About half the U.S. population lives in one of the 31 states with relatively permissive laws regulating who may carry a concealed firearm. These states range from northern New England (Maine, New Hampshire, Vermont) to the deep South (Mississippi, Alabama, Georgia, Florida), the Piedmont (Virginia, North Carolina) to the Southwest (Oklahoma, Texas), the upper Midwest (the Dakotas) to the Pacific Northwest (Washington). They include urban states (Pennsylvania), suburban states (Connecticut), rural states (West Virginia and Montana), and everything in between. The other half of America's people live in jurisdictions like New York, where access to concealed-carry permits is limited to those who can demonstrate a specific need for potentially deadly self-protection, or Illinois, where no one other than peace officers may carry a gun.
A massive natural experiment is thus under way, one that will ultimately tell us whether liberal gun carrying laws are good or bad policy. The early results are striking. It can no longer be seriously argued that relaxing the rules against concealed carrying of handguns is an invitation to violence, to bloody shootouts over fender-benders or football games. That sort of thing, always rare, is essentially absent from crime statistics, no matter what a state's rules concerning who may carry a gun in public. What's more, it is beginning to look as though, when a state authorizes private persons to carry handguns, it takes an important step toward suppressing serious crime.
What is at issue in gun control debates is people's (mostly untutored) intuitions about which of two conflicting theories of human behavior has the upper hand in the real world. The first of these theories, sometimes called the "instrumentality theory" of lethal outcomes, holds that when firearms are more readily available, offenses such as armed robbery and murder–and impulsive homicides especially should increase because guns make it easier to commit crimes.
The opposite theory is that of "general deterrence," which can be summed up in one phrase: more guns, less crime. That, not coincidentally, is the title of an important new book by one of America's most resourceful and fearless econometricians, John Lott, who for the last several years has been the John M. Olin Visiting Fellow in Law and Economics at the University of Chicago Law School.
Each of these theories captures a certain amount of reality. We know, for example, that x number of impulsive homicides would not occur in a gun-free world. On the other hand, we also know that the prospect of meeting armed resistance changes the calculations of human actors, whether they intend good or mischief. That is why we insist that Brinks guards, soldiers, and Secret Service agents carry guns. We recognize that if they did not, their ability to deter predators would shrink or, in some cases, altogether disappear. To know what firearms policy to pursue, one has to know which of these tendencies dominates the other. Like so many other questions with a seemingly ideological leading edge, this one, at bottom, turns out to be empirical.
For many years the public debate about which theory to credit was carried out either by a priori reasoning or, worse, through weak and often tendentious small-scale studies, many of them sponsored by openly results-oriented grantors at the U.S. Centers for Disease Control and Prevention. Almost all of these studies, if one may call them that, affirmed that guns were a "public health" hazard that was spreading by leaps and bounds, the outstanding "risk factor" for suicide and murder. The New England Journal of Medicine, in particular, has specialized in publishing such regrettable stuff, commonly complementing it with overwrought editorials calling upon Americans for God's sake at last to surrender their guns.
The instrumentality theory enjoys something of a monopoly among the news media and is a veritable litmus test for membership in Washington's intellectual establishment. One might as well believe in flying saucers as doubt the proposition that schoolyard massacres are "caused" by America's sick love affair with the gun. Congressional Democrats (to say nothing of the executive branch) are close to unanimous on this; but Republicans–of the sort who long to be labeled "sensible" or "pragmatic" in newspaper editorials, from Richard Nixon to George Bush–think so too. Practically every gun control initiative of the last 30 years, including the Brady Act and the 1994 "assault weapons" ban, has been based on the premise that restricting the supply of firearms and thereby raising their price should reduce violent crime rates.
Every bit of this, we now know, has been wrongheaded and perverse. Since 1977, the U.S. Department of Justice has kept statistics on the most serious crimes (such as murder, rape, and robbery) in the 3,054 counties of the United States. In 1997 Lott and his collaborator, David Mustard (who was then a University of Chicago graduate student and is now a professor of economics at the University of Georgia), published an analysis of these data, the largest econometric study of crime and violence ever done, in The Journal of Legal Studies.
Their electrifying conclusion was that liberalizing concealed-carry laws drives down rates of confrontational crime, with the effect most pronounced in the counties where the problem of criminal violence is worst. Apparently, when more people are on the streets packing heat, criminals tend to redirect their predatory activities into lines where they are less apt to meet armed resistance. The results of the Lott-Mustard study, updated by several years and amplified by the analysis of additional variables, are the core of More Guns, Less Crime.
Postwar American crime rates peaked around 1979 and have been declining ever since. In most counties the decline has been steady. In the most populous cities, a short but intense murder wave, linked to crack cocaine markets and the war on drugs, complicated the picture from 1984 through 1992. Most states that have relaxed their concealed-carry laws have done so in the last 12 years, a period when violent crime was decreasing generally, though it may have been rising locally.
The resulting picture is a decidedly complicated one that makes analysis difficult. How can one know, for example, that a state's falling murder rate can be attributed to changes in its weapons laws rather than something else? Lott devotes an entire chapter to explaining the statistical techniques he used, combining cross-sectional data (comparing crime rates in different places during the same period) and time-series data (looking at how crime rates in a given place change over time).
One of the most fascinating aspects of More Guns, Less Crime is the story it tells of the firestorm that the Lott-Mustard paper set off. Lott seems bewildered by it still, though it makes as much sense as the theologians' condemnation of Galileo or Darwin. In our culture, results that come wrapped in the aura of science carry a special weight (which is why junk science is a preferred idiom of discourse among political interest groups). Lott seems to have thought that his work would merely shed some light on an issue of public policy. He underestimated the extent to which it challenged the worldview of an entrenched and self-satisfied political elite.
The organized hatred of guns coordinates an impressive amount of political energy in contemporary Washington. For ideological noncombatants like President Clinton, gun control is a low-cost program that conspicuously positions one on the right side of the crime issue. This is especially useful for Democrats, who for a generation had managed unerringly to position themselves on the wrong side.
Gun control suits liberals, who can flatter their interest groups by affirming that the locus of modern evil is not bad people but the bad objects that "society" puts in their way. It tickles feminist sensibilities because, as a Alana Bassin recently wrote in the Hastings Women's Law Journal, guns are phallic, hence patriarchal, hence evil–and ripping phallic objects away from those who cling to them is, after all, the central purpose of life. It inspires communitarians, because armed individuals are so easily portrayed as slack-jawed Archie Bunkers who, as Mario Cuomo once commented in an unguarded moment, drink too much and beat their wives. Watch MTV or Comedy Central, and you can see how contempt for guns and hunters becomes a way for hip, quick-witted city folks to celebrate their superiority over their cloddish country cousins.
Lott's work calls all this into question. It does more than advance discussion; it smashes idols.
The response to the publication of the Lott-Mustard paper was instantaneous and noisy. The critics declared not simply that their methodology was "flawed," as a staff member of the Violence Policy Center who had never laid eyes on the paper whispered to the newspapers. They insisted that the work was actually dishonest, like the pseudoscientific chaff that used to be put out by the Tobacco Institute–because, as Rep. Charles Schumer (D-N.Y.) told reporters, Lott was a hireling of firearms manufacturers. He was on the payroll of the Olin Corporation, the company that manufactures the notorious Winchester Black Talon bullet, a spokeswoman of the Violence Policy Center helpfully added.
The basis for this charge, which many newspapers repeated without comment, was that Lott's University of Chicago fellowship was endowed by the Olin Foundation. The foundation–which endows fellowships and professorships at many universities, including Oxford, Harvard, Yale, and Stanford as well as the University of Chicago–is distinct from the Olin Corporation, a chemical company that, among many other things, manufactures Winchester ammunition. The recipient of the foundation's largess was the University of Chicago, not Lott, who was selected by a law school faculty committee. Universities routinely accept money from foundations endowed by people who got rich selling tobacco, demon rum, fatty foods, even the delivery systems for thermonuclear bombs, but ideological strings on such money are seldom proposed and never accepted.
There have been a few responsible criticisms of Lott's work. In particular, a critical paper by economists Dan Black of the University of Kentucky and Daniel Nagin of Carnegie-Mellon University raised the question of whether Lott's results are driven by a selection bias in his data. One of the strengths of this book is Lott's patient refutation of every responsible criticism. His relentless counterattack on Black and Nagin is a model for academic debate. One would like to see Lott's critics respond to his refutations as specifically and in as much detail as he has answered them.
What sort of public policy do Lott's findings point to? Would the world really be better off with everybody packing heat? Well, the Lott data do not say "everybody." In fact, it appears that something like 1 percent to 2 percent of a state's population will get a concealed-carry license if given the opportunity to do so.
It is hard to be certain of the exact numbers (because, for instance, some states freely issue carry permits to nonresidents), and in any case we do not know how possessing a permit affects the actual carrying of firearms. But one cannot reason that, because a legal regime that inspires 1 or 2 percent of the population to get a carry permit does not increase but actually decreases murders, rapes, and other confrontational crimes, a legal regime that would inspire 10 or 20 percent of the population to get licenses would be similarly benign.
For all we know (and as Lott recognizes), the first 100,000 or 200,000 people who go for the permit may be significantly more law-abiding and punctilious than the next cohort of permit seekers would be. If so, it is entirely possible that the often predicted "OK Corral" scenarios that have yet to materialize may simply lie a bit further out on the experience curve. There is ample room for states to display caution and common sense before following the lead of Vermont, which allows any adult not specifically disqualified by law to pack a gun, without even getting a permit. But after a few more years of experience have accumulated–after the massive natural experiment with firearms and crime has run its course–if the Lott results are repeated, it is hard to see how the conventional wisdom about guns could possibly survive. Five or six years from now, we'll know.
Daniel D. Polsby (ddpolsby@nwu.edu) is Kirkland & Ellis Professor of Law at Northwestern University.
The post Packing Heat appeared first on Reason.com.
]]>Less than 2 percent of Americans are directly involved with the criminal justice system at any given time. This includes all the players–criminals, police officers, judges, lawyers, and corrections officers. Despite that small number, criminal justice is still one of the indispensable adhesives holding society together. If the product of the system is seen as tainted or in meager supply, it can have baleful effects on citizens' attitudes toward themselves and each other, and can influence how they behave in public. When that famous Simi Valley jury refused to convict Rodney King's attackers, the whole country gasped and South-Central Los Angeles and Koreatown burned. When, several years later, an even more famous California jury refused to convict O.J. Simpson, the whole country gasped again and–well, Beverly Hills and Brentwood were not torched, but American race relations took a sharp turn for the ugly.
White Americans saw two things: O.J. Simpson was obviously guilty, and African Americans were celebrating his escape from justice. Celebrating! Dancing the "freedom dance along with my sisters and brothers all over the world," in the odious words of George Washington University law professor Paul Butler. That verdict raised unsettling questions about the future of American race relations, as it seemed justice could mean different things to people, depending primarily on whether they were black or white.
Race, Crime and the Law is meant to calm those troubled waters. The book considers the difference that race makes to the experience of individuals and communities with the criminal justice system. It is the soberest and most compendious treatment of this question yet written. As its author, Harvard law professor Randall Kennedy, argues, race always has mattered greatly, and it still does: to the police, to courts, and to the rest of the justice system.
Race matters first of all with respect to whether one becomes entangled with the system in the first place. After one is involved, race also affects how cases are handled and disposed of. Most of the book rehearses the considerable evidence for these propositions, knitted together by a narrative dedicated to creating rapprochement between the various antagonists–ideological, political, and racial–who share a concern about the problem of race and crime.
It's a tough task Kennedy sets for himself. He tries to bring "law and order" conservatives into the same conversation with libertarians. He tries to bridge the divide between the races, and between political entrepreneurs whose exclusive objective is to advance what they see as the interests of minority communities specifically and those who have concluded, for any number of different reasons, that racial sorting has lost any use it might ever have had for improving the quality of American community life. While success in bridging all those gaps is nearly a hopeless prospect, at least for the present, Kennedy tries admirably.
His basic strategy is to insist that for all the serious, race-linked shortcomings of American criminal justice, it is the only game in town, and that African Americans above almost all others have a stake in a tough and effective system of law enforcement. Most of the racially objectionable impacts of the legal order can be ameliorated, Kennedy argues, if racial categories are rigorously and actively exorcized from the criminal justice system. Race should be used neither as a criterion of jury selection nor as a criterion of police suspicion. When racial disparities turn up in criminal dispositions, as with the death penalty, a presumption of invidious discrimination should be entertained. Juries must not engage in race-based "nullification" (that is, acquitting an obviously guilty defendant for reason of policy or politics). Judges should discourage attorneys representing black defendants from "playing the race card"–that is, inviting jury nullification or inflaming racial passions.
It is hard to disagree. Race, Crime and the Law is a thoroughly, and characteristically, decent performance, by a scholar and teacher who has achieved great distinction by patiently expounding on the vices of racial sorting and promoting the ideal of treating people as individuals rather than as vectors of some abstract, mandatory racial identity. But there remain serious questions–not so much about Kennedy's aspirations for our country as about the means he offers for getting there.
Many of the things Kennedy rightly says the justice system must not do with race, it is already forbidden to do (or does not do anyway). It is, for example, already unconstitutional to use race as a criterion of jury selection; the trick is to figure out when peremptory challenges are being used in a race-conscious way. In most situations it is probably unconstitutional to use race as an element in a "suspect profile"–that is, a formal protocol that law enforcement agencies might use to focus suspicion on someone who has not actually engaged in suspicious behavior. But what can be done about the private, unofficial profiles that officers carry around in their heads? It is surely unattractive and often destructive for lawyers to "play the race card" in criminal trials, but trial judges already have the authority to prohibit overtly racial appeals to jurors. Of course judges vary in quality–and on average they are merely average–but there is little one can do about that. Similarly, judges are not required to inform jurors, or permit counsel to inform them, of the jury's nullification power, which allows them to acquit notwithstanding the evidence.
In most of the obvious and easy-to-fix ways, America has cleaned up its racial act. Public opinion no longer tolerates overt racial prejudice. Even an isolated off-color joke, insensitive remark, or, for that matter, the affirmation of a nonderogatory stereotype (for example, that blacks are innately gifted basketball players) could cost a prominent person his job and his respectability. Law enforcement officers nowadays are at risk of a prison sentence if, in laying hands on a black suspect, they seem to display racial animus. And yet racial polarization over issues of justice stubbornly remains.
Instead of disappearing from the world of criminal justice, race has been driven into the shadowlands of the tacit, where it is difficult to identify and intercept. Police officers are required to have articulable suspicions before stopping a suspect for questioning. A black man in a white neighborhood may not be stopped and questioned merely because of his race, or detained if he refuses to identify himself or give a satisfactory explanation of his presence. On the contrary, for more than a generation courts, including the U.S. Supreme Court, have struck down all sorts of ordinances and statutes similar to vagrancy laws, not because officers had improperly arrested the suspect in the particular case but because the open-ended vagueness of such laws leaves too much discretion to police officers, who might be tempted to abuse it.
The law is clear enough, yet its ability to constrain how officers actually behave is limited. If an officer's arrest or questioning of a suspect is called into question, he will usually have enough sense to say that he became suspicious because the suspect was behaving nervously and furtively, or that he exhibited some suspicious congeries of other readily observable behaviors that could suggest trouble. The officer will know enough to leave race out of the accounting. In a given case, maybe that's the truth and maybe it's an undetectable lie. No one can tell. How should the law respond?
One can either decide that the system should not register instances of racism that it cannot specifically detect (which is basically what we do now), or we can adopt inferential means of detecting that which we cannot observe. The much-discussed but never passed Racial Justice Act is an example of the second option.
The RJA, initially introduced in 1988 and eventually attached to (and then detached from) the 1994 Omnibus Crime Control Act, would have created a rebuttable presumption that statistical racial disparities in a given jurisdiction in charging capital crimes, levying capital sentences, or carrying out capital punishments were the result of unconstitutional discrimination. Before the state would be allowed to carry out a death sentence, it would have to prove that racial motives had not been a determining factor at any point along the line.
At least when the subject is the death penalty, Kennedy is a believer in such inference-forcing uses of statistics; in fact he even goes so far as to claim, in the most unconvincing passage in the book, that a petitioner seeking to avail himself of the RJA's protection would face "an uphill climb." As a general principle, trying to sift patterns of arrest and prosecution for racially discriminatory motives that were impossible to detect directly but that might be revealed in racially disproportionate data is wildly unworkable. It would surely falter even in a justice system where there were no (or few) actual racial disparities in criminal behavior. But it would be downright impossible in the real world, where such racial differences are very marked, especially in connection with the most serious crimes. If cops had to constantly consider statistical racial proportion in their actions, they would swiftly lose credibility and effectiveness. Cops would either have to arrest more evidently innocent white people or arrest fewer evidently guilty black ones.
We could explicitly legislate against the use of race in suspect profiles, but even explicit legislation would be bound to fail at street level. If such profiles are efficient (as Kennedy concedes they often would be), but it remains difficult or impossible to tell whether they have been used in a particular case, it is a safe bet that their use would continue, though protected with artifice, half-truth, euphemism, and outright lying. This is not the way things should be, but alas, under the circumstances, should has little power.
So we are left with a daunting practical problem with criminal justice in a culture riven by race. One cannot dispense with a justice system, but that system can only be perfected to a certain, not very satisfactory, point. One might take this situation as a cue to launch the postmodernist set piece, cobbling an overtly racist past together with a racially disproportionate present into a polemic for the quintessential illegitimacy of a (white) justice system attempting to adjudicate the guilt of non-white defendants. Arguments asserting the inadequacy of institutions dominated by whites to represent in good faith the concerns of minority constituencies are à la mode in contemporary universities, as the widespread influence of Lani Guinier's writings on racial gerrymandering will attest. Kennedy, to his great credit, seems not to have a trendy bone in his body. His old-fashioned sensibility allows him to see that apocalyptic contentions about the impossibility of sound race relations lead nowhere. Better to make what incremental improvements one can and keep on plugging.
Improving the racial justice of criminal law, or its justice in any connection, is a worthwhile objective in its own terms. Yet one wonders whether Kennedy overestimates the degree to which changes within the four corners of the legal system could bring about any meaningful or sustained sort of racial reconciliation. American race relations, after all, have many painful nodes. Not just the justice system, but the economic and political systems as well, often seem to produce tensions along racial lines.
Moreover, one cannot logically exclude the bleak possibility that, at the end of the day, what each race wants from the other in these various arenas will consist of things the other is not prepared to give. But Kennedy's arguments, at a minimum, push the conversation in a positive direction. It is not an easy thing to do in a book about race and crime, and we may be grateful for his accomplishment.
Daniel D. Polsby (ddpolsby@nwu.edu) is Kirkland & Ellis Professor of Law at Northwestern University.
The post Coloring Crime and Justice appeared first on Reason.com.
]]>United States Constitution
Second Article of Amendment
December 30, 1791
It has not been long since the Second Amendment moldered in the torpid backwaters of constitutional law studies. Swollen with materials pertaining to the Equal Protection Clause and the First Amendment, the leading law school casebooks of the 1960s, '70s, and '80s had little or nothing to say about the right of the people to keep and bear arms. Indeed, most such books had not so much as an index entry on the subject. In the entire 20th century the Supreme Court has not decided a single case concerning the states' power to regulate firearms, and in the past generation's political debates about gun control legislation, the Second Amendment has played a marginal and, one must say, somewhat abject role. It has been waved talismanically by the (usually) losing side (consisting of firearms enthusiasts), who sense an "abridgment" of their "rights" in any firearms regulation, and scoffed at by the winning side (anti-gun advocacy groups and their allies in government), who argue that by its very terms, the Second Amendment guarantees only the rights of states to have well-regulated militias, and not the right of individuals to have firearms. There is, then, (say the winners) no constitutional reason for society to put up with high rates of suicide, accidents, and lethal criminal violence caused by the too-easy availability of guns, especially when those problems can be curtailed by making firearms harder and harder to come by, if not downright impossible for private citizens to obtain legally.
Hunters, target-shooters, and gun collectors have always been great devotees of the Second Amendment, and until quite recently by far the majority of writing on the subject was to be found in magazines dealing with outdoor recreation, hunting and fishing, or firearms hobbies. This writing often contains interesting anecdotes about people using guns to defend themselves from animals or criminals, and one sometimes finds references to or quotations from the thought of the illustrious men of the Founders' generation, especially Madison and Jefferson. Generally speaking, though, it must be said that even among enthusiasts who think about the Second Amendment quite a lot, there has been little appreciation for the intricate and nuanced way in which constitutional analysis is practiced, and has to be practiced, by judges and lawyers.
For the legal profession, constitutional text, history, precedent, and matters of expediency are all important, and no one provision of the Constitution is to be seized upon without due recognition of its context in the Constitution as a whole, and for the strands of doctrine that the Supreme Court has elaborated over the years to translate the words of the document into the actions of the government. The "freedom of speech and the press" that journalists habitually ascribe to the Founding Fathers is more aptly attributed to Supreme Court Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis, whose opinions in a series of cases in the 1910s and '20s gave a modern form to the question of how "the freedom of speech" differs from "speech" simpliciter and what the limits of that freedom might be. Similarly, one might well say that the First Amendment's freedom of religion, such as it is, was for all practical purposes invented in the 1940s by Justices William O. Douglas, Robert Jackson, and Hugo Black and in the 1950s and '60s by Justice William Brennan.
This is a game in which the Second Amendment has never really played. It's true that there was little occasion for litigation prior to the late 1960s, because until then governments at every level did little to regulate firearms. Yet even in the years since the federal Gun Control Act of 1968, when gun restrictions of various kinds began to proliferate, courts and scholars were quite content to allow politics to take its course without reflecting on what the Constitution might have to say about the role of private firearms in American life. The fact that the Second Amendment found no champion among policy-making elites surely tells more about the social psychology of the class from which lawyers and social scientists are drawn than it does about the Constitution's text and structure. The modern American legal profession especially has been thoroughly acculturated to Max Weber's conception of the modern state as the monopolist of all legitimate force–a principle in undeniable tension with the private keeping of arms for self-defense.
But the Second Amendment's era of marginality may well be ending. In the law journals if not yet in media of mass circulation, the Second Amendment has captured the attention of scholars, including some of the most eminent and respectable in the field, who find, somewhat to their own surprise as they reflect upon the matter for the first time, that the private right to keep and bear arms is very much in character with the Bill of Rights as a whole and with the thinking of the Framers of the Constitution.
Despite its renaissance in the law reviews, however, it must be said that in practice the Second Amendment has not yet acquired full membership in the league of serious constitutional rights. Plaintiffs who go to court to overturn firearms restrictions usually prefer not to base their cases on Second Amendment arguments. An example is the litigation testing the validity of the 1993 Brady Law. The (eventually unsuccessful) challenge to this law was not based on the Second Amendment at all, but on the 10th Amendment claim that the federal government should not be allowed to oblige state officials to do (more or less costly) background checks on handgun buyers. The lawyers who bring these cases appreciate (as their fiery clients usually do not) that lower courts at least are unlikely to dispute the right of legislatures at any level of government strictly to regulate most varieties of firearms, up to and including prohibiting their sale and ownership altogether. Partly this response is simply routine deference to legislative prerogatives. Courts generally endeavor to uphold legislative decisions rather than undermine them. But in this instance judicial deference is more than routine, because, as Duke law professor William Van Alstyne has written, Supreme Court cases interpreting the Second Amendment are, for all practical purposes, missing in action. There simply is no modern jurisprudence that explains to judges the meaning of "the right to keep and bear arms" and the scope of their authority to decide that a given piece of legislation constitutes an infringement of that right. If ever there was a situation designed to play on the inherent timidity of lower-court judges, this is it.
A single example will suffice to show how decisive the virtual absence of interpretative precedents can be. In 1981 the trustees of a tiny bedroom suburb of Chicago enacted an ordinance forbidding the private possession of handguns within the village limits. The law was immediately challenged in federal district court on a Second Amendment theory (among other grounds). In due course the U.S. Court of Appeals for the Seventh Circuit received the case, known as Quillici v. Village of Morton Grove, and upheld the law, finding that there was no authentic Second Amendment issue raised by the case. It cited as authority the most recent Supreme Court pronouncement on the subject, Presser v. Illinois, decided in 1886, many years before the "incorporation" doctrine was conceived. In the 19th century it was conventionally said that the Bill of Rights constrained only national and not state government. A few years before Presser, for example, the Supreme Court clearly held (in United States v. Cruikshank) that neither the Second Amendment nor the First creates any individual rights that a state government need respect. The Court, of course, has long since repudiated this principle; beginning in the 1930s, it applied ("incorporated") one provision of the Bill of Rights after another to limit the authority of the states. But it has never done so with respect to the Second Amendment, leaving an opening for Quillici-type decisions.
Second Amendment enthusiasts are understandably eager to see this anomaly corrected. Nevertheless, there is reason not to jump at every perceived legislative affront with a new lawsuit. The procedural posture of a case–especially a novel case–can matter enormously to its outcome. To maximize one's chance of winning, it is important to align one's case with legislation rather than against it. Congress has power under Section 5 of the 14th Amendment to define and protect substantive due process rights from state encroachment. Suppose Congress enacted that the right to bear arms is an individual right that (along with the rest of the Bill of Rights) is "incorporated," so as to be fully applicable against the states, and suppose the gun control law of some state–say, New York–infringed upon that right. In the resulting litigation, the always-tilted playing field would for a change favor the Second Amendment. Instead of remaining in the Supreme Court's dead-letter office, the Second Amendment would move to the status of normal constitutional law.
Normal constitutional argument begins with text. The first question to consider, then, is: What does the Constitution say about the right to keep and bear arms? There seem to be two main theories of what sense is conveyed by the language of the Second Amendment. The theory that is most often encountered by the intelligent lay public reads the words to say something like: "In order to make themselves secure, states have a right to have a well regulated militia, and Congress may not restrict state regulation of militia members' weapons." This is approximately the interpretation favored by most major newspapers' editorial writers, by gun control groups, and by a broad swath of conventional public opinion, running the partisan gamut from left (e.g., Rep. Charles Schumer of New York) to right (e.g., President Nixon) and most political shades in between.
But in places where close attention is paid to what words actually say, the states'-rights reading of the Second Amendment has attracted surprisingly little support. After all, the Second Amendment does not say, "A well regulated militia, being necessary to the security of a free state, shall not be infringed." Nor do the words of the amendment assert that "the right of the people to keep and bear arms" is conditional upon membership in some sort of organized soldiery like the National Guard. Indeed, if there is conditional language in the Second Amendment at all, evidently the contingency runs the other way: "Because the people have a right to keep and bear arms, states will be assured of the well regulated militias that are necessary for their security." Some version of this reading is supported by almost all of the constitutional historians and lawyers who have published research on the subject. Indeed, this view is so dominant in the academy that Garry Wills, the lone dissenter among historians on the proper reading of "the right of the people to keep and bear arms," has dubbed it the Standard Model of the Second Amendment.
Are these textual arguments dispositive? In some (increasingly rare) instances, lawyers are prepared simply to read what the Constitution says and end the conversation at that point. For example, if some question arose about the eligibility of a person who had not "attained to the age of thirty-five years" to serve as president, most lawyers would probably be content simply to follow the command of Article II, Section 1 rather than attempt to penetrate to the deeper meaning the clause must surely have.
But a number of scholars, including some friendly to a broad reading of the Second Amendment like Van Alstyne and University of Texas law professor Sanford Levinson, agree that the Second Amendment is so obscurely drafted as almost to invite confusion and misunderstanding. Where text is inadequate standing alone, one needs historical tools to explain what the provision's language actually meant. And even lawyers who, like me, do not find the draftsmanship all that confusing recognize that arguments, especially arguments about "the right of the people to keep and bear arms" that have become politically incorrect as the 20th century draws to a close, will acquire extra cogency by pointing out that the Founding Fathers of our country are at one's side. Whether or not the meaning of the text seems clear, it is always helpful to adduce evidence of how the drafters of the Bill of Rights would have understood a particular provision's language.
Unhappily, in many cases, including some of the most vexing, such evidence is unavailable. We can only extrapolate and conjecture about how the Founders would have understood the First Amendment's "freedom of the press" to apply to the Playboy Channel, or how the "search and seizure" language of the Fourth Amendment would have been thought to bear on overheard cellular telephone calls. But no ambiguity at all surrounds the attitude of the constitutional generation concerning "the right of the people to keep and bear arms." To put the matter bluntly, the Founders of the United States were what we would nowadays call gun nuts. "One loves to possess arms," Thomas Jefferson wrote to President Washington (whose own gun collection, Don Kates notes, contained more than 50 specimens). And to his teenage nephew, the author of the Declaration of Independence had this to say: "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks."
Addressing Virginia's constitutional ratification convention with characteristic exorbitance, Anti-Federalist icon Patrick Henry declared that "the great object is that every man be armed….Everyone who is able may have a gun." And James Madison, author of the Bill of Rights, recognized "the advantage of being armed, which the Americans possess over the people of almost every other nation," whose tyrannical governments are "afraid to trust the people with arms."
There are at least scores of contemporaneous expressions of similar import. But if one is trying to fathom whether or not the Second Amendment recognizes an individual right, perhaps the most significant fragment of history is this: The idea that the Second Amendment guarantees a collective but not an individual right originated in the 20th century with gun control groups and politicians. The theory was simply unknown at the time of the Constitution's drafting and for more than a century thereafter. (There were anti-gun ideologues in 18th-century America, but these were the Quakers, who rejected the use of arms by anyone, individuals and communities alike.) The "collective rights" theory seems to have flowered in the 1960s or '70s as a prop in national political debates about gun control laws. The most famous and widely cited argument for this position appeared in Parade magazine in 1990, ostensibly authored by former Chief Justice Warren E. Burger, a judge not famous then or now as a constitutional authority and whose 30-year judicial career had in any case included not a single Second Amendment decision.
Akhil Amar of Yale Law School has famously argued that the Bill of Rights can and should be read as a coherent document, rather than as a grab bag of snippets and special pleadings. Taken as a whole, Amar argues, the Bill of Rights is a sort of constitution that embodies a consistent theory, not only about the moral personality of human beings but also about the state and especially its lawless tendencies under the stress and strain of political conflict. In connection with the Second Amendment, this approach has special attractions, because the basic interpretative questions concerning the Second Amendment–what is the "right" and when is it "abridged"?–do not have any specifically "Second Amendment" answers. But if the Bill of Rights is taken as a congruous and interconnected whole, it might be possible to begin the analysis by piggybacking on the fairly deep jurisprudence of constitutional rights that has developed in connection with other amendments.
To begin with, as Amar and others have pointed out, keeping and bearing arms is not the only "right of the people" mentioned in the Bill of Rights. The First Amendment forbids Congress to abridge the "right of the people" peaceably to assemble; the Fourth Amendment forbids violation of the "right of the people" to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The right to keep and bear arms, then, should probably be understood as cognate in some way to those rights–surely in the sense that it is possessed by individuals as those other rights are, and also in the sense that, like those other rights, the right to keep and bear arms is in some way fundamental to the preservation of republican citizenship.
It is beyond all rational doubt that this understanding reflects the view of the Founders. They took from Locke the principle that people have a right to defend themselves, with arms if necessary, and from both Hobbes and Locke–to say nothing of their own experience with the Crown–the principle that central governments have a tendency, which requires systematic mitigation, to become overmighty with those subject to their power. The purpose of an armed population was to guarantee that the central government could not possess a monopoly of violence (no wonder modern-day liberals find the Second Amendment so hateful) and to assure that citizens would have the wherewithal to defend themselves and their communities against tyrants and wrongdoers.
It remains to be answered when it might be said that this right has been abridged. One of the by-products of the political polarization concerning the Second Amendment is that all sides seemingly agree that this is a question that need never be seriously addressed. True-believing gunnies think any form of taxation or regulation of firearms should be regarded as an "abridgement," no interpretation necessary. True-believing gun controllers, by embracing the "collective rights" theory of the Second Amendment, hardly need to reach the question of "abridgement," because their interpretation denies the legal standing of any individual or organization–anyone who is not a "state"–to raise the question. What is needed is some principled way to locate a sane middle ground that gives routine scope to state police powers yet respects and defers to the constitutional norm involved in keeping and bearing arms.
There are several ways one could get a handle on this problem. First, the language of the Second Amendment itself invites one to differentiate between arms that can be kept and borne (i.e., carried) and other arms. This is not the sort of difference that could support a regulatory or legislative distinction, like the "assault weapons" provisions in the 1994 Omnibus Crime Act, between functionally equivalent firearms based on such cosmetic attributes as possession of a pistol grip, flash suppressor, or bayonet lug. But it would make sense of a distinction between rifles, shotguns, and pistols on the one hand and hydrogen bombs on the other. So as a first cut at the problem, one might say that infringement in the constitutional sense does not occur when a statute or regulation imposes burdens on possession of weapons other than those that militiamen might be expected to bring ("bear") into the field with them when summoned from their homes.
It might also make sense to allow legislatures to recognize that in certain circumstances firearms constitute a special danger. One thinks in particular of saloons: Perhaps guns and alcohol do not mix, just as (according to the laws of many states and communities) naked dancers and alcohol don't mix. This sort of limitation on the bearing of arms does not readily emerge from constitutional history or text. It would be defended simply on prudential grounds, the thought being that it is implausible that the right to keep and bear arms would be the only constitutional right not subject to some kind of rule of reason. Though philosophical firearms enthusiasts–like journalists, pornographers, and other single-issue partisans–tend to understand the term right quite absolutely, anyone interested in preserving a system of political and civil rights that impinge and abut on one another will have to take a more refined view of the matter.
We allow the state to regulate the time, place, and manner of speech, or acts (like burning one's draft card) that are heavily laden with speech-like (that is, communicative) content–but we allow this regulation only subject to an all-important qualification. It must not discriminate on the basis of a communication's content, and it must be no more expansive than necessary to accomplish its purpose. Regulating the speech of Democrats more restrictively than that of Republicans, or allowing anti-abortion posters in a certain public place while forbidding abortion-rights posters, would not be regulation that was neutral in its attitude toward a constitutionally protected value. It would be censorship–a pretextual act inherently hostile toward that value. Even formally neutral regulation could disclose such hostility if it exceeded what was necessary to accomplish a proper purpose. For example, if a municipality banned all public speech whatsoever to preserve public peace and quiet (in itself a perfectly licit end), courts would say this action, though formally "neutral," was too broad to be sustained.
The Second Amendment should be seen as analogous. There would be no "abridgement" if regulation were aimed at the time, place, and manner in which firearms are used. The community has a legitimate interest in seeing to it that arms are not kept or borne negligently. It might well be permissible to pursue this interest by insisting that those who keep and bear arms receive adequate education, on the firing range and in the classroom, to assure the responsible exercise of this right. Such a law would not be invalid unless it appeared that it was being utilized pretextually–like the extravagant "literacy tests" that Jim Crow voting registrars in the South used to impose on black voters–to subvert or disparage that constitutional right. Any government burden on "the right of the people to keep and bear arms" must have an important purpose and must be justified in spite of, and not because of, its tendency to discourage the keeping and bearing of arms.
Firearms regulations should be subject to the heightened scrutiny that courts reserve for impositions on other fundamental rights, which means that serious and skeptical consideration will be given to the claim that regulation is necessary, that the means chosen correspond to that claim of need, that the state interest is a very important one, and that the regulations are no more extensive than they have to be to address that interest. As with any civil right, the burden of persuasion should remain with the proponent of legislation that restricts or burdens the right to keep and bear arms, rather than, as with ordinary legislation, on the opponent. But a public policy of simply discouraging people from owning or using firearms is not, in and of itself, a constitutionally permissible objective, any more than discouraging people from religious observance would be permissible to some future, oh-so-progressive government that considered religion as hopelessly declassé as progressives nowadays consider the right to keep and bear arms. Thus the Los Angeles Police Department has behaved unconstitutionally by refusing, over a period of many years, to exercise its statutory discretion to issue carry permits, because the department didn't think it a good idea for people (other than police officers) to carry guns around. And any statute or regulation that burdens the right to keep and bear arms on the ground that guns are a public health hazard should enjoy the same frosty reception in court that would be given to a statute or regulation that burdened the free exercise of religion as a mental health hazard.
The constitutional norms involved in the Second Amendment, unlike those elsewhere in the Bill of Rights, are undeniably controversial. No one scorns the freedom of religion or the freedom of the press; but the propositions that government should not have a monopoly of the means of violence and that "the people" should be entitled (if not obliged) to defend with arms their persons and communities–these are much against the grain of (and, as Sanford Levinson wrote, very much an embarrassment to) the cosseted intelligentsia of 1990s America. It is especially easy to empathize with the policy intuitions of this elite if one is a member of it. But our instincts about firearms are wrong. We upper-middle-class opinion leaders misunderstand the world; we abide in safety behind a ring of steel. Police officers and security guards keep and bear our arms for us, so that we do not remember how constantly we need them. The values and assumptions that gave rise to the Second Amendment come from a world different from the one we inhabit, a world full of irrational hatreds, mortal dangers, and armed enemies. It represents a serious failure of imagination not to recognize how temporary remissions from this dangerous world have been, and not to learn from the Bill of Rights what its drafters had to teach.
Daniel D. Polsby (ddpolsby@nwu.edu) is Kirkland & Ellis Professor of Law at Northwestern University.
The post Second Reading appeared first on Reason.com.
]]>"With regard to the lifting of the arms embargo," President Clinton said, "the question obviously there is, if you widen the capacity of people to fight, will that help to get a settlement and bring about peace, or will it lead to more bloodshed?" For two years, the conventional wisdom of the world community has been that international diplomacy, abetted by an arms embargo, could revive the stability that Yugoslavia enjoyed in the years when it was ruled by the Croat strongman Tito, who had tens of thousands of his countrymen murdered to keep himself in power.
The current bloodletting in the central Balkans may be a modest affair compared to that of 50 years ago between the communists and proto-Nazi Ustashi storm troopers. But those massacres occurred out of the world's sight.
International conscience follows CNN's minicam crews, which are on the scene to record what war is like when waged between soldiers and civilians.
How did the poorly armed Bosnian Muslims, the chief victims of the war, come to be surrounded by well-armed enemies? Things went quite differently in the initially lethal skirmishes between Serbs and Croats in the north. There, after some fighting, Serbia cut a deal, settling for a relatively small share of Croatia. The Croats' military power was nowhere near enough to conquer the Serbs. It was merely enough to make the Serbs appreciate the advantages of peace. Guns did not so much win a war as avert one.
The Bosnian Muslims were not so fortunate. For the most part they were unarmed, and the arms embargo left them helpless against Croat and Serb enemies who wanted their land. Margaret Thatcher, as usual among the first of the world's politicians to discern the obvious, had warned for several months that the embargo spelled disaster for the Muslim people of Bosnia. Until last winter's "ethnic cleansing" proved her point, respectable opinion was very much against her views. Throughout Europe and in the United States, it had been a bipartisan article of faith that the only hope of peace in the Balkans lay in diplomacy aided by an arms embargo.
In the words of David Clark, the British Labour Party's shadow defense minister, "lift[ing] the arms embargo to the Muslims…has always seemed to us rather crazy," like trying to "douse a fire with petrol. It never works." President Bush embraced this premise, and President Clinton remains ambivalent.
The result has been gun control, writ large: a scheme aimed at limiting violence that instead encourages predators to take whatever they want. Both the U.N. arms embargo and domestic gun control are based on the notion that the accumulation of weapons as such tends to encourage violence. The chances for peace and security can thus be enhanced by limiting or reducing the total number of weapons.
This weapons-violence hypothesis has been part of the intellectual furniture of progressive politics for most of this century. It found expression as the fourth of President Wilson's 14 Points and appears in almost the same language in the Covenant of the League of Nations, whose Article Eight provided: "The Members of the League recognize that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations."
As the historian Alfred Zimmern pointed out, "The important word in the first paragraph is 'requires.' Peace, it says…cannot be maintained unless armaments are reduced, or, in telegraphic language: 'armaments mean war.'" The covenant was simply reflecting what was even then a superficial dictum of good-govemment progressivism. The notion that armaments mean war is "a favorite theme on pulpits as well as on platforms," Zimmern wrote. It is also "a mistake which, if allowed to pass uncontradicted, can do infinite damage to the cause of peace."
Modem strategic theory rejects the weapons-violence hypothesis, focusing on stability rather than stockpiles. It starts with the proposition that people tend to pursue the course of action that they believe will give them the maximum return. Hence the likelihood of violence depends on how the expected rate of return on violence compares with the alternatives.
If you can grab an island (or a purse) that belongs to someone else with complete certainty of getting away with it at zero cost, it does not automatically follow that you will grab it. But your probability of grabbing it will be greater than if you think you have a significant chance of getting killed in the attempt—especially if you think the current owner makes the same estimate of the odds. More generally, when the expected value of attacking falls to a value equal to or less than the expected value of doing nothing, rational people will do nothing.
In the arena of international politics, notwithstanding the U.N.'s approach to the war in Bosnia, this way of looking at the problems of conflict and its avoidance has long been routine. Yale historian Michael Howard's views represent those of most researchers in this area: "Wars begin with conscious and reasoned decisions based on the calculation, made by both parties, that they can achieve more by going to war than by remaining at peace."
This model is quite versatile. Its predictions will hold whether we are dealing with two neolithic hunters eyeball to eyeball over a deer carcass, or a criminal and a victim, or two modem sovereigns, each with thousands of hydrogen bombs, toe to toe over Western Europe. In each case, the likelihood of violence depends upon how the antagonists view the relative probabilities of getting what they want, losing what they want, and being killed or injured either way. It also depends upon the availability of other options and the value, positive or negative, that each assigns to possible future interaction with the other. The pivotal question, whether for arms control or crime control, remains the expected return on violence, compared with the alternative.
The Cold War gave scholars and diplomats good reason to ponder such matters. The defining condition of postwar superpower competition was the maintenance of equilibrium. Almost as soon as both the Russians and the West had hydrogen bombs and credible delivery systems for them, the United States abandoned the doctrine of "superiority" in favor of the doctrine officially known as "assured capability for mutual destruction" but called by friend and foe alike "mutual assured destruction"—MAD.
Both sides recognized that the possession of hydrogen-bomb arsenals fundamentally changed the game. The element of surprise—striking an enemy first without warning—had always had its benefits, but never until the atomic age had it been possible to begin and end a war with the same stroke. This so-called first strike capability is everywhere recognized as a profoundly destabilizing condition. Two antagonist nations with first-strike capabilities represent the deadliest possible sort of Prisoner's Dilemma. Each is better off (and knows its adversary knows each is better off) striking first, no matter what its adversary decides to do. If both sides see things the same way, then the mutual first-strike situation is an OK Corral, where success is defined by which gunslinger is quicker on the draw.
Why, then, are we still here? A deus ex machina, in the form of the second-strike weapon, appeared before either country became confident about the once-and-for-all sufficiency of its nuclear arsenal. By the late 1950s, both the United States and the Soviet Union could see that the day of reckoning was at hand, and in 1958 President Eisenhower and Secretary Khrushchev agreed that high-level negotiators from each side should meet in Geneva to discuss the problem of surprise attack.
As economist and game theorist Thomas Schelling describes it, "the occasion was crucial in identifying what was to become pivotal in arms negotiations for the next decade and, more important, in the design of strategic forces….The idea that both sides could favor each other's strategic-force security was dramatized by Secretary of Defense Robert McNamara's testimony to Congress that he would prefer the Soviet Union to invest in secure, hardened underground missile silos, rather than soft sites above ground, because the latter both invited and threatened preemptive attack while the former would encourage patience in a crisis " The victim who can strike back at the aggressor from the grave has restabilized the situation by restoring to zero the expected payoff from mounting a preemptive strike. This point is not limited to arms-control negotiations and the currently suspended Cold War.
Consider a less well-known example of violence that should have happened but didn't. Purdue University economist John Umbeck has investigated the formation and initial distribution of property rights in the High Sierra gold fields in the middle of the 19th century. After gold was discovered at Sutter's Mill in 1848, many thousands of prospectors poured into the hills, staked out claims, and removed minerals with a value (in today's money) in the hundreds of millions of dollars. The gold fields comprised an area of some 30,000 square miles in the California mountains. There was no civic infrastructure there at all—no towns, no highways, no lawmen, and, perhaps most significant of all, no official law for them to enforce anyway. The military governor of California had recently nullified by proclamation the Mexican land law that had previously governed the region, without proclaiming any substitute for it, temporary or permanent. Virtually all the '49ers were carrying firearms or kept them handy. Umbeck was struck by an odd fact: There was very little violence.
Another story from the old West makes a similar point. In 1889 the great Oklahoma Land Rush began. Until the late 1880s the United States respected Indian claims to Oklahoma, which meant that white people couldn't legally own land there. Through a process that no one should be proud of, this deal was busted, and a portion of Oklahoma, about 20 percent of its territory at first, was opened to settlement, beginning on a certain day at a certain hour. Oklahoma real estate was valuable stuff, just waiting to be claimed. The people who went in to settle it, like the '49ers, were mostly armed. But according to Washington College historian Robert Day, who has studied the period, they accomplished their objective essentially without violence.
These findings should surprise anyone who believes that "weapons cause violence." Not only were the Oklahomans and '49ers heavily armed, they were poor even by the hard-scrabble standards of their time. They must have been ambitious for wealth, and they probably felt that they had little to lose. From such a mix of passions and motives and guns, there ought to be one gunfight after another, as always happens in the movies—until one fierce soldier of fortune survives to grab all the gold in California, and all the farms in Oklahoma, for himself. If weapons cause violence, it's strange that things did not work out this way.
Of course, not all frontier tales are of harmony and accord; sometimes armed populations did behave violently, and sometimes they still do. The important point is that sometimes they do and sometimes they don't. The fact that heavily armed people commonly do behave themselves throws down a gauntlet in front of the weapons-violence hypothesis. The theory definitely does not predict that a large, disorganized group of heavily armed men rushing headlong after the same treasure will ever behave in a consistently peaceable manner.
Umbeck offers an intriguing explanation for the low level of violence. He observes that violence is much more likely when there are large perceived differences in the ability of individuals to use force effectively. In the California gold fields and later in the Oklahoma Land Rush, everybody was about equally armed (as Umbeck notes, they didn't call the six-shooter the "equalizer" for nothing). To some extent this sort of equality is a matter of perceptions. But if perceptions tend to track underlying reality in the long run, then in the long run it is a matter of fact as well. A peaceable equilibrium, however tense, tends to prevail in a world where everyone reasonably fears retaliation from, or on behalf of, potential victims.
Why isn't the face-off between individuals with guns—each of whom can decisively preempt retaliation by the other—precisely analogous to that between two thermonuclear superpowers before they have acquired second-strike capabilities? It seems reasonable to suppose that the social structure in which the Oklahomans and '49ers were embedded offered a surrogate for a second strike. Historian Roger McGrath, who studied two now extinct Gold Rush boom towns, chronicled the activities of "vigilance committees" that punished wrongful violence when the duly constituted authorities failed to do so. These towns turned out to be passably lawful places—even though the police and the courts were notoriously shoddy. Very little violence against women was reported, and there was very little theft, robbery, or burglary—facts for which the official institutions of law enforcement could claim little credit.
McGrath writes: "Rarely were the perpetrators of these types of crimes arrested, and even less often were they convicted….The citizens themselves, armed with various types of firearms and willing to kill to protect their persons or property, were evidently the most important deterrent to larcenous crime." So a more or less peaceful equilibrium does seem to be compatible with very high levels of armaments, given a second-strike capability or some practical equivalent.
One sees the converse result, an equilibrium of violence and reciprocated violence, in many city neighborhoods where high levels of arms are combined with a weak social structure. Although we are accustomed to reading social disintegration from statistics that tell of high infant mortality, low graduation rates, or the bad condition of the housing stock, what is actually crucial is not that these conditions exist but that they persist, despite significant efforts to get rid of them.
It has been something of a puzzle for a generation of policy makers why, despite numerous, expensive efforts to fix them, these problems have been so hard to solve. From the viewpoint of strategic theory, however, there is no puzzle. What causes disintegration—the falling apart of things in such a way that they cannot simply be put back together—is a structure of incentives in which cooperation makes no sense.
When people do not believe that their own or anyone else's rights will be protected or wrongs rebuked, cooperation is the behavior of a sucker. In strategic terms, a disintegrated social world simulates a world of strangers. Dealings between strangers are precarious because a person cannot reasonably expect that cooperation will be reciprocated. In a world of strangers, self-interest is all on the side of selfish non-cooperation—vandalizing property, not flushing toilets after using them, cheating in transactions.
What all this suggests is that arms per se are not the issue, a conclusion that has obvious relevance to the gun-control debate. Gun-control laws usually aim to reduce the absolute number of firearms in circulation, but this is not at all important to the violence rate. What is important is the existence of a robust equilibrium between lawful and unlawful force—a second-strike weapon or some equivalent to make preemptive aggression seem a zero-retum proposition.
In theory, one way of achieving such an equilibrium would be simply to hire more police officers. But in practice there is no reasonable prospect of hiring nearly enough police officers to serve as an adequate second-strike surrogate in any American city. Do the math. Each new police officer adds about $60,000 per year to a city's payroll costs. If each officer works 2,000 duty hours per year, it will cost a quarter of a million dollars just to add a single additional officer to each shift. No serious student of public administration believes it is feasible to address existing shortfalls in security services this way.
It is always possible, however, to make a bad situation worse. Gun-control laws discourage a private alternative to hiring more police officers by making it harder for the average citizen to obtain a firearm. Indeed, gun control has a disproportionate impact on people who want firearms for legitimate reasons. Both potential victims and criminals seek guns for essentially the same purpose—to get tactical dominance in a confrontation with another person. But criminals know for certain that they'll need their guns, because they plan to have hostile interactions with other people. Law-abiding people, on the other hand, will need their guns only if confronted with a situation in which threatening to use lethal force is both legal and feasible.
So even if the good guys and the bad guys each assign identical values to dominating a hostile encounter, bad guys will still value guns more, because on average they will be more certain of having such encounters. So there is some wisdom to the old NRA slogan, "If guns are outlawed, only outlaws will have guns." Gun control tends to put potential victims at a disadvantage relative to criminals.
This will remain true as long as guns are available in significant numbers.
Whatever the obstacles to gun ownership, criminals will have a stronger incentive to overcome them. But what if guns were eliminated completely, or nearly so? A society with no guns to speak of might possibly be safer and less violent than the one in which we live. A different sort of equilibrium might prevail—the equilibrium of doves rather than the equilibrium of hawks.
This dream may or may not appeal to you. The crucial point is that it's not likely to be realized. It would require the government to confiscate some 200 million privately owned firearms and prevent future production or smuggling.
In the real world, security would be enhanced by encouraging the distribution of more arms rather than less. Certain categories of city dwellers have a very low statistical probability of engaging in predatory behavior. Social-security pensioners, virtually all adult females with clean criminal and psychiatric records and no history of substance abuse, and most employed men over 40 with similarly clean backgrounds are all essentially invisible in the crime statistics. Any such person who is prepared to learn what is necessary in order to handle a sidearm safely and appropriately ought to be encouraged—not merely permitted—to acquire that knowledge and carry the weapon, as police officers do, wherever they go.
Everyone appreciates that the presence of armed police officers in a neighborhood makes it a more secure place than it would be in their absence. Armed civilians of equally good character and with equivalent firearms training would be useful in a similar way, and tens of thousands of such people live and work in every big city in the country. One should think of them as auxiliary peace officers, not vigilantes, for there is no reason to believe that they would act beyond the law. Common law has always allowed self-help when regular legal remedies have been inadequate. Self-help means individuals acting under legal sanction but on their own initiative to defend important interests that court officers and police cannot protect.
Self-help is not "taking the law into your own hands." It is the law currently in every state and has been a part of the Western legal tradition practically from biblical times. Any gun-control measure that makes weapons harder to get for good guys than for bad guys certainly complicates self-help to some extent and would likely produce more violence rather than less. Lawmakers would be better advised to consider how to help people organize to defend themselves from violence that the police cannot possibly stop.
The advice offered here runs counter to conventional wisdom, to say the least. But conventional wisdom has generally been wrong about arms policy. It predicted that keeping weapons out of Bosnia would lead to peace. It overestimated the law's ability to get guns away from predators and keep them away and overestimated the ability of the police force to protect disarmed civilians. It has made its futile pursuit of first-best solutions (that is, universal disarmament) the enemy of achievable second-best ones. It has thereby made a mess that will not get better by continuing to wish for a return to some imaginary square one where nobody had a gun or a reason to use one.
While the daydreaming goes on, conditions continue to stagnate or deteriorate in city neighborhoods that went from bad in the '60s to worse in the '70s and have stayed as bad even as legal gun controls have become ever more stringent. Political scientist John Dilulio has persuasively argued that the paramount problem of the inner cities is a crime problem. Where crime and violence flourish, nothing else will. Crime either causes or makes it prohibitively difficult to alleviate almost every other kind of social ill. If the foregoing analysis is right, then the public policy of conventional wisdom has a great deal to answer for in the present situation, which it did much to create. It is time to consider some expedients that have, according to our best understanding of what makes people tick, a reasonable prospect of doing some good rather than making matters worse once again.
Daniel D. Polsby is Kirkland & Ellis Professor of Law at Northwestern University.
The post Equal Protection appeared first on Reason.com.
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