Hamline Law Review
Symposium on Firearms Legislation and Litigation
vol. 6, no. 2. 1983: 391.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.LEGAL RESTRICTION OF FIREARM OWNERSHIP AS AN ANSWER TO VIOLENT CRIME:
WHAT WAS THE QUESTION?
by David T. Hardy*
The incidence of violent crime in the United States has led to a variety of proposed remedies. Few such proposals have engendered as much controversy as attempts to prohibit or restrict private firearm ownership. The traditional calls to legislate criminal sanctions for firearm possession have recently been supplemented by proposals for judicial recognition of civil liability for the sale or distribution of handguns.
This article will initially examine the historical and social context of American firearm regulation. It will then analyze, from a pragmatic standpoint, the policy considerations behind the imposition of criminal sanctions for private firearm manufacture, sale, ownership and use.
Contrary to popular perception, widespread handgun ownership and efforts to legally ban private handgun ownership are not twentieth century phenomena. As early as 1363, "hand cannons" about nine inches long were being manufactured.[1] Four-and-a-half centuries ago, the Austrian Emperor Maximillian, noting Complaints against individuals who "carry guns secretly under clothing,"’ banned the making and carrying of "handguns that ignite themselves."[2] One of the first British shipments to the colony at Jamestown was a lot of "300 short pistols with firelocks."[3] Even the current proportion of handguns to rifles and shotguns ¾ roughly 1:3 ¾ has remained stable for centuries. When British General Gage compelled Bostonians to surrender their firearms in 1776, they relinquished more than 1800 muskets and 634 pistols.[4]
America’s first attempt to ban the private ownership and carry [Page 392] ing of handguns is found in a 1837 Georgia enactment[5] which was promptly struck down as an infringement of the right to keep and bear arms.[6] During the late 19th and early 20th centuries the vast majority of southern and southwestern states enacted statutes ban the carrying of handguns. Some of the statutes which banned the carrying of handguns applied in almost all circumstances, others applied only to public places, and still other statutes applied to cities, towns, and villages.[7] The southern and southwestern handgun controls were largely abandoned in later decades, even as gun control became popular in the northeast. The outcome was contrary to what many might expect: between 1933 and 1965, the southern and western states which were drifting away from handgun legislation experienced homicide rate declines of 33 to 50%, while homicide rates in the northeast generally increased.[8]
Currently estimates of total firearm ownership in the United States range from 120 million to as high as 140 million firearms,[9] of which about 25 to 30% are handguns.[10] Private ownership of handguns in the United States can thus be estimated at approximately 50 million pieces. These are widely distributed among the American populace; several surveys have found that approximately half of American households own a firearm of some type, and approximately one-quarter of them own a handgun.[11]
I. IS FIREARM REGULATION THE ANSWER TO VIOLENT CRIME?
A comparison of patterns of firearm ownership with rates of violent crime demonstrates that firearm regulation is inherently incapable of controlling criminal violence. [Page 393]
1. Firearm Regulations Typically Meet with Poor Compliance and with Enforcement Difficulties.
A national survey conducted in 1975 indicated that less than half of American handgun owners could be expected to comply either with a national registration or a national confiscation statute.[12] Even these dismal estimates appear to be overly optimistic. In Chicago, compliance with a handgun registration ordinance is estimated to be just 25% while in Cleveland a scant 10% of handgun owners are believed to have complied with a registration ordinance.[13]
The inefficiency and inequity of handgun registration is even more alarming when one considers that the object of such laws¾ those who would use handguns for criminal purposes¾ are least likely to register their weapons. In fact, the rate of violent crime involving the use of handguns is miniscule in comparison to the volume of handgun ownership. For example, it is estimated that only one handgun in 3,000 will ever be used in a homicide.[14] Thus, it is. apparent that the brunt of any registration enforcement effort will fall upon otherwise law-abiding citizens. A judge of Chicago’s "gun court" has conceded that for him:
the most striking experience is with respect to the kinds of people that appear there as defendants. For most, this is their first arrest of any kind. I don’t mean now that this is their first conviction, but I mean this is their first arrest of any kind, and many of them are old people, many of them are shopkeepers, persons who have been previous victims of violent crimes.[15]
Similarly, the Senate Subcommittee on the Constitution recently concluded that approximately 75% of federal firearm prosecutions are currently "aimed at ordinary citizens who had neither criminal intent nor knowledge."[16]
Further, the argument of gun control proponents that regulation would prevent homicides involving persons who know each [Page 394] other is flawed. The argument requires a dubious logical leap that the perpetrators are otherwise law-abiding citizens. The fact that the victim and the assailant knew each other, however, proves nothing of itself. In fact, such violence between acquaintances or family members is highly concentrated in a violent subculture atypical of society as a whole. A study of domestic homicide in Kansas City found, for example, that in 85% of domestic homicides the police had previously been summoned to the household to stop violence, and in over half they had been summon five times or more.[17] A recent medical study of victims of such attacks found that 78% volunteered a history of hard drug use and 16% specifically admitted heroin usage on the day of the attack.[18] Presumably, the perpetrators’ background was even less respectable. Such individuals are unlikely either to heed regulatory measures or be deterred by prosecutions of shopkeepers and the elderly.
2. There is No Demonstrable Relationship Between Firearm Ownership and Violent Crime Levels.
Between 1969 and 1980 private ownership of handguns doubled in the United States, from about 24 million to approximately 52 million handguns.[19] Although the total number of crimes involving handguns rose during that period, the percentage of crimes involving handgun use fell. The proportion of homicides involving handguns fell from 51% to 50% between 1974 and 1980. Further, the percentage of robberies involving handguns fen from 45% to 40% in the same time period.[20] Moreover, the domestic murder rate, which logically should have doubled if in fact handguns play a major role in the occurrence of domestic homicides, instead remained stable at about 1.6 domestic homicides per 100,000 population.[21] Thus a doubling in the number of privately owned handguns did not result in a corresponding increase in handgun crime [Page 395] rates. It is hard to dispute the conclusion of one recent federallyfunded study that "[t]here appear to be no strong causal connections between private gun ownership and the crime rate."[22]
3. Firearms Laws Have Consistently Failed to Affect Violent Crime Rates.
In 1966, New Jersey enacted a statutory scheme requiring a police permit prior to the purchase of any firearm, requiring an additional police permit for carrying it, imposing registration of all firearms and mandating a waiting period for handgun purchases. Two years later its murder rate had increased 46%, its rape rate had increased 21% and its robbery rate had increased 94%.[23]
Hawaii imposed the same requirements the following year, later adding a two-year mandatory minimum sentence for carrying a firearm without a permit and imposing a total ban on "Saturday Night Specials." Within two years its murder rate climbed 42%, its rape rate was up 144% and its robbery rate escalated 79%.[24]
In 1976, the District of Columbia became the first modern American jurisdiction to adopt a total ban on civilian handgun sales. Its violent crime rates were in fact falling at the time the law was imposed. Its murder rate had fallen 30% and its robbery rate 8% in the two years before the handgun prohibition. However, in the first two years under the prohibition, the murder rate increased 18% and the robbery rate increased 24%.[25]
Advocates of handgun prohibition may counter that the increased crime rates are due to sociological factors, and might have been even greater except for the ban on handguns. This contention, however, is conclusively rebutted by statistical studies which do take into account social variables and nevertheless conclude that firearms regulation is demonstrably ineffective.
The earliest of such studies were undertaken by the Wisconsin Legislative Reference Library and by economist Alan Krug.[26] These studies found no relationship between firearm licensing laws and violent crime rates. Both were criticized, however, for failure to [Page 396] adopt more refined and expansive definitions of firearm laws and for failure to consider variables other than such laws.[27]
In 1975, Douglas Murray, a statistician at the University of Wisconsin, employed a far more detailed testing system. Utilizing multi-variant statistical techniques, Murray first plotted various violence rates (handgun homicide, robbery, assault, suicide and accidental death rates) for the fifty states. He then used multiple regression techniques to determine the effect of a variety of social conditions (including poverty levels, education, sex and age differentials) on these rates. Murray then classed state handgun laws into seven categories, ranging from waiting periods to strict licensing of all purchasers, and attempted to determine the effect of such laws after taking into account serial variations. Murray could find but one relationship¾ that of purchase age limits with assaults¾ and even this was statistically insignificant.[28] In brief, when social variables are considered, firearm laws have no effect on violence rates. Murray also established that density of firearm ownership itself has no effect on overall homicide, robbery, assault, or suicide rates,[29] establishing that the problem is inherent in the approach of firearm control, and not an artifact of inefficient administration or nonuniform application.
Murray’s work has since been criticized in an unpublished study conducted at Florida State University. Yet when that stud), re-ran Murray’s analysis, using what were felt to be the proper data and method, its findings were the same: "The results indicate that not a single gun control law, and not all the gun control laws added together, had a significant impact on providing additional explanatory power in determining gun violence . . . . Gun laws do not appear to affect gun crimes."[30]
In sum, the experiences of New Jersey, Hawaii, and the District of Columbia are not flukes, but rather define the norm. Firearm laws have consistently failed to affect violent crime rates. The simple fact is that firearm regulations have consistently failed to achieve their objective. [Page 397]
4. Recent Studies Have Shown Handgun Self-Defense to be a Significant Social Benefit
Until recently, it was widely assumed that use of firearms in self-defense was a comparatively rare phenomenon, and that regula tory statutes which might restrict self-defense use would impose no significant social cost. Recent scholarship has destroyed this assumption. As Professors Kleck and Bordua summarize:
A 1978 national survey indicated that in 7% of households with a gun some member of the household had, in the past, used a gun (even if it wasn’t fired) for self-protection against a person, excluding military service or police work…. A California survey found that 8.6% of handgun owners responding had used a handgun for self-protection . . . . Even in connection with robberies, there is some opportunity for victims to use weapons to defend themselves. In 3.5% of robberies reported to victimization surveys in eight U.S. cities in 1971-72, victims admitted using weapons (not necessarily firearms) for self-protection. . . . Presumably this is a conservative estimate, since many victims may be doubtful about the legality of their weapon use, and therefore reluctant to acknowledge it to government interviewers.[31]
These findings would indicate that the average burglar has a probability of encountering an armed home owner approximately equal to his probability of being arrested, convicted and sentenced to prison.[32] "Given the seriousness of the possible outcome, even a very slight probability of the event occurring may be taken seriously by a potential burglar."[33] Handguns, moreover, play a predominant role in self-defense. A 1977 California study of justifiable homicides by private citizens, predominantly self-defense cases, found that 81% involved handguns, and over 97% involved a firearm of some type.[34]
II. DEFICIENCIES IN PARTICULAR HANDGUN CONTROL PROPOSALS
With these general considerations established, it is useful to analyze the deficiencies contained in particular firearm proposals. Six major classes of proposals are considered: total prohibition of hand [Page 398] gun ownership; registration and permit systems; a ban on "Saturday Night Specials"; a ban on short barreled handguns; imposition of mandatory waiting periods; and mandatory sentences for carrying firearms without a permit.
1. Handgun Prohibition.
As discussed above, any effort to prohibit civilian ownership of handguns would be met with massive noncompliance; approximately half of the owners of the nation’s 50 million handguns would choose to ignore the law. Compounding this problem would be obvious difficulties in obtaining probable cause for the searches and seizures necessary for effective enforcement.
Assuming the law could be enforced, the result would be even worse. "To imprison just one percent of these 25 million people [who would not surrender their handguns] would require several times as many cells as the entire Federal prison system now has. The combined Federal, State and local jail systems could barely manage."[35] As noted earlier, the brunt of this enforcement effort would be directed against ordinarily law-abiding citizens who own handguns for purposes of defense rather than criminal aggression. Therefore, the result of strict enforcement would be a lessening of respect for the legitimacy of government on a scale probably not seen since alcohol prohibition a half century ago. Because firearm owners are atypically system-supporting (for example, handgun owners are roughly twice as likely to have enlisted in the military as non handgun owners)[36], one may question whether any government could lightly alienate millions of these individuals.
Even assuming an idyllic system in which all civilian handguns would vanish by legislative fiat, or all violent criminals would turn in their weapons on the date of enactment, there is still reason to doubt whether a handgun ban would affect the rate of criminal homicide. Other weapons may easily be substituted for handguns, sometimes with more serious results. A logical contender for substi-[Page 399] tution would be the shotgun, which is in fact far more powerful and lethal than the average handgun. A medical study of civilian gunshot wounds found, for instance, that "mortality from shotgun wounds was more than twice that of other gunshot wounds."[37] When chest wounds alone were considered, the shotgun mortality rate was ten times that of handgun injuries.[38]
It may be argued that a shotgun lacks concealability and therefore would not be substituted in many of these cases. This response, however, has several serious weaknesses. First, a substitution in only a small number of cases would be sufficient to equalize the mortality rate with handguns. As Professors Kleck and Bordua note:
[w]hether handgun prohibition would result in a net increase in the assault fatality rate would depend on what proportion of prospective assaulters would substitute knives for handguns, and what proportion would substitute long guns. Kates and Benenson estimate that even if only 30% switched to long guns and the remaining 70% switched to knives, there would still be a substantial net increase in homicides.[39]
Second, concealability may be a vastly overrated factor in weapons choice. Domestic homicides, for instance, typically occur in the home where concealability is totally irrelevant. "Crime of passion" killings outside the home involve a state of rage in which the offender does not particularly worry about detection. A major California study of all violent deaths in the state over a six month period found no significant differences in weapons choice between handguns and other firearms, whether the homicide occurred within a residence or outside it.[40] The study concluded that "restrictions placed on handgun ownership, without comparable restrictions on long guns, would very likely result in an increase in the use of long guns in all violent deaths."[42]
Third, to the extent homicides are not "‘crimes of passion," the offender has the time and inclination to saw down the barrel and [Page 400] stock of a shotgun and make a lethal and concealable sawed-off shotgun. Over one-third of the long guns seized by local police departments and traced by federal authorities have been cut below the legal barrel limit.[42] Thus, handgun prohibition may actually act to increase rather than reduce the number of violent deaths.
A second logical candidate for substitution would be the knife. Knife wounds frequently cause serious internal damage.[43] The shorter range required for a knife attack is largely irrelevant in criminal homicide, since most encounters, even with firearms, take place at a range of ten feet or less.[44]
The primary argument against knife substitution is the 1968 study conducted by Franklin Zimring, which essentially concluded that since the ratio of knife assaults to homicides was five times as great as the ratio of gun assaults to homicides, knife wounds were only one-fifth as likely to kill.[45]
Zimring’s methodology and conclusions have been extensively impeached by subsequent findings that assault is not simply an unsuccessful homicide, nor homicide a successful assault. Rather, firearm attackers are more likely to be motivated by a specific intent to kill. Moreover, the use of homicide-to-assault ratios as an indicator of deadliness leads to questionable results such as wide fluctuations in the same state from year to year, wide disparities between otherwise similar states, and an indication that assaults are more likely to be deadly in states with strict firearm controls.[46]
Medical studies of fatality rates seem more likely to provide an accurate fatality ratio. While these do indicate that knife wounds overall have a lower fatality rate, they demonstrate that this is due to a high proportion of such wounds being administered by pocket knives, which almost never prove lethal. Ice picks and butcher knives, on the other hand, have a fatality rate about equal to that of the pistol.[47] It seems more likely that a violent criminal, if deprived [Page 401] of a firearm, would turn to a butcher knife or similar implement than to a folding pocket knife.
The conclusion is that handgun prohibitions are unlikely to reduce, and may well increase, criminal homicide rates. When balanced along with the significant social cost of handgun regulation, including the probability of reduction in self-defense usage, regulations can scarcely be said to be justified.
2. Registration and Permit Systems.
While systems for registering firearms and licensing their owners enjoyed a popularity in the late 1960’s, today such proposals have virtually been abandoned even by groups which might be expected to advocate them. In 1975, Handgun Control, Inc. (at that time known as the National Council to Control Handguns) testified before a House Subcommittee that:
the licensing and registration legislation presently up for consideration has been seen by some as a potential first step in the direction of resolving the serious problem of handgun violence in America. But rather than a step forward NCCH regards it as a step in the wrong direction. Such a bill would establish a large bureaucracy at considerable expense to the taxpayer. Mountains of paperwork and endless processing of forms would be required ... Would it be expensive? Yes. Unwieldy? Yes. Only marginally efficient? Yes.[48]
The National Coalition to Ban Handguns adds that "it is doubtful that registration would act as a sufficient deterrent. Criminals do not leave their guns behind to be traced, nor would they register them in the first place."[49]
3. Bans of "Saturday Night Specials."
Proposals to prohibit "Saturday Night Specials" were quite popular in the mid- 1970’s. The term itself is incapable of definition, and the proposed definitions focus on factors ranging from the melting point of the receiver to the retail cost of the firearm. If, as suggested above, a total prohibition of handguns would not affect [Page 402] criminal homicide in any positive way, there is little reason to believe that a prohibition of only some handguns would achieve that effect. Even the National Coalition to Ban Handguns has repudiated this form of legislation: "the Saturday Night Special ban would be easily circumvented."[50]
The concept of a "Saturday Night Special," an inexpensive handgun typically used in crime, was initially documented by studies conducted by the Bureau of Alcohol, Tobacco and Firearms (BATF) of guns traced upon request by local law enforcement agencies.[51] Subsequent investigation by the Police Foundation found, however, that the studies were seriously flawed. Among other major flaws, about a quarter of the guns traced were in fact "lost and found" or voluntarily surrendered, not seized as part of a criminal investigation; most of those seized during criminal investigations were seized only for gun law violations, not violent crimes; and even so, barely a quarter of the guns studied in fact fit the bureau’s own definition of a "Saturday Night Special."[52] The Police Foundation conducted its own study, which soundly refuted the BATF’s conclusions.[53] In 1980, even the BATF repudiated its earlier findings, conceding that only 27% of the guns traced the preceding year met its definition of "Saturday Night Special."[54] It is thus appropriate to lay the notion of a "Saturday Night Special" to rest.
4. Bans on Short Barreled Handguns.
Endeavors to prohibit short barreled pistols (occasionally referred to by the disgustingly cute title of "snubbies"[55]) stem largely from a series of articles published in the Miami News.[56] These listed the fifteen handguns most frequently traced by the Bureau of Alcohol, Tobacco and Firearms for local police departments and determined that eleven of the fifteen had relatively short barrels. Based on this information, it was asserted that "two of every three handguns used in murders, rapes, robberies and muggings" met this [Page 403] definition.[57]
Even the briefest examination of the data demonstrates the fallacy of this conclusion. First, the firearms surveyed were all those traced, and the statistics from the tracing agency indicate that less than half were actually seized in connection with a serious crime.[58] Second, while short barreled guns comprised 11 of the 15 firearms most often traced, those 11 categories added up to only 33.9% of the traces; this anomaly occurs because the top 15 firearms in fact made up less than half of the entire number traced. If, as seems likely, 33% or more of handguns have short barrels, nothing is proved. In short, the Miami News study was hardly a professional effort. Even if a valid relationship were found, one might question whether it was causal. It may be that short barrels are more popular in urban areas, and thus comprise a larger percentage of firearms in areas where crime is concentrated. If so, removing them from the market would have no effect: they would simply be replaced by other weapons.
Finally, one might observe, on purely intuitive grounds, that it would seem unlikely that a street criminal who currently engages. in robbery using a handgun with a two-inch barrel, would suddenly abandon his profession if he could only obtain those with four-inch barrels. The two-inch increase might require a deeper pocket, but is unlikely to lead to rehabilitation of a violent offender. The hacksaw that can shorten a shotgun can achieve the same objective on a handgun.
5. Waiting Periods.
Waiting periods, which impose a mandatory delay between the time a firearm is ordered and the time it may be delivered to the purchaser, are aimed at reducing domestic homicide rates by impairing the ability of a person to purchase and rapidly obtain a firearm. The theory is that persons purchasing while in a homicidal rage will be given time to "cool off" before delivery can be affected. Unfortunately for the theory, statistical studies have repeatedly shown no correlation between waiting period statutes and homicide rates.[59] This might be expected, as "waiting periods" control only legitimate purchases from dealers, and the firearms used in violent [Page 404] crime are more likely to be obtained by theft or through fences, and only rarely from a legitimate dealer.[60] One study found that two thirds of convicted gun murderers had owned their firearms for six months to a year prior to the homicide; and only one of the 13 armed robbers studied had purchased the firearm from a dealer.[61]
Moreover, the notion of a person in a homicidal rage looking for a gun store (much less finding one open between the hours of 10 p.m. and 2 a.m. when most crime of passion killings occur)[62], driving to the store, purchasing a firearm, and returning to find his victim, seems most improbable. By definition a "crime of passion" is most frequently committed in an irrational, enraged state in which a person is unlikely to make rational weapons choices, much less embark on a shopping expedition. The waiting period can thus be discarded as a serious anti-crime tool.
6. Mandatory Minimum Sentences for Violation.
In this category it is vital to distinguish between two different approaches with radically different effects. Both involve imposition of a mandatory minimum sentence¾ that is, a sentence for a minimum term and for which release on probation, parole, or other form of leniency is unavailable. The first possible use of this sentencing procedure limits it to specific acts involving the use of a firearm or other weapon in designated violent crimes. The second seeks to impose these mandatory sentences upon any individual who violates a firearm regulation (usually a regulation requiring a permit for carrying a firearm on the person), regardless of whether a violent criminal use was involved or contemplated.
The first type of statute, involving a mandatory minimum sentence for use of a firearm in a violent crime, appears uniformly to have had positive results. In 1974, for example, the states of Arizona and South Carolina adopted such statutes.[63] Between 1975 and 1977, robberies involving the use of firearms in Arizona de- [Page 405] clined steeply from 1,591 to 1,221.[64] Although firearm robberies constituted less than half the total robberies in Arizona over that period, firearm robberies declined by nearly two-thirds.[65] In South Carolina the results were even more stiking. In 1974, that state reported 2,115 firearm robberies; in 1975 only 1,531; and in 1976 firearm robberies decreased to 1,331.[66]
In 1975, Florida enacted a broader law, penalizing use of a handgun in a broad variety of violent felonies with a mandatory three-year minimum sentence. Similar results have been reported: firearm robberies decreased by 38.5% and firearm aggravated assault decreased by 14.5% during the first year[67] Thus, in contrast to the forms of firearm owner regulation adopted in New Jersey, Hawaii and other states, mandatory sentencing for actual use of a firearm in a violent crime appears to have been followed by substantial decreases in the rate of violent crime.
Whether the extension of mandatory sentencing to all violators of a firearm regulation¾as opposed to those who commit a violent crime¾ is justified is another question. Obviously, mandatory sentencing involves a substantial increase in the demands upon the criminal justice system. Since it limits the minimum sentence which can actually be imposed, the incentives for plea bargaining may be substantially reduced and the number of cases taken to trial, or appealed, may be increased. Similarly, the number of persons actually incarcerated may increase, which increases the demands on prisons. While the favorable experiences of states with mandatory sentences for actual use of a weapon in a specified violent crime suggest that a narrowly-drafted proposal may result in benefit, extension of this to violators of weapons regulations in general poses the risk of unduly penalizing large numbers of individuals who may violate technical regulations for self-protection or other reasons.[68] As such, it may[page 406] well overload the criminal justice system and deprive judges of needed flexibility when dealing with persons who are not likely to be the source of violent crime.
The prototype of mandatory sentencing for regulatory viola tions is the State of Massachusetts, which in April, 1975, enacted a statute (commonly known as "Bartley-Fox," for its sponsors) imposing a one-year mandatory term upon any person carrying a firearm without an appropriate permit.[69]
The results of the law were, to put it charitably, ambiguous. Some forms of violent crime did decline in Massachusetts following the enactment of the statute. But since violent crime was declining nationwide--the handgun murder rate fell nationwide from 5.3 to 4.4 per 100,000 population between 1974 and 1978¾ [70] whether this was caused by the statute or by mere coincidence is difficult to deter mine. Studies suggesting that the declines were due to the law have been criticized, both from a technical[71] and from a logical[72] perspective:
Before the gun law was imposed in April, gun murder rates had already begun their drop (in January) and gun assault rates were beginning to drop (starting in March), whereas gun robbery rates reached new highs after April and in fact remained high well into the following year. The expected conclusion would be that the April firearm law hardly caused changes occurring in January, February, and the following year. But the study managed to suggest causation: the January murder drop must have been due to an attempted enactment of the law at the time; the March assault drop must have been due to the publicity campaign that began in February; the 1976 robbery decline must have been due to robbers having adopted a wait and see attitude on the gun law as to how it would be applied.[73]
Nor did the experience of similar laws in nearby states give backers of the Massachusetts law much cause to hope. Acting upon initial favorable reports, and a well-orchestrated media campaign, New York in 1980 adopted a similar mandatory sentence for unlicensed pistol carrying. Despite 9,900 arrests in the first year the law was in effect, New York handgun homicides shot up 25%, and hand- [Page 407] gun robberies increased 56%.[74]
Whatever the effect on the crime rate, its negative effects were obvious. One of the first test cases involved the prosecution of a young man who held a carrying license but had inadvertently allowed it to expire. In an effort to raise money to purchase his high school class ring, he took his firearm to a dealer to sell it. On the way he was stopped for a traffic violation, the gun was seen, and for this minor infraction he ultimately was sentenced to a year in jail without possibility of probation or parole.[75] Considering that (1) both state and federal firearms laws have been enforced with disproportionate impact against law-abiding persons,[76] and (2) persons guilty of actually using a firearm in a serious felony would, presumably, face more than a year’s incarceration even absent firearm regulations, the inference may be drawn that the main effect of such laws would be to generate cases of this type.
The effect upon the criminal justice system of the minimum mandatory sentence for carrying without a permit was no less severe. The acquittal rate for defendants charged solely with carrying increased by approximately 20%.[77] Among those convicted, the rate of cases appealed jumped four-fold, from 20% to 85%.[78]
Given that the social cost of mandatory sentencing, whether measured in terms of the impact upon the individual or upon the workload of the criminal justice system, tends to be quite high, one might well ask whether the benefits of a Massachusetts-type law could not be obtained at more reasonable expense through a narrower system of mandatory sentencing. If the object is to reduce use of firearms in crime, increasing the penalties for use in crime may have the same ultimate effect upon the criminal population as increasing penalties for possession or carrying of firearms generally. Moreover, since narrowing the focus of the mandatory sentence to individuals who have actually committed serious crimes necessarily brings about a massive reduction in the number of persons actually subject to the law, the penalties imposed can be increased propor-[Page 408] tionately. Thus, correctional resources which might be used for incarcerating 100 firearm law violators for one year apiece could instead be devoted to incarcerating 20 armed robbers for five years each; intuition suggests that the latter proposal is more likely to influence the armed robbery rate. In this respect it is interesting that the major study supporting the case for enactment of Massachusetts-type statutes concedes:
We have not reached the point of knowing whether it is changes in punishment imposed for committing an assault or robbery with a gun or simply for carrying a gun without a license which are responsible for the altered crime pattern. This is, of course, critical for evaluation of the relative advantages in terms of crime control of felony firearms laws which mandate additional punishment for crimes committed with a gun as compared to new felony firearms laws aimed at the ownership, possession and/or carrying of firearms.[79]
In short, all the benefits of a Massachusetts-type law might be achieved simply by punishing criminal use of firearms, at considerably less cost.
CONCLUSION
After more than a century of experience with firearm laws at the state and federal level, and after more than a decade of advanced statistical analysis of such statutes, the conclusion remains that firearm regulatory statutes are as much a failure in controlling violent crime as were the alcohol prohibition statutes of a half century ago. There comes a point at which appeals to try "just one more" experiment in a given area should be shelved between the blueprints for the Maginot Line and the formulae for patent medicines.
* B.A., (1972), J.D. (1975), Univ. of Arizona. Mr. Hardy is admitted to practice before the Arizona Supreme Court, the United States Supreme Court and the United States Courts of Appeals (4th and 9th Cirs.). He is presently with the staff of the Conservation and Wildlife Division, Office of the Solicitor, Department of the Interior.
1. H. POLLARD, A HISTORY OF FIREARMS 28-29 (1936).
2. Blair, Further Notes on the Origins of the Wheellock, in 1 ARMS AND ARMOR ANNUAL 38-39 (1973).
3. H. GILL, THE GUNSMITH IN COLONIAL VIRGINIA 3 (1974).
4. J. FROTHINGHAM, A HISTORY OF THE SEIGE OF BOSTON 95 (1903); J. ALDEN, GENERAL GAGE IN AMERICA 225 (1948).
5. DIGEST OF THE STATUTE OF LAWS OF THE STATE OF GEORGIA IN FORCE PRIOR TO THE SESSION OF THE GENERAL ASSEMBLY OF 1851 at 818 (1951).
6. Nunn v. State, 1 Ga. 243 (1846).
7. See 1889 Ariz. Terr. Sess. 1869 Tenn. Pub. Acts ch. 23; 1871 Tex. Gen. Laws ch. 34; 1974 Ark. Acts 155; 1875 Mo. Laws 50, Leyes Del Territorio del Nuevo, Mexico, 1868-69, Cap. 32; Laws act 13; S.C. Stat. at Large n. 435 (1901); 1910 Ga. Laws 432; 1919 N.C. Pub. Laws ch. 197.
8. PRESIDENT’S COMMISSION ON LAW AND ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT. CRIME AND ITS IMPACT¾ AN ASSESSMENT 31 n.1 (1967).
9. WRIGHT & Rossi, WEAPONS, CRIMES AND VIOLENCE IN AMERICA (a report prepared for the use of the Committee on the Judiciary, United States Senate, 97th Cong., 2nd Sess.) 45-72 (1982) [hereinafter cited as WRIGHT & ROSSI]; Hardy & Stompoly, Of Arms and the Law, 51 CHI-KENT L. REV. 62, 94 (1974) [hereinafter cited as Hardy & Stompoly].
10. WRIGHT & ROSSI, supra note 9, at 131.
11. Id.
12. Hardy, Firearm Ownership and Regulation, 20 Wm. & MARY L. REV. 235, 242 (1978) [hereinafter cited as Hardy).
13. Kates, On the Futility Of Prohibiting Guns, in the ISSUE OF GUN CONTROL 178, 184 (1981) [hereinafter cited as Kates].
14. Id. at 179.
15. Firearms Legislation Hearings Before the Subcomm. on Crime of the House Comm. on the Judiciary, 94th Cong., 1st Sess., 587 (1975) (statement of Representative David Shields) (1975).
16. REPORT OF THE SUBCOMMITTEE ON THE CONSTITUTION OF THE SENATE JUDICIARY COMMITTEE ON THE RIGHT TO KEEP AND BEAR ARMS, 97th Cong., 2nd Sess. 23 (1982).
17. G. WILT, DOMESTIC VIOLENCE AND THE POLICE 23 (1977).
18. Kirkpatrick & Walt, The High Cost of Gunshot and Stab Wounds, 14 J. SURGICAL RESEARCH 260, 261-62 (1973).
19. WRIGHT & ROSSI, supra note 9, at 2.
20. Id. at 3.
21. In 1969, the murder rate was 6.8 per 100,000 population, and 25.2% involved a spouse or other relation, yielding a domestic murder rate of 1.7. By 1974, the rate had risen slightly: 22.8% of that year’s 9.8 rate involved relatives, for a domestic rate of 2.2. U.S. DEP’T OF JUSTICE, F.B.I. UNIFORM CRIME REPORTS 19 (1974). But by 1980 the domestic rate had fallen to a point below its 1969 levels; with a murder rate of 7.8 and 16.1% of these involving relatives, the domestic murder rate was 1.6. U.S. DEP’T OF JUSTICE, F.B.I. UNIFORM CRIME REPORTS 12 (1980).22. WRIGHT & ROSSI, supra note 9, at 125.
23. Hardy, Let’s Shelve Gun Control, 1 JUST. REP. 5 (Fall 1981).
24. Id.
25. Id.
26. WISCONSIN LEGISLATIVE REFERENCE LIBRARY, THE REGULATION OF FIREARMS BY THE STATES, Research Bulletin No. 130 (1960); 113 CONG. REC. 20060, 20064 (1967), 114 CONG. REC. 1496 (1968) (reprinting Krug studies).
27. See Zimring, Games with Guns and Statistics, 1968-WIS. L. REV. 1113. Krug’s response may be found in Hearings on S. Res. 240 before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the Judiciary, 90th Cong., 2d Sess. 734 (1968).
28. Murray, Handguns, Gun Control Laws and Firearm Violence, 23 SOC. PROB. 81 (1975).
29. Id. at 89-90.
30. See Hardy, Why Gun Control Can’t Work, INQUIRY 15, 18-19 (Feb. 28, 1982).31. Kleck & Bordua, The Assumptions of Gun Control, in WEAPONS, CRIMES AND VIOLENCE IN AMERICA 103 (J. Wright, P. Rossi, K. Daly & E. Burdin eds. 1981) (citations omitted).
32. Id at 101.
33. Id.34. CALIFORNIA DEPARTMENT OF JUSTICE, HOMICIDE IN CALIFORNIA 91 (1979).
35. Kates, supra note 13, at 184. See also Benenson & Hardy, Critiquing the Case for Handgun Prohibition, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT 69, 87-88 (D. Kates ed. 1979) (estimating costs of a national handgun prohibition and call-in at between two and eight billion dollars for initial compensation, five billion dollars per year for arrest and processing of arrestees, and four and a half billion dollars per year for prosecution and trial, all assuming only a 10% arrest rate).
36. G. NEWTON & F. ZIMRING, FIREARMS AND VIOLENCE IN AMERICAN LIFE 12 (1970) (staff report to Nat’l Comm’n on the Causes and Prevention of Violence finding 37% of American military veterans own handguns, compared to only 18% of non-veterans).
37. Sherman & Parrish, Management of Shotgun Injuries: A Review of 152 Cares, 3 J. TRAUMA 76, 76 (1963). See also Taylor, Gunshot Wounds of the Abdomen, 177 ANNALS OF SURGERY 174, 175-76 (1973); DeMuth, The Mechanism of Shotgun Wounds, 11 J. TRAUMA 219 (1971); Gray, Harrison, Couves & Howard, Penetrating Injuries to the Chest, 100 Am. J. SURGERY 709, 710 (1960).
38. Sherman & Parrish, supra note 37, at 77.
39. Kleck & Bordua, supra note 31, at 94.
40. Hardy, supra note 12, at 260.
41. Id. at 262 n. 167.
42. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, CONCENTRATED URBAN ENFORCEMENT 40-41 (1977).
43. GLAISER & RENTOUL, MEDICAL JURISPRUDENCE & TOXICOLOGY 273-74 (1966); K. SIMPSON, FORENSIC MEDICINE 64 (1964).
44. PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 256 (1967) (study of policemen killed in New York City over the past century; combat range in no case exceeded 21 feet, average was 10 feet or less).
45. Zimring, Is Gun Control Likely to Reduce Violent Killings?, 35 U. CHI. L. REV. 721 (1968).
46. Hardy & Stompoly, supra note 9, at 104-10.
47. Wilson & Sherman, Civilian Penetrating Wounds of the Abdomen, 153 ANNALS SURGERY 639, 642 (1961) (forty-four of ninety knife cases studied involved pocket knives, with no fatalities resulting; ice pick fatality rate was 14.3%, butcher knife fatality rate was 13.3%, and switchblade knife fatality rate was 5.9%. Handgun fatality rate was 16.8%).
48. Hearings on Firearm Legislation, supra note 15, at 2672.
49. National Coalition to Ban Handguns, "20 Questions and Answers" (pamphlet 1976).
50. Id.
51. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, PROJECT IDENTIFICATION (1976).
52. POLICE FOUNDATION, FIREARMS ABUSE: A RESEARCH AND POLICY REPORT 24-25 (1977). See also Hardy, supra note 12, at 249-50.
53. POLICE FOUNDATION, supra note 52, at 60, 69, 7 1.
54. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, 1979 FIREARMS TRACE PROJECT 37 (1980).
55. WRIGHT & ROSSI, supra note 9, at v (forward by Senator Kennedy).
56. The Miami News, September 5, 1981 at I-A.
57. Id.
58. See supra notes 52-53.
59. See REPORT ON THE FEDERAL FIREARMS OWNERS PROTECTION ACT, S. REP. No. 3476, 97th Cong., 2d Sm. 51-52 (1982); Murrey, supra note 28; Hardy, supra note 30.
60. Hardy, supra note 12, at 258.
61. Kates, supra note 13, at 183-85.
62. See supra note 59.
63. 1974 Ariz. Sess. Laws ch. 144, § 3; 1975 Ariz. Sess. Laws ch. 23, § 3; S.C. Code Ann. § 16-11-330 (Law Co-op. 1976). The Arizona provisions have since been incorporated into a general criminal code which provides for increased and mandatory sentences for such crimes when committed with a weapon or following a prior violent offense. See Ariz. Rev. Stat. Ann. §§ 13-604, 701 (1978).
64. ARIZONA UNIFORM CRIME REPORTING, ARIZONA CRIME REPORT 17 (1975); ARIZONA UNIFORM CRIME REPORTING, CRIME IN ARIZONA 18 (1977).
65. To be precise, firearms robberies were 42% of all Arizona robberies in 1975 and 38.7% in 1977. The total number of robberies declined from 3,751 in the former year to 3,155 in the latter, or a decline of 596 cases per year. Of those, 370 came in the area of firearm robberies. By contrast, robberies with "other weapons", largely clubs and blunt instruments, rose from 191 cases to 214 cases. See supra note 64.
66. SOUTH CAROLINA LAW ENFORCEMENT DIVISION, CRIME IN SOUTH CAROLINA 20-21 (1976). Firearm robberies also fell much more rapidly than robberies overall, declining from 62% of all robberies in 1974 to 45% of all robberies in 1976. As with Arizona, robberies with "other weapons" increased, from 3.8% of robberies in 1974 to 7.6% in 1976. Id.
67. Letter from James T. Barrett, Executive Assistant to the Attorney General of Florida, to Bill Garrison (June 28, 1977).
68. See supra notes 12-16 and accompanying text.
69. MASS. ANN. LAWS ch. 269, § 10 (Michie/Law Co-op Supp. 1977).
70. CONGRESSIONAL RESEARCH SERVICE, 97TH CONG., 2D SESS., FEDERAL REGULATION OF FIREARMS 3 (Comm. Print 1982).
71. See id. at 66-67; Hardy, supra note 12, at 263-71.
72. Hardy, "Gun Control," REASON 37, 38-39 (Nov. 1982).
73. Id. at 38-39.
74. Id. at 39.
75. Beha, And Nobody Can Get You Out: The Impact of a Mandatory Prison Sentence for the Illegal Carrying of a Firearm on the Use of Firearms and the Administration of Criminal Justice in Boston. A-26 (July 14, 1976) (unpublished manuscript available from Center for Criminal Justice, Harvard Law School). See also Commonwealth v. McQuoid, 369 Mass. 925, 344 N.E.2d 179 (1976).
76. See supra notes 14-16 and accompanying text.
77. Beha, supra note 75, at 77.
78. Id. at 64.
79. Rossman, Froyd, Pierce, McDevitt, & Bowers, The Impact of the Mandatory Gun Law in Massachusetts 174 (1979) (unpublished manuscript available at Boston University).