If You Liked Watergate, You'll Love Handgun Prohibition

Wire tapping, illegal entry, illegal search and seizure-without them, handgun control is impossible.


Don Kates, a St. Louis University law professor, is the editor of a new book, Restricting Handguns: The Liberal Skeptics Speak Out. It is a collection of essays by academics, "liberal" political figures, and various civil rights activists, feminists, and officials of Amnesty International and the ACLU. The following article is made up of selections from essays in the book by Professor Kates; Mark Benenson, former American chairman of Amnesty International; David Hardy, a Tucson civil liberties lawyer and expert in firearms law; and Kenneth Chotiner, a civil liberties lawyer and vice president of the ACLU of Southern California.

It has been said that "support for 'gun control' is the litmus test of liberalism." Yet people who easily fall within the vague general category of liberalism are increasingly coming to oppose the prohibition of handguns for civilians. Why? Because the data show that such legislation is ineffective in reducing the number of handguns owned and might be effective only with an enforcement effort involving massive violations of citizens' constitutional rights. These conclusions become eminently clear once some popular notions about gun prohibition are demythologized, the dismal results of existing prohibitions are squarely faced, and liberty is kept in unwavering focus.

SHIFTING OWNERSHIP Many people who are unfamiliar with firearms-manufacturing technology assume that a handgun ban would necessarily reduce the availability of such weapons—if not immediately, in the long run, as those now available are surrendered to the police, confiscated, wear out, etc. But in several ways a handgun prohibition might actually increase the number of weapons available to those it is intended to disarm, namely, criminals and ordinary citizens who think it necessary to keep a loaded handgun lying around their residences for self-defense. At present such people compete for a very large, but still limited, number of handguns, against a very large number of other citizens who want them for recreational purposes, such as target shooting.

It is necessary to differentiate these subgroups according to their purpose in wanting a handgun, for it is only in direct relationship to those purposes that a handgun ban is likely to affect their conduct. Target shooters are unlikely to disobey a ban (except out of sheer defiance) because the use to which they wish to put their handgun has become virtually impossible without high likelihood of detection. But this does not mean that they will tamely surrender their handguns to the police. Instead, with minimum danger of detection, they can recover a large part of their investment (or even make a handsome profit) by selling their handguns on the black market. Thus, even assuming that the overall supply of handguns is no longer increasing, the pool available to those who want handguns for self-defense or criminal purposes has been substantially increased by the addition of large numbers of weapons previously held by target shooters. At the same time, that pool is no longer being competed for by the former target shooters. Acquisition is thereby made easier for criminals or self-defense users.

But, it is argued, since black market prices are inherently higher because of the risks involved, at the very least a handgun ban would result in pricing some criminal or self-defense users out of the market. In fact, however, any price rise will be limited to the extent that some people obey the ban on buying handguns, thereby reducing demand. And if the handgun ban is successful in compelling large numbers of present gun owners to dispose of their weapons, the result might well be an increase of supply beyond demand, thereby actually decreasing the cost of a black market handgun to a self-defense or criminal user. (Whereas, of course, if the handgun ban is not successful even in driving law-abiding gun owners out of the market, it seems unlikely that it will be successful against any other sector of the population.)

REDUCING QUALITY But there is a more telling argument yet against the assumption that banning handguns will at least result in raising their price to the criminal and self-defense types. That assumption rests on an unexamined belief that price is the only variable in the handgun market. In fact, the very imposition of a handgun ban makes quality an alternative variable. The purchaser of a snub-nose Colt, Smith & Wesson, or other commercially manufactured defense pistol receives a beautifully finished weapon that is highly accurate and has a life expectancy of 25,000-50,000 shots. In less than a day a Vietnamese or Pakistani villager can produce a crude, but fully functional, copy of such a handgun using tools considerably less sophisticated than those found in millions of American households.

Made of inferior materials, by a producer with no particular reputation, who does not pay taxes or suffer any of the costs involved in government supervision, such a weapon could profitably be priced far below what is now charged even for cheap imported guns of comparable caliber. Such illegally manufactured weapons would be worthless for target shooting and might have a life expectancy of only a few hundred rounds. But these limitations would not matter to those who want guns for robbery, murder, or self-defense, since such activities are normally conducted at point-blank range and involve at most a few shots.

Only inability to compete against the superior product presently being manufactured, and the lack of an established black market, precludes the revival of handgun manufacture as a "cottage industry" carried on in households and small machine shops across the country. With these impediments removed by a handgun ban, the total annual production by such small entrepreneurs could easily outstrip present annual handgun production and importation. With low-quality materials and no aesthetic frills, such weapons would become available to people who cannot now afford handguns.

RECORD OF FAILURE More compelling than any theoretical extrapolation can be is the actual performance record of handgun prohibition systems where they are in effect—a record of failure admitted even by their most ardent proponents. In 1971 the mayor of New York, John Lindsay, a lifelong foe of handgun ownership, reported to a congressional committee that his city contained eight million illegal handguns. Though his precise figure must be dismissed as political hyperbole (it seems unlikely that there is one handgun for every man, woman, and child even in New York City), it is the consensus of informed opinion that the Sullivan Law has been virtually useless as a means of keeping firearms out of the hands either of criminals or of an ever-growing number of New Yorkers who think they need them for self-defense.

The rough estimate on which most law-enforcement officials seem agreed is two million illegal handguns in the city. It has been claimed that what this proves is not the inherent unenforceability of handgun prohibition but the need for a national Sullivan Law that would prevent New Yorkers from buying guns in other states. But such sales are already illegal under both federal and New York law. Yet, if the estimate of two million illegal handguns is accurate, New York City has only half a million less than are legally owned in the entire state of California—and a rate of handgun possession significantly greater than that of the United States as a whole. It is difficult to credit anything but inherent unenforceability for the fact that, after 70 years of rigorously enforced handgun prohibition, handgun-allowing states that are supposedly the source of the problem have lower rates of handgun ownership than does New York.

The attempt to blame the failure of handgun prohibition on the ready accessibility of nearby handgun-allowing states is doomed by evidence from Britain, where the prohibition is national in scope. The only in-depth study, which was done at Cambridge University in 1971, reports that "fifty years of very strict controls on pistols has left a vast pool of illegal weapons." This Cambridge report concludes that Britain's handgun population has remained constant (except for occasional increases), for the number of handguns confiscated by, or turned in to, the police remains about the same year after year.

THE ENGLISH EXPERIENCE Though cross-national comparisons are fraught with danger, the fact that handgun prohibitions have proven unenforceable even in England is particularly instructive. A host of factors would seem to make such prohibitions far more enforceable in England than in the United States.

England is a relatively small, isolated, and well-policed island that has not had a major war—the source and impetus for so much civilian gun acquisition—in almost 35 years. Handgun ownership was comparatively low in England when prohibition was instituted. As the Cambridge study notes, law-abiding Britons willingly complied because the level of violent crime was also so low at that time that few seriously considered it necessary to have arms for self-defense. So sedulously has that attitude been fostered by successive governments that even today, when the incidence of violent crime is much higher, there is no strong public sentiment that victims should be allowed arms for self-defense.

As to the enforcement of the handgun ban, there is no English constitution to limit the powers of English police. And public disapprobation of handgun ownership is such that the extensions of search and arrest powers that have accompanied each new Firearms Act have been virtually unopposed.

It should be unnecessary to do more than list the contrasting characteristics which make handgun prohibition far less enforceable in our country: our greater population and much greater land mass, which is much less well policed; our hallowed Constitution with its restraints upon police powers; our very different attitudes about the value of handguns and the right to own them; our history of massive disobedience to banning things (alcohol, marijuana) that substantial numbers of Americans value. In short, if a handgun ban proves unenforceable even in England against those who should be disarmed (while it diverts enormous police administrative and enforcement resources), it seems unlikely to be enforceable anywhere, particularly not here.

LIBERTY IMPERILED A further point of fundamental importance is that the extent of resistance is likely to bring about increases in police powers which, while unlikely to suppress a level of defiance that would equal or exceed that toward Prohibition and marijuana laws, would imperil civil liberties. Unfortunately, this is an issue that has attracted little notice from many civil libertarians and has been summarily dismissed by some of those who have treated it.

At least one congressman who has repeatedly introduced national handgun prohibition bills strongly denies that their enforcement will require or result in significant violations of the Fourth Amendment's ban on unreasonable search and seizure.

Given the enormous number of items currently prohibited by law, it seems highly unlikely that the addition to the list of one more illegal commodity would lead to a significant increase in the incidence of police searches. Gun control advocates do not envision or support massive police intrusions into private homes in search of handguns; the constitutional requirement of a specific warrant obtained as a result of corroborating evidence and signed by an impartial magistrate would remain enforced to preclude unreasonable searches.

The author of these comments, Rep. Robert F. Drinan, is a distinguished legal scholar and civil libertarian. But other civil libertarians take the potential constitutional costs of a handgun prohibition much more seriously—even though agreeing (in the abstract) that handgun prohibition would be desirable if constitutionally enforceable.

ACLU executive director Aryeh Neier comments:

I want the state to take away people's guns. But I don't want the state to use methods against gun owners that I deplore when used against naughty children, sexual minorities, drug users, and unsightly drinkers. Since such reprehensible police practices are probably needed to make anti-gun laws effective, my proposal to ban all guns should probably be marked a failure before it is even tried.

Similar is the appraisal of Dr. Donald T. Lunde, a professor of psychiatry and of criminal law at Stanford University. After asserting his belief that banning all firearms would significantly reduce homicide, he says:

…but how would we go about disarming the most heavily armed population in the world? [The passage of such legislation would not produce compliance among] the millions who are opposed to gun controls or the millions who currently possess guns obtained illegally. Enforcement of nonvoluntary provisions would be unworkable: The search and seizure aspect of such provisions would infringe on civil liberties and would require vast resources of manpower and money which are unavailable.

ENFORCEMENT POWERS One reason why other civil libertarians are facing up to the dangers to which Rep. Drinan is so blind is the evidence accumulating daily to refute his confidence that "gun control advocates do not envision or support massive police intrusions." Unfortunately, that is precisely what a growing number of prominent handgun prohibition advocates do envision and support.

On October 7, 1977, federal appellate judge Malcolm Wilkey published in the Wall Street Journal a guest editorial urging the Supreme Court to abandon the exclusionary rule (whereby illegally seized evidence may not be used in court), a rule it has adopted to enforce the Fourth Amendment. His argument centered on the rule's effect upon gun laws, though he was concerned with drug laws as well. It is only when closely compared to the ordinary criticisms of the exclusionary rule that the unique, and uniquely ominous, character of Judge Wilkey's criticism becomes apparent. For only then does it become clear that it is not the exclusionary rule of which he wishes to be rid, but the Fourth Amendment.

As Judge Wilkey himself says, it is the requirement of "'probable cause' to make a reasonable search" that defeats gun control laws. But that requirement is not part of the exclusionary rule; it is part of the Fourth Amendment. It is the Fourth Amendment. The exclusionary rule merely provides that when police obtain evidence by violating the Fourth Amendment, that evidence cannot be used in the trial. This rests upon the Supreme Court's commonsense realization that police are much less likely to break into houses, etc., without probable cause if they know in advance that they cannot use any evidence they obtain this way.

Most critics of the exclusionary rule argue that it is unnecessary because (they say) the police can be adequately deterred from illegal search by the prospect of being criminally prosecuted or of civil liability. Judge Wilkey is unique among the critics in that he agrees with the Court that the exclusionary rule is the only really effective way of curbing police violations of the Fourth Amendment. The very thing he condemns about the exclusionary rule is that it does work, that it does prevent the mass searches without probable cause that he believes are necessary to make a gun confiscation law effective.

What Judge Wilkey seeks is a judicial repeal of the Fourth Amendment, so that, while it would remain in theory, in fact it would be unenforced. So much for Rep. Drinan's assurance that under handgun confiscation "the constitutional requirement of a specific warrant [based on probable cause and] signed by an impartial magistrate would remain in force to preclude unreasonable searches."

NO 1984? Judge Wilkey's views do not represent an isolated aberration among the advocates of handgun confiscation. A few months before his article appeared, the Detroit Free Press published a guest editorial by police inspector John Domm. He called for "reinterpretation" of the Fourth Amendment to allow police to swoop down on strategically located streets, round up pedestrians en masse, and herd them through portable gun-detection machines. The same idea was heralded in the September 1977 Harper's by Stephen Brill, a leading handgun prohibitionist who has elsewhere urged that local police and federal agencies should model gun law enforcement on the manner in which drug laws are enforced.

These views are by no means new. In a book that prohibitionists have quoted and endorsed ever since its publication in 1970, Norval Morris and Gordon Hawkins advocated the prohibition of all firearms. To enforce this they called for the development of "portable and discriminatory monitors capable of secretly searching anyone passing through a door or along a footpath to ascertain if he carries a concealed gun." They continued: "There are surely no 1984 fears in this. There can be no right to privacy in regard to armament."

Professor Morris, former dean of the University of Chicago Law School, was recently nominated to head the federal Law Enforcement Assistance Administration. On September 27 and 28, 1978, under exceptionally severe questioning from members of the Senate Judiciary Committee, he retreated from the quoted statements, describing them as "stupid simplifications," "inept overstatements," "an author's aberration," "rather science fiction," and "Utopian views." Needless to say, this Utopia is not that of the traditional civil libertarian. Neither, apparently, is it that of the Senate, which failed to approve his nomination.

AGAINST TYRANNY Handgun confiscation poses an enormous hazard both to the continued health of the Fourth Amendment and to the development of its still fragile child, the constitutional right of privacy. Civil libertarians who embrace the confiscation cause risk being seen—and correctly so—as supporters of constitutional values only insofar as these inhibit legislation they care little about, but not their own pet proposals. If civil libertarians instead forthrightly oppose confiscation legislation because of its constitutional dangers, they not only help avert those but seize a momentous opportunity as well. That is the opportunity to educate and sensitize our nation's 50 million handgun owners to civil liberties. There is evidence that gun owners may be ready to rally behind this type of leadership if civil libertarians are ready to give it.

Harlon Carter, executive vice-president of the National Rifle Association, was formerly head of the United States Border Patrol. In that position he, like most other police officials, opposed the exclusionary rule. Since joining the NRA, however, his position has altered 180 degrees. In fact, since federal handgun confiscation was first proposed in the early 1930s, the NRA has consistently pointed out the dangers it presents to Fourth Amendment rights. It has also taken the lead in publicizing Fourth Amendment and other constitutional violations against gun owners by federal officers enforcing federal gun laws—violations about which the ACLU has generally remained silent.

Illustrative of the "consciousness-raising" such publicization can produce among gun owners is their reaction to Inspector Domm's proposal for "reinterpretation" of the Fourth Amendment. Though no civil liberties publication seems to have mentioned it, the Domm proposal was fully reported in the monthly national magazine of the NRA. The response it received—from a police officer, no less—was a letter that no civil libertarian can fault either in its invocation of hallowed constitutional traditions or in its dire conclusion:

…John Domm was quoted in the March issue as urging a rewrite of the Fourth Amendment.

Have we lost sight of why there are Amendments to our U.S. Constitution? The reasons are clear to me. They are to protect the citizens of our country from government. I am not talking about foreign government.

Our founding fathers knew what it was like to live under a government which allowed anything for government and guaranteed nothing for the governed. They decided that when they finally won out over this tyranny it would not happen again, not in their country. So they wrote in safeguards right from the beginning, and they wrote them clearly, strongly and very to the point.

I am also a police officer of ten years and more service. I know about the fear of police officers and the problems of weapons in the hands of criminals. I am also very much aware that as police officers we are extensions of the government. We enforce the rules of government, no matter what level. I will never ask for or hope for any law which will give me or any other police officer the right to search and seize with any greater freedom than is already at hand.

We should never ask for the elimination of a guaranteed right of the people.

There aren't too many left anymore.

Restricting Handguns: The Liberal Skeptics Speak Out is available from North River Press, Box 241, Croton-on-Hudson, NY 10520.