Hamline Law Review
Symposium on Firearms Legislation and Litigation
vol. 6, no. 2. 1983: 419.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
Licensing and Registration StatutesState and local regulation of concealed weapons has been widespread throughout the United States since the nation’s infancy.[1] In general, the regulations reflect the belief that concealed weapons pose a unique threat to the safety, health and welfare of society. Handguns, in particular, are a familiar subject of regulation. In addition to their concealability,[2] they appear especially sinister as a result of their deadliness[3] and the frequency of their use in violent crimes.[4] Indeed, while the problem of gun-related accidents has also been a legislative concern, the most frequently cited objective of handgun regulation is the prevention of crime. Firearms regulation designed to prevent crime is expressly permitted by the state constitutions of Tennessee and Texas.[5]
Licensing and registration are the two most widely used methods of handgun regulation.[6] The overall objective of most licensing systems is to reduce handgun violence by prohibiting certain classes of individuals, such as felons or mentally incompetent persons, from purchasing or possessing handguns. A licensing system may also attempt to limit the numbers of handguns used outside the home or place of business by requiring a permit to carry or conceal a handgun. In order to obtain a permit, the applicant. will normally be required to provide information indicating that he or she is not in a prohibited class, and to establish good character and a need for a permit. In order to insure that at least some of the information pro- [Page 420] vided is accurate, the issuing authority will check the applicant’s criminal records before granting the license.
Licensing systems may be classified as permissive, restrictive or a hybrid combination of the two. In a permissive licensing scheme, anyone not in a prohibited class will be issued a license. For example, the Washington statute provides that the license must be issued unless the applicant has been convicted of a crime of violence, is a drug addict or habitual drunkard, or has been confined to a mental institution.[7] A restrictive licensing scheme requires an affirmative showing of need or good character even from non-prohibited individuals before a license or permit will be issued. New York’s Sullivan Law[8] is the most restrictive state licensing scheme in the country. For an on-premises handgun license, the applicant must have good moral character, no conviction for felony or serious offense, no mental illness, and no good cause for denial.[9] Proper cause is an additional requirement for an off-premises handgun license.[10] New Jersey and Massachusetts employ a combination of the permissive and restrictive approaches. New Jersey issues permits to purchase on a permissive basis,[11] but issues permits to carry only for justifiable need.[12] The Massachusetts Bartley-Fox Act is similar to the New Jersey approach, but has the additional feature of a mandatory one-year sentence for carrying a handgun without a permit.[13]
In contrast to licensing, which focuses entirely on the individual handgun owner, the primary objective of a registration system is to maintain records of the handguns themselves so that guns used in crimes can be traced to their owners. To meet this objective, regis- [Page 421] tration systems generally provide that a governmental unit, often a local police department, have a record of each handgun owner’s name, address and the serial numbers of handguns he or she owns. A second purpose of some registration schemes, most notably that in Washington, D.C.[14] and the faded California Proposition 15,[15] is to limit the number of handguns by placing a ceiling on the number of registered weapons. Limiting the number of handguns is aimed at reducing both the criminal use of handguns and accidental death or injury. Only non-prohibited individuals may register handguns, so in this respect the screening function of a licensing system is achieved. To date, registration systems have been essentially local, and often work in tandem with state licensing requirements. A handgun owner in Chicago, for example, must first obtain an Illinois Firearm Owner’s Identification Card,[16] and must then comply with Chicago’s handgun registration ordinance.[17]
Handgun regulations of all kinds have been challenged in the courts and the challenges will doubtless continue. Challenges continually occur at the legislative level as well in response to the persistent arguments both for and against more stringent handgun controls. The purpose of this article is to examine some of the issues surrounding handgun registration and licensing statutes. Within this context, judicial review of federal and state constitutional issues, statutory conflict, preemption and separation of powers will be briefly discussed. In addition, appropriate legislative concerns relating to handgun licensing and registration will be discussed, and in particular the issues of effectiveness, expense and public opinion.
Judicial Review
As a general tenet of judicial review, courts are extremely reluctant to second-guess legislative action absent any concrete constitutional or statutory conflict.[18] A presumption of constitutionality adheres to any legislation and the burden of proving otherwise is on the challenging party.[19] The history of judicial interpretation of federal and state constitutional provisions in the context of handgun [Page 422] regulation makes this an extremely difficult burden to sustain.[20]
Judicial interpretation of the second amendment of the United States Constitution[21] has been the focus of much debate. However, the Supreme Court has had the opportunity to interpret the second amendment on only four occasions. In United States v. Cruikshank[22] and Presser v. Illinois,[23] the Court disposed of second amendment challenges to state action by holding that only federal interference was proscribed. Subsequently in Miller v. Texas,[24] in which a state statute prohibiting the carrying of concealed weapons was challenged, the Court slightly elaborated its second amendment philosophy. Although the Court ultimately relied on Cruikshank and Presser for its holding that only federal interference with the second amendment right was prohibited, it further expressed the opinion that the statute in question did not infringe on the right to keep and bear arms. It was not until United States v. Miller, however, that the Court was given an opportunity to explicate its understanding of the meaning and purpose of the second amendment. Miller involved a challenge to section 11 of the United States Firearms Act of 1934, which required, in part, registration of sawedoff shotguns. The Court concluded that because the primary purpose of the second amendment was to prevent federal interference with the state militia and the statute was not inconsistent with that purpose, the legislation was constitutional.[27] This interpretation has since found wide acceptance.[28] In addition, the Court determined [Page 423] that since a sawed-off shotgun bore no "reasonable relationship to the preservation or efficiency of a well-regulated militia,"[29] the second amendment did not protect the right to keep and bear that weapon.[30]
Although these decisions have been uniformly followed by state and federal courts,[31] writers have continually urged the need for their revision.[32] It is often asserted, for instance, that the second amendment should apply to state action by operation of the fourteenth amendment.[33] If this were to become the judically accepted view, courts could no longer simply dismiss a second amendment challenge to a state or local handgun regulation with a statement that the second amendment is not applicable. Instead, a balancing test would be undertaken, with the probable result that the compelling state interest in protecting the safety, health and welfare of its citizens would be found to outweigh the minor inconvenience to individuals imposed by handgun licensing or registration requirements.[34] The Miller mandate to consider the militia purpose of the [Page 424] second amendment has been construed by courts to mean that the second amendment guarantees a collective rather than an individual right.[35] However, even if this interpretation is erroneous and the second amendment can receive the same judicial respect accorded individual rights under the first amendment, the result would not necessarily be a complete abolition of all handgun regulations. For even first amendment rights are not absolute and are subject to reasonable regulation in the interest of the health, safety and welfare of the people.[36]
A second challenge to state or local handgun licensing systems is that they violate the equal protection clause of the fourteenth amendment by designating classes of people as prohibited from possessing handguns. The designation of prohibited classes is constitutional if there is a rational basis for the designation.[37] For example, courts have agreed that preventing felons from possessing handguns is rationally related to the goals of preventing crime and handgun violence, and so have upheld the constitutionality of felons as a prohibited class.[38] Other classifications have received varied treatment by the courts.[39] [Page 425]
In addition to the requirement of compatibility with the second and fourteenth amendments, state or local regulation of handguns must also be compatible with the applicable state constitution. Thirty-eight states have a constitutional provision dealing with the right to keep and bear arms.[40] While there are semantic differences between many of the state constitutional provisions and the second amendment,[41] only one state constitution precludes adoption of reasonablehandgun registration and licensing statutes.[42] To date, the courts have not found a single state licensing or registration statute to conflict with a state guaranteed right to keep and bear arms.
Limitations on a municipality’s ability to regulate handguns may arise from other state constitutional provisions, such as the home rule provision of the Ohio constitution.[43] Statutory limitations may be present, as in the Minnesota firearm statutes which specify that only cities of the first class (over 100,000 population) may have laws regulating firearms which are more restrictive than the state laws.[44] Preemption may also be an issue with regard to local handgun regulation, as it was in the recent court challenge to the well-publicized San Francisco handgun ban.[45]
While the wisdom or advisability of handgun regulation may be called into question by others, a court may properly consider only its validity.[46] In the absence of constitutional or statutory conflict, a court may only determine whether there was a rational basis [Page 426] for the legislation.[47] Because of the volume of conflicting opinion concerning the effectiveness of handgun regulation, nearly any legislative conclusion could be justified by that standard.
Legislative Considerations
Two of the most important issues for legislative consideration are effectiveness and expense. The bulk of the literature on the appropriateness of handgun regulation has focused on these issues. There has been and continues to be a veritable statistical battle[48] over the effectiveness of licensing and registration systems in achieving their stated objectives of reducing crime and limiting access handguns.
A major part of the handgun controversy has centered on whether regulation of handguns has made any appreciable impact on crime rates.[49] Part of the problem is that there are numerous difficulties with any attempt to correlate handgun regulation with crime rates. Significant demographic and cultural differences as well as differences in enforcement techniques make valid comparisons both doubtful and problematic.[50] One of the most serious flaws in attempting to correlate state crime statistics with state handgun regulations is the failure to account for local regulations which impose more stringent requirements than the state laws.[51] Thus it is impossible to assess the impact of handgun regulation on crime rates with anything approaching scientific precision, simply because there is no way, to establish a control group. For example, New York may experience a high crime rate despite comparatively stringent handgun regulation, but it is impossible to determine what the crime rate would be under a different regulatory system.
Some commentators have attempted to imply a cause and effect relationship between handgun regulation and crime rates.[52] While [Page 427] no one has suggested that more lenient handgun regulation would reduce crime rates, it is often asserted that handgun regulation has no discernible impact on crime rates, thus making regulations irrelevant.[53] However, while it is true that there is no clear statistical support for the notion that handgun regulation actually reduces the rate of violent crime, there is some support for the conclusion that deaths resulting from violent crime are lower in states with stricter regulation of handguns.[54]
One of the biggest obstacles to assessing the effectiveness of handgun regulation is the lack of nationwide uniformity. For example, Washington, D.C. has "at appears to be a strict handgun registration law,[55] but it is easily circumvented by travelling a few miles to neighboring Virginia or Maryland. The paradox of handgun regulation is that nothing less than nationwide regulation can possibly be effective, yet federal legislation similar to the more stringent local regulations is perceived as impermissibly intrusive.[56]
Consideration of the effectiveness of handgun regulation should not be limited to the study of crime statistics. For example, law enforcement officials in Boston like the Bartley-Fox Act[57] because it gives them a means of getting known criminal off the street even when other substantive charges cannot be proved.[58]
It is generally agreed, and statistically supported, that licensing and registration statutes do not significantly affect access to hand- [Page 428] guns.[59] However, while determined people win find a way to circumvent any system of handgun regulation devised, not all dangerous people are that determined, and there may be some value in delaying those who are.[60]
The issues of the effectiveness of handgun regulation and their validity in light of their expense are interrelated, since the public is likely to tolerate only minimal expense for measures of unproven effectiveness. While the presence of state and local regulatory schemes serves to cloud the effectiveness issue, these smaller scale experiments provide legislators with important and useful data in assessing the expense and administrative requirements of various registration and licensing systems.
The major expense involved with registration and licensing statutes is the background check. A recent study determined that the cost of a record check, which is often limited to a check of criminal records, generally ranges from $1.90 to $5.30 per unit.[61] The cost varies with the thoroughness of the check and the extent to which records are computerized.[62] However, one might expect that the average cost of a record check will approach the lower end of the current range as computerized state records become more widely used. This level of expense can be readily met by the collection of a reasonable application fee.
Astronomical predictions sometimes made with regard to the expense of "gun control"[63] are based on two erroneous assumptions. The first assumption is that mass confiscation of handguns win entail the expenditure of huge sums to reimburse citizens for their weapons. The second assumption is that because large numbers of people will not comply with handgun regulations, large expenditures for court costs and for building new prisons will be necessary. However, because the estimates are based on a confiscatory pro- [Page 429] gram, they are not relevant for legislative consideration of the advisability of registration or licensing systems. Furthermore, the actual experience of states and municipalities which have licensing or registration provisions contradicts the fears of the expenses which such programs entail.
The handgun regulation issue highlights one of the classic dilemmas of representative government: should legislators act solely as representatives of the views of their constituents, or should they direct their efforts toward the achievement of some greater public good?[64] If they are to represent the views of their constituents, how do they accurately determine what those views are?
Two important means for legislators to discern public opinion are letter volume and public opinion polls. Historically, letter volume has not been an accurate barometer of public opinion on the issue of handgun regulation because of the financial strength and organization of a few powerful groups who oppose handgun regulation.[65] Claims that this blizzard of correspondence is democracy in action[66] would be more convincing if there was a demonstrable concurrence in public opinion polls on the issue of handgun regulation. Care must be taken, as with all statistical data, in the interpretation placed upon the results of public opinion polls. A recent study compared the results of two opinion polls, one commissioned by a group opposing handgun regulation and the other commissioned by a group favoring handgun regulation.[67] The study concluded that de spite biases in selection and phrasing of questions asked, the results were strikingly similar in their reflection of basic support for licensing and registration provisions.[68] Another study of twelve surveys conducted between 1959 and 1977 revealed a constant 75% level of support over the years for the requirement of a police permit to purchase a gun.[69]
Another significant expression of public opinion occurs with the election of lawmakers. As with letter campaigns, this is an area in which special interest groups have used their financial and organizational resources to exert influence which is disproportionate to their membership numbers.[70] While one may have faith in a lawmaker’s ability to rationally weigh the inferences of information conveyed by letter or by poll, one fears that campaign contributions may overcome concern with either accurate representation of constituent views or concern for the greater public good.
One of the most persistent and emotional issues in the debate over handgun regulation is the fear that registration will lead to confiscation, and that regulation of handguns will lead to regulation of longguns.[71] The drafters of California Proposition 15 acknowledged these fears and attempted to guarantee that they would not materialize, but their efforts did not convince the voters who rejected the initiative.[72]
The confiscation issue is merely illustrative of the highly emotional nature of the discussion surrounding handgun legislation. While emotion may serve as a sound basis for decision-making in some contexts, it is clearly not the appropriate basis for legislative determinations. Careful consideration of law policy and the facts, along with a willingness to be innovative, will permit legislators to make a reasonable beginning toward the goal of reducing handgun violence.
Mary K. Mills
1. Concealed weapons, as defined by statute, include such items as knives, blackjacks, slingshots and brass knuckles as well as handguns. Forty-nine states have statutory or constitutional prohibitions of concealed weapons or require a permit to carry a concealed weapon. A. GOTTLIEB, THE RIGHTS OF GUN OWNERS 82-142 (1981).
2. Statistics from three major cities reveal that an average of 67% of guns used in homicide, robbery and assault had barrels of less than three inches. Cook, The "Saturday Night Special An Assessment of Alternative Definitions from a Policy Perspective, 72 J. CRIM. L. & CRIMINOLOGY 1735, 1743 (198 1).
3. In an ambiguously motivated attack, death is five times more likely to occur with a gun than a knife. Zimring, Is Gun Control Likely to Reduce Violent Killings?, 35 U. CHI. L. REV. 721, 728 (1968).
4. "[D]espite the fact that there are about throe times as many longguns as handguns in circulation, handguns dominate the gun crime statistics, accounting for more than three quarters of the gun murders and assaults and more than 90 percent of the gun robberies."
Cook & Blose, State Programs for Screening Handgun Buyers, 455 ANNALS 80, 82 (1981).
5. "[T]he legislature shall have the power, by law, to regulate the wearing of arms with a view to prevent crime." TENN. CONST. art. 1, § 26, TEX CONST. art. 1, § 23.
6. For a general description of the statutes of various states, see GOTTLIEB, supra note 1, at 82-142.
7. WASH. REV. CODE ANN. 9.41.070(Supp. 1983-84).
8. N.Y. PENAL LAW §§ 400.00 to -.05 (McKinney 1980 & Supp. 1982-83).
9. Id. § 400.00(1) (McKinney 1980).
10. Id. § 400.00(2)(f) (McKinney Supp. 1982-83).
11. N.J. STAT. ANN. § 2C:58-3 (West 1982).
No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card. . . .
N.J. STAT. § 2C:58-3(c) (1981).
12. N.J. STAT. ANN. § 2C:58-4(c) (West 1982). The applicant must provide three character references, be familiar with the safe handling of firearms and demonstrate justifiable need. Id at (b)-(c). Justifiable need was construed in Siccardi v. State, 59 N.J. 545, 284 A.2d 533, 540 (197 1) to mean security work or urgent necessity such as actual threats to the individual’s life.
13. MASS. GEN. LAW ANN. ch. 140, § 129B (West Supp. 1982-83)(firearm ID card); ch. 140, § 131 (West 1975)(license to carry/possess); ch. 269, § 10 (West Supp. 1982-83)(mandatory sentence).
14. D.C. CODE ANN. § 6-2301 to -2321 (1981).
15. Proposition 15, 1982 Cal. Adv. Legis. Sm. 1114 (Deering).
16. ILL. ANN. STAT. ch. 38, § 83-2 (Smith-Hurd 1977).
17. CHICAGO, ILL-, ORDINANCE ch. 11. 1 (1982).
18. E.g., Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 525 (1968), appeal dismissed, 394 U.S. 812 (1969).
19. Id.
20. "[T]he NRA itself concedes in a pamphlet prepared by the NRA’s Legislative
Information Service: ‘Because of judicial precedent then, the constitutional argument . . . is of limited practical utility.’" R. SHERRILL, THE SATURDAY NIGHT SPECIAL 226 (1973).
21. "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." U.S. CONST. amend. 11.
22. United States v. Cruikshank, 92 U.S. 542, 553 (1875).
23. Presser v. Illinois, 116 U.S. 25Z 264-65 (1886).
24. Miller v. Texas, 153 U.S. 535 (1894).
25. Id. at 538.
26. United States v. Miller, 307 U.S. 174 (1939).
27. Id. at 178.
28. Constitutional scholar Laurence Tribe relegates discussion of the second amendment to a single footnote in his treatise:
[T]he sole concern of the second amendment’s framers was to prevent such federal interferences with the state militia as would permit the establishment of a standing national army and the consequent destruction of local autonomy. Thus, the inapplicability of the second amendment to purely private conduct, [citing Cruikshank, Presser, and Miller], comports with the narrowly limited aim of the amendment as merely ancillary to other constitutional guarantees of state sovereignty.
L. TRIBE, AMERICAN CONSTITUTIONAL LAW 226 n.6 (1978).
The Court of Appeals for the Third Circuit stated the following:
It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachment by the federal power.
United States v. Tot, 131 F.2d 261, 266 (3rd Cir. 1942), rev’d on other grounds, 309 U.S. 463 (1943).
29. Miller, 307 U.S. at 178.
30. Id. Some courts and commentators assumed the converse to be true, that any weapon with a legitimate militia use was protected by the second amendment. This interpretation has led to two equally absurd conclusions. According to the historical literalist view, only antique muskets and similar weapons would receive second amendment protection. According to the other view, people would be entitled to keep bazookas in their backyards. The court in United States v. Warin, 530 F.2d 103, 105 (6th Cir.), cert denied, 426 U.S. 948 (1976), rejected both conclusions and called on the courts to make case by case determinations regarding the protection accorded individual types of weapons.
31. The cases reviewing licensing or registration statutes have contained no dissenting opinions on the second amendment issue. The Supreme Court has been silent on the second amendment issue since it decided Miller in 1939 and has refused to hear several cases in which the second amendment issue was presented.
32. E.g., Hays, The Right to Bear Arms, A Study in Judicial Misinterpretation, 2 Wm. & MARY L. REV. 381 (1960); Hardy, The Second Amendment as a Restraint on State and Federal Firearm Restrictions, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT. 171-85 (D. Kates ed. 1979); Halbrook, The Jurisprudence of the Second and Fourteenth Amendment, 4 GEO. MASON U L. REV. 1 (1981).
33. "[T]he United States Supreme Court would seem logically and historically compelled by the fourteenth amendment to recognize that the fundamental right to keep and bear arms is protected from states’ infringement, just as this right is protected from national infringement by the second amendment." Halbrook, supra note 32, at 65.
34. "Reasonable gun control legislation is clearly within the police power of the State and must be accepted by the individual though it may impose a restraint or burden on him. On balance, the interests of the State are manifestly paramount." Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 531 (1968), appeal dismissed, 394 U.S. 812 (1969).
35. E.g., United States v. Warin, 530 F.2d 103,106 (6th Cir.), cert. denied, 426 U.S. 948 (1976).
36. "[E]ven the First Amendment has never been treated as establishing an absolute prohibition against limitations on the rights guaranteed therein." Id. at 107. This issue was also addressed by the United States Supreme Court in an earlier decision:
The law is perfectly well settled that . . . the Bill of Rights (were intended] to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions . . . . In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions . . . . Thus, the freedom of speech and of the press . . . does not permit the publication of libels, blasphemous or indecent articles . . .; the right of the people to keep and bear arms . . . is not infringed by laws prohibiting the carrying of concealed weapons. . . .
Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897)(dictum).
37. ‘The safeguards of the equal protection doctrine vary in degree depending on the nature of the right being affected by the legislation. In our view, legislation restricting the possession of firearms ‘* * * will not be set aside if any state of facts reasonably may be conceived to justify it.’" United States v. Synnes, 438 F.2d 764, 771 (8th Cir. 1971) (footnotes. omitted). "[T]he right ot bear arms is not the type of fundamental right to which the ‘compelling state interest’ standard attaches." Id. at 771 n.9.
Although Synnes dealt with federal firearms legislation and the equal protection clause of the fifth amendment, the same rationale applies to state firearms regulation and the fourteenth amendment. See, e.g., Marchese v. California, 545 F.2d 645, 647 (9th Cir. 1976).
38. E.g., Synnes, 438 F.2d at 771; Marchese, 545 F.2d at 647; United States v. Craven, 478 F.2d 1329, 1339 (6th Cir. 1973).
39. Citizenship approved as classification, State v. Beorchia, 530 P.2d 813 (Utah 1974) and State v. Vlacil, 645 P.2d 677 (Utah 1982); alienage rejected as classification, State v. Chumphol, 634 P.2d 451 (Nev. 1981X requirement that two freeholders [property owners] identify firearm purchaser struck down as arbitrary classification, Hetherton v. Sears Roebuck & Co., 652 F.2d 1152 (3rd Cir. 1981); lifelong prohibition of gun ownership for any individual who has ever been hospitalized for mental illness upheld, but legislative examination recommended because reactive depression is so common and seeking treatment so Commendable, In re David H., % Misc. 2d 117, 408 N.Y.S. 2d 759 (County Ct. 1978).
40. See GOTTLIEB, supra note 1, at 82-142 for relevant constitutional provisions in each state.
41. See generally Comment, The Impact of Slate Consillutional Right to Bear Arms Provisions on State Gun Control Legislation, 38 U. CHI. L. REV. 185 (1970).
42. "No law shall impose licensure, registration, or special taxation on the ownership or possession of firearms or ammunition." IDAHO CONST. art. 1, § 11.
43. OHIO CONST. art. 18, § 3.
44. MINN. STAT. §§ 624.717, 624.718. (1980).
45. Doe v. City & County of San Francisco, 136 Cal. App. 3d 509, 186 Cal. Rptr. 380 (1982). The court found that the state has preempted both registration and licensing, and also that the local regulation was in conflict with the state permit requirements.
Federal preemption in the field of handgun regulation is not an issue. The Gun Control Act of 1968 is an acknowledged minimum, and further regulation, both state and local, was expected and encouraged. "The main purpose of the Gun Control Act of 1968 was to create a federal regulatory environment in which the states would have a real choice concerning gun control." Cook .& Blose, supra note 4, at 86.
46. Burton v. Sills, 53 N.J. 86, %, 248 A.2d 521, 531 (1968), appeal dismissed, 394 U.S. 812 (1969); Brown v. City of Chicago, 42 Ill. 2d 501, 250 REM 129, 132-33 (1969).
47. Burton, 53 N.J. at 90, 248 A.2d at 525; McIntosh v. Washington, 395 A.2d 744 (D.C. 1978).
48. "[L]et’s go into the field of statistics and do battle with the Liberals in that arena." P. COURTNEY, GUN CONTROL MEANS PEOPLE CONTROL 31 (1977).
49. Zimring, Games with Guns and Statistics, 1968 WIS. L. REV. 1113.
50. Greenwood & Magaddino, Crime, Suicide, and Accidents: Some Cross-National and Cross-Cultural Comparisons, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT, 35-37, 67 (D. Kates ed. 1979).
51. State by state analysis was presented in Murray, Handguns, Gun Control Laws and Firearms Violence, 23 Soc. Prob. 81 (1976). This data formed the basis of a discussion in Comment, A Farewell to Arms? An Analysis of Texas Handgun Control Laws, 13 ST. MARY L.J. 601 (1982).
52. Comment, supra note 51, at 612-13. While the inference was not directly drawn, Vermont’s low crime/murder rate and lenient handgun laws were juxtaposed with New York’s high crime/murder rate and stringent laws in a suggestive manner. In fact, one writer asserts, without explanation, that New York’s laws "do not decrease, and may increase violent crime." Kates, Gun Control: The Good Outweighs the Evil, 3 CIV. LIB. REV. 44, 56 (June/July 1976).
53. Murray, supra note 51.
54. Looking at the data in Comment, supra note 51, at 619, one might compare the violent crime/murder statistics of Texas and New Jersey and conclude that since their violent crime rates are similar (507.9 for Texas and 501.2 for New Jersey) but their murder rates are dissimilar (Texas, 16.7 and New Jersey, 6.6), perhaps New Jerseys handgun regulations have a significant life-saving effect. Also, studies have shown that government record-keeping of new purchases seems to have some deterrent effect on the rates of aggravated assault and robbery. GREENWOOD & MAGADDINO, supra note 50, at 66.
55. D.C. CODE ANN. § 6.2301 (1981).
56. "Me impact upon privacy of a national system of computerized and police-available information containing fingerprints, photographs, and psychiatric and police contact information on half the households in the nation, is an issue worthy of extensive consideration." Kates, Hardy & Chotiner, The Potential for Civil Liberties Violations in the Enforcement of Handgun Prohibition, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT 212 (D. Kates, ed. 1979).
57. MASS. GEN. LAW ANN. ch. 269, § 10 (West Supp. 1982-83).
58. The Milwaukee Journal. October 17, 1982, at 1.
59. Murray, supra note 51. This should encourage those who correctly assert that criminals will always have access to guns, since it seems clear that most licensing and registration statutes do not significantly affect law-abiding citizens access to handguns either.
60. Cook & Blose, supra note 4, at 91.
61. Id. at 88-89.
62. Id.
63. "[I]t is estimated that the cost of ‘buying back’ confiscated handguns would be $10.8 billion." GOTTLIEB, supra note 1, at 17.
Another estimate breaks down costs: compensation, $2-8 billion per year, arrests and processing, $5 billion per year, prosecution and trial, $4.5 billion per year, corrections facilities, $.66 billion one-time cost plus $.2 billion per year. Benenson & Hardy, Critiquing the Case for Handgun Prohibition, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT 67, 87-88 (D. Kates, ed. 1979).
64. J.S. MILL, Representative Government ch 12 (1861), in THREE ESSAYS 323-34 (Oxford Univ. Press pp. 3d. ed. 1975).
65. "Dollar for dollar the NRA is probably the most effective lobby in Washington . . . . Its officials have boasted that they can get their million members to hit Congress with at least half a million letters on seventy-two hour notice . . . . But this shows only ‘shock troop’ opinion, not general public opinion. . . ." Sherrill, supra note 20, at 195-96.
66. Kates, Toward a History of Handgun Prohibition in the United States, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT 27 (D. Kates, a 1979).
67. Wright, Public Opinion and Gun Control A Comparison of Results From Two Recent National Surveys, 455 ANNALS 24 (1981).
68. "[L]arge majorities favor any measure involving the registration or licensing of handguns, both for new purchases and for handguns presently owned." Id. at 38.
69. Smith, The 75% Solution: An Analysis of the Structure of Attitudes on Gun Control 1959-1977, 71 J. CRIM. L. & CRIMINOLOGY 300 (1980).
70. "Within recent years the gun lobby has fine-tuned the art of political intimidation." C. ORASIN, HANDGUN CONTROL AND THE POLITICS OF FEAR IN THE ISSUE OF GUN CONTROL 101 (Draper, ed. 1981).
71. Polls show roughly half the population surveyed expressed these fears. Wright, supra note 67, at 37. See also COURTNEY, supra note 48. But see SHERRILL, supra note 20, at 176-81 for a debunking of the myths behind this assertion.
72. "(5) The people of the state of California understand the fears of many voters that gun control laws, while beginning with registration, some day will end with confiscation. By enacting this initiative, the people of the state of California can for the first time guarantee that this fear cannot come true. The people of the state of California here forbid their elected representatives in the Legislature from ever passing any laws to take registered handguns away from law-abiding citizens. The people do not intend that this initiative will be a first step toward any confiscatory gun control legislation. (6) The people of the state of California recognize that most firearms are long rifles and shotguns, which have many lawful uses in such recreational sports; as hunting, and in self-protection as well. By enacting this initiative, law-abiding people are guaranteed the right to own and purchase long rifles and shotguns without limitation. Through this initiative, the people attempt only to put reasonable regulations on concealable handguns and to prevent their use in the commission of crimes." Preamble, Proposition 15, 1982 Cal. Adv. Legis. Serv. 1114 (Deering).