The Second Amendment
- The moral arguments why the 2nd is not absolute
- The legal arguments why the 2nd is not absolute
- Gun murders
- Justifiable homicide
- Women's self-defense
- The "collective self-defense"
- The Lott report
- Other weapons
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The Second Amendment of the United States Constitution:
"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."
OK, what does this mean? Does it mean that all people should have the ability to possess whatever arms they wish?
Pro-gunners disagree on the limits of this bill: some people believe it should be absolute, and any and all arms should be legal. Some pro-gunners draw what seems to be obvious limitations, for instance, the owning of a nuclear weapon or other weapon of mass destruction should be illegal. Some go even further, and declare that such heavy military equipment such as tanks, bazookas, etc., should be illegal, and then some believe that reasonable controls on items such as automatic machine guns are all right.
So, there is obviously much disagreement already about the limitations of the 2nd. One thing is clear, though, and that is it can be limited to a certain extent, morally and legally. First, lets look at the moral arguments:
The moral arguments why the 2nd is not absolute
First, it important to note that no right is absolute, even those supposedly granted by God and guaranteed in the Bill of Rights. For example, even though the 1st Amendment guarantees me the right to free speech, the right is limited. I cannot publish a newspaper in which I claim that a certain public figure, for example the president of a major company, is a cocaine user, if that fact is known to me to be completely untrue. It would be called libel, and it is a valid abridgment of my rights. The classic example of an abridgment of freedom of speech is the imminent danger rule: I cannot stand up in a crowded theatre and scream that there is a fire (if there is not), because the ensuing panic may cause injury.
The reason abridgment of rights is sometimes valid is that rights can very easily clash. In the example above, my right to free speech clashes with the people in theatre's rights to not be trampled. The same analysis can be applied to the 2nd Amendment. If the right to own a gun interferes with public safety, that right can morally be abridged, in order to protect public safety. And the courts have agreed with this position, as follows.
The legal arguments why the 2nd is not absolute
Throughout the history of the USA, many Court decisions have limited the right to keep and bear arms. The Miller case in the early 20th century limited the right to own certain classes of weapons. More recently, we have the following from the United States Court of Appeals, Sixth Circuit, which indicates that the clause about "a well regulated militia" does not mean that the average citizen is part of that militia: "Since the Second Amendment right 'to keep and bear arms' applies only to the right of the state to maintain a militia, and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm." (Stevens v. U.S., United States Court of Appeals, Sixth Circuit, 1971).
A similar ruling from the Seventh Circuit held that "Construing [the language of the Second Amendment] according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia . . . We conclude that the right to keep and bear handguns is not guaranteed by the Second Amendment." (Quilici v. Village of Morton Grove, U.S. Court of Appeals, Seventh Circuit, 1982).
Recently, although the Supreme Court has not issued a clear cut ruling on 2nd Amendment rights, a 1992 decision by the conservative majority stated that "Making a firearm without approval may be subject to criminal sanction, as is possession of an unregistered firearm and failure to pay the tax on one, 26 U.S.C. 5861, 5871." (UNITED STATES, PETITIONER v. THOMPSON/CENTER ARMS COMPANY, on writ of certiorari to the United States Court of Appeals for the federal circuit, June 8, 1992). This opinion, written by Justice David Souter and joined by Chief Justice William Renhnquist and Justice Sandra Day O'Connor, indicates that the Supreme Court has a right to limit 2nd Amendment rights. So, it is clear that the 2nd is not absolute, and thus cannot be used as a prima facie reason why any gun should be legal.
Above, I referred to the debate even within the pro-gun camp over the limits of the 2nd. If the 2nd truly gave the right to keep and bear arms without any infringement, then surely such high-intensity arms such as nuclear missiles and tanks should be legal -- or your 2nd Amendment "rights" are being abridged! Obviously, allowing free and easy access to any kind of armament would be a bad idea, so there should be some practical limitation. The question then becomes, who decides what these limits should be? The answer, of course, is that the people decide, through their representatives and the limited representation of the Supreme Court.
But what about the intent of the 2nd? Many pro-gunners believe that the 2nd is the Constitution's way of making sure that our government never becomes tyrannical, and ensures that if it does, we will be able to overthrow it.
There are a few reasons why this is not a good argument. First and most important, the Constitution was a document intended to create a government that could be changed by the people through peaceful means, and it has succeeded for over 200 years to that effect. Other democratic means exist to change, or even overthrow, the government. One counter-argument sometimes heard here is that if the government disarms the populace, the populace is ripe for a dictatorial takeover, and cannot fight back. My response to this is simple: America has over 270,000,000 citizens at last count. No dictator could "take over" without popular support of these citizens.
There is always the possibility (although an incredibly remote one) that another Hitler may arise to power, democratically elected and supported, and begin to ignore the basic ideals of life, liberty, and the pursuit of happiness. But not only can we elect our leaders, we can un-elect them as well. We have extensive checks and balances to make sure no one person or agency can have too much power, and we have a healthy respect for democracy earned over 200 years. These are features that Nazi Germany and Imperial Japan lacked. There is always the possibility that another Hitler will come, yes, but in the meantime, we have at least ten thousand a year dying from guns, and countless more injured. We must weigh this certainty against the infinitesimally small chance that our well-constructed checks and balances will suddenly all fail.
Finally, there is the old canard about slavery; that only people with guns can avoid being slaves, and that only slaves lack the right to basic self defense. The response here is quite simple-when as many people die of gun related incidents as do every year, you are already a slave. You are a slave to a system in which you feel you need to carry a gun for self-protection. You are a slave to the chaos that mankind has worked for millennia to civilize. Perhaps we are all violent beasts at heart, and that will never change. But evidence of peaceful, relatively violent-crime-free societies such as Japan indicate that perhaps we can "all just get along."
The problem with guns
The problem with guns is fairly straightforward: they make it easy to kill or injure a person. In Jeffrey A. Roth's Firearms and Violence (NIJ Research in Brief, February 1994, found at http://sun.soci.niu.edu/~critcrim/guns/gun.viol), he points out the obvious dangers:
- Approximately 60 percent of all murder victims in the United States in 1989 (about 12,000 people) were killed with firearms. According to estimates, firearm attacks injured another 70,000 victims, some of whom were left permanently disabled. In 1985 (the latest year for which data are available), the cost of shootings--either by others, through self-inflicted wounds, or in accidents--was estimated to be more than $14 billion nationwide for medical care, long-term disability, and premature death. (Editor's note: the number of gun victims has increased since 1989 to 15,456 gun homicides in 1994. Source: FBI UCR report.)
- In robberies and assaults, victims are far more likely to die when the perpetrator is armed with a gun than when he or she has another weapon or is unarmed.
Obviously, there are different types of gun murder. There is 1st degree, premeditated murder, in which case the gun just made it easier, but the killer probably would have killed anyway, given that he had time to premeditate. But after that, there is murder in course of other crime, acquaintance murders in the heat of passion, and criminal negligence. And naturally, there are the non-lethal injuries from firearms as well. These non-lethal injuries have actually been going down recently, but this is not because the number of shootings is going down; but rather that emergency room doctors and technology are getting better equipped to deal with gunshot victims. (Source: 1996 N.Y. Times News Service: "An improvement in emergency medical services and hospital trauma centers, so that many gunshot victims who might have died in the past are now saved.")
In the case of murder in course of other crime, it is obvious from Dr. Roth's research above that the presence of a gun makes the crime more potentially lethal. And in the case of acquaintance murders, the presence of a gun makes it easier to kill, makes the killing more instantaneous, more detached, makes the killer have to think not at all about what he is doing. In short, people are not always thinking rationally, and when there is a gun around, it is easier for an irrational person to do greater damage.
In addition, although we hear a great deal about the tens of thousands who die from gunshot wounds, we don't hear enough about the countless tens of thousands of others who are injured by gunshot wounds. Increasingly, hospital emergency rooms are getting better at treating gunshot wounds, which leads to less gunshot deaths. For this reason, looking at gunshot deaths alone is misleading, and only a small part of the picture.
Residents of homes where a gun is present are 5 times more likely to experience a suicide than residents of homes without guns (Arthur L. Kellermann, MD, MPH; Frederick P. Rivara, MD, MPH; Grant Somes, PhD; Donald T. Reay, MD; Jerry Francisco, MD; Joyce Gillentine Banton, MS; Janice Prodzinski, BA; Corinne Fligner, MD; and Bela B. Hackman, MD, Suicide in the Home in Relation to Gun Ownership, The New England Journal of Medicine, Vol. 327, No. 7, August 13, 1992, pp. 467-472.) Although the reader may or may not disagree with the morality behind suicide being illegal, the fact remains that a gun makes it easier to commit suicide in a fit of rage, depression, or under the influence of drugs or alcohol. Furthermore, there is conflicting evidence as to whether any kind of substitution occurs.
Dr. Roth argues that "Self-defense is commonly cited as a reason to own a gun. This is the explanation given by 20 percent of all gun owners and 40 percent of all handgun owners contacted for a household survey conducted in 1979. (Decision-Making Information, Inc., Attitudes of the American Electorate Toward Gun Control, Santa Ana, California: Decision-Making Information, Inc., 1979).
But research has shown that a gun kept in the home is 43 times more likely to kill a member of the household, or friend, than an intruder.(Arthur Kellermann and Donald Reay. "Protection or Peril? An Analysis of Firearm Related Deaths in the Home." The New England Journal of Medicine, vol. 314, no. 24, June 1986, pp. 1557-60.) The use of a firearm to resist a violent assault actually increases the victim's risk of injury and death(FE Zimring, Firearms, violence, and public policy, Scientific American, vol. 265, 1991, p. 48).
Dr. Roth does cite that there may be some self-defense benefit: victims who defended themselves with guns were less likely to report being injured than those who either defended themselves by other means or took no self-protective measures at all. Thus, while 33 percent of all surviving robbery victims were injured, only 25 percent of those who offered no resistance and 17 percent of those who defended themselves with guns were injured. For surviving assault victims, the corresponding injury rates were, respectively, 30 percent, 27 percent, and 12 percent. (Kleck, Gary, "Crime Control through the Private Use of Armed Force," Social Forces, 35 (1988):1-22.)
But he goes on to argue that these statistics are "an insufficient basis for the personal decision whether or not to obtain a gun for self-protection.... First, the decision involves a trade-off between the risks of gun accidents and violent victimization. Second, it is not entirely clear that the relatively few robberies and assaults in which victims defended themselves with guns are typical of these types of crimes and that the lower injury rates resulted from the self-defense action rather than some other factor. Perhaps offenders lost the advantage of surprise, which allowed victims not only to deploy their guns but also to take other evasive action."
Research by Dr. Arthur Kellerman has shown that keeping a gun in the home carries a murder risk 2.7 times greater than not keeping one. That is, excluding many other factors such as previous history of violence, class, race, etc., a household with a gun is 2.7 times more likely to experience a murder than a household without one, even while there was no significant increase in the risk of non-gun homicides! This study (Arthur Kellermann et. al., "Gun Ownership as a Risk Factor for Homicide in the Home," The New England Journal of Medicine, October 7, 1993, pp. 1084-1091) has been much maligned by the gun lobby, but despite repeated efforts to tar it as non-scientific, its publication in one of the most respected peer-reviewed journals in the world is just one indiciation of its soundness. For a complete and vigorous defense of the study, please see this essay by Steve Kangas. Obviously, there is a problem with criminals having access to guns, which is why so many people feel they, too, need a gun for self-defense. But this is a vicious cycle: FBI Crime Reports sources indicate that there are about 340,000 reported firearms thefts every year. Those guns, the overwhelming amount of which were originally manufactured and purchased legally, and now in the hands of criminals. Thus, the old credo "when guns are outlawed, only outlaws will have guns" is silly. What happens is many guns bought legally are sold or stolen, and can then be used for crime. If those 340,000 guns were never sold or owned in the first place, that would be 340,000 less guns in the hands of criminals every year. Part of the reason there are so many guns on the street in the hands of criminals is precisely because so many are sold legally. Certainly, there will always be a way to obtain a gun illegally. But if obtaining a gun legally is extremely difficult, the price of illegal guns goes way up, and availability goes way down. Thus, it is much more difficult for criminals to obtain guns.
A study of 743 gunshot deaths by Dr. Arthur Kellermann and Dr. Donald Reay published in The New England Journal of Medicine found that 84% of these homicides occurred during altercations in the home. Only 2 of the 743 gunshot deaths occurring in the home involved an intruder killed during an attempted entry, and only 9 of the deaths were determined by police/courts to be justified (FE Zimring, Firearms, violence, and public policy, Scientific American, vol. 265, 1991, p. 48). The evidence revealed in the Kellermann study is consistent with data reported by the FBI. In 1993, there were 24,526 people murdered, 13,980 with handguns, yet only 251 justifiable homicides by civilians using handguns. (FBI, Crime in the United States: Uniform Crime Reports 1994, 1995).
Women's self-defense implies that since women are physiologically weaker than men, guns are the great equalizer, and women can use them to protect themselves. I think perhaps it would be best to leave this discussion to the women, don't you? The following women's associations have come out in support of the Brady Bill, which mandates a waiting period and background check on firearms purchases:
American Medical Women's Ass'n, General Federation of Women's Clubs, Int'l Ladies' Garment Workers' Union, League of Women Voters of the United States, Nat'l Council of Jewish Women, Nat'l Council of Negro Women, Nat'l Organization for Women, Women's Nat'l Democratic Club, Women Strike for Peace, Women's Action for New Directions (WAND), Women's Int'l League for Peace and Freedom, YWCA of the U.S.A.
If this many women, from a cross-section of society, support gun control, perhaps women do not perceive a need to own a gun, and male lawmakers and critics have no right to claim otherwise.
The "collective self-defense"
The "collective self-defense" argument is that if many Americans own guns, it is better for the general welfare of the country in case we are invaded by a foreign power. This is silly given the strength of the American military. Often, this paranoia is manifested in fears of a increasingly powerful United Nations, but this is even sillier, as the United States maintains veto power in the Security Council (and would thus have far more to lose by withdrawing from the UN, despite what some radical critics have said). Thus, there is no present danger to the United States from foreign invasion of any kind, and if the danger arises, and arming the general populace becomes necessary, it should be done through the auspices of the US Military, where people will be guaranteed to receive training in marksmanship, and more importantly, gun safety.
We can see how dangerous the "collective self-defense" argument by looking at amateur militias in America. Although the majority of militia members, like the majority of Americans, are probably peaceful, law-abiding citizens, it is rather dangerous for citizens' groups that are not under any sort of "well-regulated" supervision, and answering to nobody, to be conducting exercises that make them a potential paramilitary force capable of extreme damage. Such exercises are better left to those who are well-regulated, i.e., the United States Armed Services and the National Guard.
The Lott report
Recently, a study published by John Lott (a Law Professor at the University of Chicago) and David Mustard (a U. Chicago graduate student) has indicated that recently enacted laws in states allowing the legal carry of concealed weapons has reduced violent crime in those states. However, there are numerous problems with this study that have not been addressed, even when directed to Professor Lott himself.
For example, when asked under the rubric of causality, how the falling crime rates affects their study, Lott said "The general changes in crime rates is not a problem for our paper since we control for individual year dummies which take out any year-to-year changes that are occurring in crime rates." What this ignores is that the year-to-year changes are precisely what is important, and if crime rates are already dropping, then adding the laws they defend and pointing to their success in lowering crime rates begs the question of causality, which they never demonstrate.
Another difficulty in his figures is population motion. For example, he claims that Florida's violent crime rate dropped dramatically after the passing of CCW laws, but he does not take into account the enormous migration of the elderly and retirees into that state during his examination period. Such an influx of elderly citizens (not usually violent criminals!) would certainly push the crime rate down, as the population of law abiding citizens rose dramatically.
Furthermore, they admit right in their study that "Using county level data has some drawbacks. Frequently, because of the low crime rates in many low population counties, it is quite common to find huge variations in the arrest and conviction rates between years." So, their solution is "to limit the sample to only counties with large populations. For counties with a large numbers of crimes, these waves have a significantly smoother flow of arrests and convictions relative to offense." Thus, the limited sample also limits the accuracy of their study. They say that "an alternative solution is to take a moving average of the arrest or conviction rates over several years," but then go on to say that this "reduces the length of the usable sample period, depending upon how many years are used to compute this average. Furthermore, the moving average solution does nothing to alleviate the effect of multiple suspects being arrested for a single crime." These are real problems which Prof. Lott did not address, even when directly asked via e-mail.
More criticism on the Lott report from Johns Hopkins University Professor Stephen Teret can be found here.
"People kill with knifes, too. Do you want to ban knifes?" From Dr. Roth's study: The overall fatality rate in gun robberies is an estimated 4 per 1,000--about 3 times the rate for knife robberies, 10 times the rate for robberies with other weapons, and 20 times the rate for robberies by unarmed offenders. (Cook, Philip J., "Robbery Violence," Journal of Criminal Law and Criminology, 78-2, (1987):357-376.) For assaults, a crime which includes threats, the most widely cited estimate of the fatality rate is derived from a 1968 analysis of assaults and homicides committed in Chicago. The study, prepared for the National Commission on the Causes and Prevention of Violence, reported that gun attacks kill 12.2 percent of their intended victims. This is about 5 times as often as in attacks with knives, the second most deadly weapon used in violent crimes.(Newton, G.D., and F.E. Zimring, Firearms and Violence in American Life: A Staff Report Submitted to the National Commission on the Causes and Prevention of Violence, Washington, D.C.: National Commission on the Causes and Prevention of Violence, 1969.) With one exception, more recent studies have generally concluded that death was at least twice as likely in gun assaults as in knife assaults. (The exception is Kleck and McElrath, "The Effects of Weaponry on Human Violence.")
An offshoot of this argument is the old classic "cars kill more people than guns, but we don't ban cars." The response to this irrelevant argument is that cars have other usage, whereas guns basically just kill, or threaten to kill. Their one potentially valid use, self-defense, is undercut by the statistics by Kellerman and Zimring previously cited, as well as fatal weaknesses in the arguments of Lott and Kleck.
A proposal for rational gun control
Although I would personally like to see as many civilian-owned guns eliminated from mainstream society as possible, I realize that this is not a politically realistic goal. Thus, I present my own plans for gun control that I would consider a valid compromise. Perhaps policy discussions can start from these.
1. A national system for registering guns and ammunition. Part of the reason New York City has stiff gun laws and high gun death rates is that anybody can go from New York to a state with less restrictive laws, get a friend who lives in the state to buy the guns for them, and take those guns back to NYC. (Yes, I am aware this is illegal, but it happens.) First, a national system would prevent this by scaring those "friends" into not buying the guns legally and selling them illegally, for if the guns are used in an illegal crime, that person can be held accountable. Second, a national system would be more helpful in tracking crimes after they have happened, to bring the perpetrators to justice.
2. Instant background checks on people attempting to buy guns or ammunition. Brady is still patchwork, and does indeed have its flaws in tracking felons. Felons and ex-cons should not have access to weapons, and many misdemeanors and juvenile crimes should also count against a person's record.
3. Stiffer sentences for gun crimes. This has been the position of the NRA for quite some time, and it is certainly one with which I agree.
4. Gun education. Many guns are involved in accidents that could easily have been prevented by a little care or forethought. Perhaps gun purchasers should be required to take lessons in gun safety, at the purchaser's expense. Again, the NRA has long been a proponent of gun education.
5. General education. Study after study has concluded that there is a direct correlation between lack of education and violent crime. Every dollar spent on education now will prevent countless dollars worth of crime damage in the future. Think of all the private and public funds used to pay for gun violence -- hospital bills, funerals, insurance bills, the actual cost of buying firearms. Now invest that money in education, and watch the crime rate drop.
6. Hand grip ID tagging. This is technologically probably still in the future, but it would be a good goal to work for. The theory is, each gun is "registered" to one's person palm prints (the legal purchaser of the gun), and only that person can fire that gun. If another person tries, the gun simply will not fire. Thus, stolen guns become useless, and cannot be used to harm anybody in the course of a crime.