tertiary laws—the main evil is crime, the secondary evil is gun possession by criminals, and the tertiary evil is bad record keeping that might (might!) permit guns to be sold to criminals by FFLs. We’ll ignore the straw purchase and theft and wildcat illegal manufacturing angle for a moment, and note that the ATF actually does audit the books of FFLs fairly regularly. That means that if your gun shop or factory is selling guns to criminals or terrorists on the side, there’s a decent chance you’ll be caught at it. And that probably does keep at least some people on the straight and narrow. So the willingness to enforce even a tertiary law makes that law less meaningless, and may do some good.
But the State Department does NOT enforce the export rules by visiting manufacturers and counting their inventory (at least, not small-time gun makers. Maybe they do that for the people who make SAMs or fighter jets). So the entire registration scheme is a farce—they take two grand, put you on a list, and then…do nothing with that list. This is Big Government hassling people and taking their money—for literally no benefit whatsoever. At least the ATF may catch (or deter) rogue sales to criminals, but State isn’t stopping a single rogue export with its registration scheme.
If Congress is going to make laws, they ought to expect those laws to be enforced, and budget accordingly. If they aren’t going to enforce them meaningfully, they should repeal them. Perhaps a bit of thought on the costs of enforcement (both fiscal and the likely targets of enforcement) will focus the mind a little.
4) Stop passing and enforcing secondary and tertiary laws with no evidence of the underlying primary evil.
And here we come to the core of the problem. There have been rumors that State is stepping up “enforcement” of the ITAR registration rule. Have they been auditing manufacturers to prevent rogue exports? No. They’ve been hassling people who aren’t registered. That’s like arresting a CCW holder for stepping onto school property. Or like arresting a bar owner who makes a bunch of $9,000 deposits for “structuring.” If he happens to have $9,000 in cash in the till each night, why should the government care at all? Why should a guy like that have to hire a lawyer and prove he didn’t do anything wrong? Why should a gunsmith who got a manufacturing FFL thanks to the ATF’s overzealous interpretation of “manufacturing” be indicted under a law designed to prevent shipment of artillery to allies the Soviet Union?
The government has a perfectly legitimate interest in regulating the export of military materiel. So…the government should be focused on regulating the export of military materiel. A radical concept, to be sure. But one that is just crazy enough to work!