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Bruce H. Kobayashi

Wednesday, April 1st, 1998

Bruce H. Kobayashi, Associate Professor of Law at George Mason University School of Law in Arlington, Virginia, is the designated recipient of the CCRKBA Gun Rights Defender of the Month Award for April.

In nominating Kobayashi for the Award, John Michael Snyder, CCRKBA Public Affairs Director, said that “Bruce is one of the finest intellectual battlers for the individual right of law-abiding citizens to keep and bear arms on the scene today. He has a doctorate in economics from the University of California — Los Angeles. He has put his fine mind to work in support of traditional American liberties and certainly is most deserving of this Award.”

Bruce developed a concise and incisive analysis of the gun control movement’s legislative objectives, strategies and tactics in his essay on “Gun Control, Strict Liability, and Excise Taxes” for inclusion with a number of authors’ articles on TAXING CHOICE: THE PREDATORY POLITICS OF FISCAL DISCRIMINATION as edited by W. F. Shughart.

“Legislative proposals to limit the private ownership of firearms have proven a popular tool for lawmakers attempting to convince their constituents that they are fighting crime,” he noted. “Recent state and federal legislation has proposed to tax or otherwise restrict the private ownership of certain ‘styles’ of firearms, to limit the availability of certain types and calibers of ammunition, to impose liability on manufacturers and retailers of firearms, and to increase the transaction costs of purchasing firearms…

“While the production of piecemeal legislation seems counterproductive from an efficiency standpoint, its political popularity is not surprising. While advocates of gun control would prefer broad-based uniform federal restrictions on the private ownership of firearms, such broad-based bans, which would likely require the confiscation of private property, currently do not have popular support. Such a widespread prohibition on the private ownership of firearms would require costly expenditures on law enforcement, and would likely face constitutional challenges…

“Given the political and legal problems facing those wishing to enact widespread federal restrictions on firearms, proponents instead demand narrowly defined piecemeal legislation, hoping to expand its scope administratively after passage or to argue for more sweeping restrictions when the narrow restrictions fail to produce any observable benefits. Legislators, facing a myopic constituency, routinely dismiss the intangible benefits of general firearm ownership (e.g., the effect widespread firearm ownership has on the general deterrence of crime and tyranny) and then supply gun control legislation in order to avoid being accused of ‘doing nothing’ about the tangible costs of firearm ownership (death and injury caused by firearms)…

“The difficulties of enacting widespread restrictions on the private ownership of firearms through the legislative process have led advocates of gun control to seek alternatives to bald restrictions on private ownership and to use the legislative process to enact indirect restrictions on gun ownership. Specifically, proponents of restrictions on the private ownership of firearms recently have suggested ‘taxing’ rather than banning firearms and ammunition. Further, given the likely difficulties they would face in obtaining direct taxation through legislation, they suggest that a similar result might be achieved through the courts by imposing strict liability on manufacturers and distributors of firearms.

“Economic analysis suggests that the general taxation of firearms, whether directly or through the imposition of strict liability on manufacturers of firearms, is not an efficient means of reducing crime. Relative to an approach that distinguishes between legal use and misuse of firearms and punishes only the latter, generally taxing firearms provides weaker disincentives to misuse firearms and punishes those who do not misuse them. Further, a general tax on firearms may result in the commission of more violent crimes if widespread and legal ownership of firearms serves as a general deterrent to crime.

“Thus, contrary to the claims of its proponents, the case for taxation and strict liability rules for the sale and manufacture of firearms is not based on economic efficiency – rather, it is rooted in a desire to reduce general firearms ownership or to provide a system of social insurance. And as has been noted generally, use of strict liability or direct taxes to provide social insurance for persons injured or killed by firearms invariably distorts economic incentives and is likely a relatively inefficient means of providing such insurance…

“Existing evidence on the effects of gun ownership on the rate of violent crime and the effects of current gun laws on the rate of violent crime suggests that most government regulation of firearms would not pass a cost-benefit test, and certainly would fail the high standards of rationality and tailoring requirements applied to government regulation of other constitutional rights. Further, given that the difference between the imposition of a selective excise tax and an absolute prohibition on the ownership of firearms is largely a matter of degree, a generalized excise tax imposed through the courts can raise the same type of constitutional issues that would be raised by direct prohibition. Further, even in court-imposed liability verdicts that only moderately increase the price of firearms present less general danger to the Second Amendment, such price increases can raise equal-protection issues if their primary effect is to disarm the law-abiding poor – arguably the population that would benefit the most from the generalized private ownership of firearms.”

Professor Kobayashi’s writings have appeared in numerous scholarly journals, including the JOURNAL OF LEGAL STUDIES, the JOURNAL OF LAW, ECONOMICS AND ORGANIZATION, the RAND JOURNAL OF ECONOMICS, and the INTERNATIONAL REVIEW OF LAW AND ECONOMICS.

His recent publications on firearms include “In re 101 California Street: A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of Assault Weapons,” co-authored with Professor Joseph Olson, appearing in the STANFORD LAW AND POLICY REVIEW, Winter 1997 issue.

Bruce and his wife, Michelle, are the parents of two children, Parker, 3, and Olivia, 1.