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From the Radio Free Michigan archives
ftp://141.209.3.26/pub/patriot
If you have any other files you'd like to contribute, e-mail them to
bj496@Cleveland.Freenet.Edu.
------------------------------------------------
Probably one of the most well articulated articles on the
pro-gun side of the gun control issue was written by David B.
Kopel, a former District Attorney in Manhattan, now living in
Colorado. The article is entitled "CATO Institute Policy Analysis
No. 109" and is presented in the next 17 messages. Yes, it is a
bit long but I believe that this is an article that pro-gun
advocates should have available to them.
In the unlikely event that you should fail to receive one of
the seventeen parts to this message, you may log onto the Combat
Arms BBS at no charge and capture it from one of the bulletins.
The BBS phone number is (415) 538-6544. Again, you need only call
that number if you fail to get all 17 parts of this excellent
work. Thank you.
-- Charles Butler Has Additional Comments --
These posts have factual information on the discussion on
gun control that we have been having. It includes info on
Bob's 'collective right', Rich's 'armed citizen vs criminal',
the militia issue, and others we haven't discussed such as
discrimination, feminism, and effects on civil liberties.
Hopefully, everyone will find it as informative as I did.
The only change I have made is to add a 0 in titles to
provide for a better subject sort.
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. . . . EverφA