Newsgroups: talk.politics.guns
From: [l v c] at [cbnews.cb.att.com] (Larry Cipriani)
Subject: Re: Gun advocates LONELY without their 2nd Amendment...
Date: Sun, 10 Apr 1994 15:12:59 GMT
CATO Institute Policy Analysis No. 109
July 11, 1988
TRUST THE PEOPLE: THE CASE AGAINST GUN CONTROL
by
David B. Kopel
Men by their constitutions are naturally
divided into two parties: 1) Those who fear
and distrust the people . . . . 2) Those who
identify themselves with the people, have
confidence in them, cherish and consider them
as the most honest and safe . . . depository
of the public interest.
Thomas Jefferson
Few public policy debates have been as dominated by emotion
and misinformation as the one on gun control. Perhaps this debate
is so highly charged because it involves such fundamental issue.
The calls for more gun restrictions or for bans on some or all
guns are calls for significant change in our social and
constitutional systems.
Gun control is based on the faulty notion that ordinary
American citizens are too clumsy and ill-tempered to be trusted
with weapons. Only through the blatant abrogation of explicit
constitutional rights is gun control even possible. It must be
enforced with such violations of individual rights as intrusive
search and seizure. It most severely victimizes those who most
need weapons for self-defense, such as blacks and women.
The various gun control proposals on today's agenda--
including licensing, waiting periods, and bans on so-called
Saturday night specials--are of little, if any, value as crime-
fighting measures. Banning guns to reduce crime makes as much
sense as banning alcohol to reduce drunk driving. Indeed,
persuasive evidence shows that civilian gun ownership can be a
powerful deterrent to crime.
The gun control debate poses the basic question: Who is more
trustworthy, the government or the people?
________
David B. Kopel, formerly an assistant district attorney
in Manhattan, is an attorney in Colorado.
-=-=-=-=-=-=-
GUNS AND CRIME
GUNS AS A CAUSE OF CRIME
Gun control advocates--those who favor additional legal
restrictions on the availability of guns or who want to outlaw
certain types of guns--argue that the more guns there are, the
more crime there will be. As a Detroit narcotics officer put it,
"Drugs are X; the number of guns in our society is Y; the number
of kids in possession of drugs is Z. X plus Y plus Z equals an
increase in murders." But there is no simple statistical
correlation between gun ownership and homicide or other violent
crimes. In the first 30 years of this century, U.S. per capita
handgun ownership remained stable, but the homicide rate rose
tenfold. Subsequently, between 1937 and 1963, handgun ownership
rose by 250 percent, but the homicide rate fell by 35.7 percent.
Switzerland, through its militia system, distributes both
pistols and fully automatic assault rifles to all adult males and
requires them to store their weapons at home. Further, civilian
long-gun purchases are essentially unregulated, and handguns are
available to any adult without a criminal record or mental
defect. Nevertheless, Switzerland suffers far less crime per
capita than the United States and almost no gun crime.
Allowing for important differences between Switzerland and
the United States, it seems clear that there is no direct link
between the level of citizen gun ownership and the level of gun
misuse. Instead of simplistically assuming that the fewer guns
there are, the safer society will be, one should analyze the
particular costs and benefits of gun ownership and gun control
and consider which groups gain and lose from particular policies.
GUNS AS A TOOL AGAINST CRIME
Several years ago the National Institute of Justice offered
a grant to the former president of the American Sociological
Association to survey the field of research on gun control. Peter
Rossi began his work convinced of the need for strict national
gun control. After looking at the data, however, Rossi and his
University of Massachusetts colleagues James Wright and Kathleen
Daly concluded that there was no convincing proof that gun
control curbs crime. A follow-up study by Wright and Rossi of
serious felons in American prisons provided further evidence that
gun control would not impede determined criminals.
It also indicated that civilian gun ownership does deter
some crime. Three-fifths of the prisoners studied said that a
criminal would not attack a potential victim who was known to be
armed. Two-fifths of them had decided not to commit a crime
because they thought the victim might have a gun. Criminals in
states with higher civilian gun ownership rates worried the most
about armed victims.
Real-world experiences validate the sociologists' findings.
In 1966 the police in Orlando, Florida, responded to a rape
epidemic by embarking on a highly publicized program to train
2,500 women in firearm use. The next year rape fell by 88 percent
in Orlando (the only major city to experience a decrease that
year); burglary fell by 25 percent. Not one of the 2,500 women
actually ended up firing her weapon; the deterrent effect of the
publicity sufficed. Five years later Orlando's rape rate was
still 13 percent below the pre-program level, whereas the
surrounding standard metropolitan area had suffered a 308 percent
increase. During a 1974 police strike in Albuquerque armed
citizens patrolled their neighborhoods and shop owners publicly
armed themselves; felonies dropped significantly. In March 1982
Kennesaw, Georgia, enacted a law requiring householders to keep a
gun at home; house burglaries fell from 65 per year to 26, and to
11 the following year. Similar publicized training programs for
gun-toting merchants sharply reduced robberies in stores in
Highland Park, Michigan, and in New Orleans; a grocers
organization's gun clinics produced the same result in Detroit.
Gun control advocates note that only 2 burglars in 1,000 are
driven off by armed homeowners. However, since a huge
preponderance of burglaries take place when no one is home, the
statistical citation is misleading. Several criminologists
attribute the prevalence of daytime burglary to burglars' fear of
confronting an armed occupant. Indeed, a burglar's chance of
being sent to jail is about the same as his chance of being shot
by a victim if the burglar breaks into an occupied residence (1
to 2 percent in each case).
CAN GUN LAWS BE ENFORCED?
As Stanford law professor John Kaplan has observed, "When
guns are outlawed, all those who have guns will be outlaws."
Kaplan argued that when a law criminalizes behavior that its
practitioners do not believe improper, the new outlaws lose
respect for society and the law. Kaplan found the problem
especially severe in situations where the numbers of outlaws are
very high, as in the case of alcohol, marijuana, or gun
prohibition.
Even simple registration laws meet with massive resistance.
In Illinois, for example, a 1977 study showed that compliance
with handgun registration was only about 25 percent. A 1979
survey of Illinois gun owners indicated that 73 percent would not
comply with a gun prohibition. It is evident that New York City's
almost complete prohibition is not voluntarily obeyed; estimates
of the number of illegal handguns in the city range from one
million to two million.
With more widespread American gun control, the number of new
outlaws would certainly be huge. Prohibition would label as
criminal the millions of otherwise law-abiding citizens who
believe they must possess the means to defend themselves,
regardless of what legislation dictates.
In addition, strict enforcement of gun prohibition--like our
current marijuana prohibition and our past alcohol prohibition--
would divert enormous police and judicial resources to ferreting
out and prosecuting the commission of private, consensual
possessory offenses. The diversion of resources to the
prosecution of such offenses would mean fewer resources available
to fight other crime.
Assume half of all current handgun owners would disobey a
prohibition and that 10 percent of them would be caught. Since
the cost of arresting someone for a serious offense is well over
$2,000, the total cost in arrests alone would amount to $5
billion a year. Assuming that the defendants plea-bargained at
the normal rate (an unlikely assumption, since juries would be
more sympathetic to such defendants than to most other
criminals), the cost of prosecution and trial would be at least
$4.5 billion a year. Putting each of the convicted defendants in
jail for a three-day term would cost over $660 million in one-
time prison construction costs, and over $200 million in annual
maintenance, and would require a 10 percent increase in national
prison capacity. Given that the entire American criminal justice
system has a total annual budget of only $45 billion, it is clear
that effective enforcement of a handgun prohibition would simply
be impossible.
DO GUN LAWS DISARM CRIMINALS?
Although gun control advocates devote much attention to the
alleged evils of guns and gun owners, they devote little
attention to the particulars of devising a workable, enforceable
law. Disarming criminals would be nearly impossible. There are
between 100 and 140 million guns in the United States, a third of
them handguns. The ratio of people who commit handgun crimes each
year to handguns is 1:400, that of handgun homicides to handguns
is 1:3,600. Because the ratio of handguns to handgun criminals is
so high, the criminal supply would continue with barely an
interruption. Even if 90 percent of American handguns
disappeared, there would still be 40 left for every handgun
criminal. In no state in the union can people with recent violent
felony convictions purchase firearms. Yet the National Institute
of Justice survey of prisoners, many of whom were repeat
offenders, showed that 90 percent were able to obtain their last
firearm within a few days. Most obtained it within a few hours.
Three-quarters of the men agreed that they would have "no
trouble" or "only a little trouble" obtaining a gun upon release,
despite the legal barriers to such a purchase.
Even if the entire American gun stock magically vanished,
resupply for criminals would be easy. If small handguns were
imported in the same physical volume as marijuana, 20 million
would enter the country annually. (Current legal demand for new
handguns is about 2.5 million a year). Bootleg gun manufacture
requires no more than the tools that most Americans have in their
garages. A zip gun can be made from tubing, tape, a pin, a key,
whittle wood, and rubber bands. In fact, using wood fires and
tools inferior to those in the Sears & Roebuck catalogue,
Pakistani and Afghan peasants have been making firearms capable
of firing the Russian AK-47 cartridge. Bootleg ammunition is no
harder to make than bootleg liquor. Although modern smokeless
gunpowder is too complex for backyard production, conventional
black powder is simple to manufacture.
Apparently, illegal gun production is already common. A 1986
federal government study found that one-fifth of the guns seized
by the police in Washington, D.C., were homemade. Of course,
homemade guns cannot win target-shooting contests, but they
suffice for robbery purposes. Furthermore, the price of bootleg
guns may even be lower than the price of the quality guns
available now (just as, in prohibition days, bootleg gin often
cost less than legal alcohol had).
Most police officers concur that gun control laws are
ineffective. A 1986 questionnaire sent to every major police
official in the country produced the following results: 97
percent believed that a firearms ownership ban would not reduce
crime or keep criminals from using guns; 89 percent believed that
gun control laws such as those in Chicago, Washington, D.C., and
New York City had no effect on criminals; and 90 percent believed
that if firearms ownership was banned, ordinary citizens would be
more likely to be targets of armed violence.
GUNS AND THE ORDINARY CITIZEN
Some advocates of gun prohibition concede that it will not
disarm criminals, but nevertheless they favor it in the belief
that disarming ordinary citizens would in itself be good. Their
belief seems to rely heavily on newspaper accounts of suicidal or
outlandishly careless gun owners shooting themselves or loved
ones. Such advocates can reel off newspaper stories of children
or adults killing themselves in foolish gun accidents (one
headline: "2 Year-old Boy Shoots Friend, 5") or shooting each
other in moments of temporary frenzy.
In using argument by anecdote, the advocates are aided by
the media, which sensationalize violence. The sensationalism and
selectivity of the press lead readers to false conclusions. One
poll showed that people believe homicide takes more lives
annually than diabetes, stomach cancer, or stroke; in fact,
strokes alone take 10 times as many lives as homicides.
Even in the war of anecdotes, however, it is not at all
clear that the gun control advocates have the advantage. Every
month the National Rifle Association's magazines feature a
section called "The Armed Citizen," which collects newspaper
clippings of citizens successfully defending themselves against
crime. For example, one story tells of a man in a wheelchair who
had been beaten and robbed during five break-ins in two months;
when the man heard someone prying at his window with a hatchet,
he fired a shotgun, wounding the burglar and driving him away.
Anecdotes rarely settle policy disputes, though. A cool-
headed review of the facts debunks the scare tactics of the gun
control advocates.
Some people with firsthand experience blame guns for
domestic homicides. Said the chief of the homicide section of the
Chicago Police Department, "There was a domestic fight. A gun was
there. And then somebody was dead. If you have described one, you
have described them all." Sociologist R. P. Narlock, though,
believes that "the mere availability of weapons lethal enough to
produce a human mortality bears no major relationship to the
frequency with which this act is completed."
Guns do not turn ordinary citizens into murderers.
Significantly, fewer than one gun owner in 3,000 commits
homicide; and that one killer is far from a typical gun owner.
Studies have found two-thirds to four-fifths of homicide
offenders have prior arrest records, frequently for violent
felonies. A study by the pro-control Police Foundation of
domestic homicides in Kansas City in 1977 revealed that in 85
percent of homicides among family members, the police had been
called in before to break up violence. In half the cases, the
police had been called in five or more times. Thus, the average
person who kills a family member is not a non-violent solid
citizen who reaches for a weapon in a moment of temporary
insanity. Instead, he has a past record of illegal violence and
trouble with the law. Such people on the fringes of society are
unlikely to be affected by gun control laws. Indeed, since many
killers already had felony convictions, it was already illegal
for them to own a gun, but they found one anyway.
Of all gun homicide victims, 81 percent are relatives or
acquaintances of the killer. As one might expect of the wives,
companions, and business associates (e.g. drug dealers and
loansharks) of violent felons, the victims are no paragons of
society. In a study of the victims of near-fatal domestic
shootings and stabbings, 78 percent of the victims volunteered a
history of hard-drug use, and 16 percent admitted using heroin
the day of the incident. Many of the handgun homicide victims
might well have been handgun killers, had the conflict turned out
a little differently.
Finally, many of the domestic killings with guns involve
self-defense. In Detroit, for example, 75 percent of wives who
shot and killed their husbands were not prosecuted, because the
wives were legally defending themselves or their children against
murderous assault. When a gun is fired (or brandished) for legal
self-defense in a home, the criminal attacker is much more likely
to be a relative or acquaintance committing aggravated assault,
rather than a total stranger committing a burglary.
The "domestic homicide" prong of the gun control argument
demands that we take guns away from law-abiding citizens to
reduce the incidence of felons committing crimes against each
other. Not only is such a policy impossible to implement, it is
morally flawed. To protect a woman who chooses to share a bed and
a rap sheet with a criminal, it is unfair to disarm law abiding
women and men and make them easier targets for the criminal's
rapes and robberies.
It is often alleged that guns cause huge numbers of fatal
accidents, far outweighing the minimal gain from whatever anti-
crime effects they may have. For example, former U.S. Senate
candidate Mark Green (D-N.Y.) warned that "people with guns in
their homes for protection are six times more likely to die of
gunfire due to accidental discharge than those without them." Of
course, that makes sense; after all, people who own swimming
pools are more likely to die in drowning accidents.
The actual number of people who die in home handgun
accidents, though, is quite small. Despite press headlines such
as "Pregnant Woman Killed by Own Gun While Making Bed," the
actual death toll is somewhat lower than implied by the press.
Each year roughly 7,000 people commit suicide with handguns and
300 or fewer people die in handgun accidents. People who want to
commit suicide can find many alternatives, and even pro-control
experts agree that gun control has little impact on the suicide
rate. Japan, for example, has strict gun control and a suicide
rate twice the U.S. level. Americans have a high rate of suicide
by shooting for the same reason that Norwegians have a high rate
of suicide by drowning; guns are an important symbol in one
culture, water in the other.
If a U.S. gun prohibition was actually effective, it could
save the 300 or so handgun victims and 1,400 or so long-gun
accident victims each year. Even one death is too many, but guns
account for only 2 percent of accidental deaths annually.
Guns are dangerous, but hardly as dangerous as gun control
advocates contend. Three times as many people are accidentally
killed by fire as by firearms. The number of people who die in
gun accidents is about one-third the number who die by drowning.
Although newspapers leave a contrary impression, bicycle
accidents kill many more children than do gun accidents. The
average motor vehicle is 12 times more likely to cause a death
than the average firearm. Further, people involved in gun
accidents are not typical gun owners but self-destructive
individuals who are also "disproportionately involved in other
accidents, violent crime and heavy drinking."
Moreover, there is little correlation between the number of
guns and the accident rate. The per capita death rate from
firearms accidents has declined by a third in the last two
decades, while the firearms supply has risen over 300 percent. In
part this is because handguns have replaced many long guns as
home protection weapons, and handgun accidents are considerably
less likely to cause death than long-gun accidents. Handguns are
also more difficult for a toddler to accidentally discharge than
are long guns.
The risks, therefore, of gun ownership by ordinary citizens
are quite low. Accidents can be avoided by buying a trigger lock
and not cleaning a gun while it is loaded. Unless the gun owner
is already a violent thug, he is very unlikely to kill a relative
in a moment of passion. If someone in the house is intent on
suicide, he will kill himself by whatever means are at hand.
Gun control advocates like to cite a recent article in the
New England Journal of Medicine that argues that for every
intruder killed by a gun, 43 other people die as a result of
gunshot wounds incurred in the home. (Again, most of them are
suicides; many of the rest are assaultive family members killed
in legitimate self-defense.) However, counting the number of
criminal deaths is a bizarre method of measuring anti-crime
utility; no one evaluates police efficacy by tallying the number
of criminals killed. Defensive use of a gun is far more likely to
involve scaring away an attacker by brandishing the gun, or by
firing it without causing death. Even if the numbers of criminal
deaths were the proper measure of anti-crime efficacy, citizens
acting with full legal justification kill at least 30 percent
more criminals than do the police.
On the whole, citizens are more successful gun users than
are the police. When police shoot, they are 5.5 times more likely
to hit an innocent person than are civilian shooters. Moreover,
civilians use guns effectively against criminals. If a robbery
victim does not defend himself, the robbery will succeed 88
percent of the time, and the victim will be injured 25 percent of
the time. If the victim resists with a gun, the robbery "success"
rate falls to 30 percent, and the victim injury rate falls to 17
percent. No other response to a robbery--from using a knife, to
shouting for help, to fleeing--produces such a low rate of victim
injury and robbery success. In short, virtually all Americans who
use guns do so responsibly and effectively, notwithstanding the
anxieties of gun control advocates.
ENFORCING GUN BANS
Apart from the intrinsic merit (or demerit) of banning or
restricting gun possession, the mechanics of enforcement must
also be considered. Illegal gun ownership is by definition a
possessory offense, like possession of marijuana or bootleg
alcohol. The impossibility of effective enforcement, plus the
civil liberties invasions that necessarily result, are powerful
arguments against gun control.
SEARCH AND SEIZURE
No civil libertarian needs to be told how the
criminalization of liquor and drugs has led the police into
search and seizure violations. Consensual possessory offenses
cannot be contained any other way. Search-and-seizure violations
are the inevitable result of the criminalization of gun
possession. As Judge David Shields of Chicago's special firearms
court observed:
"Constitutional search and seizure issues are
probably more regularly argued in this court
than anywhere in America."
The problem has existed for a long time. In 1933, for
example, long before the Warren Court expanded the rights of
suspects, one quarter of all weapons arrests in Detroit were
dismissed because of illegal searches. According to the American
Civil Liberties Union, the St. Louis police have conducted over
25,000 illegal searches under the theory that any black driving a
late-model car must have a handgun.
The frequency of illegal searches should not be surprising.
The police are ordered to get handguns off the streets, and they
attempt to do their job. It is not their fault that they are told
to enforce a law whose enforcement is impossible within
constitutional limits. Small wonder that the Chicago Police
Department gives an officer a favorable notation in his record
for confiscating a gun, even as the result of an illegal search.
One cannot comply with the Fourth Amendment--which requires that
searches be based upon probable cause--and also effectively
enforce a gun prohibition. Former D.C. Court of Appeals judge
Malcolm Wilkey thus bemoaned the fact that the exclusionary rule,
which bars courtroom use of illegally seized evidence, "has made
unenforceable the gun control laws we now have and will make
ineffective any stricter controls which may be devised." Judge
Abner Mikva, usually on the opposite side of the conservative
Wilkey, joined him in identifying the abolition of the
exclusionary rule as the only way to enforce gun control.
Abolishing the exclusionary rule is not the only proposal
designed to facilitate searches for illegal guns. Harvard
professor James Q. Wilson, the Police Foundation, and other
commentators propose widespread street use of hand-held
magnetometers and walk-through metal detectors to find illegal
guns. The city attorney of Berkeley, California, has advocated
setting up "weapons checkpoints" (similar to sobriety
checkpoints), where the police would search for weapons all cars
passing through dangerous neighborhoods. School administrators in
New Jersey have begun searching student lockers and purses for
guns and drugs; Bridgeport, Connecticut, is considering a similar
strategy. Detroit temporarily abandoned school searches after a
female student who had passed through a metal detector was given
a manual pat-down by a male security officer, but the city has
resumed the program. New York City is also implementing metal
detectors.
Searching a teenager's purse, or making her walk through a
metal detector several times a day, is hardly likely to instill
much faith in the importance of civil liberties. Indeed, students
conditioned to searches without probable cause in high school are
unlikely to resist such searches when they become adults.
Additionally, it is unjust for the state to compel a student to
attend school, fail to provide a safe environment at school or on
the way to school, and then prohibit the student from protecting
himself or herself.
Perhaps the most harmful effect of the metal detectors is
their debilitating message that a community must rely on paid
security guards and their hardware in order to be secure. It does
not take much imagination to figure out how to pass a weapon past
a security guard, with trickery or bribery. Once past the guard,
weapons could simply be stored at school. Instead of relying on
technology at the door, the better solution would be to mobilize
students inside the school. Volunteer student patrols would
change the balance of power in the schoolyard, ending the reign
of terror of outside intruders and gangs. Further, concerted
student action teaches the best lessons of democracy and
community action.
The majority of people possessing illegal weapons during a
gun prohibition would never carry them on the streets and would
never be caught even by omnipresent metal detectors. Accordingly,
a third of the people who favor a ban on private handguns want
the ban enforced with house-to-house searches. Eroding the Second
Amendment guarantees erosion of the Fourth Amendment.
Those who propose abolishing the exclusionary rule and
narrowing the Fourth Amendment apparently trust the street
intuition of the police to sort out the true criminals so that
ordinary citizens would not be subject to unjustified intrusions.
However, one-fourth of the guns seized by the police are not
associated with any criminal activity. Our constitutional scheme
explicitly rejects the notion that the police may be allowed to
search at will.
OTHER CIVIL LIBERTIES PROBLEMS
Although gun control advocates trust the police to know whom
to arrest, the experience of gun control leads one to doubt
police judgment. A Pennsylvania resident was visiting Brooklyn,
New York, to help repair a local church when he spotted a man
looting his truck. The Pennsylvania man fired a warning shot into
the air with his legally registered Pennsylvania gun, scaring off
the thief. The police arrived too late to catch the thief but
arrested the Pennsylvania man for not acquiring a special permit
to bring his gun into New York City. In California a police chief
went to a gun show and read to a machine gun dealer the
revocation of his license; the dealer was immediately arrested
for possessing unlicensed machine guns.
The Bureau of Alcohol, Tobacco and Firearms has been
particularly outrageous in its prosecutions. Sometimes the BATF's
zeal to inflate its seizure count turns its agents into Keystone
Kops. One year in Iowa, for example, the BATF hauled away an
unregistered cannon from a public war memorial; in California it
pried inoperable machine guns out of a museum's display.
In the early 1970s changes in the price of sugar made
moonshining unprofitable. To justify its budget, the BATF had to
find a new set of defendants. Small-scale gun dealers and
collectors served perfectly. Often the bureau's tactics against
them are petty and mean. After a defendant's acquittal, for
example, agents may refuse to return his seized gun collection,
even under court order. Valuable museum-quality antique arms may
be damaged when in BATF custody. Part of the explanation for the
refusal to return weapons after an acquittal may lie in BATF
field offices using gun seizures to build their own arsenals.
The BATF's disregard for fair play harms more than just gun
owners. BATF searches of gun dealers need not be based on
probable cause, or any cause at all. The 1972 Supreme Court
decision allowing these searches, United States v. Biswell, has
since become a watershed in the weakening of the Constitution's
probable cause requirement.
Lack of criminal intent does not shield a citizen from the
BATF. In United States v. Thomas, the defendant found a 16-inch-
long gun while horseback riding. Taking it to be an antique
pistol, he pawned it. But it turned out to be short-barreled
rifle, which should have been registered before selling. Although
the prosecutor conceded that Thomas lacked criminal intent, he
was convicted of a felony anyway. The Supreme Court's decision in
United States v. Freed declared that criminal intent was not
necessary for a conviction of violation of the Gun Control Act of
1968.
The strict liability principle has since spread to other
areas and contributed to the erosion of the mens rea (guilty
mind) requirement of criminal culpability. U.S. law prohibits the
possession of unregistered fully automatic weapons (one
continuous trigger squeeze causes repeat fire). Semiautomatic
weapons (which eject the spent shell and load the next cartridge,
but require another trigger squeeze to fire) are legal. If the
sear (the catch that holds the hammer at cock) on a semiautomatic
rifle wears out, the rifle may malfunction and repeat fire.
Accordingly, the BATF recently arrested and prosecuted a small
town Tennessee police chief for possession of an automatic weapon
(actually a semiautomatic with a worn-out sear), even though the
BATF conceded that the police chief had not deliberately altered
the weapon. In March and April of 1988, BATF pressed similar
charges for a worn-out sear against a Pennsylvania state police
sergeant. After a 12-day trial, the federal district judge
directed a verdict of not guilty and called the prosecution "a
severe miscarriage of justice."
The Police Foundation has proposed that law enforcement
agencies use informers to ferret out illegal gun sales and model
their tactics on methods of drug law enforcement. Taking this
advice to heart, the BATF relies heavily on paid informants and
on entrapment--techniques originated during alcohol prohibition,
developed in modern drug enforcement, and honed to a chilling
perfection in gun control. So that BATF agents can fulfill their
quotas, they concentrate on harassing collectors and their
valuable rifle collections. Undercover agents may entice or
pressure a private gun collector into making a few legal sales
from his personal collection. Once he has made four sales, over a
long period of time, he is arrested and charged with being
"engaged in the business" of gun sales without a license.
To the consternation of many local police forces, the BATF
is often unwilling to assist in cases involving genuine criminal
activity. Police officials around the nation have complained
about BATF's refusing to prosecute serious gun law violations.
In 1982 the Senate Subcommittee on the Constitution
investigated the BATF and concluded that the agency had habitual
engaged in
conduct which borders on the criminal. . . .
[E]nforcement tactics made possible by
current firearms laws are constitutionally,
legally and practically reprehensible. . . .
[A]pproximately 75 percent of BATF gun
prosecutions were aimed at ordinary citizens
who had neither criminal intent nor
knowledge, but were enticed by agents into
unknowing technical violations.
Although public pressure in recent years has made the BATF a
somewhat less lawless agency, it would be a mistake to conclude
that the organization has been permanently reformed.
One need not like guns to understand that gun control laws
pose a threat to civil liberties. Explained Aryeh Neier, former
director of the American Civil Liberties Union:
I want the state to take away people's guns.
But I don't want the state to use methods
against gun owners that I deplore when used
against naughty children, sexual minorities,
drug users, and unsightly drinkers. Since
such reprehensible police practices are
probably needed to make anti-gun laws
effective, my proposal to ban all guns should
probably be marked a failure before it is
even tried.
GUN CONTROL AND SOCIAL CONTROL
Gun control cannot coexist with the Fourth Amendment
(probable cause for search and seizure) and has a deleterious
effect on the Fifth Amendment (due process of law). Gun control
is also suspect under the equal protection clause of the
Fourteenth Amendment, for it harms most those groups that have
traditionally been victimized by society's inequities.
RACIAL DISCRIMINATION
Throughout America's history, white supremacists have
insisted on the importance of prohibiting arms to blacks. In 1640
Virginia's first recorded legislation about blacks barred them
from owning guns. Fear of slave revolts led other Southern
colonies to enact similar laws. The laws preventing blacks from
bearing arms (as well as drinking liquor or traveling) were
enforced by what one historian called a "system of special and
general searches and night patrols of the posse comitatus." In
the 1857 Dred Scott decision, Chief Justice Roger B. Taney
announced that blacks were not citizens; if they were, he warned,
there would be no legal way to deny them firearms.
Immediately after the Civil War, President Andrew Johnson
permitted several Southern states to return to the Union without
guaranteeing equality to blacks. These states enacted "black
codes," which were designed to keep the ex-slaves in de facto
slavery and submission. For example, in 1865 Mississippi forbade
freedmen to rent farmland, requiring instead that they work under
unbreakable labor contracts, or be sent to jail. White terrorist
organizations attacked freedmen who stepped out of line, and the
black codes ensured that the freedmen could not fight back.
Blacks were, in the words of The Special Report of the Anti-
Slavery Conference of 1867, "forbidden to own or bear firearms
and thus . . . rendered defenseless against assaults" by whites.
In response to the black codes, the Republican Congress passed
the Fourteenth Amendment, guaranteeing to all citizens, freedmen
included, their national constitutional rights, especially the
right to bear arms. Said Rep. Sidney Clarke of Kansas, during the
debate on the Fourteenth Amendment, "I find in the Constitution
of the United States an article which declared that 'the right of
the people to keep and bear arms shall not be infringed.' For
myself, I shall insist that the reconstructed rebels of
Mississippi respect the Constitution in their local laws."
White supremacy eventually prevailed, though, and the South
became the first region of the United States to institute gun
control. During the Jim Crow era around 1900, when racial
oppression was at its peak, several states enacted handgun
registration and licensing laws. As one Florida judge explained,
the laws were "passed for the purpose of disarming the negro
laborers . . . [and] never intended to be applied to the white
population."
For several years in the 1970s the American Civil Liberties
Union lobbied for stricter gun control to forestall white
terrorist attacks on minorities. (The ACLU currently does not
work for or against gun control.) Concern over racist shooting
was certainly justified, for during the civil rights era in the
1960s, white supremacist tactics were just as violent as they had
been during Reconstruction. Over 100 civil rights workers were
murdered during that era, and the Department of Justice refused
to intervene to prosecute the Klan or to protect civil rights
workers. Help from the local police was out of the question; Klan
dues were sometimes collected at the local station.
Blacks and civil rights workers armed for self-defense. John
Salter, a professor at Tougaloo College and NAACP leader during
the early 1960s, wrote "No one knows what kind of massive racist
retaliation would have been directed against grass-roots black
people had the black community not had a healthy measure of
firearms within it." Salter personally had to defend his home and
family several times against attacks by night riders. When Salter
fired back, the night riders, cowards that they were, fled. The
unburned Ku Klux Klan cross in the Smithsonian Institution was
donated by a civil rights worker whose shotgun blast drove
Klansmen away from her driveway.
Civil rights professionals and the black community generally
viewed nonviolence as a useful tactic for certain situations, not
as a moral injunction to let oneself be murdered on a deserted
road in the middle of the night. Based in local churches, the
Deacons for Defense and Justice set up armed patrol car systems
in cities such as Bogalusa and Jonesboro, Louisiana, and
completely succeeded in deterring Klan and other attacks on civil
rights workers and black residents. Sixty chapters of the Deacons
were formed throughout the South. Of the more than 100 civil
rights workers martyred in the 1960s, almost none were armed.
Of course civil rights activists were not the only people
who needed to defend themselves against racist violence. Francis
Griffin, a clergyman in Farmville, Virginia, related, "Our last
trouble came when some Klansmen tried to 'get' a black motorist
who had hit a white child. They met blacks with guns, and that
put a stop to that." Moreover, the tendency of Southern blacks to
arm themselves not only deterred white racist violence, it
reduced the incidence of robberies of blacks by drug addicts.
Lest anyone think that blacks' need to defend themselves
against racist mobs--whom the police cannot or will not control--
is limited to the old South, New York City provides a few
counterexamples. In 1966 a mob burned the headquarters of the
Marxist W. E. B. Du Bois Club while New York City police looked
on. When a club member pulled his pistol to hold off the mob
while he fled from the burning building, the police arrested him
for illegal gun possession. No one in the mob was arrested for
anything.
In 1976 Ormistan Spencer, a black, moved into the white
neighborhood of Rosedale, Queens. Crowds dumped garbage on his
lawn, his children were abused, and a pipe bomb was thrown
through his window. When he responded to a menacing crowd by
brandishing a gun, the police confiscated the gun and filed
charges against him. The recent mob attack on black pedestrians
in Howard Beach, New York, would not have resulted in the death
of one of the victims if the black victims had been carrying a
gun with which to frighten off or resist the mob.
In some ways, social conditions have not changed much since
the days when Michigan enacted its handgun controls after
Clarence Darrow's celebrated defense of Ossian Sweet in 1925.
Sweet, a black, had moved into an all-white neighborhood; the
Detroit police failed to restrain a mob threatening his house.
Sweet and his family fired in self-defense, killing one of the
mob. He was charged with murder and acquitted after a lengthy
trial.
Racially motivated violence is not the only threat to which
blacks are more vulnerable than whites. A black in America has at
least a 40 percent greater chance of being burgled and a 100
percent greater chance of being robbed than a white. Simply put,
blacks need to use deadly force in self-defense far more often
than whites. In California, in 1981, blacks committed 48 percent
of justifiable homicides, whites only 22 percent.
In addition, although blacks are more exposed to crime, they
are given less protection by the police. In Brooklyn, New York,
for example, 911 callers have allegedly been asked if they are
black or white. Wrote the late Senator Frank Church:
In the inner cities, where the police cannot
offer adequate protection, the people will
provide their own. They will keep handguns at
home for self-defense, regardless of the
prohibitions that relatively safe and smug
inhabitants of the surrounding suburbs would
impose upon them.
Judge David Shields of the special firearms court in Chicago
came to the court as an advocate of national handgun prohibition.
Most of the defendants he saw, however, were people with no
criminal record who carried guns because they had been robbed or
raped because the police had arrived too late to protect them.
Explaining why he never sent those defendants to jail, and indeed
ordered their guns returned, the judge wrote that most people:
would not go into ghetto areas at all except
in broad daylight under the most optimum
conditions--surely not at night, alone or on
foot. But some people have no choice. To live
or work or have some need to be on this
"frontier" imposes a fear which is tempered
by possession of a gun.
Gun control laws are discriminatorily enforced against
blacks, even more so than other laws. In Chicago the black-to-
white ratio of weapons arrests one year was 7:1 (prostitution,
another favorite for discriminatory enforcement, was the only
other crime to have such a high race ratio). Black litigants have
gone to federal court in Maryland and won permits after proving
that a local police department almost never issues permits to
blacks. General searches for guns can be a nightmare-come-true
for blacks. In 1968, for example, rifles were stolen from a
National Guard armory in New Jersey; the guard ransacked 45 homes
of blacks in warrantless searches for weapons, found none, and
left the houses in shambles.
SEXUAL DISCRIMINATION
Many of the same arguments about gun possession that apply
to blacks also apply to women. Radical feminist Nikki Craft
worked with an anti-rape group in Dallas. After one horror story
too many, she founded WASP--Women Armed for Self Protection.
Craft explained that she "was opposed to guns, so this was a huge
leap . . . . I was tired of being afraid to open a window at
night for fresh air, and sick of feeling safer when there was a
man in bed with me." One of her posters read, "Men and Women Were
Created Equal . . . And Smith & Wesson Makes Damn Sure It Stays
That Way." Her slogan echoed a gun manufacturer's motto from the
19th century:
Be not afraid of any man,
No matter what his size;
When danger threatens, call on me
And I will equalize.
If guns somehow vanished, rapists would suffer little. A
gun-armed rapist succeeds 67 percent of the time, a knife-armed
rapist 51 percent. Only 7 percent of rapists even use guns. Thus,
a fully effective gun ban would disarm only a small fraction of
rapists, and even those rapists could use knives almost as
effectively. In fact, a complete gun ban would make rape all the
easier, with guaranteed unarmed victims. As discussed above, one
of the most effective self-defense programs in modern U.S.
history trained 2,500 Orlando women in firearms use and produced
an 88 percent drop in the rape rate.
One objection to women arming themselves for self-defense is
that the rapist will take away the gun and use it against the
victim. This argument (like most other arguments about why women
should not resist rape) is based on stereotypes, and proponents
of the argument seem unable to cite any real world examples.
Instead of assuming that all women are incapable of using a
weapon effectively, it would be more appropriate to leave the
decision up to individual women. Certainly the cases of women,
even grandmothers, using firearms to stop rapists are legion. If
a woman is going to resist, she is far better off with a gun than
with her bare hands, Mace, or a knife. Mace fires a pinpoint
stream, not a spray, and the challenge of using it to score a
bull's-eye right on a rapist's cornea would daunt even Annie
Oakley. And it is more difficult to fight a bigger person with
one's hands or with a knife than with a handgun--especially a
small, light handgun that can be deployed quickly, and which has
a barrel that is too short for the attacker to grab.
THE SECOND AMENDMENT AND THE SOURCES OF POLITICAL POWER
Regardless of the utility or disutility of guns, laws about
them are circumscribed by the Constitution. The Second Amendment
means what it says: "A well-regulated Militia, being necessary to
the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed." If we are to live by the law,
our first step must be to obey the Constitution.
ATTITUDES OF THE FOUNDING FATHERS TOWARD GUNS
The leaders of the American Revolution and the early
republic were enthusiastic proponents of guns and widespread gun
ownership. The Founding Fathers were unanimous about the
importance of an armed citizenry able to overthrow a despotic
government. Virtually all the political philosophers whose ideas
were known to the Founders--such as Plato, Aristotle, Cicero,
Machiavelli, Montesquieu, Beccaria, Locke, and Sidney--agreed
that a republic could not long endure without an armed citizenry.
Said Patrick Henry, "Guard with jealous attention the public
liberty. Suspect every one who approaches that jewel.
Unfortunately, nothing will preserve it but downright force.
Whenever you give up that force, you are ruined. . . . The great
object is that every man be armed. . . . Everyone who is able may
have a gun." Thomas Jefferson's model constitution for Virginia
declared, "No freeman shall be debarred the use of arms in his
own lands or tenements." Jefferson's colleague John Adams spoke
for "arms in the hands of citizens, to be used at individual
discretion . . . in private self-defense."
THE ORIGINAL MEANING OF THE SECOND AMENDMENT
The only commentary available to Congress when it ratified
the Second Amendment was written by Tench Coxe, one of James
Madison's friends. Explained Coxe: "The people are confirmed by
the next article of their right to keep and bear their private
arms."
Madison's original structure of the Bill of Rights did not
place the amendments together at the end of the text of the
Constitution (the way they were ultimately organized); rather, he
proposed interpolating each amendment into the main text of the
Constitution, following the provision to which it pertained. If
he had intended the Second Amendment to be mainly a limit on the
power of the federal government to interfere with state
government militias, he would have put it after Article 1,
section 8, which granted Congress the power to call forth the
militia to repel invasion, suppress insurrection, and enforce the
laws; and to provide for organizing, arming, and disciplining the
militia. Instead, Madison put the right to bear arms amendment
(along with the freedom of speech amendment) in Article I,
section 9--the section that guaranteed individual rights such as
habeas corpus. Finally, in ratifying the Bill of Rights, the
Senate rejected a change in the Second Amendment that would have
limited it to bearing arms "for the common defense."
Gun control advocates argue that the Second Amendment's
reference to the militia means that the amendment protects only
official uniformed state militias (the National Guard). It is
true that the Framers of the Constitution wanted the state
militias to defend the United States against foreign invasion, so
that a large standing army would be unnecessary. But those
militias were not uniformed state employees. Before independence
was even declared, Josiah Quincy had referred to "a well-
regulated militia composed of the freeholder, citizen and
husbandman, who take up their arms to preserve their property as
individuals, and their rights as freemen." "Who are the Militia?"
asked George Mason of Virginia, "They consist now of the whole
people." The same Congress that passed the Bill of Rights,
including the Second Amendment and its militia language, also
passed the Militia Act of 1792. That act enrolled all able-bodied
white males in the militia and required them to own arms.
Although the requirement to arm no longer exists, the
definition of the militia has stayed the same; section 311(a) of
volume 10 of the United States Code declares, "The militia of the
United States consists of all able-bodied males at least 17 years
of age and . . . under 45 years of age." The next section of the
code distinguishes the organized militia (the National Guard)
from the "unorganized militia." The modern federal National Guard
was specifically raised under Congress's power to "raise and
support armies," not its power to "Provide for organizing, arming
and disciplining the Militia."
Indeed, if words mean what they say, it is impossible to
interpret the Second Amendment as embodying only a "collective"
right. As one Second Amendment scholar observed, it would be odd
for the Congress that enacted the Bill of Rights to use "right of
the people" to mean an individual right in the First, Fourth, and
Ninth Amendments, but to mean a state's right in the Second
Amendment. After all, when Congress meant to protect the states,
Congress wrote "the States" in the Tenth Amendment. Moreover,
several states included a similar right to bear arms guarantee in
their own constitutions. If the Second Amendment protected only
the state uniformed militias against federal interference, a
comparable article would be ridiculous in a state constitution.
MODERN INTERPRETATIONS OF THE SECOND AMENDMENT
For the Constitution's first century, there was no question
that the Second Amendment prohibited federal interference with
the individual right to bear arms. During this period the Supreme
Court did not view any articles of the Bill of Rights, the Second
Amendment included, as applicable to the states. Accordingly, the
Second Amendment, like the First Amendment and all the others,
was construed by the Supreme Court to place no limits on state
interference with individual rights. (Some state courts, however,
treated the Second Amendment as binding on the states.)
In 1906 the Kansas Supreme Court announced in dicta that the
Second Amendment did not guarantee an individual right to bear
arms but only guarded official state militias against federal
interference. Over the following decades, the collectivist state
militia theory was accepted by many in the intellectual community
but never by the American population as a whole. Today, 89
percent of Americans believe that as citizens they have a right
to own a gun, and 87 percent believe the Constitution guarantees
them a right to keep and bear arms. Recently, the collectivist
theory has begun to lose its standing even in the intellectual
community. In the past two decades, scholarship of the individual
rights view has dominated the law reviews, especially the major
ones. Indeed, only one article published in a top-50 law review
argues that individual citizens are not protected by the Second
Amendment. The Senate Subcommittee on the Constitution
investigated the historical evidence and concluded that the
individual rights interpretation was unquestionably the intent of
the authors of the Second Amendment, and was intended by the
authors of the Fourteenth Amendment to be applied against the
states. Stephen Halbrook's That Every Man Be Armed, the first
book to deal in depth with the historical background of the
Second Amendment, also endorses the individual rights
interpretation.
Sometimes writers in popular magazines claim that the
Supreme Court has endorsed the collective theory. They are wrong.
Twice in the 19th century, the Court heard cases involving state
or private interference with gun use. Both times the Court took
the now-discredited view that the Bill of Rights did not restrict
state governments and therefore the Second Amendment offered no
protection from state firearms laws. The collective theory was
not even invented until the early 20th century; neither of the
Court's 19th-century cases endorsed it.
The next (and last) time the Court ruled on the Second
Amendment was 1939. In United States v. Miller the Court held
that since there was no evidence before that Court that sawed-off
shotguns are militia-type, militarily useful weapons, the Court
could not conclude that sawed-off shotguns were protected by the
Second Amendment. As for the meaning of "a well-regulated
Militia," the Court noted that to the authors of the Second
Amendment, "The Militia comprised all males physically capable of
acting in concert for the common defense. . . . Ordinarily when
called for service these men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the
time." Since the 1930s the Court has not had much to say about
the Second Amendment. It denied a petition to review the Morton
Grove case, in which a suburb's handgun ban was upheld. (The
lower court had gotten its result by stating that the intent of
the Framers of the Second Amendment was "irrelevant" to the
amendment's meaning.) As the Supreme Court has stated, though, a
denial of review has no precedential effect. Had the Court wanted
the Morton Grove case to apply nationally, the Court could have
issued a summary affirmance. More indicative of the modern
Court's view of the Second Amendment is Justice Powell's opinion
for the Court in Moore v. East Cleveland, where he listed "the
freedom of speech, press, and religion; the right to keep and
bear arms; the freedom from unreasonable searches and seizures"
as part of the "full scope of liberty" guaranteed by the
Constitution.
MODERN UTILITY
Some gun control advocates argue that the Second Amendment's
goal of an armed citizenry to resist foreign invasion and
domestic tyranny is no longer valid in light of advances in
military technology. Former attorney general Ramsey Clark
contended that "it is no longer realistic to think of an armed
citizenry as a meaningful protection."
But during World War II, which was fought with essentially
the same types of ground combat weapons that exist today, armed
citizens were considered quite important. After Pearl Harbor the
unorganized militia was called into action. Nazi submarines were
constantly in action off the East Coast. On the West Coast, the
Japanese seized several Alaskan islands, and strategists wondered
if the Japanese might follow up on their dramatic victories in
the Pacific with an invasion of the Alaskan mainland, Hawaii, or
California. Hawaii's governor summoned armed citizens to man
checkpoints and patrol remote beach areas. Maryland's governor
called on "the Maryland Minute Men," consisting mainly of
"members of Rod and Gun Clubs, of Trap Shooting Clubs and similar
organizations," for "repelling invasion forays, parachute raids,
and sabotage uprisings," as well as for patrolling beaches, water
supplies, and railroads. Over 15,000 volunteers brought their own
weapons to duty. Gun owners in Virginia were also summoned into
home service. Americans everywhere armed themselves in case of
invasion. After the National Guard was federalized for overseas
duty, "the unorganized militia proved a successful substitute for
the National Guard," according to a Defense Department study.
Militiamen, providing their own guns, were trained in patrolling,
roadblock techniques, and guerilla warfare. The War Department
distributed a manual recommending that citizens keep "weapons
which a guerilla in civilian clothes can carry without attracting
attention. They must be easily portable and easily concealed.
First among these is the pistol." In Europe, lightly armed
civilian guerrillas were even more important; the U.S. government
supplied anti-Nazi partisans with a $1.75 analogue to the zip gun
(a very low quality handgun).
Of course, ordinary citizens are not going to grab their
Saturday night specials and charge into oncoming columns of
tanks. Resistance to tyranny or invasion would be a guerrilla
war. In the early years of such a war, before guerrillas would be
strong enough to attack the occupying army head on, heavy weapons
would be a detriment, impeding the guerrillas' mobility. As a war
progresses, Mao Zedong explained, the guerrillas would use
ordinary firearms to capture better small arms and eventually
heavy equipment.
The Afghan mujahedeen have been greatly helped by the new
Stinger antiaircraft missiles, but they had already fought the
Soviets to a draw using a locally made version of the outdated
Lee-Enfield rifle. One clear lesson of this century is that a
determined guerrilla army can wear down an occupying force until
the occupiers lose spirit and depart--just what happened in
Ireland in 1920 and Palestine in 1948. As one author put it:
"Anyone who claims that popular struggles are inevitably doomed
to defeat by the military technologies of our century must find
it literally incredible that France and the United States
suffered defeat in Vietnam . . . that Portugal was expelled from
Angola; and France from Algeria."
If guns are truly useless in a revolution, it is hard to
explain why dictators as diverse as Ferdinand Marcos, Fidel
Castro, Idi Amin, and the Bulgarian communists have ordered
firearms confiscations upon taking power.
Certainly the militia could not defend against
intercontinental ballistic missiles, but it could keep order at
home after a limited attack. In case of conventional war, the
militia could guard against foreign invasion after the army and
the National Guard were sent into overseas combat. Especially
given the absence of widespread military service, individual
Americans familiar with using their private weapons provide an
important defense resource. Canada already has an Eskimo militia
to protect its northern territories.
The United States is virtually immune from foreign invasion,
but as the late vice president Hubert Humphrey explained,
domestic dictatorship will always be a threat: "The right of
citizens to bear arms is just one more guarantee against
arbitrary government, one more safeguard against the tyranny
which now appears remote in America, but which historically has
proved to be always possible."
The most advanced technology in the world could not keep
track of guerrilla bands in the Rockies, the Appalachians, the
great swamps of the South, or Alaska. The difficulty of fighting
a protracted war against a determined popular guerrilla force is
enough to make even the most determined potential dictator think
twice.
The Second Amendment debate goes to the very heart of the
role of citizens and their government. By retaining arms,
citizens retain the power claimed in the Declaration of
Independence to "alter or abolish" a despotic government. And
citizens retain the power to protect themselves from private
assault. Ramsey Clark asked the question, "What kind of society
depends on private action to defend life and property?" The
answer is a society that trusts its citizenry more than the
police and the army and knows that ultimate authority must remain
in the hands of the people.
PARTICULAR FORMS OF GUN CONTROL
The foregoing discussion has focused on gun control in
general. Many people who are skeptical about a complete ban on
all guns nevertheless favor some sort of intermediate controls,
which would regulate but not ban guns or ban only certain types
of guns. While some of these proposals seem plausible in the
abstract, closer examination raises serious doubts about their
utility.
REGISTRATION
Gun registration is essentially useless in crime detection.
Tracing the history of a recovered firearm generally leads to the
discovery that it was stolen from a legal owner and that its
subsequent pattern of ownership is unknown.
Analogies are sometimes drawn between gun registration and
automobile registration. Indeed, a majority of the public seems
to favor gun registration not because a reduction in crime is
expected but because automobiles and guns are both intrinsically
dangerous objects that the government should keep track of. The
analogy, though, is flawed. Gun owners, unlike drivers, do not
need to leave private property and enter a public roadway. No one
has ever demanded that prospective drivers prove a unique need
for a car and offer compelling reasons why they cannot rely
solely on public transportation. No Department of Motor Vehicles
has ever adopted the policy of reducing to a minimum the number
of cars in private hands. Automobile registration is not
advocated or feared as a first step toward confiscation of all
automobiles. However, registration lists did facilitate gun
confiscation in Greece, Ireland, Jamaica, and Bermuda. The
Washington, D.C., city council considered (but did not enact) a
proposal to use registration lists to confiscate all shotguns and
handguns in the city. When reminded that the registration plan
had been enacted with the explicit promise to gun owners that it
would not be used for confiscation, the confiscation's sponsor
retorted, "Well, I never promised them anything!" The Evanston,
Illinois, police department also attempted to use state
registration lists to enforce a gun ban.
Unlike automobiles, guns are specifically protected by the
Constitution, and it is improper to require that people
possessing constitutionally protected objects register themselves
with the government, especially when the benefits of registration
are so trivial. The Supreme Court has ruled that the First
Amendment prohibits the government from registering purchasers of
newspapers and magazines, even of foreign Communist propaganda.
The same principle should apply to the Second Amendment: the
tools of political dissent should be privately owned and
unregistered.
GUN LICENSING
Although opinion polls indicate that most Americans favor
some form of gun licensing (for the same reasons they approve of
auto licensing), 69 percent of Americans oppose laws giving the
police power to decide who may or may not own a firearm. That is
exactly what licensing is. Permits tend to be granted not to
those who are most at risk but to those with whom the police get
along. In St. Louis, for example, permits have routinely been
denied to homosexuals, nonvoters, and wives who lack their
husbands' permission. Other police departments have denied
permits on the basis of race, sex, and political affiliation, or
by determining that hunting or target shooting is not an adequate
reason for owning a handgun.
Class discrimination pervades the process. New York City
taxi drivers, who are more at risk of robbery than anyone else in
the city, are denied gun permits, since they carry less than
$2,000 in cash. (Of course, most taxi drivers carry weapons
anyway, and only rookie police officers arrest them for doing
so.) As the courts have ruled, ordinary citizens and storeowners
in the city may not receive so-called carry permits because they
have no greater need for protection than anyone else in the city.
Carry permits are apparently reserved for New Yorkers such as the
Rockefellers, John Lindsay, the publisher of the New York Times,
(all of them gun control advocates), and the husband of Dr. Joyce
Brothers. Other licensees include an aide to a city councilman
widely regarded as corrupt, several major slumlords, a Teamsters
Union boss who is a defendant in a major racketeering suit, and a
restaurateur identified with organized crime and alleged to
control important segments of the hauling industry--hardly proof
that licensing restricts gun ownership to upstanding citizens.
The licensing process can be more than a minor imposition on
the purchaser of a gun. In Illinois the automated licensing
system takes 60 days to authorize a clearance. Although New
Jersey law requires that the authorities act on gun license
applications within 30 days, delays of 90 days are routine; some
applications are delayed for years, for no valid reason.
Licensing fees may be raised so high as to keep guns out of the
hands of the poor. Until recently Dade County, Florida, which
includes Miami, charged $500 for a license; nearby Monroe County
charged $2,000. These excessive fees on a means of self-defense
are the equivalent of a poll tax. Or licensing may simply turn
into prohibition. Mayor Richard Hatcher of Gary, Indiana, ordered
his police department never to give anyone license application
forms. The police department in New York City has refused to
issue legally required licenses, even when commanded by courts to
do so. The department has also refused to even hand out blank
application forms.
In addition to police abuse of licensing discretion, there
is also the problem of the massive data collection that would
result from a comprehensive licensing scheme. For example, New
York City asks a pistol permit applicant:
Have you ever . . .
Been discharged from any employment?
Been subpoenaed to, or attended [!] a hearing or
inquiry conducted by any executive, legislative,
or judicial body?
Been denied appointment in a civil service system,
Federal, State, Local?
Had any license or permit issued to you by any
City, State, or Federal Agency?
Applicants for a business premises gun permit in New York
City must also supply personal income-tax returns, daily bank
deposit slips, and bank statements. Photocopies are not
acceptable. A grocer in the South Bronx may wonder what the size
of his bank deposits has to do with his right to protection.
The same arguments that lead one to reject a national
identity card apply to federal gun licensing. A national
licensing system would require the collection of dossiers on half
the households in the United States (or a quarter, for handgun-
only record keeping).
Implementing national gun licensing would make introduction
of a national identity card more likely. Assuming that a large
proportion of American families would become accustomed to the
government collecting extensive data about them, they would
probably not oppose making everyone else go through the same
procedures for a national identity card.
Finally, licensing is not going to stop determined
criminals. The most thorough study of the weapons behavior of
felony prisoners (the Wright-Rossi project funded by the National
Institute of Justice) found that five-sixths of the felons did
not buy their handguns from a retail outlet anyway. (Many of the
rest used a legal, surrogate buyer, such as a girlfriend.) As
noted above, felons have little trouble buying stolen guns on the
streets. In sum, it remains to be proven that gun licensing would
significantly reduce crime. Given the very clear civil liberties
problems with licensing, it cannot be said that the benefits
outweigh the costs.
WAITING PERIODS
In the 1960s and 1970s bills to implement federal gun
registration and licensing were soundly defeated in Congress,
never to resurface as politically viable proposals. The broadest
federal gun legislation currently under consideration is a
national waiting period for gun purchases. Senator Howard
Metzenbaum (D-Ohio) has introduced legislation to require a
national seven-day waiting period for handgun transfers, which
would be permitted only after police officials had an opportunity
to check an applicant's background. Because the bill applies to
all gun transfers, it would even compel a wife to get police
permission before receiving a handgun as a gift from her husband.
However, statistical evidence shows no correlation between
waiting periods and homicide rates. The image of a murderously
enraged person leaving home, driving to a gun store, finding one
open after 10 p.m. (when most crimes of passion occur), buying a
weapon, and driving home to kill is a little silly. Of course, a
licensing system is bound to deny some purchasers an opportunity
to buy, but only the most naive rejected purchaser would fail to
eventually find a way to acquire an illegal weapon.
In addition, waiting periods can be subterfuges for more
restrictive measures. Former Atlanta mayor Maynard Jackson
proposed a six-month waiting period--a long time to wait for a
woman who is in immediate danger of attack from her ex-boyfriend.
Senator Metzenbaum's bill would give the police de facto
licensing powers, even in states that have explicitly considered
and rejected a police-run licensing system.
MANDATORY SENTENCING
Those who want to make simple gun possession a crime
frequently call for a mandatory prison sentence for unlawful
possession of a gun. The National Handgun Information Center
demands a one-year mandatory minimum sentence for possession of a
handgun during "any crime" (apparently including drunk driving or
possession of a controlled substance). Detroit recently enacted a
30-day mandatory sentence for carrying an unlicensed gun. None of
those proposals is a step toward crime control.
Massachusetts's Bartley-Fox law, with a mandatory one-year
sentence for carrying an unlicensed gun, has apparently reduced
the casual carrying of firearms but has not significantly
affected the gun use patterns of determined criminals. Of the
Massachusetts law, a Department of Justice study concluded that
"the effect may be to penalize some less serious offenders, while
the punishment for more serious offenses is postponed, reduced,
or avoided altogether." New York enacted a similar law and saw
handgun homicides rise by 25 percent and handgun robberies 56
percent during the law's first full year.
The effects of laws that impose mandatory sentences are
sometimes brutally unfair. In New Mexico, for example, one judge
resigned after being forced to send to prison a man with a clean
record who had brandished a gun during a traffic dispute. One of
the early test cases under the Massachusetts Bartley-Fox law was
the successful prosecution of a young man who had inadvertently
allowed his gun license to expire. To raise money to buy his high
school class ring, he was driving to a pawn shop to sell his gun.
Stopping the man for a traffic violation, a policeman noticed the
gun. The teenager spent the mandatory year in jail with no
parole. Another Massachusetts case involved a man who had started
carrying a gun after a co-worker began threatening to murder him.
The Civil Liberties Union of Massachusetts had opposed Bartley-
Fox precisely because of the risk that innocent people would be
sent to jail.
The call for mandatory jail terms for unlicensed carrying is
in part an admission by the gun control advocates that judges
reject their values and instead base sentences on community
norms. A Department of Justice survey of how citizens regard
various crimes found that carrying an illegal gun ranked in
between indecent exposure and cheating on taxes--hardly the stuff
of a mandatory year in jail. The current judicial/community
attitude is appropriate. In a world where first-time muggers
often receive probation, it is morally outrageous to imprison for
one year everyone who carries a firearm for self-defense.
As a general matter of criminal justice, mandatory sentences
are inappropriate. One of the most serious problems with any kind
of mandatory sentencing program is that its proponents are rarely
willing to fund the concomitant increase in prison space. It is
very easy for legislators to appear tough on crime by passing
draconian sentencing laws. It is much more difficult for them to
raise taxes and build the prison space necessary to give those
laws effect. Instead of more paper laws, a more effective crime-
reduction strategy would be to build enough prisons to keep hard-
core violent criminals off the streets for longer periods. If
there are to be mandatory sentences for gun crimes, the mandatory
term should apply only to use of a firearm in a violent crime.
HANDGUN BANS
A total ban on the private possession of handguns is the
ultimate goal of a Washington lobby called the National Coalition
to Ban Handguns. Unlike some other gun control measures, a ban
lacks popular support; only one-sixth to one-third of the
citizenry favors such a measure.
Handgun-ban proponents sometimes maintain that handguns have
no utility except to kill people. The statement is patently wrong
and typical of how little the prohibitionists understand the
activities they condemn. Although self-defense is the leading
reason for handgun purchases, about one-sixth of handgun owners
bought their gun primarily for target shooting, and one-seventh
bought the gun primarily as part of a gun collection. In
addition, hunters frequently carry handguns as a sidearms to use
against snakes or to hunt game.
Cost-benefit analysis hardly offers a persuasive case for a
ban. One recent study indicates that handguns are used in roughly
645,000 self-defense actions each year--a rate of once every 48
seconds. (As noted above, most defensive uses simply involving
brandishing the gun.) The number of self-defense uses is at least
equal to, and probably more than, the number of times handguns
are used in a crime. Most homicides (between 50 and 84 percent)
occur in circumstances where a long gun could easily be
substituted. Besides, sawing off a shotgun and secreting it under
a coat is simple. Many modern submachine guns are only 11 to 13
inches long, and an M-1 carbine can be modified to become
completely concealable. Since long guns are so much deadlier than
handguns, an effective handgun ban would result in at least some
criminals switching to sawed-off shotguns and rifles, perhaps
increasing fatalities from gun crimes. In the Wright and Rossi
prisoner survey, 75 percent of "handgun predators" said they
would switch to sawed-off shoulder weapons if handguns were
unavailable.
If families had to give up handguns and replaced them with
long guns, fatalities from gun accidents certainly would
increase. Since handguns have replaced long guns as a home
defense weapon over the last 50 years, the firearm accident
fatality rate has declined. The overwhelming majority of
accidental gun deaths are from long guns.
Handguns are also much better suited for self-defense,
especially in the home, than are long guns, which are more
difficult to use in a confined setting. Rifle bullets are apt to
penetrate their intended target and keep on going through a wall,
injuring someone in an adjacent apartment. Further, the powerful
recoil of long guns makes them difficult for women, frail people,
or the elderly to shoot accurately. Lastly, a robber or assailant
has a much better chance of eventual recovery if he is shot with
a handgun rather than a long gun.
BANNING SATURDAY NIGHT SPECIALS
If a Saturday night special is defined as any handgun with a
barrel length less than 3 inches, a caliber of .32 or less, and a
retail cost of under $100, there are roughly six million such
guns in the United States. Each year, between 1 and 6 percent of
them are employed in violent gun crimes, a far higher percentage
of criminal misuse than for other guns. Although opinion polls
find the majority of Americans in favor of banning Saturday night
specials, the practical case for banning these weapons is not
compelling.
Criminals do prefer easily concealable weapons; roughly 75
percent of all crime handguns seized or held by the police have
barrel lengths of 3 inches or less. At least for serious felons,
though, low price is a very secondary factor in choice of
firearm. Experienced felons prefer powerful guns to cheap ones.
The Wright and Rossi survey, which focused on hardened criminals,
found that only 15 percent had used a Saturday night special as
their last gun used in a crime. It should not be surprising that
serious criminals prefer guns as powerful as those carried by
their most important adversaries, the police.
It is often said that a Saturday night special is "the kind
of gun that has only one purpose: to kill people." Again, this is
untrue. Such guns are commonly used as hunting sidearms, referred
to as "trail guns" or "pack guns." One does not need long-range
accuracy to kill a snake, and lightness and compactness are
important. Nor can all hunters afford $200 for a quality sidearm.
More importantly, inexpensive handguns are used for self-defense
by the poor.
There is no question that laws against Saturday night
specials are leveled at blacks. The first such law came in 1870
when Tennessee attempted to disarm freedmen by prohibiting the
sale of all but "Army and Navy" handguns. Ex-confederate soldiers
already had their military handguns, but ex-slaves could not
afford high-quality weapons.
The situation today is not very different. As the federal
district court in Washington, D.C., has noted, laws aimed at
Saturday night specials have the effect of selectively disarming
minorities, who, because of their poverty, must live in crime-
ridden areas. Little wonder that the Congress on Racial Equality
filed an amicus curiae brief in a 1985 suit challenging the
Maryland Court of Appeals' virtual ban on low-caliber handguns.
As the Wright and Rossi National Institute of Justice study
concluded:
The people most likely to be deterred from
acquiring a handgun by exceptionally high
prices or by the nonavailability of certain
kinds of handguns are not felons intent on
arming themselves for criminal purposes (who
can, if all else fails, steal the handgun
they want), but rather poor people who have
decided they need a gun to protect themselves
against the felons but who find that the
cheapest gun in the market costs more than
they can afford to pay.
Indeed, one wonders what a ban on these low-caliber guns
would accomplish. Criminals who use them could easily take up
higher-powered guns. Some criminals might switch to knives, but
severe knife wounds are just as deadly (and almost as easy to
inflict at close range, where most robberies occur).
If a ban on Saturday night specials failed to reduce crime,
is it likely that its proponents would admit defeat and repeal
the law? Or would they conclude that a ban on all handguns was
what was really needed? Once criminals started substituting
sawed-off shotguns, would the new argument be that long guns too
must be banned? That is the point that gun control in Great
Britain is approaching, after beginning with a seemingly
innocuous registration system for handguns.
CONCLUSION
In 1911 state Senator Timothy Sullivan of New York promised
that if New York City outlawed handgun carrying, homicides would
decline drastically. The year the Sullivan law took effect,
however, homicides increased and the New York Times pronounced
criminals "as well armed as ever." Gun control does not reduce
crime; gun ownership does. Gun control insists that citizens rely
on the authorities. Gun owners know better than to put their
lives and liberty in the hands of 911 and the police. Gun control
and the Bill of Rights cannot coexist. The advocates of gun
control believe that government agents are more trustworthy than
ordinary citizens. The authors of the Second Amendment believed
just the opposite.
--
Larry Cipriani [lawrence v cipriani] at [att.com] or attmail!lcipriani