Date: Tue, 28 Jun 94 11:56:52 EDT From: John Grossbohlin Subject: File Transfer To: Jeff Chan JOHN [Grossbohlin]: THIS IS A SPEECH DELIVERED AT THE 1994 ANNUAL MEETING OF THE PA BAR ASSOC. YOU MAY USE IT AS AN UNCOPRIGHTED DOCUMENT, BUT YOU MUST NOTE THAT AN EARLIER VERSION OF THIS SPEECH IS BEING PRINTED (W/ COPIOUS FOOTNOTES) AS AN ARTICLE FORTHCOMING IN THE JOURNAL OF CONTEMPORARY LAW [Don B. Kates, Jr.] PA BAR SPEECH There are many problems with gun lobby claims. But the anti-gun view defies both legal and criminological scholarship. Of 40 law review articles on the Second Amendment since 1980, only four call it not a right of individual choice but only a states right to arm militias. As your handout shows, these four appear in minor law reviews, three being written by employees of anti-gun groups, the fourth by a politician. Articles finding the Amendment an individual right are authored by major figures in constitutional law -- Professors Van Alstyne, Amar and Levinson -- liberals who don't own guns and have no link to the gun lobby. The appear in YALE, MICHIGAN, PENN, GEORGETOWN, etc. Every pre-20th Century discussion treats the Amendment as an individual right. The very concept that its a state right was unknown to our Founders. It is an invention of the 20th Century gun debate. Explanations before Congress as it enacted the Amendment said it guaranteed the people's "OWN arms", "their PRIVATE arms." [{ask Bob to stand up} Incidentally, we're privileged to have with us today Prof. Robert Cottrol of Rutgers Law School, a legal historian who has written extensively on the Am. I have with me the first volume of his documentary history which prints the cases right out of the U.S. Reports. I took this precaution after encountering questions from people Handgun Control deceives with pseudo-quotes from SCt opinions -- quotes which omit crucial language and substitute words which not found in the opinions.] The Amendment calls arms the "right of the people", a phrase used thruout the Bill of Rights for individual rights. How can that phrase mean a states' right in the second amendment, when sixteen words earlier in the first amendment it means an individual right, as it also does in the the fourth and ninth amendments? And the "militia" the second amendment refers to is not a formal military unit -- which the Constitution forbids states to raise [Art. I ' 10, cl. 3 -- but a colonial system which required that every household be armed and every trustworthy man serve with his own arms. Understand, however, that none of this justifies pro-gun Neanderthals who think the Amendment reads: "Congress shall make no gun law we disapprove." They denounce my work as "Orwellian 'Newspeak'", for I stress the Amendment allows controls, so long as the right of law-abiding, responsible adults to choose to own small arms is not infringed. MODERN CRIMINOLOGICAL VIEWS OF GUN CONTROL Banning guns also defies criminological scholarship. Indeed, the consensus in criminology today is that no form of gun control has much value. The 1960s saw a vast literature produced by good-hearted, humane anti-gun academics, but today such propaganda is largely confined to medical journals. The watershed came in 1978 when the National Institute of Justice had two anti-gun academics, Profs. Rossi and Wright, evaluate that entire literature. They were appalled, privately calling it "result oriented trash." Publicly, their report states: There appear to be no strong causal connections between private gun ownership and the crime rate.... It is commonly hypothesized that ... homicide, occurs simply because ... (firearms) are readily at hand, and ... [many homicides] would not occur were firearms generally less available. There is no persuasive evidence [for] this view. Of their own previous anti-gun position, they said, "The more deeply we have explored" that, "the less plausible it has become." Subsequent research by another criminologist who began with anti- gun views, Florida State's Gary Kleck, finds handguns are used by good citizens to defeat crimes about three times as often as by criminals committing crimes. Despite all the harm guns do, they do three times as much good. Your handout notes other criminologists changing their minds on the gun issue. Significantly, this only goes one way. There are no examples of evidence forcing scholars who looked skeptically on gun control to change their minds. But what about all those widely publicized anti-gun studies? Being unpublishable in criminology journals today, they appear in medical journals so dedicated to banning guns that contrary views are allowed only in letters to the editor. Having swallowed what Rossi and Wright dismiss as "result oriented trash", the public health community long ago adopted an official goal of eliminating firearms from American life with a starting goal of reducing handgun ownership 25% by the year 2,000.[1] These goals it promotes by what the AMA approvingly calls "systematically building a case that owning firearms causes death." When "scholarship" is systematically directed by political goals it becomes propaganda. Bill and Mr. Bogus will rely on leading public health writers like Sloan and Kellermann. Since their work mostly compares Vancouver to Seattle, I read you an evaluation by a Canadian criminologist, Prof. Mauser of Simon Fraser U.: It is not too strong to say that many [gun control] studies are an abuse of scholarship inventing, selecting, or misinterpreting data in order to validate a priori conclusions. A particularly egregious example is...." and then he cites a Sloan-Kellermann article which is the mainstay of the public health case against guns.[2] This simplistic comparison of a year's data from just two cities is contradicted by four multi-year Canadian studies which show strict gun control doesn't reduce either crime or suicide.[3] Kellermann et al. never even address criminological studies except when forced to in answering letters to the editor. The "answer" is just to label Kleck, Rossi, Wright etc. gun lobby stoodges.[4] This is as false as it is irrelevant. All began with anti- gun views. Rossi, Wright and especially Kleck are ardent liberal Democrats, members not of the NRA but of the ACLU and Amnesty International. Kleck's book received the American Society of Criminology's highest award as "the most important contribution to criminology in the past three years." In fact, the gun lobby denounces Kleck and Rossi and Wright and me for supporting moderate, rational controls it opposes. Controls aimed at disarming criminals (not good citizens) have some value. But no gun control can overcome three limitations: 1) Crime reflects BASIC socio-economic and cultural factors which aren't touched by just curbing availability of some weapon. Subtract gun murders and the American murder rate is several times higher than the total murder rate of European nations. If guns disappeared tomorrow, most gun murders would still be committed w/ other weapons. 2) guns aren't going to disappear; there will always be enough guns in any society to arm those who really want them. 3) People who flout laws against violence will always be the hardest to disarm. SHODDY RESEARCH AND OUTRIGHT FABRICATION Regrettably, in their righteous zeal, prohibitionists often get their facts wrong. In the '60s rising crime made fearful people buy guns. Simplistic anti-gun studies argued that the correlative increase in crime and guns proved the guns were causing the crime. If so, the correlative expansion in police forces must prove that police cause crime. Today's anti-gun medical articles never mention that crime dropped thru the '80s while gun ownership kept rising. Some medical writers even claim murder was rising with gun sales.[5] Though that claim supports the public health campaign against guns, it's a lie. While handguns increased 69% in the fifteen year period 1974-88, handgun murders declined 27%. Murder is still falling everywhere except the crack-ridden inner cities. Since the '60s, handguns have replaced long guns for home defense.[6] Since handguns are so much safer in that role, the fatal gun accident rate has declined greatly. I estimate that if handguns were banned and families returned to keeping loaded long guns for home defense, fatal gun accidents would rise from about 1,400 per year to about 5,400, a loss of 4,000 additional lives per year. It is tragic that 10-15 children under 5 die in handgun accidents each year. But it is 31 times more tragic that 380 such children drown in swimming pools each year. Yet no one seeks to ban swimming pools. Now handguns and pools are different things and may merit different public policies. Among those differences are that pools do not defend against c. 2 million crimes and save thousands of lives each year. Handgun Control Inc. advises women to submit to rape rather than resist in any way: "the best defense against injury is to put up no defense -- give them what they want...."[7] But criminological data show that victims who resist w/ a gun are not only far less likely to be raped or robbed -- they are only half as likely to be injured as those who submit to the tender mercies of rapists or robbers. Finally, good hearted, humane prohibitionists say the law abiding must be disarmed because, supposedly, most murders are committed by ordinary people in the heat of anger: ["each year" thousands of "gun murders [are] done by law-abiding citizens who might have stayed law-abiding if they had not possessed firearms."] Wrong again: Virtually all murders are committed not by ordinary people but by aberrants w/ life histories of violent crime, substance abuse, auto accidents and gun accidents. [The only statistic cited to show murderers are "previously law-abiding citizens" is FBI data supposedly showing only 25% had criminal records. But the FBI data showed the reverse: 77% had records; and homicide studies show murderers in general, especially wife murderers, had long prior violence histories that never resulted in arrest.] Certainly we should try to disarm such people. But that does not mean that gun ownership by ordinary people is a crime risk. On the contrary, it is one of our best deterrents against crime. END N.Y. TIMES AD Yes, 27 law professors who advocate banning and confiscating all firearms did recently sign an ad claiming the 2nd Am. doesn't preclude that or anything else. Of course twice as many profesors signed the ad in your handout saying that the 2nd Am. means exactly what I say it means. The difference is that a number of these signatories have researched and published articles on the Amendment while neither the 27 professors nor Mr. Bogus have written anything on the subject. That is especially surprising since Mr. Bogus has written two tedious politically correct law review articles on gun issues. One of them says nothing about the Amendment, the other prudently dismisses it in a single sentence without any supporting analysis. Incidentally, Mr. Bogus' articles just evade the criminological issues, relying exclusively on the articles Professors Rossi and Wright evaluate as "result oriented trash" and especially on the article the Canadian criminologist describes as "A particularly egregious example" of "abuse of scholarship inventing, selecting, or misinterpreting data...." Having no answer to the criminological evidence, Mr. Bogus understandably elects not to address it. HCI'S PROGRAM HCI preserves its image for "moderation" by a strategy of gradualism; whatever the level of gun control in a locality, HCI lobbies for ever more stringent measures until eventually gun ownership is effectively banned. Thus in Congress HCI's principal proposal was a national 7 day waiting period for handgun purchases; in California where a 14 day waiting period already existed, HCI supported Proposition 15, the unsuccessful initiative to outlaw new handgun sales and register all currently owned handguns; in Massachusetts, where all handguns are registered and can only be purchased with a police permit, HCI supported Question 5, the unsuccessful initiative to ban and confiscate all handguns. HCI's eventual goal is a national law similar to the one it secured in Washington, D.C. banning handguns and requiring that all shotguns and rifles be kept disassembled to prevent their being used for self- defense. In the interim, HCI seeks federal gun licensing under a plan which would not allow self-defense as a reason for gun ownership. Only sportsmen would be allowed to own guns.[8] As Handgun Control, Inc. chairperson Sarah Brady puts it: "the only reason for guns in civilian hands is for sporting purposes."[9] 1. HEALTHY PEOPLE The Surgeon General's Report on Health Promotion and Disease Prevention. Washington, D.C. (1979) at 9-21 and PHS, HEALTHY PEOPLE The Surgeon General's Report on Health Promotion and Disease Prevention: Background Papers. Washington, D.C. (1979) at 18, 64-7, 465, 2. "'Handgun Regulations, Crime, Assaults and Homicide,' by John Sloan and his associates, which appeared in Volume 319 of the New England Journal of Medicine in 1988." [Mauser, "Gun Control in the United States," 3 CRIMINAL LAW FORUM 147 (1992).] 3. Mundt, "Gun Control and Rates of Firearms Violence in Canada and the United States" 32 CANADIAN J. OF CRIMINOLOGY 137-153 (1990), Rich, et al. "Guns and Suicide: Possible Effects of Some Specific Legislation" 147 AM. J. PSYCHI. 342 (1990), Centerwall, "Homicide and the Prevalence of Handguns: Canada and the United States, 1976 to 1980", AMERICAN JOURNAL of EPIDEMIOLOGY v. 134 pp. 1245-65 (1991), Kopel, "Canadian Gun Control: Should the United States Look North for a Solution to its Firearms Problem", 5 TEMPLE INT'L & COMP. L. J. 1 (1991), Mauser and Holmes, "Evaluating the 1977 Canadian Firearms Control Legislation: An Econometric Approach", 16 EVALUATION RESEARCH 603 (1993) and Centerwall, "Suicide and the Prevalence of Handguns: Canada and the United States, 1976-1980", Abstract in Proceedings of the Second World Conference on Injury Control (1993), paper available from Prof. Centerwall at the University of Washington, School of Public Health, Department of Epidemiology 4. Sloan, Rivara and Kellermann. 323 NEW ENG. J. MED. 136 (1990). 5. "Since the early 1970s the year-to-year fluctuations in firearm availability has [sic] paralleled the numbers of homicides." D.P. Rice, et al. Cost of Injury in the United States: A Report to Congress (CDC, 1989) at 23. Wintemute, "Firearms as a Cause of Death in the United States." 27 J. of Trauma 532, 534 (1987) ("Since the early 1970s year- to-year changes in new firearm availability and firearms homicide have often occurred in parallel."). 6. 17% of households had handguns in 1968 versus 27% in 1990. In 1967 there were 129 handguns per 100,000 population; in 1991 there were about 280 handguns per 100,000 population. 7. GUNS DON'T DIE, PEOPLE DO, by then-Handgun Control, Inc. Chairman Nelson "Pete" Shields at p. 124-5 (1981). 8. Eckholm, "A Little Control, A Lot of Guns", N.Y. TIMES, Aug. 15, 1993, quoting Sarah Brady. 9. Oct. 21, 1993 TAMPA TRIBUNE interview, Jackson, "Keeping the Battle Alive". John A. Grossbohlin SUNY at New Paltz - Business Administrtion Dept GROSSBOJ@NPVM.NEWPALTZ.EDU SUNY at Albany - Organizational Studies Ph.D. Program JG7831@UACSC2.ALBANY.EDU