Public Interest Law Review
1993: 207
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

Gun Controls - in America?

THE SAMURAI, THE MOUNTIE, AND THE COWBOY
By David Kopel

Buffalo, N.Y. Prometheus Books, 1992

470 pp., $28.95

The Samurai, the Mountie, and the Cowboy sets out to answer whether America should adopt the gun controls of other democracies. This statement of purpose does not prepare one for the breadth and depth of David Kopel's invaluable discussion. Kopel goes far beyond his stated aim. With a painstakingly detailed evaluation of the historical and cultural context of gun controls of other democracies as a backdrop, he provides encyclopedic treatment to the arguments and vexing questions that plague the American conversation about privately owned firearms.

Through intricately constructed cultural mosaics, he suggests that the ability of some democracies¾ his cohort group consists of Japan, England, Canada, Australia, New Zealand, Jamaica, and Switzerland¾ to implement gun control measures is inexorably tied to other aspects of their cultures. Not only are those cultures alien to America, he argues, but in important ways they tolerate much that we would find repugnant. His most powerful examples are gun-law enforcement tactics that would obliterate the Fourth Amendment.

One of the more interesting and subtle variations on this theme appears in Kopel's treatment of the country that is "most like us" ¾ Canada. Drawing from academic sources that otherwise might never reach a popular audience, Kopel argues that Canadians are ambivalent about individual liberty. They genuinely believe that government is an instrument for advancing general welfare, and not in principle anything to fear. He describes among other things the Canadian prosecutions of racist or anti-Semitic speech as illustrations of a balance between liberty and order very different from the one Americans have struck. Kopel suggests that the convictions about individual liberty and limited government that cause us to tolerate hate speech are an aspect of what makes guns integral to American culture. Juxtaposing access to firearms and less controversial liberties, he makes a strong case that "America is different'' from other democracies in a way that makes foreign-style gun control unworkable here. [Page 208]

Our differences with other nations aside, Kopel suggests that even if we were to succeed in using the restrictive, confiscatory, prohibitive statutes of the cohort group to reduce the number of guns in private hands, we would not reduce violent crime in any real sense. Social controls, not gun controls, he says, explain violent crime.

Kopel defines these social controls to include a wide variety of social systems that do not control by formal restraint, but which transmit and maintain values by providing for a sharing of norms and by ensuring cohesiveness. When the Japanese, Swiss, and Jamaican experiences are compared, Kopel's argument becomes quite powerful. Both the Swiss and Japanese have drastically lower crime rates than the United States. The Japanese have a virtual ban on firearms, while nearly every Swiss household contains an automatic rifle. Kopel casts both as regimented and authoritarian societies that impose rigid social controls. Jamaica, on the other hand, implemented a total gun ban only to see a breakdown in social and political structures and to experience a level of armed and unarmed violence that exceeds the worst in this country.

Kopel stresses that Americans would find repugnant some of the social controls found in his cohort group. He points out that the relatively crime-free, but authoritarian, Swiss were considering whether women should vote while Americans were debating the Equal Rights Amendment. Although he seems to criticize the breakdown in social controls that occurred in this country in the 1960s, he does not suggest that controlling crime requires a return to an American past where the liberty of only some of us was valued. Indeed, he casts the dissipation of social controls and corresponding escalation in violence as an almost inevitable result of American culture. For Kopel, our violence is an outgrowth of America's greatest strengths and virtues¾ its openness, its ethos of equality, and its heterogeneity ¾ as well as its greatest vices, such as its long history of racial oppression. "Racial and economic inequality, combined with an ethic that Americans are created equal," he writes, "were bound to have explosive results."

Kopel suggests it would be better to deal with the social conditions that make some subcultures more likely to perpetrate and be victims of violence. In this he may be naive. For all the public posturing about the need to change social conditions, it is comparatively much easier to enact a statute that aims superficially at fighting crime. Kopel may expect too much if he truly believes America will take on the monumental task of precisely identifying, and implementing solutions to, amorphous social problems when there is available the soothing pla- [Page 209] cebo of expedient controls on vilified, unsympathetic objects. Ultimately, he is realistic, incorporating the social controls theme only modestly as part of a non-intrusive, small-scale proposal for achieving and maintaining responsible gun ownership and for invigorating the responsibility of individuals for their own security and that of their communities.

The broad themes of The Samurai, the Mountie, and the Cowboy compete with the book's descriptions of some form of virtually every social and political argument that has been made about gun control. A notable example is the description of the radically pacifist strain in the gun-control movement¾ capsulized by the idea that "the right to life itself must be subjugated to civilization" ¾ which moves toward explaining the sometimes visceral nature of the debate.

Beyond its value as a compendium of arguments and information, the book presents the cohort group as a laboratory in which we can observe the outcome of conflicts and arguments very similar to those now evident in this country. In Jamaica, the press scoffed at the claim that disarming honest citizens would embolden predators and trigger a crime wave of greater proportions. Within one year of a virtual ban on firearms, these predictions began to come true. The island-nation found that a ban had no impact upon criminals, who became more brazen instead. This surely gives us a basis for looking harder at the argument¾ often dismissed as a platitude of the National Rifle Association¾ that the rogues of our society will benefit from restrictions that make it more difficult for nonaggressive people to defend themselves. While the drastically different cultural landscape permits the conclusion that the "Jamaican failure" is as inappropriate to project for the United States as the "Japanese success," the Jamaican experience at least calls into question the claim that we would be better off even if we only get guns away from nonpredatory citizens.

The slippery slope from regulation, to registration, to confiscation, which often is viewed as gun lobby paranoia, comes to life in the British example. Kopel describes the almost comical slide from vast restrictions on handgun ownership, to knife bans, chemical defense spray (mace) bans, and bans on "devil dogs" (Rottweiler, etc.) to which people had shifted out of security concerns. Although this slide was spurred mainly by the idea that self-defense is not a legitimate interest ¾ an idea that is currently only a mild and even aberrant strain in the American gun debate¾ it demonstrates the potential for reaching extreme restrictions, one "sensible step" at a time.

Kopel suggests that the gun restrictions in the cohort group are part of a broader societal balance between order and liberty. He cites [Page 210] two proverbs: "America: The squeaky wheel gets the grease" and "Japan: The nail that sticks up will be pounded down." With Japan as perhaps the starkest example, he shows that countries which have adopted stringent gun-control measures have made other significant and broader decisions to favor order over liberty. He describes search and seizure tactics used and apparently necessary to enforce gun restrictions against much smaller populations of gun owners¾ tactics that would make civil libertarians in this country shudder in dismay. While Kopel does not contend that severe gun control necessarily leads to the panoply of speech, privacy, electoral, and associational infringements that have accompanied it in other countries, he does suggest that so far they all seem to have been consistent stable mates. This trend may be more than a coincidence; Kopel describes the conviction among certain American gun-control advocates that we cannot control guns effectively unless we scrap the Fourth Amendment exclusionary rule and the requirement of probable cause. He provokes the conclusion that when we "progress" to the point that individual firearms can be taken effectively, we will have lost much more than we have gained.

Unfortunately, the gun debate is peppered with myths, platitudes, folklore, and charges by both sides of misrepresented facts. These can be sorted out independently by those willing to spend a good portion of time and energy at the task. Because few do, most people are left to rely on partisans (admitted or not) for information and arguments. While Kopel surely has a point of view, he gives a laboriously objective account of facts that exposes some of the myths in the debate and requires rethinking of assumptions about individual gun ownership.

Kopel scrutinizes the academic literature treating the Wild West, hillbilly feuds, and vigilantism. Courageously, he devilifies these hobgoblins in a quest for honest analysis of whether Americans are too irresponsible to possess tools that government surely has shown are valuable for self-defense.

Kopel's disarming account of the "Mild" West destroys the "Dodge City" myth that guns in the hands of average citizens will magically cause them to do all sorts of crazy, violent things that they otherwise would not even contemplate. Hollywood images aside, serious study shows that the American West was not so bad after all. The "bad men," he writes, "who hung out in saloons shot each other at a fearsome rate, although at a lower rate than in modern Washington, D.C. But drastically out of kilter with our presumptions, other crime was remarkably low. Rape was virtually nonexistent. Robbery per capita [Page 211] was seven percent and burglary one percent of modern New York City."

At the end of a moving history of American violence, which includes graphic images of people (particularly minorities) abandoned by community security forces, Kopel summarizes much of the gun control debate in the form of a question: Are citizens better off with the means to defend themselves, or are they better protected by forgoing self-defense and placing their trust in government? Gun controllers may see episodes of violence not as evidence that the victims needed guns, but that guns need to be eradicated. Kopel reaches the opposite conclusion. And he makes a powerful case¾ including a stinging indictment of the dilemma some local governments impose on citizens when they fail to secure peace, disarm peaceful citizens, and then hide behind sovereign immunity claiming no legal obligation to protect them¾ that trusting government, in the way that has occurred in some of the cohort countries, is at odds with the history and tradition of America. Indeed, for some individuals and groups it has been very risky.

It is this distrust, says Kopel, rather than the tradition of hunting and sporting use, that explains the vehemence of opposition to gun controls. Partly for this reason and partly because we now have so many guns (on the order of 160,000,000 in private hands) that are so firmly a part of our culture, Kopel concludes it is not reasonable to expect eradication.

What, then, to do? Showing that guns in the hands of citizens poses risks to criminals at least as large as those faced from government, Kopel urges crime control through development of a virtuous armed society in which armed citizens take fuller responsibility for their own security. Some will balk at the implication of good people repelling the bad, or the very idea of bad people. But Kopel is untroubled by this, noting that the vast majority of citizens are not violent criminals. That appreciated, it becomes easier to embrace his vision of individuals and communities (even poor black communities that may suffer most) arming themselves to thwart the handful of predators who would destroy their neighborhoods.

If Kopel is correct, the only ones left complaining will be those who have simply a visceral fear and aversion to guns or those attached to some naive notion of what civilization means. Kopel's vision of civilization recognizes the real possibility that some will refuse to play by the rules and must either be met with in-kind response or given relatively free rein to work their will. Kopel juxtaposes apathetic citizens who have delegated fully any responsibility for crime control to gov- [Page 212] ernment with those who assume responsibility for their own security. He suggests that in choosing to rely on government fully for self-protection, citizens are abdicating an important role in their community and that such choice contributes to their detachment from it.

A friend of mine recently came back from Texas where he took the deposition of a man whose home had just been burglarized. Fortunately, his neighbors detected the burglars and gathered with guns in hand to apprehend the culprits and hold them for the police. I suppose how we react to this story indicates the choice we have made about the wisdom or folly of ceding this type of responsibility to government. If I had to choose between neighbors like these and the demoralized community that watched the murder of Kitty Genovese without even lifting a finger to call the police, I would choose the former. Kopel clearly would, too, and suggests that for America this is the only workable choice.

Kopel's promotion of marksmanship and safety programs¾ chief among his modest proposals for a virtuous gun culture¾ may be regarded as quaint. But given the track record of bloated, cumbersome programs targeted at enormous problems, there is some appeal to an approach that proceeds manageable piece by manageable piece. Nurturing responsible armed citizens in this way surely is no more far-fetched than the belief that we could eliminate the 160,000,000 guns in the hands of Americans with promises that if everyone follows the lead of Washington, D.C., where armed self-defense is virtually prohibited, government can then somehow better control armed predators.

Even if one rejects Kopel's conclusions, his book is invaluable to both the academic and layman. The foundation he builds to support his modest proposal is virtually the entire field on which the gun debate is played.

REVIEWED BY NICHOLAS J. JOHNSON