University of Illinois Law Review 1996
Note: Page 467
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
WHY ANNIE CAN'T GET HER GUN: A FEMINIST PERSPECTIVE ON THE SECOND AMENDMENT
INGE ANNA LARISH*
The Second Amendment speaks of the "right to bear arms" in gender-neutral terms. Yet, participants in the gun control debate portray women most often as the victims of gun use, rather than actors with the right to protect themselves. This exclusion ignores the realities of women's lives: women are subjected to violence by strangers and spouses, unable to call on the police for effective protection, and bound by male-oriented views of self-defense. After examining each of these circumstances in turn, the author analyzes the impact on women of specific gun control measures, drawing on feminist jurisprudence and current interpretations of the Second Amendment. The author concludes that, in this arena, society currently denies women the liberties possessed by men; in doing so, it enforces both physical and political subordination. Finally, the author constructs an inclusive view of gun control measures and self-defense doctrine that gives shape, for women, to the Second Amendment's guarantee of self-protection.
"God created men¾Colonel Colt made them equal."
"Men and Women were created equal . . .And Smith & Wesson makes damn sure it stays that way."
Murder, forcible rape, robbery, and aggravated assault are violent crimes. Violent crime against women has reached epidemic proportions in the United States, and the trend shows no signs of abating.[Page 468] Three out of four women will be victims of at least one violent crime in their lifetimes. While violent crime against young males decreased from 1974 to 1987, violent crime against women increased nearly fifty percent. Ninety percent of the 4,693 women murdered in 1991 were slain by males (only one out of eight males murdered in 1991 were slain by females) and every fifteen seconds a woman is battered.
Statistics on forcible rape are even more staggering. An estimated one in five women will be raped at some point in their lives. Federal Bureau of Investigation (FBI) statistics show that the rape rate has risen four times faster than the overall crime rate in the United States. According to the most conservative estimate, women reported 106,593 rapes to authorities in 1991 (an estimated 83 of every 100,000 females in the country reported being raped)¾a three percent increase over the record-breaking 1990 volume and a thirteen [Page 469] percent increase since 1987. Based on the 1990 and 1991 reports, men rape or attempt to rape over twelve women each hour and close to three hundred every day. Victimization surveys reveal far higher incidence of rapes. The National Crime Survey (NCS) reported 148,981.98 rapes for 1991 (140 of every 100,000 females in the country). Other studies estimate that the actual number of rapes is seven [Page 470] to fifteen times the NCS estimate. When nonreporting is taken into account, as many as two million women may be raped each year.
Gun control proponents use this frightening trend of increasing violence toward women in their rhetoric espousing gun control legislation as a solution to the increase in violent crime, arguing that gun [Page 471] control will stop or reverse the trend. Control rhetoric rarely mentions the empirical evidence that, although violent crime towards women has escalated, gun use in assault and robbery has decreased. Further, gun control rhetoric generally ignores empirical evidence indicating that guns play a small role in the escalation of violent crimes against women. For example, the data available from reported rapes reveals that only nine percent of rapists have guns at the time of attack or attempted attack. Gun control rhetoric also argues that decreasing the number of guns by decreasing civilian gun availability or banning civilian gun use will make "everyone" safer. Control proponents commonly quote studies concluding that a handgun kept in the home is more likely to be used against family members than against an intruder. They fail to disclose, however, the critiques of the methodology of these studies. These studies falsely portray gun [Page 472] ownership as harmful to women--a false picture of actual gun use which may be life-threatening for women. For example, a staggering number of the homicides counted by the studies are actually instances of domestic abuse. Finally, control rhetoric generally ignores the evidence that crime against the physically weaker members of society (women, children, the elderly, or the disabled) increases where guns are less available.
The framers of our Constitution wrote the Second Amendment in gender-neutral language, stating that "the right of the people to keep and bear Arms, shall not be infringed." As early as 1846, courts recognized that the Second Amendment guaranteed women the same right to keep and bear arms as men. The Supreme Court, however, has recused itself from the debate about whether the Second Amendment guaranteed an individual right to own and use guns; but legis-[Page 473] latures, lobbyists from both sides, legal scholars, historians, and the media have engaged in one of the most widely publicized and emotional arguments in the history of the country. Yet, participants in the current gun control debate have largely been silent on the right of women to bear arms. Despite the fact that the debate over the nature of the right guaranteed by the Second Amendment is far from over, women are mentioned only tangentially as the victims of violent crime¾or they are characterized as espousing a higher, nonviolent ideal which is the hope of a new, nonviolent society.
The exclusion of women's concerns in the gun control debate ignores that women are most in need of guns for self-defense. All else being held equal, women are physically weaker than men and will continue to be victimized by men whether or not men have guns. Moreover, unlike men, women use guns primarily for defensive purposes¾most often as a last resort. Repeated reports have shown that police are incapable of responding to women's protection needs. When women do resort to gun use for defense, society frowns on their use of force. Women are often tried and convicted because self-defense laws are oriented toward actions of reasonable males in male-on-male confrontations. Such definitions are ill-suited to the situation facing most women confronted by aggressors who are physically more powerful whether or not those aggressors wield weap-[Page 474] ons. Thus, the gun control rhetoric espousing the goal of making all citizens safer by discouraging gun ownership, and singling women out as irrational or imprudent users, has a far-reaching impact on women's actual abilities to effectively defend themselves.
This note uses feminist doctrine as an analytic framework to examine women's rights under the Second Amendment. Part II.A presents an overview of feminist jurisprudence. Part II.B of this note examines the debate on the interpretation of the Second Amendment, including explicit restrictions on the "right to bear arms." Parts II.C and II.D review current gun control laws and their viability. Using feminist doctrine, part II.E exposes how rhetoric concerning proposed gun control as well as gun control measures themselves exclude women from the gun control debate. Under this rubric, part II.E considers conceal-carry laws, licensing restrictions, and waiting periods. Part II.F examines the current standards underlying self-defense law and uses feminist doctrine to illustrate how male- oriented definitions of self-defense punish women for defensive uses of guns. Part III proposes alternate interpretations of existing self-defense doctrine and suggests a view of gun control measures which includes women under the Second Amendment's guarantee of self-defense. The note concludes that under the existing interpretation of the Second Amendment, current gun laws and self-defense standards deny women the liberties men possess by effectively restricting women's ability to utilize guns for self-defense, and by punishing them for defensive uses when they do use guns. Further, portraying women as requiring special protection while denying women the ability to defend themselves enforces the subordination (physical and political) of women in the United States. Any debate affecting women's constitutional rights must include the interests of women¾half of the constituents of the United States.[Page 475]
Feminist jurisprudence has had significant impact on American law. Feminist analyses of established precedent and critiques of traditional legal doctrine have changed the law and affected legal reasoning in the areas of employment, rape, interspousal immunity, divorce, reproductive rights, marital rape, self-defense, property rights, contract doctrine, tax, and bankruptcy. Feminist theorists have created new legal doctrines which have given women's experiences validity by naming them, and have empowered women through the law to help themselves and to force society to treat them as full human beings. Contributions to new legal doctrine created from feminist perspectives into the law include sexual harassment,[Page 476] date rape, battered woman's syndrome, and rape trauma syndrome.
Feminist jurisprudence offers a perspective on the current gun control debate which exposes the status quo's illusion of "equal" protection for all citizens as heavily biased away from adequate (let alone equal) protection for women. Although there is no one definition of feminism, Leslie Bender, in her primer on feminist theory and tort, has aptly described feminism as a "woman-centered methodology of critically questioning our ideological premises and reimagining the world." Alternatively, feminism means "an analysis of women's subordination for the purpose of figuring out how to change it." There are three broad categories of feminist theory: liberal/equality theories, equivalence/difference theories, and dominance theories.
Liberal feminist and "equality" theories seek to guarantee women's equal rights through applying the same legal standards to both sexes. The theorists either assume that men and women are equal in all relevant aspects and dismiss any differences as inconsequential, or [Page 477] propose standards which discount or ignore gender differences, emphasizing the similarities. Equality theory advocates applying a "neutral" standard, a single standard for both males and females.
Difference theories emphasize women's physical (and sometimes psycho-social) differences from men. Feminist scholars pursuing difference theory challenge the link between formal equality and justice, by emphasizing the material conditions of women's lives which are ignored when formal equality uses tacitly masculine norms. Connection, or cultural, feminists have concerned themselves more with developing better standards for judging the characteristics historically associated with women than with overturning factual assumptions underlying the law. These feminists stress the positive nature of those characteristics and the need to revalue them for the purpose not only of improving the status of women, but also for building a more humane society. Psychologist Carol Gilligan stimulated this thinking through her challenge to the conventional paradigms of moral reasoning developed from studies based exclusively upon the reasoning processes of men. Gilligan found that women value connectedness over autonomy, contextualization over abstraction, responsibility over rights. Gilligan exposed the androcentrism of the earlier paradigms and made the case that women's thinking may be different from, but not necessarily inferior to, that of men. Connectionists seek to value the connectedness of women's experiences, critiquing not only objec-[Page 478] tivity and neutrality, central to equality theory, but also individualism and autonomy.
Equivalence theory is a type of difference theory in that it acknowledges that men and women are not the same physically, or, because of their experiences, psychologically. Unlike difference theory, equivalence theory does not make special treatment solely an affirmation of female characteristics, but rather acknowledges that in the difference lies value that society should recognize. Like dominance feminism, equivalence theory acknowledges that neutral standards cement the bias inherent in a male-oriented world. Rather than erasing sexual difference, equivalence theory seeks to affirmatively value the specificity of feminine sexual difference. Primarily, equivalence theory objects to dominance theory's characterization of women as based solely on their sex, emphasizing the multiplicity of women's being.
Dominance theory focuses not on differences between men and women, but on questions of power and subordination. Dominance theory in the legal context began with Catherine MacKinnon's proposal in 1979 that discrimination be defined not in terms of difference, but in terms of inequality: "The only question for litigation is whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status."
Dominance theory begins with a critique of equality theory. According to MacKinnon, all equality theory¾whether it focuses on similarities or differences¾shares the same defect: it accepts as the [Page 479] goal for women equivalence to men, instead of liberation from them. MacKinnon argues that this limitation not only misperceives the harm of sex inequality, which is male domination over women, but that it limits the goal of feminist theory to the "equal" treatment of women under the status quo. However, the status quo has an inherent and historical male bias. Even women do not know the full extent of their subordination because everything¾including the very language ¾is male-oriented. Dominance feminism posits that sex defines power relations in society. MacKinnon posits a "total" theory where women are, by definition of their sex, in a subordinate position to men in society. Men occupy both the male position, which is positively valued by society, and the neutral position, which purports to apply standards to men and women equally, but succeeds only in cementing the underlying inequality of power between men and women because men historically have defined society and have set the standards. Women occupy the female position in society: they are the exemplars of moral characteristics, such as caring, which have traditionally been undervalued in society. The State is viewed as a gender hierarchy. For women the issue is disparity of power, rather than difference in treatment. Dominance theory sees the goal of feminism as the end of the status quo of female subordination. The State is the most male when it is the most ruthlessly neutral¾in the gun control context, when it treats men and women as physically the same.[Page 480]
B. Debate on Interpretation of the Second Amendment
The Second Amendment receives relatively little attention from constitutional scholars and academics. Some writers consider the amendment and its traditional interpretations obsolete and justifiably ignored, lumping it with the Third Amendment, letters of marque and reprisal, and the granting of titles of nobility. Unlike these other sections of constitutional text, however, the Second Amendment underlies one of the most hotly contested political struggles in the country: the extent to which the federal, state, and local governments can restrict or ban the use of guns.
The primary issue surrounding the Second Amendment is the meaning of the amendment's injunction: "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." The meaning of this language has been extensively debated in connection with handgun prohibition-confiscation, with gun control proponents arguing that the preamble or first phrase of the text qualifies or defines the second, resulting in a collective right to bear arms. Gun rights advocates maintain that the clauses, although connected, were intended to guarantee two separate rights¾the right of citizens to organize a militia collectively and an independent right of individuals to bear arms.
1. Collective Versus Individual Rights
The collective rights position states that the Second Amendment is best interpreted as a protection against federal domination of the states by guaranteeing states' rights to maintain state militias.[Page 481] Under this interpretation, the national government has the power to regulate (to the point of prohibition) private ownership of guns, because such regulation has nothing to do with states' rights to maintain militias. The individual rights position holds that there is an individual right to be armed, guaranteeing private gun ownership under the Second Amendment.
The current debate on whether the Second Amendment implies an individual right to bear arms, or merely a protection against the federal government's interference with the states' rights to maintain militias, can only be fully understood within the historical context of the drafting of the Second Amendment. Historians appear to agree that the framers of the Bill of Rights did not believe they were creating new rights. The framers believed that they were simply recognizing rights already part of their English constitutional heritage and implicit in natural law. The framers were heirs to an Anglo-Norman legal tradition which required free men to keep arms to defend the realm and suppress crime. They succeeded to a philosophical tradition extending from Aristotle through Machiavelli to Locke,  which saw arms possession as the distinction between a free man and a slave, and which considered the disarmament of the people as an essential element of tyranny. Many framers cautioned against a bill [Page 482] of rights, arguing that the suggested rights were inherent to a free people and that explicit mention of some rights would empower the federal government to violate other unenumerated rights.
The fallacy of the current individual versus states' rights debate is that it largely ignores the meaning of "militia" and the context of the framers' intent. The Second Amendment espoused two separate but highly related rights. At the time, people were assumed to have the right to own and use arms for self-defense¾against bears, Indians, or criminals. Many also feared, based on the European example, that tyranny would result from an unarmed citizenry. A militia was conceptually similar to an independent contractor army, which could choose to work for the State or could band together to oppose the State. However, the existence of a militia presupposed the existence of an armed citizenry because the militia was the people and if the people had no arms, the militia could not exist. The Second Amendment included both a provision for an armed citizenry and the militia because the framers wanted both provisions to be taken seriously to balance individual rights with communal responsibilities. To this day, the definition of the "unorganized militia" of the United States is codified as "all able-bodied males" between seventeen and forty-five years old who are not members of the National Guard or Naval Militia. This definition implies that individual citizens constitute the militia and therefore must have the right to possess arms.
2. Case Precedent
The Supreme Court has not decisively ruled on the meaning of the Second Amendment. Pre-twentieth-century cases assumed that although the right was individual in nature, it included only militia-type arms and extended only to carrying them openly, not concealed. In Scott v. Sandford (the Dred Scott case), Mr. Chief Justice Taney referred to the right-to-arms guarantee as an unabridgable [Page 483] safeguard against the "despotic" powers of a centralized government. In Presser v. Illinois, the Supreme Court upheld state laws prohibiting the unlicensed organization, training, and marching of para-military groups, stressing that the Second Amendment related only to the right of individuals to possess arms; constitutional provisions relating to group arm bearing appearing only in article I, sections 8 and 10. Further, the Court affirmed that the Second Amendment was only implicated by federal action.
United States v. Miller, decided in 1939, is the Supreme Court's only attempt at an extended analysis of the Second Amendment. In Miller, the Court held that the prohibition of sawed-off shotguns under the National Firearms Act of 1934 did not violate the Second Amendment 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" had some reasonable relationship to the preservation or efficiency of a well-regulated militia. Further, the Court stated that the sawed-off shotgun was not, based on evidence shown to the Court, part of the ordinary military equipment; its use could not contribute to the common defense.
The Court appeared to say that only military weapons are protected by the Second Amendment. However, the opinion is far from clear. Historically, home defense weapons were not much different than weapons for war. Although states' rights advocates have emphasized the language in Miller linking the amendment's purpose to [Page 484] the "militia," the opinion speaks specifically of "a militia comprised of all males physically capable of acting in concert for the common defense . . . and expected to appear bearing arms supplied by themselves." The Court was referring to the militia in the historical sense of being comprised of the people, a definition supporting individual rights.
Individual rights proponents, commentators, lobbyists, and courts also misconstrue the Court's opinion, perhaps because it steers a middle course between the individual and states' rights positions. The Court recognized that the defendants could claim Second Amendment protection as individuals without proof of being part of some formal military unit such as the National Guard. The Court's focus on the weapon suggests rational limitations on the types of arms protected¾such arms must be both of the kind for "common use" and "part of the ordinary military equipment." Miller did not characterize the sawed-off shotgun as outside the amendment per se. Rather, the decision rests on the proposition that it is not judicially noticeable, in the absence of factual proof, that sawed-off shotguns are "in common use" and form "part of the ordinary military equipment." The Miller Court defined "militia" as "comprised of all males physically capable of acting in concert for the common defense," "a body of citizens enrolled for military discipline"; when called for service, these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Far from denying that the Second Amendment guaranteed an individual right to bear arms, the Court's language assumed that individual citizens had guns to bring to the common defense¾a position congruent with historians' interpretations of the amendment as guaranteeing both the existence of a militia comprised of an armed citizenry, separate from direct government control (or a standing army), and the desire of the framers to ensure a citizen's right to keep and bear arms for self-defense.
The Supreme Court has not directly ruled on the Second Amendment since the 1939 Miller decision, leaving the question of the Second Amendment's incorporation to the states via the Fourteenth Amendment unresolved. Consequently, the issues of both individ-[Page 485] ual versus collective rights and state versus federal prohibition on gun control remain open. Support for a collective rights position comes from a dissent and dicta in two cases which only tangentially addressed Second Amendment issues. In the dissent in Adams v. Williams, a search and seizure case, Justice Douglas stated his belief that the Second Amendment was a collective, not individual right, which states could regulate. In Lewis v. United States, the Court upheld the constitutionality of the 1968 Gun Control Act, which imposed federal restrictions on gun sales, defining the point where multiple sales make a person a "dealer" subject to regulation and criminal penalties. In a footnote, the Court stated that the 1968 Act did not encroach on any constitutional liberties.
The Court gave direct support for interpreting the Second Amendment to guarantee individual rights in a case unrelated to gun control. In United States v. Verdugo-Urquidez, the Court held that the Fourth Amendment did not apply to a search of a Mexican's residence in Mexico by American authorities. Significantly, the Court concluded that the phrase "the people" means the same thing in the Second Amendment as it does in the First, Fourth, and Ninth Amendments: " [A] class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community"¾in other words, individual citizens.
In the vacuum created by the Supreme Court's reluctance to hear cases on Second Amendment issues, circuit courts have lent credence to the collective rights position by whittling away at the rights of individual citizens to keep and bear arms. Most notably, in Quilici v. Village of Morton Grove, the Court denied review in the case of a Chicago suburb that completely banned civilian possession of handguns. Both the Illinois Supreme Court and the Seventh Circuit Court of Appeals held that the ordinance was a proper exercise of Morton Grove's police power. The Seventh Circuit further stated that the [Page 486] Second Amendment does not guarantee an individual right to keep and bear arms.
More recently, the Supreme Court declined to hear Farmer v. Higgins, which would have tested the competing individual rights and collective rights positions. J.D. Farmer was a gun collector in Georgia who applied for a permit to convert a semiautomatic HK-94 into a fully automatic weapon for his collection. Under the National Firearms Act, he had to submit fingerprints and photographs, undergo a police background check, and pay a $200 tax. The Bureau of Alcohol, Tobacco, and Firearms (BATF) denied Farmer's application on the ground that the Firearm Owners Protection Act of 1986 banned private possession of new machine guns. Farmer challenged the BATF in federal district court on three grounds: (1) that the 1986 Act provides an exemption for weapons transferred or possessed "under the authority" of a government agency; (2) that a machine-gun ban would be an unconstitutional violation of the Second Amendment; and (3) that Congress did not have the power to prohibit possession where possession did not affect interstate commerce. The district court ordered the Bureau to process Farmer's application or issue the requested permit, noting that "defendant's proffered interpretation presents the particularly unattractive possibility of constitutional infirmity" on both Second Amendment and Commerce Clause grounds. On appeal, the Eleventh Circuit inexplicably declared that "[t]he sole issue is whether section 922(o) of the Firearms Act prohibits the private possession of machine guns not lawfully possessed prior to May 19, 1986." The court simply ignored Farmer's constitutional objections, holding that the statute banned private ownership of automatic weapons. Historians and defenders of the Second Amendment were not surprised by the Court's refusal to review the Farmer case. They speculate that the Court is waiting for the issue to develop further on the appellate level.
3. Historical Rationales
Historically, the two rationales for the Second Amendment are that the American political tradition is based on a healthy mistrust of the state, and the individual right to bear arms is an intricate part of the protection of our republican tradition, making mass disarmament [Page 487] constitutionally problematic; and that at the time of the writing of the Second Amendment, people needed weapons for self-defense in the absence of an organized police force. Modern proponents of gun control argue that both rationales are obsolete.
a. Tyranny of the State
Gun control proponents argue that tyranny of the state is no longer a problem. Rather, citizen mistrust should focus upon the bureaucratic rationalization and institutionalization of a centralized state. Further, it is difficult to imagine how an armed citizenry could combat Iran-Contra or HUD scandals, or more on point, how private rights could overcome Kent State or more routine police brutality legitimated by a white privileged majority. Recent events such as the Los Angeles riots, however, disprove the idea that an individual right is useless to prevent modern tyranny. The idea of civic republicanism as a bulwark against state tyranny is still viable; the framers' intent to provide a means by which to keep the state in check still retains meaning when the government works to systematically oppress parts of the populace.
b. Effectiveness of the Police
Gun control proponents also argue that the need for private gun ownership is obsolete because the police will protect people from crime. However, the courts have repeatedly held that the function of the police is to deter crime in general, not to protect the individual citizen. For example, police have no duty to, and do not, protect citizens who are under death threat. This principle derives from both legal history and practical necessity. Neither American nor English cities had a police force before the mid-nineteenth century. Citizens were not only expected to protect themselves, but were legally required to help protect their communities from crime. The very [Page 488] idea of a police force was shunned and regarded as a slippery slope to state tyranny through the establishment of a "standing army." As the growth of cities and crime continued, the task of patrolling miles of city streets and of chasing fleeing criminal, much less tracing or detecting non-overt crimes, became too monumental and too time-consuming. Police forces were established to augment citizen self-protection, not to displace the citizens' right of self-protection.
Practically, the complete displacement of citizen self-protection by police is not feasible. Current statistics on the inadequacy of police resources and responses to violent crime provide a glaring rebuttal to the proposal that the need for citizen self-defense has become obsolete. Simple calculations make it painfully obvious that even if all of the 553,733 total police officers in America were on patrol at the same time, they could not protect 244 million citizens from more than 1.9 million unpredictable violent crimes. Privately owned handguns repelled crime more often than guns were used by criminals to commit crime. Citizens use guns to defend against 645,000 crimes every year in contrast to only 580,000 criminal misuses. FBI statistics for 1981 showed that, nationwide, citizens justifiably killed thirty percent more criminals than did police. In California, citizens justifiably killed twice as many felons as did police; in Chicago and Cleveland, it was three times as many. The police force would have a difficult time compensating for these large numbers of civilian self-defense incidents. As a further problem, average police response times vary from ten to fifteen minutes, with police often arriving on the scene to find the crime well in progress or already committed.
C. Gun Control Measures
Gun control affects individual rights in two primary ways: (1) in the restrictions it imposes on the availability and use of firearms, and (2) in the level of restrictiveness of such measures. This section will first provide an overview of the types of measures which affect the availability of guns for ownership and use by civilians, and then will provide an overview of the variety of levels of such restrictions and their corresponding potential effects on civilian gun use.[Page 489]
1. Types of Restrictions
a. Restrictions on Sale, Purchase, and Transfer
Some controls focus on sellers, others on buyers. Dealers are obliged by federal law to ensure that purchasers of handguns reside in the state and that they are adults, and to record the sale of all guns on federal forms. Some state licensing requirements, such as licensing fees, effectively limit the number of retail dealers. Others attempt to keep criminals and other high-risk individuals out of the gun business. The federal Firearms Act of 1986, regarded as generally loosening restraints of gun sales, made it unlawful for any person, whether a licensed dealer or not, to knowingly transfer a firearm to a member of various high-risk groups not permitted to possess firearms. The Act does not, however, provide any way for the seller to know whether prospective buyers are disqualified.
Some cities, such as Washington, D.C., and Chicago, ban the sale of handguns within the city limits. Such controls remain the exception and do not exist at the state level. The most common control of sales is a minimum age requirement. Other common purchase controls require checks of various records to see if a prospective gun buyer falls into a prohibited class, such as convicted felon, alcoholic, drug addict, mentally ill person, alien, or fugitive from justice.  There are several methods for performing such background checks. Some laws require buyers to obtain purchase permits which are not issued until the applicant passes required records checks. Purchase permits vary greatly in restrictiveness and criteria used.  Application-to-purchase systems place the burden on authorities to stop a sale, usually in conjunction with a waiting period of some term. The prospective buyer fills out an application that is then sent to a regulatory agency such as a state law enforcement department.[Page 490]
License-to-possess or gun owner's identification (ID) systems use record checks to restrict gun acquisition by prohibited classes of persons.  ID systems, however, regulate the possession as well as their initial acquisition. A person must have a license to possess a gun, regardless of how they acquired it, and the requirement applies to possession in the owner's home or business as well as in public places. Purchase licenses can be either "open-ended"¾good for a certain time period during which any number of guns may be acquired¾or one-time-only, requiring the buyer to obtain a separate purchase permit for each gun.
Some purchase controls do not restrict access, but merely record weapons acquisitions. Federal law requires that gun dealers make and retain records of name, address, and other attributes of each buyer, linked with the serial numbers of their firearms. States may add local registration to these requirements. Some local jurisdictions require registration of possession as well as purchase.
b. Waiting Periods
Waiting periods provide another method of restricting handgun sales. Gun rights proponents argue that waiting periods will not be effective in stopping criminal purchases of guns because most criminals obtain guns through theft or the black market. The rationale for mandatory waiting periods is that some violent people get angry, rush out and buy a gun from a retail source, and use the gun to impulsively commit an act of violence that they otherwise would not have committed, or at least not with an equally serious outcome. The Brady Bill mandates a five-day waiting period for the purchase of handguns nationwide for the next five years.
c. Possession Control
Controls over possession are also a major method of gun control. A few states require that all persons possessing guns have a license¾even for possession in their own homes. The two most common measures are restriction of high-risk groups and carry permits. Some states ban possession by high-risk classes such as convicted [Page 491] criminals, mentally ill persons, drug addicts/users/abusers, and alcoholics. Thirty-seven out of the fifty states ban possession by criminals. Federal law, however, bans possession by convicted felons as well as by adjudicated mental incompetents and illegal aliens.
Carry permits control physical possession of the gun, either on the carrier's person or in a motor vehicle or otherwise under the carrier's control, while moving through a public place. Except in Vermont, laws either prohibit or require a license to carry a concealed firearm. Regulation is strictest for carrying firearms concealed on one's person, less strict for carrying firearms in the open or in an automobile. Carrying restrictions usually exclude physical carrying of a gun by a licensed hunter during hunting season in a location suitable for hunting. Many states have exemptions for police officers, officials, security guards, state officials, and employees of financial institutions.
d. Restrictions on Use
Laws also regulate the manner in which civilians may use guns. Laws generally prohibit firing guns within city limits or in other congested urban areas, with exceptions for self-defense. Most states have some form of "sentence enhancement" and/or mandatory sentencing statutes that provide for additional penalties or mandatory minimum sentence.
2. Level of Restriction
Gun control measures also carry varying levels of restrictiveness. Permits and licenses to purchase, possess, or carry firearms can come in four broad varieties of increasing restrictiveness. First, controls may be completely absent¾that is, an activity may be unregulated. Second, there may be limited regulation in the form of a "permissive" licensing system whereby anyone is issued the required license or permit as long as they do not fall within a prohibited category. The burden of proof is on the authorities to show that the applicant should [Page 492] not receive the license, and the applicant need not provide evidence of special need. Third, there may be a much more restrictive control¾"restrictive" licensing¾which is the reverse of permissive licensing. Not falling into a prohibited high-risk group is not a sufficient basis for getting a license. No one may receive the required license unless they provide special justification and evidence of an unusual need for a gun. The burden of proof is on the applicant. Fourth, there may be the most restrictive level of control, prohibition.
D. Viability of Gun Control Measures to Reduce Violent Crime
The appeal of gun control may lie in its apparent simplicity. At first glance, gun control appears to involve only the regulation of a technology of violence, rather than the reform or manipulation of people. Proponents argue that reducing the availability of one major, highly lethal tool for inflicting violence will reduce the frequency or seriousness of violent acts. The weight of the best available evidence, however, does not support the assumption that the availability of guns has any significant net positive effect on violence rates. However, the research and statistics do show that gun ownership among high-risk subsets of the population may increase violence rates. Prohibitions on possession by criminals appear to reduce robberies and gun assaults.
Although gun control may affect the rate of crimes which make using, carrying, or other gun related activities illegal, it may not have [Page 493] an effect on the rate of a particular crime. For example, mandatory penalties for illegal carrying seem to reduce gun homicides without reducing total homicides. Prohibitions on possession by mentally ill persons appear to reduce gun use in homicide without affecting total homicide rates. Research on suicide rates indicates that laws prohibiting gun possession by mentally ill persons may reduce the rate of gun suicides. However, such laws have no apparent effect on total suicide rates, suggesting that suicide victims merely substituted other lethal means when guns were not available.
Research on the effects of gun control measures on gun ownership indicate virtually no decreases among criminal populations, although civilian ownership is probably affected. When enforcement levels are taken into account, carry laws with mandatory penalties appear to reduce robbery, presumably by deterring the carrying of concealed weapons in public places. Discretionary add-on penalties for committing crimes with guns also appear to reduce robbery, while mandatory add-on penalties do not. The single most important factor affecting violent crime is societal attitudes and cultural values¾even after controlling for levels of gun restrictiveness.
Gun control proponents, therefore, present only a partial picture when they cry out for more restrictive measures in response to violent crime. Except for narrowly targeted risk groups, such as the mentally ill and known criminals, control measures appear to have no effect on violent crime, and may even increase crime to the extent that such measures disarm law-abiding citizens and increase the criminals' ad-[Page 494] vantage among the physically weakest members of the society. Control measures which seem to work best are those which ensure that dealers do not sell weapons to the wrong people, such as background checks.
E. The Impact of Control Measures on Women
1. In General
Men and women are not created equal in physical strength and, thus, guns not only equalize the differences between men, but also eliminate the disparity in physical power between the sexes. The available information on civilian restriction of gun ownership indicates that one of the groups most harmed by restrictions on private gun ownership will be women. Yet, control legislation and the surrounding political rhetoric fail to consider the effects of such legislation on the ability of women to defend themselves. In fact, some control proponents use rhetoric portraying women as too emotional to use guns. They cite the statistic that the overwhelming majority of murders committed by women are of male relatives or acquaintances¾creating the inference that women are more likely to become irrational and kill their lovers, spouses, or boyfriends. Although it specifically targets women, this argument is framed as a justification for keeping guns out of the hands of citizens. Such rhetoric fails to mention that, in the overwhelming majority of actual cases in which a woman used a gun against a spouse or boyfriend, she did so as a last [Page 495] resort to fend off a male threatening her life. The rhetoric similarly fails to mention that control measures which would remove the gun from the domestic violence arena may take away the woman's best means for self-defense. Control proponents refer to surveys portraying women in favor of gun control to help stop violent crime While women are in favor of stopping violence, however, and guns are often linked with violence, no evidence exists that banning guns will result in less violence against women. The available evidence even suggests that if guns are banned, women may become more frequent targets of violent crime.
2. Waiting Periods
Control proponents tout waiting periods as an effective way to prevent gun homicide both because such controls allow states without the capability for instant checks the time to check an individual's record and because waiting periods reduce "heat of passion" crimes by allowing time for the purchaser of the gun to "cool off." Again, the impact on women's defensive uses of guns is largely ignored.
To begin with, the evidence shows that killings that fit the profile of those sought to be prevented through waiting periods are extremely rare. Further, although proponents argue that waiting periods have [Page 496] merit for saving lives, they may also cost lives¾women's lives. Depending on how long the period is, women in abusive situations may be deprived of ready access to guns¾which are the most effective protection available to them. The lack of appeal provisions and the poor mechanisms for correcting errors also may hamper ready access to guns by women who may need to obtain a gun quickly. Error estimates of background checks indicate a fifty percent chance that an initial denial is accurate and proper. Waiting periods also provide anti-rights administrators with easy opportunities for abuse.
Waiting periods also consume police resources and, given the scarcity of these resources, raise serious questions whether police could otherwise use them to save more lives. Police would need to expend an estimated 7.5 million hours checking on mostly law-abiding citizens, with an estimated cost of $40,000 for every arrest produced.
Instant background checks using computers offer an alternative to waiting periods which accomplish the objective of keeping guns from underage purchasers, the mentally ill, and criminals who attempt to purchase from dealers. However, gun control proponents strongly argue that long waiting periods or, minimally, "cooling-off" periods, are necessary to prevent spontaneous criminal uses of guns. Yet, these proponents ignore the evidence that the majority of these "spontaneous" uses are not spontaneous in the domestic abuse context. In fact, these are situations in which a woman has repeatedly called the police for protection from a violent male "acquaintance" (spouse, boyfriend, "friend"). In many cases, the presence of the gun in the woman's hand merely changes the gender of the victim.
3. Carry Permits
Carry permits are often issued based on "need" and are discretionary. In many states, "need" is found for financial or status reasons. In Illinois, for example, provisions allow employees of banks and other financial institutions to carry guns. In New York, the standard of "unique need" has resulted in permits to the rich and the [Page 497] influential. Criticism of the New York system includes that it grants celebrities and the economic/social elite permits while denying permits to working-class individuals who must operate in crime-ridden areas as part of their daily jobs.
Major metropolitan and urban areas which have the greatest proportion of violent crime against women, as well as the greatest likelihood of woman- headed households, also have the most restrictive gun control measures. Some areas, notably the Chicago metropolitan communities of Evanston, Oak Park, Morton Grove, Wilmette, Winnetka, and Highland Park, have outright bans on civilian gun ownership and complete bans on sales of handguns. Civilians in these areas cannot own guns under any circumstances.
Other cities, such as New York, have special permit/licensing systems which allow private citizens to own guns for personal protection.  These licenses discriminate against the economically disadvantaged¾the "need" criteria most often accepted is protection of property.  Women are particularly disadvantaged because they tend on average to hold lower-paying and lower-status jobs than men  and because they are at an inherent physical disadvantage. Such laws appear to ignore the incredible violent crime aimed especially at women, as well as the statistics showing that women desire to carry guns primarily for defensive purposes. The high restriction areas in major metropolitan centers also tend to have the largest resource problems¾seriously affecting their ability to provide adequate police protection to private citizens.
4. Women's Use of Self-Defense Weapons
The statistical evidence on defensive gun use shows that women have good reasons for seeking to use guns for self-defense. Defense with guns results in 17.4% fewer injuries to the defender than alternatives. For example, in 40.3% of instances where the defender uses a knife, he or she is injured. Similarly, the aggressor injures the defender 22% of the time when the defender uses some weapon other than a knife or gun, 50.8% of the time when the defender uses physical force, and 34.9% of the time when the defender uses evasion.[Page 498] Analysts repeatedly find that guns are the surest and safest method of protection for those who are most vulnerable to "vicious male predators." Guns are thus the most effective self-defense tools for women, the elderly, the weak, the infirm, and the physically handicapped.
F. The Law of Self-Defense
The self-defense doctrine has particular relevance to women's issues involved in gun control, because it further limits women's choices for self-defense. Women who chose weapons to defend themselves often have difficulty claiming self-defense. Their difficulty stems largely from a strong male bias in the law of homicide and the defenses to homicide that developed in the male-offender context. Historically, the law of self-defense has been male-oriented. The law's categories often do not accommodate female behavior and fail to incorporate the context of female homicide. In particular, female homicide defendants have difficulties proving current standards for the legal excuses and justifications which reduce a murder charge to manslaughter or mandate acquittal, respectively.[Page 499]
Self-defense justifies a killing where the defendant reasonably believes "he" is in immediate danger of unlawful bodily harm from his adversary and that the use of such force is necessary to avoid this danger. Generally, a defendant also must not have been an initial aggressor  and must have used a reasonable amount of force.
1. Reasonableness of Belief
To claim self-defense, the defendant must have honestly and reasonably feared unlawful bodily harm at the hands of her assailant. The majority of jurisdictions require that the defendant's belief be both honest and reasonable, mandating both a subjective and objective component.
A problem with the elements of the defense lies in society's definition of reasonableness. Defensive force is seen most appropriate in defense of honor, property, or family. Traditionally familiar images of self-defense are a soldier, a man protecting his home, family, or the chastity of his wife, or a man fighting off an assailant. Further, society has a general tolerance of violence against women, especially by their male intimates. As illustrated by the legal standards for rape [Page 500] law, legal standards are neither written from women's viewpoints nor administered to reflect them. Commentators worry that the very effort to create a "reasonable woman" standard implies that women are not reasonable. Yet, use of the "reasonable person standard" without changing the criteria that juries may consider in judging the defendant's action may hurt women defendants by masking the inequity of the standards actually applied.
Even when a judge takes into account sex and disparity of physical size, he may not find that an armed woman was reasonable in using deadly force against her unarmed male assailant. Yet, due to the disparity in size, physical strength, relative experience in fighting, and socialization, the "reasonable" woman's reaction to circumstances necessitating the use of defensive force will most certainly differ from the reaction of the "reasonable" man.
2. Justifiable Force
Although women's problems in claiming self-defense vary somewhat depending on whether a stranger or an intimate initiates the violence, as well as on the setting of the violence (home versus other [Page 501] environment), women using guns to defend themselves have difficulty showing that they were justified in using deadly force to defend against either unarmed assailants or assailants armed with objects that, given equal strength between the parties, would be perceived as less than deadly force. The rules governing what a reasonable response to deadly force might be have evolved from a legal history stretching back to Blackstone, and have steeped in a male-oriented viewpoint. This viewpoint is predicated on a male-on-male encounter, and entertains a vision of women as dependent, passive, and submissive.
Under the proportionate force rule, the amount of force a defendant may use must be reasonably related to the threatened harm he seeks to avoid. Traditionally, deadly force was justified only to repel deadly force. Generally, courts interpreted this rule to mean that a defendant could not use deadly force on an unarmed assailant. The rule rests on the assumption of two adversaries equal in size, strength, and training. Because women are generally physically outmatched by their assailants, women need weapons even where their assailants are unarmed. Handguns are the most effective defensive weapons for women. Alternate methods of self- defense often fail because the woman must place herself too close to her assailant. Often women arm themselves with weapons intending to ward off an attack by only threatening to use the weapon; but, some shoot because they are frightened by a sudden move of the male or their lack of familiarity with the weapon. In some cases, the proportionate force rule precludes self-defense claims. Women's self-defense claims fail when juries and courts do not find the woman's use of a gun to be "reasonable" to fend off an unarmed rapist or battering intimate.[Page 502]
Courts are increasingly taking into account the size and sex of the assailant and defendant. Many jurisdictions recognize that an assailant's fists can be deadly weapons under some circumstances; in these situations, a woman's only means of self-defense may be to arm herself. Not all jurisdictions, however, recognize that a gun is justifiable force against an unarmed assailant. Further, the woman still must have a reasonable belief in the necessity of using force at all. Where a man merely makes verbal threats to rape a woman, courts are not so willing to find justifiable force where the necessity of force and the extent of force required is unclear. The trier of fact may find the woman unreasonable because society does not view armed defense by a woman as reasonable or because society views women themselves as irrational and prone to overreact.
3.Imminence of Threat
The imminent danger rule illustrates the male bias of the law because it presupposes a single adversarial encounter. The rule ignores that women are threatened in situations in which a man would not be; for example, if a male stranger verbally threatens a woman, she may believe she is in imminent danger of serious bodily injury. If she pulls a gun on an assailant who is twenty feet away and is threatening her, she is probably not justified in shooting. The problem is that if she waits until the assailant is close enough or commits an overt act, such as physically assaulting her, she risks her life. In the stranger-attack context, this issue becomes relevant if the woman mistakenly fires or fires because she "unreasonably believes" that she is in danger of serious bodily harm.
The model of the "fair" fight between two reasonably equal combatants prepared to settle their differences with their fists definitely does not fit the context of domestic abuse. The imminence rule [Page 503] narrowly defines the time frame for the threatened bodily harm. Evidence of a pattern of abuse is difficult to fit into the law's standard. Battered women have difficulty showing that their acts were "reasonable" under a legal standard which questions their assessment of the situation simply because their actions do not fit a male-on-male, single confrontation context.
Also implicit in the law's requirement of imminence is the concept that the threat of attack will be withdrawn at the last minute. The abstraction also assumes that a male-on-male situation is the same as a male-on-female situation, ignoring that women have often learned from experience the certain types of confrontations most likely to result in their victimization, and specifically ignoring the battered woman's very specialized knowledge of the power and mental state of her aggressor.
The law also tends to ignore that the battered woman is most often attacked in her own home. Although the doctrine of retreat precludes the necessity of retreating from one's own home, the legal standard is misapplied when courts and juries find that the woman should have left the situation prior to using lethal force. Therefore, when women do use guns defensively, they must fight an uphill battle to show that their actions were justified under our current "genderneutral" legal system.
A problem with gender-neutral law is its assumption that such laws concern themselves with women's interests, when, a closer examination reveals that, the interpretation, discussion, and application of the law often ignores women. Thus, although the Second Amendment speaks of a "people's" right, historians speak in terms of a male fight, generally agreeing that one of the primary purposes of the "people's fight" clause was to guarantee an individual's right to defend "himself." Similarly, gun control proponents point to modern Second Amendment interpretations that focus on issues of states' rights to maintain militias rather than the need for self-defense, largely due to the rise of organized police forces. But there is no discussion of the effectiveness (or ineffectiveness) of the police and how such inadequa-[Page 504] cies affect the women who comprise over half of the citizens of the United States. Because police have been so ineffective in preventing the crimes which greatly and disproportionately affect women, such as sexual assault and domestic violence, and which remain on the rise, the exclusion of women's needs from the debate results in subtle¾but real¾discrimination. Moreover, a perception that the framers of our Constitution did not include women under their definition of citizenry provides no excuse for excluding women from the analysis of the importance of the "individual" right to self-defense.
Current control proponents subsume women's needs and rights under the rubric of all citizens. Similarly, gun control laws and self-defense standards are largely written in gender-neutral terminology. Under liberal or traditional equality theory, women will by definition be guaranteed the same rights under the Second Amendment as long as state laws use the same standards to restrict gun ownership, possession, and use for women as for men.
According to such an analysis, concealed carry permits do not discriminate against women to the extent that they set "need" as their neutral standard granting a permit. However, standards using a monetary minimum or social status for granting permits reflect an inherent male bias. Women often do not hold jobs in which they must carry money because women still lag behind men in achieving job parity in those fields. The criteria of money itself as opposed to dangerousness of occupation is discriminatory. The night nurse at the city hospital has an equally valid reason to carry a gun as the proprietor carrying a payroll exceeding X amount of dollars, or the politician, or the wealthy businessman¾why should New York allow Donald Trump to protect himself, but not a woman living in an area of high crime? Even in jurisdictions where the criteria is not based on monetary sum carried, an even more insidious discrimination occurs when categories of work are perceived as dangerous enough to be worthy of concealed carry permits; these categories do not generally encompass traditionally female work. In jurisdictions that allow discretion in applying criteria (as do most), the perception that women are irrational, emotional, and incapable of handling guns makes it difficult for women to obtain permits¾even though their situations may otherwise warrant it (i.e., if a man applied and all else were equal, he would get the permit).
Criteria which use need for protection of property or status as a basis for issuing carrying permits for guns are male-oriented. If the state banned all guns, women would lose because they could not physically fight off men and the viability of alternate methods of self-defense is questionable. However, a gun ban¾if effective¾would benefit men because criminal violation of property and affronts on sta-[Page 505] tus would decrease. Men on average could better defend themselves in hand-to-hand combat, and would not face the physical difficulties confronted by women. Men would lose only to the extent that a complete gun ban is virtually impossible; and criminals would still have access to guns. But men who perpetuate violent crime against women¾rape and assault, especially¾would greatly benefit from civilian gun bans. Women who previously had the option of legally possessing guns would have to choose between committing the crime of possessing a gun and self-defense. For most women, men's fists are lethal force. Even with high degrees of self-defense combat training, women have a definite disadvantage in street fights. More insidiously, society would send women the message that they should not use force to defend themselves¾a message society is already sending in denying women the defense of self-defense.
Similarly, standards of self-defense predicated on a single standard of reasonable use of lethal force discriminate against women because they fail to take into account size differentials, strength differentials, and women's socialization to be passive, over and beyond any factors that may be present in a similar confrontation between two men. The equality position is essentially embodied in the status quo. When we think of equal standards, we think of singular standards which are blind to gender in application. Such standards are also blind to a defensive view of self-defense (the most common position for women to occupy in confrontations). Because current interpretations of these standards do not incorporate the circumstances of female self-defense (fear or terror, size and power disparities, experience in combat), these standards discriminate against women who act in self-defense¾especially women who use deadly force to do so. Women should have an equivalent right under the Constitution to protect themselves. Where police require permits to carry weapons, departments should set criteria which meets the needs of the population¾including women. For example, departments should not make economic criteria the primary basis for obtaining a permit. Departments should reevaluate traditionally female jobs (such as nurses, secretaries, etc.), granting permits to carry weapons where the applicant must travel to high-crime areas or must work late at night.
The standards of reasonableness in self-defense law reflect a historical bias for categories of acceptable behavior premised on a male-dominated society in which men were allowed to beat their wives and treated women as property, yet wives who killed husbands¾or even [Page 506] seriously disobeyed husbands¾suffered far higher penalties than husbands for the same crimes. The law developed to serve a male-on-male aggression situation¾the barroom brawl. As such, the law does not recognize fear or terror as a heat-of-passion excuse. The law also fails to find "reasonable" those women who defend themselves with deadly force against unarmed aggressors¾regardless of the woman's actual belief. The law does not often allow sufficient evidence of the circumstances surrounding the defensive act for the woman's actions to be fairly understood as reasonable. Finally, society still regards women who use deadly force as inconsistent with acceptable images of womanhood¾passivity, deference, and nurturance.
Courts and legislators should redefine the reasonableness standard to include experiences common to women. Rather than a special "reasonable woman" standard, courts should allow defendants to introduce evidence to the trier of fact which will allow the trier of fact to evaluate a woman's act in light of the circumstances. A special standard would hurt women by perpetuating the stereotype that women are incapable of "reasonableness." A gender-neutral standard which incorporates a point of view common to women, allowing the introduction of evidence of the woman's circumstances, would allow the jury to judge her acts, rather than forcing a trier of fact to focus on her mental state. The adoption of subjective standards of reasonableness for a defendant's acts, as well as her mental state offers a gender-neutral mechanism for introducing such evidence. Further, distinguishing between offensive self- defense situations, exemplified by the current standard based on the male-on- male or equal force assumptions and defensive self-defense, where fear and size differentials count, incorporates not just women's viewpoint per se, but a more diverse, human standard allowing for real differences in situations and people.
Current interpretations of the Second Amendment integrally express the interests of men. Current "neutral" standards of gun legislation and self- defense deny women the same liberties granted to men and dismiss or misrepresent the reality of women's lives.
"Objective" standards of gun control legislation ignore the differences in physical power between men and women. By ignoring the statistical evidence of actual civilian gun use, gun control legislation gives more power to the state in its attempt to "make society safer," leaving men to exercise unchecked power in the society. Given the differential in strength between same-sized males and females, combined with the greater likelihood of women being attacked by males, the "neutral" standard in practice denies women the ability to defend [Page 507] themselves. To the extent that the Second Amendment is interpreted to guarantee an individual right to bear arms where at least one of the purposes is self-defense, women are not receiving the same rights as men.
Despite the concern control proponents espouse for reducing violent crime against women, commentators virtually ignore the extent to which restrictive gun legislation and standards of self-defense affect the "other half" of the citizens of the United States. The exclusion of women from the debate has direct implications for both their economic and psycho-social well-beings and their ability to fully reap the benefits and protections of citizenship in our society. Proponents' mischaracterization of homicide in the home and indiscriminate use of statistics which lump together women's defensive uses of guns inexcusably minimize the reality women face attempting to defend themselves against becoming victims of sexual assault or domestic abuse statistics.
Regardless of whether the Supreme Court adopts an individual rights or a collective rights interpretation of guarantees under the Second Amendment, legislators must consider the real position of women in deciding which standard controls, over whom, and in which situations. Participants in the gun control debate must begin using available statistics on violent crime in ways which do not misrepresent the nature of the problem of violent crime against women. The available information does not indicate that gun control will reduce violent [Page 508] crime against women. Much of the information actually points in the opposite direction--that gun control measures restricting availability of firearms for civilian self-defense actually hurt women by restricting or removing the most effective method of self-defense available to women. Whatever the future of gun control, proponents of gun control must not grossly misrepresent and distort the needs of women and the realities of women's lives to make laws which deprive women of the rights granted to men. To the extent that we grant individuals the right to keep and bear arms, women should not be excluded from consideration in the debate over government restriction of the rights of all people.
* J.D. 1994, University of Illinois; member 1992-94, University of Illinois Law Review.
1. Gary Kleck documents the Old West saying and its alternative, "Colonel Colt made all men six feet tall." GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA 156 (1991). For the modern version in advertisement, see infra note 2.
2. Pam McAllister, Feminist Law-Challenging Actions, in FIGHT BACK: FEMINIST RESISTANCE TO MALE VIOLENCE 212, 217 (Frederique Delacoste & Felice Newman eds., 1981) (reproducing a Smith & Wesson advertisement from the 1970s).
3. For a complete definition of violent crime, see FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS 5 (1991) [hereinafter UNIFORM CRIME REPORTS].
4. Violence Against Women: Victims of the System: Hearing on S. 15 Before the Senate Comm. on the Judiciary, 102d Cong., 1st Sess. 189-91 (1991) [hereinafter Violence Against Women 1991] (summary of findings: Judiciary Committee Majority Staff Report).
5. Women and Violence: Hearings on Legislation to Reduce the Growing Problem of Violent Crime Against Women Before the Senate Comm. on the Judiciary, Part II, 101st Cong., 2d Sess. 77 (1990) [hereinafter Women and Violence II] (testimony of Dr. Mary Koss).
6. While the number of assaults on males aged 20-24 has decreased 11.8% from 1974 to 1987, the number of assaults on women has increased 48.1%. Similarly, violent crime against women aged 20-24 increased 32.7%, while it decreased 12.4% for males. Women and Violence II, supra note 5, at 6 (statement of Senator Joseph R. Biden, Jr.). Although women are still less likely to be victims of crime than men, differences in the rates at which men and women fall victim to violent crime are narrowing, and the most serious crimes against women are rising at a significantly faster rate than total crime. During the past ten years, rape rates have risen four times as fast as the total crime rate. See CAROLINE W. HARLOW, U.S. DEP'T OF JUSTICE, FEMALE VICTIMS OF VIOLENT CRIME 1 (1991).
7. UNIFORM CRIME REPORTS, supra note 3, at 16-17. Males were most often slain by males¾87% in single victim/single offender situations. Id.
8. See PATRICK A. LANGAN & CHRISTOPHER A. INNES, BUREAU OF JUSTICE STATISTICS, PREVENTING DOMESTIC VIOLENCE AGAINST WOMEN 2 (1986). The annual incidence of domestic violence, when computed at the rate of one incident every 15 seconds, is 2,102,400 battering attacks on women annually.
9. The Uniform Crime Reporting (UCR) definition of forcible rape is "the carnal knowledge of a female forcibly and against her will. Assaults or attempts to commit rape by force or threat of force are also included; however, statutory rape (without force) and other sex offenses are excluded." UNIFORM CRIME REPORTS, supra note 3, at 23.
10. Women and Violence: Hearings on Legislation to Reduce the Growing Problem of Violent Crime Against Women Before the Senate Comm. on the Judiciary, Part I, 101st Cong., 2d Sess. 7 (1990) [hereinafter Women and Violence I]; Women and Violence II, supra note 5, at 77.
One in 3.5 adult women will be attacked by a rapist. One in seven women now in college have been raped. One in four of the women now in college have been attacked by a rapist. See HARLOW, supra note 6, at 1-2.
11. Violence Against Women: Hearings on H.R. 1502 Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 1 (1992) [hereinafter Violence Against Women 1992] (testimony by the New York City Commission on the Status of Women).
12. The Uniform Crime Reports (UCRs) compile statistics on the number of rapes actually reported to police. There is a general consensus that the UCRs grossly underreport the actual incidence of rape. See Helen M. Eigenberg, The National Crime Survey and Rape: The Case of the Missing Question, 7 JUST. Q. 655 (1990). At best, the UCRs define the presence of the trend: estimates reveal that women report being raped only 7-10% of the time. See Violence Against Women 1991, supra note 4, at 194; Violence Against Women 1992, supra note 11, at 115. By contrast, the reporting rate for robbery is 53%; for assault, 46%; and for burglary, 53%. Violence Against Women 1991, supra note 4, at 194.
13. Violence Against Women 1991, supra note 4, at 189.
15. Even the FBI believes that the UCRs severely underrepresent actual rapes. Even surveys conducted by the Bureau of Justice Statistics (BJS) indicate that victims report rape to the police only about half of the time. Violence Against Women 1991, supra note 4, at 215 (58.8%); HARLOW, supra note 6, at 9 (53% of all attempted or completed rapes reported to police during 1973-87). The BJS surveys, however, are themselves seriously flawed and underrepresent the estimated number of rapes. The BJS recognizes these flaws and is attempting to rectify them through changes in questionnaires beginning in 1990. HARLOW, supra note 6, at 3.
16. Data indicate that 6,400,000 people aged 12 and over (male and female) were victims of violent crime in 1991. BUREAU OF JUSTICE STATISTICS, CRIMINAL VICTIMIZATION IN THE UNITED STATES 3 (1991) [hereinafter CRIMINAL VICTIMIZATION]. The rate of female victimization for rape was 1.4 out of every 1000 women in the population. Id. at 5 tbl. 2 n.c. Population figures were based on the United States Census for 1990, estimating a total number of 127,471,555 women in the United States. U.S. BUREAU OF THE CENSUS, 1990 CENSUS OF POPULATION CHARACTERISTICS 17 (1991). Using the census number of women as a base, the number of females reporting rape in 1991 was 178,460.16 (0.0014 x 127,471,555). Method of computation from telephone interview with Caroline Campbell, Statistician, Bureau of Justice Statistics, Washington, D.C. (Feb. 1, 1993).
17. Low estimates of rape reinforce the perception that rape is a rare occurrence¾a tragedy that happens to individuals which is so statistically rare that it is not reflective of life for the American woman. Eigenberg, supra note 12, at 664. Studies using more thorough screening and asking directly whether the respondent was raped consistently indicate a much higher incidence of rape. A 1978 study of 930 women in San Francisco which used the legal definition of rape at the time (limited to coitus with force or threat of force) found the incidence of rape to be thirteen times the UCR figure and seven times the NCS figure. DIANA E.H. RUSSELL, SEXUAL EXPLOITATION: RAPE, CHILD SEXUAL ABUSE AND WORKPLACE HARASSMENT 34-38 (1984). Dr. Mary Koss and her associates surveyed 3187 female college students nationwide and used a definition of rape that included the following: (1) women who had sexual intercourse when they did not want to do so because of forced use of alcohol or drugs; (2) women who had sexual intercourse because of verbal or physical threats; or (3) women who had been forced to participate in other sexual acts against their will (i.e., oral or anal sex, or penetration with something other than a penis). The Koss study estimated that the incidence of rape was 10 to 15 times greater than the NCS rate for the same year. Mary Koss et al., The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students, 55 J. CONSULTING & CLINICAL PSYCHOL. 162, 162-70 (1987). The empirical data are supported by reports of increases in rape from crisis centers nationwide. See Violence Against Women 1991, supra note 4, at 196 (reported rapes grossly underestimate rape incidence by state and nationwide).
Prior to 1989, the National Crime Survey did not define rape in its questionnaire. The screening questions ask the respondents specifically whether anyone has tried to beat them up, attack them with a weapon, or steal things from them, but does not ask if anyone tried to rape them. Instead, the questionnaire asks whether anyone tried to attack them in some other way. Although NCS does not state a reason for excluding a more direct question on rape from its survey, inquiry into the historical development of the survey illuminates the agency's rationale: rape was excluded because of "the sensitivity of the issue." More explicit wording was rejected as "not appropriate for a Federal Agency to use and likely to be offensive to respondents." Richard N. Dodge & Anthony G. Turner, Methodological Foundations for Establishing a National Survey of Victimization, in 1 BUREAU OF JUSTICE STATISTICS, THE NATIONAL CRIME SURVEY: WORKING PAPERS 2-3 (Robert G. Lehnen & Wesley G. Skogan eds., 1981). Eigenberg compares NCS data to other studies to conclude that NCS underestimates rape because the survey never actually asks respondents about rape victimization. Eigenberg, supra note 12, at 664. Respondents may not respond properly to the ambiguous question on rape for several reasons. Respondents expect later, more explicit questions on rape; they may infer that the researcher is not interested in rape or that they are not supposed to talk about rape. The inference that rape is less important or shameful or not the subject of the survey sends an inappropriate message out to female respondents that rape is shameful. Id.
The NCS defines rape as "carnal knowledge through the use of force or the threat of force, including attempts," but each victim defines rape for herself. See HARLOW, supra note 6, at 7. NCS does not inquire into what types of acts the victim experienced. Other studies call into question the validity of what the NCS survey measures when it reports rape incidence. Studies comparing the consistency between the UCRs and the NCS report virtually no correlation between the two sources for the crime of rape, suggesting that the UCRs and the NCS are not measuring the same phenomenon (correlations range from .01 to .38 over seven studies). Eigenberg, supra note 12, at 660. In a pretest of the NCS, researchers selected a sample of known victims from police files. Only 66.7% of the victims reported rape to the interviewer when interviewers used the ambiguous screening question. As the result of a 10-year study, the NCS is redesigning its survey through a three-stage process. The new survey will ask respondents whether "anyone [has] attacked or threatened [them] by a sexual attack." U.S. Dep't of Justice, National Crime Survey (1990) (redesigned survey) (unpublished material available from Bureau of Justice Statistics upon request).
18. Violence Against Women 1991, supra note 4, at 215.
19. Michael T. O'Donnell, Note, The Second Amendment: A Study of Recent Trends, 25 U. RICH. L. REV. 501 (1991) (arguing that gun control will decrease trend of violent crime in United States); Letty C. Pogrebin, Pistols for the Women of America, NATION, May 15, 1989, at 658, 666, 668.
20. See KLECK, supra note 1, at 170-72, 187-88. Guns are most used in business-oriented crimes. Id.
21. See generally Edgar A. Suter, Guns in the Medical Literature¾A Failure of Peer Review, 83 J. MED. ASS'N GA. 133, 133-48 (1994); see also infra notes 199-221 and accompanying text.
22. NCS data for the time period of 1979-87 indicate that only 24% of rapists had weapons. Of the rapists displaying weapons, 9% had guns, 11% had knives, 4% had other weapons, and 1% had unidentified weapons. HARLOW, supra note 6, at 11. Aggregate data for the crimes of rape, robbery, and assault for the same period show that assailants used guns in 10% of the attacks on women (7% where the assailant was an intimate and 13% where the assailant was a stranger). Assailants used knives and other weapons in 16% of the attacks on women (intimates 13% and strangers 19%). Id. at 6 (numbers derived from those shown in Fig. 10).
Survey evidence indicates that unreported rapes tend to be the "less real" rapes, such as acquaintance rapes, which do not fit the societal image of the back alley, gun-to-the-head assault. These rapes generally involve no weapon. See generally ROBIN WARSHAW, I NEVER CALLED IT RAPE (1988).
23. See infra notes 199-212 and accompanying text.
24. Pogrebin, supra note 19, at 666, 668. See generally Should You Own a Gun for Protection?, U.S. NEWS & WORLD REP., May 8, 1989, at 28.
25. Arthur Kellerman & Donald T. Reay, Protection or Peril? An Analysis of Firearms-related Deaths in the Home, 314 NEW ENG. J. MED. 1557, 1560 (1986). Kellerman implies that a gun owner is 43 times more likely to kill a family member than an intruder. Id. at 1558-59; see also Arthur Kellerman et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 NEW ENG. J. MED. 1084, 1089 (1993) (finding that keeping a gun in the home is associated with a 2.7 times increased risk of homicide, and concluding guns are a health hazard in the home); Arthur Kellerman et al., Men, Women, and Murder: Gender Specific Differences in Rates of Fatal Violence and Victimization, 33 J. TRAUMA 1 (1992) [hereinafter Kellerman et al., Men, Women, and Murder]. Guns are also used by family members as suicide weapons. Arthur Kellerman et al., Suicide in the Home in Relationship to Gun Ownership, 327 NEW ENG. J. MED. 467 (1992) [hereinafter Kellerman et al., Suicide in the Home].
26. See KLECK, supra note 1, at 185-88; W.W. Caruth, III, Guns: Health Destroyer or Protector?, 83 J. MED. ASS'N GA. 157, 158 (1994); Larry Pratt, Health Care and Firearms, 83 J. MED. ASS'N GA. 149, 151 (1994); see also Suter, supra note 21.
Suter points out numerous defects in Kellerman's research, ranging from methodology to unwarranted conclusions and omissions in analysis. For example, Suter critiques Kellerman's 1986 methodology which did not consider cases of defensive uses of weapons in which burglars or intruders are wounded or frightened away by the use or display of a firearm in arriving at the figure that a gun owner is 43 times more likely to kill a family member than an intruder. Suter, supra note 21, at 136-37. Kellerman perpetuated this error in his 1993 study concluding that keeping a gun in the home was associated with a 2.7 times increased risk of homicide. Id. Suter finds a second and more glaring error in Kellerman's failure to distinguish gun-related deaths in the domestic abuse context. Id. at 140.
Similarly, Kellerman and Mercy lumped instances of legitimate self-defense with homicide, effectively portraying the women who defended themselves with guns as murderers. Id. at 140. Kellerman and Mercy in their 1992 study concluded that "[w]hen women killed with a gun, their victim was five times more likely to be their spouse." See Kellerman et al., Men, Women, and Murder, supra note 25, at 4. Suter points out that what Kellerman and Mercy did not say was that their FBI data showed that when women killed with a knife, their victim was also five times more likely to be their spouse. And when women killed by other means, their victim was four times more likely to be their spouse than when men killed. Suter, supra note 21, at 140.
In fact, these numbers derive largely from women's need to defend themselves against men. Men generally kill with guns far more often than women do¾but they kill other men and women; when women kill with guns, it is most often in the domestic abuse context and in self-defense. See generally Advance Release, Bureau of Justice Statistics, No. 1-202-307-0703 (Jan. 13, 1991) [hereinafter Advance Release]. According to the Bureau of Justice Statistics, family members committed 37% of violent crimes against women during the period 1979-87, compared to 4% of those committed against men. Id. at 1. According to Bureau Director Steven D. Dillingham, "[t]he violence women suffer is more frequently caused by people with whom the victims have had a prior relationship than is the case among men." Id. at 1-2. And, "[a]lmost one in five of the women who had been attacked by a family member or boyfriend said that the violence they [sic] had experienced had been part of a series of at least three similar violent crimes that occurred within six months of the interview." Id. at 2.
27. See Suter, supra note 21, at 140.
28. E.g., KLECK, supra note 1, at 170.
29. See Suter, supra note 21, at 140, 142.
30. U.S. CONST. amend. II.
31. E.g., Nunn v. State, 1 Ga. 243, 251 (1846) (finding that the Second Amendment specifically applies to women as well as men). Certainly, under current interpretations of the 14th Amendment, the position that women were not guaranteed the same degree of protection from government infringement of their rights as men would be untenable.
32. The Supreme Court has decided only four significant cases relating to the Second Amendment--none of them in the past 50 years and none of them definitive of an individual right to bear arms. David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551, 556 (1991). More recently, the Court indicated in dicta that there was an individual right to bear arms, interpreting the words, "the people," to guarantee individual rights analogous to the use of those words in the First and Fourth Amendments and indicating the framer's intent to use the wording as a "term of art." United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Some commentators have explained the Court's silence by suggesting the Court is afraid of addressing the hotly contested issue. See Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self- Preservation, 39 ALA.L.REV. 103, 104 (1987).
33. Others have followed the Supreme Court's lead, discussing the amendment summarily (if at all) and usually reducing the Court's interpretation of the amendment to a protection for the National Guard. See George J. Church, The Other Arms Race, TIME, Feb. 6, 1989, at 20; Oprah (NBC television broadcast, Oct. 23, 1993).
34. In discussions of constitutional rights women are rarely mentioned. See infra notes 299-308 and accompanying text. Although Wendy Brown mentions women in the context of the obsoleteness of the Second Amendment (she finds the amendment, at best, an example of perpetuation of male bravado), she concludes her article with the observation that an unarmed woman fears rape as soon as she is outside the protection of "civilization." See Wendy Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 YALE L.J. 661, 666-67 (1989).
35. See infra notes 248-98 and accompanying text.
36. Laurie J. Taylor, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. REV. 1679 (1986).
37. In almost half the instances of violent crime it takes police more than 10 minutes to respond to a call for help. CRIMINAL VICTIMIZATION, supra note 16, at 118 tbl. 120. The 1993 data showed an average of only 2.3 full-time officers per 1000 inhabitants. UNIFORM CRIME REPORTS, CRIME IN THE UNITED STATES 288 (1994).
Only recently has there been an effort to change long-standing policies of noninterference in domestic violence cases. Police response in domestic violence calls is still, for the most part, grossly inadequate. See generally Violence Against Women 1991, supra note 4; Violence Against Women 1992, supra note 11.
38. See, e.g., A Killing Excuse, TIME, Nov. 28, 1977 (article quotes law-enforcement officials and attorneys stating that admitting evidence of battered-woman syndrome will result in more wives killing their husbands and give women special treatment).
39. See infra notes 248-98 and accompanying text.
40. See infra notes 248-98 and accompanying text.
41. Although a thorough discussion of accidental gun deaths is beyond the scope of this note, the author in no way wishes to minimize deaths related to firearm accidents. Particular mention must be made of the number of fatalities among children. Just as women's needs for self-defense must be considered in any debate on the merits of gun control, so must the cost in lives to our children when guns are mishandled or easily accessible to young hands. However, the reader also should consider the number of children killed through men battering women. The National Coalition Against Domestic Violence estimates that 25% to 30% of pregnant women are battered. See Ann Jones, Living with Guns, Playing with Fire, Ms., May-June 1994, at 40.
42. See infra notes 52-84 and accompanying text.
43. See infra notes 85-163 and accompanying text.
44. See infra notes 164-212 and accompanying text.
45. See infra notes 213-47 and accompanying text.
46. See infra notes 213-47 and accompanying text.
47. See infra notes 248-98 and accompanying text.
48. See infra notes 299-304 and accompanying text.
49. See infra notes 305-08 and accompanying text.
50. See infra notes 305-08 and accompanying text.
51. See supra note 16 (women constitute 51.8% of the population of the United States).
52. See, e.g., Kathryn Abrams, Gender and the Transformation of the Workplace Norms, 42 VAND. L. REV. 1183 (1989); Leslie Bender, Sex Discrimination or Gender Inequality?, 57 FORDHAM L. REV. 941 (1989); Nancy E. Dowd, Work and Family: Restructuring the Workplace, 32 ARIZ.L.REV. 431 (1990); Mary Joe Frug, Securing Job Equality for Women: Labor Market Hostility to Working Mothers, 59 B.U. L. REV. 55 (1979). On unemployment insurance, see Martha Griffiths, Sex Discrimination in Income Security Programs, 49 NOTRE DAME LAW. 534 (1974).
53. Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS 635 (1983).
54. See generally Daniel T. Barker, Interspousal Immunity and Domestic Torts: A New Twist on the "War of the Roses," 15 AM J. TRIAL ADVOC. 625 (1992); Robert B. Gainor, Note, To Have and to Hold: The Tort Liability for the Interspousal Transmission of AIDS, 23 NEW ENG. L. REV. 887 (1988); Daniel M. Oyler, Note, Interspousal Tort Liability for Infliction of a Sexually Transmitted Disease, 29 J. FAM. L. 519 (1990/91).
55. See generally LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA (1985).
56. See generally CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 185-94 (1989); KATHLEEN MCDONNELL, NOT AN EASY CHOICE: A FEMINIST RE- EXAMINES ABORTION (1984); Susan Estrich & Kathleen Sullivan, Abortion Politics: Writing for an Audience of One, 138 U. PA. L. REV. 119 (1989).
57. See MACKINNON, supra note 56, at 188. See generally Susan Barry, Spousal Rape: The Uncommon Law, 66 A.B.A. J. 1088 (1980).
58. See infra notes 251-302 and accompanying text.
59. See, e.g., Margaret Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982); Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory and Feminist Theory, 2 YALE J.L. & FEMINISM 37 (1990).
60. See, e.g., Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 AM. U. L. REV. 1065 (1985).
61. See generally Marjorie Kornhauser, The Rhetoric of the Anti-Progressive Income Tax Movement: A Typical Male Reaction, 86 MICH.L.REV. 465 (1987).
62. See generally Karen Gross, Re-Vision of the Bankruptcy System: New Images of Individual Debtors, 88 MICH.L.REV. 1506 (1990).
63. See CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979); Nancy Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 YALE L.J. 1177 (1990); see also IRIS M. YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE (1990).
64. See generally Nancy Gibbs, When Is It Rape?, TIME, June 3, 1991, at 48; Robin Warshaw, Ugly Truths of Date Rape Elude the Screen, N.Y. TIMES, May 5, 1991, at H17.
65. See generally B. Sharon Byrd, Til Death Do Us Part: A Comparative Law Approach to Justifying Lethal Self-Defense by Battered Women, 1 DUKE J. COMP. & INT'L L. 169 (1991); Kit Kinports, Defending Battered Women's Self-Defense Claims, 67 OR.L.REV. 393 (1988); Alene Kristal, You've Come a Long Way, Baby: The Battered Women's Syndrome Revisted, 9 N.Y.L. SCH. J. HUM. RTS. 111 (1991); Christine A. Littleton, Women's Experience and the Problem of Transition: Perspectives on Male Battering of Women, 1989 U. CHI. LEGAL F. 23; Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH.L.REV. 1 (1991); Irvin B. Nodland, Defending Battered Women: Everything She Says May Be Used Against Them, 68 N.D.L.REV. 131 (1992); Robin West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 WIS. WOMEN'S L.J. 81 (1987).
66. See generally SUSAN ESTRICH, REAL RAPE (1987).
67. Feminist theorists have widely diverging viewpoints and do not easily conform to categorization into particular stereotypes or theories. See generally KATHERINE T. BARTLETT & ROSANNE KENNEDY, FEMINIST LEGAL THEORY 1 (1991). Unfortunately, the term "feminism" itself labels and categorizes voices and viewpoints. I use it simply to identify the body of work with the ideal of exposing male-oriented stereotypes and biases which are inherent in many aspects of society¾and law in particular.
68. Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. LEGAL EDUC. 3, 4 (1988).
69. Id. at 5.
70. Categorizing feminist theory into three concepts is a gross oversimplification. However, a full discussion of even most viewpoints is beyond the scope of this note.
71. Feminist equality theory, which emerged in the 1970s, modeled itself explicitly after the antidiscrimination doctrine developed in earlier decades to handle race discrimination. Ruth Ginsburg's defense of the Equal Rights Amendment to the United States Constitution exemplifies this scholarship. See generally Ruth Bader Ginsburg, Gender and the Constitution, 44 U. CIN. L. REV. 1 (1975); Ruth Ginsburg, Sex Equality and the Constitution, 52 TULANE L. REV. 451 (1978); see also Barbara A. Brown et al., The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 YALE L.J. 871 (1971); Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 24 UCLA L. REV. 581. (1977).
Critics of equality theory cite the Supreme Court's analytical framework as proof of the inevitable abuse of equality theory in practice. The Court often finds that no discrimination has occurred because women are not "similarly situated" to men. See Personnel Adm'r v. Feeney, 442 U.S. 256 (1979); General Elec. Co. v. Gilbert, 429 U.S. 125 (1976); Geduldig v. Aiello, 417 U.S. 484 (1974).
72. Wendy Williams applies the equal rights approach to pregnancy, arguing that employee leave policies should be equally liberal to men as to women. Williams concludes that, in the long run, women want to attain the same social status and privilege as men but that as long as they demand special treatment now, the established social norms will too conveniently keep them in their current substandard niche. Williams also argues that demanding special treatment detracts attention from inadequate employee benefits and general maltreatment, reframing the issue as women wanting to have better benefits than men for the same work. Wendy W. Williams, The Equality Crisis, 7 WOMEN'S RTS. L. REP. 175 (1982); see also Wendy W. Williams, Equatity's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. REV. L. & SOC. CHANGE 325 (1985). Williams also prefers affirmative action analysis, aimed at removing the effects of past discrimination, rather than permanently instituting "special" or "favored" treatment for women. See Wendy W. Williams & Nadine Taub, Will Equality Require More than Assimilation, Accommodation, or Separation from the Existing Social Structure?, 37 RUTGERS L. REV. 825 (1985).
One of the criticisms of equality theory is that getting rid of differences usually means getting rid of women's differences. Christine A. Littleton, Reconstructing Sexual Equality, 75 CAL. L. REV. 1279 (1987). Rather than showing the unworkability of equality theory, this criticism just points to the reality that the Supreme Court's current approach does not allow for challenges to male bias in the structure of businesses, occupations, or jobs. For a comprehensive overview of the successes and failures of the equal rights approach, see DEBORAH L. RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW (1989).
73. See CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982).
74. Other feminists criticize Gilligan's work for implying women think differently because of biological differences. See, e.g., SUSAN FALUDI, BACKLASH 325-32 (1991). Although Gilligan herself does not claim that an innate biological difference exists, it is unclear whether she would disclaim an environmental impact on brain development.
75. For other difference theory scholarship, see generally NANCY CHODOROW, THE REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER (1978); MAPPING THE MORAL DOMAIN: A CONTRIBUTION OF WOMEN'S THINKING TO PSYCHOLOGICAL THEORY AND EDUCATION (Carol Gilligan et al. eds., 1988).
76. See generally Drucilla Cornell, Sexual Difference, the Feminine, and Equivalency: A Critique of MacKinnon's "Toward a Feminist Theory of the State," 100 YALE L.J. 2247 (1991).
77. See infra notes 80-84 and accompanying text.
78. Cornell sees dominance theory as reflecting the very "sexual shame" of women's "sex" that keeps the "feminine" from being valued and legally affirmed in a program of equivalent legal rights. See Cornell, supra note 76, at 2249-50.
79. Of course, according to dominance theory, see infra notes 80-84 and accompanying text, in the status quo men define women by their sex. MacKinnon advocates that women take the power from men and redefine themselves¾which is essentially what Cornell is advocating in a less militant way. Cornell does differ from dominance theory in that ultimately she sees an asymmetrical standard developing, whereas arguably MacKinnon sees equality in power¾a symmetrical standard at least along the dimension of power. However, once women achieve equal power they can create their own standards. It may be easier to think of dominance theory as the prerequisite to Cornell's equivalence theory¾although both scholars would probably disagree with such an interpretation.
80. Dominance theory is also called an inequality approach, the empowerment approach, or radical feminism.
81. See MACKINNON, supra note 63, at 117.
82. To the extent that dominance theory retains a comparative dimension¾the dimension of comparative disadvantage¾viewing it as a type of equality theory is possible. On the other hand, dominance theory insists that the legal logic of similarities and differences is itself a means of upholding a particular system of male hegemony. In this insistence, dominance theory is less an example than a rejection of equality theory.
83. See generally MARY R. KEY, MALE/FEMALE LANGUAGE (1975); ROBIN LAKOFF, LANGUAGE AND WOMAN'S PLACE (1975); CASEY MILLER & KATE SWIFT, WORDS AND WOMEN (1977); SEXIST LANGUAGE (Mary Vetterling-Braggin ed., 1981). Feminists have given names to experiences of women which had no name in the English language (e.g., sexual harassment, date rape, and marital rape). Not only does English lack words for experiences either unique to women (intercourse is legally defined as "penetration") or stereotypically "female" (sexual harassment), but, further, the use of the male pronoun "he" to designate an unknown gender in writing is only one of the inherent male biases imposed on women through language.
84. See generally CATHERINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 32-45 (1987). Other feminist scholars adopting the dominance theory approach include Ruth Colker's "anti-subordination" principle, see Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003 (1986), and Sylvia Law's "perpetuation of oppression" test, Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1008-09 (1984). Nancy Ehrenreich questions why the "reasonable person" test in sexual harassment law "is still seen as the prototypical expression of the law's fairness and objectivity rather than . . . as a mechanism for facilitating the coercive exercise of social power." Ehrenreich, supra note 63, at 1178. Jane Aiken applies MacKinnon's dominance approach by showing how the concept of the uncontrollable male sexual impulse facilitates the continued disregard of women's rights in the law. See Jane Aiken, Differentiating Sex from Sex: The Male Irresistible Impulse, 12 N.Y.U. REV. L. & SOC. CHANGE 357 (1983-84).
85. Neither of the leading hornbooks on constitutional law give the Second Amendment extended analysis, relegating discussion largely to footnotes. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 10.2, at 340 n.4 (5th ed. 1995); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 299 n.6 (2d ed. 1988).
86. Several law review articles discuss the amendment, but this number is far smaller than those discussing other "hot" amendments in the Bill of Rights. Don Kates, who is a prolific writer on the Second Amendment, is a practicing lawyer rather than an academic. For the proposition that academics and judges prefer to ignore the Second Amendment rather than face the debate over the constitutionality of gun control, see generally Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989), and Jacob Sullum, Gun-Shy Judges, REASON, May 1991, at 47.
87. Williams, supra note 32, at 551; see also Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights," 59 U. CHI. L. REV. 453, 501-03 (1992).
88. U.S. CONST. amend. III.
89. Id. art. I, §10.
90. Id. art. I, § 9, cl. 8.
91. Id. amend. II.
92. Levinson, supra note 86, at 639-45; Joyce L. Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 HASTINGS CONST. L.Q. 285, 286-90 (1983).
93. Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983).
94. The collective rights position was the academic favorite and mainstream position until the Supreme Court's recent decision in Perpich v. Department of Defense, 496 U.S. 334, 339 (1990), where the Court described the relevant constitutional text as a "compromise" between federal and state control but nonetheless concluded that the federal government could order members of a state national guard unit overseas for training without the consent of the state governor. Id. at 340. The implications of the Court's ruling are that the decentralized authority implicit in the militia clauses no longer has continuing vitality. See Stephanie A. Levin, Grassroots Voices: Local Action and National Military Policy, 40 BUFF. L. REV. 321, 343 (1992).
95. Levinson, supra note 86, at 642-51.
96. The individual rights view reigns among the general population. See generally Richard Hofstadter, America as a Gun Culture, in THE GUN CONTROL DEBATE 25 (Lee Nisbet ed., 1990).
97. BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 184-89, 193-94 (1967); STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 37-88 (1984).
98. HALBROOK, supra note 97, at 37-87.
99. Id. at 9-13.
100. I use "man" deliberately because the framers' definition of citizen was a propertied, white male.
101. HALBROOK, supra note 97, at 7-31. The ideal of civic virtue that the founding fathers expounded derived from the ancient Greeks and was inexorably tied up with battle. The ancient Greeks based their definition of citizenship on courage in battle and valor. Inherent in their concept of citizenship was the assumption that all free men keep and bear arms, to be able to defend their ideas and their "polis" or city-state. The Greeks associated their word arete, which we translate as virtue, with valor in battle. Both the Greek word and its English equivalent have connotations of machismo, manliness. See I.F. STONE, THE TRIAL OF SOCRATES 52-67 (1988). The framers' reliance on the Greek ideals of citizenship has raised the issue of the role of women as full citizens. Specifically, under a collective rights interpretation of the Second Amendment, if individuals are permitted to own "arms" solely because they are members of the militia, the question remains if only men may exercise the right, given even the present definition of the militia and the exclusion of women from military combat generally. One answer is that women are militia members now if they are U.S. citizens and commissioned officers in the National Guard. See 10 U.S.C. § 311(a) (1994). However, the pervasive language and historical meaning of "militia" appear to exclude women from full citizenship. See sources cited supra note 83 for the effects of language on women's historical and present subordination.
Considerable evidence exists that the framers based their argument for arming the citizenry primarily on Machiavelli's concept of republicanism, which links a state's security with the independence of its citizenry with independence represented by the ability to own and bear arms. See HALBROOK, supra note 97, at 55-87; see also NICCOLO MACHIAVELLI, DISCOURSES ON THE FIRST DECADE OF TITUS LIVIUS 312-14 (Ninian Hill Thompson trans., London, Kegan Paul, Trench & Co. 1883).
102. HALBROOK, supra note 97, at 65-87.
107. Kates, supra note 93, at 213; see also HALBROOK, supra note 97, at 55-87.
108. See HALBROOK, supra note 97, at 55-88.
109. 10 U.S.C. § 311(a), (b).
110. HALBROOK, supra note 97, at 164.
111. E.g., State v. Buzzard, 4 Ark. 18 (1842); Nunn v. State, 1 Ga. 243 (1846); Aymette v. State, 21 Tenn. 154 (1840). Cannons or other heavy artillery did not appear to be included.
112. 60 U.S. (19 How.) 393 (1856).
113. Id. at 449-50.
114. 116 U.S. 252 (1886).
115. The Second Amendment has never been incorporated via the 14th to the states. However, the Court decided Presser prior to its broad interpretation of incorporation of most of the Bill of Rights. Therefore, language in Presser seeming to reserve to the states the power to regulate guns is arguably outdated. Given the framers' apparent intent for "every man to be armed," it is far more likely that complete bans of guns¾--even on the state level¾go against the meaning of the Second Amendment. HALBROOK, supra note 97, at 176.
The Court's analysis in Miller v. Texas, 153 U.S. 535, 538 (1894), indicated the growing tendency toward incorporation of the Bill of Rights. The first incorporationist opinion recognized a right to compensation for property taken by the states. See Chicago B. & Q.R.R. Co. v. Chicago, 166 U.S. 226 (1897). In Mapp v. Ohio, 367 U.S. 643 (1961), the Court applied the Fourth Amendment to the states through the 14th, and the dominoes began to fall as the Court incorporated most of the other Bill of Rights provisions. The Second Amendment is one of the few remaining rights which the Court has not formally incorporated. Nevertheless, presumably the same principles of construction would apply to both incorporated and unincorporated rights, should appropriate cases arise. The Supreme Court could apply the Second Amendment directly through the Due Process or the Privileges and Immunities Clauses of the 14th Amendment. Or the Court could adopt a broader "penumbra" theory to guard the right to keep and bear arms from state infringement. See Griswold v. Connecticut, 381 U.S. 479 (1965). Under a "penumbral" approach, the Court could define unenumerated rights protected by the Ninth Amendment by reference to the objectives of the other amendments. HALBROOK, supra note 97, at 170-78.
116. 307 U.S. 174 (1939).
117. HALBROOK, supra note 97, at 164-77.
118. Miller, 307 U.S. at 178.
120. HALBROOK, supra note 97, at 65-87.
121. Miller, 307 U.S. at 179; Kates, supra note 93, at 214.
122. See Kates, supra note 93, at 216; O'Donnell, supra note 19, at 506.
123. Kates, supra note 93, at 249.
124. David I. Caplan, Restoring the Balance: The Second Amendment Revisited, 5 FORDHAM URB. L.J. 31, 42 (1976).
125. Miller, 307 U.S. at 179.
128. HALBROOK, supra note 97, at 169; see also Caplan, supra note 124, at 47.
129. See Caplan, supra note 124, at 43.
130. HALBROOK, supra note 97, at 170-78.
131. Id. at 170-97.
132. 407 U.S. 143 (1972).
133. Id. at 150.
134. 445 U.S. 55 (1980).
135. Id. at 65 n.8.
136. 494 U.S. 259 (1990).
137. Id. at 265.
138. State courts interpreting state constitutional provisions with wording similar, if not identical, to the Second Amendment, have held that individual citizens are guaranteed the right to keep and bear arms. See Schubert v. DeBard, 398 N.E.2d 1339 (Ind. Ct. App. 1980); State v. Blocker, 630 P.2d 824 (Or. 1981); State v. Kessler, 614 P.2d 94 (Or. 1980). But see Salina v. Blaksley, 83 P. 619 (Kan. 1905) (holding that collective right implied by same wording). Note that Salina was decided before mass incorporation of the Bill of Rights through the 14th Amendment, so a stronger argument existed that the state's interpretation was different than the federal government's interpretation.
139. 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
140. Id. at 269.
141. Id. at 270.
142. 907 F.2d 1041 (11th Cir.1990), cert. denied, 498 U.S. 1097 (1991).
143. Pub. L. No. 90-618, § 201, 82 Stat. 1213, 1227-36 (1968) (codified as amended at 26 U.S.C.A. §§ 5801-5872 (West 1994 & Supp.1995)).
144. Pub. L. No. 99-308, § 102(g), 100 Stat. 449, 452-53 (1986) (codified at 18 U.S.C. § 922(o) (1994)).
145. Farmer, 907 F.2d at 1042.
146. Id. at 1043.
147. See Sullum, supra note 86.
149. Brown, supra note 34, at 661.
150. Gun control measures originated as a means of controlling and oppressing immigrant groups. See Don B. Kates, Jr., Toward a History of Handgun Prohibition in the United States, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT 7-30 (Don B. Kates, Jr. ed., 1979). Gun control is essentially people control. Control laws are always aimed at certain classes and categories of people. Several commentators have alleged that gun control is really racial control. See also Brown, supra note 34, at 664-65; Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-American Reconsideration, 80 GEO. L.J. 309 (1991); William R. Tonso, Gun Control: White Man's Law, REASON, Dec. 1985, at 22. See generally Kates, supra.
151. See Williams, supra note 32, at 601-02 nn.274-78.
152. Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982) (finding no federal constitutional requirement that state or local agencies provide sufficient police protection); Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981); Riss v. City of New York, 22 N.Y.2d 579 (1958).
153. E.g., Jamison v. City of Chicago, 363 N.E.2d 87 (Ill. App. Ct. 1985) (construing 720 ILL. COMP. STAT. § 5/24-2 (1993)).
154. Williams, supra note 32, at 601-02 nn.274-78.
155. See HALBROOK, supra note 97, at 32-87.
156. See Williams, supra note 32, at 601-02 nn.274-78.
157. UNIFORM CRIME REPORTS, supra note 37, at 11, 288.
158. See generally Gary Kleck, Crime Control Through the Private Use of Armed Force, 35 SOC. PROBS. 1, 1 (1988).
159. See id. at 2, 4, 18.
161. PAXTON QUIGLEY, ARMED AND FEMALE 84 (1989).
162. Handguns are used another 215,000 times annually to defend against dangerous animals. See Kleck, supra note 158, at 2 (calculated using census figures and survey showing that 2% of respondents reported using a gun against an animal).
164. See KLECK, supra note 1, at 324.
165. Id. For a listing of state laws, see BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1992, at 150 (1993) [hereinafter SOURCEBOOK].
166. See KLECK, supra note 1, at 324.
167. Firearms Owners Protection Act, Pub. L. No. 99-308, § 102(9), 100 Stat. 449, 452-53 (1986) (codified at 18 U.S.C. § 922(o) (1994)).
168. See generally KLECK, supra note 1, at 324-25.
169. BUREAU OF ALCOHOL, TOBACCO & FIREARMS, DEP'T OF THE TREASURY, STATE LAWS AND PUBLISHED ORDINANCES¾FIREARMS 22, 37 (1988) [hereinafter BATF SURVEY].
171. Minimum age is generally 18 for owning long guns and 21 for handguns. See KLECK, supra note 1, at 324.
173. See SOURCEBOOK, supra note 165.
174. See BATF SURVEY, supra note 169, at iv-v.
175. See KLECK, supra note 1, at 325. Most waiting period requirements operate in conjunction with application systems, although Wisconsin has a stand-alone waiting period. The waiting periods range from one to fifteen days, with three and seven days being most common. Id.
176. See id.
177. Id. States requiring ownership licensing or identification cards include Illinois, Massachusetts, New Jersey, and New York (the District of Columbia requires licenses only for firearms registered prior to the total prohibition). See SOURCEBOOK, supra note 165.
178. See KLECK, supra note 1, at 325.
179. 18 U.S.C. §§ 922(b)(5), 923(g), 923(j) (1994); see also id. § 922(n).
180. See BATF SURVEY, supra note 169, at iv-v.
181. See generally DAVID J. BORDUA ET AL., OPERATION AND EFFECTS OF FIREARM OWNER IDENTIFICATION AND WAITING PERIOD REGULATION IN ILLINOIS (1985).
182. 18 U.S.C. § 922(t) (1994).
186. Figures as of 1980. See KLECK, supra note 1, at 326.
187. BUREAU OF ALCOHOL, TOBACCO & FIREARMS, DEP'T OF THE TREASURY, FEDERAL FIREARMS REGULATION 84 (1988-89).
188. See BATF SURVEY, supra note 169.
190. States find employees dealing with money as fitting criteria legitimizing carry permits. E.g., 720 ILL. COMP. STAT. § 5/24-2 (1993). See generally BATF SURVEY, supra note 169.
191. BATF SURVEY, supra note 169.
192. See id.
193. See KLECK, supra note 1, at 331-32.
198. Id. A restrictive licensing system is only slightly less extensive than prohibition. Few gun prohibitions are absolute¾there are almost always exceptions for military and law enforcement personnel, private detectives, federal licensees, and the like. Therefore, the distinction between restrictive licensing and prohibition may be a slight one of semantics. Id. at 331.
199. GEORGE D. NEWTON, JR. & FRANKLIN E. ZIMRING, FIREARMS & VIOLENCE IN AMERICAN LIFE: A STAFF REPORT TO THE NATIONAL COMMISSION ON THE CAUSES & PREVENTION OF VIOLENCE 139 (1969).
200. ROBERT NICHOLSON & ANNE GARNER, THE ANALYSIS OF THE FIREARMS CONTROL ACT OF 1975 (1980) (study of Washington, D.C.'s virtual ban on civilian gun ownership and possession indicating that crime rates in D.C. did not drop as a result; comparison with control jurisdictions); Phillip J. Cook, The Effect of Gun Availability on Robbery and Robbery Murder, POL'Y STUD. ANN. REV. (1979) (cities in states with gun purchase permit laws had no less robbery or gun robbery than cities not subject to such laws); Mathew R. DeZee, Gun Control Legislation: Impact and Ideology, 5 LAW & POL'Y Q. 367 (1983) (study of state level gun control found no effects on violent crime); Martin S. Geisel et al., The Effectiveness of State and Local Regulations of Handguns, 1969 DUKE L.J. 647 (study factoring gun control restrictiveness at state and local levels found no effects on total rates of homicide, aggravated assault, or robbery rates); Colin Loftin & David McDowall, The Deterrent Effects of the Florida Felony Firearm Law, 75 J. CRIM. L. & CRIMINOLOGY 250 (1984) (laws establishing mandatory add-on penalties for commission of violent felonies with a gun had no effects on violent crime); see also KLECK, supra note 1, at 399- 408. For a comprehensive review of the failure of gun control measures, see DON B. KATES, JR. ET AL., WHY HANDGUN BANS CAN'T WORK (1982).
201. KLECK, supra note 1, at 402, 406-08.
203. Id. at 398-99, 403-04.
204. Id. at 404.
206. See KLECK, supra note 1, at 404. In a recent article, Kellerman claimed that guns in the home lead to an increased risk of the gun being used to commit suicide. See Kellerman et al., Suicide in the Home, supra note 25, at 467-72. Edgar Suter refutes Kellerman's conclusion, however, by pointing out both bias in the data and Kellerman's conclusions. According to Suter, Kellerman's data showed higher correlations between suicide and psychotropic drugs, drug abuse, living alone, and hospitalization for alcoholism, than with gun ownership. Additionally, Suter claims that Kellerman et al. "adjusted" their data by eliminating the 30% of suicides outside of the home¾an exclusion which skewed their conclusion. See Suter, supra note 21, at 137. Suter also summarizes cross-cultural reviews of suicide which show that cultures with severe gun restrictions have some of the highest rates of suicide¾Japan, China, the former Soviet Union, Germany, Luxembourg, Denmark, Belgium, Surinam, Trinidad, Sweden, etc., and points to research indicating that people who commit suicide would merely use a different method. Id.
207. KLECK, supra note 1, at 397-99 (research indicates that requiring a license to possess guns combined with prohibiting possession among mentally ill people may have a small effect on criminals).
208. Id. at 399-400, 403-04.
209. This sort of sentence enhancement may work better when it is discretionary because it increases penalty severity without inadvertently causing reductions in the certainty of punishment. When the add-on penalties are not mandatory, prosecutors retain their ability to induce defendants to plead guilty in exchange for lesser sentences, thereby maintaining conviction rates at higher levels. Id. at 403-04.
210. See generally id. at 385-428.
211. See Philip J. Cook, The Effect of Gun Availability on Violent Crime Patterns, ANNALS AM. ACAD. POL. & SOC. SCI., May 1981, at 63-79.
212. See KLECK, supra note 1, at 431-35.
213. On average women are weaker than men of comparable height. Muscles form a lower proportion of female body weight than of male body weight (36% and 43%, respectively). KENNETH F. DYER, CHALLENGING THE MEN: THE SOCIAL BIOLOGY OF FEMALE SPORTING ACHIEVEMENT 71-72 (1982). Women can develop arm muscles only 75% to 85% the strength of men's muscles. Generally, actual differences in average strength tend to be greater because women do not exercise their upper bodies adequately to develop their potential strength while men are more likely to engage in vigorous exercise to develop strength closer to their potential. Id. Men also have more power available for explosive events than women. Id. at 74.
Women are on average smaller than men. The average height of men in the United States ranges from 5' 7.4" to 5' 9.7" and from 163 to 178 pounds; the average height for women ranges from 5' 2.2" to 5' 4.3" and from 134 to 150 pounds. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 108 (107th ed. 1987).
214. KLECK, supra note 1, at 101-20.
215. See Cook, supra note 211, at 63-79; Gary Kleck, Policy Lessons from Recent Gun Control Research, 49 LAW & CONTEMP. PROBS. 35, 37 (1986); David B. Kopel, Trust the People: The Case Against Gun Control, CATO REP. NO. 109 (July 11, 1989); cf. KLECK, supra note 1, at 331, 377.
216. See Pogrebin, supra note 19; see also Debra Dobray & Arthur J. Waldrop, Regulating Handgun Advertising Directed at Women, 12 WHITTIER L. REV. 113 (1991). See generally Elizabeth M. Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15 HARV. C.R.-C.L. REV. 623, 632 n.55 (1980) (citing questionnaires filed with Women's Self-Defense Law Project).
217. In Detroit, 75% of wives who shot and killed their husbands were legally defending themselves or their children against illegal attacks; in Miami and Houston the figures were 60% and 85.7%, respectively. MARTIN DALY & MARGO WILSON, HOMICIDE 15, 200, 278 (1988); see also Margaret Howard, Husband-Wife Homicide: An Essay from a Family Law Perspective, 49 LAW & CONTEMP. PROBS. 63, 88 (1986); Advance Release, supra note 26. See generally LENORE E. WALKER, TERRIFYING LOVE: WHY BATTERED WOMEN KILL AND HOW SOCIETY RESPONDS (1989).
218. The data on spousal homicide suggest that angry intimates in abusive relationships simply grasp the most conveniently available alternative weapon. Although substituting knives might result in a decrease of fatalities from single episodes of violence, the effect of a handgun ban would probably be to remove a battered woman's best defensive weapon. See sources cited supra note 217.
219. See Becker, supra note 87, at 502 nn.236-38; see also Melinda Henneberger, N.R.A. Campaign Under Attack; The Small-Arms Industry Comes On to Women, N.Y. TIMES, Oct. 24, 1993, at D4 (quoting Patricia Ireland, N.O.W. president, that "most women are not likely to seek advice on personal safety from the same people who have 'socialized our whole culture toward violence,"' and commenting that the N.R.A. is not a feminist organization).
220. See Cook, supra note 211, at 63-71. See generally KATES, supra note 200.
221. See generally Don B. Kates, The Battle over Gun Control, 84 PUB. INTEREST 42 (1986).
222. According to criminologist Gary Kleck, three conditions must happen for a "cooling off" period to prevent homicide. First, the gun the killers use must be the only one they own, or the only one they could have used in the crime; second, the killers must acquire their guns from sources that would be expected to obey gun control laws (licensed dealers); and third, the killers must purchase and use their guns in a time period shorter than the "cooling off" period. Kleck found that only about 1 in 200 (0.5%) of homicides would satisfy these criteria. Even then, several other conditions would be necessary: (1) the killing must have been an isolated act, rather than a culmination of assaults; (2) the killer must not have been able to complete the homicide with another weapon; (3) the killer must not have been able or willing to obtain the gun from a nonretail source. Although Kleck supports background checks, he finds that a waiting period by itself would not be effective. See KLECK, supra note 1, at 333-35.
223. See David B. Kopel, Why Gun Waiting Periods Threaten Public Safety, J. FIREARMS & PUB. POL'Y, Summer 1992, at 27, 31-34.
226. See Kopel, supra note 223, at 27.
227. Id. at 29-30.
228. See supra text accompanying notes 157-63.
229. See Kopel, supra note 223, at 27.
231. See Suter, supra note 21, at 140-41.
233. See KLECK, supra note 1, at 353-54.
234. See 720 ILL. COMP. STAT. § 5/24-2(8) (1993).
235. Kates, supra note 93, at 208 n.17.
236. See KLECK, supra note 1, at 353-58.
237. See id. at 331, 372-77.
238. See SOURCEBOOK, supra note 165, at 150.
239. See KLECK, supra note 1, at 355-58.
240. Id.; see also supra note 190 and accompanying text.
241. KLECK, supra note 1, at 355-58.
242. See DYER, supra note 213, at 62.
243. See Cook, supra note 211.
244. Suter, supra note 21, at 140.
The author is not advocating arming all of society. Nor does the author advocate arming children. Rather, the author seeks to present the reality that in our society the physically weak are preyed on and often are unable to defend themselves. The statistics merely show that guns do equalize the differences in physical strength. In no way does the author wish to suggest that guns are the answer¾only that banning them or restricting their use from those who do use them legally and responsibly may not be the answer either.
248. Schneider, supra note 216, at 623-37; see also Elizabeth M. Schneider & Susan B. Jordan, Representation of Women Who Defend Themselves in Response to Physical or Sexual Assault, 4 WOMEN'S RTS. L. REP. 149, 149 (1978); Suter, supra note 21, at 140.
249. CYNTHIA K. GILLESPIE, JUSTIFIABLE HOMICIDE 31-49 (1989); see also Schneider, supra note 216, at 623-37; Taylor, supra note 36, at 1689-97; Schneider & Jordan, supra note 248, at 153-55. Notably, this context developed at a time when handguns were not readily available for men either. GILLESPIE, supra, at 38-39.
250. UNITED NATIONS, VIOLENCE AGAINST WOMEN IN THE FAMILY 11, 49 (1989); Schneider, supra note 216, at 623-37; Taylor, supra note 36, at 1689-97.
251. See Taylor, supra note 36, at 1692.
252. Id. The law of homicide assumes that intentional killings are fairly punished, assigning the highest degree of culpability when premeditation and deliberation accompany the killer's intent to kill. Killing is justifiable in defense of one's life and the lives of others. Under some circumstances use of deadly force is justifiable in defense of property. See generally WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 465 (2d ed. 1986). In claiming self- defense, a defendant asks the trier of fact to find justification for a homicide. Justified behavior is behavior that is reasonable, correct, and appropriate under the law. The focus of the inquiry is on the act rather than the actor¾that the act was justified because of the circumstances of the act. Id. at 454-63. However, the law has always excused certain killings. Where the circumstances of the act claimed to be in self-defense do not justify the act, the focus of the inquiry examines the defendant's mental or emotional state. When the law partially excuses some homicides, it recognizes that some intentional killings are understandable, though reprehensible. The law may tolerate an unreasonable act because of the defendant's characteristics. Excuse is not a complete defense to intentional homicide, rather the trier of fact may find the defendant culpable of a lesser crime. See Taylor, supra note 36, at 1679. At best, most women's defenses are framed in terms of excuse, rather than justification, in effect saying that their defense of their lives was merely understandable. By contrast, a defense based on justification would find that the act was right because of the circumstances of the act; justification encourages the behavior under those circumstances, rather than finding a deficiency in the actor¾however understandable. Defenses, such as heat-of-passion or insanity or limited intellectual capacity, have been used where the perception that the woman's acts were unreasonable or reprehensible made the traditional self-defense plea (a justification) fail. See Schneider, supra note 216, at 630-38.
253. For a discussion of the difference between justification and excuse, see supra note 252.
254. See LAFAVE & SCOTT, supra note 252, at 454.
255. Id. at 459. There are two situations where an initial aggressor is justified in claiming self-defense: first, where a nondeadly aggressor (one without deadly force) is met with deadly force; second, where the aggressor has withdrawn in good faith. Id. at 459-60.
256. Id. at 455.
257. Id. at 457.
258. Id. For examples of the application of this standard in cases involving battered women who killed their husbands, see Langley v. State, 373 So. 2d 1267, 1271 (Ala. Crim. App. 1979); Nygren v. State, 616 P.2d 20, 22 (Alaska 1980); People v. Reed, 695 P.2d 806, 807 (Colo. Ct. App. 1984), cert. denied, 701 P.2d 603 (Colo. 1985); People v. Dillon, 180 N.E.2d 503, 504 (Ill. 1962); State v. Nunn, 356 N.W.2d 601, 604 (Iowa Ct. App. 1984); State v. Lynch, 436 So. 2d 567, 569 (La. 1983); May v. State, 460 So. 2d 778, 784 (Miss. 1984); State v. Martin, 666 S.W.2d 895, 899 (Mo. Ct. App. 1984); State v. Kelly, 478 A.2d 364, 373 (N.J. 1984); State v. Gallegos, 719 P.2d 1268, 1270 (N.M. Ct. App. 1986).
A minority of jurisdictions use the Model Penal Code's subjective approach, which requires only an honest belief that the assailant intended unlawful harm. MODEL PENAL CODE § 3.04(1) (Official Draft 1962).
259. Schneider, supra note 216, at 635.
261. Historically, legal systems often gave a husband the right to chastise, or even kill his wife, if she was disobedient. Blackstone stated in his Commentaries on the Laws of England that the husband had the power to correct his wife the same way as his apprentice or children. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Oxford 1775). More commonly, the husband's power to chastise his wife became known as the "rule of thumb": normal wife-chastising involved beating with a stick no thicker than a man's thumb. The law also gave husbands the right to sexually abuse their wives. See UNITED NATIONS, supra note 250, at 11, 49.
262. For a discussion on how rape laws assume nonconsensual force (as opposed to consensual force), see Catharine MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281 (1991).
263. See generally LOIS G. FORER, UNEQUAL PROTECTION (1991).
264. See Taylor, supra note 36, at 1690-91.
265. The historic structures that formed the general view of women as subordinate to men and family matters as "private" are still a potent issue in the law today wherever women in relational settings are treated not as individuals but as members of this mythical entity: "the family." There is still a common idea that relations between intimates are different than abuse or assault between strangers. Rather than focusing on the violence of the male perpetrator, society is still too quick to focus on the woman. Even today, in domestic abuse, members of the society regularly ask the question, "Why did she stay?"¾placing focus and blame on the victim rather than on the perpetrator. Society still views women who fight back in the domestic situation, rather than fleeing (even when they cannot flee), as more blameworthy than the males who inflict the abuse. Society perceives women who fight men as irrational, or mentally unbalanced. The use of deadly force is difficult to understand when the model provided by the legal standard is a confrontation between two males. See generally UNITED NATIONS, supra note 250; Schneider & Jordan, supra note 248.
266. The great majority of judges are male. CYNTHIA F. EPSTEIN, WOMEN IN LAW 242, 243 (1982) (as of 1980, 5.4% of federal judges and 2.1% of state judges were female).
267. See Taylor, supra note 36, at 1700-04.
268. Id. at 1701; see also Schneider, supra note 216, at 634-35. The standard of reasonableness fails for the battered woman even more than for the woman who is claiming self-defense in a confrontation between strangers. The abuse context exaggerates the problems of perspective under the male-oriented standard of self-defense. A battered woman's belief may be reasonable in the context of the intimate knowledge she has of her abuser's patterns of violence. However, battered women have difficulty introducing such evidence of the existence and effect of prior assaults and repetitive violence. Although the great numbers of battered women in the United States suggest that domestic abuse is not uncommon, the circumstances surrounding the women's lives are not yet commonly understood; consequently, their defensive actions are not readily understood by juries who must apply a male-oriented standard. What is reasonable for the abused woman depends heavily on the context of the violence¾circumstances which are not readily understood even when introduced into evidence. Id.
269. See Taylor, supra note 36, at 1704-07.
271. See Schneider, supra note 216, at 628-38. Schneider relates how the law evolved from Blackstone's time, which trivialized wife killing and beating while viewing a wife killing her husband as analogous to murdering the king and striking at the root of all civil government. Id. at 628, 629. Taylor also relates the evolvement of male bias in the law of self-defense as predicated on the old common-law views of women as property and lesser beings than men. See Taylor, supra note 36, at 1681.
272. See LAFAVE & SCOTT, supra note 252, at 455.
273. Id. at 456.
274. Schneider, supra note 216, at 631-32.
275. KLECK, supra note 1, at 101-52.
276. QUIGLEY, supra note 161, at 90-101.
277. Id. For instances with battered women, see generally Schneider, supra note 216, at 632 n.55 (citing questionnaires filed with Women's Self-Defense Law Project).
278. People v. Davis, 337 N.E.2d 256, 260 (Ill. App. Ct. 1975) (affirming trial court's finding that the defendant did not act in self-defense because "a belief that the decedent unarmed might kill or greatly injure the defendant while she had a loaded gun was unreasonable").
279. See sources cited supra note 268. See generally Taylor, supra note 36.
280. State v. Wanrow, 559 P.2d 548 (Wash. 1977). For cases involving battered women in which the court noted the disparity in size or strength, see Borders v. State, 433 So. 2d 1325, 1326 (Fla. Dist. Ct. App. 1983); State v. Hundley, 693 P.2d 475, 480 (Kan. 1985); State v. Lynch, 436 So. 2d 567, 568 (La. 1983). For a thorough analysis of these cases, see Kinports, supra note 65, at 415 n.84.
281. See Schneider, supra note 216, at 633.
282. See Lynch, 436 So. 2d at 569; Commonwealth v. Helm, 402 A.2d 500, 504-06 (Pa. 1979).
283. See Taylor, supra note 36, at 1731; see also MacKinnon, supra note 262 (discussion of women's perceptions of aggression in rape and how the law is blind to the aggression directed at women).
284. See generally Schneider & Jordan, supra note 248, at 149.
286. GILLESPIE, supra note 249, at 67.
287. Id.; see MacKinnon supra note 262, at 1293 (discussion of women's perceptions of male aggression).
288. See QUIGLEY, supra note 161, at 215-17.
291. GILLESPIE, supra note 249, at 69.
292. Taylor, supra note 36, at 1704-12.
294. Walter W. Steele & Christine W. Sigman, Reexamining the Doctrine of Self Defense to Accommodate Battered Women, 18 AM. J. CRIM. L. 169, 178 (1991); see also CHARLES P. EWING, BATTERED WOMEN WHO KILL 47-48 (1987).
295. See Steele & Sigman, supra note 294, at 178.
296. Id.; see also MacKinnon, supra note 262, at 1328 nn.56-57.
297. Nodland, supra note 65, at 131; see also GILLESPIE, supra note 249, at 38-39.
298. See Nodland, supra note 65, at 131; see also GILLESPIE, supra note 249, at 38-39.
299. The right of self-defense is most often spoken of in the masculine gender, except where commentators are discussing specific women's topics¾such as battered women.
300. See supra notes 233-43 and accompanying text.
301. Groups such as the Washington, D.C.-based IMPACT, however, teach that a woman can defend herself in most situations.
302. Some feminists acknowledge that guns are a useful defense against armed criminals but aspire to an ideal which changes society to a safer place for women and children in their disparagement of gun ownership. See generally Jones, supra note 41.
303. See supra notes 248-98 and accompanying text.
304. See supra notes 248-56 and accompanying text.
305. See supra note 16.
306. The articles addressing women's use of guns focus on women's irrational impulses and assumed inability to handle firearms, see generally Dobray & Waldrop, supra note 216; Barbara G. Harrison, Guns ala Mode, MADEMOISELLE, Mar. 1989, at 140; Paxton Quigley, Women and Crime: Is This the Answer?, GLAMOUR, Apr. 1989, at 345; or alternatively, that guns reinforce the high levels of violence in the United States and perpetuate the domination of minorities by white-male society, see Becker, supra note 87, at 501-03.
307. The violence towards women translates into enormous economic costs in lost employment and lost employment opportunities made by women who choose relative safety to better jobs, additionally, domestic violence leads to homelessness. The Senate Judiciary Committee on Women and Violence estimated that more than half of all homeless women are on the streets because of domestic violence. Women and Violence II, supra note 5, at 79 (report of majority staff, August 1990). Studies of Philadelphia homeless shelters found that women headed the families of virtually all the families in the shelters and 43% stated that beatings by men had forced them into the shelters. Id. at 142 (citing 1991 study by the Philadelphia Health Management Corporation) (testimony of Susan Kelly-Dreiss, Executive Director, Pennsylvania Coalition Against Domestic Violence). An earlier study found that one-third of homeless individuals identified domestic violence as the cause for their homelessness. Id. (citing study by the Pennsylvania Coalition on Homelessness in Pennsylvania & Institute on Policy Studies of Temple University, January 1989).
Battered women suffer psycho-social problems not because they are sick but because they are battered. A 1991 study by the National Task Force on Women and Depression found that one out of four suicide attempts by women is precipitated by battering. Additionally, many women are depressed as a result of posttraumatic stress syndrome (from battering) or even undiagnosed head trauma from battering. Id. at 143 (testimony of Susan Kelly-Dreiss).
308. The exclusion of women from the debate on the meaning and reach of the Second Amendment also has political implications on the capacity of women to be full citizens.