The Civil Liberties Review
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
The Good Outweighs the Evil
Robert F. Drinan *
This is a response to the article "Why A Civil Libertarian Opposes Gun Control" by Don B. Kates, Jr. in the June/July issue of CLR. Prof. Kates's rejoinder follows on page 53.
One central question dominates any discussion of civil liberties and legislation to prohibit the private possession of handguns: do the benefits of such a law outweigh the potential costs in terms of the threats to civil liberties? In his negative response to this question, Don B. Kates, Jr. has ignored the obvious benefits of such a law and has grossly exaggerated its costs. In fact, the benefits of a ban on handguns are enormous, while the civil libertarian costs are virtually nonexistent. It is astonishing that objections should be raised against such urgent legislation on such ephemeral and illogical grounds.
Prof. Kates states at the outset that he responds to questions from liberals concerning his opposition to gun control by asking them the following question: "How can a civil libertarian trust the military and the police with a monopoly on arms and with the power to determine which civilians may have them?"
This response contains the same unwarranted suppositions and flawed reasoning that characterize the arguments which follow. Prof. Kates's rhetorical question-and his entire essay-assumes the following: that handgun prohibition and long-gun licensing and registration would give the police and the military a monopoly of arms, which is not true; that possible "selective non-enforcement" of gun control laws poses a serious threat to the rights of dissenters, which it would not; and that handguns are valuable tools of self-defense, which they are not.
An analysis of these three basic assumptions, and of several related issues, constitutes an answer to Prof. Kates's initial rhetorical question and a thorough refutation of his argument that gun control legislation is objectionable on civil libertarian grounds. [Page 45]
Gun caches uncovered by New York City police. (New York Post photographs
by Richard Gummere [top] and Gerald Engel. © 1974, New York Post Corporation.)
Handgun Prohibition Will Not Create A Police/Military "Monopoly of Arms"
While the title of Prof. Kates's essay refers only to handgun prohibition, he proceeds to rest much of his argument on the assumption that gun control would completely "disarm" the public. Even the most dedicated advocates of gun control legislation, however, do not call for a ban on the sale or possession of all firearms. If the most far-reaching gun control legislation introduced in this Congress were enacted, all so-called long guns (that is, all firearms except handguns) would remain lawful. The only encumbrances upon their possession would be a system of licensing and registration to aid in the tracing of firearms used in the commission of crimes. Such a system would also prevent the purchase of such weapons by convicted felons, mental incompetents, or other individuals who are, by objective standards, not qualified to own a firearm. Presumably, those people prevented from purchasing guns by a registration and licensing system would include many of the violence-prone individuals who, as Prof. Kates points out, threaten the rights of dissenters. Only handguns, which are concealable and hence perfect for criminal assaults, would be subject to an outright ban. Those individuals who, like Prof. Kates, persist in the belief that firearms are desirable for self-defense purposes would remain perfectly free to purchase a rifle or shotgun for the protection of their homes, offices, or meeting places. Prof. Kates's spectre of a totally disarmed citizenry at the mercy of a police force which enjoys a monopoly on all firearms is highly misleading.
The most serious civil libertarian issue raised by Prof. Kates, and in many ways the most important point in his entire essay, is the relationship between what he calls the right to self-defense and the right to dissent. "The right to self-defense" is, given the facts about gun control, a somewhat misleading phrase. First., since only handguns would be prohibited, dissenters would still be able to avail themselves of rifles and shotguns if they choose to do so. Thus, we are not dealing with any absolute "right to self-defense" in the context of -firearms. Second, as I will demonstrate shortly, the defensive value of owning a gun is far outweighed by the frequency with which the weapon is, accidentally or otherwise, turned against its owner, his family, or his friends.
Dissenters Will Be Protected, Not Threatened, by Enforcement of Gun Control Laws
Prof. Kates's central point is . the fear that gun control laws would be selectively enforced. This would supposedly enable individuals or groups not objectionable to law enforcement organizations to purchase and use firearms against dissenters, while the dissenters would be unable to obtain weapons for their own defense.
There are several major flaws in this line of reasoning. The most obvious is that if stringent gun control laws were enforced, there would be a general decline in the availability of firearms to violence-prone individuals and groups. While one might concede that isolated instances of selective nonenforcement are possible, there would certainly be far more instances in which violence-prone people would be denied access to firearms. To the extent that this would occur, dissenters and other unpopular targets of such individuals would enjoy greater protection from harassment through the operation of stringent gun control laws. In the absence of any firearms controls (a situation apparently considered desirable by [Page 47] Prof. Kates), the Ku Klux Klan and other such groups would obtain and, of greater importance, actually would use guns to a far greater extent than the normally nonviolent dissenters whom Prof. Kates would protect.
Another fundamental problem with Prof. Kates's argument is his conclusion that selective nonenforcement is inevitable. Several states have had experience with gun control laws which are considerably tougher than existing federal standards. To date it appears that selective nonenforcement in order to benefit or punish particular groups has not been a serious problem. Indeed, the broad nationwide support for handgun prohibition among law enforcement officials suggests that enforcement would be both tough and fair.
Even if one admits that occasional instances of unfair enforcement of the law are possible, one can hardly conclude, as Prof. Kates does, that the proper remedy is the removal of the law. We are all familiar with the carnage caused by the virtually unlimited availability of firearms, particularly handguns, in our country. Atlanta Public Safety Commissioner A. Reginald Eaves recently told a congressional committee that "three out of four deaths could have been prevented, were a handgun not available." Boston Police Commissioner Robert diGrazia added that "the unavailability of handguns would lead to the noncommission of many crimes."
The rising rate of crimes involving handguns has spurred continually rising levels of public support for tough gun control legislation. A Gallup poll released in June 1975 indicates that two-thirds of all Americans favor the licensing and registration of all firearms, and 41% favor a ban on the private possession of handguns. A poll conducted by the National [Page 48] Opinion Research Center for CBS News, released in June 1975, indicates that 51% of the American public favors such a ban-the first time a survey has revealed that a majority of all Americans favors such action. Where such legitimate public interest exists, possible unfair enforcement of laws designed to achieve that interest does not lead us to abrogate the laws. The proper response is to endeavor to eliminate the isolated instances of unfair enforcement.
Prof. Kates's admirable efforts to aid in the fight for civil rights in the South in the early 1960s have apparently exerted a great influence on his views regarding gun control, dissent, and self-defense. The experience of confronting an armed mob acting with the tacit approval of the local police is certainly a powerful and searing memory, and one which can be expected to instill strong feelings in support of the right to purchase arms for self-defense. It must be conceded, however, that such abdications of responsibility by the police are highly unusual, particularly in the light of civil rights progress in the South.
For each example of attacks on unarmed minorities by armed people against whom the police did not enforce anti-gun laws (and most of these instances cited by Prof. Kates occurred in foreign countries), one could list hundreds of deaths caused by the unlimited availability of handguns. The solution to the problem of occasional, isolated nonenforcement of the law is not to advocate, as Prof. Kates apparently does, a society in which everyone goes armed in the interest of self-defense, but rather to embark on the far less dangerous and far more sensible course of drafting an impartial and fair law and then seeing to it that the law is enforced with strict objectivity.
Problems of Enforcement
Prof. Kates raises the related point of impossibility of enforcement. He claims that the police would be no more successful in enforcing a prohibition against handguns than they were in enforcing the prohibition against the manufacture, sale, or importation of alcoholic beverages.
While one can argue that an analogy does exist between the Volstead Act and a ban against handguns, prohibition was absolute in the case of alcoholic beverages, while in the case of firearms, such a ban would be partial; individuals who have legitimate sporting or self-defense interests will be able to purchase long guns. Moreover, the human proclivity to consume alcoholic beverages is surely more powerful than the desire to own handguns (particularly when long guns are available.) It seems highly unrealistic to expect the same sort of difficulty in enforcing a law which, unlike prohibition in the 1920s, does not outlaw absolutely a very powerful human desire. That enforcement would not be completely effective is irrefutable; this cannot, however, serve as the rationale for abandoning the law. Many existing laws, such as those outlawing larceny or the possession of heroin, are difficult to enforce, but no one suggests that for this reason they be rescinded.
Prof. Kates suggests that the ban on handguns would be particularly difficult to enforce because a gun can be bought in a single transaction and may last for a generation or more. A machine gun, however, shares these same characteristics -- and we have declared it illegal because its destructive power, particularly suited for criminal assaults, is not matched by any countervailing legitimate use. The same is true of the handgun. [Page 49]
A related argument offered by Prof. Kates is that the enforcement of a prohibition on the possession of handguns would produce major additional strains on the Fourth Amendment privilege against unreasonable searches and seizures. Given the enormous number of items currently prohibited by law, it seems highly unlikely that the addition to the list of one more illegal commodity would lead to a significant increase in the incidence of police searches. Gun control advocates do not envision or support massive police intrusions into private homes in search of handguns; the constitutional requirement of a specific warrant obtained as a result of corroborating evidence and signed by an impartial magistrate would remain in force to preclude unreasonable searches.
Handguns Are Not Viable Tools For Self-Defense
The alleged value of handguns as tools for self-defense is a major underpinning of Mr. Kates's argument. In support of this position he cites a number of isolated examples in which handguns were effective in defense against attacks. These graphic examples of individual instances of self-defense are hardly persuasive. For each such example, there are literally thousands of accidental and deliberate homicides and assaults in which a handgun was used against the owner of the rearm, his family, or his friends.
No real point is proved by compiling long lists of examples on either side of the self-defense question. Only overall statistics can provide an accurate. estimate of the real value of handguns as weapons of self-defense--and these statistics clearly demonstrate the bankruptcy of the self-defense argument. An FBI report, Crime It) the United States, 1973, reveals that a firearm kept in the home for self-defense is six times more likely to be used in a deliberate or accidental homicide involving a relative or a friend than against a burglar or unlawful intruder.
A National Crime Panel Survey in 1973 entitled "An Analysis of Victimization Survey Results from the Eight Impact Cities" indicates that only 3.5% of those owning guns even had the opportunity to use their firearms when they were assaulted or robbed either at home or on the street. This study was based on data in Atlanta, Baltimore, Cleveland, Dallas, Denver, Newark, Portland, and St. Louis.
All of this is hardly surprising in light of the FBI estimate in 197 3 that 99% of all burglaries occur when no one is at home. Contrary to Prof. Kates's assertion, it would seem that the presence of a gun in the home, if this is known to a prospective burglar, would probably constitute an inducement, rather than a deterrent, to the commission of a crime. A gun in an empty house is a lure. A 1973 study by the Criminal Justice Coordinating Council of New York City estimates that half-a-million handguns were stolen during burglaries in the previous year.
Shopowners, too, are safer if they do not court armed attacks by keeping guns in their stores. Patrick V. Murphy, president of the Police Foundation and former police commissioner of New York City, stated: "I've always recommended to shopkeepers that they not have guns because, in my experience, what happens more often than not, is that violence begets violence. When we look at the total picture, I think that shopkeepers are killed more often or injured more often when they draw a gun. . . . I think you're safer as a small store owner not to have a gun."
These and other recent studies confirm the conclusion of the Eisenhower Commission that "the gun is rarely an effec- [Page 50] tive means or protecting the home. Kates's dismissal of the commission's report for "lack of evidence" is unwarranted. The evidence is now in, and it is convincing: the frequent absence of any opportunity to utilize firearms in such situations, the danger involved in doing so, and the staggering number of accidental and pass ion- inspired injuries to relatives and friends directly attributable to the easy availability of handguns destroy the myth of self-defense. The conclusion is inescapable: those who own handguns for self-defense are engaging in dangerous self-deception.
In order to buttress his self-defense argument, Prof. Kates suggests that those most likely to be victimized by criminal assaults, the poor people living in the central cities, are opposed to gun control legislation, particularly those proposals which would deprive them of their right to purchase handguns for self-defense. The rich, who have escaped the crime-infested central cities and have less need for handguns, Prof. Kates asserts, are the prime advocates of gun control.
This position is directly contradicted by several public opinion polls which demonstrate that support for stringent gun control laws is highest in the high-crime areas of the central cities. For example, a Gallup Poll -survey released in June 1975 indicates that 66% of the American people living in cities with populations over one million favor banning handguns. Clearly, those most familiar with the problem of our nation's soaring crime rate, its most frequent victims, are the strongest advocates of gun control. Those who might be expected to adopt Prof. Kates's self-defense argument most fervently in fact reject it most overwhelmingly.
Women and Handguns
One of Prof. Kates's most outrageous suggestions is the notion that women are particularly., in need of handguns for self-defense. In making this assertion, he ignores the central fact that a principal reason for the extraordinary level of violence in our society is the virtually unparalleled availability of firearms, particularly handguns, which are the weapons most commonly used in street assaults.
It is noteworthy that women are consistently more supportive of tough gun control legislation than men; indeed, in the most recent Gallup Poll survey on this subject, women advocated tough gun control legislation in greater numbers than any other group. A survey of metropolitan Chicago residents (conducted by Marke-Trends, Inc., assisted by the National Opinion Research,Center and Prof. James Wright of the University of Chicago, released in November, 1975) demonstrates that women are consistently among the most enthusiastic supporters of gun control. On the subject of an outright ban on the possession of handguns, 52% of the women polled were in favor of such a law, while only 37% of the men favored it. Among the women 86%, as against 72% of the men, agreed with the observation that control of guns would reduce street crime.
Many women's groups have taken positive action to speed the enactment of a ban on the sale or possession of handguns. They include the American Association of University Women; B'nai B'rith Women; the International Ladies' Garment Workers Union; the Massachusetts League of Women Voters; the National Council of Jewish Women; the National Council, of Negro Women; the Women's Division, Board of Global Ministries, United Methodist Church; and [Page 51] the Young Women's Christian Association of the U.S., National Board. The Massachusetts League of Women Voters has led an apparently successful petition drive to place the issue of a handgun ban on the ballot in that state.
It is clear that the women of this country are more sensitive than Prof. Kates is to , the dangers of unrestricted access to handguns. Existing statistics and common sense indicate that for each instance of successful self-defense there would be many unsuccessful attempts leading to serious injuries and deaths, accidental and pass ion-inspired shootings, and thefts of guns by violence-oriented individuals. Former Police Commissioner Murphy summed up the situation well: "Anyone who goes out on the street armed with a handgun for self-defense is courting disaster."
Prof. Kates's arm-the-women campaign is simply a part of his overall arm-the-citizenry syndrome, and it has no more merit than, does his general theory.
Handgun Prohibition: Major Benefits Without Libertarian Costs
Prof. Kates asserts that there is no demonstrable need for a prohibition of handguns, that existing firearms control efforts suggest that such legislation is not effective, and that civil liberties would be jeopardized by a handgun prohibition. I have already dealt extensively with the civil liberties argument. Before proceeding to a brief analysis of the overwhelming need for firearms control, I would like to make one final point with regard to the civil liberties issue.
The availability of cheap, easily concealable handguns is, I believe, one of the Principal reasons for the intolerable crime rate in this country. This rising crime rate not only deprives many of our citizens of the right to walk the streets with-out fear; it also helps to foster the political climate in which "law and order" is elevated above the protection of certain civil liberties. Thus, a prohibition on the possession of handguns would reduce the fear which prevents many people from exercising their most basic rights, and would help to reverse the "law and order" trend which dominates domestic politics and threatens civil liberties. These positive effects of gun control legislation depend upon the belief that such laws would, in fact, reduce the rate of violent crime. This belief, as I shall attempt to explain, is an eminently well-founded one.
Prof. Kates seriously distorts the views of gun control advocates, asserting that they believe ". . . crime will cease when its victims are deprived of the means of self-defense." No one believes that crimes will cease upon the enactment of gun control legislation. It is clear, however, that firearms play a grossly disproportionate role in crimes of violence. The statistics are familiar, and the facts which they reveal have led a growing number of Americans to favor stringent gun control measures: [Page 52]
r According to FBI crime statistics (Crime in the U.S., 1973), the handgun, with little legitimate sporting capability and representing only 20% of all firearms, accounts for 53% of all murders and 95% of all armed robberies in the United States.
r According to the same FBI study, over 65% of all murders involve family members or friends and are not the result of criminal design, but rather are crimes of passion in which the ready availability of the handgun is surely a major factor. As Judge George Edwards of the Sixth Circuit Court of Appeals put it: "Most murder in real life comes from a compounding of anger, passion, intoxication and accidents-with the victims being wives, husbands, girl friends, boy friends, prior friends, or close acquaintances. . . . A loaded handgun, alcohol, and passion in the same home are a time bomb."
r The 1973 FBI study documents 30,000 firearms deaths, 160,000 armed robberies, and 100,000 armed assaults, mostly involving handguns. Addressing the enormity of the firearms crisis in the United States, former Washington, D.C. Chief of Police Jerry V. Wilson stated: "Nothing less than a drastic reduction of the handgun presence will take and keep pistols out of the hands of criminals who use them to rob and terrorize our communities, and of honest citizens who use them to kill their families and friends and themselves."
These shocking (and still rising) figures are many times greater than corresponding totals in other Western countries which, uniformly, have enacted stringent gun control laws. The positive experience of these nations is also an indication of the effectiveness of tough firearms control legislation.
Prof. Kates's criticism of the results of existing state gun control programs is not persuasive. "Project Identification," a nationwide survey conducted by the Bureau of Alcohol, Tobacco, and Firearms of the U.S. Department of the Treasury (ABT), released in February 1976, reveals that the ease with which guns are transported from one jurisdiction to another frustrates the existing laws. Prof. Kates cited the relative ineffectiveness of New York's tough state law, but the ABT study shows that over 90% of the handguns used in crimes in New York were purchased in other states. Studies of state firearms control laws actually demonstrate only one thing: the need for national legislation.
The data contained in the Bureau of Alcohol, Tobacco, and Firearms study render worthless. the conclusions of the University of Wisconsin study so heavily relied upon by Prof. Rates. The Wisconsin analysis was based upon comparisons between each state's gun control law and its crime rate. The ABT report, however, demonstrates that the ease of intra-state purchase and transport of firearms dramatically reduces the effectiveness of tough local gun control legislation. Indeed, the report concludes: "The percentage of crime handguns purchased interstate was directly proportionate to the degree of local control." As long as there is no national gun control law and there are states in which the purchase of firearms is virtually unencumbered, state-by-state comparisons such as that employed by the Wisconsin study are of little value.
It is common knowledge that a large percentage of handguns used in crimes are stolen. Prof. Kates's apparent advocacy of an armed citizenry would only increase the number of weapons subject to theft, accidents, and crimes of passion. The massive evidence linking handguns [Page 53] with crimes of violent cannot be dismissed as "mere hopeful speculation." Alone among the Western nations, the United States permits the unrestricted availability of handguns, and alone it suffers an astronomical crime rate. The only sensible solution, in the interest of civil liberties as well as public safety, is to reject the notion that we can fight violence with more violence (a notion whose results we have seen), and choose instead to attack violence at its source by banning the private possession of handguns.
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* Rep. Robert F. Drinan (D.-Mass.), a member of CLR's editorial committee, is an ordained priest in the Society of Jesus, and a former dean of the Boston College Law School. Now serving his second term in Congress, he is a member of the House judiciary Committee, the House Government Operations Committee, and Members of Congress for Peace Through Law. He is chairman of the World Order Strategy Committee and vice-chairman of the Democratic Study Group Task Force on Constitutional Rights.
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The most useful congressional publications on the subject of handgun control include the following: U.S. Congress, House of Representatives, committee on the judiciary, Subcommittee on Crime, Firearms Legislation, Hearings, 94th Congress, 1st session (Washington, U.S. Govt. Print. Off., 1975); U.S. Congress, House of Representatives, Committee on the judiciary, Subcommittee No. 5, Gun Control Legislation, Hearings, 92d Congress, 2d session (Washington, U.S. Govt. Print. Off ., 197 2); U.S. Congress, Senate, Committee on the judiciary, Subcommittee to Investigate juvenile Delinquency, "Saturday Night Special" Handguns, Hearings, 92d Congress, 1st session (Washington, U.S. Govt. Print. Off., 1972); U.S. Congress, Senate, Committee on the Judiciary, Handgun Control Act of 1972, report together with supplemental and additional views to accompany S. 2507 (Washington, U.S. Govt. Print. Off., 1972).
Several authors have addressed the issue of the handgun as the principal source of homicide in the U.S. One of the most distinguished is judge George Edwards of the U.S. Court of Appeals for the Sixth Circuit. He effectively contradicts the argument that the handgun is a worthwhile.tool for self defense in "Commentary: Murder and Gun Control," 128 American Journal of Psychiatry 811 (1972). A study conducted at the Case Western Reserve University Medical School demonstrated that handguns kept for self-defense purposes are far more likely to result in an accidental fatality than in utilization for self-defense: Hirsh, Rushford, Ford, and Adelson, "Accidental Firearms Fatalities in a Metropolitan County," 100 American Journal of Epidemiology 504 (1975). Another excellent work on this subject is "How Well Does the Handgun Protect Your Family?" by Matthew G. Yeager with Joseph D. Alviani and Nancy Loving, published by the U.S. Conference of Mayors, 1976 (Washington).
There are many outstanding Books and articles on the more general subject of handguns and efforts to control them ' Perhaps the best concise analysis of this subject is Robert J. Riley's "Shooting to Kill the Handgun: Time to Martyr Another American 'Hero'," 49 Journal of Urban Law 51 0 97 4). This is one of the most articulate and well-documented brief studies of handgun abuse. A longer, more discursive work is Robert Sherrill's The Saturday Night Special (New York: Charterhouse, 1973), a thorough and sharply worded analysis of the gun control issue in its broadest context. The chapters on America's unique, irrational love for firearms, the lobbying efforts of the National Rifle Association, and Capitol Follies, documenting congressional inability to respond to public demand for gun control, are particularly interesting. Although some of its statistics are outdated, the most comprehensive and authoritative study of firearms control remains Franklin E. Zimring and George D. Newton, Jr.'s Firearms and Violence in American Life, A Staff Report to the National Commission on the Causes and Prevention of Violence, (Washington: U.S. Government Printing Office, 1970).