[These excerpts are from the section of the report of the ICLU Commission on Gun Control and the 2nd Amendment that I wrote. It focused on the sociological and criminological dimensions of guns, violence, and gun control. I have also included the footnotes that accompanied the relevant sections. The references to "Kleck" that appear in the excerpts are to the book, Point Blank: Guns and Violence in America by Florida State University sociologist/criminologist Gary Kleck. ]
My task on the commission has been to examine the effect of firearms on American society from the sociological and criminological standpoint. As is also the case with justifications of the drug war, much of the current public debate surrounding "guns and violence" is ill-informed and based upon bad data, deliberate obfuscations, and mythology. Indeed, this issue is so politically charged that finding unbiased sources is more than a little difficult. Even normally reliable sources show evidence of bias. In what follows, I will examine the "big picture" and then focus on a few "hot button" gun control issues....
I have included with this report a photocopy of a short piece that appeared in Scientific American's regular "Science and the Citizen" section entitled, "Grim Statistics"10. Citing a statistical comparison of auto and gun fatalities by Garen Wintemuth published in the Journal of the American Medical Association (JAMA), the article states that the gun fatality rate will soon surpass the auto fatality rate if present trends continue. For gun deaths we are given two trend lines: a long-term declining trend and a short-term upward trend. What does this mean? By its tone the article is censorious but when it comes to supporting analysis, the article is mute. Given that we can probably expect to see much made of these "grim statistics" as the impetus for gun prohibition accelerates, some analysis is called for.
If we observe the long-term trend lines for fatalities, we notice one very important feature they have in common: a downward slope. The only difference between the auto and gun fatality trend lines is that the auto fatality slope is more negative than is the gun fatality slope. From the standpoint of public policy, can we draw any meaningful conclusions from this? For one thing, auto fatality rates can be negatively affected by technological fixes in a way that gun fatalities cannot. The article itself observes that improved crashworthiness of autos has played a role in the decline -- one could also add other technological innovations such as anti-lock brakes and improved restraint systems. In contrast, there is no obvious technological innovation in firearms that can affect mortality rates negatively given that almost all deaths are by suicide or homicide. Thus, the long-term decline in gun fatalities must be driven largely by societal forces.
As we know, the majority of gun fatalities are from suicides. There is no evidence that if guns are removed that it will affect the suicide rate. Also, the fact that suicide is a voluntary act leads one to question whether it is meaningful to lump suicides in with homicides and accidents when making the comparison with auto fatalities. Yet, nowhere is it mentioned that over half of the gun deaths being graphed are from suicide. I would wager that the auto death statistics exclude counting people who commit suicide by gassing themselves with carbon monoxide while sitting in cars idling in closed garages. Excluding suicide from gun fatalities would reduce the rate by more than half and would push out the date of the intersection -- it would also lay bare an absurdity in placing so much emphasis on the fact of the intersection. Auto fatalities would trend to 0 sometime around 2030 and gun fatalities sometime around 2040. That is no longer a "grim statistic" but it is a manifestly useless one.
When looking at the short-term uptrend for gun fatalities, it is important to observe that the data ends with 1990 -- since then the trend has actually been down which would, of course, decrease the slope of the short-term trend line. More important, however, is that a possible explanation for the short-term uptrend has not been explored. It has been observed that a rise in violence and homicides occurred during alcohol prohibition and then declined after repeal. Without asserting a causal connection, it is nonetheless suggestive that the escalation of the drug war in the 80s has been accompanied by an increase in violent crime and homicides and that gun deaths have also increased. Assertions of a causal link have, in fact, been made. Nobel Prize-winning economist Milton Friedman, for example, claims that effects of the drug war are primarily responsible for the rise in violent crime and account for as many as 10,000 homicides per year.
If there is any utility to this graphic of the long- and short-term trends it is that it shows the long-term trend for gun fatalities is downward -- without there having been gun prohibition as a causative factor. This calls into question the whole rationale for prohibitory legislation. Looking at the same graphic used to decry gun fatalities and bringing a little outside knowledge to bear on the analysis, it is perfectly reasonable to conclude that what was characterized as a "grim statistic" is actually a very positive one.
Let me hasten to point out that I do not personally think that linear regressions of raw mortality data compared in this fashion are particularly meaningful one way or the other. This article does illustrate, however, the point Kleck made about the debased state of public discussion on the issue of guns and violence: much of what passes for "analysis" is, if anything, even more superficial than what is contained in the Scientific American article.
[ NOTE: Shortly after this report was written, there was a massive media campaign orchestrated by the Clinton Administration and several Federal agencies in order to manufacture public support for the gun and magazine ban. Wintemuth's comparison of gun-related and auto-related fatalities was not striking enough to generate the proper response. After all, it showed both trend lines going down. What was needed was a simple graphic that showed the line for gun fatalities going up. But how was this to be done? It turns out that if one just takes total numbers of deaths each year and factors out the yearly increase in the U.S. population, the line can be made to go up rather than down. Thus, the information that was fed to the uncritical media was in that form. An example of this can be found in a graphic used by the Bloomington Herald-Times for 30 January, 1994. Similar graphics appeared in USA Today and other major newspapers. ]
Because of the recent hype over "assault guns" and the Crime Bill's ban on "19 types of assault guns", I've decided to expand a bit on Kleck's comments. It would appear that the real impetus for legislative action has been the unfortunate conjunction of the words "assault" and "gun". No evidence has ever been adduced by the proponents of the ban that it would have a marked effect on the crime rate -- or any effect at all, for that matter12.
The technical military definition for an assault rifle describes a rifle having three essential features:
I have already had the experience of having statements similar to the foregoing characterized as evidence that I had been "snowed by the NRA" (this at a recent ACLU party). Some skepticism is understandable: after all, why would any military organization choose to employ a less lethal weapon -- isn't the job of the military to kill people? Without going into the history of the Hague Convention (of 1899) that outlawed military use of dum-dum bullets, suffice that it was discovered that it is advantageous to incapacitate enemy soldiers rather than kill them. This is because in modern warfare, logistical concerns are paramount. A wounded soldier requires a medic on site, an evac unit, a field hospital and associated medical staff, as well as transport assets to move the soldier to a stateside military hospital for any additional medical procedures. In contrast, a dead soldier has very minimal logistical requirements.
Assault rifles had their genesis in WWII. The Germans developed the MP43/MP44 Sturmgewehr (storming rifle) which had all of the features enumerated in the above definition. The designers of the Sturmgewehr chose to employ a smaller cartridge (the 7.92x33mm versus the standard 7.92x57 Mauser round) for logistical and tactical advantages. The smaller round produced less recoil and was therefore more accurate when fired on full- auto, it was less costly and less difficult to manufacture, and it weighed less which meant that about twice as much ammo could be carried into battle. The choice of the name Sturmgewehr was actually intended to mislead Adolf Hitler who had expressly forbidden development of new weapons based upon the smaller cartridge. Obviously, a "storming rifle" sounds imposing and very lethal and Hitler ultimately approved the MP43/MP44 under this name. Incidentally, another part of the deception was that the MP designation was given to machine pistols (pistols able to fire full-auto) although the Sturmgewehr was technically a carbine.
In Europe today, the original German term for assault rifle, Sturmgewehr, is a commonly accepted term for some semi-automatic versions of fully automatic military rifles. For example, the SIG Stgw90 PE (Stgw is the abbreviation for Sturmgewehr) is a popular semi-automatic version of the Stgw90, the second most common automatic rifle among the Swiss citizenry after the Stgw5713.
In the U.S., however, "assault rifle" (or "gun" or "weapon") is not properly used for any semi-automatic weapon but has come to be applied by gun prohibitionists to "any military or military-style rifle that is perceived ... to have no legitimate defensive or sporting purpose for civilians"14. Given this kind of elastic definition of "assault rifle", it can be used as a catchall for banning virtually any rifle in current use. In practice, the definition is used to ban those rifles that can be handled effectively by people smaller and weaker than average15. Even if we assume that there is no individual right to bear arms, government has never demonstrated a rational basis for banning "assault guns" while leaving other types of more lethal firearms alone. Thus the answer to the question, "What's in a name": in this case, the name is the sole justification for enacting a new prohibition and creating a new category of victimless crime.
Another example of how a name has provoked an emotional reaction and a call for legislative action was the much publicized attack by Senator Daniel Patrick Moynihan on the Olin Corporation, manufacturer of the "Black Talon" brand of ammunition. While it is true that the "Black Talon" is designed to expand and deposit the maximum amount of energy into the target, the same is also true of any hunting ammunition.
If the issue is lethality of individual projectiles, why didn't Moynihan go after the Glaser "Safety Slug" and other frangible bullets?16 Frangible bullets are partially metal jacketed and filled with birdshot which is embedded in plastic or epoxy. On impact, the projectile shatters and the birdshot spreads inside the target, much as a contact shotgun blast would. Offsetting this is that such a projectile, by its nature, is unlikely to cause an unintended injury by passing through a target or by ricocheting.
While an argument could be made that all future manufactured ammunition should conform to the Hague Convention, Moynihan and other critics failed to make such an argument. It could also be expected that hunters -- still a powerful lobby -- would protest, as would people in law enforcement. Hunters want to bring down game with a single shot both for reasons of economy and because it is more humane. Obviously, ammunition that is more likely to wound will result in more instances of game escaping or, worse, animals that sustain a wound not immediately lethal that escape only to die in agony some time later. In the case of law enforcement, the use of "deadly force" is a last resort but, when it is exercised, the goal is to achieve maximum stopping power while protecting the public at large. Thus, law enforcement has a very different mission from that of the military and this affects the choice of bullet. From the standpoint of personal defense, the concerns of a private citizen can be seen to parallel those of law enforcement.
The idea that the Black Talon is a "bad" bullet is, thus, simplistic in the extreme. That Black Talon pistol ammunition was voluntarily removed from the market by Olin is utterly meaningless given the variety of other types of expanding bullets17. If it is the case that a balanced, rational analysis of expanding bullets versus FMJ bullets yields solid public policy reasons why manufacture of expanding bullets should be banned then, so be it. To date, no such analysis has been undertaken. Legislation by hysteria always produces bad laws.
My views on the drug war are well known -- I believe that most of what is popularly called the "drug problem" is really a prohibition problem. That anyone would reasonably consider creating a new black market and a new category of criminal activity (i.e., gun possession) is incredible to me. If past experiments in drug prohibition are any guide, gun prohibition can be expected to lead to more violent crime and an increased trade in machine guns and other similar weapons that get "more bang for the buck."
Those of us on the commission agreed that some degree of "arms" regulation CAN be justified in much the same way that the right of assembly can be regulated according to "time, place, and manner." We even discussed the kinds of regulation that we would find acceptable. However, the commission concluded that it would not be appropriate for us to recommend that the ICLU should state, in advance, what kind of regulations it might consider appropriate. That is why there is nothing in the proposed policy statement pertaining to possible firearms regulation.
There were several reasons why I included the sections on "assault guns" and "bad" bullets. As someone who formerly believed that all guns should be removed from private possession, I was particularly interested in exploring the idea of "bad" guns. Certainly, all of the popularly available information supports the idea that the AR-15 and civilian AK-47 are especially "bad".... When I began this research I was inclined to view "assault guns" as particularly lethal and, therefore, deserving of special regulation. What I found was that these weapons are very rarely used in crime and that they are, for a host of reasons, less lethal than many types of so- called "sporting" guns. So, consider these sections to have been, in part, my attempt to expiate the sin of credulity.
Ultimately, the meaning of "gun control" in the context of the 2nd and 9th Amendments is that government must demonstrate a compelling state interest behind any regulation it proposes. Even as I was won over to the case that there is an individual right to bear arms, I still expected to find evidence supporting various gun control schemes. My research has led me to conclude, however, that most extant and proposed gun control measures have no public policy justification and often do more harm than good; they are, in fact, unjustified even using the reduced standard of legislative rational basis.
10) Scientific American, Vol 269, No. 5, November, 1993, page 14. 11) Preston K. Covey, who is the director of the Center for the Advancement of Applied Ethics at Carnegie Mellon University is also the editor of the International Association for Law Enforcement Firearms Instructors' (IALEFI) Standards and Practices Reference Guide. His draft definitions of assault weapons for the Guide provided some of the material I have used in this section and inspired the title of this section. 12) Covey, like Kleck, observes that the rate of "criminal misuse" of "assault weapons" is a minuscule percentage of violent crime in the U.S. based upon data from the FBI and "such crime-ridden jurisdictions as Florida, New Jersey, Connecticut, California, and Washington, D.C." 13) From Covey's draft definitions. 14) From Covey's draft definitions. 15) Covey, in an unpublished manuscript entitled, "What Kind of Person Needs an 'Assault Weapon'", forcefully makes this point. Covey suffers from post-polio syndrome and has use of only one hand. This has not prevented him from developing a high degree of expertise as a one-handed shooter. Obviously, some kinds of weapons are more amenable to one-handed use than others and "assault weapon" bans (which also typically apply to pistols as well) tend to be directed at his defensive weapons of choice. 16) Information on frangible bullets came from High-Tech Firearms, an annual published by Guns & Ammo magazine. The article is entitled, "High-Tech Ammo: The Future Has Arrived!" and is by Sanow and Pass. 17) "High-Tech Ammo" profiles a number of hollowpoint expanding bullets such as Eldorado's Starfire, Federal's Hydra-Shok and Hornady's Extreme Terminal Performance (XTP).
[ I am including this footnote to a section I chose not to excerpt. Since chairing the ICLU commission, I have continued my research and it further validates what I state in this footnote: gun control is crypto-racist and disproportionately works to harm poor African-Americans. ]
24) So-called "black on black" violence is the central feature of our violent urban cultures. This whole issue deserves a paper unto itself. There has historically been a strong component of racism in gun control laws. Most gun control laws actually operate to make it harder for black urban dwellers to legally arm themselves for self-protection. If the ICLU adopts our proposed policy, I would like to suggest that we investigate this matter in greater depth. The ACLU has challenged bans on firearms possession in public housing on equal protection grounds. By adding "the right to keep and bear arms" to our arsenal (so to speak) we can fight these racist bans more effectively.