Policy Today magazine cover
May/June, 2006

PT talks to Professor Franklin Zimring, William G. Simon Professor of Law and Wolfen Distinguished Scholar at Boalt Hall School of Law, about the intricacies of gun control legislation, the hurdles to a reasonable solution and the best path to practical gun control policy.

PT: What can you tell us about the legal side of the gun control debate? Is the issue being debated appropriately?

Zimring: It depends on what level of the debate you look at, really. Failures at one level can predicate failures at another. Let's take the context of San Francisco. In the last election in San Francisco, voters were asked to approve—and did approve—what I consider to be a solely symbolic and doomed method of gun control. It was really nothing more than an attempt to recast what was really the restrictive licensing of handguns and call it something else.

Why were they so desperate to call it something else? Because California has a preemption statute. The state supreme court ruled decades ago that cities can't create licensing standards on their own and enforce them. So, that's why they tried to re-label it. This also tells us exactly why—if you're a liberal state representative in San Francisco, or Los Angeles or Oakland—what the state of California needs more than anything is for the legislature to pass a local option law.

PT: Can you explain how the local option law would ameliorate the situation?

Zimring: The local option law should say two things. It should say that cities with populations more than 500,000 or 200,000 have the right to set their own licensing standards for handguns. Once the legislature says that, the California Supreme Court will be delighted to approve whatever the cities want to do.

But that's not enough on its own. The second thing that has to happen is to give the law teeth. California law should also provide that gun sellers must not only satisfy themselves that the buyer is eligible to own by California state law, but also by the law of the municipality in which he or she resides. That way, San Anselmo dealers can't sell to Oakland or San Francisco citizens if Oakland or San Francisco passes a tighter control law.

PT: It sounds like this would go a long way toward recognizing the competing interests of people in rural areas vs. those in high-crime urban areas. Would it hold up?

Zimring: All of those provisions would be unexceptional and upheld by the courts if the legislature acted to change the preemption statute. But until they do, there are seven layers of 19th century county house phoniness that are involved in municipal gun control. So that's why people do things like banning gun shows or calling it a commercial regulation. It's the preemption doctrine that's the central problem.

PT: This sounds like a very rational solution. Why haven't the legislatures faced up to this?

Zimring: I don't know! I think that part of the problem is that gun control is much less popular at the state level than at the city level. All over the country, rural and suburban interests are much stronger in the state legislatures. That's less true in California than in a lot of places. I'd rather try to pass an anti preemption statute here than in Ohio because you have fairly substantial Democratic majorities. I think that the other problem is that it has never become a priority. The most important thing that should be on the pro-control agenda is meaningful local option in California.

PT: Is legislators' reluctance to address the issue in these terms at all tied to the difficulty in crafting control laws that don't infringe on the Second Amendment?

Zimring: New York has had the Sullivan Law since 1911, and if the Second Amendment is really supposed to be a constraint on it, they haven't found out yet. So we really know a lot better than we're doing.

PT: So why isn't the preemption issue being addressed by those who do wish to push the issue?

Zimring: I don't know why liberals don't look at it. Sure, other things are easier to pass, but other things also aren't very important. I'm not a great believer in laws that require gun-free schools—not because I think people ought to have handguns in schools, but because I don't think that has much to do with the homicide rate.

PT: It does seem a bit tangential from that perspective.

Zimring: Exactly. So, if you then ask what's in the center of the target, the answer is local option in preemption.

PT: Is there any type of groundswell of support for this angle at any level?

Zimring: No. The debates around gun control that I see in California are horrendously unsophisticated on both sides and almost solely symbolic. I find that a disservice to the injured and killed.

PT: Would shifting the debate in the direction you propose have any altering affect on the firearms lobby and their influence in politics?

Zimring: I think they'd get nervous, and I think I know what they'd say in opposition, but again, letting the cities do what they want is very good political science because cities are concerned about lethal violence and guns. So, you'd say, "Why wouldn't the gun rights folks say, 'That's ok, we'll stay in our suburban and rural areas?'" Well, that's not what the game is about. I think I know why they behave the way they behave, but I have a hard time understanding why liberals behave the way they do.

PT: Professor, thank you for your time.


Franklin Zimring is William G. Simon Professor of Law and Wolfen Distinguished Scholar at UC Berkeley's Boalt Hall School of Law. He is one of America's leading criminologists and the author of several influential books on the American criminal justice system, including Crime is
Not the Problem: Violence in America (with Hawkins, 1997).