Nobody I know wants to control guns for the sake of gun control. They all want to reduce the level of violence in our society, increase their personal safety, eliminate the "wanton" destruction of animals, etc. "Gun Control" is a convenient code phrase that unites these different goals into a single goal, which is the ultimate goal of none. Unfortunately, this has the effect of requiring those of us who think that gun control is the wrong answer to all of these questions, to defend guns against each of these sets of charges, beliefs, and prejudices.
I readily admit to being against gun control, but am resolved to give a fair hearing to opposing arguments. If you have anything to say on the subject, please feel free to send me email at laurence@vandolsen.com. If I decide to include your comments on this page, I will do so with, or without, your permission. I will ask you for permission to include your email address on the citation, and, if you deny such permission, will respect your wishes.
I have sorted material into categories which seem to correspond with the major "Gun Control" issues being discussed these days:
Crime Reduction, Gun Accidents, Wildlife Management, Constitutionality and lastly, Citizens' Defense
The United Nations has been attempting to get member States to regulate and reduce traffic in small arms. The primary impetus being the horrific massacres in various developing nations. The NRA is frothing at the mouth that the UN is attempting to overturn US sovereignty and impose regulations that trump the second amendment. John Heeg sent me this link to as report on the UN deliberations that highlights the difficulties of forming any international agreement in an environment where many of the participants are attempting to hijack the proceedings to implement their own agenda. http://www.un.org/News/Press/docs/2006/dc3035.doc.htm
REASON Magazine, January 2000
Cold Comfort Economist John Lott discusses the benefits of guns--and the hazards of pointing them out.
Interviewed by Jacob Sullum and Michael W. Lynch
Until recently, when he bought a 9-mm Ruger after his own research impressed upon him the value of gun ownership, John Lott had no personal experience with firearms, aside from one day of riflery in summer camp when he was 12. That fact did not stop a reviewer of Lott’s 1998 book, More Guns, Less Crime (University of Chicago Press), from labeling him a "gun nut." Writing in The American Prospect, Edward Cohn also identified Lott as "a leading loon of the Chicago School of economics, known for its ultra-market ideology." But that was gentle--a backhanded compliment, even--compared to the attacks from anti-gun activists, who accused Lott of producing his landmark study at the behest of the gun industry.
Lott, now a senior research scholar at Yale Law School, used to be the John M. Olin Law and Economics Fellow at the University of Chicago. That position, like similar ones at other major universities, was endowed by a foundation based on the personal fortune of the late John M. Olin, former chairman of the Olin Corporation. Among many other things, the Olin Corporation makes Winchester ammunition. These facts led Kristen Rand of the Violence Policy Center to conclude that "Lott’s work was, in essence, funded by the firearms industry"--a charge that was echoed by other gun control advocates, including Charles Schumer, then a Democratic representative from New York and now a senator.
Never mind that assuming the Olin Foundation takes orders from "the firearms industry" is like assuming the Ford Foundation does the bidding of automakers. Never mind that Olin fellows are chosen by faculty committees, not by the foundation (with which Lott never had any contact). Proponents of gun control were desperate to discredit Lott, because his findings contradicted their dark predictions about what would happen if states allowed law-abiding citizens to carry concealed handguns.
Analyzing 18 years of data for more than 3,000 counties, Lott found that violent crime drops significantly when states switch from discretionary permit policies, which give local officials the authority to determine who may carry a gun, to "shall issue" or "right-to-carry" laws, which require that permits be granted to everyone who meets certain objective criteria. That conclusion, first set forth in a 1997 paper that Lott co-authored with David Mustard, now an economist at the University of Georgia, heartened defenders of gun ownership and dismayed their opponents. Arguing that "shall issue" laws are beneficial, while other gun laws are ineffective at best, Lott quickly became one of the most widely cited--and reviled--scholars in the gun control debate.
Though it was the gun issue that brought Lott notoriety, it hasn’t been the focus of his career. The 41-year-old economist, who earned his Ph.D. at UCLA, has published papers on a wide variety of topics, including professional licensing, criminal punishment, campaign finance, and public education. Last summer he published Are Predatory Commitments Credible? (University of Chicago Press), a skeptical look at theories of predatory pricing, and he is working on a book about the reputational penalties faced by criminals, a longstanding interest. In addition to his positions at Yale and the University of Chicago, Lott has served as chief economist at the U.S. Sentencing Commission and taught at UCLA and the University of Pennsylvania, among other schools. He lives in Swarthmore, Pennsylvania, with his wife and four children. Senior Editor Jacob Sullum and Washington Editor Michael Lynch talked to Lott at his Yale Law School office in mid-October.
Reason: How did you become interested in guns?
John R. Lott Jr.: About six years ago, I was teaching a class dealing with crime issues at the University of Pennsylvania, and it dawned on me that my students would be interested in some papers on gun control. It forced me to look at the literature systematically to decide what papers to assign to the class. I was shocked by how poorly done the existing research on guns and crime was.
You had very small samples. By far the largest previous study on guns and crime had looked at just 170 cities within a single year, 1980. Most of the rest looked at, say, 24 counties or 24 cities within a single year. No one had tried to account for things like arrest rates or conviction rates or prison sentence lengths. And the studies were all very limited in the sense that they were purely cross-sectional, where you look at the crime rates across jurisdictions in one year, or [purely longitudinal], where you pick one city or one county and look at it over time.
(Note: For an example of a pro-gun misuse of such statistics, see http://www.snopes.com/crime/statistics/ausguns.asp which was brought to my attention by John Heeg - LVD)
It was basically because of that class that I saw the benefit to going out and trying to do it right. So I put together what I think is by far the largest study that’s ever been done on crime. The book has data on all 3,000-plus counties in the U.S. over an 18-year period. And simply having that large a data set allows you to account for hundreds of factors, thousands of factors, that you couldn’t have accounted for in those smaller data sets.
Reason: What has been the most gratifying response to the book? Do you know of any criminologists whose views have been changed by your research?
Lott: Some well known people like [University of Pennsylvania criminologist] John DiIulio and [UCLA political scientist] James Q. Wilson have said very nice things about the study. I think it’s caused DiIulio to look at these issues differently, and there are other criminologists I know of who have been amazed by how strong the data are. I’ve done lots of empirical studies, and the regularities that you see here, in terms of the drops in violent crimes right after these laws go into effect, are very dramatic.
The intensity of the issue on both sides is something I wouldn’t have expected before I got into it. I’ve been involved in a lot of debates, and people tell me, "You should have anticipated this before you did the study." But I’ve written about 80 academic articles, and the interest in this has been so outside the range of experiences I’ve had before. With the vast majority of articles, you’re happy if you can get 10 people to read it.
Reason: The thrust of your argument in More Guns, Less Crime is easy enough to understand. But the details of the evidence you cite are hard to follow for anyone who is not trained in econometrics. Does it bother you that people who support the right to keep and bear arms are apt to accept your conclusions at face value, while those who are inclined to support gun control will tend to reject your findings, even though few people in either group are equipped to evaluate the evidence?
Lott: My guess is that [my critics] assume that the vast majority of people who hear their claims are not going to even look at the book. So they say, "Lott didn’t account for poverty." Or they say, "Lott didn’t account for other types of gun laws." Those are things that are easy to evaluate: Either I did, or I didn’t. But I think they feel that they can get away with making those claims, because it’ll be only a tiny fraction of 1 percent who will go and buy the book or get it from the library. I’ve never been involved in a debate like this, because in your normal academic debate, where there are 10 people involved and they’ve all read the paper, if somebody says, "Professor X didn’t account for other gun laws," everybody else in the room would laugh, because they would know it was an absurd claim.
I don’t think that most of the comments [the critics] are making are really that difficult to understand. One of the claims, for instance, is that I’m assuming that when these laws are passed there will be a one-time drop in violent crime rates, and it should be the same across all places that adopt these laws. That’s absurd. I don’t know how much time I spend in the book saying that the level of deterrence is related, according to the data, to the probability that people are going to be able to defend themselves, and the rate at which people get permits changes over time. When you pass these laws, not everybody who eventually is going to get a permit does it the first day. Fifteen years after these laws go into effect, you’re still seeing an increasing percentage of the population getting these permits and a decreasing rate of violent crime because of the additional deterrence.
I spend lots of time in the book talking about why you don’t expect the drop in crime to be the same in all places....In more urban areas [of states with discretionary permit laws], public officials were especially reluctant to issue permits. So when you change to a nondiscretionary rule, the biggest increases in permits tended to be in these urban areas, and that is where you observe the biggest drops in violent crime.
Reason: Your analysis shows that liberal carry permit policies are associated with lower crime rates even after controlling for a variety of factors that might also have an impact on crime. In the book you concede that some other variable that you did not consider could be responsible for this association. Yet at the end of the book, you write, "Will allowing law abiding citizens to carry concealed handguns save lives? The answer is yes, it will." Do statements like that go too far?
Lott: I don’t think so. That’s one of the last sentences in the book, and at that point the evidence is pretty overwhelming. There are different types of information, and they’re all pointing in the same direction.
After these laws are adopted, you see a drop in violent crime, and it continues over time as the percentage of the population with permits increases. If I look at neighboring counties on either side of a state border, when one state passes its right-to-carry law, I see a drop in violent crime in that county, but the other county, right across the state border, in a state without a right-to-carry law, sees an increase in its violent crime rate. You try to control for differences in the legal system, arrest and conviction rates, different types of laws, demographics, poverty, drug prices --all sorts of things. You look at something like that, and I think it’s pretty hard to come up with some other explanation. I think you’re seeing some criminals move [across the state line].
You find the types of people who benefit the most from these laws. The biggest drops in crime are among women and the elderly, who are physically weaker, and in the high crime, relatively poor areas where people are most vulnerable.
There are five or six things that one could point to that confirm different parts of the theory. I haven’t heard anybody come up with a story that explains all these different pieces of evidence....Since you have all these states changing their laws at different times, it becomes harder and harder to think of some left-out factor that just happened to be changing in all these different states at the same time the right-to-carry law got changed.
Reason: A review of your book in The American Prospect claims that "his results are skewed by the inclusion of data from tiny counties with trivial rates of violent crime. In fact, when you consider only large counties and exclude Florida from the sample, his case completely falls apart." How do you respond?
Lott: When you drop out counties with fewer than 100,000 people, if anything it actually increases the size of the effect. What [the reviewer is] saying is that if you not only drop out counties with fewer than 100,000 people--which is 86 percent of the counties in the sample, so it’s not just a few small counties that we’re talking about--but also drop out Florida, then the changes in two of the violent crime categories, when you’re just looking at the simple before-and-after averages, aren’t statistically significant. But the results still imply a drop, and for robberies and aggravated assaults you still get a drop that’s statistically significant.
Now, I think it’s somewhat misleading to look only at the simple before-and-after averages. Take the case where violent crime rates are rising right up to the point when the law goes into effect and falling afterward, and let’s say it was a perfectly symmetrical inverted V. If Iwere to take the average crime rate before the law goes into effect and the average afterward, where the point of the V is when the law changed, they’re going to be the same. Does that mean the law had no impact? When you drop Florida from the sample, [the results] look more like this inverted V than they do when Florida is in there. So I would argue that it strengthens the results, if what you care about is the change in direction.
In any case, the bottom line to me is this: I wanted all the data that were available....I didn’t pick and choose, and when somebody drops out 86 percent of the counties along with Florida, you know they must have tried all sorts of combinations. This wasn’t the first obvious combination that sprang to mind. And it’s the only combination they report....If, after doing all these gymnastics, and recording only one type of specification, dealing with before-and-after averages that are biased against finding a benefit, they still find only benefits, and no cost, to me that strengthens the results.
Reason: University of Florida criminologist Gary Kleck recently told The Salt Lake Tribune that "Lott has convincingly demonstrated there is no substantial detriment" from "shall issue" laws. But he questioned whether these laws could have as substantial a deterrent effect as you suggest. Kleck provided a blurb for your book, and his work is often cited by opponents of gun control. Why do you think he has trouble buying your conclusions?
Lott: Gary has had a strong opinion for a long time that, on net, guns neither reduce or increase crime. He thinks it’s essentially a wash. And I’m not sure I understand how he comes to that conclusion, particularly given the survey data that indicate that many more violent crimes are stopped with guns than are perpetrated with guns. But it is something that he has written and felt strongly about for a long time. Now Gary may think that there’s something else that’s being left out that maybe could explain these changes in crime rates. If he can tell me what that factor is, I’d be happy to try to test it.
Reason: Do you still hear the argument that you’re in the pay of the gun industry, or has that been discredited?
Lott: I think the gun control people are going to continue to bring it up. I’ve been in debates this year with people from Handgun Control Inc. and other gun control groups in which they asserted flat-out that I’ve been paid by gun makers to do this study.
Reason: When they raise this charge, how successful are you in making the point that people should be able to assess evidence and arguments on their merits and that your motives don’t matter?
Lott: Well, most people aren’t going to look at the data. They’re not going to have the data in front of them. The credibility of the data and the message depends on whether or not they believe that the person who’s telling them about the data is credible. And I think the gun control groups feel that it’s a win to the extent that they even divert three minutes of a show to talking about this issue. Even if it doesn’t stick in people’s minds, it’s still three minutes that I couldn’t talk about something else.
Reason: In a working paper you wrote with University of Chicago law professor William Landes [available at papers.ssrn.com/paper.taf?abstract_id=161637], you conclude that "shall issue" laws are especially effective at preventing mass public shootings. Given that the people who commit these crimes seem to be pretty unbalanced, if not suicidal, how does the deterrent work?
Lott: Most of these attacks do end in the death of the attackers themselves, frequently from suicide, but also because they’re killed by others. But part of what’s motivating them is the desire to harm other people, and to the extent that you can take that away from them, I think you reduce their incentive to engage in these attacks. Whether they do it just because they intrinsically value killing people or whether they do it because of the publicity, the fact that there might be a citizen there who can stop them well before the police are able to arrive takes away, in their warped minds, some of the gain from the crime, and stops a lot of them from doing it.
Reason: You often say, based on surveys, that Americans use guns to fend off criminals more than 2 million times a year. But in the book, you note that people who report incidents of armed self-defense could be mistaken or lying. How big a problem is that, and how confident can we be that the true number is more than 2 million?
Lott: Well, 2 million is the average of the various surveys. Different problems may plague different surveys, and the problems can go in both directions. You may have questions that weed out people who shouldn’t be weeded out.
Reason: Like "Do you own a gun?"
Lott: Or it could be you ask them "Has a crime been committed against you?" before you ask them whether they’ve used a gun defensively.
Reason: And they might not consider it a crime if it wasn’t completed?
Lott: Right. And so, we have errors that can exist on both sides....But that’s the only type of evidence that we have on this....The most striking thing to me is the comparison between the results from these surveys and [survey data on] the number of violent crimes that are committed with guns each year. You see many more crimes that are averted by people who defend themselves with guns. I think that difference--even though both sets of numbers can be tainted for all the same reasons--is what’s striking.
Reason: You say that resistance with a gun is the safest option when confronted by a criminal. What’s the basis for that conclusion?
Lott: You hear claims from time to time that people should behave passively when they’re confronted by a criminal. And if you push people on that, they’ll refer to something called the National Crime Victimization Survey, a government project that surveys about 50,000 households each year. If you compare passive behavior to all forms of active resistance lumped together, passive behavior is indeed slightly safer than active resistance. But that’s very misleading, because under the heading of active resistance you’re lumping together things like using your fist, yelling and screaming, running away, using Mace, a baseball bat, a knife, or a gun. Some of those actions are indeed much more dangerous than passive behavior. But some are much safer.
For a woman, for example, by far the most dangerous course of action to take when she’s confronted by a criminal is to use her fists. The reason is pretty simple: You’re almost always talking about a male criminal doing the attacking, so in the case of a female victim there’s a large strength differential. And for a woman to use her fists is very likely to result in a physical response from the attacker and a high probability of serious injury or death to the woman. For women, by far the safest course of action is to have a gun. A woman who behaves passively is 2.5 times as likely to end up being seriously injured as a woman who has a gun.
Reason: Why does the mainstream press seem to downplay the value of armed self-defense?
Lott: One question is, Why don’t they report people using guns defensively? If I have two stories, one where there’s a dead body on the ground vs. another where, say, a woman has brandished a gun and a would-be rapist or murderer has run away, with no shots fired and no dead body on the ground, it’s pretty obvious to me which one of those is going to be considered more newsworthy. It doesn’t require any conspiracy. Now if we care about policy, if we care about what types of actions are going to save the most lives, or prevent the most crimes, we want to look at both of those cases: not only the newsworthy bad events but the bad events that never become newsworthy because they don’t occur.
But I don’t think that explains everything. One example is gun deaths involving children. My guess is that if you go out and ask people, how many gun deaths involve children under age 5, or under age 10, in the United States, they’re going to say thousands. When you tell them that in 1996 there were 17 gun deaths for children under age 5 in the United States and 44 for children under age 10, they’re just astounded. There’s a reason why they believe these deaths occur much more frequently: If you have a gun death in the home involving a child under age 5, you’re going to get national news coverage. Five times more children drown in bathtubs; more than twice as many drown in five-gallon water buckets around the home. But those deaths do not get national news coverage.
This type of news coverage has consequences, because it affects people’s perceptions of the benefits and costs of having guns around. Concentrating on gun deaths in the home, exaggerating the risks of that, creates a false impression. People are going to die because of that false impression. They’re not going to have guns in the home, even though that’s by far the safest course of action for them to take when they’re confronted by a criminal. You may prevent some of the accidental deaths, but you’re going to create other types of deaths because people won’t be able to defend themselves.
I think the debate would be so different now if, even once in a while, some of the life-saving uses of guns got some attention in the news. A couple of the public school shootings were stopped by citizens armed with guns well before the police were able to arrive. Or take the case of the day trader shooting in Atlanta, which got huge attention. Within 10 days after that, there were three separate attacks in the Atlanta area that were stopped by citizens with guns, in two cases permitted concealed handguns. They got no attention outside of the local media market.
Reason: You’ve said that if Chicago Mayor Richard Daley, who filed one of the first city-sponsored gun lawsuits, really believes guns are so bad, he ought to take them away from his bodyguards. Explain that comment.
Lott: Daley has been arguing that there’s no benefit from owning guns. Yet he has a whole set of full-time bodyguards following him every place he goes. He won’t even think about visiting some of the more dangerous areas in Chicago without his bodyguards. But there are poor people who have to live in those areas, who live there at great risk, and he’s not willing to let them own guns in order to protect themselves....I view it as very hypocritical, that Daley can understand the defensive benefits of guns when it comes to himself, but he’s not willing to afford that same level of protection to the poorest, most vulnerable people in his city.
Reason: You’ve pointed out that somebody who gets turned down for a gun purchase after a background check may simply get the gun by other means. That’s a legitimate point, but don’t you also have to consider the possibility that people are deterred from even trying to get a gun because they know there’s going to be a background check and they know they won’t pass it?
Lott: They may just try to get it the illegal way to begin with. Personally, I don’t believe the claims that the Clinton administration makes about the number of people who are stopped from buying a gun. My guess is that to the extent that people are stopped, the vast majority of them are people who may have something on their record from 30 years ago, and they don’t realize that it prevents them from buying a gun. These are people who may pose no risk to anybody. In fact, that’s one of the reasons why I think there’s such a low prosecution rate of those people.
Reason: The feds say they don’t have the resources to prosecute.
Lott: I don’t think that’s it at all. I think you have prosecutorial discretion. I think that you have a case where somebody who’s 50 years old may have done something as an 18-year-old that was wrong. The prosecutor looks at it and says, "This guy has been an upstanding member of the community for 30 years, and he had this one run-in as a teenager. We don’t really think that he intended to violate the law. We’re not going to send the guy to jail for doing this."
Reason: The National Rifle Association criticizes the Justice Department for not prosecuting enough of these cases.
Lott: I think that’s a mistake. They’re also talking about prosecuting cases where guns were brought onto school property. My guess is that a prosecutor would bend over backwards to bring a case against a juvenile who had brought a gun onto school property. He doesn’t want to not bring the case and then have something bad happen later on. That would be disastrous for his career.
But let’s say a kid’s gone hunting in the morning before school. He has the gun in the trunk of his car, parks it in the school parking lot, and goes into school. Somebody finds out that he has a gun there. The prosecutor looks at the case and says, "This is a good kid, never done anything wrong. He probably just didn’t realize he shouldn’t have done this. Do I really want to send this kid to jail for three years for this type of violation?" It’s wrong to think that these prosecutors are making the types of mistakes that are being assumed.
Reason: You’ve criticized the NRA for doing a poor job of making its case. What should it be doing differently?
Lott: My biggest complaint with the NRA is that they’re too defensive. It seems to me that some of the [mass shootings] that have occurred are a result of gun laws that are already on the books. Rather than talking about what new law should be put in place, we should ask to what extent have well-intentioned laws in the past caused us to get to point where we are right now.
It’s only been since the end of 1995 that we’ve banned guns within 1,000 feet of schools by federal law. Right after the Columbine attack, a friend of mine dropped off his kids at a public school in Seattle, and he e-mailed me afterward, because there was a big sign in front of the school that said, "This is a gun-free zone." The question I had was, if I put a sign like that in front of my home, would I think that people who are intent on attacking my home would be less likely, or more likely, to harm my children and my wife? You may be trying to create a safe area for your family, but what you’ve ended up accidentally doing is creating a safe zone for [criminals], because they have less to worry about.
The thing that I’d like to see the NRA try to do is to say, when attacks occur, since we can’t have the police every place all the time, why not let these people defend themselves? The people who get permits for concealed handguns tend to be extremely law-abiding. They’ve never done one of these attacks in the 70 years that we’ve had these types of permits. When these people lose their permits, and it’s only a tiny fraction of 1 percent who do, it’s usually for reasons that have nothing to do with posing a threat to other people. Laws [like the Gun-Free School Zones Act] are obeyed by honest, law-abiding citizens, not by people who are intent on carrying out attacks. And to the extent that you disarm the law-abiding citizens in certain areas, you increase the probability of these attacks, which perversely leads to calls for more regulations.
Another example is gun locks. If I were with the NRA, I would emphasize the cost of constantly talking about this issue. You’re actually endangering people’s lives, for two reasons. One, you’re exaggerating in their minds the risks of having guns in the home. And two, I would say it’s not in everybody’s interest to have a lock on their gun. If you live in a safe area and maybe have young kids, that might be fine. But if you live in a city, even if you have kids, I don’t think it’s really the wisest thing to have the gun locked up, because you’re not going to be able to quickly access it to defend your family. And when you compare probabilities, accidental gun deaths in the home are trivial compared to the rate at which other types of deaths occur from crimes where innocent victims are attacked and a gun would benefit them.
Reason: Some advocates of gun rights base their claims mainly on the Second Amendment, while others offer a more utilitarian argument. Which approach is more effective?
Lott: I understand the constitutional arguments, but I think for the vast majority of people the bottom line is whether the presence of guns, on net, saves lives or costs lives. They may be able to understand in the abstract that having guns owned by civilians is some type of restraint on government, but I don’t think most of them view that as a problem that they’re facing any time soon. For them the bottom line is, What will save lives? And so I think that’s where you have to argue.
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Gun Control Reduces Accidental Death and Injury
Absolutely amazing how we can manipulate numbers! Some Startling Statistics
| Number of physicians in the US |
700,000 |
| Accidental deaths caused by physicians per year |
120,000 |
| Accidental deaths per physician |
0.171 |
| Number of gun owners in the U.S. |
80,000,000 |
| Number of accidental gun deaths per year (all age groups) |
1,500 |
| Accidental deaths per gun owner |
0.0000188 |
Therefore, doctors are approximately 9,000 times more dangerous than gun owners.
*Taken from the Benton County NewsTribune on the seventeenth of November,1999
Gun Control is Good for Wildlife
Gun Control vs the Second Amendment
An argument based on the evaluation of the English used in the 2nd Amendment (brought to my attention by Jack Rains)
Subject: 2nd Ruled Individual Right ! ! ! !
From: neal@nealknox.com (Neal Knox)
Date: Fri, 2 Apr 1999 15:11:13 -0500
1 p.m. April 2 bulletin ? A Lubbock, Texas, Federal judge ruled yesterday that the Second Amendment is an individual right.
The judge, Sam Cummings, dismissed Federal prosecutors’ case against a San Angelo physician accused of possessing a firearm while under a routine restraining order issued as a result of a divorce.
Judge Cummings ruled that the statute, known as the Lautenberg Amendment, violated defendant Timothy Joe Emerson’s rights under the Second Amendment.
The prosecutors argued that the right to bear arms belongs to an organized militia, like the National Guard , and not to individual citizens. Therefore, they said, Cummings should let stand the law stand since a firearm might pose a threat to the person filing the order.
But Cummings ruled that "A historical examination of the right to bear arms, from English antecedents to the drafting of the second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right."
Emerson’s attorney, David Guinn, called the case precedent-setting.
"This is the single most significant ruling in the last 65 years on the second Amendment." Guinn said. "Its implications are far reaching because it says the right to bear firearms is a fundamental right--just like the free exercise of religion and free-speech."
I don’t believe there has ever before been a Federal decision holding the Second Amendment to be an individual right.
This isn’t an April fool’s joke. I’ve talked to Judge Cummings’ office, have read the opinion, and just got off the phone with Guinn, who is with the Federal Public Defender’s office in Lubbock.
The carefully researched 33-page opinion reads like a law review article. It’s on the internet at the Northern District of Texas web page www.TXND.USCourt.Gov, in the Public Notices Section. It cites a long >series of important law review articles over the past 20 years, as well as key court decisions that have been pointing in the right direction.
You can bet this case is headed for the Supreme Court.
[Copyright © 1994 Duke Law Journal. Originally published as 43 Duke L.J. 1236-1255 (1994). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.] ESSAY
THE SECOND AMENDMENT AND THE PERSONAL RIGHT TO ARMS
William Van Alstyne[+]
Introduction
Perhaps no provision in the Constitution causes one to stumble quite so much on a first
reading, or second, or third reading, as the short provision in the Second Amendment of the Bill of
Rights. No doubt this stumbling occurs because, despite the brevity of this amendment, as one reads,
there is an apparent non sequitur--or disconnection of a sort--in midsentence. The amendment opens
with a recitation about a need for "[a] well regulated Militia."[1] But having
stipulated to the need for "[a] well regulated Militia," the amendment then declares that the right
secured by the amendment--the described right that is to be free of "infringement"--is not (or not
just) the right of a state, or of the United States, to provide a well regulated militia. Rather, it
is "the right of the people to keep and bear Arms."
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.[2](p.1237)
The postulation of a "right of the people to keep and bear Arms" would make sense standing alone, however, even if it necessarily left some questions still to be settled.[3] It would make sense in just the same unforced way we understand even upon a first reading of the neighboring clause in the Bill of Rights, which uses the exact same phrase in describing something as "the right of the people" that "shall not be violated" (or "infringed"). Just as the Second Amendment declares that "the right of the people to keep and bear Arms shall not be infringed," so, too, the fourth Amendment declares:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....[4]
Here, in the familiar setting of the Fourth Amendment, we are not at all confused in our take on the meaning of the amendment; it secures to each of us personally (as well as to all of us collectively) a certain right--even if we are also uncertain of its scope.[5] Nor are we confused in turning to other clauses. For example, the Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ....[6]
And so, too, the Seventh Amendment provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ....[7]
That each of these rights--that all of these rights--are examples of personal rights protected by the Bill of Rights seems perfectly clear. And, were it not for the opening clause in the Second Amendment, though there would still be much to thrash out, it is (p.1238)altogether likely the Second Amendment would be taken in the same way.
To be sure, as we have already once noted, were the Second Amendment taken in just this way, the scope of the right that is protected (namely, the right to keep and bear arms) would still remain to be defined.[8] But by itself, that sort of definitional determination would be of no unusual difficulty. For so much is true with respect to every right secured from government infringement, whether it be each person’s freedom of speech (that freedom is not unbounded, either) or any other right specifically protected from infringement elsewhere in the Bill of Rights.[9] And in addressing this type of (merely general) problem, neither has the Supreme Court nor have other courts found it intractable and certainly none of these other clauses have been disparaged, much less have they been ignored. To the contrary, with respect to each, (p.1239)a strong, supportive case law has developed in the courts, albeit case law that has developed gradually, over quite a long time.
In startling contrast, during this same time, however, the Second Amendment has generated almost no useful body of law. Indeed, it is substantially accurate to say that the useful case law of the Second Amendment, even in 1994, is mostly just missing in action. In its place, what we have is roughly of the same scanty and utterly underdeveloped nature[10] as was characteristic of the equally scanty and equally underdeveloped case law (such as it then was) of the First Amendment in 1904, as of which date there was still to issue from the Supreme Court a single decision establishing the First Amendment as an amendment of any genuine importance at all.[11] In short, what was true of the First Amendment as of 1904 remains true of the Second Amendment even now.
The reason for this failure of useful modern case law, moreover, is not that there has been no occasion to develop such law. So much is true only of the Third Amendment.[12] In contrast, it is (p.1240)no more true of the Second Amendment than of the First Amendment or the Fourth Amendment that we have lacked for appropriate occasions to join issue on these questions. The tendency in the twentieth century (though not earlier) of the federal government has been ever increasingly to tax, ever more greatly to regulate, and ever more substantially to prohibit various kinds of personal gun ownership and use.[13] This tendency, that is, is at least as commonplace as it was once equally the heavy tendency to tax, to regulate, and too often also to prohibit, various kinds of speech. The main reason there is such a vacuum of useful Second Amendment understanding, rather, is the arrested jurisprudence of the subject as such, a condition due substantially to the Supreme Court’s own inertia--the same inertia that similar ly afflicted the First Amendment virtually until the third decade of this twentieth century when Holmes and Brandeis finally were moved personally to take the First Amendment seriously [14] (as previously it scarcely ever was).
With respect to the larger number of state and local regulations (many of these go far beyond the federal regulations), moreover, the case law of the Second Amendment is even more arrested; and this for the reason that the Supreme Court has simply declined to reconsider its otherwise discarded nineteenth-century decisions--decisions holding that the Fourteenth Amendment enacted little protection of anything, and none (i.e., no protection) drawn from the Bill of Rights.[15](p.1241)
To trust to this arrested treatment of the Second Amendment--and of the Fourteenth Amendment--in 1994, in short, is as though one were inclined so to trust to the arrested treatment of the First Amendment in 1904. The difficulty in such a starting place is perfectly plain. No convincing jurisprudence is itself really possible under such circumstances. In the case of the First Amendment, we know quite well that such a jurisprudence effectively became possible only rather late, in the 1920s (but, one may add, better late than never). In the case of the Second Amendment, in an elementary sense, that jurisprudence is even now not possible until something more in the case law of the Second Amendment begins finally to fall into place. That "something more," I think, requires one to consider what one might be more willing to think about in the following way--that perhaps the NRA is not wrong, after all, in its general Second Amendment stance--a stance we turn here briefly to review.
I
The stance of those inclined to take the Second Amendment seriously reverts to the place we ourselves thought to be somewhat worthwhile to consult--namely, the express provisions of the Second Amendment--and it offers a series of suggestions fitting the respective clauses the amendment contains. Here is how these several propositions run:
II
There is, to be sure, in the Second Amendment, an express reference to the security of a "free State."[21] It is not a reference to the security of THE STATE.[22] There are doubtless certain national constitutions that put a privileged emphasis on the security of "the state," but such as they are, they are all unlike our Constitution and the provisions they have respecting their security do not appear in a similarly phrased Bill of Rights. Accordingly, such constitutions make no reference to any right of the people to keep and bear arms, apart from state service.[23] And why do they not do so? Because, in contrast with the premises of constitutional government in this country, they reflect the belief that recognition of any such right "in the people" might well pose a threat to the security of "the state." In the view of these different constitutions, it is commonplace to find that no one within the state other than its own authorized personnel has any right to keep and bear arms[24] --a view emphatically re jected, rather than embraced, however, by the Second Amendment to the Constitution of the United States.
This rather fundamental difference among kinds of government was noted by James Madison in The Federalist Papers, even prior to the subsequent assurance expressly furnished by the Second (p.1245) Amendment in new and concrete terms. Thus, in The Federalist No. 46, Madison contrasted the "advantage ... the Americans possess" (under the proposed constitution) with the circumstances in "several kingdoms of Europe ... [where] the governments are afraid to trust the people with arms."[25] Here, in contrast, as Madison noted, they were, and no provision was entertained to empower Congress to abridge or to violate that trust, any more than, as Alexander Hamilton noted, there was any power proposed to enable government to abridge the freedom of the press.[26]
To be sure, in the course of the ratification debates, doubts were expressed respecting the adequacy of this kind of assurance (i.e., the assurance that no power was affirmatively proposed for Congress to provide any colorable claim of authority to take away or to abridge these rights of freedom of the press and of the right of the people to keep and bear arms).[27] And the quick resolve to add the Second Amendment, so to confirm that right more expressly, as not subject to infringement by Congress, is not difficult to understand.
The original constitutional provisions regarding the militia[28] placed major new powers in Congress beyond those previously conferred by the Articles of Confederation. These new powers not only included a wholly new power to provide for a regular, standing, national army even in peacetime,[29] but also powers for "calling forth the Militia,"[30] for "organizing, arming, and disciplining, the Militia,"[31] and for "governing such Part of them as may be employed in the Service of the United States."[32] Indeed, all that was expressly reserved from Congress’s reach was "the Appointment of the officers" of this citizen militia, for even "the Authority of training the Militia," though reserved in the first instance from Congress, was itself subordinate to Congress in the (p.1246) important sense that such training was to be "according to the discipline prescribed by Congress." [33]
These provisions were at once highly controversial, respecting their scope and possible implications of congressional power. In attempting to counter anti-ratification objections to the proposed constitution--objections that these lodgments of powers would concentrate excessive power in Congress in derogation of the rights of the people--Hamilton and Madison argued essentially three points:[34] (a) the appointment of militia officers was exclusively committed to state hands;[35] (b) the localized civilian-citizen nature of the militia would secure its loyalty to the rights of the people;[36] and (c) the people otherwise possessed a right to keep and bear arms--which right Congress was given no power whatever to regulate or to forbid.[37] And, as to the argument that the plan was defective insofar as it left the protection of the rights of the people insecure because no express prohibition on Congress was separately provided in respect to those rights (rather, the powerlessness of Congress to infringe them wa s solely a deduction from the doctrine of enumerated powers alone), Hamilton insisted that to specify anything further--to provide an express listing of particular prohibitions on Congress--was not only unnecessary but itself would be deeply problematic, because the implication of such a list would be that anything not named in the list might somehow be thought therefore in fact to be subject to regulation or prohibition by Congress though no enumerated power to affect any such subject was provided by the Constitution itself.[38] In brief, Hamilton maintained that to do anything in the nature of adding a Bill of Rights would cast doubt upon the doctrine of enumerated powers itself.
These several explanations were deemed insufficient, however, and to meet the objections of those in the state ratifying conventions unwilling to leave the protection of certain rights to mere inference from the doctrine of enumerated powers, objections raised in the course of several state ratification debates, the Bill of (p.1247)Rights was promptly produced by Madison, in the first Congress to assemble under the new Constitution, in 1789. Accordingly, as with "the freedom of the press," the protection of "the right of the people to keep and bear arms" was thus made doubly secure in the Bill of Rights.[39] Thomas Cooley quite accurately recapitulated the controlling circumstances in the leading nineteenth century treatise on constitutional law:
Cooley’s reference to English history, moreover, in illuminating the Second Amendment right (as personal to the citizen as such), is useful as well. For in this, he merely followed William Blackstone, from Blackstone’s general treatise from 1765.
In chapter 1, appropriately captioned "Of The Rights of Persons," Blackstone divided what he called natural personal rights into two kinds: "primary" and "auxiliary."[41] The distinction was between those natural rights primary to each person intrinsically and those inseparable from their protection (thus themselves indispensable, "auxiliary" personal rights). Of the first kind, generically, are "the free enjoyment of personal security, of personal liberty, (p.1248)and of private property."[42] Of the latter are rights possessed "to vindicate" one’s primary rights; and among these latter, Blackstone listed such things as access to "courts of law," and, so, too, "the right of petition[]," and "the right of having and using arms for self-preservation and defence."[43]
In contrast with all of this, the quite different view--the view of "the secure state" we were earlier considering--of countries different from the United States--assumes no right of the people to keep and bear arms. Rather, these differently constituted states put their own first stress on having a well regulated army (and also, of course, an internal state police). To be sure, such states also may provide for some kind of militia, but insofar as they may (and several do),[44] one can be quite certain that it will not be a (p.1249)militia drawn from the people with a "right to keep and bear Arms." For in these kinds of states, there is assuredly no such right. To the contrary, such a state is altogether likely to forbid the people to keep and bear arms unless and until they are conscripted into the militia, after which--to whatever extent they are deemed suitably "trustworthy" by the state--they might then (and only then) have arms fit for some assigned task.
But, again, the point to be made here is that the Second Amendment represented not an adoption, but a rejection, of this vision--a vision of the security state. It did not concede to any such state. Rather, it speaks to sources of security within a free state, within which (to quote the amendment itself still again) "the right of the people to keep and bear Arms[] shall not be infringed." The precautionary text of the amendment refutes the notion that the "well regulated Militia" the amendment contemplates is somehow a militia drawn from a people "who have no right to keep and bear arms." Rather, the opposite is what the amendment enacts.[45](p.1250)
III
The Second Amendment of course does not assume that the right of the people to keep and bear arms will not be abused. Nor is the amendment insensible to the many forms which such abuses may take (e.g., as in robbing banks, in settling personal disputes, or in threatening varieties of force to secure one’s will). But the Second Amendment’s answer to the avoidance of abuse is to support such laws as are directed to those who threaten or demonstrate such abuse and to no one else. Accordingly, those who do neither--who neither commit crimes nor threaten such crimes --are entitled to be left alone.
To put the matter most simply, the governing principle here, in the Second Amendment, is not different from the same principle governing the First Amendment’s provisions on freedom of speech and the freedom of the press. A person may be held to account for an abuse of that freedom (for example, by being held liable for using it to publish false claims with respect to the nutritional value of the food offered for public sale and consumption). Yet, no one today contends that just because the publication of such false statements is a danger one might in some measure reduce if, say, licenses also could be required as a condition of owning a newspaper or even a mimeograph machine, that therefore licensing can be made a requirement of owning either a newspaper or a mimeograph machine.
The Second Amendment, like the First Amendment, is thus not mysterious. Nor is it equivocal. Least of all is it opaque. Rather, one may say, today it is simply unwelcome in any community that wants no one (save perhaps the police?) to keep or bear arms at all. But assuming it to be so, i.e., assuming this is how some now want matters to be, it is for them to seek a repeal of this amendment (and so the repeal of its guarantee), in order to have their way. Or so the Constitution itself assuredly appears to require, if that is the way things are to be.(p.1251)
IV
In the first instance, enacted as it was as part of the original Bill of Rights of 1791, the Second Amendment merely was addressed to Congress and not to the states. The mistrust and uncertainty of how Congress might presume to construe its new powers--powers newly enumerated in Article I of the Constitution--resulted in the Bill of Rights inclusive of the Second Amendment, proposed in the very first session of the new Congress in 1789. As it was then apprehended that although Congress was never given any power to preempt state constitutional provisions respecting freedom of speech or of the press, Congress might nonetheless presume to regulate those subjects to its own liking under pretext of some other authority if not barred from doing so by amendment, the Second Amendment--and the other amendments composing the original Bill of Rights--reflected the same mistrust and were adopted for the same reason as well. But, to be sure, neither the First nor the Second Amendment, nor any of the other amendments in the Bill of Rights were addressed as limits on the states.
In 1866, however, this original constitutional toleration of state differences with respect to their internal treatment of these rights came to an end, in the aftermath of the Civil War. The immunities of citizens with respect to rights previously secured only from abridging acts of Congress were recast in the Fourteenth Amendment as immunities secured also from any similar act by any state. It was precisely in this manner that the citizen’s right to (p.1252)keep and bear arms, formerly protected only from acts of Congress, came to be equally protected from abridging acts of the states as well.
So, in reporting the Fourteenth Amendment to the Senate on behalf of the Joint Committee on Reconstruction in 1866, Senator Jacob Meritt Howard of Michigan began by detailing the "first section" of that amendment, i.e., the section that "relates to the privileges and immunities of citizens." He explained that the first clause of the amendment (the "first section"), once approved and ratified, would "restrain the power of the States" even as Congress was already restrained (by the Bill of Rights) from abridging the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures[; etc., through the Eighth Amendment].
In the end, Senator Howard concluded his remarks as follows: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." There was no dissent from this description of the clause.
Following ratification of the Fourteenth Amendment, therefore, some state constitutions might presume to provide even more protection of these same rights than the Fourteenth Amendment (and some continue even now to do so), but none could thereafter (p.1253) presume to provide any less --whether the object of regulation was freedom of speech and of the press or of the personal right to arms. And it is quite clear that in the ratification debates of the Fourteenth Amendment, no distinction whatever was drawn between the "privileges and immunities" Congress was understood already to be bound to respect (pursuant to the Bill of Rights) and those now uniformly also to bind the states. Each was given the same constitutional immunity from abridging acts of state government as each was already recognized to possess from abridgment by Congress. What was previously forbidden only to Congress to do was, by the passage of the Fourteenth Amendment, made equally forbidden to any state. Moreover, the point was acknowle dged to be particularly important in settling the Second Amendment right as a citizen’s personal right, i.e., personal to each citizen as such.
V
Again, however, one does not derive from these observations that each citizen has an uncircumscribable personal constitutional right to acquire, to own, and to employ any and all such arms as one might desire so to do, or necessarily to carry them into any place one might wish. To the contrary, restrictions generally consistent (p.1254) merely with safe usage, for example, or restrictions even of a particular "Arms" kind, are not all per se precluded by the two constitutional amendments and provisions we have briefly reviewed. There is a "rule of reason" applicable to the First Amendment, for example, and its equivalent will also be pertinent here. It is not the case that one may say whatever one wants and however one wants, wherever one wants, and whenever one likes--location, time, and associated circumstances do make a difference, consistent even with a very strong view of the freedom of speech and press accurately reflected in conscientious decisions of the Supreme Court. The freedoms of speech and of the press, it has been correctly said, are not absolute.
Neither is one’s right to keep and bear arms absolute. It may fairly be questionable, for example, whether the type of arms one may have a "right to keep" consistent with the Second Amendment extend to a howitzer. It may likewise be questionable whether the "arms" one does have a "right to keep" are necessarily arms one also may presume to "bear" wherever one wants, e.g., in courtrooms or in public schools. To be sure, each kind of example one might give will raise its own kind of question. And serious people are quite willing to confront serious problems in regulating "the right to keep and bear arms," as they are equally willing to confront serious problems in regulating "the freedom of speech and of the press." The difference between these serious people and others, however, was a large difference in the very beginning of this country and it remains as a large difference in the end.
The difference is that such serious people begin with a constitutional understanding that declines to trivialize the Second Amendment or the Fourteenth Amendment, just as they likewise decline to trivialize any other right expressly identified elsewhere in the Bill of Rights. It is difficult to see why they are less than entirely right in this unremarkable view. That it has taken the NRA to speak for them, with respect to the Second Amendment, moreover, is merely interesting(p.1255)--perhaps far more as a comment on others, however, than on the NRA.
For the point to be made with respect to Congress and the Second Amendment is that the essential claim (certainly not every claim--but the essential claim) advanced by the NRA with respect to the Second Amendment is extremely strong. Indeed, one may fairly declare, it is at least as well anchored in the Constitution in its own way as were the essential claims with respect to the First Amendment’s protection of freedom of speech as first advanced on the Supreme Court by Holmes and Brandeis, seventy years ago. And until the Supreme Court manages to express the central premise of the Second Amendment more fully and far more appropriately than it has done thus far, the constructive role of the NRA today, like the role of the ACLU in the 1920s with respect to the First Amendment (as it then was), ought itself not lightly to be dismissed. Indeed, it is largely by the "unreasonable" persistence of just such organizations in this country that the Bill of Rights has endured.
[+] William R. and Thomas L. Perkins Professor of Law, Duke University School of Law.
For example, does the protection of "houses" and "effects" from unreasonable searches and seizures extend to trash one may have put outside in a garbage can? May it matter whether one has put the can itself outside one’s garage or farther out, beside the street? See California v. Greenwood, 486 U.S. 35, 37 (1988).
I didn't write this, but I certainly agree. Whether you agree or not, it's an
interesting lesson in history. It's something to think about...
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In 1929, the Soviet Union established gun control. From 1929 to 1953, about 20 million dissidents, unable to defend themselves, were rounded up and exterminated.
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In 1911, Turkey established gun control. From 1915 to 1917, 1.5 million Armenians, unable to defend themselves, were rounded up and exterminated.
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Germany established gun control in 1938 and from 1939 to 1945, a total of 6 million Jews and others who were unable to defend themselves were rounded up and exterminated.
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China established gun control in 1935. From 1948 to 1952, 20 million political dissidents, unable to defend themselves, were rounded up and exterminated.
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Guatemala established gun control in 1964. From 1964 to 1981, 100,000 Mayan Indians, unable to defend themselves, were rounded up and exterminated.
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Uganda established gun control in 1970. From 1971 to 1979, 300,000 Christians, unable to defend themselves, were rounded up and exterminated.
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Cambodia established gun control in 1956. From 1975 to 1977, one million 'educated' people, unable to defend themselves, were rounded up and exterminated.
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Defenseless people rounded up and exterminated in the 20th Century because of gun control: 56 million.
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It has now been 12 months since gun owners in Australia were forced by new law to surrender 640,381 personal firearms to be destroyed by their own government, a program costing Australia taxpayers more than $500 million dollars. The first year results are now in:
Australia-wide, homicides are up 3.2 percent
Australia-wide, assaults are up 8.6 percent
Australia-wide, armed robberies are up 44 percent (yes, 44 percent)!
In the state of Victoria alone, homicides with firearms are now up 300 percent. (Note that while the law-abiding citizens turned them in, the criminals did not, and criminals still possess their guns!)
While figures over the previous 25 years showed a steady decrease in armed robbery with firearms, this has changed drastically upward in the past 12 months, since criminals now are guaranteed that their prey is unarmed.
There has also been a dramatic increase in break-ins and assaults of the ELDERLY. Australian politicians are at a loss to explain how public safety has decreased, after such monumental effort and expense was expended in successfully ridding Australian society of guns. The Australian experience and the other historical facts above prove it.
Guns in the hands of honest citizens save lives and property and, yes, gun-control laws affect only the law-abiding citizens.
With guns, we are 'citizens'.
Without them, we are 'subjects'.