Instead of gun regulation, let's try innovation

The U.S. surgeon general just issued the first ever advisory assessment about gun violence, declaring it a “public health crisis.”  

The report explains the multiple complex factors that are responsible for almost 50,000 deaths a year. As scholars who study firearms history, regulation and innovation, we want to highlight an important part of the report — that firearm violence is also fundamentally shaped by technological innovation. 

Violence in the U.S. is distinctive in many ways, perhaps none more fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such effective tools of violence, confrontations involving them are disproportionately deadly. As we explain in a forthcoming article in the Texas Law Review, fully understanding, let alone addressing, the problem of violence requires accounting for the economic and legal forces shaping these instruments — what we call the technologies of violence.

Throughout history, the industries responsible for these technologies have been enormously innovative, from Samuel Colt’s repeating pistol in the 19th century, the M-16 and AR-15 in the 20th century, to the recent invention of bump stocks, which the Supreme Court recently found to fall outside existing statutory regulation of machine guns. 

In each of these cases, innovations have largely come in the form of increased lethality. These weapons kill people more quickly and reliably than their predecessors. The history of innovations that promote firearms safety, however, or that minimize the risks of firearms violence have been more checkered. 

Consider the development of “smart guns,” which the surgeon general mentions in his report. A smart gun is a firearm equipped with a user authentication device, like the ones on our smartphones, that prevent operation by unauthorized people. Smart guns offer considerable promise in reducing the tragically high number of accidental shootings by children and the use of stolen firearms in crimes.

Although established firearms manufacturers developed functional prototypes more than a quarter century ago, the first smart gun on the U.S. market only appeared in 2023. So, what happened?

In 2002, New Jersey passed the Childproof Handgun Act in an attempt to encourage smart gun development. The law required that once a “personalized handgun” became available to the market for three years, no new traditional handguns would be allowed to be sold. By guaranteeing a market, the statute meant to boost innovation. 

Yet the law backfired in spectacular fashion. Gun rights advocates objected to the law and boycotted both manufacturers and sellers, driving Colt and Smith & Wesson toward bankruptcy. Innovative start-up firms would now be completely responsible for development, testing and manufacturing of new products, without the possibility of being acquired by an established firm. Although a market for smart gun technology seemed to exist, innovation stalled. 

We are heartened that the surgeon general takes seriously the technological nature of gun violence in the U.S. For example, his report notes that we have promoted technological solutions to deal with previous public health crises like smoking and automobile fatalities. The report also points out firearms’ special status compared to other technologies like cars, pesticides and pharmaceuticals that can be both beneficial and harmful.  

Unlike those technologies, the current economic and legal landscape insulates firearms from incentives that promote safety innovations. A federal statute largely immunizes the gun industry from the kind of legal liability that can encourage safety-enhancing product reforms. The Consumer Product Safety Commission has virtually no authority over guns. And many courts, applying the Supreme Court’s putatively originalist approach to the Second Amendment, have been quick to give constitutional protection to innovative weapons while striking down innovative laws. 

Federal and state governments can fix some of these problems by revising the relevant statutes or through other policy choices. For example, if smart guns are part of the answer, governments could encourage institutional purchases by police departments and the military, increasing the potential for profit and decreasing costs for consumers. 

The gun debate has largely focused on difficult questions regarding the effectiveness, political plausibility and constitutionality of gun regulation. But the distribution and availability of firearms in the United States is driven by a distinctive set of market and legal forces — focusing on technological innovation might be the easiest path to saving lives. 

Joseph Blocher is a professor of constitutional law at Duke Law and co-director of the Duke Center for Firearms Law. Christopher Buccafusco is a professor at Duke Law and researches a wide range of topics and methods related to creativity, innovation and intellectual property law.