Harvard Journal on Legislation
Book Review, 31 (1994): 529.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
LETHAL PASSAGE: HOW THE TRAVELS OF A SINGLE HANDGUN EXPOSE THE ROOTS OF AMERICA'S GUN CRISIS. BY ERIK LARSON. NEW YORK: CROWN, 1994. PP. 230, INDEX. $21.00 CLOTH.
Recently, members of Congress and activists have clamored for firearm regulations that go beyond waiting periods. In his book, Lethal Passage, Erik Larson joins this chorus. He proposes new federal legislation, which he calls the "Life and Liberty Preservation Act," to regulate more closely the distribution, purchasing, and design of guns. As background to his proposed legislation, Larson tracks a single gun¾the Cobray M-11/9¾through its lethal, but nearly legal, passage from the enterprising minds of its engineers to the calculating hands of a murderer. The journey of the Cobray exposes the inadequacy of current federal firearms law. The inadequacies of Larson's solutions, however, also emerge. For Larson's legislative proposal cannot deliver what its title promises. Nonetheless, Lethal Passage raises vital issues about the control of firearms.
Larson's review of the current licensing procedures of federal firearms dealers provides rich fodder for those who challenge them. Under current federal law, acquiring a federal license to deal firearms is simple. An applicant needs neither knowledge about firearms nor a plan to sell guns. Larson himself secured a dealer's license for a $30.00 fee from the Bureau of Alcohol, Tobacco and Firearms (ATF) by mail in just six weeks (p. 126). Disturbed by ATF's laxity, Larson believes current licensing law encourages gun enthusiasts to become "dealers" regardless of whether or not they actually deal. 245,000 Americans currently hold dealing licenses (p. 97).
Because he believes a gun dealership license should be "the hardest, most expensive professional license to acquire in America, instead of one of the easiest and cheapest," Larson wants to toughen the licensing process (p. 17). His measure would increase the licensing fee for gun-dealership from the current level of $30.00 to $2,500 (p. 218). Furthermore, under Larson's proposal, all prospective gun dealers would be required to take a mandatory firearms course (p. 218). Inspectors would visit the business premises of all prospective dealers (p. 219). A dealer would have to demonstrate annual revenue from gun sales of at least $1,000 (p. 218). Finally, Larson advocates his own version of "three strikes and you're out." After three record-keeping [Page 530] violations within one year, a dealer would lose his license (p. 218).
Larson's licensing plan deserves limited attention. While the ease with which dealers obtain licenses seems intuitively wrong, there are currently 245,000 dealers operating in a country of 66.7 million guns (p. 19). Larson offers no demonstration or proof that reducing the number of dealers will reduce crime. Furthermore, despite its shining optimism, Larson's plan has a tragic flaw: it ignores cost. Courses, frequent inspections, and toll-free licensing hotlines are expensive. The increased licensing fee will cover some but not all costs. Federal funds for dealer regulation might be better spent on other social programs.
Larson aptly draws attention to the inadequacies of current law in the purchasing procedure of guns but offers questionable replacements. Larson criticizes Federal Form 4473, which ironically relies on the gun purchaser herself to reveal whether she is a drug addict, a convicted felon, mentally ill, or an illegal alien or whether she has renounced U.S. citizenship or been dishonorably discharged from the armed forces. Under current law, Larson adds, the form stays in the records of the dealer unless ATF traces the gun (p. 94). Larson also mildly criticizes ATF but relies on it to enforce his reforms. He regrets that ATF must behave at times like "an indulgent parent" (p. 121) and laments its reluctance to revoke licenses despite the discovery of violations in ninety percent of the 8,471 dealerships inspected in 1990 (p. 144). Implicit in Larson's reliance on ATF in his proposed legislation may be a hope that ATF will change its attitude and enforcement tactics with a new set of laws.
That proposed new set of laws includes a ten-day waiting period for the purchase of a gun, although Larson is skeptical of the Brady Bill. Signed into law on November 30, 1993, the Brady Bill requires each state to enact a five- day waiting period for the purchase of a handgun. Although he prefers ten days, Larson calls the waiting period a "welcome pause in gun transactions" (p. 222). His greater concern is the bill's requirement that the Attorney General develop a national instant criminal background check system in five years to replace the waiting period. "This is an optimistic expectation," Larson writes, "given the complexity of developing any computer system capable of searching the databases of fifty states in any period of time even [Page 531] broadly qualifying as 'instant.' " (p. 222). Preliminary evidence suggests that Larson may be right. In February 1994, only seventeen percent of United States criminal records were ready to go into the system.
By establishing a licensing procedure for gun purchasers, Larson would change existing practice dramatically. Every prospective gun purchaser would have to obtain a license (p. 220). To qualify for the license, a prospective gun owner would take a course certified by ATF in firearms safety and law. Licensees would have to renew their licenses every five years (p. 221). Because it would preclude Form 4473, a license would prevent at least some illegal purchases. Yet licensing involves a trade-off; Larson overlooks the cost of licensing. He admits that ATF would charge a licensing fee. To avoid diverting funds from other sources, however, the licensing fee would have to be high.
Furthermore, the costs of a licensing program would not be solely monetary. The incentive to obtain a gun illegally¾ exactly what Larson tries to avoid¾might actually increase if the cost of obtaining one legally goes up. A licensing program for gun owners may represent an invasion of gun owners' privacy. Larson's last book, The Naked Consumer: How Our Private Lives Become Public Commodity, analyzed the federal government's cozy relationship with direct mail order companies. Surprisingly, Larson does not even address privacy in Lethal Passage.
Larson includes some other questionable measures in his set of proposals. Although he offers no reason, he raises the minimum age for acquiring a rifle from eighteen to twenty-one (p. 221). Larson also endorses federal liability laws to hold parents criminally responsible if their children wound themselves or others with an improperly stored firearm (p. 222). At the state level, however, these laws have been criticized for their ineffectiveness and failure to deter.
Although some of his ideas do not seem to have been thought through thoroughly, one sound recommendation in Larson's purchasing reform proposal limits handgun purchases to one a month. After passing a similar measure, South Carolina dropped to the [Page 532] bottom of ATF's list of states supplying handguns to New York (p. 210).
In the third part of his proposal, Larson urges various other reforms in gun design. Again, these ideas are doubtless well-intended. He advocates "restriction of the firepower of consumer guns" and demands safer designs (pp. 222-23). He gives few details, however, and specifically mentions only a ban on silencers and a limit on magazine capacity (p. 223). Larson's proposals would likely prove costly. He advocates employing the Consumer Product Safety Commission to monitor firearms accidents and defects and supports more studies on which guns criminals use (p. 223). Yet, he does not explain how to pay for these costly reforms. Moreover, Larson's proposals for design reform may have the opposite effect from what he intends. By increasing the tax on machine guns from $200, set in 1934, to $500, Larson's plan may discourage legal purchases (p. 223).
By requiring police departments to report to ATF the manufacturer, model, and serial number of every gun used in every crime, when only ten percent are traced now, Larson's plan might keep police off the streets and in offices (p. 153). This last criticism indicates a central flaw in Larson's plan¾its failure to recognize the role of local law enforcement in the great gun war. His proposal to repeal all existing state, county and city regulations of firearms for a uniform approach, for example, is quite troubling (p. 217). In his quest to "preserve liberty," Larson pierces one of its central tenets¾federalism. He misleads the reader by glossing over the impact and effect of various state regulations. He only briefly notes that twenty-two states already have waiting periods for handgun purchases and relegates many state regulations to parentheses. By not covering these regulations more fully, Larson obscures state concerns. By advocating national firearms law only, he assumes Massachusetts and Mississippi, for example, should approach firearms regulation identically. As a result of this uniform, federal bias, experiments and successes in states and localities get short shrift in Lethal Passage; Project Detroit, for example, a joint effort by Detroit police and ATF, which led to successful prosecutions of ten federal firearms licensees, is one of the few mentioned (pp. 149, 151). The exclusion of the states in Larson's solution to the gun crisis is its greatest weakness.
For all the flaws in his Life and Liberty Preservation Act, however, Lethal Passage merits attention. It provides an excel-[Page 533] lent background for readers concerned about the current gun crisis. An early chapter entitled the "Lethal Landscape" produces grim statistics to paint a vivid picture of the scope of gun violence (p. 15). In 1992 and 1993, Larson reports, guns killed 70,000 Americans, more than the total of all American soldiers killed in the Vietnam War (p. 17), and wounded 150,000 (p. 18). In Los Angeles County alone, over 8000 people were killed or wounded by guns in a single year (p. 17). The increases in the number of handguns in the country since 1960 are also startling. In 1960, there were 16 million handguns. Just ten years later, that figure jumped to 27 million, and as of 1989, there were 66.7 million (p. 19).
To his credit, Larson pays particular attention to the increasing familiarity of children with guns. Between 1965 and 1990, for example, the number of teenagers arrested for homicide increased by 332% (p. 20). Young people in America are particularly likely to be victims of gun homicides. Larson contrasts the gun homicide rate of young men in America of 21.9 per 100,000 to Canada's 2.9 per 100,000 and Japan's 0.5 per 100,000 (p. 20). Larson also cites a study which compared the role of guns in crime in the 1980s in Seattle, Washington, and Vancouver, British Columbia. Although these cites had similar economies, similar demographics, similar television programs and movies, Vancouver had much stricter gun laws. According to Larson, as a consequence, handguns were eight times more likely to be used in assaults in Seattle, and Seattle's homicide rate was five times higher than Vancouver's (p. 22).
As a useful framework, Larson traces the Cobray M-11/9, a semiautomatic assault weapon, from its invention to its use in a school murder. He explains how the manufacturer of the gun, S.W. Daniel, developed the Cobray, sought approval from ATF, and marketed it as the "Gun that Made the Eighties Roar." Larson makes the industry accessible to readers unfamiliar with firearms terminology. Larson selects an infamous gun but avoids generalizing about all guns. Moreover, even though Larson chooses to trace a particularly ominous gun, he selects an unusually sympathetic gunman. Lethal Passage tells the story of sixteen-year-old Nicholas Elliot, who used a Cobray bought for him by his cousin to kill one teacher and wound another at Atlantic Shores Christian School in Virginia Beach, Virginia. Larson evokes sympathy for Elliot, in part, by using the word "boy" to describe him in the first line of the book (p. 1), and in part, by [Page 534] recounting the testimony of Elliot's psychiatrist, who described the attack on the school as the "accumulation of all of [Elliot's] repressed and suppressed emotions" (p. 10). Larson intentionally portrays Elliot as a victim himself, and does not even attempt to portray him as a representative murderer. Furthermore, by choosing a crime at a Christian school, far from urban unrest, "as sheltered a place as one could possibly find" (p. 8), Larson tries to show that middle-class America also loses in the gun war. We come away believing, however, that perhaps the real problem is that middle America has not yet lost much in this war whose battles are fought in low-income communities. Still, although it may not be representative, Larson's narrative adds a human dimension to Lethal Passage.
Larson does recognize that America's problems with guns may be symptoms of other societal ills. He places some blame, for example, on the American gun culture. He writes "[r]each out, the culture cries, and kill someone" (p. 5). Movies and television have indeed created a "gun culture," albeit a culture with a distorted view of reality. Homicides in the "Wild West," for example, were much more rare than Hollywood suggests. Larson notes that only forty-five homicides occurred from 1870 to 1885 in the "fabled towns" of Abilene, Caldwell, Dodge City, Ellsworth, and Wichita, only 0.6 killings per town per year (p. 41). Nonetheless, guns themselves became film stars, some even capturing top-billing film titles like "The Gun that Won the West" (p. 49). In spite of these disturbing, yet distinctly Hollywood trends, Larson, ever the journalist, does not advocate regulation of today's television and movie violence. He includes this section merely for intellectual interest, and to support his contention of the existence of an all too real, all too effective, and all too pervasive "gun culture."
Larson decries the role of gun magazines, a vital part of this culture, in providing equipment and literature for enthusiasts. His killer, sixteen-year- old Nicholas Elliot, only had to "turn to the back pages of his treasured gun magazines, where advertisers peddle all manner of lethal know-how," including ammunition, instructions on how to make ammunition, daggers, gun parts holsters, and slings (p. 167). Larson describes Paladin Press, which markets and sells books about land mines, revenge, acquiring a new identity, survival and firearms (p. 168). Larson writes that Paladin's books are "well-known to police, who have found them in the libraries of serial killers and bombers" (p. [Page 535] 169). ATF agents, according to Larson, routinely search for books from this industry when investigating bombing suspects (p. 176). That young children are reading Paladin's books, however, troubles Larson most (p. 177). Larson describes serious accidents¾many involving children¾resulting from use of these books (p. 177). A scientist who studies the link between such literature and crime told Larson that he had "come to expect bombers, killers using exotic weapons, mass murderers and political-extremist offenders to have a level of familiarity with the violence industry, including Paladin Press, equivalent to the familiarity of sex offenders with pornography" (p. 178). He also interviewed Paladin's owner, Peter Lund, who maintains that readers buy his books as a fantasy escape and refuses to take any responsibility for misuse of information in Paladin books or to take "moral culpability" for crimes committed because of them (p. 173).
Unfortunately, but perhaps inevitably, Larson offers no solution to what he obviously finds troubling about these books and the large industry of which they are a part. He writes that this industry, called the "gun aftermarket," is "nurtured by America's infatuation with violence and sheltered by the free- speech guarantees of the First Amendment." (p. 169). Larson offers no legislative solution because any statute would, of course, clash with the First Amendment. Instead he hints that companies like Paladin Press could and should be prosecuted (p. 180).
Larson recognizes that Congress cannot legislate a mindset or a culture. It would be unfair, however, to dismiss his legislative recommendations for better regulation of gun distribution, purchase, and design for this reason. He does not guarantee an end to crime through gun control and readily acknowledges that solving the gun crisis itself "requires far more fundamental change" (p. 229). Still, he proposes a potentially expensive, national program. With other programs that may reduce crime, like low income housing, education, traditional law enforcement and health care, competing for the federal dollar, Larson's suggestions should be examined with caution. Nonetheless, his recommendations deserve attention and consideration as Congress considers any future firearms legislation.
1. 18 U.S.C.S. § 922 (Law. Co-Op 1993 & Supp.1994).
2. Only 17 Percent of Records Ready for Brady Law, LEGAL INTELLIGENCER, Feb. 11, 1994 at 31.
3. Ann Marie White, A New Trend in Gun Control, 30 HOUS.L.REV. 1389, 1392 (1993).