OSD 183: When a law getting better makes things get … worse?
Here’s where we’re at with concealed carry after Bruen:
No change to your ability to carry in the 25 permitless states or the 17 shall-issue states.
In Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island, there has been a pure increase in your ability to carry. Permits are now possible to get, and there have been no steps backwards.
In California and New York, permits are now vaguely accessible to most people. But under expansive new sensitive places laws (passed in July New York and set to pass imminently in California), you can carry almost nowhere in those states. (From the NYT: “When asked by reporters what areas would be left for permit holders to legally carry a firearm, [NY Gov.] Hochul said: ‘Probably some streets.’”) Pre-Bruen, the rural counties of those states were, in practice, shall-issue. So far, the result of Bruen for those residents has been a dramatic reduction of their ability to carry a gun.
That might seem foreseeable. Because sure, backlashes are a thing, you’d expect resistance to faithfully implementing Bruen. What’s less predictable is Bruen would be an active step backwards for gun carriers in some states. The law got better but the reality got worse.
Weird. How does that happen?
Imagine three positions that a product/behavior/idea can be in:
Off the radar. Doing its thing, known to people in its community, but outsiders either don’t know or don’t care. This is concealed carry pre-Bruen (most people would have been shocked to know that only eight states were may-issue, and that 25 states were permitless). Another example: bitcoin pre-Silk Road.
Senpai has noticed you. On the radar, and outsiders are helpful. This is, say, microloans circa 2006.
Sauron has noticed you. On the radar, and outsiders are harmful (either through malice or, just as often, incompetence).
“The law got better but the reality got worse” is the result of being in position #3.
From outside the world of guns, take this piece from Time a few weeks ago, “The Economics of Legal Weed Don’t Work”. The gist is that in the process of legalizing marijuana (i.e. moving businesses out of position #1), some states made the process of entering the trade so onerous that they essentially re-banned marijuana.
From the piece:
Interviewer: Why is legal weed more expensive?
Daniel Sumner: To get a license to start with in most states you hire a consultant to help you through the regulation maze. And then you wait. In Vermont [which legalized recreational cannabis in 2018], for example, you’ve hired your consultants, you’ve gotten your venue for your retail store, you’ve purchased a greenhouse or rented one as your cannabis growing facility, and you’re still waiting. It’s been four years. Nobody has got an adult-use weed license in Vermont.
Like with carry post-Bruen in California and New York, in Vermont marijuana is now de jure legal but de facto illegal. (An inversion of the typical arrangement in a thriving contraband market.)
Kalshi, the prediction market we discussed in “OSD 181: Law as platform” is another example. They pushed hard to get prediction markets out of the gray market (out of position #1), but with more CFTC engagement, freedom for users and creators of prediction markets (the markets other than Kalshi, that is) has gone down, not up.
As Scott Alexander put it (bold emphasis added):
Kalshi’s legality is both their biggest strength and their biggest weakness. It’s a weakness because they have to submit a lot of paperwork to the CFTC every time they want to open a new market, let the CFTC spend weeks or months debating its social utility, and sometimes get refused; as a result of this and other regulatory hurdles, they’re usually months behind, and much less interesting than, other prediction markets (for example, they still don’t have any questions about the Ukraine war). On the other hand, they can operate free from regulatory harassment.
But operating free from regulatory harassment isn’t actually an advantage if the CFTC never harasses other prediction markets.
In California and New York, carry is now in position #3. Reno May made a detailed explanation video here:
There are two ways to get out of position #3. One is to get to position #2. Basically, become popular. Gun rights continue to make headway there, as evidenced by the fact that Bruen happened at all.
But the other option is to get back to position #1 — off the radar. Not by taking steps backwards on existing things, but by always having a pipeline of new things burbling away, off the radar, slowly building steam. That’s where 3D-printed guns came from (and where things like electrochemically machined barrels are today). It’s where pistol braces, the modern silencer industry, and the AR ecosystem came from. The trick is to build up enough momentum while you’re still off the radar that when you do finally pop onto the radar, Sauron’s gaze can’t stop you anymore.
This week’s links
Feature piece in The Guardian.
Funny bit from Jason Cheny.
Some funny examples.
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