Gun Control: Is it a Legal and Effective Means of Controlling Firearms in the United States?
I. Introduction
II. The Constitutional Right to Keep and Bear Arms
A. The Meaning of the Second Amendment
B. Case Law Interpretation of the Second Amendment1. Supreme Court
2. Federal Court
3. State CourtIII. The Firearm Problem in the United States
A. Gun Ownership
B. The Handgun ControversyIV. The Impact of Existing Gun Control Laws
A. Studies in the United States
B. The English ExperienceV. Suggestions for Reducing the Gun Related Crime Problem
VI. Conclusion
I. INTRODUCTION
Following the assassination of President John F. Kennedy in 1963, numerous attempts to enact federal gun control laws were thwarted by a strong anti-control lobby headed by the National Rifle Association (NRA).[1] In 1968, after the deaths of Senator Robert Kennedy and Reverend Martin Luther King, Jr., Congress was persuaded to enact a more stringent federal gun control law.[2] The Gun Control Act of 1968[3] was the first major federal firearms reform legislation in thirty years.[4]
The gun control issue[5] has again been propelled into the public forum following recent firearm assaults on well known public figures. Last year, shortly after taking office, President Reagan narrowly escaped death in an attack by a pistol wielding assassin; a few months earlier John Lennon was murdered in front of his New York City apartment.[6] The handguns used in both assaults were legally purchased outside the state where the assault took place.[7] [Page 245] These assaults, and the increase in other handgun related crimes, are expected to give new impetus to the call for federal handgun legislation.[8]
This article will discuss the nature and extent of the constitutional right to keep and bear arms. Secondly, there will be an analysis of the arguments advanced by those groups involved in the gun control issue, such as the National Rifle Association which is against gun control, and the National Coalition to Ban Handguns (NCBH) which supports a total ban on private possession of handguns. Third, there will be a review of studies on the impact of existing gun control laws on crime and violence. Finally, there will be suggestions for reducing gun related crime and a discussion of the possible effectiveness of the suggestions.
II. THE CONSTITUTIONAL RIGHT TO KEEP AND BEAR ARMS
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.[9]
A. The Meaning of the Second AmendmentThe second amendment is susceptible to a number of conflicting interpretations. First, there are two ways to view the right[10] conferred by the amend- [Page 246] ment: as an individual right, or as a collective right.[11] The majority of court decisions support the collectivists’ view of the second amendment.[12] Second, there is a question whether the amendment prevents federal and state infringement of the right or only federal infringement.[13] Case law supports the latter based upon selective incorporation[14] of the first ten amendments.[15] Finally, there are two ways to interpret the phrase "well regulated Militia"[16] coming before the words granting the right to bear arms. One interpretation is that mentioning militia is a statement of the reason for granting the right;[17] another interpretation is that reference to militia limits the right to the militia.[18] Most modern courts support the latter interpretation.[19]
Many commentators, however, are not convinced by the rationale ad- [Page 247] vanced in support of the above restrictive court opinions.[20] One author has suggested the second amendment situation today is analogous to the "separate but equal" doctrine prior to Brown v. Board of Education.[21] Whether this is true remains to be seen. What is clear today is the second amendment is nothing but a hollow shell which, because of restrictive court opinions, grants no right to the American citizen.
Many courts[22] have failed to distinguish between the meaning of the second amendment and the reasons for its adoption by the first Congress.[23] The amendment was adopted to preserve the right of the people to keep and bear arms,[24] and in this way, it was hoped, the need for a standing army would be dispelled.[25] The fact one of the initial reasons for the amendment is no longer compelling[26] should not be grounds for abridging the right conferred by the amendment.[27]
The drafters of the second amendment, the first Congress, were aware of the common law origins of the right to keep and bear arms.[28] Many commentators believe all Englishmen had a common law right to bear arms.[29] The [Page 248] first Congress drafted the amendment so the right was granted to "the people.[30] The question is what was intended by this grant. The first and fourth amendments also refer to "the people,"[31] and each has been interpreted to grant its protections to the individual.[32] It is unlikely the drafters used "the people" in the first and fourth amendments to indicate rights of the individual and in the second amendment to indicate rights granted to the state.[33] If the drafters intended to limit the right to the organized militia it would have been clearer to say the right of the militia to bear arms shall not be infringed.[34]
The tenth amendment provides additional support for the view the first Congress intended the second amendment to give individuals the right to beat, arms. "The powers not delegated to the United States . . . are reserved to the States . . . or to the people."[35] The differentiation of "the people" and "the States" indicates the drafters considered these terms to have different mean- [Page 249] ings.[36] The drafters associated the "people" with the individual. Furthermore, a number of states[37] adopted right to bear arms provisions identical to the second amendment.[38] If the collectivists’ view of the amendment is accepted these state constitutional provisions would be meaningless because a state can hardly infringe its own rights.[39]
A further problem with viewing the second amendment as conferring a collective right is that it then creates a conflict between constitutional provisions. Article I of the Constitution grants Congress the power to organize, arm, and discipline the state militia.[40] Congress has the power to arm, and by implication, disarm the state militia.[41] Interpreting the second amendment as a bar to federal infringement of the right of the militia to bear arms creates the conflict.[42] However, interpreting the amendment as a bar to federal infringement of the right of the individual to bear arms avoids the conflict.[43] Interpretations; which harmonize constitutional provisions are favored over those creating conffict.[44]
B. Case Law Interpretation of the Second Amendment
1. Supreme Court
There is no definitive ruling from the United States Supreme Court on the meaning of the second amendment. In the four second amendment cases handed down by the Court, the amendment received little attention. Much of the argument advanced in support of gun control repeats the short statements made by the Court in these four cases.
The first Supreme Court case discussing the scope and meaning of the second amendment was United States v. Cruikshank.[45] This case is widely cited by courts rendering restrictive second amendment opinions.[46] In Cruikshank a civil rights action was brought against several southern whites. The defendants were convicted of depriving blacks of their constitutional right to keep and bear arms.[47] On appeal the Supreme Court reversed, holding the [Page 250] second amendment did not confer an individual right to the people.[48] The amendment, said the Court, "has no other effect than to restrict the powers of the national government."[49] Briefs filed with the Court discussed the second amendment issue in summary fashion.[50] The attorneys and the Court ignored numerous state court opinions addressing the scope and meaning of the second amendment and various state constitutional right to bear arms provisions.[51]
The second Supreme Court case involving the second. amendment was Presser v. Illinois.[52] In Presser the defendant was convicted under a state law prohibiting military assembly without a permit.[53] In summary fashion the Court rejected the claim that the law violated the second amendment right of the defendant.[54] The amendment, said the Court, does not apply to the states, it only restricts the powers of the federal government.[55]
In Miller v. Texas[56] the Supreme Court for the third time faced a second amendment question. The Court merely cited Presser and Cruikshank and, without further discussion or rationale, upheld the defendant’s conviction.
In United States v. Miller[57] the Court for the first time squarely faced. a second amendment issue. The defendant was indicted for violating the National Firearms Act of 1934-58 when he transported an unregistered" sawed-off shotgun across state lines. The district court held the Act violated the second [Page 251] amendment.[60] On direct appeal to the Supreme Court the district court was reversed.[61] In Miller the Court failed to mention Cruikshank, but instead embarked on a prolonged discussion of the colonial militia.[62] As the apparent reason for its decision the Court added a new twist to the second amendment saga stating,
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.[63]
The implication was that military weapons would receive the protections of the second amendment but others would not. However, subsequent lower court decisions have worked their way around this part of the Miller opinion.[64]
None of the Supreme Court cases addressing the second amendment have fully explored the history and meaning of the amendment.[65] A recent case from Morton Grove, Illinois, however, may provide the first direct ruling on the second amendment. Morton Grove recently enacted a municipal ordinance banning private possession of all handguns.[66] A federal district court rejected the contention that the ordinance violates the Illinois and United States Constitutions and refused to enjoin enforcement of the ordinance.[67] Both parties in the action are receiving financial and moral support from the pro-control and anti-control groups,[68] and each side appears ready to press on to the Supreme Court.[69] Until such time, there is no clear limitation on the power of state or local governments to regulate or prohibit possession of firearms.
2. Federal Court
In other lower federal courts where the second amendment issue has been raised[70] the conclusions have been the same. The amendment does not confer [Page 252] an individual right to keep and bear arms.[71] The amendment only restricts the national government from infringing the right of the organized state militia,[72] and the amendment is not an absolute right.[73] In the vast majority of these cases, however, the second amendment was a tangential issue, receiving little attention from the courts.[74]
3. State Court
State courts have confronted the right to bear arms issue more frequently than the federal courts,[75] and their decisions have been more exhaustive.[76] Rather than merely announcing a rule without discussion, these opinions have dissected the right to bear arms issue.[77] In the 1800’s the state courts were divided on the meaning of the constitutional right to bear arms.[78] However, [Page 253] following the short statement by the Supreme Court in Cruikshank that no constitutional right to bear arms existed, the majority of jurisdictions interpreted the second amendment, and their state constitutional right to bear arms provisions, as not granting individuals the right to bear arms.[79] Thus, Cruikshank, Presser and Miller and their almost total lack of analysis have influenced the present interpretation of the constitutional right to bear arms, or more correctly, the lack of a constitutional right for the individual to bear arms.
With few exceptions[80], contemporary state court opinions dealing with the constitutional right to bear arms issue parallel the federal interpretation of the right,[81] holding a) the Constitution confers a collective, rather than individual right to bear arms;[82] b) the Constitution does not restrict state infringement of the right;[83] and c) the right is subject to reasonable regulation, it is not absolute.[84] [Page 254]
The state’s police power[85] is often cited as the basis of the state’s power to regulate firearms.[86] Several state constitutions are more explicit than the federal Constitution in granting the right to bear arms.[87] Since state constitutions often reserve the right to regulate firearms,[88] the question is raised as to the extent of a state’s power in this area. Typically, the state will require the firearm owner to register the weapon with the state or local government.[89] Some laws require the owner to apply for an identification card, which is issued by the state or local police agency.[90] Most challenges to these laws have resulted in the law being upheld as a legitimate exercise of the state’s police power.[91]
III. THE FIREARM PROBLEM IN THE UNITED STATES
A. Gun Ownership
It is estimated there are between 140 and 200 million privately owned [Page 255] firearms in the United States.[92] The exact number is unknown because there is no federal law mandating that firearms be registered. Consequently, public survey polls are used to obtain gun ownership statistics.[93] Out of the 140 to 200 million firearms, 45 to 55 million are handguns.[94] Each year an additional two million handguns are manufactured in the United States and several hundred thousand are imported from foreign countries.[95]
Public survey polls indicate that approximately one half of the households in the United States are armed.[96] Out of those households that report owning a firearm, forty-two percent own a handgun.[97] From 1959 to 1973 the percentage of households owning handguns increased ten percent, rifle ownership increased seven percent, while shotgun ownership decreased seven percent.[98] A prime reason for the increase in handgun ownership is that the handgun is perceived as a means of defense, both for self and for property.[99]
It appears that gun ownership corresponds inversely to the pattern of violent crime.[100] Gun ownership is more frequent among the middle-class, those living in rural areas and non-minorities.[101] Violent criminal activity is more [Page 256] frequent among the lower-class, those living in urban areas and minorities.[102] Some studies, however, report the percentage of handgun ownership is about equal for whites and nonwhites.[103]
B. The Handgun Controversy
The effect of gun control on the incidence of firearm related crime has been discussed in a number of articles.[104] However, many studies have serious methodological flaws tarnishing their credibility, and it appears to date no definitive study has been published.[105] Considering the complexity of the issue, it seems doubtful whether a definitive answer is possible.[106]
One of the variables involved in measuring the effect of gun control on firearm crimes and accidents centers on the uncertainty of the definition. The meaning of gun control may range from mere registration of the sale of new firearms, to the issuance of permits and licensing in order to possess a firearm.[107] One city in the United States has gone so far as to prohibit private [Page 257] possession of all handguns within the city;[108] this extreme form of gun control may encounter other constitutional problems than the second amendment.[109] Most forms of gun control center on the belief that if guns are kept out of the hands of those who will misuse or abuse them, gun related crimes and accidents will be reduced.[110]
The disagreement over private possession of handguns centers on two areas: the legal issue, concerning whether it is constitutionally permissible to regulate or prohibit handguns, and the practical issue, concerning advantages and disadvantages of handgun ownership and particular forms of handgun control.[111]
On a practical level the question is whether a particular form of handgun control, such as licensing, will reduce the number of incidents of handgun misuse, such as crimes committed with handguns. This, after an, should be the goal of any handgun control law. The argument against handguns centers on two broad grounds. The first is that the handgun is more likely to injure the owner of the handgun or his family than an assailant,[112] and the second is that handguns are involved in the commission of more crimes than are other firearms.[113]
The first argument against unrestricted private possession of handguns centers on the belief that a handgun is more threatening to the handgun owner than to a potential criminal.[114] Pro-control groups cite statistics to indicate that a handgun kept in the home for self-defense is more likely to cause injury or death to family or friends than to an intruder.[115] Many burglaries, these groups assert, occur when no one is at home; thus, the handgun is more likely to be stolen than used to prevent a burglary.[116] They also contend that in many robberies the victim, even if armed, has no chance to use a weapon to prevent the robbery,[117] and the robbery victim who is armed is more likely to [Page 258] suffer injury during the robbery.[118]
The anti-control groups counter this argument by noting the handgun is a deterrent weapon whose self-defense value cannot be measured by the number of reported handgun defenses.[119] They further note that:
People do not have ‘house guns’ to kill burglars but to prevent burglaries. The measure of the effectiveness . . . [of a firearm] . . . is not in the number of bodies . . . on the doorsteps, but in the property that is protected. We have no idea how many burglars are challenged and frightened off by armed householders. And, of course, there is no way to measure the deterrent effect on burglars who know that homeowners may be armed.[120]
Many completed crimes go unreported, they note, and it is likely uncompleted crimes are reported even less.[121] Anti-control groups also state the deterrent value of many armed households is likewise incalculable.[122]
The second pro-control argument stresses the need to reduce the high number of criminal acts committed with handguns.[123] The theory is that if access to handguns is restricted the number of crimes committed with handguns will be reduced.[124] Cited in support of this theory are crime report statistics indicating handguns, which comprise only one-third to one-half of the firearms in the United States, are involved in over half of the firearm related, crimes committed each year.[125] Some estimate handgun involvement in over half of the murders each year in the United States.[126] The handgun, argue the pro-controllers, is highly suited to criminal uses[127] and should not be freely available. [Page 259]
The anti-control groups counter this argument by noting although there are nearly fifty million handguns in the United States, less than one percent are involved each year in criminal activity.[128] What is needed, they say, are laws condemning the criminal use of firearms; not laws condemning innocuous possession.[129] The anti-controllers argue criminal use of firearms will continue even if the handgun is outlawed as the criminal will merely adapt other firearms to suit his needs.[130] At present, they say, the handgun is widely used by criminals because of its low cost and ready availability; the long gun can be substituted if either of these two reasons no longer exist.[131] The handgun is not the cause of crime, they argue, it is merely used by the criminal as one means to perpetrate crimes.[132]
One point upon which both groups are likely to agree, is that the handgun is not an efficient means of defense,[133] since the average homeowner who owns a handgun is not proficient in its use.[134] The homeowner is likely to be half asleep when called upon to defend his home with the weapon.[135] Arguments over the inefficiency of the handgun, however, can cut both ways. The pro-control contention is that the handgun is not a good self-defense weapon and, therefore, ownership of a handgun on the grounds of self-defense is not justified.[136] The anti-controllers counter this argument by advancing a substitution theory, which states that if handguns are prohibited, 137 those who now use handguns will switch to deadlier long guns,[138] and as a result the firearm death rate will increase.[139] [Page 260]
If other uses of handguns are ignored, such as target shooting and hunting, then the controversy comes down to whether the handgun’s use as a self-defense weapon[140] is sufficient to outweigh the negative aspects of handguns in American society.[141] To resolve this question the analysis must focus on the type of regulation desired and the probable impact of the regulation.
IV. THE IMPACT OF EXISTING GUN CONTROL LAWS
A. Studies in the United States
A number of studies have attempted to assess the impact of gun control laws on the incidence of firearm related crime and violence.[142] The pro-controllers claim gun laws reduce accidental and criminal misuse of firearms.[143] The anti-controllers assert gun laws have no appreciable effect on firearm related crime and accidents.[144]
In 1968 the National Commission on the Causes and Prevention of Violence was established.[145] A staff report submitted to the commission has be. come the benchmark for the pro-control argument that firearms cause or contribute to violent crime in America.[146] The report concluded that the large number of firearms in the United States increases the number and severity of violent criminal acts.[147] In the opinion of the report authors, restrictive laws dealing with private possession of firearms, particularly handguns, would reduce the number of gun related crimes and accidents.[148] The report recommended a federal ban, in the form of restrictive licensing,[149] on private ownership of handguns, and long gun registration and licensing.[150]
In 1975 another report was published on the effects of firearm control.[151] It assessed the impact of the Gun Control Act of 1968[152] on crime and violence.[153] Handguns, stated the report, were a significant factor in violence in urban areas of the country.[154] The report suggested there was a subculture [Page 261] relationship between gun ownership and violence.[155]
An opposite view was expressed in a 1975 report by researcher Douglas Murray.[156] The report explored the relationship between gun control laws, access to handguns and the incidence of violence associated with firearms.[157] Murray noted there was little empirical research on the issue, and he criticized many previous studies as being biased and prejudiced.[158] He concluded gun control laws have no significant effect on the rates of violent crime, nor any significant effect on access to firearms, and differential access to handguns has no effect on violent crime.[159]
There is no consensus among researchers about what causes crime and violence. Likewise there is no agreement over the impact of firearms on crime and violence. Arguably many researchers have attempted to prove the firearm, particularly the handgun, is the cause of crime and violence.[160] By doing so they have overlooked the fact that there is no one cause of crime; crime and violence are the result of many varying and often unmeasurable factors.[161]
On a theoretical level, if private possession of all handguns were outlawed, and if the law could be fully enforced, then the incidence of crime and violence associated with the handgun would be reduced. Such a law, however, would be nearly impossible to enforce.[162] Thus, many weapons would remain in the hands of the private citizen and the criminal.[163] One of the difficulties in measuring the impact of a gun control law is that when access to firearms is restricted in one area, firearms can be brought into the restrictive area from those less restrictive.[164] Perhaps this is why the approximately 20,000 gun control laws in the United States have failed to reduce firearm related crime and violence. [Page 262]
B. The English Experience
In 1972 Colin Greenwood published a report on the crime and firearm problem in England.[165] He noted strict controls on pistols since 1920 had failed to bring under control large numbers of handguns.[166] There is now more unlawful use of firearms, particularly pistols, than existed fifty years ago, before the strict handgun law.[167] Greenwood concludes,
Careful examination of all the evidence available suggests . . . that legislation has failed to bring under control substantial numbers of firearms, and it certainly cannot be claimed that strict controls have reduced the use of firearms in crime. On the basis of these facts is [sic] might be argued that firearms controls have little effect and do not justify the amount of police time involved. Indeed, it is possible to build up a sound case for abolishing or substantially reducing controls. One important aspect not covered by the statistics is the psychological effects of controls . . . . Any such psychological effects will, clearly, have been more effective amongst the law-abiding section of the community than they will against the criminal elements.[168]
Greenwood suggests that before further restrictive gun control laws are enacted there should be a cost-benefit analysis of the controls. He feels there is no rational basis for the present restrictive gun control laws.
V. SUGGESTIONS FOR REDUCING THE GUN RELATED CRIME PROBLEM
The 20,000 to 25,000 gun control laws in the United States[169] have failed to keep firearms out of the hands of criminals and others who misuse them.[170] Consequently, the rate of crime and violence associated with firearms has not been reduced. Present gun control laws range from mere registration of the initial purchase to restrictive licensing, yet the firearm crime problem remains. One of the reasons the problem remains is that local and state laws cannot stem the interstate flow of firearms. Thus, a state such as New York, which has a restrictive firearm control law,[171] is flooded with firearms from nearby states with few restrictions.[172] Further complicating the problem are the millions of firearms already in the hands of the American people. Many thousands of these firearms are stolen every year and fall into the hands of criminals. If a gun control law is to be effective, voluntary cooperation from firearm owners is needed.[173]
Since the handgun is causing the present uproar over firearms, it appears [Page 263] a gun control law might be effective in reducing criminal and accidental misuse if private possession of handguns were reduced. Two methods of reducing private possession may prove effective. The first is for the federal government to pass legislation. The government could do as pro-controllers suggest and ban private possession of handguns. It is questionable, however, whether such a law would be socially and financially responsible.[174] Another approach would be for the federal government to prevent the interstate transfer of handguns from states which have little need for controls[175] to states needing controls.[176] This type of law would allow the state needing the controls to enact laws, such as local registration and licensing, to effectively confront the handgun crime problem.
In addition to inhibiting unauthorized interstate movement of handguns, a government program to alter the public perception of the handgun as a self-defense weapon might prove effective at reducing private possession.[177] Since over half of those owning handguns report the reason they own a handgun is for self-defense, directing their attention to the inefficiency of the handgun may operate to reduce possession. Encouraging a switch to long guns may also be effective in reducing private handgun possession.[178]
Gun control laws are not all ineffective; for example, laws preventing the sale of firearms to minors, incompetents and convicted criminals may reduce new firearm purchases by these groups.[179] Laws in some states also provide for a "cooling off" period between purchase and delivery of a handgun.[180] These laws, however, regulate the commercial sale of firearms, whereas many firearms are sold between private individuals without the government ever having been aware of the sale.[181] Perhaps expanding these laws to cover private transactions would increase their effectiveness. Enforcing such an expansion, however, would be difficult if not impossible.[182]
States that have enacted laws setting mandatory minimum prison terms [Page 264] for firearm related crime may expect to see a reduction in the criminal use of firearms.[183] These laws penalize criminal use of firearms and do not infringe the rights of the 99% of firearm owners who do not misuse firearms.[184] The success of such laws is not clear, although one negative aspect is if firearm use by criminals is deterred there may be an increase in crimes committed against more vulnerable victims.[185] On the whole, however, it is possible that strict mandatory minimum prison terms will discourage criminal use of firearms.
VI. CONCLUSION
The violent crime problem in the United States is exacerbated, though not caused by, the large number of handguns which are freely available. The controversy over gun control centers around whether a gun control law would be effective in reducing violent crime and at the same time not infringe the right of the people to possess firearms. It appears many people believe there is art individual right to own a gun guaranteed by the second amendment.[186] How. ever, many also believe regulation of handgun ownership does not violate the second amendment.[187]
At common law the individual had a right to keep and bear arms.[188] The right, however, was not absolute, and was subject, to reasonable regulation by the state.[189] The question today is whether reasonable regulation will be effective in reducing handgun crime. At a minimum, prior to restricting the right of the individual law abiding citizen to own a gun, there should be a cost-benefit analysis of such a restriction.[190] This analysis would determine the reasonableness of the proposed restriction. [Page 265]
Unfortunately the least restrictive methods of handgun control, registration and licensing, are also the least effective and, at the same time, are expensive.[191] The most restrictive method of control, prohibition of private possession, is constitutionally questionable and may or may not be effective depending on the degree of voluntary citizen cooperation.
It will require a combination of handgun controls, minimum sentences for criminal use of firearms, and re-education of handgun owners to effectively combat the firearm crime problem. Handgun controls must be reasonable; the benefits should outweigh the costs, and should be on a state level to reflect the individual needs of each area of the country.[192] Minimum mandatory sentence laws for criminal use of firearms should be enacted and this fact should be communicated to the criminal sector of society. Finally, the handgun owner who possesses a handgun for self-defense should be informed of the negative aspects of handgun ownership and should be encouraged to purchase a long gun in place of the handgun. Ultimately the effectiveness of a firearm control law will depend on voluntary cooperation of gun owners.
Kurt F. Kluin
1. N.Y. Times, Mar. 31, 198 1, § A, at 6, col. 4.
2. Id. See The Gun Control Act of 1968, 18 U.S.C. §§ 921-928 (1976). For a discussion of the validity, construction and application of the Act, see Annot., 33 A.L.R. Fed. 824 (1977).
3. 18 U.S.C. §§ 921-928 (1976).
4. See generally Federal Firearms Act of 1938, ch. 850, 52 Stat. 1250 (repealed 1968) (reenacted, with changes, in 18 U.S.C. §§ 921-928 (1976)); National Firearms Act of 1934, ch. 757, 48 Stat. 1236 (current version at 26 U.S.C. §§ 5801-5872 (1976)). The pro-control groups claim the Gun Control Act is weakened by numerous pro-gun amendments. N.Y. Times, Mar. 31, 1981, § B, at 6, col. 6. Both the pro-control and anti-control groups agree the Act has failed to reduce gun related crime. See generally Murray, Handguns, Gun Control Laws and Firearm Violence, 23 SOC. PROB. 81, 88-91 (1975). Cf. Jackson, Handgun Control Constitutional and Critically Needed, 8 N.C. CENT. L.J. 189,198 (1976) (pro-control analysis); Caplan, Handgun Control: Constitutional or Unconstitutional?¾ A Reply to Mayor Jackson, 10 N.C. CENT. L.J. 53 (1978) [hereinafter cited as Caplan, Handgun Control] (anti-control analysis).
5. The gun control issue centers on whether the individual citizen has a right to "keep and bear" firearms. The highly organized pro-gun, anti-control NRA contends the second amendment grants each American the right to own a firearm free of government infringement. The anti-gun. pro-control forces, such as the National Coalition to Ban Handguns, contend the second amendment does not grant a right to own or possess firearms, particularly handguns.
6. See TIME, December 22, 1980.
7. The handgun used in the attack on President Reagan was an inexpensive .22-caliber pistol purchased from a gun shop in Texas. Texas has no comprehensive gun control law. The handgun used in the Lennon murder was a relatively expensive .38-caliber revolver purchased from a gun shop in Hawaii. Id. at 29. New York City’s gun control law has been characterized as one of the toughest gun laws in the country. N.Y. Times, June 14, 1980, at 1, col. 6. New York has regulated handguns since 1911. Id. at 27, col. 2. However, these regulations have not kept handguns out of the hands of New York City residents. The New York City Police Department estimates there are two million illegal handguns in the City. N.Y. Times, Mar. 31, 1980, § B, at 1, col. 4. Widespread unregulated sales of handguns in other states, such as Florida, Georgia and South Carolina have created a flow of illegal weapons into New York City. Id.
8. N.Y. Times, Mar. 31, 1981, § A, at 6, col. 4. Some estimates of handgun misuse show handguns involved in almost half of the murders committed each year in the United States. See Browning, Handguns and Homicide--A Public Health Problem, 236 A.M.A.J. 2198 (1976); Leo, The Menace of Any Shadow, TIME, Dec. 22, 1980, at 32.
9. U.S. CONST. amend. 11. Thirty-five states have some type of constitutional guarantee of the "right to keep and bear arms." Fifteen states have no specific right to bear arms provision in their constitution. See Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 CATH. AM. L. REV. 53, 80-84 (1966). In 1970, the Illinois Constitution was amended to specifically grant the individual the right to keep and bear arms, subject only to the state’s police power. ILL. CONST. art. 1, § 22. See notes 88 & 89 infra.
10. The meaning of the "right . . . to keep and bear arms" is not entirely clear. The first question is what are "arms’"? Arms may mean ordinary weapons used by the state militia. See United States v. Miller, 307 U.S. 174, 178 (1939); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948 (1976); 94 C.J.S. Weapons § 2(b) (1956). A less restrictive meaning was advanced by the Texas Supreme Court in State v. Duke, 42 Tex. 455 (1875). Arms, said the court, refers to more than the weapons of the militiaman, it refers to those weapons that are . commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the state." Id. at 458. A pistol, held the court, is such a weapon. Id. at 459. See BLACK’S LAW DICTIONARY 100 (5th ed. 1979).
The second question is what is meant by to "keep and bear"? It appears many courts associate bearing arms with carrying arms. See, e.g., Haile v. State, 38 Ark. 564 (1882); Hill v. State, 53 Ga. 472 (1874); Davis v. State, 146 So. 2d 892 (Fla. 1962); State v. Bolin, 200 Kan. 369, 436 P.2d 978 (1968); City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905); Wright v. Commonwealth, 77 Pa. 470 (1875); English v. State, 35 Tex. 473 (187 1); 79 Am. JUR. 2d Weapons and Firearms § 4, at 9 (1975); BLACK’S LAW DICTIONARY 140 (5th ed. 1979). One author is of the opinion that the right to bear arms is a military term. The right developed out of the duty of early colonists to keep arms for the defense of their communities. Bearing arms was the phrase used to indicate "serving in an organized armed force." Levin, The Right To Bear Arms: The Development Of The American Experience, 48 CHI.-KENT L. REV. 148, 148 (1971). See also Emery, The Constitutional Right to Keep and Bear Arms, 28 HARV. L. REV. 473, 476 (1915) (bearing arms is a military type term).
11. Weatherup, Standing Armies And Armed Citizens: An Historical Analysis Of The Second Amendment, 2 HASTINGS CONST. L.Q. 961, 962-63 (1975). The collectivists view the second amendment as granting only to the state militia the right to bear arms. The individualists have & much broader view of the second amendment. They see it as an individual right that belongs to all citizens. Id.
12. See, e.g., United States v. Miller, 307 U.S. 174 (1939); United States v. Tot, 28 F. Supp. 900 (D.N.J. 1939), aff’d, 131 F.2d 261 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943); Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975); City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905); Application of Atkinson, 291 NW.2d 396 (Minn. 1980); Burton v. Sills, 53 NJ. 86, 248 A.2d 521 (1968); Harris v. State, 83 Nev. 404, 432 P.2d 929 (1967). But see State v. Buzzard, 4 Ark. 18, 33 (1842) (Lacy, J., dissenting); Nunn v. State, 1 Ga. 243 (1846); Bliss v. Common. wealth, 12 Ky. (2 Litt.) 90 (1822); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968); State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921). See also Hays, The Right to Bear Arms, A Study in Judicial Misinterpretation, 2 WM. & MARY L. REV. 381 (1960); Note, The Right to Keep and Bear Arms, 26 DRAKE L. REV. 423, 436-44 (1977); Note, The Right to Bear Arms, 19 S.C.L. REV. 402, 407-09 (1967); Note, Federal Regulation of Firearms Sales, 31 U. CM. L. REV. 780, 781-84 (1964); Note, Restrictions on the Right to Bear Arms: Slate and Federal Firearms Legislation, 98 U. PA. L. REV. 905 (1950).
13. See United States v. Cruikshank, 92 U.S. 542 (1875); Hays, supra note 12, at 399-400; Levine & Saxe, The Second Amendment: The Right to Bear Arms, 7 HOUS. L. REV. 1, 10-11 (1969); Whisker, Historical Development and Subsequent Erosion of the Right to Keep and Bear Arms, 78 W. VA. L. REV. 171, 179-81 (1975).
14. Under the selective incorporation concept "only those provisions of the Bill of Rights that, the Court considers fundamental to the American system of law are applied to the states through the due process clause of the Fourteenth Amendment." J. NOWAK, R. ROTUNDA & J. YOUNG, HANDBOOK ON CONSTITUTIONAL LAW 376 (1978).
15. Id. at 377 n.8. See 79 AM. JUR. 2d Weapons and Firearms § 4, at 8 n.47 (1975); cases cited note 12 supra. But see Rohner, supra note 9, at 66.
16. See note 10 supra. At the time the Bill of Rights was drafted the state militia was composed of all males capable of bearing arms. All men in the United States are, in effect, in the militia. Caplan, Handgun Control, supra note 4, at 54; Hardy & Stompoly, Of Arms And The Law, 51 CHI-KENT L. REV. 62, 70 (1974). Cf. Presser v. Illinois, 116 U.S. 252, 265 (1886) (all citizens capable of bearing arms constitute the reserve military force, the militia).
17. State v. Buzzard, 4 Ark. 18, 35 (1842) (Lacy, J., dissenting) (well regulated militia refers to the reason for the right, it is not a restriction of the right); Nunn v. State, 1 Ga. 243, 250 (1846) (same). See Caplan, Restoring the Balance: The Second Amendment Revisited, 5 FORDHAM URB. L.J. 31, 40 (1976) [hereinafter cited as Caplan, Restoring the Balance]; Caplan, Handgun Control, supra note 4, at 53-55; Hays, supra note 12, at 397; Whisker, supra note 13, at 177.
18. See Feller & Gotting, The Second Amendment: A Second Look, 61 NW. U.L. REV. 46,69 (1966); Levin, supra note 10, at 159; Weatherup, supra note 11, at 994-95; Note, Constitutional Limitations on Firearms Regulation, 1969 DUKE L.J. 773, 797.
19. See generally United States v. Miller, 307 U.S. 174 (1939); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976); Cases v. United States, 131 F.2d 916 (Ist Cir. 1942), cert. denied, 319 U.S. 770 (1943); United States v. Tot, 28 F. Supp. 900 (D.N.J. 1939), aff’d, 131 F.2d 261 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943); United States v. Adams, 11 F. Supp. 216 (S.D. Fla. 1935); Brown v. City of Chicago, 42 111. 2d 501, 250 N.E.2d 129 (1969); Rawlings v. Illinois Dep’t of Law Enforcement, 73 111. App. 3d 267, 391 N.E.2d 758 (1979); State v. Rupp, 282 N.W.2d 125 (Iowa 1979); Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968); People ex rel. Darling v. Warden of City Prison, 154 A.D. 413, 139 N.Y.S. 277 (1913); Mosher v. City of Dayton, 48 Ohio St. 2d 243, 358 N.E.2d 540 (1976).
20. See note 17 supra.
21. 347 U.S. 483 (1954). See Caplan, Handgun Control, supra note 4, at 57. In Brown the Supreme Court recognized the inherent inequality which resulted from the separate but equal doctrine. See J. NOWAK, R. ROTUNDA & J. YOUNG, supra note 14, at 551-56 (analysis of the progression of Supreme Court cases upholding the separate but equal doctrine and leading to the Brown decision). Caplan is implying the full scope of the second amendment is yet to be discovered.
22. See note 19 supra. See also note 18 supra.
23. Meaning refers to what was meant or intended, while reason refers to the motive or justification. WEBSTER’S NEW COLLEGIATE DICTIONARY 712, 962 (1976). Both the second and third amendments were a reflection of the colonists’ longstanding hatred and distrust of a professional standing army. See United States v. Miller, 307 U.S. 174,179 (1939); Annot., 37 A.L.R. Fed. 696, 700 (1978); Emery, supra note 10, at 475-76.
24. See notes 30-34 and accompanying text infra.
25. "[T]he common view was that adequate defense of country and laws could be secured through the Militia¾ civilians primarily, soldiers on occasion." United States v. Miller, 307 U.S. 174, 179 (1939).
26. Id. See Rohner, supra note 9, at 72-73. "[A]fter . . . three centuries, the right to bear arms is becoming anachronistic. As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant; . . . the right . . . becomes more futile, meaningless and dangerous." Levin, supra note 10, at 166-67. However, each year the crime rate in the country increases substantially; it appears the need for self-defense is greater today than it has ever been. This fact is borne out by crime statistics promulgated by the FBI.
27. It is worthwhile to remember that in colonial days the firearm was a necessity of life. The firearm was used to obtain food as well as a means of defense, both for the community and for one’s self. See Note, supra note 18, at 796. In colonial days several states had laws which mandated the possession of a firearm. See Levin, supra note 10, at 148-50. Furthermore, one of the events which ignited the Revolutionary War was the attempt by the British to capture the colonial military stores at Concord in April of 1775. See R. COAKLEY & S. CONN, THE WAR OF THE AMERICAN REVOLUTION 11-13 (1975); S. FISHER, THE TRUE HISTORY OF THE AMERICAN REVOLUTION 225-26 (1972). No doubt, the colonists were aware of the practice of European rulers to disarm the population so as to avoid uprising and revolt. See R. KUKLA, GUN CONTROL 18 (1973). It appears that one of the reasons for the second amendment was to give substance to the right of the people to "arise in armed rebellion should the newly formed government prove oppressive." Hardy & Stompoly, supra note 16, at 76-77. See also State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921); Caplan, Handgun Control, supra note 4, at 53. Justice Story wrote, "The right of the citizen to keep and bear arms has justly been considered, as the palladium of the liberties of a republic . . . ." 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1890, at 74647 (1833).
28. See Whisker, supra note 13, at 176-78.
29. See, e.g., Caplan, Restoring the Balance, supra note 17, at 43; Caplan, Handgun Control, supra note 4, at 53-54. For a discussion of the common law right, see 68 C.J. Weapons § 2, at 5
(1934); Hays, supra note 12, at 383-88; Rohner, supra note 9, at 58-59; Whisker, supra note 13, at 177-79. At common law the right to bear arms rested on three solid English rights: the right Of, revolution, the right of group self-defense, and the right of individual self-defense. Hays, supra 1 note 12, at 388. Blackstone wrote one of the subordinate rights of all men is that of "having arms for . . . defence, suitable to . . . condition and degree, and such as are allowed by law." 1 W. BLACKSTONE, COMMENTARIES *143-44. This right was a "public allowance, under due restrictions, of the natural right of resistance, and self-preservation, when the sanctions of society and laws are found insufficient. . . ." Id. at * 144. The common law English right to bear arms was embodied in the Declaration of Rights proclaimed by the Convention Parliament after the flight of James II from England in 1688. Aymette v. State, 21 Tenn. (2 Hum.) 152, 156-57 (1840). King James II disarmed the population and then quartered Catholic soldiers among the people. This allowed various acts of oppression to go unchallenged. After James II fled England the Convention Parliament forbade standing armies and the quartering of soldiers without the Parliament’s permission. The people were given the right to bear arms so as to avoid repetition of the above events. Id. See State v. Reid, 1 Ala. 612, 615 (1840); B. SCHWARTZ, THE BILL OF RIGHTS: & DOCUMENTARY HISTORY 4041 (1971); Emery, supra note 10, at 474.
30. "[T]he right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II.
31. "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble . . . ." U.S. CONST. amend. I. "The right of the people to be secure . . . shall not be violated . . . ." U.S. CONST. amend. IV.
32. See generally 1 W. LAFAVE, SEARCH AND SEIZURE (1978); J. LANDYNSKI, SEARCH ANDSEIZURE AND THE SUPREME COURT (1966); J. NOWAK, R. ROTUNDA & J. YOUNG, supra note 14, at 711-893.
33. See Hardy & Stompoly, supra note 16, at 72-73. See also note 16 supra. At the time the second amendment was drafted the militia was composed of an able bodied males. The drafters must have intended there be a difference between the militia and the people. The difference is more apparent when one common law reason for the right to bear arms is considered; to allow people the right to remove oppressive or tyrannical governments. See note 29 supra. If the right granted by the second amendment belongs only to the states, through the organized state militia, then this common law right of revolution is meaningless. "It is in an armed citizenry that freedom from tryranny [sic] is found. Where the people are not armed, tyranny and despotism take firm hold. Where the people are armed and in control of their own . . . militia this threat is chimerical." Levine & Saxe, supra note 13, at 9.
34. There were debates in the first Congress about. the wording of the second amendment. James Madison’s original proposal read: "The right of people to keep and bear arms shall not be infringed; a well armed and regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." Whisker, supra note 13, at 177 n.32. There were objections to the last part; it was eliminated and the amendment was changed to its present form. Id. During the congressional debates. on the amendment Congressman Gerry from Massachusetts made several points: the amendment,
should protect the people against government maladministration; it should check arbitrary exercise of power by the government; and the right to bear arms should not be dependent on the existence of an organized militia. Caplan, Restoring the Balance, Supra note 17, at 39. In sum, "the right of the people to keep and bear arms for peaceful purposes should be a real and unrestricted one." Id. at 40.
35. U.S. CONST. amend. X.
36. Furthermore, note that the Preamble to the Constitution starts with, "We the People . . . ." The people established the Constitution and the government; the people, of course, were individuals.
37. Alaska, Hawaii, Louisiana, North Carolina and South Carolina.
38. See note 9 and accompanying text supra.
39. See Hardy & Stompoly, supra note 16, at 75.
40. Congress shall have the power
To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. U.S. CoNsT. art. I, § 8, cl. 16.
41. The militia could effectively be disarmed if Congress failed to provide funds to arm the militia, or if Congress simply supplied inefficient arms.
42. Hardy & Stompoly, supra note 16, at 70-71. The Constitution also provides, "No State shall, without the Consent of Congress . . . keep Troops . . ." U.S. CONST. art. I, § 10, cl. 3. This provision conflicts with the collectivists’ view of the second amendment.
43. Hardy & Stompoly, supra note 16, at 71.
44. Id.
45. 92 U.S. 542 (1875).
46. See cases cited note 12 supra.
47. United States v. Cruikshank, 25 F. Cas. 707 (D. La. 1874) (No. 708-09), rev’d, 92 U.S. 542 (1875).
48. 92 U.S. at 559. On appeal the Court affirmed an order of the circuit court arresting judgment upon the verdict, and remanded the case with instructions to discharge the defendants.
49. Id. at 553.
50. See 7 P. KURLAND & G. CASPER, LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 288-417 (1975). The brief filed by the United States made no mention of the second amendment issue. Id. at 288-315. The briefs filed by the defendants summarily discussed the second amendment issue in one paragraph or less without citing support or rationale. Id. at 315-417.
51. See, e.g., Owen v. State, 31 Ala. 387 (1858); State v. Buzzard, 4 Ark. 18 (1842); Hill v. State, 53 Ga. 472 (1874); Nunn v. State, I Ga. 243 (1846); State v. Mitchell, 3 Blackf. 229 (Ind. 1833); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822); Wright v. Commonwealth, 77 Pa. 470 (1875); Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840); State v. Duke, 42 Tex. 455 (1875); English v. State, 35 Tex. 473 (187 1).
52. 116 U.S. 252 (1886).
53. The defendant had led an armed quasi-military group on a march down a Chicago street. Id. at 253-54.
54. Noting Cruikshank the Court stated, "the right of the people to keep and bear arms ‘is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.’" Id. at 265 (quoting United States v. Cruikshank, 92 U.S. at 553).
55. 116 U.S. at 265 (quoting United States v. Cruikshank, 92 U.S. at 553). The Court also takes notice of the fact that "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States . . . ." 116 U.S. at 265. The Court states, "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." Id. (dicta).
56. 153 U.S. 535 (1894). The defendant’s murder conviction was affirmed by the Supreme Court of Texas and he brought a writ of error to the United States Supreme Court. The defendant contended, inter alia, that his warrantless arrest for carrying a weapon was a violation of the second amendment. Id. at 538. The Court stated that the second and fourth amendments operate only against the federal government, not the states. Id. The writ of error was dismissed.
57. 307 U.S. 174 (1939).
58. National Firearms Act of 1934, ch. 757, 48 Stat. 1236 (current version at 26 U.S.C. 5801-5872 (1976)).
59. 307 U.S. at 175. The Act provided for registering and taxing certain types of weapons. See 79 AM. JUR. 2d Weapons and Firearms § 32 (1975).
60. United States v. Miner, 26 F. Supp. 1002, 1002-03 (W.D. Ark.), revd, 307 U.S. 174 (1939). The district court offered no rationale for its decision, it merely sustained the defendant’s demurrer.
61. 307 U.S. at 183.
62. Id. at 178-82. The Court does cite some older restrictive second amendment cases from various state courts. Id. at 182 n.3.
63. Id. at 178.
64. See, e.g., United States v. Warin, 530 F.2d 103 (6th Cir.), cert denied, 426 U.S. 948 (1976) (the court distinguishes Miller on the facts); Cases v. United States, 131 F.2d 916 (Ist Cir.), cert. denied, 319 U.S. 770 (1943) (same). In Cases, which is cited with approval in Warin, the court determines the Supreme Court did not mean what it said in Miller. The Supreme Court, said the court in Cases, was not attempting to formulate a general rule, it merely applied the law to the facts at hand.
65. See notes 45-64 and accompanying text supra.
66. See Podgers, First Legal Shots Fired over Handgun Ordinance, 67 A.B.A.J. 969 (1981).
67. Quilici v. Village of Morton Grove, ¾ F. Supp. ¾ (No. 81 C 3432, N.D. In. Dec. 29, 1981). See N.Y. Times, Dec. 30, 1981, § A, at 9, col. 4.
68. The NRA is supporting the petitioners’ challenge of the ordinance; the NCBH is supporting the defendant, Morton Grove. Podgers, supra note 66, at 969.
69. "A possible Supreme Court test of the ordinance was a key reason for its adoption by the village board. . . ." Id.
70. Typically, the second amendment issue in federal court is raised by a defendant as a defense to prosecution under the National Firearms Act or the Gun Control Act. See note 4 supra.
71. See, e.g., United States v. Warin, 530 F.2d 103, 106 (6th Cir 1976); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 197 1); United States v. Tot, 28 F. Supp. 900, 903 (D.N.J. 1939), aff’d, 13 F.2d 261, 266 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943); United States v. Adams, 11 F. Supp. 216, 2 19 (S.D. Fla. 1935). See also 94 C.J.S. Weapons § 2(a) (1956); Annot., 37 A.L.R. Fed. 606, 706-07 (1978).
72. See, e.g., United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976); United States v. Tot, 28 F. Supp. 900, 903 (D.N.J. 1939), aff’d, 131 F.2d 261, 266 n.14 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943). See also Cases v. United States, 131 F.2d 916, 921-22 (Ist Cir. 1942); 94 C.J.S. Weapons § 2(c) (1956); Annot., 37 A.L.R. Fed. 696, 703 (1978).
73. See cases cited notes 71 & 72 supra. See also United States v. King, 532 F.2d 505, 510 (5th Cir.), cert. denied, 429 U.S. 960 (1976); United States v. Birmley, 529 F.2d 103, 107 (6th Cir. 1976); United States v. Swinton, 521 F.2d 1255, 1259 (10th Cir.), cert denied, 424 U.S. 918 (1975); United States v. Day, 476 F.2d 562, 568 (6th Cir. 1973); Cody v. United States, 460 F.2d 34, 36-37 (8th Cir.), cert. denied, 40.4 U.S. 911 (1971); United States v. McCutcheon, 446 F.2d 133, 135-36 (7th Cir. 197 1); United States v. Wilson, 440 F.2d 1068 (6th Cir. 197 1); 94 C.J.S. Weapons § 2(a), at 473 (1956).
74. See, e.g., United States Y. Warin, 530 F.2d 103 (6th Cir. 1976) (defendant charged with violating the National Firearms Act; one defense was that the Act violated the second amendment); Cases v. United States, 131 F.2d 916 (1st Cir. 1942) (defendant charged with violating the Federal Firearms Act; one defense was that the Act violated the second amendment).
75. E.g., Galvan v. Superior Court, 70 Cal. 2d 851, 452 P.2d 930, 76 Cal. Rptr. 642 (1969); People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979); City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972); Davis v. State, 146 So. 2d 892 (Fla. 1962); In re Brickey, 81 Idaho 597, 70 P. 609 (1902); Brown v. City of Chicago, 42 Ill. 2d 501, 250 N.E.2d 129 (1969); Biffer v. City of Chicago, 278 111. 562, 116 N.E. 182 (1917); Rawlings v. Illinois Dep’t of Law Enforcement, 73 Ill. App. 3d 267, 391 N.E.2d 758 (1979); Matthews v. State, 237 Ind. 677, 148 N.E.2d 334 (1958); State v. Rupp, 282 N.W.2d 125 (Iowa 1979); Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975); Onderdonk v. Handgun Permit Review Bd., 44 Md. App. 132, 407 A.2d 763 (1979); People V. Brown, 253 Mich. 537, 235 N.W. 245 (193 1); Application of Atkinson, 292 N.W.2d 396 (Minn. 1980); City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737 (1971); Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968); Grimm v. City of New York, 56 Misc. 2d 525, 289 N.Y.S.2d 358 (Sup. Ct. 1968); People v. Horton, 147 Misc. 506, 264 N.Y.S. 84 (Sup. Ct. 1933); Morrison v. State, 339 SW.2d 529 (Tex. Crim. App. 1960); State v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903).
76. The state courts appear to have been unsure of the meaning of the second amendment prior to Cruikshank.
77. See, e.g., State v. Reid, I Ala. 612 (1840); State v. Buzzard, 4 Ark. 18 (1842); Nunn v. State, I Ga. 243 (1846); Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840).
78. See State v. Buzzard, 4 Ark. 18, 34 (1842) (Lacy, J., dissenting). Kentucky, Tennessee and Mississippi declared weapons regulating statutes unconstitutional; Alabama and Indiana allowed weapons regulation. See, e.g., Owen v. State, 31 Ala. 387 (1858); State v. Reid, 1 Ala. 612 (1840); Nunn v. State, 1 Ga. 243 (1846); State v. Mitchell, 3 Blackf. 229 (Ind. 1833); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822); Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840); English v. State, 35 Tex. 473 (1871).
Several of the state court cases, decided in the early 1800’s, are interesting. In Bliss the defendant was charged with violating a concealed weapons statute. On appeal his conviction was reversed based on Article 10, Section 23 of the Kentucky Constitution, which stated, "The right of the citizen to bear arms in defense of themselves and the state, shall not be questioned." 12 Ky. (2 Litt.) at 90. The Kentucky Constitution, said the court, gives all its citizens an absolute individual right to bear arms. Id. at 92. However, in subsequent right to bear arms cases, under the second amendment or other similar state provisions, Bliss has been rejected. See State v. Buzzard, 4 Ark. 18, 25 (1842); Strickland v. State, 137 Ga. 1, 3, 72 S.E. 260, 261 (1911); City of Salina v. Blaksley, 72 Kan. 230, 231, 83 P. 619, 620 (1905); State Y. Wilforth, 74 Mo. 528, 530, (1881); Aymette v. State, 21 Tenn. (2 Hum.) 154, 159 (1840). The objectionable element of Bliss was the statement that the right to bear arms was absolute.
In Nunn the Georgia Supreme Court was faced with a question involving the scope and meaning of the second amendment. The defendant was charged with possession of a pistol in violation of state law. In reversing the defendant’s conviction the court noted, a "statute which, under the pretence of regulating, amounts to a destruction of the right [to bear arms], or which requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional." 1 Ga. at 249 (emphasis in original). The right to bear arms, said the court, is "one of the fundamental principles, upon which rests the great fabric of civil liberty .... Id.
In Buzzard the Arkansas Supreme Court refused the defendant’s claim that a concealed weapons law was unconstitutional. The court determined the second amendment did not grant an absolute right to bear arms, but that reasonable controls were necessary to avoid the destruction of the community. The amendment, said the court, confers a collective, not individual right to bear arms. 4 Ark. at 28-29. The dissenting justice disagreed, contending the second amendment confers an individual right to bear arms. All men, he said, have a natural and inalienable right to fight tyranny and oppression. 4 Ark. at 34 (Lacy, J., dissenting).
79. See cases cited note 75 supra.
80. E.g., City of Las Vegas v. Moberg, 82 N.M. 626,485 P.2d 737 (1971) (An ordinance may prohibit the carrying of a concealed weapon, but "an ordinance may not deny the people the constitutionally guaranteed right to bear arms." Id. at 627, 485 P.2d at 738); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968) (The right to bear arms is not absolute, but "any statute or construction of a common law rule, which would amount to a destruction of the right to bear arms would be unconstitutional." Id. at 548, 159 S.E.2d at 11). See also City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).
81. See notes 72-74 and accompanying text supra.
82. E.g., Brown v. City of Chicago, 42 Ill. 2d 501, 250 N.E.2d 129 (1969); Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975); Harris v. State, 83 Nev. 404, 432 P.2d 929 (1967); Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968); Photos v. City of Toledo, 19 Ohio Misc. 147, 250 N.E.2d 916 (Ct. C.P. 1969).
83. E.g., People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979); Davis v. State, 146 So. 2d 892 (Fla. 1962); Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911); Biffer v. City of Chicago, 278 111. 562,116 N.E. 182 (1917); Matthews v. State, 237 Ind. 677, 148 N.E. 2d 334 (1958); State v. Rupp, 282 N.W.2d 125 (Iowa 1979); State v. Bolin, 200 Kan. 36.91 436 P.2d 978 (1968); People ex rel. Darling v. Warden of City Prison, 154 A.D. 413,139 N.Y.S. 277 (1913); Mosher v. City of Dayton, 48 Ohio St. 2d 243, 358 N.E.2d 540 (1976).
84. E.g., Galvan v. Superior Court, 70 Cal. 2d 851, 452 P.2d 930, 76 Cal. Rptr. 642 (1969); People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979); Onderdonk v. Handgun Permit Review Bd., 44 Md. App. 132, 407 A.2d 763 (1979); Hardison v. State, 84 Nev. 125, 437 P.2d 868 (1968); Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1 (1968); 68 C.J. Weapons § 5 (1934); Annot., 3 L.R.A. (NR) 168 (1906).
85. State police power is "[a]n authority conferred by the American Constitutional system in the Tenth Amendment, U.S. Const., upon the individual states, and, in turn, delegated to local governments. . . ." BLACK’S LAW DICTIONARY 1041 (5th ed. 1979). It allows the states to "place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals . . . ." Id. The police power is subject to the limitations imposed by the federal and state constitutions. Id.
86. See People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979); Biffer v. City of Chicago, 278 Ill. 56Z 116 N.E. 182 (1917); Hardison v. State, 84 Nev. 125, 437 P.2d 868 (1968); Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968); People ex rel. Darling v. Warden of City Prison, 154 A.D. 413, 130 N.Y.S. 277 (1913); 79 AM. JUR. 2d Weapons and Firearms § 5 (1975); 68 C.J. Weapons § 9 (1934); Annot., 28 A.L.R.3d 845 (1969).
87. E.g., ALA. CONST. art. 1, § 26 ("That every citizen has a right to bear arms in defense of himself and the state." Id.); COLO. CONST. art. II, § 13 ("The right of no person to keep and bear arms in defense of his home, person and property ... shall be called in question; but nothing herein ... shall be construed to justify the practice of carrying concealed weapons." Id.); FLA. CONST. art. 1, § 8 ("The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." Id.); GA. CONST. art. 1, § 1, Paragraph Symbol V ("The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne." Id.); KAN. CONST. Bill of Rights § 4 ("The people have the right to bear arms for their defense and security. . . ." Id.); MICH. CONST. art. 1, § 6 ("Every person has a right to keep and bear arms for the defense of himself and the state." Id.), TEX. CONST. art. 1, § 23 ("Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the state; but the Legislature shall have power, by law, to regulate the wearing of arms .... Id.).
88. See note 87 supra. See also Ky. CONST. § 1, 17; LA. CONST. art. 1, § 8; MISS. CONST. art. 3, § 12; MO. CONST. art. 1, § 23; MONT. CONST. art. 11, § 12; N.M. CONST. art. 11, § 6 (1911, amended 1971); N.C. CONST. art. 1, § 30; OKLA. CONST. art. 11, § 26; TENN. CONST. art. 1, § 26.
89. The firearm owner identification card and the registering of weapons is the most common means of controlling firearms. See, e.g., ILL. REV. STAT. ch. 38, § 83-2(a) (1977); MASS. ANN. LAWS ch. 140, §§ 129B, 129C (Law. Co-op 1981); MICH. STAT. ANN. § 28.92 (Supp. 1981); N.Y. PENAL LAW § 400.00 (McKinney 1980).
90. See, e.g., MASS. ANN. LAWS ch. 140, § 129C (Law. Co-op 1981); N.Y. PENAL LAW § 400.00 (McKINNEY 1980).
91. E.g., Galvan v. Superior Court, 70 Cal. 2d 851, 452 P.2d 930, 76 Cal. Rptr. 642 (1969); Brown v. City of Chicago, 42 Ill. 2d 501, 250 N.E.2d 129 (1969); Onderdonk v. Handgun Permit Review Bd., 44 Md. App. 132, 407 A.2d 763 (1979); Application of Atkinson, 292 N.W.2d 396 (Minn. 1980); Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968); Grimm v. City of New York, 56 Misc. 2d 525, 289 N.Y.S.2d 358 (Sup. Ct. 1968); Mosher v. City of Dayton, 48 Ohio St. 2d 243, 358 N.E.2d 540 (1976). But see City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972); City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737 (1971).
92. See Fields, Handgun Prohibition and Social Necessity, 23 ST. LOUIS U.L.J. 35, 37 (1979) (210 to 220 million); Wright & Marston, The Ownership of the Means of Destruction: Weapons in the United States, 23 SOC. PROB. 93 (1975) (90 to 200 million); Yeager, How Well Does the Handgun Protect You and Your Family?, UNITED STATES CONFERENCE OF MAYORS REPORT 1 (1976) (136 million). See also G. NEWTON & F. ZIMRING, FIREARMS AND VIOLENCE IN AMERICAN LIFE 3-5 (1970) [hereinafter cited as NEWTON & ZIMRING] (staff report to the National Commission on the causes and prevention of violence).
93. Typically, public opinion polls, such as the Louis-Harris Poll, the Gallup Poll or the National Opinion Research Center Poll, conduct surveys on gun ownership and gun control attitudes. Most estimates of firearm ownership are based upon this data. See articles cited note 94 supra.
94. See Fields, supra note 93, at 37; Yeager, supra note 92, at 1. See also Isaacson, The Duel Over Gun Control, TIME, Mar. 23, 1981, at 33.
95. See N.Y. Times, Mar. 31, 1980, § B, at 6, col. 4. See also Isaacson, supra note 94. "A handgun is sold in the U.S. every 13 seconds, adding 2 million a year to the nation’s estimated arsenal of 55 million automatics and revolvers. That is one pistol for every four Americans." Id. at 33.
96. See Wright & Marston, supra note 92, at 94, Table 1. In a 1959 Gallup Poll 49% of American households owned one or more firearms. In 1973 a National Opinion Research Center poll reported 47% of American households owned one or more firearms. Id. These figures are in line with the Newton and Zimring report of 1970. See NEWTON & ZIMRING, supra note 92, at 9. See also I G. GALLUP, GALLUP POLL PUBLIC OPINION 1972-1975, at 585 (1978).
97. See Wright & Marston, supra note 93, at 94, Table 1. See also Wright, Public Opinion and Gun Control: A Comparison of Results from two Recent National Surveys, 455 ANNALS 24, 27 (1981) (23% to 24% overall handgun ownership in the United States).
98. In 1959, of the 49% of households reporting firearm ownership, 32% reported owning a handgun. In 1973, of the 47% of households reporting firearm ownership, 42% reported owning a handgun. Wright & Marston, supra note 92, at 94, Table 1. This trend of increased handgun ownership was reflected in the 1970 Newton and Zimring report. See NEWTON & ZIMRING, supra note 92, at 10, Figure 2-1 & n.3.
99. See Hardy, Firearm Ownership and Regulation: Tackling an Old Problem with Renewed Vigor, 20 Wm. & MARY L. REV. 235, 286 (1978); Wright, supra note 97, at 28; Wright & Marston, supra note 92, at 94-95 n.5. Some commentators, however, call self-defense a naive reason for owning a handgun. See Yeager, supra note 92, at 1-6. They claim the handgun is an inefficient and ineffective weapon that is dangerous in the hands of an inexperienced handgun owner. The handgun, they say, is more likely to injure a family member than prevent a crime. Id.
100. See Hardy, supra note 99, at 239, 286; Wright & Marston, supra note 92, at 95-103.
101. A 1975 Gallup Poll showed the following percentages reporting firearm ownership:
All Firearms
Pistols
nationally............................................. 47% ................................................19% race - white.......................................... 50% ...............................................20% - non-white................................... 31% ...............................................13% by education - college........................................ 41% ...............................................19% - high school................................. 49% ...............................................21% by region - east............................................ 33% ...............................................12% - midwest..................................... 52% ...............................................16% - south.......................................... 58% ...............................................25% - west........................................... 46% ...............................................24% 1 G. GALLUP, supra note 96, at 585-86.
102. See P. ENNIS, CRIMINAL VICTIMIZATION IN THE UNITED STATES 29-33 (1967) (Report of a Research Study Submitted to the President’s Commission on Law Enforcement and Administration of Justice); FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS 41, Table 1 (1981) [hereinafter cited as UNIFORM CRIME REPORTS].
103. See Wright & Marston, supra note 92, at 95. But see I G. GALLUP, supra note 96 (20% white ownership of handguns; 13% non-white ownership of handguns).
104. See C. GREENWOOD, FIREARMS CONTROL (1972); D. KATES, RESTRICTING HANDGUNS (1979); Cook, The Effect of Gun Availability on Violent Crime Patterns, 455 ANNALS 63 (1981); Hardy, supra note 99; Kaplan, Controlling Firearms, 29 CLEV. ST. L. REV. 1 (1979); King, Firearms and Crime, 8 CRIMINOLOGIST 50 (1973); Murray, supra note 4, Zimring, Firearms and Federal Law: The Gun Control Act of 1968, 4 J. LEGAL STUD. 133 (1975) [hereinafter cited as Zimring, Firearms and Federal Law]; Zimring, Is Gun Control Likely to Reduce Violent Killings?, 35 U. CHI. L. REV. 721 (1968) [hereinafter cited as Zimring, Gun Control]. See also NEWTON & ZIMRING, supra note 92.
105. "[T]here is little empirical research in this field. Most of the writings are attempts to justify political prejudices ... for or against restrictive handgun legislation." Murray, supra note 4, at 82. See Bruce-Briggs, The Great American Gun War, 45 PUB. INTEREST 37 (1976); Hardy, supra note 99; Lizotte & Bordua, Firearm Ownership For Sport and Protection: Two Divergent Models, 45 AM. SOC. REV. 229 (1980); Zimring, Games with Guns and Statistics, 1968 WIS. L. REV. 1113.
106. There are many uncontrolled variables in studies on the effects of gun control laws. One problem is defining the term gun control. See note 107 and accompanying text infra. Some researchers have failed to account for regional differences in assessing the impact of firearms on the incidence of violent crime. Other such errors permeate many supposedly empirical studies. See Murray, supra note 4, at 82-84.
107. See Bruce-Briggs, supra note 105. "The levels of possible control can be . . . ranked by degree of severity: market restrictions, registration, permissive licensing, restrictive licensing, prohibition." Id. at 42. Market restrictions seek to limit "manufacturers, importers, or retailers of firearms, in order to keep better track of them." Id. Registration, or enrolling, is merely a form of permissive licensing. Restrictive licensing limits firearm ownership to those who can demonstrate a need for a firearm. Prohibition outlaws possession of firearms. Id. See also Friedland, Gun Control: The Options, 18 CRIM. L.Q. 29, 3840 (1976) (possible ways to regulate firearms: criminal penalties for illegal use, prohibiting possession, registration, permits to carry, and permits to sell).
108. See notes 66-69 and accompanying text supra.
109. The city’s power to confiscate property such as handguns without compensating the handgun owners is subject to question. See Podgers, supra note 66, at 969.
110. See note 123 infra.
111. The arguments advanced by the groups involved in the gun control controversy range in quality from excellent to emotional propaganda. For several interesting discussions of the gun control issue, see T. DRAPER, THE ISSUE OF GUN CONTROL (1981); Kates, Some Remarks on the Prohibition of Handguns, 23 ST. Louis U.L.J. 11 (1979); Weiss, A Reply to Advocates of Gun Control Law, 52 J. URB. L. 577 (1974). One of the problems with many of the arguments is that those who compile the arguments are biased towards the handgun control issue. Murray, supra note 4, at 82.
112. See note 114 and accompanying text infra.
113. See note 123 and accompanying text infra.
114. See Yeager, supra note 92, at 4-5.
115. Id.
116. Id. at 7. See NEWTON & ZIMRING, supra note 92, at 61-67. "[O]f course, householders with firearms may foil burglaries by interrupting or frightening the burglar. There are no available statistics on the frequency of such events." Id. at 63. Thus, the possible deterrent value of the handgun is unknown.
117. See Yeager, supra note 92, at 14, 20-22. See also NEWTON & ZIMRING, supra note 92, at 69-78.
118. See NEWTON & ZIMRING, supra note 92, at 69-78. But see Yeager, supra note 92, at 152. 16. Note, however, a
victim who uses a self-protective measure is slightly more likely not to have reported it to the police (52%). More than half (51%) of those using a weapon [in defense to a robbery] felt no compelling need to report the victimization to the police, and this percentage remains the same whether taking into consideration attempted or completed robberies. Id. at 16 (emphasis in original).
119. See Bruce-Briggs, supra note 105, at 39-40; note 118 supra. The victim who fends off a criminal by using a firearm may be reluctant to report the incident to the police for a number of reasons. The firearm may not be registered or the owner may not be licensed and therefore he, may wish to avoid contact with the police, or the victim may recognize the futility of making the, police report.
120. Bruce-Briggs, supra note 105, at 39-40.
121. See notes 118 & 119 supra. New York City police estimate that there are two million illegal (unregistered) handguns in the city. N.Y. Times, Mar. 31, 1980, § B, at 1, col. 4. Undoubtedly some of the two million illegal handguns are used each year to defend against criminal attacks. The owner/victim would be unlikely to report the incident to the police and risk a jail term for illegally possessing a handgun. Crime statistics, especially in the poor areas of the inner cities, are not representative of the true amount of criminal activity. See P. ENNIS, supra note 102, at 41-51
122. See Bruce-Briggs, supra note 105, at 40; Kaplan, supra note 104, at 15.
123. See Browning, supra note 8; Levi, Control of Handguns, 8 L. OFFICER 15 (1975); Zimring, Firearm Control Hard Choices, 8 TRIAL 53 (1972); Comment, Shooting to Kill the Handgun: Time to Martyr another American "Hero", 51 J. URB. L. 491 (1974).
124. This is implicit in the desire to restrict access to handguns. See articles cited note 123 supra. See also note 143 infra.
125. See, e.g., NEWTON & ZIMRING, supra note 92, at 49, Figure 8-1. See also Fields, supra note 92, at 38, Chart A (murders committed with handguns).
126. See note 8 supra.
127. One study indicates the handgun is highly suited to criminal uses because it is portable,; easily concealed, fires rapidly and reloads quickly. Fields, supra note 92, at 44-45, Chart B. No other weapon, states the author, meets the needs of the criminal like a handgun. Id. at 4247.
128. Kates, supra note I 11, at 16, 21 (only one half to one percent of the handgun owners commit crimes with their handguns).
129. See Ashbrook, Against Comprehensive Gun Control, 71 CURRENT HIST. 23, 25 (1976). See generally D. KATES, supra note 104.
130. Long guns can easily be shortened by a criminal if concealability is needed. Kates believes in the majority of handgun attributed deaths, the death would have occurred even if a handgun had been unavailable. A shotgun or rifle could have been substituted. Kates, supra note 111, at 22-23. But see Fields, supra note 92, at 42-43. If a criminal adapts a rifle or shotgun to meet his needs, or if a shotgun or rifle is substituted in other handgun shootings, the death rate from the shootings will rise. Studies on the effects of gunshot injuries suggest that long guns are much deadlier than the average handgun. See Hardy & Stompoly, supra note 16, at 112; Kates, supra note 111, at 19-20, 33; Kates, Reflections on the Relevancy of Gun Control, 13 CRIM. L. BULL. 119, 123 (1977).
131. See note 138 and accompanying text infra.
132. Crime is caused by a variety of social factors, and no one factor is the cause of all crime. See generally Cook, supra note 104, at 71-76.
133. "[T]he self-defense value provided by handguns is negligible." Fields, supra note 92, at 39. Later Fields states, "The revolver offers six shots, and, inside a ten foot radius, almost perfect accuracy, as well as an instantaneous velocity of 1000 feet per second." Id. at 47. It appears if a weapon is capable of killing, it is capable of deterring others from action which may result in their death; this is the self-defense value of the handgun. The self-defense value of a handgun should be distinguished from the inefficiency of the handgun as a killing weapon compared to a long gun. The handgun is capable of killing, but it is inefficient at doing so. See note 130 supra.
134. Handguns are difficult to fire accurately because they are fired from an extended hand. Rifles, on the other hand, are fired from the shoulder, a much steadier position. A shotgun fires pellets over an area several inches to several feet in diameter and, therefore, accuracy is less of a problem with this weapon. See Fields, supra note 92, at 39.
135. See Bruce-Briggs, supra note 105, at 55.
136. See notes 114-16 and accompanying text supra.
137. The substitution theory applies to prohibition or any other form of gun control which restricts access to handguns.
138. See Hardy, supra note 99, at 288; Hardy & Stompoly, supra note 16, at 110- 11; Kates, supra note 111, at 16.
139. See Kates, supra note 111, at 15.
140. Many handgun owners cite self-defense as the reason they own a handgun. See note 99 and accompanying text supra.
141. See notes 112 & 113 and accompanying text supra.
142. See articles cited note 104 supra. See also Loftin & McDowall, "One with a Gun Gets you Two:" Mandatory Sentencing and Firearms Violence in Detroit, 455 ANNALS 150 (1981); Pierce & Bowers, The Bartley-Fox Gun Law’s Short-Term Impact on Crime in Boston, 455 ANNALS 120 (1981).
143. See NEWTON & ZIMRING, supra note 92, at 123-28.
144. See Ashbrook, supra note 129, at 23; King, supra note 104, at 50-58; Murray, supra note 4, at 88-91. Although Murray arguably cannot be classified as an anti-controller, his results hap. pen to support the anti-control position.
145. Exec. Order No. 11,412, 33 Fed. Reg. 8,583 (1968).
146. See NEWTON & ZIMRING, supra note 92.
147. Id. at 69-78.
148. Id. at 139-48.
149. They recommended handgun possession be confined to those persons with a demonstrated need, such as police. Id.
150. They recommended issuing identification cards to qualified people and allowing only card holders to own and purchase long guns. Id. at 144-47.
151. Zimring, Firearms and Federal Law, supra note 104. See also Zimring, Gun Control, supra note 104.
152. 18 U.S.C. §§ 921-928 (1976).
153. Zimring, Firearms and Federal Law, supra note 104, at 195.
154. Id.
155. Zimring is suggesting those who own firearms are more violent than non-gun owners. Gun owners, he believes, are in a subculture of violence. But see Lizotte & Bordua, supra note 105, it 242-43 (independent researchers reject the subculture theory).
156. See Murray, supra note 4.
157. Murray was an independent researcher who received federal grants to conduct the research. Id.
158. Id. at 82-94.
159. Id. at 89-91. However the ineffectiveness of the law, in failing to control access to firearms, may have affected the reported rates of violence. See note 164 and accompanying text infra.
160. E.g., NEWTON & ZIMRING, supra note 92.
161. See, e.g., FEDERAL BUREAU INVESTIGATION, supra note 102, at v.
162. On a practical level it would be impossible to legislate 50 million handguns out of existence. First, it would be almost impossible to enforce such a law without voluntary compliance. See Kaplan, supra note 104, at 10. Kaplan makes an interesting analogy to the drug control situation. Laws which are not, for the most part, voluntarily complied with are very difficult to enforce as there are a limited number of, police, courts and jails. See also T. DRAPER, supra note 111. Secondly, there is no reason to believe compliance would be more than 50% to 70%, thus, there would still be millions of handguns available. See Kates, supra note 111, at 16. Kates argues a strict handgun law would receive only 20% to 50% compliance. He arrives at this rate by "[l]ooking at the rate of handgun owner defiance of gun registration laws . . . ... Id. See also Bruce-Briggs, supra note 105, at 54. And finally, the costs of criminalizing possession would be socially and financially expensive. See id. at 53-54; Kaplan, supra note 104, at 13, 16; Kates, supra note 111, at 27-30. Some estimate the cost of mere regulation at five billion dollars or more each year, and in addition millions of otherwise law abiding citizens would be labeled criminals. See Bruce-Briggs, supra note 105. "[T]he worst cost is that of widespread flouting of the law." Id. at 54. See also Kates, supra note 111, at 27-28.
163. If private citizens own handguns criminals will be able to steal handguns, buy handguns and otherwise possess handguns as would an ordinary citizen.
164. See note 7 supra.
165. C. GREENWOOD supra note 104.
166. Id. at 242.
167. Id. at 243.
168. Id. at 245.
169. See Bruce-Briggs, supra note 105, at 43; Isaacson, supra note 94, at 33.
170. N.Y. Times, Mar. 31, 1981, § A, at 6, col. 4.
171. See note 7 supra.
172. See id.
173. See Kaplan, The Wisdom of Gun Prohibition, 455 ANNALS 11, 13 (198 1). See also Zimring, Handguns in the Twenty-First Century. Alternative Policy Futures, 455 ANNALS 1 (1981). "[T]he large civilian inventory of handguns would make efforts at accountability based on registration . . . both expensive and easy to frustrate . . . ." Id. at 5. Zimring speculates on the result of a public policy emphasizing the ineffectiveness of the handgun as a defensive weapon.
174. See note 162 supra.
175. The rates of crime are low in the sparsely populated western states. See UNIFORM CRIME REPORTS, supra note 102, at 4647, Table 3. In these states guns are used for recreation and hunting, and their use has deep cultural roots. "In rural areas and small towns, a boy’s introduction to guns and hunting is an important rite of passage." Bruce-Briggs, supra note 105, at 41.
176. See UNIFORM CRIME REPORTS, supra note 102, at 41, Table 1. Crime rates are high in urban areas of the country. See note 102 supra.
177. See generally Zimring, supra note 173.
178. The government has a number of ways to disseminate information of this type. For example, public service announcements on radio and television, films and lectures before groups and organizations, and brochures and information packets which could be distributed at gun shops, gun shows and other locations where handgun owners gather. As an indication of its determination the federal government could enact laws to curtail the importation of cheap handgun parts from European countries. Saturday night specials often are made of frames imported from other countries. See R. SHERRILL, THE SATURDAY NIGHT SPECIAL (1973). See, e.g., S.C. CODE § 23-31-180 (1977).
179. See, e.g., KAN. STAT. ANN. § 21-4203 (1974). See also statutes cited note 89 supra.
180. See, e.g., ALA. CODE § 13-6-157 (1977) (48 hours must elapse between time of application to purchase a handgun and delivery of the handgun).
181. Most handgun control laws regulate the commercial sale of handguns; very few regulate private sales. In the last few years a number of bins have been introduced in Congress to control handguns. Many of these would attempt to control private possession and the sale of handguns. See, e.g., H.R. 1413, 97th Cong., 1st Sess. (1981); H.R- 40, 97th Cong., 1st Sess. (1981); H.R. 7148, 96th Cong., 2d Sew. (1979); H.R. 5823, 96th Cong., 1st Sess. (1979).
182. See note 162 supra.
183. See, e.g., CAL. PENAL CODE §§ 12022-12022.5 (West Supp. 1981); MICH. STAT. ANN. § 28.424(2) (Supp. 1981); NEB. REV. STAT. § 28-1205 (1979); OKLA. STAT. ANN. tit. 21, § 1287 (West Supp. 1980). See generally Heumann & Loftin, Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute, 13 L. & SOC’Y REV. 393, 395-98 (1979); Rossman, Froyd, Pierce, McDevitt & Bowers, Massachusetts’ Mandatory Minimum Sentence Gun Law Enforcement, Prosecution, and Defense Impact, 16 CRIM. L. BULL. 150 (1980). See also articles cited note 142 supra.
184. See note 128 and accompanying text supra.
185. See Cook, supra note 104, at 71. If some potential criminals were deprived of guns there would be fewer criminal homicides. But, reducing access to guns will also cause crimes to be committed against more vulnerable victims, those who cannot fight back. Id. Cook concludes that reducing gun availability will increase the robbery injury rate, but decrease the number of murders. Id. at 76. The reasoning is that more victims will resist if the criminal is unarmed, and will suffer injury in the process. See generally articles cited note 142 supra.
186. See Wright, supra note 97, at 37. A NRA survey found 87% of the respondents believe that they, as citizens, have a constitutional right to own a gun. Id.
187. Id. A NCBH survey found 53% of the respondents believe it would not violate the second amendment to regulate handgun ownership. Id. The public’s perception of the constitutionality of a handgun control law will arguably influence the degree of voluntary cooperation with the law. Cooperation from the gun owner will be necessary for any gun control law to succeed. See note 162 supra.
188. See note 29 supra.
189. As early as 1328 the Statute of Northampton, 2 Edw. 111, ch. 3, declared that no man should "go nor ride armed by night or by day in fairs, markets, nor in the presence of the justices or other ministers. . . ." Emery, supra note 10, at 473.
190. An effective gun control law would reduce the number of firearm related crimes and accidents. The potential effectiveness of the law should be balanced against the projected costs, financial and social. The potential effectiveness and costs of available alternatives also should be reviewed. The most cost effective method of regulation should then be employed. The futility of banning handguns, for instance, is illustrated by the following observation: "even if Congress were to pass a statute banning handguns, the enormous nationwide cache¾ an estimated 2 million illegal guns in New York City alone-means it would be years before the blackmarket availability of these weapons was restricted." Isaacson, supra note 94, at 33.
191. See note 162 supra.
192. See notes 175 & 176 and accompanying text supra.