Newsgroups: talk.politics.guns From: "Paul Hager" <[h--ge--p] at [cs.indiana.edu]> Subject: More ICLU debate on 2nd -- Kates' response ... Summary: Continuation of the "collective right" debate Date: Mon, 4 Jul 1994 11:17:52 -0500 Following is Don Kates' response to the "collective right" memo which I posted a couple of days ago. Netters are urged to review the previous posting if they wish to refresh their memories regarding the arguments in the "collective right" memo. I also included a short bio of Kates in my response so I won't bother to repeat it here. -----------------------Kates' response--------------------------- RESPONSE TO "COLLECTIVE RIGHT" MEMO by Don Kates [as edited by Karen A. Wyle] [Editor's note: Paul Hager provided Kates with Alex Tanford's memo stating the "collective right" position, just before Kates was due to leave on a speaking tour. Kates provided Hager with what he described as "a more or less stream of consciousness evaluation," and gave him permission to edit it. At Hager's request, I have edited Kates' response (lightly) for grammar, brevity and organization.] June 18, 1994 Much of the content of this response will be taken from the amicus brief which 20 law professors and I just filed in the Supreme Court (United States v. Lopez). Unless otherwise stated, references for all statements herein will be found in my article at 83 MICH. L. REV. 203 (1983). My English historical discourse derives from earlier articles by Joyce Malcolm, but I just don't have time to look up the citations. QUICK SUMMARY This is a very cleverly done statement of the collective rights position. That being said, it also: a) relies upon numerous factual errors; b) evades the central issue; c) consistently misstates the law; and d) embraces a view of constitutional history which is not only substantially wrong, but contradicts and undermines everything the ACLU stands for. Finally, the memo's focus is wholly destructive. The purpose of constitutional interpretation is to describe what a provision of the Constitution does, says, accomplishes. In contrast, the memo's only purpose is to claim what the Amendment doesn't do, i.e., guarantee individuals the right to arms. There is no concern with producing a coherent discussion of what it does do because, after all, the memo doesn't care about that. It is not surprising that the "interpretation" it proposes is a non-interpretation, a mere negation. [Editor's note: the following sections are not in the order suggested by the summary, but as the ordering below seemed appropriate, I have let it stand.] "KNOCK DOWN THE LAWS" The memo does not acknowledge that the effect of its approach would be to open the door to conservative opponents of everything the ACLU and the Bill of Rights stand for. That is the inevitable result of its claim that constitutional rights may be narrowed, undermined or destroyed if we today deem them outmoded. For reasons I shall hereinafter support, the courts' only authority to take changed conditions into account is to determine whether they make it necessary to expand a constitutional right's parameters so that its function may be fulfilled under modern conditions. But the only mechanism for contracting or narrowing the scope of rights is by constitutional amendment.1 The issue is not whether a majority (at least of liberals) think the concepts underlying the Second Amendment are outmoded. It is trite but (apparently) necessary to emphatically reaffirm that the words of the Constitution stand until repealed. For anyone who doubts it, I shall be happy to supply historical citations for the fact that the 19th Amendment was enacted under the belief that the moral superiority of women is such that admitting them to the franchise would stamp out electoral and political corruption. Does our current non-belief in this obliterate from the Constitution the words "The right ... to vote shall not be denied ... on account of sex"? May the 15th Amendment be ignored or diminished if a majority of Americans come to believe that modern social science has proven blacks to be intellectually inferior and their votes degrading to the voting process? Only because of its myopic viewpoint does the memo not recoil in horror from the consequences of its proposition that the plain intent of a constitutional provision may be overcome by "logic, social purpose, the modern context, the recent history of violence among citizens, social necessity and our collective recent experiences...." With apologies to Sir Thomas More and his warning of what the devil could do if we "knock[ed] down all the laws of England" to get at the devil, consider how someone like William J. Bennett might use the memo's proposal to contract rights against the guarantee of separation of church and state. Putting my own words in Mr. Bennett's mouth, I offer the following speech for him: 1. The historical and textual evidence that the First Amendment was intended to bar laws embracing Christianity in general (as opposed to sectarianism) is far weaker than the evidence which has lead Van Alstyne, Levinson, Amar and most other analysts of the issue to endorse the individual rights view of the Second Amendment. 2. In any case, in constitutional interpretation, original intent must yield to "logic, social purpose, the modern context, the recent history of violence among citizens, social necessity and our collective recent experiences...." There is a great debate over "gun control" in which the media affirms its efficacy, while criminologists generally disagree. [See citations in appendix.] But everyone agrees that the real cause of violence and loss of social cohesion is failure to convey moral values, the destruction of socio-cultural norms. 3. Liberals may not agree that this reflects the triumph of Godless secular humanism in public life and particularly in our schools. Liberals see salvation in economic and social programs which would give minority and disadvantaged youth an incentive to work, a stake in the social order they are expected to respect and support. Indeed, I agree. 4. But I also agree, and so do the majority of Americans, that an important contribution can be made by a comprehensive embrace of Christianity and its values in every aspect of public life, especially in our schools and in special programs for the poor and disadvantaged. Indeed the poor themselves are overwhelmingly Christian and overwhelmingly support the notion of governmental promotion of Christianity, both as a means of preventing crime through instilling values, and in general in our "nation under God." 5. The First Amendment forbids the promotion of any particular Christian sect. But in this era of rampant crime and disorder it ought not to be interpreted to preclude the compelling necessity of our nation under God systematically promoting Christianity in general, not only by school prayer and reverent display of every kind of Christian symbol, but by promoting and financing Christian missionary work among the poor and conditioning the receipt of public benefit on religious observance -- so long as adherence is not required to any particular church or sect. Let me further dream up a quote to express the Pat Buchanan-David Duke approach to crime control and constitutional limitations thereon: 1. Violence runs rampant in our society because a relatively small number of career criminals are not deterred or prevented from victimizing the people over and over again. 2. The simple cure for this is our much cheaper version of "3 strikes and you're out." After he is convicted of his third violent felony, the court orders as punishment that the felon be humanely quadripleged by surgical procedure under anesthetic. The quadriplegic may then be released back into society with the assurance that he will victimize no more. 3. Don't talk to us about the Eighth Amendment. Maybe its authors would have deemed this "cruel and unusual punishment." But times have changed. After all, they punished violent felons with death, so there were no three-time convicted offenders. We don't, a change in condition which leaves us free to substitute a more merciful penalty. 4. PLEASE don't bore us with a lot of crap about the meaning of the Bill of Rights. That went out the window when we realized that its meaning changes any time a majority think that its provisions are outmoded. EXPAND, NOT CONTRACT Such is the result when it is claimed that the clear meaning of a constitutional provision can be ignored in the name of "logic, social purpose, the modern context, the recent history of violence among citizens, social necessity and our collective recent experiences...." In other words, if liberals are willing to knock down the Bill of Rights in order to avoid a provision they dislike, they may discover to their cost that two can play that game. We in the ACLU can be thankful that the Court has never been willing to avow or accept that formally nor, in modern times at least, in fact. On the contrary it has repeatedly avowed that the Bill of Rights must be upheld in the face of majority opposition2 even though phrased in terms of a claim that they are outmoded in the face of modern conditions. As Justice Frankfurter responded when the Supreme Court's self-incrimination holdings were assailed as medieval technicalism inconsistent with modern government's need to detect criminals and subversives: If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion. -- Ullmann v. United States, 350 U.S. 422, 427-28, 76 S.Ct. 497, 100 L. Ed. 511 (1956). Courts are not moved by claims that passage of time has nullified a constitutional right or requires alternative or inconsistent policies. The most obvious example is the Seventh Amendment right to jury trial in civil cases involving more than $20.00. The Court not only applies this to all cases that literally fall within that standard, it applies it to new causes of action that did not exist in 1791 so long as they involve common law principles or relate back to common law roots. Of more importance to the ACLU are First Amendment precedents. When the First Amendment was adopted, anyone with a little capital could start up a newspaper, but establishing a newspaper today is impossible for all but the very wealthy. That change of conditions was adduced in support of a law requiring newspapers to accord persons they attack a right of reply in Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 248-54, 94 S.Ct. 2831 (1974). But the Court dismissed such considerations as conflicting with the express provisions of the First Amendment and judicial interpretation thereof over the years. Id. 418 U.S. at 254, 41 L. Ed.2d at 739. Compare Minneapolis Star v. Minnesota Comm. of Rev., 460 U.S. 575, 583-4, n. 6, 103 S.Ct. 1365, 75 L. Ed.2d 295, 304-5 (1983) (though such evidence is rarely available, when we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone.). EVASION The memo's approach is a systematic evasion of the crucial issue. Seen in its constitutional context, the language of the Second Amendment unmistakeably embraces a personal right to arms.3 Moreover, the immediate legislative history demonstrates an unmistakeable intent to embrace a personal right to arms. Congress had before it when it voted on the Bill of Rights a commentary on them by the Federalist writer Tench Coxe; that commentary, which was specifically endorsed by James Madison, author of the Bill of Rights, defined the purpose of the Second Amendment as to guarantee people against the confiscation of "their private arms." [See discussion of this and the identical Anti-Federalist interpretation in my "Original Meaning," 82 MICH. L. REV. supra at 223-4.] Significantly, Madison's own proposal for integrating the Bill of Rights into the Constitution was not to add them at the end (as they have been) but to interlineate them into the portions of the original Constitution they affected or to which they related. If he had thought the central purpose of the Second Amendment revolved around the militia he would have interlineated it in Art. I, S 8, near or after cl. 16. Instead, he planned to insert the right to arms with freedom of religion, the press and other personal rights in S 9 following the rights against bills of attainder and ex post facto laws. ["Original Meaning", 82 MICH. L. REV. supra at 223.]4 Though the text also indicates a desire to promote the militia, that is exactly what the individiual right view does: In short, one purpose of the Founders having been to guarantee the arms of the militia, they accomplished that purpose by guaranteeing the arms of the individuals who made up the militia.5 Against this, it simply will not do to point out that the militia had social and political aspects and, in general, that the right to arms had other aspects than simple individual defense in the minds of the Founders and their intellectual progenitors. What opponents of the individual right must do is not adduce additional purposes but demonstrate purposes which negate that the Amendment protects an individual right to arms. By the same token the Anti-Federalists, though they strongly supported the Amendment, were under no illusion that it dealt with their opposition to a standing army and their other concerns with the military-militia provisions of the Constitution. On the contrary, they attempted to circumscribe federal military-militia powers by a series of additional amendments, but these were defeated. 82 MICH. L. REV. 225. Strikingly, the memo doesn't even try to deal with the text or immediate legislative history which I have outlined -- and which is only a small part of the material supporting the individual right view which will be found in my 82 MICHIGAN LAW REVIEW article. A fortiori, the memo fails to provide evidence that the Amendment was inspired by purposes that contradict or diminish its plain words embracing the individual right to arms. SELF DEFENSE - RIGHT TO ARMS The memo's statements about the right to self-defense and its relation to the right to arms are directly contradicted by my article "The Second Amendment and the Ideology of Self-Protection" 9 CONST. COMM. 87 (1991). The difference between my analysis and the memo's is that I rely on a detailed critique of the writings of Locke, Sidney, Montesquieu, Blackstone, Paine, Jefferson and others admired by the Founders. The issue of the Amendent's relation to personal self-defense illustrates the irrelevancy of adducing other purposes which do not gainsay the Amendment's text. The purpose of the right to arms embraced by the Founders was self-defense and defense of the family against criminal attack. Neither the Founders themselves nor the history known to them made any distinction between political criminals like the Gestapo ("a wicked magistrate" served by "a crew of lewd villains") and apolitical ones. See 9 CONST. COMM. 93-103. But the Founder saw other, purely political, purposes in the right to arms for personal self defense: not only was this the most basic of natural rights, the possession of arms for that purpose was regarded as basic to the virtue, the moral fortitude of a republican citizenry. The Founders "believed that the perpetuation of a republican spirit and character in their society depended upon the freeman's possession of arms as well as his ability and willingness to defend both himself and his society." Shalhope, supra, 49 LAW & CONTEMP. PROBS. at 138.6 Once again, it is completely irrelevant for constitutional interpretation whether we share this set of beliefs today. Once again, one of the purposes for which the 19th Amendment was enacted was the belief that the moral superiority of women is such that admitting them to the franchise would stamp out electoral and political corruption. However much we may reject that theory or purpose today, government is still bound by the words "The right ... to vote shall not be denied ... on account of sex." HANDGUNS vs. HANDGONNES The memo's pervasive factual errors are illustrated by the statements in the memo re "pistols" and "handguns." The memo to the contrary nowithstanding, the late 17th Century English right to arms did apply to pistols and the late 18th Century American right did so even more clearly. Late 15th and early 16th Century laws banned not "handguns", but "handgonnes." The importance of the distinction is that, contrary to the apparent view of the memo, "handgonne" did not mean what we now call a handgun, but rather any firearm less than 3 feet long. This is important because the 15th-16th Century law in question was a dead letter, a forgotten relic, by the mid-17th Century. By that time, pistols were widely distributed throughout England in flagrant violation of the 15th-16th Century law. So were the blunderbuss and the regulation military musket, both of them equally violative of the 15th-16th Century (had anyone known of it). In any event, the 15th-16th Century law never applied in the American colonies where it was completely unknown and pistols, blunderbusses and muskets abounded. A further problem throughout the memo is its failure to convey the proper historical meaning of the term "collective right." The concept of collective right is indeed an important one in the English history of the right to arms. What that term means is a right which allows some group (in England, Protestants) to appear in arms collectively -- as a group. In contrast, what advocates of restricting gun ownership tend to mean by "collective right" is literally nothing! It is just a makeweight, a gibberish term amounting to "this is a 'right' which no one has and no one can assert." The real meaning of "collective right" to arms -- a right which allows some group (in England, Protestants) to appear in arms collectively -- makes it a far more dangerous thing than a mere individual right to arms. In enacting the English Bill of Rights the House of Commons' language endorsed a collective right Protestants) to appear in arms as a group whenever they deemed the kingdom endangered. But that was rejected by the more circumspect House of Lords. As a modern English historian has commented: "The original wording implied that everyone had a duty to appear in arms whenever the state was threatened. The revised wording suggested only that it was lawful to keep a blunderbuss to repel Burglars." [Prof. Western quoted by Malcolm at 119.] Note that this -- and Malcolm's entire discussion -- diametrically contradicts both the spirit and the letter of the memo's treatment of these English antecedents of the American right! The memo also ignores the fact that the American right to arms was deliberately intended to go far further and be far more binding than the English, which by the 1790s Americans believed (quite wrongly) to have been vitiated in England. FOOTNOTES 1. See citation infra to Justice Frankfurter's statement in Ullmann v. United States. 2. Courts will not ignore or nullify constitutional guarantees because a (perhaps temporary) current majority disagrees with them. Rights guaranteed to individuals do not depend on majority approval. Lucas v. 44th General Assembly, 377 U.S. 713, 736-7, 84 S.Ct. 1472, 12 L. Ed.2d 632, 647 (1964); Watson v. City of Memphis, 343 U.S. 526, 535 (1963). 3. Here I quote from the amicus brief I just filed in the Supreme Court with 20 law professor as co-authors: The Amendment describes the right to arms as a "right of the people." As this Court has noted, throughout the Constitution that phrase denotes citizens and their rights against government. United States v. Verdugo-Urquidez, 494 U.S. 259, 108 L.Ed. 2d 222, 232-33 (1990). Accordingly, "right of the people" is to be construed in pari materia in the First, Second and Fourth Amendments. Id. Not to construe it in pari materia would imply the absurd conclusion: that when Congress drafted the Bill of Rights it used "right of the people" in the First Amendment to mean an individual right; but sixteen words later, it used the same phrase in the Second Amendment to mean a right of the states; but, forty-six words later, the Fourth Amendment used it to mean an individual right, as the Ninth Amendment does also; and then the Tenth Amendment specifically distinguishes "the states" from "the people," even though in the Second Amendment they are identical. (If the foregoing were not absurd enough, consider the implications were the same nonsensical construction to be applied to the requirement that the House of Representatives shall be selected "by the people of the several states." Constitution, Art. I, S 2, cl. 1. If what "people" actually means is "state", it would seem to follow that the state legislature or Congress would be free to decree that the states' House delegations are to be appointed by the state legislature rather than popularly elected. This would, of course, abrogate the purpose of the House of Representatives by undermining the system established by the original Constitution whereby the House was to be elected by popular vote and the Senate by the state legislatures.) The very concept that the Second Amendment could be a states' right is an invention of our own Century's gun control debate. The text and the legislative history demonstrate that the Founding Fathers had not even the remotest inkling of such a states' "right" concept, whether in connection with the Amendment, or otherwise. So, for instance, when the Tenth Amendment guarantees prerogatives of the states against federal interference, they are referred to as "powers", not "rights." And the Second Amendment right is not only to keep, but also to "bear" arms. Only individuals "bear" arms. States do not. 4. As recently as Planned Parenthood v. Casey, --U.S.--, 120 L.Ed.2d 674, 696 (1992) this Court has listed the Second Amendment interchangeably with other explicitly guaranteed personal rights. This follows the precedent of the Founders who themselves routinely made the same connection, linking the right to arms with freedom of religion and speech, etc. under such joint descriptions as private rights, human rights, essential and sacred rights (quoting Madison, Monroe and Gallatin respectively). For these and numerous other quotes from the 1787-91 debates see my "Original Meaning", 82 MICH. L. REV. supra at 223-24 and 228-9, citing original sources. 5. "Original Meaning" supra, 82 Mich. L. Rev. at 215; compare J. Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO- AMERICAN RIGHT 162-3 (Harvard U. Press, 1994): "The Second Amendment was meant to accomplish two distinct goals.... First, it was meant to guarantee the individual's right to have arms for self-defense and self-preservation... These privately owned arms were meant to serve a larger purpose [militia service] as well .... and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public ... the militia [being] ... the body of the people." and Shalhope, "The Armed Citizen in the Early Republic", 49 LAW & CONTEMP. PROBS. 125 (1986): The Amendment encompassed "two distinct principles: (1) Individuals had the right to possess arms to defend themselves and their property; and (2) states retained the right to maintain militias composed of these individually armed citizens." 6. See generally 9 CONSTITUTIONAL COMMENTARY supra at 94-6: "Arms possession for protection of self, family and polity was both the hallmark of the individual's freedom and one of the two primary factors in his developing the independent, self- reliant, responsible character which classical liberal political philosophers deemed necessary to the citizenry of a free state.*** The Anglo-American legal distinction between free man/armed and unfree/disarmed flowed naturally into the classical liberal view that the survival of free and popular government required citizens of a special character--and that the possession of arms was one of two keys in the development of that character. From Machiavelli and Harrington classical liberal philosophy derived the idea that arms possession and property ownership were the keys to civic virtu. In the Greek and Roman republics from whose example they took so many lessons, every free man had been armed so as to be prepared both to defend his family against outlaws and to man the city walls in immediate response to the tocsin warning of approaching enemies. Thus did each citizen commit himself to the fulfillment of both his private and his public responsibilities. The very survival of republican institutions depended upon this moral (as well as physical) commitment--upon the moral and physical strength of the armed freeholder: sturdy, independent, scrupulous, and upright, the self-reliant defender of his life, liberty, family, and polity from outlaws, oppressive officials, despotic government, and foreign invasion alike. That the freeholder might never have to use his arms in such protection mattered naught. (Indeed, one basic tenet that classical political theory took from its criminological premises was that of deterrence: if armed and ready, the free man would be least likely ever to actually have to defend. Simply to be armed, and therefore able to protect one's own, was enough; this moral commitment both developed and exemplified the character of the virtuous republican citizen.)" APPENDIX ON THE VALUE OF GUN CONTROLS (The following is from a forthcoming law review article of mine which derives from a speech I gave to the Gainesville ACLU and the Pennsylvania Bar. [Editor's note: Kates did not include footnotes for this Appendix. I have left Kates' notations as to where footnotes are meant to appear.]) It may come as a surprise to readers that criminology today rejects gun control as a fruitful strategy. For many years academic writing on guns was virtually monopolized by zealots seeking to validate their loathing for guns and gun owners.1 Neutral scholars eschewed the gun issue, and the gun lobby, though able to exert great pressure on legislators, was incapable of, and uninterested in, addressing intellectually sophisticated audiences. The anti-gun zealots' monopoly of the subject ended when the National Institute of Justice funded a massive study which became the foundation stone of scrupulous, objective criminological work in this area. The enormous grant was intended to allow sociologists James D. Wright and Peter Rossi to evaluate the previous literature and distill from it an analysis of the role of firearms in violence and an agenda for gun control policy. To their surprise Wright and Rossi found the literature so biased and shoddy that it provided no basis for policy-making.2 In private they describe it as "result oriented trash"; in public, they admit that their research caused them to reexamine and disavow the strong anti-gun views with which they began it.3 Subsequent criminological research has exploded virtually every element of the conventional argument for banning handguns or any guns to the general public. Inter alia, Prof. Kleck has shown: that widespread gun ownership by the law-abiding does not promote homicide; and that handguns are used by victims to defeat crimes about three times more often than they are misused by criminals committing crimes. The response to these findings has been little more than ad hominem claims that since Kleck is a minion of the gun lobby his scholarship should not be taken seriously.4 This is as false as it is irrelevant. Kleck is an ardent liberal Democrat, a member of the ACLU and Amnesty International, but not of the NRA, and has never taken a dime from the gun lobby.5 The American Society of Criminology has given Kleck's work its highest award, deeming it "the most outstanding contribution to criminology" in the past several years.6 Far from being biased favorably toward the gun lobby, Kleck has consistently supported rational, moderate controls the gun lobby has opposed.7 Moreover, like Wright and Rossi he has admitted (in an unpublished speech to the National Academy of Sciences): When I began my research on guns in 1976, like most academics, I was a believer in the "anti-gun" thesis, i.e. the idea the gun availability has a net positive effect on the frequency and/or seriousness of violent acts. It seemed then like self-evident common sense which hardly needed to be empirically tested. However, as a modest body of reliable evidence accumulated, many of the most able specialists in this area shifted from the "anti-gun" position to a more skeptical stance, in which it was negatively argued that the best available evidence does not convincingly or consistently support the anti-gun position. This is not the same as saying we know the anti-gun position to be wrong, but rather that there is no strong case for it being correct. The most prominent representatives of the skeptic position would be James Wright and Peter Rossi, authors of the best scholarly review of the literature.... Actually Wright has also moved beyond skepticism to embrace Kleck's view "that the best currently available evidence, imperfect though it is (and must always be), indicates that general gun availability has no measurable net positive effect on rates of homicide, suicide, robbery, assault, rape, or burglary in the U.S."8 Significantly, I know of no criminologist who began by doubting the efficacy of gun control being forced by the evidence to disavow that position. In contrast, beside Kleck, Wright and Rossi, numerous other social scientists have had to repudiate anti- gun premises they began their research accepting; viz. Toch,9 Gurr10 and Centerwall.11 None of these social scientists is a devotee of the gun lobby and none denies that controls aimed at disarming criminals have their place in any crime reductive strategy. Unfortunately, as the works quoted supra attest, three facts limit the importance of any level or species of gun control in reducing crime: 1) Violence results from basic socio-economic and cultural factors which merely curbing availability of a particular weapon does not alter. Even excluding gun murders, the U.S. murder rate still exceeds the total murder rate of most Western European nations. If all the guns could be made to disappear, most gun murders would still be committed with other (though less) deadly weapons. But 2) the guns aren't going to all disappear; enough illegal guns will always be available in any society to arm those who want to misuse them. And 3) Criminals and the irresponsible persons we most want to disarm will always be least likely to comply with gun bans and thus least affected by them. ENDNOTES 1. Sociologist William Tonso has used this literature as a case study of Znaniecki's concept of "sagecraft" -- the prostitution of scholarship by partisan academic "sages" who invent, select or misinterpret data to validate preordained conclusions. Tonso, "Social Science and Sagecraft in the Debate Over Gun Control" 5 LAW & POLICY Q. 325 (1983) applying concepts based on F. Znaniecki, THE SOCIAL ROLE OF THE MAN OF KNOWLEDGE, 72-4 (N.Y., Harpers, 1968). 2. See generally, J. Wright, P. Rossi & K. Daly, WEAPONS, CRIME AND VIOLENCE IN AMERICA: A LITERATURE REVIEW AND RESEARCH AGENDA (Washington, D.C., Gov't. Print. Off.: 1981). 3. "The progressive's indictment of American firearms policy is well known and is one that both the senior authors of this study once shared. This indictment includes the following particulars... 4) [Law abiding people buy guns] because they feel the need to protect themselves; eventually, they end up shooting one another. 5) If there were fewer guns around, there would obviously be less crime... The more deeply we explored the empirical implications of this indictment, the less plausible it has become." J. Wright, P. Rossi, K. Daly, UNDER THE GUN: WEAPONS, CRIME AND VIOLENCE IN THE UNITED STATES (N.Y., Aldine: 1983) 319ff. 4. An overt, published example is the answer given (defending their own prior study) by the extreme anti-gun public health writers Sloan, Rivara and Kellermann. 323 NEW ENG. J. MED. 136 (1990). Since their study involved comparing Canadian gun laws and violence with American it is useful to consider the evaluation of a Canadian criminologist. In the course of a highly favorable review of Kleck's book, Prof. Mauser comments "It is not too strong to say that many [gun] studies are an abuse of scholarship in that they invented, selected, or misinterpreted data in order to validate their a priori conclusions. [Footnote --] A particularly egregious example is, 'Handgun Regulations, Crime, Assaults and Homicide,' by John Sloan and his associates, which appeared in Volume 319 of the New England Journal of Medicine in 1988." Mauser, "Gun Control in the United States," 3 CRIMINAL LAW FORUM 147 (1992). Though less than charitable, "an abuse of scholarship ... [data] invented, selected, or misinterpreted" is a more than accurate description of all the work of Sloan, Rivara and Kellermann, both jointly and with others. Compare the example just cited and Sloan, et al. "Firearm Regulations and Rates of Suicide: A Comparison of Two Metropolitan Areas." 322 NEJM 369-373 (1990) to the evaluations of competent, scrupulous scholars, e.g. Mundt, "Gun Control and Rates of Firearms Violence in Canada and the United States" 32 CANADIAN J. OF CRIMINOLOGY 137-153 (1990), Rich, et al. "Guns and Suicide: Possible Effects of Some Specific Legislation" 147 AM. J. PSYCHI. 342 (1990), Centerwall, "Homicide and the Prevalence of Handguns: Canada and the United States, 1976 to 1980", AMERICAN JOURNAL of EPIDEMIOLOGY v. 134 pp. 1245-65 (1991), Kopel, "Canadian Gun Control: Should the United States Look North for a Solution to its Firearms Problem", 5 TEMPLE INT'L & COMP. L. J. 1 (1991), Mauser and Holmes, "Evaluating the 1977 Canadian Firearms Control Legislation: An Econometric Approach", 16 EVALUATION RESEARCH 603 (1993) and Centerwall, "Suicide and the Prevalence of Handguns: Canada and the United States, 1976-1980", Abstract in Proceedings of the Second World Conference on Injury Control (1993), paper available from Prof. Centerwall at the University of Washington, School of Public Health, Department of Epidemiology. 5. POINT BLANK, supra, "Author's Voluntary Disclosure Notice", vi. Indeed, Kleck's earliest publication concluded that increased gun ownership had some effect in increasing the homicide rate -- a position Kleck was later forced to disavow based on more extensive evidence and analysis. Compare Kleck, "Capital Punishment, Gun Ownership and Homicide", 84 AM. J. SOC. 882 (1979) to Kleck, "The Relationship between Gun Ownership Levels and Rates of Violence in the United States" in D. Kates, (ed.) FIREARMS AND VIOLENCE (1986). 6. Hindelang Award presented at the 1993 annual meeting, Phoenix AZ, Oct. 29, 1993. 7. Kleck, "Policy Lessons from Recent Gun Control Research", 49 LAW & CONTEMPORARY PROBLEMS 35 (1986), and POINT BLANK supra, ch. 11. The NRA has been critical of Kleck on this account. See NRA Research Director Paul Blackman's review of Kleck's book at 18 THE CRIMINOLOGIST 16 (1993). Interestingly, the one criticism levelled against Kleck by the reviewer in the liberal magazine COMMONWEAL was that his pro-control recommendations forge beyond the limitations of the data available to justify gun laws. Doyle, "Who Buys Guns", June 5, 1992 COMMONWEAL pp. 25-6. 8. Quoting from Kleck's National Academy of Science speech. Compare Wright's "Second Thoughts About Gun Control, 91 PUBLIC INTEREST 23 (1988) noting that, while he continues to endorse banning guns to felons, juveniles and the mentally impaired, as to banning any kind of gun to ordinary citizens, his current "opinion [is] that a compelling case for 'stricter gun control' cannot be made." (Italics by Professor Wright.) 9. In "Research and Policy: The Case of Gun Control", Toch notes that he participated in and fully endorsed the 1969 Eisenhower Commission "conclusion 'that ... reducing the availability of the handgun will reduce firearms violence. [Commission's emphasis.]" But, Prof. Toch continues, subsequent research has progressively undermined this. Though violence is primarily a male phenomenon, "rates of male firearms ownership tend to be inversely correlated with violent crime rates, a curious fact if firearms stimulate aggression. It is hard to explain that where firearms are most dense, violent crime rates are lowest, and where guns are least dense violent crime rates are highest." In contrast to the male pattern, women's gun ownership is generally low, but "when violent crimes are high, women arm themselves for protection." Of course, "This does not imply that urban women are responsible for the urban crime problem...." It is simply rational behavior because "when used for protection firearms can seriously inhibit aggression and can provide a psychological buffer against the fear of crime. Furthermore, the fact that national patterns show little violent crime where guns are most dense implies that guns do not elicit aggression in any meaningful way. Quite the contrary, these findings suggest that high saturations of guns in places, or something correlated with that condition, inhibit illegal aggression." In P. Sutfeld and P. Tetlock, PSYCHOLOGY AND SOCIAL POLICY (NY Hemisphere, 1992). 10. Under the title VIOLENCE IN AMERICA Professor Ted Robert Gurr, a key staff member of the Eisenhower Commission, has issued up- dated editions of it's research reports as they have been overtaken by subsequent research. His Introduction to the latest (1989) up-date summarizes his own present views on gun control: "Americans looking for simple solutions to high crime rates and to political assassinations have repeatedly proposed and sometimes imposed restrictions on gun ownership. Since about two-thirds of murders and all recent assassinations have been committed with guns, the argument goes, dry up the guns and violence will decline. In a country with an estimated stock of 60 million handguns and more than 100 million long guns, not even the most Draconian policies could remove guns from the hands of people who were determined to get and keep them. Those determined gun owners include far more citizens concerned about defending themselves and their homes than predatory criminals. The irony of most gun control proposals is that they would criminalize much of the citizenry but have only marginal effects on professional criminals. "Moreover, an overemphasis on such proposals diverts attention from the kinds of conditions that are responsible for much of our crime, such as persisting poverty for the black underclass and some whites and Hispanics; the impact of post-industrial transition on economic opportunity for working-class youths; and the shortage of prison facilities that makes it difficult to keep high risk, repeat offenders off the streets." Admittedly, if no one had guns, assaults carried out with less deadly weapons "and modern medicine would save more of the victims. But we must [also consider that] ... guns can be an effective defense. [UCLA historian Roger] McGrath's historical evidence [from the 19th Century] shows that widespread gun ownership deterred [burglary and robbery] while simultaneously making brawls more deadly. Modern studies, summarized by Kates, also show that widespread gun ownership deters crime. Surveys sponsored by both pro- and anti-gun groups show that roughly three-quarters of a million private gun owning citizens report using weapons in self-defense [annually], while convicted robbers and burglars report that they are deterred when they think their potential targets are armed." 11. "If you are surprised by my findings, so am I. I did not begin this research with any intent to 'exonerate' handguns, but there it is -- a negative finding, to be sure, but a negative finding is nevertheless a positive contribution. It directs us where not to aim public health resources. [Emphasis added.]" Centerwall, "Homicide and the Prevalence of Handguns: Canada and the United States, 1976 to 1980", 134 AMERICAN JOURNAL of EPIDEMIOLOGY 1245, 1264 (1991). -- paul hager [h--ge--p] at [cs.indiana.edu] "I would give the Devil benefit of the law for my own safety's sake." --from _A_Man_for_All_Seasons_ by Robert Bolt