American Journal of Police Science
Sept./Oct. 1931, Page 440
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
PISTOL REGULATION: ITS PRINCIPALS AND HISTORYBy KARL T. FREDERICK
Editor's Note: For a number of years past the subject of proper regulation of the ownership and use of small arms has been engaging the attention of legislators throughout the United States. A great many bills have been enacted of which practically no two were alike. Some have appeared to have produced beneficial results, in other instances quite the opposite has been the case. In August, 1930, the National Conference of Commissioners on Uniform State Laws, meeting in Chicago, finally approved a Uniform Firearms Act which had been before it for consideration over a period of several years. This Act was subsequently accepted as satisfactory by the American Bar Association.
In the article which follows, which was published by Mr. Karl T. Frederick, a distinguished member of the New York Bar, in The American Rifleman in its issues of December, 1930, to July, 1931, the draft of this Act is set forth, together with Mr. Frederick's discussion of the history of firearms legislation up to the present time. All persons interested in the subject of Pistol Regulation will find herein much valuable data presented by a person who has made a careful study of the situation and who is extremely well qualified to make there-from useful deductions. The article will appear in two or more issues of the JOURNAL. Part one follows.
PART I.
The regulation of the purchase, possession, and use of firearms, whether by Federal, State, or local laws or ordinances, is a matter of vital concern to all that great number of men, and women too, who love their innocent use. Publicity seekers or reformers of the type who are prepared on ten minutes' notice to cure any and every social ill, whether real or fancied, by the time-worn expedient of "passing another law," have busied themselves for many years with proposals of every conceivable kind with respect to firearms. No year passes without the accompaniment of numerous legislative proposals to restrict or abolish the manufacture, possession, or use of firearms and ammunition. Fortunately, most of these die unborn; but there is hardly a State in the Union whose statute books do not contain laws relating to firearms. Many of the bills which have been proposed from time to time have been weird in the extreme. Nevertheless earnest study and serious thought have been given to the subject by a few persons, and some of the legislative proposals which have resulted have been intelligent and well designed pieces of work.
It is, of course, quite unnecessary to argue to readers of The American Rifleman that firearms ought not to be abolished. It will no doubt be useful, however, to set forth the situation with some little [Page 441] care for the purpose of presenting the facts which relate to the situation, the arguments for and against restrictive firearms legislation, and something of the history of the struggle which has been going on for a number of years between the active group of persons who either sincerely believe or pretend to believe that drastic regulation or restriction of the use of firearms will accomplish a great public benefit, and the large but unorganized general public which hesitates to accept the theories of the self-appointed reformers. It is quite clear that the greater part of the public knows little or nothing about the merits of the question presented. As in all such matters the bulk of the populace will doubtless remain inarticulate, unorganized, and incapable of self-expression. It will probably in the future as in the past continue to be a prey of vociferous groups which make up in noise what they lack in principles and intelligence and which frequently succeed in accomplishing their designs because the public as a whole has no adequate method of defending itself and protecting its interests.
Effective opposition to the schemes of those who shout for the abolition of firearms must come largely from organizations such as the National Rifle Association and the United States Revolver Association and from other bodies such as surety companies, organizations of sportsmen, reserve officers, legionaires, and other similar bodies. It is hoped that the present articles will aid the members of this large and public-spirited group to offer effective opposition to the drastic proposals which are so often encountered and to assist them in obtaining reasonable, sensible, and fair legislation affecting firearms.
While agitation has been chiefly directed at pistols and revolvers, it must be apparent to every thoughtful person that this is but a first step toward the restriction or destruction of all firearms. Almost every argument, which is used against the handgun is equally applicable to rifles and shotguns. The sawed-off shotgun is almost as common a tool of crime as the pistol, and it can hardly be denied that it is a much more dangerous weapon. Other types of firearms would undoubtedly continue to be used in the perpetration of crime even after pistols were abolished. The reformers would not, however, admit the failure or unsoundness of their program. They would merely assert the necessity Of extending it to all firearms and ammunition, and we would then come face to face with the proposition of Completely disarming the nation. The battle against unreasonable pistol legislation is, therefore, not one which is of interest solely to pistol shooters. It is of vital concern to all riflemen and shotgun-shooters. [Page 442] For that reason the National Rifle Association has been and will continue to be alert and active in the interest primarily of shooters as a class, and in a larger sense in the interest and for the sake of the general public welfare. The safety, indeed the very existence of the nation may depend in the future, as it has at times depended in the past, upon the familiarity and efficiency of the whole people in the use of firearms.
THE ANTI-PISTOL ARGUMENT
The argument of those who favor drastic and extreme legislation may be summarized as follows:
(1) "Crime is rampant and appears to be increasing. Much of it is accompanied by violence. Murders and robbery are common. (2) The only purpose of a pistol or revolver is to kill. Everyone who has a pistol is a 'potential murderer.' (3) Pistols are common tools of the criminal. They should be classed with 'burglar's tool.' (4) A pistol is of little or no value for purposes of defense and has no other substantial reason for existence. Criminals ought not to be allowed to obtain or to possess them and honest people have no good reason for having them. Therefore," they conclude, "let us pass a law which will make it impossible for the criminal to obtain a pistol. By so doing the crook will be deprived of his most important tool. Criminals cannot commit crime unless they possess the instruments of crime. The new law will, consequently, prevent crime or, at least, will prevent those crimes of violence which are now perpetrated with the aid of a pistol."
This argument has a plausible sound. It appeals to a considerable number of people who know nothing about guns, and it is swallowed whole by that portion of the public who do not think about what they read or hear but who are ready to accept almost any strong and readymade idea which is handed to them for consumption in tablet form.
THE ANSWER
(1) Crime Is Rampant
Let us begin by examining the various propositions which are contained in the foregoing argument. Crime is rampant and appears, for the present at least, to be on the increase. More and more of it seems to be accompanied by violence. The statement appears to be fully borne out by such figures as are available. In 1904 out of every 100,000 of the general population, 69 were in prison. In 1923 the [Page 443] figure had increased to 74 and in 1927 to 85. Homicides per 100,000 of population increased from 6.6 in 1912 to 8.7 in 1927. The murder rate in this country is said to be three and one-half times what it was in 1900. The money cost of crime has been variously estimated at from $2,500,000,000 to as high as $10,000,000,000 per year in the United States. These figures are ominous indeed. The shocking effect of the increasing toll of violent crime upon the public mind, terrible as it is, is further greatly magnified by the almost unlimited notoriety and prominence which is given to such crimes in the public press. To realize this fact, we have only to compare the widespread interest which attends a murder as compared with an automobile death. In 1929 some 31,000 people lost their lives in the United States through automobile accidents. This frightful total was more than three times as great as the total number of homicides in the United States during 1929; nevertheless the announcement attracted less attention from the public press than is commonly accorded to a single sensational holdup or gang killing.
When we look at the money losses through crimes of violence, it is, of course, impossible to submit accurate or thoroughly reliable figures. Experienced estimates based on the data available to surety companies and similar institutions indicate, however, that the money losses through crimes of violence amount to less than 3 per cent of the total annual crime losses of the nation. The losses which are suffered through fraud in its various forms are incredibly greater than those which occur from violence.
A competent student of crime in a recent article made the following statement:
"It would appear from studies that have been made in several of the States in recent years that there are two main divisions of the problem of crime. In one, which accounts for about 30 per cent of the aggregate of crimes notified to the police, the acts themselves and the motives subsequently disclosed are indistinguishable from those with which society has had to deal in all the centuries of modern times. In the second category, which includes, one is amazed to learn, 70 per cent of the reported infractions, the commission of crime is neither more nor less than the operation essential to the production of profit in an organized business of colossal proportions.
"Concerning the crimes included in the first 30 per cent, crimes of passion, of impulse, of temptation, of weakness, and generally speaking, of individual concept and individual execution, it appears to be agreed that the administration of the criminal law is effective [Page 444] in about the proportion it always has been; but as to the other 70 per cent, it has been demonstrated that those who plan crimes for profit also plan for the escape of the criminals.
"* * * The financial stake which dominates the conflict is estimated by the surety company at three thousand millions of dollars annually in the United States and by others at two or even three times that amount. After careful and intelligent surveys of the losses sustained by the crime business in the contest with the forces of law, the success of the criminal aggressive has been rated as in the proportion of 85 to 15." (Martin Conboy in New York State Bar Association Bulletin, March, 1930.)
To put this statement in other words, 70 per cent of present-day crime is organized and carefully planned and plotted and it goes unpunished 85 times out of 100.
In 1925 the late Governor Hadley, of Missouri, made the following statement to the American Bar Association:
"I gathered, in the investigation I made as Chairman of the Committee of the American Law Institute, statistics from a majority of the States and I have carefully examined those gathered by other committees and commissions, and it is my judgment that of those committing major crimes * * * not one out of every ten is apprehended and adequately punished * * * that our system of apprehending and prosecuting those who commit major crimes is only from 10 per cent to 15 per cent efficient; that as to those apprehended and indicted for major offenses, it is only from 25 per cent to 30 per cent efficient * * * and that as to those actually tried for major offenses, it is not over 50 per cent efficient."
As Mr. Martin Conboy has very pertinently said:
"Certainty of arrest and of punishment after arrest would come close to ending the industry altogether."
No well-informed person can deny that the crime situation is a very serious one; but it has always been a serious one. We cannot, of course, prove the statement by statistics, but the student of history must apparently conclude that crimes of violence, at least, were much more prevalent in the Middle Ages and in early times than they are at the present time. Inefficient as it is in preventing crime, society is much better organized, has much better means of communication, and is much better prepared to detect and punish crimes of violence than it used to be. The days have passed when it is unsafe to pass through a city street at night without an armed guard. A trip from one city or town to another no longer involves serious ele- [Page 445] ments of personal danger. And this improvement has 'come about coincident with and partly because of the development of firearms.
Pistols have been in common use for only three or four hundred years. They have been manufactured in large quantities only for the last seventy-five, or one hundred years. During that time personal safety has become the rule rather than the exception. We cannot avoid the conclusion that pistols are not a cause of crime. Cain did not need a pistol to kill Abel. Brutus slew Caesar without a pistol. The Borgias eliminated their enemies without the aid of firearms. Robin Hood and his merry men were not dependent upon the handgun for the success of their ambuscades.
While we are referring to the good old days, it is worth while to recall that severity of punishment is not the cure for crime. Certainty and promptness of punishment rather than severity are more effective. There was a time, as we all know, when in England considerably more than two hundred separate offenses were punishable by death. Nevertheless, that period was one of the most lawless and violent known to history. The utter failure of the drastic technique in the suppression of crime is universally acknowledged.
(2) "Potential Murderers"
The next proposition which we mentioned in the argument of those who want to abolish pistols is to the effect that these weapons are the common and necessary tool of the criminal, that the only purpose of the pistol or revolver is to kill, and that everyone who has a pistol is a "potential murderer."
It would be hard to imagine a more false or misleading statement. It is not clear just what is meant by the term "potential murderer." If it means that a person who possesses a pistol is likely for that reason to become a murderer, it is an outrageous slander against every one of the ten or fifteen million Americans who possess a firearm. Would any person who makes such a thoughtless statement admit that every member of the Army and Navy, every sportsman who shoots, every police officer, every sheriff, and every deputy sheriff, and almost every bank teller and express messenger in the country is a "potential murderer"? If so, we had better admit that the tendency toward murder is so universal–that the instinct to kill a human being is so deeply ingrained in the human animal–that it should be recognized and encouraged like the natural longing for life, liberty, and the pursuit of happiness. The statement, if it is true in any sense of the ordinary possessor of a firearm, is equally true of every [Page 446] farmer, woodsman, or householder who has an ax, of every artisan who has a chisel, of every man who has a razor, of every housewife who has a butcher knife or a bread knife. It is not necessary to stop with such an enumeration of manufactured articles. The statement is equally true and equally false of every human being who can lay his hands upon a club or who can grasp a stone. The statement is equally true and equally false of every living human being who possesses sufficient physical strength and intelligence to move and to control the movements of his arms and legs.
The statement obviously is not intended to be taken in this sense. It is rather intended to convey the impression not only that the possessor of a firearm has the physical power to kill but that he has latent or active in his mind and character the will to destroy his fellow man, and in some way the implication is intended to be conveyed that this desire or willingness to kill is caused by the possession of a firearm. The statement is one of that class to which we are accustomed, phrased in resounding terms, formulated as a sort of slogan and intended to influence human thought and sympathy not by any appeal to reason or truth, which are ignored, but rather by the sheer force of sound and because of the striking and arresting phraseology employed.
A "potential killer," if it means anything, means, not a man who has the physical power to kill, but rather a man or woman who has the desire, the intent, or the willingness to kill. And these qualities are qualities of the mind and of the mind alone. They do not depend in any degree for their existence upon the possession of the means for killing. If they exist, the means can readily be found, whether it be a pistol, a razor, an ax, a chisel, a club, poison, or any of the other innumerable means, not excluding the bare hands or fists which have been used for the accomplishment of murder since the world began.
The statement that every person who has a pistol is a "potential murderer" is in its implications, as we have said, not only a false but an outrageous slander against every member of the human race. The statement is just as true of the man who makes it as it is of his fellowmen. It would be just as honest and just as truthful to say that every man who advocates the abolition of firearms is a "potential murderer." A man with a gun may be a "potential murderer" and the man who wants to destroy it may likewise be a "potential murderer," but in neither case is he such an enemy of society because of his mere possession of or opposition to firearms. [Page 447]
The Users of Pistols
Let us consider for a moment who are the possessors and users of pistols. They are said to be the common tools of the criminal. Grant that they are frequently used in the perpetration of crime. Let us not forget that they are also used for the prevention of crime. As to the uses of pistols, it is, of course, impossible for anyone to assemble statistical data. Nevertheless, there is excellent ground for the statement that more than 98 per cent of the pistols in this country were made and are used for entirely legitimate and proper purposes. We may summarize the purposes for which pistols are used–both good and bad–as follows:
1. The use of pistols by the police, secret service, and other law-enforcement officers.
2. The use of pistols by the Army, Navy, Marine Corps, National Guard, and Organized Reserves.
3. The use of pistols by bank guards and bank employees, express and mail agents, watchmen, messengers, etc. The extent of this type of use is very great. As an example, we may cite the fact that a single bank in the city of New York employs an instructor and gives regular instruction in pistol-shooting to more than 1,200 of its employees who are armed with the pistol for the protection of life and property.
4. The use of pistols by target-shooters and sportsmen. The number of these can hardly be estimated. That it is very large cannot be doubted. More than 7,0000,000 people are reliably reported to indulge in hunting annually. A large percentage of them use or at least own pistols.
5. The possession or use of pistols for the protection of the home and the place of business. We shall have more to say regarding the sneers of those who deride and decry the principle of self-defense. No one can deny, however, that an enormous number of guns are kept for the sole purpose of affording a means of defending the lives, the families, and the property of American citizens.
6. The use of pistols by criminals. Unless this final group is more numerous than any of us imagine, it must constitute but a small percentage of the entire number. Nevertheless, it alone is the group which makes all of the trouble and which, from the misuse of firearms, inspires the well-meaning reformer to urge the abolition, first of pistols, and then of all other guns.
No figures, of course, exist to show the totals comprised by the foregoing classes. It does not seem unreasonable, however, to estimate [Page 448] their number at from 5,000,000 to 8,000,000. Two per cent of such a number amounts to at least 100,000. Whether the group classed as criminals who use pistols in the perpetration of crime amounts to as many as 100,000 can only be a matter of guess. In making such an estimate we must not forget that by far the greatest number of crimes do not involve violence. Reliable estimates indicate that about 97 per cent of the money losses due to crime are accomplished by fraud and other non-violent means and that not more than 3 per cent of the money losses from crime involve the element of violence.
We shall have more to say a little later on with regard to the use of pistols by the various classes which have just been enumerated. It is sufficient for the present to remark that it requires but a moment's honest reflection to bring one to the conclusion that the overwhelming proportion of those who possess and use pistols do so for entirely legitimate purposes, are not disposed to crime and are not "potential killers" in any true sense of the term.
There is another expression which was used in the proposition which we are now considering to which we desire to call attention in passing. It is to the effect that "the only purpose of the pistol or revolver is to kill." Why this expression should be limited to pistols or revolvers is hard to understand. If it is true, then it applies equally to shotguns, rifles, and all forms of firearms. The statement, of course, is merely another form for expressing the same idea which is intended to be conveyed when one talks about "potential killers." If everyone who possesses a pistol does so for the purpose of killing, some human being, then everyone who possesses a shotgun or rifle must likewise do so for the purpose of killing a human being.
Society is indeed in a sad condition if the statement has any substantial ground of truth. If every possessor of a firearm thereby discloses a murderous nature, why should not this fact be turned to account and the millions of owners of guns be put under bonds to keep the peace? Why would it not be better still to put them all in jail or rather in asylums just as we now endeavor to confine paranoiacs who are a menace to society because they are possessed by an impulse, or a purpose, or an intent to harm their fellow beings.
The proposition is preposterous on its face. The hundreds of thousands of bank guards and peace officers do not arm themselves because they intend to kill somebody. Their pistols have another reason for their existence-a legitimate and desirable reason-and, consequently, it is untrue to say that the only purpose of a pistol is to kill. Again, the expression "purpose to kill" conveys a meaning [Page 449] much broader than those, who use it would for a moment attempt to justify. To kill even a human being is not always regarded by society as wrong. It is, of course, true that many individuals sincerely believe that it is a sin under any circumstances to take human life, and we have no thought of impugning the honesty or sincerity of their beliefs; nevertheless, the views of society as expressed by its statutes recognize many different circumstances under which killing may take place. To take life as the sole and necessary means of self-defense or of the defense of the life or safety of one's family has never been regarded as culpable, and one is hardly justified in expressing a serious criticism of a man who says that he intends, if necessary, to defend his life or the life and safety of his wife by any means that may be necessary. To say that the only purpose of a pistol is to kill is as idle and untrue, as exaggerated and unfair, as to say that every possessor of a pistol is a "potential murderer."
(3) The Tools of Crime
An expression which we frequently find in the argument against pistols is that "they are the common and necessary tools, of crime." We may admit that they are somewhat common tools of crime, but we cannot admit that they are necessary tools of crime. As an argument, the statement does not get us anywhere. That they are not necessary tools of crime is almost too obvious to require discussion. Crime has existed, as we have already remarked, for many thousands of years-indeed, from the time of Adam until the first. pistol was invented and down to the present day. If the expression means that pistols are really necessary to enable crime to exist, it is obviously untrue, for if it were true, crime could not have existed before pistols were made. It is common knowledge, however, that many crimes of violence are committed without them. Such headlines as the following are common in our newspapers: "Woman Murdered with Furnace Shaker"; "Ends Life by Hammering Chisel Into His Head"; "Thug's Pistol Was Glass"; "Wooden-Gun Robber Held"; "Hammer Slayer Smiles in Court."
When we say that the pistol is a common tool of crime, we are doing no more than to direct attention to one of the many, indeed the almost innumerable tools of crime. Automobiles, telephones, knives, chisels, hammers, clubs, are all common tools of crime. Human speech is perhaps the commonest instrument or aid to crime. Probably more money has been lost through the criminal use of the ordinary steel pen than has ever been lost through the criminal use of pistols. The finan- [Page 450] cial losses which annually occur through frauds or forgeries, and which are accomplished through human speech and the improper use of pens, is vastly greater than all of the sums which are lost through violent robbery. Indeed, almost every instrument of modern life, almost every household convenience has been or is capable of being used in the perpetration of some crime. Nevertheless, we do not look upon these as the causes of crime or label them "the common tools of crime." Crime does not exist because knives exist nor because pistols exist, and it would continue to plague society even if both of them were abolished. The statement, consequently, that pistols are a common tool of crime does not, as we have said, get us anywhere. The pistol is worthy of consideration by "reformers" only if its use in crime predominates over its proper and legitimate uses; if its wrongful and harmful uses outweight its desirable and its rightful uses; but that is not the problem which is presented for consideration when the statement is made that the pistol is "the common tool of crime." What is really meant is that pistols are made for crime and for little else. In that aspect of the statement the argument reduces itself to the identical proposition which we have already considered in connection with the statement that owners of pistols are "potential killers" and that "the only purpose of a pistol is to kill."
Do Pistols Cause Crime?
Before we leave this branch of the subject, let us examine it from another angle. The arguments which we have been considering boil down substantially to the statement that the pistol is in some way the cause of crime or, at least, of a substantial portion of violent crime, and that if the pistol can be abolished, this substantial portion of crime will cease. The argument impliedly admits that there are other causes of crime—indeed most important ones—since the great majority of crimes, both in number and in amount involved, do not involve the use of a pistol. These other causes are, of course, ignored and the pistol is treated as if it were, in a great class of cases, at least, the all-important and essential cause without the existence of which those particular crimes would not occur. The argument has been put in the following language: "Here is a dead man. Here is the gun that killed him. Had this gun not existed, he would be alive today. Abolish guns and we abolish their effects." Now, it is a curious fact that in the United States, at least the last fifteen or twenty years, which has been the period of the startling increase in violent crime, has likewise been the period during which restrictive laws relating [Page 451] to pistols have flourished. The logic of facts belies the argument for pistol prohibition. If pistols cause crime and if pistol prohibition can stop it, we ought certainly by this time to be able to detect a falling off in crimes of violence, but we are unable to do so. Criminal statistics show the exact opposite. There must consequently be something wrong with the argument. Perhaps pistols do not cause crime and perhaps a law prohibiting pistols will not end crime.
Practically every State in this country has some kind of regulatory law relating to pistols, but it is impossible for anyone to show any logical connection between restrictive pistol laws and crimes of violence. Some of the States which have the most drastic laws suffer, nevertheless, from the greatest proportion of violent crime; others whose laws are extremely mild and reasonable stand high in respect to the absence of crime.
Most of the countries of Europe have statutes regulating pistols to a greater or less extent. Europe, however, shows one striking exception to the general rule. Switzerland has no restrictive legislation whatever to curb the general and promiscuous use of firearms of any kind. In no country of Europe is the use of firearms more common and general. Every able-bodied adult male is required by law to possess and know how to use a military rifle. In addition he may own as many pistols as he likes. In no country of the world is rifle-and pistol-shooting more universally indulged in by all classes of people; no country possesses a more enviable record in international rifle- and pistol-shooting than Switzerland. There is no requirement of a license to carry a concealed weapon upon the person. In spite of all of these facts, in no country in Europe, with the possible exception of England, are crimes of violence so rare as they are in Switzerland. This fact must give pause to the advocates of pistol prohibition as a crime preventive. These must be something wrong with their argument that firearms, and pistols in particular, are in some way a cause of crime. A defect in their logic is not hard to find. Inanimate objects, such as pistols, knives, axes, or clubs, do not and cannot cause crime. They do not and they cannot supply the motive or the impulse. The causes of crime must be sought elsewhere––in greed, hatred, jealousy, and general moral depravity–and the remedy, if any there be, is more likely to be found in morals and education, in improved police methods of detection, and in the more prompt and certain imposition of punishment.
(To be continued)