Debate

Part VI: Reducing Gun Violence

EDITOR: As we look to the future, what new or modified laws, civil litigation, social policies, technologies, police practices, and/or other strategies would you recommend to reduce the level of gun violence in the United States?

JAMES JACOBS: I think it important that we not regard gun control as the number one approach to attacking violent crime. We ought to focus on the fact that violent crime, including crime with firearms, has decreased dramatically in the U.S. over the last decade. This extraordinary decrease cannot be attributed to gun control, so it is imperative that we continue to work at identifying to what it can be attributed. We must take a broad view of violence and address it through mental health and domestic violence interventions, anti-gang strategies, smarter policing, severe punishment for gun criminals, and conflict resolution programs.

We should continue to emphasize severe punishment of individuals who use guns to commit crimes; this includes special police priority, special prosecutorial units, and sentence enhancements. “Hotspot policing” makes a lot of sense. Every community should identify the places and circumstances of gun crime and attempt to focus preventive police resources on them. I also support the development of gun-detecting technologies that would make it possible to determine whether an individual in public is carrying a firearm. I oppose right-to-carry laws and advocate repealing those that now exist. But even if right-to-carry laws remain in place, I think the police ought to be able to stop a person who appears (visually or through detecting technology) to be carrying a firearm and ask to see the person’s license. Finally, I believe that gun shows should be prohibited. They present an all-too-convenient venue for fencing stolen firearms and for ineligible people to buy them.

ROBERT SPITZER: A broad menu of laws, practices, and strategies are available to reduce gun violence. From my perspective as a political scientist, the chief obstacle to more effective policy is not the policy itself, but the politics surrounding it. Rational policy discourse on gun control has been mostly short-circuited by the furious, nearly apocalyptic politics that has produced, with a few exceptions, a pattern of gridlock. Political compromise, the hallmark of American politics, is mostly out of reach on this issue, where both sides are deeply suspicious and mistrustful.

In the final chapter of my book, The Politics of Gun Control, I address this issue and recommend that we approach the matter in the way negotiations between hostile nations occur in international relations, where suspicion, hostility, and mistrust are also prevalent. Each side must be prepared to make concessions, while receiving ironclad assertions that their core values will be protected. The gun control side must first give an absolute assurance that it will foreswear gun confiscation, the primal fear of the anti-gun control side. In exchange, however, the anti-control side will need to accept regulations and restrictions regarding certain types of weapons, especially those that are highly destructive, that involve new, more threatening technologies, or that are uniquely appealing to criminals. There should also be more uniform and higher-quality gun-related training for those wishing to own guns. In a political concession, gun groups such as the NRA could be granted exclusive, potentially lucrative rights to provide such training, which would need to occur on a much broader scale.

GREGG CARTER: I endorse Spitzer’s recommendations. I also like the strategy proposed by David Hemenway at Harvard University’s School of Public Health.

To the NRA, “gun control” equals “crime control”—throw felons who use firearms in prison for a very long time; leave everyone else alone. This was essentially the attitude of the automobile industry in the 1950s (“cars don’t kill, drivers do”); thus, controlling car deaths and injuries meant training drivers better and throwing drunk drivers in jail. However, in the 1950s a new paradigm emerged—pay more attention to “what caused the injury” and less attention to “who caused the injury.” The research showed that poor road designs and poor vehicle designs caused injury and death. In Hemenway’s words, “the goal became to build a traffic safety system that made it less likely for people to make errors, yet one that was also more forgiving when errors were made or people behaved inappropriately.” The end result, effected largely through the National Highway Traffic Safety Administration, was a set of enforced car and road standards that brought the U.S. fatality rate per motor vehicle down 80 percent between 1952 and 1999.

Using the motor vehicle paradigm as a guide for gun control, we should create a federal agency (or direct a current one) to mandate the production of safe guns and the recall of unsafe guns, to require background checks for all gun sales—including those in the secondary market, and to create a comprehensive data system to track firearms (sale, possession, and use in an accident, crime, injury, or fatality). These data could then be used by health policy analysts to determine the effectiveness of these mandates and to suggest improvements.
RICHARD ABORN: Violent crimes committed with guns, like all violent crime, must be attacked through a broad range of interventions. The four “Ps” of criminal justice—prevention, policing, process, and punishment—must all be applied.

Prevention can be achieved by adopting a comprehensive national system of controls over the distribution of guns in the United States. This system must focus on breaking the illegal market in guns, while not interfering with the ability of lawabiding individuals to lawfully purchase firearms. Given the experience of states that have strict gun control laws, it is reasonable to argue that the national result would be similar. Prevention can also be achieved by applying a wide range of non-legislative interventions designed to attack the culture of gun violence. Conflict resolution training, anger management, the media, public health professionals, pediatricians, educators, and design changes to firearms all have a role to play. Ballistic fingerprinting, one of the best new investigative tools, should be mandated nationally. This mandate must include a requirement that new guns be fired and that a bullet and casing be submitted for fingerprinting prior to sale.
Policing must continue to find constitutionally sanctioned but innovative ways to remove illegal guns from the street. Post-Miranda debriefing of all felony arrestees to develop intelligence about gun trafficking and possession patterns, full investigation of the linkages between guns and gangs and between guns and drugs, geographic-based enforcement of gun laws in places where gun crimes are rampant, joint city-state-federal task forces to focus on intrastate and interstate trafficking, and arrests for low-level violations to deter gun carrying must all be employed.

Process—the judicial process—should devote resources to gun courts as a means of reducing the amount of time between arrest and prosecution and to eliminate unnecessary plea bargaining brought about by overburdened court calendars. Judicially sanctioned plea offers should be made to defendants for reduced sentences in exchange for specific information on gun trafficking. Otherwise, significant prison sentences should be administered for crimes committed with guns.

JOYCE MALCOLM: We all want to reduce the level of gun violence in the United States and ensure the safety of law-abiding citizens. Thoughtful examination of the experience of this country and other countries can help us select the most effective policies.

It is clear from the evidence that permitting people to defend themselves is a more effective deterrent than stringent gun regulations and gun bans. England’s gun regulations, the strictest of any democracy, have failed to enhance public safety. Handgun crime rose to new levels after imposition of a ban on handguns. Rather than cracking down on criminal violence, England has used resources to disarm the public. This approach has failed to stop or even reduce violence and has had a high social cost. Citizens are less able to protect themselves, less able to deter crime, and now live in fear. The gun regulations waste police time. The restrictions that England imposed on shotguns alone now require more than half a million police hours each year to enforce.

Gun regulations also waste money. The Canadian law to register firearms will likely cost Canada at least one billion dollars by next year, the largest cost overrun in that nation’s history, and there are still an estimated 2 million guns not accounted for. Ontario’s public safety minister called the law a “colossal disaster,” arguing that the millions of dollars annually spent should be directed into crime prevention.

Gun restrictions are based on the premise that people do not need to protect themselves because society will protect them. But no police force, however large, can protect everyone. Public safety is not enhanced by depriving individuals of their right to personal safety.

DEBORAH HOMSHER: Not long after the school shootings at Columbine High School in April of 1999, the “Gun Show Accountability Act,” sponsored by New Jersey Senator Frank Lautenberg as an amendment to the Juvenile Justice Act, came up for a vote in Congress. This bill would have required that unlicensed gun dealers conduct background checks before completing any sale of firearms in the secondary market. This legislation passed in the Senate, but died in the House. The failure to close the gun-show loophole at that time, when emotions in favor of gun control were running so high, indicates that the prospects for introducing new federal gun control legislation over the next five years are dim. Therefore, I believe that most of the strategies employed in the near future to reduce gun violence in the United States will be implemented at the state and local levels, and as a result we will find it difficult to assess which of these various strategies was most or least effective in saving lives. I do not expect that many of the recommendations offered by Spitzer, Carter, and Aborn will be implemented, given the current political climate and growing state and federal deficits, all of which would make it difficult, for instance, to establish a new federal regulatory agency of the kind Carter recommends.
Policymakers ought to study their potential constituencies as often as possible, from the bottom up rather than from the top down. I am most concerned about policymakers at the local, state, and national levels who are pressing for various sorts of gun control, because these are the people whose efforts I support. Gender and class influence our political discourse, including about guns; they influence the electorate and ought to be considered by anyone hoping to plan a strategy for stronger regulation of guns. I believe that gun control advocacy organizations are perceived as generally female and upper middle class. This may well be a political weakness that should be addressed.

One of the strategies adopted by gun control advocacy groups since the late 1990s has been lawsuits. Individuals and city governments have filed “public nuisance” and “unsafe product” lawsuits against gun dealers and manufacturers; the opposition has responded with legislation to block such suits. In early April of 2003, the House passed HR-1036, which seeks to make such liability actions illegal; the Senate is considering its own version of that bill. I find many aspects of the lawsuit strategy illogical and unconvincing. If gun manufacturers made products that met legal standards at the time of sale, and if gun dealers obeyed the relevant laws in force at the time, then they ought not to be sued. If they broke laws, then they ought to be arrested, an action that involves law enforcement, not litigation. If the laws regulating gun manufacture and sale are too weak, then the laws ought to be made stronger. Apparently, gun control advocacy groups have turned to lawsuits in order to avoid Second Amendment battles, but I do not trust this will work over the long run.

ROBERT J. COTTROL: The gun control debate, at its heart, is not really a debate over constitutional history and interpretation, nor is it a debate over the criminological impacts of tightening gun regulation in one jurisdiction or loosening gun regulation in another. The debate is not even about the putative dangers of one type of firearm or the greater safeties that may be gained with possible alternative firearms designs. We have not yet discussed what should be the central issue of this debate: firearms and self-defense.

The gun control movement is hostile to the notion of ordinary citizens arming for self-defense. This point has been made by James and Sarah Brady, by Garry Wills, and by many other gun control advocates and organizations. It has also been the basic premise of the British, Canadian, and other governments who have instituted national gun control and who are seen as models by the American gun control movement. Some have argued that arming for self-defense is “an insult to the state”; others have claimed that it is “preparing to wage war against one’s fellow citizens.” Leading members of the gun control movement vary in their hostility to private firearms ownership. Some are totally opposed; others are genuinely tolerant of sport and recreational shooting. Some are even gun owners for these purposes. What unites them is the belief that gun ownership for self defense is, at best, morally suspect and certainly unwise as a matter of policy.

I can’t speak for all supporters of a robust view of the right to have arms, but I suspect that it is this view that is the major point of conflict between gun control advocates and those of us who are their opponents. No matter how willing gun control advocates are to concede a certain legitimacy to duck hunting and target shooting, these concessions are trivial at best. The important issue is: Are we to be allowed to possess the means of self defense, or are we to be forced to rely on the state to defend us? The state should, of course, defend us — that is one of its primary purposes. But should we grant the state a monopoly, essentially agreeing to be defenseless if the state does not come to our rescue? That is a dangerous doctrine. In part, I began thinking and writing about the Second Amendment by looking at it from the perspective of African American history, asking the question: What does granting the state a monopoly of force mean to a people who have not been able to depend on the state for protection? If in the “bad old days” the sheriff was a member of the Klan, of what use was it to rely on the sheriff to protect you from the lynch mob? Didn’t you need the means to protect yourself? This is a question that need not be limited to the issue of black people during the Jim Crow era. Instead, we should ask more generally: What happens when the state is less likely to protect a disfavored group? Shouldn’t that group have the means of self-protection?

The right to self-protection is probably the most fundamental of the natural rights. I believe that the opposition to the gun control movement is a resistance to those who would make that right difficult, if not impossible, to exercise. Any discussion of whether some grand compromise over the policy and politics of gun control can be achieved must start with this issue.

Page 1 2 3 4 5 6 7 Next: Contributors and Bibliography Reprinted from Focus on Law Studies, SPRING 2003, Volume XVIII, Number 2, published by the Division for Public Education of the American Bar Association.

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