By Dave Kopel & Robert Racansky

CLA law school professor Eugene Volokh has asked his weblog readers to "imagine that you had the superpower to add one amendment to the U.S. Constitution...What would it be?"

Here's one proposal: the Goose and Gander Amendment. Since it works as a supplement to the Second Amendment, we'll make it Amendment Two-and-a-Half:

1. No government agency, nor employee of any government agency, shall be allowed to possess firearms prohibited to the citizens of the state, county, or municipality in which they serve.

2. No government agency, nor any employee of any government agency, shall be exempt from laws and regulations regarding the possession or use of firearms which affect the citizens of the state, county, or municipality in which they serve.

3. All exemptions inconsistent with sections 1 and 2 shall be void beginning on the 30th day after the ratification of this amendment.

4. Nothing in this amendment shall be construed to exempt agencies and employees of the federal government from federal, state, or local laws and regulations related to firearms.

5. Nothing in this amendment shall apply to the Department of Defense or states' National Guards.


This amendment does not in any way restrict existing powers of the federal, state, and local governments to pass gun-control laws. Rather, the gun laws would be strengthened by being of more general applicability. Removing government exemption would provide an incentive for politicians and regulators to pass only those gun-control laws which are truly reasonable.

Suppose that a state wants to outlaw so-called "junk guns" (inexpensive handguns used by poor people for self-defense). The prohibitionists make sanctimonious claims about merely wanting guns to be safe and reliable. Yet their proposed bans always contain an exemption allowing policemen to possess and carry such guns — as though the police should have unsafe and unreliable firearms. And in fact, "junk guns" are quite popular with many police officers, who carry them as back-up guns, often on an ankle holster because the guns are compact and lightweight. Under the Goose and Gander Amendment, the prohibitionist legislators must explain to the police why guns that they like to carry for police work may no longer be carried — because legislators, after all, understand gun design and function much better than do police officers.

Alternatively, the legislators could admit that the reliability issue is a sham, and that the real goal is to deprive poor people of the only guns they can afford. This goal is so important, the legislators could argue, that it is worthwhile to deprive police officers of their backup guns — since the officers will still be able to carry their expensive primary guns.

Besides wanting to outlaw guns that are too small (inexpensive handguns), gun prohibitionists also want to outlaw guns that are too big — such as 50-caliber target rifles and so-called "assault weapons." (Unlike Goldilocks, the prohibitionists are unable to find any gun which is "just right.")

Under the Goose and Gander Amendment, cities will still be able to ban "assault weapons." Politicians will still be able to claim that the guns have no legitimate purpose, and are not suitable for target shooting (even though many of the banned guns are the primary firearms for rifle competition) or for hunting (even though some of the banned guns are particularly designed for game hunting, such as the Valmet Hunter) or for lawful self-defense (for which almost all the guns are quite effective). While enacting "assault weapon" bans, politicians can continue to assert that only mass murderers and drug dealers would want to own such guns, which are supposedly only good for spray-firing at crowds of innocent people.

Very well, then. We certainly don't want the police to spray-fire at crowds of innocent people. Nor do we want guns that are uniquely attractive to psychopaths to be available to police, since the possibility of owning such a gun might induce a clever psychopath to join the police force for purposes of obtaining extra weaponry.

While it is very, very rare for ordinary people or for law-enforcement officers to use an "assault weapon" in a crime, it is not unheard of. For example, in December 1992, an off-duty Bureau of Indian Affairs police officer opened fire and shot 50 rounds into a bar in Bemidjii, Minnesota. He used the Colt AR-15 semiautomatic rifle he had been issued by the government, as well as his own 9mm. handgun.

On September 13, 2004, the federal "assault weapon" ban will sunset. Advocates of renewing the law would certainly, we hope, propose removing the loophole contained in 18 U.S. Code section 922(v)(4), which allows unlimited use and possession of "assault weapons" by law-enforcement officers, "whether on or off duty" — and even allows possession and use by retired law-enforcement officers. If the claims of the gun-prohibition groups are to be believed, we certainly should not allow this loophole to continue to exist; after all, these groups assure us that the guns have no good purpose, that the mere presence of such an awful-looking gun can incite an otherwise law-abiding person to commit a mass murder, and that no amount of background checks or training can ensure that a person is safe enough to own an "assault weapon."

Will the gun-prohibition groups work to close the "assault weapon" loophole? Or will they cynically fight to protect the loophole which, by their own reasoning, is morally indefensible?

Opponents of the Goose and Gander Amendment will point out that police officers are better trained than ordinary citizens. While this may be true, there are plenty of citizens who have voluntarily taken defensive firearms training that is far more extensive than what many police officers have received. Besides, allowing highly trained people to own guns whose only purpose is (allegedly) to murder a lot of people quickly would be especially dangerous.

In any case, the Goose and Gander Amendment would still allow governments to impose training for gun owners, or for people who want to possess certain types of firearms. The amendment would simply require that everyone who passes whatever tests and/or background checks the government mandates be treated equally.

The Goose and Gander Amendment would, of course, apply to more than just gun bans. If a state wants to impose a three-day wait to buy a handgun, then the police officers in that state would be required to wait three days before taking possession of a handgun, which is what happens to ordinary citizens. For example, in Illinois a gun owner must obtain a Firearms Owner Identification Card (FOID), which takes 30 days. Yet every time she buys an additional handgun, she still has to wait three days.

It's hard to see the public safety benefit of imposing a "cooling off" period on someone who already owns guns, but if this cooling off period is good for the general public, it would also make sense for government employees. Domestic-violence groups frequently point out that a very large number of police officers are domestic abusers — which is precisely the kind of crime that cooling off periods are supposed to reduce.

While many people think that police officers are the only government employees who carry guns, many other agencies also have armed agents, including the Environmental Protection Agency, the U.S. Forestry Service the Internal Revenue Service, agricultural inspectors, and many, many others. Under the Goose and Gander Amendment, these employees would still be allowed to carry firearms while on duty — so long as they complied with state law.

In a few states, concealed weapons are entirely illegal — because the legislature has determined that no matter what kind of background check and training one has, there is too great a risk that people carrying guns will shoot each other in traffic jams.

It would be difficult to argue that, simply by virtue of a person's employment by the U.S. Forestry Service or the Department of Agriculture, he is immune to the surges of homicidal emotions that, we are told, strike anyone at any time.

Finally, the Goose and Gander Amendment is progressive, because it ensures that gun laws will sensibly keep up with changing social needs. Gun prohibition lobbies have recently begun to push for outlawing the sale of all handguns except for high-tech "personalized guns" that meet standards to be set by a bureaucratic commission. Although guns incorporating palm-print readers or similar technology are still in the unreliable prototype stage, the proposals would outlaw all existing handguns within a few years.

Amazingly, these prohibition proposals also contain a government-employee exemption — even though the original reason the federal government began subsidizing personalized gun research was to protect police officers whose guns were snatched by a criminal. (About one-twelfth of police officers who are fatally shot are killed with their own gun.)

Yet the proponents of outlawing all current handguns and forcing citizens to buy only new-fangled gadgets quite accurately recognize that if the proposal were to apply to the police, the police lobbies would quash the proposal instantly. Police officers are not going to stand for being forced to rely on guns that won't work if the battery wears out, or if the palm-print reader has trouble recognizing a dirt-covered hand. 99 percent reliability isn't good enough for a gun that you are using against a violent criminal attacker.

Yet the gun-prohibition lobbies are ready to force everyone except government employees to use firearms of questionable reliability — because they consider defensive gun use by non-government employees to be immoral.

That antigun politicians and the lobbyists who support them are so willing to exempt the government from the gun laws suggests that many gun-control laws have less to do with protecting public safety than with disarming the citizenry and exalting the government. The policy reflects a philosophy that sovereignty belongs to the government rather than to the people — which is just the opposite of what the Constitution says.

— Dave Kopel and Robert Racansky both write from the Independence Institute.