Gun Violence In The U.S

Posted July 18, 2016

July 14, 2016 Picture: George Frey/REUTERS

This article is part of The Critique’s July/August 2016 Issue “No Silver Bullet: Contending With The Complexity Of The Gun Violence Debate In The United States”

Introduction

In the United States, the causal mechanism for a high percentage of violent bodily injury is gunshot. Mass shootings – for examples, Orlando (49 victims), San Bernardino (14 victims), Newtown (26 victims) – prompt calls for additional federal and state gun control laws.

Responses do not divide neatly into “pro-control” and “anti-control” camps. Rather, the division is among pro-controllers [See Hunt on what the gun debate is really about: gun control vs gun prohibition]. However, they view violence differently, the goals of gun control differently and they manage gun-related stigmatization differently. Their default positions about fitness for gun ownership are opposed –

non-criminal adults are/should be presumed “fit” until proved otherwise by due process of law, using high standards of proof reflective of the seriousness of the right

versus

no one is/should be presumed “fit.” Few should be allowed to meet a strict standard to prove otherwise. No serious right is implicated by taking or prohibiting guns. Therefore, the lowest standard of proof of misuse should regulate permanent loss of gun privileges

In President Clinton’s first administration, despite their differences, these pro-controllers found limited compromise. The National Instant Check System (NICS) ultimately received strong support. But the marginally supported 10 year ban on producing statute-defined “assault weapons” and “high-capacity magazines” was bitterly disputed.

Of importance, but under-appreciated at the time, the “national conversation about guns” occasioned by proposing, amending and enacting these measures provoked a sustained and very large increase in the number of civilian-owned guns of all types and calibers. This unintended but predictable result had to be regarded as a cost for advocates of decreasing gun prevalence.

Of much greater interest, an invisible hand had been freed to conduct a decades-long natural experiment. Will a large increase in guns, including “assault weapons” made available by the sunset of the ban in 2004, be associated with a proportional increase in gun violence?

During the Obama Presidency, further compromise between opposing pro-controllers has become impossible. The President’s invitation to a renewed “national conversation about guns”, while baiting his opponents as ignorant, contrary to common sense, morally retrograde, “bitter clingers,” has destroyed the preconditions for respectful, tolerant, fact-guided discussion. No one anymore sees advantage in reestablishing these conditions.

In this paper, I will further describe and criticize the posture of the pro-controllers.

Both have noteworthy weaknesses, but they are not equally weak. The pro-gun/pro-controllers tend to know better existing gun regulations from personal experience and are better fact-guided than the anti-gun/pro-controllers who tend to (i) know little about guns, (ii) regularly confuse semi-automatic firearms with “weapons of war” machine guns, (iii) prefer stigmatizing guns rather than wickedness/wrongdoing, and (iv) know even less about current gun law beyond its supposed “laxness,” “inadequacy” or “virtual non-existence.”

I.Threshold Question: Does Available Evidence Suggest That Gun Control Laws Effectively Reduce Gun Violence?

It appears that no current gun control laws can be shown effective by good evidence in reducing gun violence. Systematic reviews by the CDC and the Committee on Law and Justice, National Research Council, National Academy of Sciences reached the same conclusion about this. For example, the CDC Task Force evaluated 51 studies for evidence-based quality. It found “insufficient evidence to determine the effectiveness of any of the firearms laws reviewed for preventing violence.” [1]

A historical review of the English experience with gun control found England’s homicide rate to be lower prior to national gun control laws than afterwards. England’s low rate of gun violence post-control cannot be good evidence for the causal role of gun control laws on its homicide rate.

Indeed, England’s homicide rate is higher now (2.0/100K) than it was in 1900 (1.5/100K).[2] A study of homicide from the 14^th Century (prior to the advent of personal firearms) to the beginning of the 19^th Century in England and in Continental Europe found homicide rates falling from 25-50/100K in 1350 to 1.5/100K in 1900.[3]

This is not to say that increasing civilian gun prevalence over centuries caused the centuries-long steady decline in homicide in England and across Europe. But the apparent long term, non-association between increasing gun prevalence among civilians (as personal firearms became more reliable and cheaper) and falling violence rates makes dubious the assertion of a positive association between increasing gun prevalence and the most clearly-defined, best-documented and most studied measure of violence – murder.

A recent article in the British medical magazine Lancet begs to differ. Based on two selected years (2008 and 2010) of data and reviewing the effectiveness of 25 gun control laws across the United States, the authors claim to have proved that 9 gun control laws can be associated with reduced firearm mortality (but not reduced overall mortality), 9 gun control laws can be associated with increased firearm mortality and 7 gun control laws had no significant association.

The authors claim that federal legislation mandating universal background checks for purchase of firearms and ammunition plus firearm fingerprinting would reduce the U.S. homicide rate 90% – to 1.9/100K. [4]

This is a remarkable claim. States that already have these requirements (Maryland, New York, California) were mid-pack homicide rate wise prior to the enactment of these laws. They have never been among the States with the lowest homicide rates since.[5]

States without these laws (e.g. Idaho, Montana, Wyoming, Iowa, Vermont, New Hampshire) have long had the lowest U.S. homicide rates – on a par with such bench marks as England and continental Europe. Cramer’s interrupted time series study of the effect of universal background checks on murder rates concluded that the evidence does not support a significant positive association. [6]

Graphed data from the U.S. Department of Health Statistics on long term homicide trends in the U.S.

[7] do not confer pass smell-test plausibility on the authors’ hopes for gun control law efficacy.

Over the last century, the civilian stock of guns rose as the population increased. The homicide rate varied up and down, paying gun control laws no mind. There is plausibility in claiming that rising homicide rates are associated with enactment of gun control but no plausibility in claiming that gun control prevents rates rising or falling.

II. The Trigger Pulls The Finger

One group of U.S. pro-controllers (composed mostly but not exclusively of Democrats, Progressives and Political Liberals) think that, after giving all due regard to (but in the end, virtually discounting) evil intentions, race and ethnic hatred, ideologically or religiously guided murderousness, mental illness, self-destructiveness, incompetence and carelessness, the gun violence problem is simple. High gun prevalence, lawful as well as unlawful, is the problem. Why? Because, “The trigger pulls the finger.” (TPF). [8]

TPFers sometimes argue, but more often make it axiomatic, that trigger-prevalence determines the rate at which trigger-fingers get harmfully pulled (the numerator for gun harm = an aggregate of gun murders + gun suicides + fatal gun accidents. No denominator is provided to enable calculating a rate, e.g, would it be total civilian guns? Total gun-uses annually? Total shots fired annually?).

These controllers deny that guns in civilian hands tend to deter, mitigate, de-escalate or even reasonably defend against unlawful violence. They say the reverse is true. They insist that the state, not the citizenry, bears the responsibility to protect against criminal violence. They deny that the U.S. Constitution is any impediment to “reasonable gun control”— including a ban on all “bearing of arms,” openly or concealed. They think that more guns makes us less safe, not safer. TPF theory generates empirically testable hypotheses:

(a) that gun-armed criminals will injure their victims more often that non-gun criminals;

(b) that gun armed resistance to criminal attack will turn out worse than submission for victims;[9]

(c) that more civilian gun carrying (open or concealed) must tend to (and not merely anecdotally) transform unpleasant but survivable pushing/shoving fisticuffs into tragic, bloody gun-fights with body counts. More guns, more gun violence yielding more violence overall. [10]

TPFers, further claim that gunshot injuries inherently are multiple times more lethal than injuries from other mechanisms (punching, kicking, stabbing, cutting, bludgeoning, suffocating). From which they infer (an empirically testable association) the higher the percentage of murders and suicides by gunshot, the higher the murder and suicide rates. Reduce gun prevalence, they claim, and the percentage of injury by gunshot will decline, the overall rates for murder, suicide and fatal accidents will fall.

TPF has a further corollary: the trigger will pull the finger until the gun is empty. If so, proliferation of civilian owned assault-style semi-auto rifles (now estimated between 7-10 million) and other firearms that take high-capacity magazines must produce more gunshot victims with multiple wounds and increasingly frequent multi-victim shootings.

This remarkable thesis has been supported on economic grounds. Guns are a durable good. All durable goods markets tend to saturate. Affected industries must create demand through innovation. Allegedly, the gun industry did so by innovating and marketing lethality rather than product safety. [11]

Paired with TPF, the argument is that mayhem must increase in so far as firearm lethality-marketing is successful. Both parts of the argument are testable by data – on firearm production and by trend-data on homicide, suicide and fatal accidents.

The first part is of the argument is confirmed. The production data graphed below show that the industry has successfully marketed high capacity rifles and handguns. The predicted mayhem consequence is decisively disconfirmed.

III. The TPF Program

Having arrived at a simple diagnosis for the “unacceptable” level of gun violence in the U.S. – too high gun prevalence among civilians – TPFers’ gun control program follows two coordinated tracks – one legal, the other social.

(a) No adult should be presumed “fit” to own a gun.

(b) Gun owning (“keeping and bearing”) is not a genuine fundamental right of citizenship and should not be conceded (except for strategic political purposes).

(c) Gun possession should be strictly limited to “sporting purposes.” Firearm competence and soundness of mind must be established and regularly re-established by stringent tests.

(d) Handguns should be stigmatized – but also “assault (style) rifles and any firearm that takes a high-capacity magazine. “No one needs…”

(e) Impose liability on the gun industry for the knowing marketing of inherently dangerous, ever more lethal products

(f) Expand “gun free zones” by law. Define the perimeter of these zones expansively, make them overlap so that lawful gun carrying by civilians becomes virtually impossible.

(g) Schools (gun free by law and by signage) should disallow NRA or Second Amendment T-shirts on campus. Single out for discipline children who draw pictures of guns while in school or who point their fingers gun-like while on school property. Encourage school authority figures to react judgmentally to students who are hunters or come from a family of hunters.

(h) Stigmatize gun owners – “Bitter Clingers,” morally retrograde, “not who we are,” not on the right side of history.

(i) By all feasible means, reduce gun prevalence. Impose gun disability on as many people as possible, on any plausible basis and on low standards of proof. Ban straw purchases and interstate, internet gun sales. Impose “background checks” on all gun transfers, commercial as well as private. Ban guns with high capacity magazines assault (style) rifles and pistols and their magazines. This is “serious” “common sense” gun control.

IV. Critique Of TPFers Legal Claims And Empirical Arguments

[1] “Gun violence” imposes a tendentious framing bias, an advantage to TPFers.[12] The term elides distinctions between gunshot injuries criminally inflicted, those lawfully inflicted (self-defense), those not unlawful (suicide), and accidents. Lumping gun-murders, lawful killing by gunshot, not-unlawful self-killing and fatal gun accidents together solely on the basis of a shared causal mechanism (irrespective of morally and legally relevant differences) begs important questions.

Forensic examiners have long distinguished between “manner, cause and mechanism” of death.[13]“Gun violence” makes irrelevant these distinctions, especially regarding unlawful and lawful “intent” – the moral status of the agent to whom the finger belongs.

[2] The TPFers default position on civilian gun-fitness is at odds with Republican political philosophy. It offends citizens who identify with that tradition.

For example, Aristotle proposed that the mark of a citizen-in-full is a right to bear arms. It followed that in a political community where the citizens rule, its community members must have arms, “…and in their own hands too, in order to maintain authority both against disobedient subjects and against external assailants;…” [14]

Discussing this provocative idea in detail would take me far afield. I will note though that Republican political philosophy influenced the Framers who, arguably, were a bunch of “gun nuts.” The guarantee of a Republican form of government is incorporated into the U.S. Constitution (Article IV.Sec.4). [15] Many politically conservative Americans take this idea seriously. They cherish their guns and gun rights partly for that reason.

[3] Fetishism attributes to physical objects causal powers they cannot have. TPF is gun-fetishism. After giving due regard to all the variables TPFers say they recognize, the gun stands starkly alone, sine qua non, to cause the trouble.

Gun prevalence is significantly and positively associated with the percentage of suicides by gunshot, but not with the suicide rate overall. Studies dating to the 1920s found that approximately 70% of murders are committed with guns. That number has not changed over time.

For example, FBI data for the period 2009-2013, the percentages for homicide by gunshot were as follows: 2009 (66%); 2010 (67%); 2011 (67%); 2012 (69%; 2013 (68%). Handguns are used to commit approximately 47% of all murders. Rifles, including assault-style rifles, are used to commit a tiny percentage of murders: 2009 (.025%); 2010 (.027%); 2011 (025%); 2012 (.023%); 2013 (.023%). Bladed and cutting weapons are used to murder 4-5times more victims than rifles. Hands, fists and feet are used to kill twice as many victims as rifles.[16]
[4] The data show that the percentage of murders by gunshot in the U.S. has changed very little over time. However, since 1900, the U.S. homicide rate has varied up and down by an order of magnitude. (1.1/100K in 1900 to 11/100K in 1980). It follows that the homicide rate is independent of the percentage of homicides by gunshot. There is no evidence for linking spells of decreasing homicide rates to supposed decreasing gun prevalence. On the contrary, spells of decreasing homicide coincide with substantial increase in gun prevalence.

[5] Murder is by definition a violent crime. Suicide is not a crime in any jurisdiction except Virginia where it remains a non-prosecuted, common law crime. It is not clear whether a death whose manner is suicide is per se a violent death independent of its causal mechanism.

Depending on the causal mechanism chosen by the one who dies, many commentators seem to think that a suicide can be peaceful, and when physician assisted by medical means, a dignified death, the exercise of a valid autonomy right.

Philosophically, it is not obvious why suicide by gunshot counts as a violent death but suicide by taking a doctor’s prescription medicine counts as peaceful and dignified. Is it kinetics that makes the difference? Hanging is the cause of death in many suicides. As a method, it is not inherently less lethal than gunshot.

[6] 42,773 Americans die by suicide each year.[17] The rate varies little over time (10-12/100K in the U.S.). Suicide by gunshot exceeds the number of gun murders and unintentional fatal firearm injuries (accidents) combined by more than 50%.

Men die by suicide 3.5 times more often than women. White males account for 70% of suicides. Male gun owners who commit suicide do so by gunshot much more frequently that female gun owners who commit suicide. Gender-linked impulsiveness has been offered to explain the disparity.* Multiple studies have found a significant, positive association between gun availability and suicide by gunshot* (Kleck, 49).

However, higher gun prevalence is not associated with a higher suicide rate overall. Gun prevalence among Japanese civilians is very low, yet Japan’s suicide rate is 50% higher than in the U.S. Physicians commit suicide at higher rates than the general population in every country where the matter has been studied.* In the U.S. physicians commit suicide at twice the rate of the general population – male and female physicians commit suicide at equal rates. Drug intoxication not gunshot is the most common causal mechanism of death (sedation>respiratory suppression>apnea>cardiac arrest) for physician suicides, male or female, irrespective whether they reside in a comparatively gun-prevalent jurisdiction. Suicide reveals differences on the basis of geography (Japanese living in Japan higher than Japanese living in the U.S., gender (generally males more than females), age (elderly white males living alone, most likely of all) and race (whites more than blacks).

Homicide has this feature too. Men offend at higher rates than women, younger men at higher rates than older, poorer at higher rates than richer, blacks at higher rates than whites. Silver [18] found that the homicide victimization rate for American blacks to be 19.4/100K, nearly an order of magnitude higher than for American whites (2.5/100K) and 12 times higher than for any other group in other developed countries. 90% of black homicides are committed by blacks. [19]

Homicide demographic data are distressful, especially with respect to race. They will be inflammatory to some readers. Honesty requires confronting them. I urge the reader to access these linked sources for herself.

So, why bring them up? They bear on TPFers axiom – gun prevalence drives, causes, violence rates. But the data show that violent death and gun prevalence are not interdependent, they diverge along many demographics (and jurisdictions, nationally and internationally).

It is analytically true that “a gun-shot death presupposes someone’s access to a gun.” Nothing follows about gun prevalence and death, nor even about the incidence of gunshot death. Nevertheless, after publicized shootings, ritual invocation of the axiomatic “gun prevalence/access problem” sounds from the highest government levels and in the media.

There is evidence (based on an analysis of county-level data from every U.S. county) that an increase in gun prevalence (evidenced by gun carrying) is associated with less gun homicide and less homicide overall. This finding is consistent with deterrence theory.* Most criminologists doubt, even challenge, Lott’s claims. But the question is empirical. Its resolution rests on data, not expert opinion. Lott makes his data set freely available to any researcher. [20]

[7] Self-Defense and the State’s (Supposed) Duty to Protect Based on Delegated Powers in the Original Compact, on Promissory Estoppel, Detrimental Reliance and Undertaking.

(a) “there is no constitutional right to be protected by the state against being murdered by criminals or madmen.” [21]

(b) There is no cause of action against the police for negligent failure to rescue from violence. The police have no-duty to individuals in peril, nor do they incur an assignable duty of reasonable care to individuals on the basis of having made specific gratuitous promises of timely rescue to citizens under attack who call for help and despite police failure to adhere to department procedures when undertaking a rescue. [22]

(c) The individual citizen does not have a right against the police to be rescued from an abusive, murderous husband, despite her having obtained a court’s order that the police, when duly notified, “shall” arrest him. [23]

(d) It follows that the individual right to self-defense is not delegated to the State by any plausible theory of the social contract. The Courts deny it. Hobbes and Locke thought that the right to self-defense is unalienable.

[8] The state’s uncompensated disarming of law-abiding citizens who cannot afford professional armed services, or living in gated communities, should count as a “taking” which in addition violates a guarantee of equal protection of the fundamental and equal interest in self-defense. An equal right to self-defense creates a presumptive and strong right to “equalizers.” Defensive gun use is remarkably common, much more common that criminal misuse.[24]
[9] Are gunshot injuries inherently more lethal than injuries caused by other mechanism? Probably yes, but only in so far as it is possible analytically to separate mechanism-lethality from agent-motivation/intention lethality.

There are many studies finding that gunshot wounds to a body region are 3-4 times more likely to result in death than stab wounds to that region, e.g. penetrating wounds to the abdomen.

But gunshot covers a wide range – close range shotgun blast with birdshot, shotgun with buckshot, centerfire pistol, centerfire rifle, rimfire pistol, rim fire rifle. Firearm caliber, bullet velocity on impact, bullet construction. It certainly is not plausible to claim that a gunshot wound to the leg inflicted by 22 rimfire will prove more lethal than stab wound to the abdomen that transects the liver.

The matter is more complicated than gun – non-gun. For example, a recent study of modes of transport conducted at the University of Pennsylvania found that survival rates were similar for gunshot and stabbing victims brought to the hospital by police or EMS.

The study examined 4,122 patients taken to 8 Level I and Level II adult trauma center in Philadelphia between January 1, 2003 and December 31, 2007. 2,9961 were transfered by EMS and 1,161 by police. Overall mortality was 27.4%. 77.9% suffered gunshot wounds, 22.1% suffered stab wounds. 84.1 percent had signs of life on hospital arrival. 33% of gunshot patients died. 7.7% of stab wound victims died. [25]

More severely injured gunshot victims transported by police were more likely to survive. Some victims were not transported, so not included in the study. Some of those were DRT (“dead right there”). How comfortable should one feel in claiming that gunshot is (inherently) 4.5 times more lethal than stabbing?

[10] Gun prevalence and gun violence, what big numbers suggest.

Firearms manufacturers are required by law annually to report to BATFE the production of every firearm and its serial number. These data are made available to and graphed by the industry annually in its July publication.*

Those data suggest that provoking a “national conversation about gun violence” and seriously proposing laws whose goal is to reduce firearm prevalence will be self-defeating. A significant increase in prevalence will result in adverse outcomes that would not have occurred otherwise.

Between 1995 & 2014, total U.S. firearm production was 95,201,606, including 40,705,505 handguns. The civilian total is now >300 million, roughly 1/person. The industry produced twice as many firearms in 2014 as it did in 1994.

During the Obama presidency especially, the graph shows the industry setting production records. 2013 saw production exceed 10 million for the first time. NICS access for authorizing firearms sale has been near or above record levels in the last 3 years, and has accelerated in recent months.

[11] The number of Americans with permits to carry a handgun concealed has tripled over the Obama years. Several states have abolished their carry permit system, switching the default to allow any non-criminal adult citizen the gun right of concealed carry. [26]
[12] Gun production totals increased from nearly 6.5 million/year 2011 to approximately 9 million/year in 2014. 2014 saw a 16% decline suggesting market saturation, which must be reached at some point. However, the market has proved very sensitive to political stimulus, especially legislative proposals to ban any firearm. Incomplete data suggest that raising the temperature on gun control in this political cycle will push gun production higher still.

[13] Has murder increased with increases in gun production? Pew research [27] found that:

(a) “compared with 1993, the peak of U.S. gun homicides, the firearm homicide rate was 49% lower in 2010, and

(b) there were fewer deaths, even though the nation’s population grew.

(c) The victimization rate for other violent crimes with a firearm—assaults, robberies and sex crimes—was 75% lower in 2011 than in 1993.

(d) Violent non-fatal crime victimization overall (with or without a firearm) also is down markedly (72%) over two decades.”

Summary: the natural experiment testing the relationship between gun prevalence and the homicide rate refute the central thesis of TPF. Gun prevalence and the homicide rate are not linked. Increasing prevalence is compatible with a sustained declining homicide rate.

V. FPT Gun Controllers

The other group of pro-controllers (composed mostly of Conservatives but also a few Political Liberals) view gun control as an agency problem, a “bad man/bad citizen/crazy citizen” problem, because, after all, “It’s the finger that pulls the trigger.” (FPT).

These gun controllers think that law should prohibit sale to and possession of firearms and ammunition by the unfit. Persons in the statutory class “prohibited persons” are under a legally sanctioned stigma of lifetime gun disability. These same persons are also under life-time voter disability in many jurisdictions.

There is an ancient legal theory that bad citizens should be denied full civil rights – in the extreme, should be condemned to “civil death” (civis mortis), made outlaws beyond the protection of the law. [28]

18 USC 922(d) defines unlawful firearm sales. [29] It Provides: It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is—

1. Under indictment or convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

2. who is a fugitive from justice;

3. who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);

4. who has been adjudicated as a mental defective or has been committed to any mental institution;

The Final Rule defining “mentally defective” is here. [30]

5. who being an alien;

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));

6. who has been discharged from the Armed Forces under dishonorable conditions;

7. who has renounced his or her United States citizenship;

8. who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or

9. who has been convicted of a misdemeanor crime of domestic violence. 922(g)(8).

VI. Noteworthy Provisions Of 922

[1] There is no “gun show loophole.” (922(g)

It is unlawful [a felony carrying a 10 year sentence, per 924 (a)(2)] for anyone knowingly (who knows or should know) that a transfer of a firearm or ammunition will be to a prohibited person, period, full-stop. No exceptions.

[2] Straw purchases are unlawful (922(t)

Ignorance of these provisions does not excuse irresponsible gun control commentators.

VII. Critique Of The Prohibited Person List

Most 922 prohibited person criteria have nothing to do with proneness to violence. The list stigmatizes with disability on the basis of somewhat arbitrary “bad man” perceptions. For example, it is questionable whether someone’s having an outstanding arrest warrant who “flees” to another state (# 2) to “evade” arrest should make one a prohibited person, and potentially a felon-in-possession. Only provisions 8 & 9 are credibly linked to dangerousness.

African-Americans are disproportionately likely to fall into the class of prohibited persons for drug-related offenses, under Provisions #1 and #3, (crack use).[31]

Illicit drug use is harmful, but illicit drug use and drug trafficking are made dangerous by prohibition. Armed self-defense against victimization is rational but legally risky for illicit drug users and drug traffickers.

The so-called “war” against drugs has made the trade lucrative, risky and violent. Violating 922(g) is a felony (“felon-in-possession”) and is potentially much more serious that the predicate offense specified in #1. The impact on employment, access to professional schools, and commodious life-prospects generally are severe. Employers, schools both use mandatory “criminal background checks” whose effects will almost certainly be exclusionary. Felony conviction results in voting disability to boot in many jurisdictions.

# 4 is problematic because most mentally ill persons are not violent. The law creates an unfortunate incentive for the mentally ill to avoid diagnosis and treatment for fear of life-time loss of gun rights. They may fear their doctors’ turning them in. #5 – #7 lack a plausible connection with violence.

However, being unlawfully present in the United States increases one’s risk for extortion, blackmail and violent victimization. Reporting one’s victimization to authorities reveals being unlawfully present. Such persons’ arming themselves in self-defense is a felony punishable by 10 years in prison. Convicted felon status has prejudicial consequences in the event of application for a Green Card or for citizenship.

#8 and #9 are markers for violence proneness. But it is questionable to deprive a person of a constitutional right when s/he has not been convicted of a crime. Prohibited persons must surrender their guns and ammunition. They are life-time prohibited from possessing either. Recent mass shooters in the news, Mateen (Orlando) and Johnson (Dallas) would have come afoul of the 922(g)(8) disabling condition had they been reported, prosecuted, convicted and ordered to surrender their firearms.

The provisions of 922(g)(8) imposing gun and ammunition disability for domestic violence provide no exception for law enforcement officers, but Section 925(a)(1) of Title 18 grants an exemption: “The provisions of this chapter, . . . shall not apply with respect to the . . . possession . . . of any firearm or ammunition . . . issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.”

The Bureau of Alcohol, Tobacco and Firearms (BATF) has issued an advisory letter outlining the parameters of this exemption. The BATF letter states:

This [exemption] applies to an officer’s possession of a firearm or ammunition whether on or off duty, as long as the officer’s official duties require the possession of the firearm or ammunition. On the other hand, Federal law would be violated if an officer subject to a disabling restraining order receives or possesses a firearm or ammunition in a personal capacity. [32]

The 925(a)(1) gun exemption for law enforcement officers who are under a domestic violence restraining order (DVRO) seems arbitrary and unreasonable, unless a substantial number of officers would otherwise be disabled by 922(g)(8). But even so, it is hard to justify the exemption on either TPF or FPT grounds.

VIII. FPTers And “No-Fly-No-Buy”

FPT adherents are open to expanding the statutory list of bad and unfit, “prohibited persons.” For example, it is now proposed that the National Instant Check System “no-sell,” criteria should incorporate the no-fly-terror-watch list. “No-Fly-No-Buy.”

The current version of the 4473 Firearm Purchase Application Form asks the would-be purchaser, on pain of perjury, whether s/he is a member of the class of prohibited persons. To know or be expected to reasonably know whether a person is on the “no-fly”-“terrorist watch list” requires notification of terror-watch-list-membership and publicizing the list, to any individual in a position to transfer and dispose of firearms and ammunition regulated by 922(d). This is problematic for practical and ethical reasons.

Currently the terror watch list is secret. It may hold >800K individuals. Publicizing the list would satisfy “fair warning” that terror-list members risk perjury if they claim non-disability when purchasing a firearm from a dealer.

But publicizing the list would also encourage indulging prejudice by FFLs if the list-members are mostly Muslim or have Muslim names. “Wears Beard and Muslim Headgear, Looks Muslim, Has a Muslim-name… Probably is on or should be on the no-fly-terrorist watch list. Deny sale or delay.”

Since TPFers deny a serious right to possess guns, they favor imposing gun-disability on as many people as possible and on any “reasonable” basis whatsoever. They will oppose a due process protection remedy for erroneously imposed disability because it would suggest, wrongly in their view, that genuine gun rights are implicated. TPFers, by contrast, will tend to insist on due process remedy because they think that an enumerated and important constitutionally fundamental right is at stake.

IX. Gun Rights And Inequality:

“There is simply no comparison between a man who is armed and one who is not.”[33]

American gun control history provides ample precedent for legally disabling persons stigmatized by (severe) political inequality. During the Colonial period through the early Republic to the Civil War, slave codes made clear that arms-bearing was no-right of slaves. The North Carolina’s Slave Code was revised several times: [34]

(a) 1729: absolute prohibition of gun possession, unless “…there be a white man in company”;

(b) 1741: requiring the slave’s owner to obtain a carry-license for one slave who had to keep the permit on his person (purpose of carry/possession restricted to hunting to obtain game and performing property guard duty as assigned by the owner);

(d) 1854: reiteration of absolute prohibition, no exceptions.*

“Free Persons of Color” were also singled out by statute for special gun restrictions that highlighted unequal status. Notwithstanding that Courts recognized free blacks natural right to self-defense, they were required to obtain, months in advance, a license for gun possession that did not apply to whites. The waiting period imposed a “time tax” based on race but may also have allowed extended time for background checking.

Here’s NC’s Statute, 1840 (recited in State v Elijah Newsom, 1844): [35]

“Be it enacted, &c. That if any free negro, mulatto, or free person of color, shall wear or carry about his or her person, or keep in his or her house, any shot gun, musket, rifle, pistol, sword, dagger or bowie-knife, unless he or she shall have obtained a licence therefor from the Court of Pleas and Quarter Sessions of his or her county, within one year preceding the wearing, keeping or carrying thereof, he or she shall be guilty of a misdemeanor, and may be indicted therefor”.

Free blacks prosecuted for violations sought relief in court. It was argued, for example, that the statute violated the Second Amendment of the U.S. Constitution and was discriminatory in violation of guarantees in the State’s Constitution. On at least one occasion, these arguments won a motion for arrested judgment of a jury verdict, whereupon, the State appealed.

The NC Supreme Court set aside respondent’s Second Amendment argument as follows:

“It is now the settled construction of that instrument [the U.S. Constitution], that no limitation upon the power of government extends to, or embraces the different States, unless they are mentioned, or it is expressed to be so intended. [Citation omitted]. In the 2d article of the amended Constitution, the States are neither mentioned nor referred to.”

This is stunning. In contemporary arguments about 2d Amendment interpretation, the so-called “collective right” interpretation holds that the Amendment secures to “the different states” a privilege to organize and well-regulate a militia, not a right of the people (individual citizens) to keep and bear arms.

The Newsom court’s settled understanding of federal constitutional construction forestalled what would have been a novel, advantageous argument, had it occurred to the State’s Attorney General to make it, namely, that the 2d Amendment recognized a “State privilege,” not an individual right of Newsom’s.

Instead, the Court found that the 2d Amendment did not mention nor refer to the different States, so did not constrain (nor privilege) them. So, the States are left free to adopt police-power based regulations as seemed fit and proper. And that’s what the Court ruled.

The Court doubted that Newsom had citizen-based standing to seek relief on constitutional grounds, State or federal. It then proceeded to set aside his 2d Amendment claim for relief under the NC’s State Constitution’s apparent prohibition of discrimination on grounds that the State had a very long history of doing just that with respect to free persons of color:

“From the earliest period of our history, free people of color have been among us, as a separate and distinct class, requiring, from necessity, in many cases, separate and distinct legislation…and they were subjected to various disabilities, from which the white population was exempt.”

The trial court’s decision to arrest judgment was reversed and remanded. Interestingly, until 1815, free blacks served in NC’s militia, appearing for muster bearing their own arms, when-after their status was reduced to that of minstrels.

X: TPFers And Banning Assault Rifles And High Capacity Magazines: Does Data Justify Singling Out These Causal Mechanisms of Harm?

The military defines an assault rifle as a lightweight, intermediate caliber, select fire rifle. Light weight means (roughly), weighs less than nine pounds. Caliber refers to the bore-diameter of the bullet discharged from the cartridge when the rifle is fired. Intermediate caliber refers not only to the bore diameter of the bullet but also the comparative power of the cartridge fired by an assault rifle (5.56 X 45 mm in the case of a AR-pattern rifle) – “intermediate” in power between the cartridge fired by a battle rifle (7.62 X 51 mm, more powerful) and that fired by the military’s standard semi-automatic pistol (9X19mm, less powerful). Both are NATO standard cartridges. The bullet weights fired by these weapons varies.

The AR pattern (AR = Armalite, a trade name owned by Colt Industries) rifle typically fires bullets weighing 55-62 grains. The battle rifle typically fires bullets weighing 150 grains. Its recoil is heavier and its bullets hit harder. The 9mm pistol typically fires bullets weighing 124 grains. Each weapon may fire bullets weighing more or less. Rifles that fire ammunition of assault-rifle caliber (5.56) will penetrate body armor from close distance (25 yards). Bullets of armor-piercing design are not necessary. However, virtually any center-fire rifle’s hunting ammunition will easily defeat body armor and from much greater distance.

XI. Select Fire

Genuine assault rifles have a tell-tale (to the knowledgeable observer) “selector switch” mounted on the side. The switch not only operates the “safety,” as it does on similar appearing rifles, but it also enables the assault rifle “selectively” to fire one shot/trigger pull, several shots/trigger pull (typically 3 shots) and “full.” When “full” is selected, the rifle will fire continuously so long as the trigger is depressed and cartridges remain in the magazine. This is “machine gun” mode.

Firearms designed to fire more than one shot/trigger pull have been effectively banned by federal law since 1934, except for those entered into the National Firearms Act registry by special permit. In 1986, the registry was closed to newly manufactured, civilian-owned machine guns.

But in popular and political discourse, “assault rifle” is not defined by its possessing the unobtrusive but distinctively important functional feature. But-for the absence of the tell-tale selective fire switch, and the absence of the capability controlled by it, these assault-style rifle are “military-appearing.”

They are colored black, have a pistol grip and perhaps a fore end grip as well, a detachable magazine, perhaps a bayonet mounting lug, perhaps a lug for mounting a grenade launcher, perhaps a barrel threaded at the muzzle to enable installing a flash suppressor. The latter 3 features are not readily apparent upon casual inspection from a distance.

Banning guns on the basis of cosmetics is foolish, irritating and ultimately self-defeating. Manufacturers can change the rifle’s color (e.g., to desert tan), make the grip continuous with the stock, eliminate the lugs, connectors and muzzle-break.

But bans like the so-called “assault weapons ban” of 1995 also create a speculative market in “pre-ban” rifles which were not banned, may be bought and sold and whose value soars.

In anticipation of the effective date, manufacturing of pre-ban rifles and magazines went into overdrive. Artificially-created demand provoked panic buying which substantially increased the prevalence of “assault weapons.” It almost certainly will happen again.

Federal law restricts all firearms by design and function to firing one shot/trigger pull. Modifying a rifle for selective fire capability is illegal. Possessing a “kit” that would enable the conversion also is illegal. That does not deny that these rifles may be fired quite rapidly, but they are not “machine guns”, they are not surplus military equipment, they are not “weapons of war,” not “assault rifles” that the U.S. military personnel carry into combat.

XII: Clips And Magazines: High Capacity

A clip holds cartridges together for charging a rifle’s internal magazine. It may be ejected after charging or after the rifle’s magazine empties. An external, detachable magazine not only contains the cartridges, when installed, it loads cartridges into the rifle’s chamber for firing. Without a magazine, internal or external, a rifle is rendered a single-shot. Standard capacity magazines for the AR-pattern rifle hold 20-30 cartridges. Higher capacity magazine are available.

However, with increased capacity comes increased bulk, weight and unwieldiness, but also decreased reliability. The military does not use super-capacity magazines for that reason. The Colorado theater assassin’s AR style rifle was equipped with a super-capacity magazine. It jammed.

XIII: Popularity

The AR-pattern rifle currently is the most popular center fire rifle in the United States. It is estimated that civilians now own 7-10 million, maybe more. When the first “assault weapons” ban went into effect in 1995, civilians owned perhaps 1.5 million. The interests of many more citizens (owners and would-be owners) will be implicated by the prospect of re-imposing the ban.

The popularity of the AR-pattern rifle is explained by: affordability ($500-$800 for most models), light weight and remarkably low recoil, a large, powerful stature is not required for operating it comfortably and safely; modular and adjustable to body size; comparatively low cost for its center-fire ammunition; accuracy. These add up to – “fun to shoot.”

Attempts to stigmatize the AR pattern rifle serve to increase its popularity. The AR is portable, but not readily concealable. Its rate of misuse is very low. Many more murders are committed with knives, fists and feet than with the AR rifle. The AR is not a mechanism of choice for suicide.

XIV: Banning & Taking

AR-pattern rifles could indeed be totally banned, consistent w/ Constitutional regulation of 5^th Amendment “taking.” Manufacturers could be paid to cease and not renew manufacture of a popular product. Offering a price that current civilian owners of AR pattern rifles would find sale-motivating with the understanding of “no replacement,” could also be done.

More effective border enforcement than we have against illicit drugs and a wall would probably be necessary to control feeding a predictable black market. In the absence of such measures, voluntary surrender of valued property is not to be expected. Enforcement costs of confiscation would be high and perhaps quite violent. One should not favor enacting criminal laws unless one is prepared for and willing to take responsibility for enforcement related deaths, inflicted by gun-violence.

XV: Talking About Guns In the Wonderful Land Of Katy Couric [36]

The dislike of gun owners by the media, as well as their ignorance and dishonesty about firearms and current law, was recently exemplified by Katy Couric’s documentary when she posed a hypothetical question to members of a pro-gun group from Virginia.

“If there are no background checks for gun purchases, how do you prevent felons or terrorists from walking into a licensed gun dealer and purchasing a gun?” [False predicate. Background checks already are Brady-Law required for purchasing a gun from a licensed gun dealer].

Couric subsequently approved her editor’s dishonest insertion of 8 seconds of silence as the camera panned the group’s faces, seemingly struck dumb by Couric’s question. The result? The interviewees were made to appear clueless when in fact Couric’s question was answered promptly. “One, if you’re not in jail, you should still have your basic rights.”

An inarticulate, defensive, non-precise response, but not clueless. Better prepared, the group could have said, “…actually, Ms. Couric, background checks are required in all circumstances when receiving a firearm in transfer from a dealer. By not performing a background check, the dealer in your hypothetical would be breaking federal law, risking revocation of his license to do business.”

Any of the group members who had purchased a gun from a dealer would be familiar with the background check drill. Couric could have asked what they went through when they last purchased a gun from a dealer. She could have asked what they thought about it. Did they support the background check process? Would they support universal background checks, why or why not. Instead, Couric concocted visual ridicule of her interviewees.

But that’s not all. Katie Couric’s producer directed an employee, a resident of Colorado, (a state requiring universal background checks) to travel to Arizona (a state not thus requiring) to purchase an AR pattern rifle and 3 handguns from a private party in a Wendy’s parking lot. It was not disclosed whether Couric’s employee at some point told the seller that he resided out-of-state. (“I’m an ex-con who just got out. I want to get into shooting. I can’t wait to show these guns to my buds back home in Colorado”).

That disclosure would have created legal risk for the private seller who “knows or should know” that he would commit a crime and be an accessory to crime in the event the Colorado resident took possession of the handguns and returned home with them. Turning over the guns to authorities in AZ precluded Katie’s employee’s committing a federal felony by returning with them to Colorado.

This made the whole affair artful agitprop. Since it was not explained to the viewing audience that returning to Colorado with the parking lot purchased handguns would have been a felony, the untutored viewer was invited to think that current law permits a person to travel to another state, purchase handguns from a private party and return home with them in his possession.

To appreciate how artful Couric was, and disrespectful to her audience, the reader should review 18 USC 922(a)(3) & 922 (b)(3); 27 CFR 478.29. Couric did issue a non-apology – so sorry if I offended. Her video remained unmodified.

This is what currently passes for promoting “a national conversation” about guns and gun control in the United States. Any rational, reasonable person should be disgusted.

XVI. Conclusion

The data against “trigger pulls the finger” is so overwhelming, its persistence requires a sociological explanation. I will leave that to the sociologists. But, I can hear the objection “yes, but nobody believes TPF, so straw man.”

Really?! How otherwise explain the obsession with assault-style rifles, high-capacity magazine and guns in general? Rifles are used to murder far fewer victims each than bladed/cutting weapons. Fists and feet are used to kill twice as many victims as rifles of all kinds.

TPFers can claim remarkable success in stigmatizing guns in the popular media and in our schools. They have done far better in the culture wars than FPTers. But if so, it has come at a cost – precluding a respectful, fact-guided conversation about guns.

Footnotes & References

[1] http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5214a2.htm ; also see, http://www.nap.edu/catalog/10881.html

[2] Malcolm JL, Guns and Violence: The English Experience. Cambridge, MA: Harvard University Press, 2002.

[3] Eisner M. Long-Term Historical Trends in Violent Crime, Crime and Justice, Vol. 30 (2003), pp. 83-142. http://www.jstor.org/stable/1147697.

[4] Kalesan B, Mobily ME, Keiser O, Fagan JA, Galea S. Firearm legislation and firearm mortality in the USA: a cross-sectional, state-level study. http://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(15)01026-0.pdf

[5] http://www.cdc.gov/nchs/pressroom/sosmap/homicide.htm. Also see,

https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-[6]
[6]Cramer CE. Background Checks and Murder Rates. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2249317

[7] http://www.jrsa.org/projects/Historical.pdf

[8] Zimring FE, Hawkins G. Crime is Not the Problem: Lethal Violence in America. New York: Oxford University Press, 1997. Zimring is the country’s most famous anti-gun scholar and the best known proponent of the trigger pulls he finger. There are many others. Diagnosis of TPF: note how rapidly the shift from discuss of “shooter” to his “gun” to “guns” generally. Focus on causal mechanism eclipses shooter’s agency and responsibility. Even the manufacturer of the trigger takes priority.

[9] The first two of these propositions lack data support. On the contrary. Gun criminals injure their victims less often than do non-gun criminals. Victims who resist with a gun are less often injured than non-gun resisters and non-resisters. However, In the event that a gun-armed criminal injures his victim, it is more likely that victim will be killed. See Kleck G. Targeting Gun: Firearms and Their Control. Hawthorne, New York: Aldine De Gruyter, 1997; Also see, Kleck G, Kates DB. Armed. New York: Prometheus Press, 2001.

[10] This claim was first made in 1987 when Florida became the first state to authorize licensed carrying of concealed handguns. The Sunshine State would allegedly degenerate into the GunShine State. Didn’t happen. Now every state has a mechanism for authorizing the carrying of concealed handguns. Vermont never prohibited it, so concealed carry was always an option for its good citizens. Over the period that CCH has spread, the homicide has fallen by >50%. It remains contested whether the positive association is causal. See. Lott JR. More Guns Less Crime: Understanding Crime and Gun Control Laws. 3d Edition. Chicago: University of Chicago Press, 2010. And Lott JR. The Bias Against Guns: Why Almost Everything You’ve Heard About Gun Control is Wrong. Washington, DC: Regnery Press, 2003.

[11]. Diaz T. Making a Killing: The Business of Guns in America. New York: The New Press, 1999.

[12] Tversky A, Kahneman D. Rational Choice and the Framing of Decisions. The Journal of Business, Vol. 59, No. 4, Part 2: The Behavioral Foundations of Economic Theory (Oct., 1986), Stable URL: http://www.jstor.org/stable/2352759 Also see, Wright B, Goodwin P. Eliminating a Framing Bias by Using Simple Instructions to ‘Think Harder’ and Respondents with Managerial Experience: Comment on ‘Breaking the Frame’ Strategic Management Journal, Vol. 23, No. 11 (Nov., 2002), pp. 1059-1067 Stable URL: http://www.jstor.org/stable/3094349

[13] Forensic pathology: cause, manner and mechanism of death. http://www.pathologyoutlines.com/topic/forensicscauses.html

[14] The Basic Works of Aristotle, McKeon R (ed.) New York: Random House1941. Politics, Bk.VII:Ch.8,1328b, 5-10).

[15] U.S. Constitution, Article IV. https://www.law.cornell.edu/constitution/articleiv

[16] FBI Homicide Weapons: https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/offenses-known-to-law-enforcement/expanded-homicide/expanded_homicide_data_table_8_murder_victims_by_weapon_2009-2013.xls

[17] Suicide Data: (See, https://afsp.org/about-suicide/suicide-statistics/).

(a) Siegel M and Rothman EF. Firearm Ownership and Suicide Rates Among U.S. Men and Women, 1981-2013. Am J Public Health, 2016:e1-e7.doi:10.2105/AJPH.2016.303182).

(b) Suicide in Japan: http://www.bbc.com/news/world-33362387

(c) Lindeman S, Laara E, Hakko H, Lonnqvist J. A systematic review on gender-specific suicide mortality in medical doctors. Br J Psychiatry. 1996 Mar;168(3):274-9. Andrew LB, Brenner BE. Physician Suicide. http://emedicine.medscape.com/article/806779-overview

[18] Silver N. Homicide Rates. http://fivethirtyeight.com/datalab/black-americans-are-killed-at-12-times-the-rate-of-people-in-other-developed-countries/

[19] FBI Spreadsheet homicide by race of victim and offender. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/offenses-known-to-law-enforcement/expanded-homicide/expanded_homicide_data_table_6_murder_race_and_sex_of_vicitm_by_race_and_sex_of_offender_2013.xls

[20] See Lott data supra at [10].

[21] Bowers v DeVito, 686 F.2d 616, 7^th C. 1982.

[22] Warren v District of Columbia, 444 F.2d 1 1981.

[23] Castle Rock v. Gonzales, 545 U.S. 748 2005.

[24] See Kleck, Ch.5.

[25] Band R, et al. 2014. Annals of Emergency Medicine. But also see, Mandal AK, Oparah SS. Unusually low mortality of penetrating wounds of the chest. Twelve years’ experience. J Thorac Cardiovasc Surg. 1989 Jan;97(1):119-25. 1109 patients with penetrating thoracic injuries were treated at King-Drew Medical Center located in south central Los Angeles. There were 607 stab wounds and 502 gunshot wounds. Specifically, the mortality rate of gunshot wound of the heart 24.5% and that of stab wound of the heart, 11.5%. Because of the complexity of the injury, gunshot wound of the heart has the highest mortality rate.

[26] Concealed Carry Data: http://crimeresearch.org/wp-content/uploads/2015/07/2015-Report-from-the-Crime-Prevention-Research-Center-Final.pdf;

[27] The Firearms Production Graphs are here: www.shootingindustry.com;

The Pew Homicide Study is here: http://www.pewsocialtrends.org/2013/05/07/gun-homicide-rate-down-49-since-1993-peak-public-unaware/

[28] Civil death http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1067&context=penn_law_review

[29] 18 USC 922: Unlawful Acts: https://www.law.cornell.edu/uscode/text/18/922 ; Also see: ATF Prohibited Persons: https://www.atf.gov/firearms/identify-prohibited-persons).

[30] Mentally Defective, Final Rule: https://www.gpo.gov/fdsys/pkg/FR-2014-01-07/pdf/2014-00039.pdf

[31] Alexander M, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press, 2012.

[32] https://www.justice.gov/usam/criminal-resource-manual-1116-prosecutions-under-18-usc-922g8.

[33] Machiavelli N. The Prince. Boston: Bobbs Merrill, 1954. Ch.XIV.

[34] State vs. Hannibal and Ned, slaves. 51 N.C. 57; 1858 N.C. LEXIS 104; 6 Jones Law 57

[35] State vs. Elijah Newsom. 27 N.C. 250; 1844 N.C. LEXIS 119; 5 Ired. Law 250

[36] Katie Couric: Under the Gun. http://underthegunmovie.com/