# A conservative legal argument for gun control

I am an advocate for gun control because, as I expounded in my previous post, of my inherent belief in the incompetence of all humans. A major impediment to gun control in the US is the 2nd Amendment of the Constitution, which states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The two key phrases of the 2nd Amendment are “well regulated Militia” and “right … to bear arms” and there has always been constant tension over what they exactly mean. The current Supreme Court, prior to Antonin Scalia’s death, held that the 2nd Amendment means that people can bear arms under any circumstance and this has led to the overturning of many gun control measures in cities like Washington DC and Chicago. However, this has not always been the case. Previous courts have put more weight into the “well regulated” part and allowed for some gun restrictions.

Although the right to bear arms is considered to be the conservative position, I actually think there is an equally compelling conservative argument for gun control. One of the things that conservatives argue for is that government should be less centralized and that individual states should be able to set their own laws, as long as they don’t violate the Constitution. Hence, gun control advocates should use a “States’ Rights” argument that communities should be able to establish their own interpretation for how “well regulated” and “right to bear arms” should be balanced. Instead of trying to fight for uniform federal gun control laws, they should argue that local laws should be allowed to stand, provided that they do not completely outlaw guns. So if Washington DC wants an assault weapons ban, that should be fine. If Chicago wants to limit magazine sizes in hand guns, that should also be okay. People in gun ravaged cities like Baltimore should not have to have gun laws that might be popular in states like Idaho be forced upon them. Depending on who fills the vacant position on the next Supreme Court this line or argument could be moot but I think it is one that gun control advocates should perhaps pursue.

# Probability of gun death

The tragedy in Oregon has reignited the gun debate. Gun control advocates argue that fewer guns mean fewer deaths while gun supporters argue that if citizens were armed then shooters could be stopped through vigilante action. These arguments can be quantified in a simple model of the probability of gun death, $p_d$:

$p_d = p_gp_u(1-p_gp_v) + p_gp_a$

where $p_g$ is the probability of having a gun, $p_u$ is the probability of being a criminal or  mentally unstable enough to become a shooter, $p_v$ is the probability of effective vigilante action, and $p_a$ is the probability of accidental death or suicide.  The probability of being killed by a gun is given by the probability of someone having a gun times the probability that they are unstable enough to use it. This is reduced by the probability of a potential victim having a gun times the probability of acting effectively to stop the shooter. Finally, there is also a probability of dying through an accident.

The first derivative of $p_d$ with respect to $p_g$ is $p_u - 2 p_u p_g p_v + p_a$ and the second derivative is negative. Thus, the minimum of $p_d$ cannot be in the interior $0 < p_g < 1$ and must be at the boundary. Given that $p_d = 0$ when $p_g=0$ and $p_d = p_u(1-p_v) + p_a$ when $p_g = 1$, the absolute minimum is found when no one has a gun. Even if vigilante action was 100% effective, there would still be gun deaths due to accidents. Now, some would argue that zero guns is not possible so we can examine if it is better to have fewer guns or more guns. $p_d$ is maximal at $p_g = (p_u + p_a)/(2p_u p_v)$. Thus, unless $p_v$ is greater than one half then even in the absence of accidents there is no situation where increasing the number of guns makes us safer. The bottom line is that if we want to reduce gun deaths we should either reduce the number of guns or make sure everyone is armed and has military training.

# Government shutdown

As of today, I am officially furloughed without pay since the NIH is officially closed and nonessential employees like myself are barred from working without pay by the Antideficiency Act of 1884. However, given that blogging is not considered an official duty, I can continue to post to Scientific Clearing House. Those who are not up on American politics may be wondering why the US government has shutdown. The reason is that the US fiscal year begins on Oct 1 and according to the the US Constitution, only Congress can appropriate funds for the functioning of government and they did not pass a budget for the new fiscal year by midnight of September 30. Actually, Congress has not passed a budget on time in recent years but has passed Continuing Resolutions that to keep the government going. So why have they not passed a budget or a CR this year? Well, currently the US government is divided with the Democratic party controlling the Senate and Presidency and the Republican party controlling the House of Representatives. All three entities must agree for a law to pass. Three years ago, the Democrats controlled the Congress, which includes both the House and Senate, and passed the Affordable Care Act, also known as Obamacare, which the President signed into law.   The Republicans took control of the House in 2011 and have been trying to repeal the ACA ever since but have been stopped by the Senate. This year they decided to try a new tactic, which was to pass a budget that withholds funding for the ACA. The Senate did not agree, passed a budget with the ACA and sent it back to the House, which then took out funding for the ACA again with some modifications and sent it back. This went on back and forth without converging to an agreement and thus we are closed today.

# The problem with democracy

Winston Churchill once said that “Democracy is the worst form of government, except for all those other forms that have been tried from time to time.” The current effectiveness of the US government does make one wonder if that is even true. The principle behind democracy is essentially utilitarian – a majority or at least a plurality decides on the course of the state. However, implicit in this assumption is that the utility function for individuals match their participation function.

For example, consider environmental regulation. The utility function for the amount of allowable emissions of some harmful pollutant like mercury for most people will be downward sloping – most people would increase their utility the less the pollutant is emitted. However, for a small minority of polluters it will be upward sloping with a much steeper slope. Let’s say that the sum of the utility gained for the bulk of the population for strong regulation is greater than that gained by the few polluters for weak regulation. If the democratic voice one has in affecting policy is proportional to the summed utility then the smaller gain for the many will outweigh the larger gain to the few. Unfortunately, this is not usually case. More often, the translation of utility to legislation and regulation is not proportional but passes through a very nonlinear participation function with a sharp threshold. The bulk of the population is below the threshold so they provide little or no voice on the issue. The minority utility is above the threshold and provides a very loud voice which dominates the result. Our laws are thus systematically biased to protecting the interests of special interest groups.

The way out of this trap is to either align everyone’s utility functions or to linearize the participation functions. We could try to use regulation to dampen the effectiveness of minority participation functions or use public information campaigns to change utility functions or increase the participation functions of the silent majority. Variations of these methods have been tried with varying degrees of success. Then there is always the old install a benevolent dictator who respects the views of the majority. That one really doesn’t have a good track record though.

# Beware the vampire squid

Before you take that job programming at an investment bank or hedge fund you may want to read Felix Salmon’s post and Michael Lewis’s article on the case of Sergey Aleynikov. He was a top programmer at Goldman Sachs, who was then prosecuted and convicted of stealing proprietary computer code. The conviction was eventually overturned but he has now been charged again for the same crime under a different law. According to Lewis, the code was mostly modified open source stuff that Aleynikov emailed to himself for future reference of what he had done and had little value outside of Goldman. Salmon thinks that Goldman aggressively pursued this case because in order for the directors of the programming division to justify their bonuses, they need to make it look like the code, which they don’t understand, is important. If Goldman Sachs had a public relations problem before, the Lewis article will really put it over the top. This case certainly makes me think that we should change the criminal code and leave cases of intellectual theft by employees to the civil courts and not force the taxpayer to pick up the tab. Also, what is the point for putting a harmless nonviolent programmer in jail for 8 years. We could at least have him serve his sentence doing something useful like writing code to improve city traffic flow. Finally, the open software foundation may have a case against Goldman and other firms who use open source code and then violate the open source license agreement. I’m sure it wouldn’t be too hard to find a backer with deep pockets to pursue the case.

# Patent perspiration not inspiration

Little irks me more than the current state of US patent law. It stifles innovation and encourages patent trolls, the most famous being Nathan Myhrvold’s Intellectual Ventures. The main problem is that we are allowing patents for the wrong thing. Currently, patents are awarded for innovative ideas, which means you can try to patent fairly obvious ideas like a device that converts optical images into digital information, which amazingly enough is owned by one patent troll who is trying to extort money out of anyone who has ever used a scanner, including nonprofits (see here). This American Life had an episode devoted to this topic (see here). What we should do instead is to patent the effort and cost sunk into developing an idea into a product. Alex Tabarrok has been writing about this topic for a long time and has a nice paper giving the economic reasons of why this would be better (see here for reprint). You should only get patent protection in proportion to the costs you have incurred in developing the idea.

Ideas are cheap; turning them into successful businesses is the hard part. Me, and probably everyone else, had the idea for Google Glass years if not decades ago. I had no idea how to make it work, nor did I put any effort in trying to do so. I just thought it would be great to have a projection screen built into glasses. Actually, my full idea was that it would project an image onto the retina with the focus set at infinity so I wouldn’t have to strain my eyes to read it. I don’t think anyone should be able to patent such an idea. We should encourage lots of companies to come up with ways of implementing eyeglass projection systems and let them battle it out in the marketplace. In some sense, fashion should be our model. You can’t patent fashion so designers must constantly innovate to keep ahead of the imitators. If anything, there is too much innovation in fashion. Given that we are now on the wrong side of the “Tabarrok Curve“, the argument that abolishing patents would stifle innovation is no longer valid. This is one issue that both liberals and libertarians should agree on. If we are to get any laws passed at all this congressional term, we should get patent reform.

# Genes can no longer be patented

The US Supreme Court ruled today that human genes cannot be patented. Here is the link to the New York Times article. The specific case regards Myriad Genetics, which held a patent that controlled the rights to all tests for the BRCA1 and BRCA2 genes implicated in breast cancer. The patent essentially blocked most research on the BRCA genes. The immediate effect will be that genetic testing will become cheaper and more widespread. People will argue that not allowing genes to be patented will discourage further innovation. I doubt it. Most discoveries, like genes, come from basic federally funded research. Any company can now develop a test for any newly discovered gene. Patent law has been broken for decades and this is just one small step to correcting it.