Kates & Kopel -- new articles
Don Kates and David Kopel have articles in the current issue of Bridges: An Interdisciplinary Journal. I've posted the text (sans footnotes) of Don's article in the extended remarks below. Dave's article, "The Scottish and English Religious Roots of the American Right to Arms," is available in pdf on his website.
© DBK 2005 4,609 words
THE HOPELESSNESS OF TRYING TO DISARM
THE KINDS OF PEOPLE WHO MURDER
By Don B. Kates
Whether or not universal civilian disarmament is desirable, it is impossible.
Violent crime is confined to a relatively small number of lawless aberrants who cannot be disarmed (though gun possession should continue to be illegal for them). Neither can ordinarily law-abiding, responsible adults who believe guns necessary to defend themselves and their families be disarmed. The social and enforcement costs of trying to disarm the law abiding adult population would be enormous and divert enormous resources from law enforcement against criminals.
Don B. Kates who practices constitutional and civil liberties law is a criminologist and a former professor of Constitutional and Criminal Law. He has taught at Stanford and St. Louis Universities, and lectured or spoken on gun control at Oxford, the Australian Institute of Criminology, and the Universities of Western Australia, and Melbourne as well as Bowdoin, Georgetown, Duke Harvard, Kenyon, Minnesota, N.Y.U., Stanford, and Yale, inter alia. His latest book is ARMED: NEW PERSPECTIVES ON GUN CONTROL (2001) co-authored with Prof. Gary Kleck.
KEYWORDS: gun control; gun bans; gun crime; enforcement; unenforceability;
murderers; self-protection; foreign gun laws.
I have two replies when as a criminologist studying firearms issues I am asked would the world not benefit if there were no guns? First, 1200 years ago there were no guns. Yet, for excellent reasons, that period in Europe has been called the Dark Ages. Firearms are the only weaponry by which the weak can resist the strong. Their absence was characterized by oppression and massacre not peace.
Second, I advise those wanting a world without guns to pray. If there is a God, He can eliminate guns. All banning guns to the general populace can accomplish is disarming the law abiding, leaving the lawless armed.
Ducking the Enforcement Problem
There are literally thousands of articles proclaiming how wonderful it would be if guns just disappeared. I know of none undertaking to explain how nations can successfully confiscate guns from a resistant citizenry, much less from thugs. Only a very few of these thousands of articles even mention the enforcement problem. One 10,000 word article devotes just a paragraph to the problem -- and just two words to solving it: That illuminating solution is "strict enforcement."1
Typical of the very few discussions treating the problem seriously is one bya former head of the American Civil Liberties Union. His philippic against guns ends by woefully admitting bans are unenforceable within our Bill of Rights.2 Others, less dedicated to civil liberties, implicitly or explicitly admit the same by advocating "unlimited search and seizure ... the police will have to be given the right to frisk anyone for hidden guns at any time and any place;.3The ardently anti-gun JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION reports without demurrer a call by the president of the Los Angeles Medical Association for a "'military attack'" on minority areas: "'make a sweep through those neighborhoods, take all the weapons...’"4
A Dubious Assumption, an Erroneous Assertion
Some gun ban advocates frankly concede "No amount of control will stop a determined assassin -- or a determined street robber -- from getting a gun."5 To blunt the force of this they blithely assume enforcement will be unnecessary to disarm the millions of ordinary American gun owners since they will voluntarily surrender the guns they think essential to family defense in a nation beset with violence. From this dubious assumption, anti-gun advocates reason that disarming ordinary people will diminish murders which they (wrongly) think are primarily
not committed by felons or mentally ill people, but are acts of passion that are committed using a handgun that is owned for home protection
That gun in the closet to protect against burglars will most likely be used to shoot a spouse in a moment of rage....The problem is you and me -- law-abiding folks.6
Actually killers are virtually never "law abiding folks." So all disarming such folks accomplishes is reducing their capacity to protect their families. Perpetrator studies invariably show persons involved in life-threatening violence ... almost always have a long history of involvement in criminal behavior,"7 and/or psychopathology and substance abuse. Studies by he Kennedy School at Harvard show as many as 95%of killers are violent gang members or were arrested for prior crimes; 89% had been arrested for armed violent crime.8 And, unlike ordinary people, the other 5% (and many of the 95 percent as well) have sanity problems9 or were under restraining orders for prior violence or threats.10
Whether ordinary, responsible adults have guns or not, their incidence of serious violent crime is virtually nil. The contrary assertions pervading anti-gun articles usually appear sans supporting evidence. The few articles purporting to cite supporting criminological evidence actually cite irrelevancies, e.g., most killers "are neither felons nor crazy" but rather are "people who are sad or depressed";11 that: many killings arise out of arguments and/or occur in the home, among relatives or acquaintances, and "typically involve people who loved, or hated, each other;"12 "murder is almost always an act of blind rage or illogical passion;"13 "most shootings are not committed by felons or mentally ill people, but are acts of passion."14 To accept these irrelevancies as proving murderers are ordinary people not criminals or lunatics, one must think criminals and lunatics have no relatives or acquaintances nor do criminals or lunatics get sad or angry, love or hate people, or act out of passion. As to many murders occurring in homes, suffice it to note that in handgun murders occurring between acquaintances in a home "the most common victim-offender relationship was that between persons involved in drug dealing, where both parties were criminals who knew one another because of prior illegal transactions."15
In short, murderers are overwhelmingly extreme aberrants with life histories of violence, psychopathology and/or substance abuse. So gun bans can only reduce murder if they disarm precisely those whom even anti-gun advocates admit they will not disarm. (NOTE: My argument does not apply against our existing laws banning guns to people with serious criminal or sanity records. Though such people will disobey those laws, the laws have marginal utility in providing a basis for incarcerating such people in the rare event they are discovered having guns.16)
Unenforceability of Gun Bans
Experience in several nations confirms that gun bans don’t disarm even a resistant general populace, much less lunatics and criminals.
a. The American example.
From the 1920s on American state laws generally forbade those with prior felony convictions possessing handguns. The federal Gun Control Act of 1968 went further, prohibiting any gun to people who were convicted of felony or involuntarily committed to mental institutions. The crime history of 20th Century America makes it obvious that these laws are regularly flouted.
As to whether the normally law abiding populace can be disarmed, polls show gun owners responding that they would not comply with a firearms ban. That is verified by actual behavior. Despite often ferocious penalties, gun owners will not register their firearms because they fear this paves the way for eventual confiscation.
In recent years, several states and municipalities passed laws mandating the registration of assault rifles [or banning them outright]. These law were overwhelmingly ignored. In Boston and Cleveland the rate of compliance ... is estimated at 1%. Out of the 100.000 to 300,000 assault rifles estimated to be in private hands in New Jersey, 947 were registered, an additional 888 rendered inoperable and 4 turned over to authorities. In California, nearly 90% of the approximately 300,000 assault weapon owners did not register their weapons.17
b. The English Example
Foreign observers dismiss gun control in America as hopeless, given America’s enormous civilian gunstock.18 But experience in nations with much less gun ownership suggests gun control is unworkable there as well. As early as the 1970s a senior police official’s study for the Cambridge Institute of Criminology described the effect of the 1920 handgun permit requirement: "Half a century of strict controls has ended, perversely, with a far greater use of this class of weapon in crime than ever before."19 Extending these remarks the same official, Chief Superintendent Greenwood, stated some years later:
At first glance it may seem odd, or even perverse, to suggest that statutory controls on the private ownership of firearms are irrelevant to the problem of armed crime, yet that is precisely what the evidence shows. Armed crime and violent crime generally are products of ethnic and social factors unrelated to the availability of any particular type of weapon. The numbers of firearms required [to arm criminals] are minute, and these are supplied no matter what controls are instituted. Controls have had serious effects on legitimate users of firearms, but there is no case either in the history of this country or in the experience of other countries, in which controls have been shown to have restricted the flow of weapons to criminals or in any way to have reduced armed crime.20
Despite the policies then in force and the progressively more stringent steps that followed, violent crime soared through and after the end of the 20th Century. The ever more stringent policies culminated in England’s 1997 total handgun ban and confiscation – from owners law abiding enough to surrender them. Despite this, by the 2000s England's violent crime rate was double that of the U.S.21 News headlines began to mirror American headlines from prior decades, e.g., LONDON TIMES, Jan. 16, 2000: "Killings Rise As 3 Million Illegal Guns Flood Britain."; PUNCH, May 3-16, 2000, "Britain's Tough Gun Control Laws Termed Total Failure: Land of Hope and Gunrunning"; LONDON TELEGRAPH: August 17, 2001, "Gun killings double as police claim progress"; NEW STATESMAN, Nov. 5, 2001, "The British Become Trigger Happy", LONDON TELEGRAPH, Feb. 24, 2002, "Gun crime trebles as weapons and drugs flood British cities"; LONDON TIMES, October 13, 2002:, "Murder rate soars to highest for a century." As of 2004 while the rate at which violent crime was accelerating had greatly slowed, English violent crime rates remained enormous and were still growing. One 2005 article was headlined "Violent Crime ‘Out of Control’" 22 Another quoted a police chief who has to beg chiefs from adjacent jurisdictions to lend his over-worked department detectives as saying "‘'We are reeling with the murders, we are in a crisis with major crime.'" NEWS TELEGRAPH, Feb. 14, 2005.
Under the 1997 handgun ban 166,000 handguns were turned in by law abiding owners. Yet that left untold numbers in criminal hands. Nor has England been able to prevent illegal importation of millions more guns. As of 2002, a report of England’s National Crime Intelligence Service lamented, that while "Britain has some of the strictest gun laws in the world [i]t appears that anyone who wishes to obtain a firearm [illegally] will have little difficulty in doing so."23
c. The Belgian example
In 2002 Belgium enacted what an anti-gun advocacy group described
as the "World’s Strictest Gun Law." Under it gun possession was only by a permit which required a showing of need and all guns had o be registered.24 As of 2005, however, Belgium’s Justice Minister was proposing further legislation because of the apparent flouting of the 2002 registration/permission law. Though over 641,000 guns had been registered, an estimated two million more (c.. 70% of the total) were being possessed without permit or registration25
Two million illegal guns is an enormous number for a nation whose total population is little over ten million. Perhaps this massive evasion of the gun laws was impelled by the 1997 British experience in which owners who had registered and gotten permits had their handguns later confiscated while illegal owners did not. Whatever the cause, the effect is that, once again, stringent gun control proved unenforceable against even the general citizenry, much less criminals.
d. The Canadian example
In 1995,Canada required every civilian-owned firearm to be registered as of year-end 2002. This was enacted with promises that implementation would cost about two million dollars and be processed by ordinary civil servants without diverting police resources from handling dangerous crimes. Two years after the deadline the registry was still woefully incomplete – and it was estimated to have already cost at least two billion dollars and to have diverted tens of thousands of hours of police time. (A full cost estimate could not be made because the Justice Ministry had ceased cooperating with the Auditor-General in 2002 after she reported that costs already exceeded one billion dollars.) What these expenditures have so far wrought is a gun registry that covers less than half of Canadian guns. The rest (estimated by the government at seven million guns and by its critics at 20 million) have gone unregistered by defiant owners.26
e. Some general observations.
Those who recognize the futility of gun control enforcement in the gun-dense U.S. are certainly correct as far as that goes. But there is no basis for their assumption that gun controls are enforceable in nations that are less gun-dense. While there is a distinction between very gun-dense nations and those less gun-dense, it is a distinction without a difference: Where guns are less dense there will be a thriving black market. Where guns are plentiful the black market is smaller because criminals can get guns easily from multiple sources. In either case criminals get ready access to guns illegally.
This was epitomized by an incident in which English police discovered a covert shipment of 30 Croatian-made Mini-Uzis without serial numbers.27 To obtain those guns an English drug gang or organized gun trafficker had to have the resources and connections in distant Croatia to special-order 30Mini-Uzis to be taken off the assembly line before being inscribed with serial numbers and then covertly shipped to England. This could not have happened in the U.S. – because the easy availability of guns here means there is no high end black market in guns. Sometimes low level criminal entrepreneurs go to states where handguns are legal, buy 30 or so, and smuggle them back to New York where handguns are banned. But low level American gun runners would not have the resources or connections to special order Mini-Uzis from a Croatian factory. Nor would they want to do so because there is no market. Why would an American robber pay $3,000.00 for a Mini-Uzi when for $150.00 or less he can buy a 12 gauge double-barrel shotgun on the street and saw down the barrels, thereby producing a weapon just as concealable and even more awesome looking than a Mini-Uzi?
In England severe anti-gun laws make firearms unavailable to the general public -- but not to those willing to defy gun laws. All that is accomplished by the scarcity of guns to the general public is to make obtaining and selling them more profitable. The English National Crime Information Service report notes, "Pistols and even machine guns are now freely available on the black market, often coming from the war-ravaged Balkans."28 To reiterate, in either the U.S. or England "anyone who wishes to obtain a firearm [illegally] will have little difficulty in doing so."29
There is no way of sealing off the borders even of a nation surrounded by water. Thousands of illegal emigrants are smuggled by boat into both England and the U.S. A fortiori millions of guns could be smuggled in – if there were a market for them. At the time of John Lennon’s murder nearly 25 years ago I noted that if all c. 54 million handguns then in the U.S. suddenly evaporated they could be more than replaced in only three years of smuggling at the rate U.S. authorities estimated that marijuana was being smuggled in.30
Nor would it matter even if the smuggling of guns could somehow be eliminated. All that would do is create a market for organized crime manufacture of black market guns. During the Vietnam and Afghan Wars (respectively) Pakistani and Vietnamese peasants regularly produced crude but workable copies of modern handguns and full-auto rifles. Anyone with access to the far superior metal working machinery and energy resources that millions of Europeans and Americans have in home workshops can manufacture for the black market pot metal copies of modern firearms. These would actually cost less than legal guns do now being much cheaper to produce and because the black market is not burdened by taxes, record keeping requirements, and safety standards.31 Thus despite severe Philippine anti-gun laws it is reported that "cottage manufactured" submachine guns sell for $215.00 or less while.38 revolvers sell there for $27.00.32 (By way of contrast the cheapest legally sold U.S. .38 would cost about ten times that.) Cottage-manufactured guns are also n observed in considerable numbers in Jamaica and Chechnya.
Anti-gun advocates fervently intone the mantra more guns = more murder, fewer guns = fewer murders. Twenty-five years ago a U.S. government sponsored study of the entire literature on gun control found "no persuasive evidence" supporting the mantra.33 2003 and 2004 studies by the Centers for Disease Control and the National Academy of Sciences (respectively)could identify no gun control that had reduced murder or suicide.34 Nor can the mantra
be squared with U.S. experience since 1946, the earliest time for which reliable figures exist on murder and gunstock rates. That year those rates were: 34,430 guns, and six murders, per 100,000 population. As of 2000 the gunstock rate had [almost tripled, swelling] to 95,500 but the murder rate [had increased only 1/10th of 1% to] 6.1 per 100,000.35
The mantra is supposedly validated by comparing U.S. murder rates to those of a few specially selected other nations. But when large numbers of nations (including the U.S.) are compared no correlation appears between nations having greater per capita gun ownership and higher murder rates.36
Since ordinary people virtually never kill, the overall number of guns they have is virtually irrelevant. What is relevant is the number of guns possessed by the violent aberrants who do kill. Unfortunately there seems no effective way to disarm them. Just as they are unwilling to obey laws against violence so are they unwilling to obey laws against guns. Just as we are largely unable to prevent them from committing murders so are we largely unable to prevent them from getting illegal guns.
Attempting to disarm the general population will make things much worse. First, it would promote crime by depriving victims of the means of self-defense and, thereby, remove a major deterrent to violent crime.37 Moreover, as noted in the study done for Oxford University Press by James Jacobs, Director of the Center for Research in Crime and Justice at NYU:
Any serious effort to pass a firearms disarmament plan would trigger massive gun acquisition [during the pre-enactment period while it was under discussion] and expand and radicalize a resistance movement. The last thing the U.S. government needs is endless conflict with a large segment of the population that has never committed a gun crime. A war on civilian gun ownership would undermine crime prevention by unnecessarily diverting resources from preventing and solving crime.