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From: dickbash@combatarms.com (Dickbash)
Subject: The Value of Civilian Arms Possession as Deterrent to Crime...by Kates
Date: Mon,  3 Apr 1995 00:19:31 GMT
Message-Id: <95040217213054@combatarms.com>
Organization: Combat Arms BBS - Portland, OR
To: chan@shell.portal.com
Status: RO

Dear Jeff:


    Below is the full text (4099 lines) of "The Value of Civilian Arms
Possession as Deterrent to Crime or Defense Against Crime." by attorney
Don B. Kates. I spell checked it and re-formatted it. There were a l=o=t
of errors in the document, many presumably due to scanning errors (can't
those guys scanning use a damn spell checker properly?). This should be
saved as CRIMEDET.DOC. If you already have it, delete your copy and
replace it with this corrected version. I included the full cire in the
beginning, along with the permission.



Regards,


Richard Bash


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    . BBS:   1-503-221-1777                Portland, OR 97207 .
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                            dickbash@combatarms.com
                                 April 2, 1995



                 THE VALUE OF CIVILIAN ARMS POSSESSION AS
                 DETERRENT TO CRIME OR DEFENSE AGAINST CRIME
                                       by
                                Don B. Kates Jr.*


                 This is the text and footnotes to an
                 article that appeared in v. 18 of the
                 "American Journal of Criminal Law" (1991).
                 This article is copyrighted. It was
                 provided by the author and is distributed
                 with the permission of the author. It can
                 be uploaded to other BBSs as long as it is
                 not altered, and it may be cited as long as
                 credit is given.
 

          * LL.B. Yale University (1966). Member of the
          California, District of Columbia, Missouri and United
          States Supreme Court Bars. San Francisco partner,
          Benenson & Kates; of counsel, Hallisey & Johnson, San
          Francisco, Ca.

          I wish to thank the following for their assistance:
     Professors David Bordua (Sociology, U. of Illinois), Philip J.
     Cook (Public Policy Studies and Economics, Duke U.), F. Smith
     Fussner (History, Emeritus, Reed College), Gary Green
     (Criminology, U. of Evansville), Ted Robert Gurr (Political
     Science, U. of Colorado), John Kaplan (Law Stanford U.),
     Raymond Kessler (Criminal Justice, Memphis State U.), Gary
     Kleck (Criminology, Florida State U.), Daniel Polsby (Law,
     Northwestern U.) James D. Wright (Social and Demographic
     Research Institute, U. of Mass., Amherst); Ms. P. Kates and C.
     Montagu, San Francisco, Ca. and Ms. S. Byrd and Mr. C. Spector,
     Berkeley, Ca. Of course for errors either of fact or
     interpretation the responsibility is mine alone.



     INTRODUCTION

          The crime reductive value of civilian firearms ownership
     is a central issue in the "gun control" controversy. Sixty five
     years of vitriolic debate have amply proven the wisdom of a
     leading early 20th Century opponent of gun ownership, New York
     City Chief Magistrate William McAdoo in predicting that

          We shall make no progress in removing this national
          menace until this basic fact as to the
          ineffectiveness of arming citizens is well and
          thoroughly understood by the people who foolishly buy
          pistols and arm themselves. [1]

          The gun owner's almost talismanic faith in the protective
     efficacy of guns leads him to cling to them notwithstanding the
     indubitable evils to which guns all too often lend themselves.
     The other side seeks to outlaw handguns (many would prefer
     outlawing all guns), dogmatically convinced not just that, on
     balance, guns do more harm than good, but that "In the hands of
     the general public handguns confer virtually no social benefit"
     [2]; and, since legislatures have proved unwilling to ban
     handguns, Magistrate McAdoo's intellectual descendants urge the
     courts to do so, in effect, by imposing strict liability for
     the manufacture, distribution or ownership of a gun. [2A]

          Given the fervor of each side in this decades-old debate,
     it is not surprising that neither has seemed fazed by the lack,
     until comparatively recently, of any substantial quantum of
     hard evidence upon which to base rational judgments about the
     supposed utility of civilian firearms ownership in reducing
     crime. The purpose of this paper is to analyze the empirical
     evidence on that issue most of which has become available only
     in the last decade. [3] Prior to such discussion it is
     necessary, however, to set out some caveats and two
     definitions.


     CAVEATS

          Obviously the conclusions reached in this paper may have
     import for the gun control debate; indeed in the case of at
     least one oft-mentioned option they seem decisive. [3A] But
     this paper emphatically does not attempt to resolve the general
     issue of the extent to which public policy should circumscribe
     or allow gun ownership. To resolve that would require broadly
     assessing at least the following: (1) not just any crime
     reductive utility, but every other supposed benefit of gun
     ownership to individuals or society generally (e.g.
     conservation and ecology, promotion of national defense,
     deterring despotism, etc., etc.); (2) comparison to those
     alleged benefits of all the costs (e.g. accidents, violence and
     suicide) of gun ownership -- in light of a hardheaded
     evaluation of (3) the likely extent to which non-compliance or
     other factors might frustrate the salutory purposes of a gun
     ban, (4) the costs to the criminal justice system of trying to
     overcome such non-compliance, and (5) constitutional barriers
     either to particular gun restrictions or to the means needed
     for their enforcement. [4]

          In other words to determine what particular level of gun
     control is desirable requires an enormously broader inquiry
     than is attempted here. As the factors just enumerated suggest,
     it requires a pragmatic inquiry: not just a balancing whether
     in the abstract of whether guns do more harm than good but
     consideration of whether, in fact, any particular control
     strategy will produce a favorable trade-off by actually
     reducing the harms (or the more important ones) that involve
     guns more than it reduces the values. [5] Such an inquiry
     requires systematic attention to all the foregoing factors and
     to numerous subsidiary issues, e.g. could the supposed benefits
     conferred by civilian gun ownership be better achieved by non-
     lethal means? [6] In contrast this paper is limited to only one
     sub-issue of #(1) of the factors enumerated in the last
     paragraph.

          My second caveat is that the disproportionate attention
     given herein to studies and analyses authored by opponents of
     gun ownership reflects necessity rather than a bias against gun
     ownership. The fact is that the gun lobby has, in effect,
     defaulted as to the production of academic literature. [6A]
     Thus studies by "gun control" advocates constituted almost the
     whole corpus of academic literature available on gun issues
     until the last decade when more neutral scholars began
     addressing those issues. Significant of all too many aspects of
     the gun control controversy is that gun owners require no
     scholarship -- nor even "sagecraft" -- to maintain their
     talismanic faith in the protective efficacy of guns, although
     they have produced a voluminous technical literature on
     defensive weapons and tactics. [7]


     DEFINITIONS

          The first definitional problem was to find apt shorthand
     labels for the respective positions of the gun lobby and its
     opponents. In line with the imagery of religious faith this
     article employs, the terms gun iconodule and gun iconoclast
     seemed appropriate. But the difficulties inhering in terms of
     reference relating to a now-obscure Byzantine religious
     controversy are obvious. So instead the terms "pro-gun" and
     "anti-gun" will be used herein for the respective polar
     extremes in the American gun controversy.

          It bears emphasis that these "pro-gun" and "anti-gun"
     positions are extremes -- albeit they have, tragically in my
     view, tended to dominate and drown out more moderate voices. In
     fact, polls over the past half century consistently show that
     most Americans, including a majority of gun owners, are neither
     pro-gun nor anti-gun but rather "pro-control". [7A] On the one
     hand, most Americans reject anti-gun disdain for self-defense
     and the basic anti-gun creed of the inherent depravity of guns.
     On the other hand, most Americans also reject the puerile pro-
     gun shibboleth that the existence of laws against murder and
     other violent crime makes it superfluous to reinforce them with
     sensible, prophylactic controls on weapons that can be used to
     commit such crime. This article may be described as a self-
     conscious attempt to apply the moderate pro-control position
     which characterizes the rational majority to the claims which
     each extreme offers about the crime reductive value of civilian
     gun ownership.

          The second definitional problem involves distinguishing
     actual use of a gun to thwart a crime in progress (hereinafter
     described as defense-use) from the deterrent effect of actual
     or perceived victim arms possession in dissuading criminals
     from attempting a crime at all (hereinafter described as
     deterrence). Though basic, this distinction has only rarely
     been observed even by criminologists and anti-gun writers and
     almost never by pro-gun writers. It is crucial because
     conceptual and practical difficulties make the evidence for
     deterrence more complex and more ambiguous than for defense-
     use.

          The order in which this article treats these issues is
     first defense-use and then the possible deterrent effects of
     civilian gun ownership. But before either aspect of defensive
     gun ownership can be analyzed empirically certain ethical or
     cultural concerns must be addressed -- if only because they
     have so often intruded into, and more or less subtly
     obfuscated, purportedly empirical discussions of these issues.


     NON-EMPIRICAL (MORAL AND PHILOSOPHICAL) CONSIDERATIONS

          Some analysts see in the notoriously extreme bitterness of
     the gun control debate a clash of cultural and ethical values
     disguised in more or less pseudo-criminological terms. The
     proposition is not that criminological disagreement is not a
     part of "the Great American Gun War" but that such disagreement
     is minor in comparison to the violent cultural and moral
     antagonism it cloaks. [8] Indicative of the depth of those
     antagonisms is the description offered in the encyclopedic
     review of American gun control literature done by the
     University of Massachusetts for the National Institute of
     Justice): that many gun control advocates seriously view gun
     owners as "demented and blood-thirsty psychopaths whose concept
     of fun is to rain death on innocent creatures, both human and
     otherwise" [8A]; that gun ownership is "simply beastly
     behavior" the gun being both real and symbolic mechanism of a
     peculiar savagery lurking in an American soul that is "hard,
     isolate, stoic and a killer". [9] As one would expect, the pro-
     gun is utterly different; as Col. Jeff Cooper, one of the more
     articulate spokesmen for defense gun ownership, puts it:

          Weapons compound man's power to achieve; they amplify
          the capabilities of both the good man and the bad,
          and to exactly the same degree, having no will of
          their own. Thus, we must regard them as servants, not
          masters -- and good servants to good men. Without
          them, man is diminished, and his opportunities to
          fulfill his destiny are lessened. An unarmed man can
          only flee from evil, and evil is not overcome by
          fleeing from it. [10]

          It might be argued that there can be no basis for
     rationally evaluating these violently contradictory points of
     view, at least insofar as they constitute professions of
     cultural, moral or quasi-religious premises. But even
     fundamental premises are not necessarily immune from rational
     evaluation. A doubtless apocryphal tale holds that when James
     Joyce publicly repudiated his Catholicism he was approached by
     an English reporter who asked him if he would now become a
     Protestant. "Just because I've lost my faith", Joyce is said to
     have replied, "do you think I've lost my reason as well?" The
     point is that it is sometimes or to some extent possible to
     determine whether professions of moral faith are founded in
     reason. Thus, for instance, the anti-gun response to Cooper's
     profession of faith is: that a guns is simply not an effective
     defense to criminal attack; that to flee if possible, and
     otherwise to submit, constitutes the only viable form of
     opposition to robbery, rape, etc. [10A] Whether this is so will
     be explored infra. But if it proves to be true, Col. Cooper's
     faith that guns allow resistance to evil is exposed as contrary
     to reason.


     EXAMINATION OF SOME NON-EMPIRICAL ELEMENTS OF ANTI-GUN FAITH

          Some professions of anti-gun morality may also be subject
     to refutation either as contra-factual or as internally
     inconsistent: A prime instance of internal inconsistency occurs
     in connection with statements like those of the distinguished
     nationally syndicated columnist and cultural historian Garry
     Wills who feels that "gun fetishists" are at once immoral and
     unpatriotic, "traitors, enemies of their own patria", "anti-
     citizens" arming "against their own neighbors." [11] Yet what
     Prof. Wills and the many others who echo such statements
     contemplate as the appropriate response when people are
     subjected to criminal attack is summoning a police officer.
     [11-1]

          There is an amusing, but none the less very real,
     impediment to analyzing this position: it is so inconsistent
     that one who does not start out accepting it is hard put to
     believe that Prof. Wills et al are actually saying what they
     are, in fact, saying. Thus I emphasize that their concern is
     not simply pragmatic, e.g. to deny that gun-armed self-defense
     is effective or to laud the obvious advantages of police
     assistance when that option is open. Entirely independent of
     (though often accompanying) such pragmatic concerns, anti-gun
     advocates advance the moral view that under no circumstances is
     it ever legitimate to use a gun in defense of self or family.
     [11A] Thus Prof. Wills holds that people who own guns in order
     to be able to protect their families in the event that police
     assistance proves not immediately available exhibit a morally
     abhorrent attitude toward fellow-Americans. [11A] Of course, if
     consistently adhered to, Prof. Wills' view is as immune from
     rational dispute as is any other moral belief. But if one is
     willing to call on others (the police) to defend his family
     with a gun it is patently inconsistent to condemn the morality
     of others because they are willing to defend their families
     themselves if the police are unavailable when the need arises.

          Another common profession of the anti-gun faith is that
     which characterizes defensive gun ownership as "paranoid".
     [12A] What "paranoid" means in this context is not entirely
     clear (at least today). It may now be no more than a psych-
     jargon dressed expression of Prof. Wills' abhorrence of
     defensive gun ownership. But what "paranoid" literally conveys
     is a view that was common among American intellectuals up to
     about a decade ago. In that view the extent of crime had been
     vastly exaggerated as a result of public hysteria; crime was
     neither increasing nor dangerous or pervasive enough to justify
     being armed; such a precaution so far exceeded the real level
     of danger as to be an irrational overreaction. [12B] Thus it
     may be useful to compare defensive gun ownership to another
     kind of precaution that is generally deemed sensible.
     Homeowners who buy earthquake insurance are considered not
     paranoid but prudent even in California where such insurance
     runs at least $2.00 per $1,000.00 valuation, or $300.00
     annually (for what is a middle class dwelling at California
     prices, c. $150,000.00). [12C] Over a ten year period the
     homeowner will pay $3,000.00 in earthquake insurance premiums.
     In contrast, a used Smith & Wesson .38 special revolver, which
     will last forever with proper maintenance, costs perhaps
     $150.00. Yet the likelihood of an average American household
     (much less one in a high crime area) suffering burglary or
     robbery over that period is roughly 10 times greater than of
     injury from all natural disasters (flood, earthquake,
     hurricane, tornado) combined [13].

          Can defensive gun ownership be deemed an irrational
     overreaction if it is reasonable to pay 20 times as much to
     insure against a danger less than one tenth as likely? The gun
     owner might even argue that his weapon is a better investment
     in that it may actually avert the anticipated harm while
     insurance only recoups its costs. It may be objected that
     insurance is not comparable to a gun since insurance always
     pays off, but whether gun ownership protects against crime is a
     matter of controversy. True enough, but beside the point which
     is "paranoia". If the empirical evidence discussed infra proves
     the gun owner's faith in the weapon's protective efficacy to be
     wrong then wrong is what it is -- not "paranoid". That gun
     ownership does not represent so exaggerated a perception of the
     crime problem as to constitute irrational overreaction is made
     evident by the now well accepted view that crime makes life
     significantly more dangerous here than it is in many other
     countries. [13-1] Moreover, if fear of crime equates to
     paranoia, the mental health of gun owners appears actually to
     be superior to that of non-owners; apparently because gun
     owners feel more confident about their ability to deal with
     crime, studies find them less frightened of it than are non-gun
     owners living in the same areas. [13A]

          But whatever the benefits of lessened fear to gun owners,
     for society in general what is unquestionably more important is
     the part guns play -- some people believe it causative -- in
     about 33,000 suicides, accidents and murders annually. [14]
     Thus regardless of any fear reductive effect, gun ownership may
     be contra-indicated, particularly for people in the high-risk
     groups for gun abuse [15]. But, as noted earlier, the
     desirability of a universal gun ban, or of any other particular
     level of restriction, involves issues far beyond the scope of
     this article.

          The police as a source of personal protection for
     individual citizens. Another possible interpretation of the
     paranoia characterization is that defensive gun ownership is
     "paranoid" because personal self defense has been rendered
     obsolete by the existence of a professional police force.
     Regrettably this exaggerates the factual effects of policing
     and totally misstates its function in law and theory, as
     plaintiffs who attempt to sue for non-protection have found.
     [16] Doubtless the deterrent effect of professional policing
     helps assure that many will never be so unfortunate as to live
     in circumstances in which they will require personal
     protection. But for those who do need such protection -- e.g.
     women threatened by former boyfriends or husbands -- the fact
     is that the police do not function as bodyguards for
     individuals.

          Rather the police function is to deter crime in general by
     patrol activities and by apprehension after the crime has
     occurred. If circumstances permit, the police should and will
     protect a citizen in distress. But they are not legally duty
     bound even to do that, nor to provide any direct protection --
     no matter how urgent a distress call they may receive. [16] A
     fortiori the police have no responsibility to, and do not,
     provide personal protection to citizens who have been
     threatened (although in major cities police may perform
     bodyguard services for the mayor and other prominent
     officials).

          Typical of cases enunciating the non-responsibility of the
     police for protecting individual citizens is Warren v District
     of Columbia [17] in which three rape victims sued the city and
     its police department under the following facts: Two of the
     victims were upstairs when they heard the other being attacked
     by men who had broken in downstairs. Half an hour having passed
     and their roommate's screams having ceased, they assumed the
     police must have arrived in response to their repeated phone
     calls. In fact their calls had somehow been lost in the shuffle
     while the roommate was being beaten into silent acquiescence.
     So when the roommates went downstairs to see to her, as the
     court's opinion graphically describes it, "For the next
     fourteen hours the women were held captive, raped, robbed,
     beaten, forced to commit sexual acts upon each other, and made
     to submit to the sexual demands" of their attackers. [19]

          Having set out these facts, the court promptly exonerated
     the District of Columbia and its police, as was clearly
     required by

          [the] fundamental principle of American law that a
          government and its agents are under no general duty
          to provide public services, such as police
          protection, to any individual citizen. [19]

          As the phrase "fundamental principle of American law"
     suggests, this holding is not some legal aberration unique to
     the District of Columbia. It is universal, being enunciated by
     formal statute as well as judicial decision in many states.
     [20] Nor is it simply a cynical ploy for government to avoid
     just liability. The proposition that individuals must be
     responsible for their own immediate safety, with police
     providing only an auxiliary general deterrent, is inherent in a
     high crime society. Consider the matter just in terms of the
     number of New York City women who each year seek police help,
     reporting threats by ex-husbands, ex-boyfriends, etc.: to
     bodyguard just those women would exhaust the resources of the
     nation's largest police department, leaving no officers
     available for street patrol, traffic control, crime detection
     and apprehension of perpetrators, responding to emergency
     calls, etc., etc. [21] Given what New York courts have called
     "the crushing nature of the burden" [22], the police cannot be
     made responsible for protecting the individual citizen.
     Providing such protection is up to the individual who is
     threatened; it is not the function of the police.


     "VIGILANTISM" AND RELATED CONCEPTS

          In tandem with anti-gun disdain for armed self-defense
     [22A] the common misunderstanding that the police exist to
     protect individuals has given rise to an elusive, but
     frequently expressed, attitude that equates gun use in defense
     of self or others to "vigilantism". A striking facet of this
     attitude is that it not only outweighs but even reverses the
     approbation normally accorded Good Samaritans: Thus based on a
     study of those who rescued crime victims and/or arrested their
     attackers, PSYCHOLOGY TODAY disapprovingly characterizes them
     in terms of the fact that 81% of these Good Samaritans "own
     guns and some carry them in their cars. They are familiar with
     violence, feel competent to handle it, and don't believe they
     will be hurt if they get involved." [22B] Similarly an anti-gun
     survey actually classifies gun owners as "violence prone" based
     on positive responses not to questions about criminality but
     about the legitimacy of using force in order to stop a crime in
     progress or rescue its helpless victim. [22C] Similarly the
     editor of a book on the legal status of Good Samaritans
     introduces it with the question

          Are we to encourage the ordinary citizen to take
          direct action in the prevention of crime or the
          apprehension of criminals, after centuries of social
          development clearly pointing toward the elimination
          of vigilante [sic] action and the concentration of
          responsibility in the hands of public officials?
          [22D]

          Implicit in the foregoing quotation is as close to a
     definition as such references to vigilantism ever seem to come:
     though Good Samaritanism is highly creditable in other
     contexts, it somehow becomes "vigilante action" if it involves
     "the ordinary citizen" in "the prevention of crime or the
     apprehension of criminals...." (i.e. defending self or others.
     As with Garry Wills' views, [22E] the underlying concept seems
     to be that the defense of citizens is so exclusively the job of
     the police that it is a usurpation for ordinary citizens to
     defend themselves or each other. Thus in his critically
     acclaimed book CRIME IN AMERICA former Attorney General Ramsey
     Clark ringingly denounces gun ownership for self-defense on two
     (apparently related) grounds: that it is atavistic and
     uncivilized, "anarchy, not order under law -- a jungle where
     each relies on himself for survival"; and that it both usurps a
     state prerogative and is a reproach to our polity for gun
     owners arrogate to themselves the right to defend themselves
     because: "A state in which a citizen needs a gun to protect
     himself from crime has failed to perform its first purpose."
     [23]

          For all its appeal to refined and high-minded (but
     uncritical) readers, such an attitude lacks practicality in
     actual application. How does society benefit if, instead of
     shooting the ex-husband who breaks into her house, a woman
     allows herself to be killed because the civilized thing to do
     is to wait for him to be arrested for her murder? Far from
     advancing the cause of rational gun control, such attitudes
     actually retard it by creating "straw men" which aid the gun
     lobby in diverting attention from serious arguments for
     control. Unfortunately such extreme anti-gun attitudes have
     played a part in shaping the ideology and rhetoric of the gun
     control movement -- and have particularly influenced its
     analyses of defensive gun use. Even supposedly pragmatic works
     appear subtly colored by the unstated but unshakable belief
     that, even when legal, defensive gun use represents vigilantism
     or some other social wrong. It will suffice to present only one
     example of this subtle coloration here since others will be
     discussed infra:

          As noted earlier, murderers generally have long prior
     histories of criminal and otherwise dangerously aberrant
     behavior; domestic homicide particularly

          is often not an isolated occurrence or outbreak, but
          rather is the culminating event in a pattern of
          interpersonal abuse, hatred and violence that
          stretches back well into the histories of the parties
          involved. [24] The day-to-day reality is that most
          family murders are prefaced by a long history of
          assaults. [24A]

          If the victims of homicidal attack are often related to or
     acquainted with or their attackers, it follows that often times
     when a victim has to kill in self defense the deceased attacker
     will have been an acquaintance or relative rather than some
     unknown rapist, robber or other intruder. Yet without so
     stating --or even mentioning the issue at all -- anti-gun works
     invariably misclassify such lawful defensive shootings as
     murder by lumping them together with real murder under the
     misleading rubric acquaintance and domestic homicide. Viz. the
     almost identical pseudo-statistical formulations in
     publications issued by the Handgun Control Staff of the anti-
     gun U.S. Conference of Mayors to the effect that "use of
     firearms for self-protection is more likely to lead to ...
     death among family and friends than to the death of an
     intruder." [25]

          Even in a violent society the number of homicidally
     irrational aberrants is so small that few of us have such
     friends, acquaintances or relatives. But some people do have
     that misfortune. Of course it is tragic when, for instance, an
     abused woman has to shoot to stop a (current or former)
     boyfriend or husband from beating her to death. But it is
     highly misleading to count such incidents as costs of gun
     ownership by misclassifying them with the very thing they
     prevent: murder between "family and friends". However atavistic
     or unpatriotic such incidents may be, they are not vigilantism
     and they are not costs; rather they are palpable benefits of
     defensive gun ownership from society's and the victims' point
     of view if not from their attackers'.

          Both Anglo-American and foreign law affirm what Prof.
     Wechsler called "the universal judgment that there is no social
     interest in preserving the lives of the aggressors at the cost
     of those of their victims." [26] While medieval common law
     looked askance at the social value of what it called homicide
     se defendendo, [27] later thinkers from Grotius, Locke,
     Montesquieu, Beccaria and the Founding Fathers on through
     Bishop, Pollock, Brandeis to Perkins and beyond have deemed
     self defense unqualifiedly beneficial to society. [28] It is
     only the unnecessary or excessive use of force that is harmful
     and wrong. Furthermore, that harm is qualitatively the same
     whether the wrong is committed by citizens or by the police.
     Unless "vigilantism" is a solecism it must, on the one hand,
     not apply to lawful defensive use of force by anyone, while on
     the other hand it must condemn all excessive or unnecessary
     uses of force for the purpose of imposing summary punishment,
     whether the vigilantes be citizens or police. [28A]

          With the issue of vigilantism thus properly understood,
     concerns over victim misuse of force can be seen in proper
     perspective. While qualitatively the evil of vigilantism is the
     same whether committed by civilians or police, quantitatively
     only police vigilantism is a major social problem today. In
     contrast civilian vigilantism appears to be quite rare --
     perhaps because officials are alert to the need for vigor in
     suppressing it. Civilians' claims to have used deadly force
     defensively receive very close examination, with prosecution
     likely in the event of wrongdoing. Unfortunately comparable
     review is rare when police misuse of deadly force is suspected;
     several studies suggest that a high proportion of police
     homicides are unjustified, [29] yet officers are rarely
     prosecuted even for clearly wrongful use of deadly force. [29A]
     These findings are buttressed by the extensive evidence adduced
     in civil rights cases like Webster v City of Houston [30] in
     which it was held to be a de facto municipal policy for each
     officer to carry an untraceable "drop gun" to be planted on
     those he might shoot (in order to falsely validate his later
     claim of self defense). It is perhaps also significant that in
     comparing police to civilian shootings of alleged criminals the
     police have been found to be 5.5 times more likely to have shot
     an innocent person in the belief that he was a criminal. [31]

          This is not to deny that civilian gun misuse is a
     legitimate subject of concern. The point is only that current
     legal sanctions appear generally sufficient to deter civilian
     "vigilantism". So the principal problem in this area is
     effective oversight of police use of force. The American Civil
     Liberties Union's tergiversations about the issue are
     significant: in 1968 the ACLU endorsed unspecified "gun
     controls" on the express ground that this would safeguard
     dissenters and the criminally accused from private violence.
     When the National Coalition to Ban Handguns was organized, the
     ACLU gave specific content to this position by joining. In the
     early 1980s the ACLU revised its 1968 resolution by deleting
     the express rationale, with membership in the Coalition being
     continued without any express civil liberties rationale. As of
     mid-1986, however, the ACLU has withdrawn from the Coalition.
     In sum, however persuasive the general public policy reasons
     for banning guns may be, they are not compelling as a civil
     liberties issue. [32]


     EMPIRICAL EVIDENCE AS TO THE VALUE OF ARMS -- A PRO-GUN ANALYSIS

          Earlier in this article the disproportionate attention it
     gives to anti-gun analyses was attributed to their virtual
     monopoly of the scholarly literature (until neutral
     criminologists began to discuss defensive firearms use in the
     last decade). [33] Yet at least pseudo-scientific analyses have
     sometimes appeared in material written for gun owners and their
     sympathizers. One example is the apparently self-published book
     MYTHS ABOUT GUNS by James E. Edwards whom the book's rear
     jacket describes as a lawyer and former mayor in Coral Gables,
     Fla. In bold red letters the front jacket proclaims: "Theme of
     the book: More Guns ... Less Crime". The jacket then proceeds
     to describe the book's purpose as to provide

          A concise, indexed, documented, pro-gun book of ready
          reference which explodes the main dogmas and myths of
          the anti-gun fanatics. Useful for debates,
          legislative hearings, letters to the editor and
          fighting bad gun laws.

          Mr. Edwards does energetically pursue that theme, offering
     three tables and two graphs (albeit all reflecting the same
     data base) to prove that "as shown by official studies firearms
     ownership and the commission of crime ... gun ownership by the
     average citizen does not promote crime but reduces crime."
     [33A] Each of these proofs compares the percent of households
     in the East, South, Mid-West and West respectively that in a
     single 1968 survey admitted owning either a handgun or a gun of
     any kind to the rates of violent crime, property crime and all
     crime respectively in those regions in the years 1968, 1972 and
     1976. [33A]

          Unfortunately such comparisons stumble on various
     methodological obstacles, including: 1) radical changes in
     regional patterns of gun ownership as indicated by mid-1970s
     survey data; [34] 2) that "survey data on the level of national
     regions [results in] aggregated units too large and internally
     heterogenous for useful analysis"; [35] and 3) the sleight of
     hand Mr. Edwards uses to massage the data into supporting his
     argument. [36]

          But above and beyond these problems is an even more basic
     error which deserves extended discussion because of its almost
     universal appearance when gun issues of any kind are analyzed
     by partisans on either side. This lies in two assumptions whose
     fatuity ought to be apparent to anyone who has ever had an
     introductory course in social science. The first of these
     assumptions is that a correlation between two phenomena is
     sufficient to prove that one of them has caused the other. This
     may be illustrated by the fact that Mr. Edwards is quite right
     about his "more guns ... less crime" correlation; indeed, it is
     supported by far stronger evidence than he himself presents.
     [37] But by the same token, there could probably be established
     an equally strong negative correlation between more cows ...
     less crime. Before breaking into a paean of praise to Bessie
     the Great Protector, it might be wise to ask whether this
     correlation represents anything beyond a spurious artifact of
     rurality: cows tend to be found in rural areas and crime
     doesn't. Of course the low per capita crime rates in rural
     America may be attributable to its high rates of gun ownership.
     But for the rational and dispassionate observer more proof of
     that is required than the bald correlation between "more guns
     ... less crime."

          Mr. Edwards' second false assumption is that, even where
     some basis exists for deducing causation from a correlation
     between two factors, which is the cause and which the effect
     can not be blithely presumed according to one's preconceived
     perspective. This may be illustrated by another frequently
     encountered, but erroneous, pro-gun argument: that states which
     severely restrict handgun ownership have higher crime rates
     than less restrictive states. [38] A factual difficulty with
     this as a proof that gun ownership reduces crime is that the
     studies do not consistently show the more restrictive areas
     have more crime; some studies show them with no more crime than
     less gun restrictive areas. [39] But even if the more
     restrictive were to be found to have more crime, other
     explanations are equally or more plausible than the deterrent
     or self-defense effects of gun ownership in reducing crime.
     Prof. Polsby, referring to such a finding by a respected
     scholar who is markedly less convinced of the value of gun
     ownership than Mr. Edwards (or Prof. Polsby himself), notes
     [39A]:

          Thus to evaluate the defensive utility of firearms it is
     necessary to consider forms of evidence more directly relevant
     than mere inference from comparisons of the crime statistics of
     different jurisdictions or regions. This requires turning from
     pro- to anti-gun authors since they provided the earliest
     attempts to analyze more directly relevant forms of evidence.
     Because the latter's views will be found even less persuasive
     under close scrutiny than those of the gun lobby it is
     important to reemphasize the definitions with which this
     article began: the term anti-gun is not here used as a synonym
     for "pro-control", but in its literal sense of antagonism
     toward gun ownership. Such morally or culturally based
     antagonism (and an associated disdain for the right of self-
     defense) underlies much of the argument for banning handguns
     based on the purportedly empirical claim that guns are useless
     for self-defense. But it simply does not follow from the
     untenability of those claims that we must accede to puerile gun
     lobby arguments against the need for rational control. The fact
     that handguns are useful no more exempts them from reasonable
     regulation than the fact that automobiles and innumerable other
     commodities are useful precludes reasonable regulation to
     minimize the likelihood of their being misused. [39B]


     LAWFUL SELF DEFENSE HOMICIDES AS AN INDEX TO DEFENSIVE GUN USE

          The standard arguments against the utility of defensive
     gun ownership date back to the early part of the Century; even
     their more modern formulations were all written at least a
     decade ago. Because directly relevant empirical evidence has
     been largely unavailable until recently, such arguments have
     tended to be speculative rather than empirical. For example it
     was (and is) argued that resistance is useless and dangerous
     because criminals are more ruthless or better shots or will
     have the drop on victims. [40] Where empirical evidence has
     been cited it consists in idiosyncratic local statistics of
     self defense homicide suggesting that gun use in self defense
     is a very uncommon phenomenon. [41] From this it is argued that
     reduced gun availability would confer great benefit at little
     corresponding cost because "Guns purchased for protection are
     rarely used for that purpose." [42]

          Anti-gun argumentation from lawful homicide figures
     provides clearly better evidence of the extent of defensive gun
     use than Mr. Edwards', and other pro-gun attempts to infer it
     from differentials in crime rates. But lawful homicide figures
     as an index to overall defensive gun uses raise problems not
     only conceptually [43] but, more important, factually. In the
     vast majority of defensive gun uses the outcome is not that
     criminals die but only: that they are wounded or injured or
     that they are apprehended or scared off without being injured
     at all. [44] So even had far more broadly based long term,
     geographically diverse lawful homicide figures been available
     before the 1980s, homicides are too small a proportion of
     overall defensive gun uses to be a reliable index to the
     frequency of such uses. At least if better indexes were
     available, one would certainly not measure the value of guns in
     police work by simply totting up the number of violent felons
     police kill. By the same token lawful defensive homicides are
     not a fair measure of the overall value of defense guns to
     civilians.

          The justification for anti-gun use of the idiosyncratic
     local justifiable homicide statistics is that until recently
     those have been the only available data from which the extent
     of civilian defensive gun use could even remotely be inferred.
     But this still does not excuse the misleading selection and
     manipulation of such data. For instance, it is well known (the
     point having been made often in anti-gun studies [45]) that
     householders rarely have the opportunity to use guns against
     burglars since burglars take care to strike when no one is home
     to shoot them. It was therefore misleading to cite as evidence
     that defense guns are rarely used under any circumstances the
     rarity of intruders being killed by householders. Concomitantly
     misleading was the citation of such statistics without even
     mentioning [46] the much higher incidence of lawful defense
     homicides of other kinds -- e.g. woman kills homicidal ex-
     boyfriend, shopkeeper kills robber, etc. [46A] By the same
     token it was highly misleading to cite "guesstimates" by
     Detroit, Los Angeles and New York City police officers of the
     number of criminals civilians were killing there in the mid-
     1960s without mentioning the availability from the Chicago
     Police Department of complete and official figure showing that
     for decades the numbers of lawful defensive homicides by
     civilians had generally equalled the numbers by police and
     lately were tending to outnumber them by as much as 3-1. [47]

          The effect of these and other statistical manipulations
     was to artificially minimize the incidence of lawful defensive
     homicides (and therefore of overall defensive gun use inferable
     therefrom) in the anti-gun studies. Consider the now-
     discredited -- though still widely cited -- comparison that
     handgun accidents kill 6 times as many householders as
     householders kill burglars [48]. Based on this finding of an
     anti-gun study of Cleveland gun deaths, it might be thought
     that gun accidents must account for a substantial part of the
     yearly handgun death toll; yet even nationwide the National
     Safety Council can identify only about 300 accidental handgun
     fatalities annually -- as compared to c. 6,000 handgun suicides
     and 6,000-9,500 handgun murders. [49] The actual ratio of fatal
     handgun accidents to lawful defensive killings is not six to
     one in favor of the former but more like 1 to 3 in favor of the
     latter. [50] While something unique about Cleveland might
     explain this 1800% deviation from the norm, a more plausible
     suggestion that has been made is that the number of accidents
     in Cleveland was inflated by the random inclusion through
     misclassification of large numbers of what were actually
     handgun suicides. [51] In sum, the anti-gun attempts to
     minimize the extent of defensive gun use could not have been
     sustained by full and accurate description of even the sparse
     city-level lawful homicide data available when the various
     anti-gun studies were written. [54]

          Subsequently as such data have become available for other
     cities, and on state and national bases, the anti-gun argument
     has suffered further. [55] Though it does not publish them in
     its yearly Uniform Crime Reports, the FBI now collects national
     "justifiable homicide" figures which show armed citizens
     annually lawfully kill more violent felons than do the police.
     [55] Yet even these figures actually underrepresent the full
     extent of lawful defensive homicide by 50% or more. The FBI
     statistics count as criminal any intentional killing whose
     legality was initially questioned (even those later ruled
     lawful by the district attorney, coroner's jury, etc.). [56]
     Also, based on the obsolete distinction between "excusable" and
     "justifiable" homicide, the FBI excludes from the latter
     category any killing that occurred in defense of the defender's
     life rather than in repelling a felony having some other
     object. In other words, however strange it may seem: if a woman
     shoots an ex-boyfriend who is strangling her, or a contract
     killer hired by her husband who wants to inherit her estate,
     the FBI counts that as a criminal homicide (for statistical
     purposes only) because the attacker's immediate purpose was
     only to kill her; but if a merchant kills a robber or a woman
     kills a rapist the FBI counts that as a justifiable homicide
     because the attacker's purpose was some crime other than
     homicide. [56A] It is estimated that if all lawful civilian
     self defense killings were counted, the actual number of
     violent criminals killed by citizens might exceed the number
     killed by police each year by as much as five times. [57]


     SURVEY DATA AS AN INDEX TO DEFENSIVE GUN USE

          Until fairly recently survey evidence on gun issues was
     limited to the results of whatever general unfocused inquiries
     the Gallup or Harris polls had haphazardly decided to ask in
     the 4 or 5 question polls they had devoted to gun matters over
     the years. But during the past decade both pro- and anti-gun
     groups have sponsored intensive sophisticated multi-question
     private national surveys on various issues in the gun control
     debate. Common to several of these private surveys were
     questions as to whether guns in the respondents' homes had been
     used defensively. The surveys were not conducted directly by
     the partisan groups sponsoring them but by independent private
     polls including Peter Hart and Patrick Caddell (for the anti-
     gun groups) and the Decision Making Information organization
     (for the NRA).[57A] Although less well known than Gallup or
     Harris, these are respected polls: the Hart and Caddell firms
     regularly poll for Democratic Party groups and candidates
     (President Carter and Senator Cranston among them), while the
     Republican luminaries DMI has worked for include Presidents
     Ford and Reagan.

          As with any poll, these are subject to the objection that
     they generalize about a population of upwards of 250 million on
     the basis of information obtained from a sample of only about
     1,500 supposedly representative people. [58] But, excepting
     objections to surveys in general, there is no reason for
     discounting the results of these gun polls in particular; while
     these polls were paid for by partisans, the reputations of the
     independent organizations actually conducting them precludes
     any question of falsification and academic studies have
     favorably cited and relied upon their results. [59] To exclude
     even unreasonable doubts as to validity, however, the
     discussion here will be based only on the evidence of anti-gun-
     sponsored polling. It is possible to simply discard the results
     of the NRA-sponsored polls since the data yields on defensive
     gun use from all the surveys are mutually consistent. [60]
     Based only on the survey evidence sponsored by anti-gun groups,
     it has been calculated that handguns are used in defending
     against c. 645,000 crimes per year. [61] The magnitude of this
     figure may be assessed by noting that it slightly exceeds the
     estimated number of crimes committed or attempted by handgun-
     armed felons each year, c. 581,500. [62]

          Thus the empirical evidence fails to sustain the claim
     that handguns are often used in crime but rarely to defeat it.
     Since that claim is the foundation of the legal theory for
     judicial abolition of handgun manufacture via the doctrine of
     strict liability the fact that defense uses approximate or
     actually exceed criminal uses might seem to apply the coup de
     grace to that legal theory. But factual refutation seems
     superfluous since the courts have not in any event found that
     theory a legally sound basis for intruding into what they deem
     purely legislative or political matters. [63] Yet the fact that
     defense uses approximate or exceed criminal misuses
     emphatically does not refute the need for legislatively imposed
     gun control. Controls carefully tailored to disarm felons but
     not good citizens would reduce the incidence of gun misuse but
     not of lawful defensive use. [63A] Moreover even a complete ban
     might still be advocated on the theory that the possible
     benefit of reducing suicide or homicide outweighs the certain
     cost of reducing the overall number of crimes thwarted by
     defensive firearms use. [64]

          Two other problems with the comparison given above should
     be noted: First, it is impossible to tell how much the c.
     645,000 crimes that handguns defend against overlap with the c.
     581,000 criminal attempts by handgun-armed felons. Doubtless in
     some cases handgun-armed felon meets handgun-armed defender;
     but many cases involve either felon or defender confronting an
     opponent who is unarmed or armed with a knife, club, long gun
     or miscellaneous other weapon. [65] Next, it is important to
     understand that the comparison is not of success in either case
     but only of 581,000 handgun crimes attempted annually versus
     the 645,000 defense uses. Evidence from two sources suggests
     that handgun-armed defenders succeed in repelling criminals
     (however armed) in 83-4% of the cases. [70] But comparable
     evidence is lacking as to the rate at which handgun-armed
     criminals succeed in crimes they attempt. [71]

          As to the incidence of defensive gun use, an independent
     body of data confirms the survey evidence of its frequency.
     This second data source consists in formal or informal surveys
     taken among inmates of various federal and state prisons over
     the past two decades. Some of these surveys are
     methodologically crude and/or involve inadequate samples. [72]
     But since the results of all of these surveys too are mutually
     consistent and supportive, it will suffice to refer to the
     latest and most recent which was conducted under the auspices
     of the National Institute of Justice in state prisons across
     the country. [73] While most of its questions on victim arms
     possession focussed on the question of deterrent effect (see
     discussion infra), several did address self defense. Responding
     thereto, 34% of the convicts

          said they had been "scared off, shot at, wounded or
          captured by an armed victim," [quoting the actual
          question asked] and about two-thirds (69%) had at
          least one acquaintance who had had this experience.
          [73]

          Also suggestive of the frequency of defensive gun use were
     responses on two other points: 34% of the felons said that in
     contemplating a crime they either "often" or "regularly"
     worried that they "Might get shot at by the victim"; and 57%
     agreed that "Most criminals are more worried about meeting an
     armed victim than they are about running into the police." [74]


     PEACE OF MIND

          To continue the religious simile with which this article
     began, one benefit which must (however reluctantly) be conceded
     by even the most ardent atheist is that faith may be conducive
     to at least a delusive peace of mind. Likewise anti-gun claims
     that "those who own handguns for self-defense are engaging in
     dangerous self-deception" [75] implies (however reluctantly)
     that at least delusive peace of mind may be a benefit of the
     opposing faith. In fairness, even ardent anti-gun advocates
     ought to admit the value of this in a society so crime-ridden
     that they themselves proclaim that crime and the fear it
     creates palpably diminishes the quality of life. [75] More
     neutral observers forthrightly acknowledge that

          If people feel safer because they own a gun and in
          turn lead happier lives because they feel safer and
          more secure, then their guns make a direct and
          nontrivial contribution to their overall quality of
          life. [76]

          Although increased peace of mind due to gun ownership may
     be dismissed as a benefit only to the owners themselves and not
     to society as a whole it may have wider ramifications. Two
     fear-related problems that have received increasing attention
     in recent years are the reluctance of bystanders either to come
     to the aid of victims or to bear witness against their
     attackers. There has been no study of any relationship that may
     (or may not) exist between witnesses' or victims' gun ownership
     and their likelihood of cooperating with law enforcement
     authorities. But studies have linked gun ownership to Good
     Samaritanship: gun owners are apparently more likely than non-
     owners both to feel a duty to come to the aid of others in
     distress and to actually do so. [77]

          Of course defensive gun ownership is a dangerous self-
     deception if it causes gun owners to be injured or killed
     through involvement in otherwise avoidable situations. But the
     evidence reviewed in the next section does not suggest that gun
     ownership produces feelings of invulnerability that encourage
     owners to recklessly court danger. If anything, non-owners
     appear less able to evaluate the danger and the opportunities
     of opposing criminals, and thus more inclined to unwise
     opposition, than are gun owners.


     POTENTIAL COSTS OF ARMED CITIZEN RESISTANCE TO CRIME

          The "success" of defensive handgun use cannot be evaluated
     independently of the most obvious and immediate problem of any
     kind of resistance: that victims may suffer (additional)
     physical injury or death who otherwise would only have been
     feloniously assaulted, maimed, raped or robbed. Because of the
     paucity of evidence until very recently, anti-gun arguments
     emphasizing these dangers have, once again, generally had to
     proceed from speculation or anecdotal evidence. [78] This lack
     of empirical evidence for the anti-gun viewpoint has been
     obscured by a controversy which only superficially seems
     relevant to the dangers of gun-armed self-defense -- largely
     because most of the disputants are morally or otherwise opposed
     to gun ownership.

          Based on national crime victim survey data, a number of
     scholars who happen to be anti-gun recommend that victims
     eschew forcible resistance of any kind; if an attacker cannot
     be "talked out" of his crime, the victim should submit in order
     to avoid injury. [78A] Doubtless this submission position would
     excite paroxysms of scorn from defense gun advocates like Col.
     Cooper [78B]. But, in fact, its scholarly critics have not been
     pro-gun nor have they urged gun-armed resistance specifically.
     [78C] Their criticisms involve issues of policy (that to advise
     victims to submit may encourage crime [79]) and of
     methodological error (e.g. that, since the data do not show
     time sequence, it is not clear how often victims are injured
     after they resisted; they may have been harmed prior to any
     resistance in that the criminal began the attack by
     gratuitously injuring them which was what prompted them to
     resist). The latest, and probably the definitive, analysis
     concludes that the "data, when interpreted carefully, do not
     support any strong [general] assertions concerning the victim's
     safest course of action when confronted by a robber." [80]

          One criticism which has curiously been overlooked is that
     the submission position is a parochial reflection of its
     expositors' own sexual, racial and economic circumstances. In
     general, the submission position literature has avoided any
     discussion of rape and invariably it treats robbery and assault
     as the once-in-a-lifetime dangers which they are (at most) for
     salaried white academics. It does not seem to have even
     occurred to any submission exponent to question whether the
     calculus of costs and benefits of resisting might be different
     for

          an elderly Chicano whom the San Francisco Examiner
          reports has held onto his grocery by outshooting
          fifteen armed robbers [while] nearby stores have
          closed because thugs have either bankrupted them or
          have casually executed their unresisting
          proprietors... [Or] welfare recipients whom robbers
          target, knowing when their checks come and where they
          cash them [or] the elderly trapped in deteriorating
          neighborhoods (like the Manhattan couple who in 1976
          hanged themselves in despair over repeatedly losing
          their pension checks and furnishings to
          robbers).[80A]

          Regrettably, for most victims crime is not the isolated
     happenstance it is for white male academics. [81] Imagine the
     situation of a Black shopkeeper, a retired Marine master
     sergeant who has invested the life savings from "20-years-and
     out" in the only store he can afford. Not coincidentally, it is
     located in an area where robbery insurance is prohibitively
     high or unobtainable at any price. In deciding whether to
     submit to robbery or resist, he and others who live or work in
     such areas must weigh a factor which finds no place in the
     submission position literature: that to survive they may have
     to establish a reputation for not being easily victimized. [82]
     The submission position literature is equally oblivious to the
     special factors that may have importance for rape victims; even
     one rape -- much less several -- may cause catastrophic
     psychological injury that may be worsened by submission,
     avoided by successful resistance and mitigated even by
     unsuccessful resistance. [83]

          By no means am I arguing that forcible resistance with
     guns (or without) is optimum for crime victims in any or all
     circumstances. I am only laying out additional factors that
     really ought to be considered before a well-salaried white,
     male intellectual presumes (as I certainly would not) to tell
     the kind of people who are most often crime victims what is
     best for them. [83A]

          At the same time it must be recognized that the
     considerations that underlie the submission position are
     irrelevant to the defensive value of guns, notwithstanding the
     coincidence that that position has been championed largely by
     those who happen to be anti-gun advocates. The evidence they
     cite does not focus on guns nor do lessons drawn from less
     effective weapons seem to apply to resistance with guns. The
     only extant study specific to gun-armed civilian resisters
     found they suffered slightly lower rates of death or injury at
     the hands of criminals (17.8%) than did police (21%). [84]
     These results are open to question because the study involved
     only a very small sample. But confirming evidence from an
     enormously larger data base is available in the national crime
     victim surveys. (These, however, provide information only as to
     victim injury, not death, since victims who died resisting
     robbers are not available to answer survey questions.)

          In fact, earlier versions of the national victim surveys
     were cited by the one specifically anti-gun presentation which
     has tried to empirically validate the dangers of resistance
     theme. [85] But the survey questions in those early versions of
     the surveys lumped all resistance together without
     differentiating the injury and success rates of gun-armed
     resisters from those of resisters who were unarmed or armed
     only with less effective weapons. The more recent national
     victim surveys which do so differentiate have already been
     cited as showing that victims who resisted with guns were much
     less likely to lose their possessions to robbers than those who
     resisted with any other kind of weapon. [86] As the Table below
     shows, this recent data finds gun-armed resisters c. 50% less
     likely to be injured as victims who did not resist at all. [87]
     In contrast, knife-armed resisters were more likely to suffer
     injury than non-resisters and much more likely to be injured
     than gun armed resisters; comparisons to other forms of
     resistance are also favorable to the effectiveness of gun armed
     self-defense. [87]


                            INSERT TABLE ABOUT HERE

          Care must be taken to avoid exaggerating the importance of
     these findings as support for the utility of defensive gun use.
     Ironically, a major factor which might lead to exaggerating
     their import is a basic conceptual error in anti-gun analyses
     of the utility of gun armed self-defense. Implicit in many such
     anti-gun analyses has been the unexamined -- indeed unstated --
     assumption that having a gun somehow compels the victim to
     resist with it even in circumstances that make it senseless and
     dangerous to do so. [87-1] But the whole point of a gun (or any
     other precaution against emergency) is to provide an option for
     use if, but only if, this is wise under the circumstances.

          With this point in mind it becomes evident that the survey
     data on victim injury do not support any suggestion that
     victims who have guns can safely resist no matter what the
     circumstances. On the contrary, though guns do maximize
     successful resistance, of at least equal importance in
     minimizing injury is that gun owners seem mostly to eschew
     resistance when submission is the wiser choice. Although the
     number of victims in the surveys who say they resisted with a
     gun is not statistically insignificant, it is dwarfed by the
     number who tried to flee or scream or resisted forcibly without
     a gun. [87-2] The much higher rates of injury among victims who
     resisted in such ways do not at all prove that resistance with
     a gun would have been safer in their particular circumstances.
     Rather, the much smaller number of gun armed victims who
     resisted at all suggests that gun owners may be
     disproportionately less likely to resist when the circumstances
     for that are inauspicious. Possibly gun owners are more likely
     than other victims to have considered the dangers attendant
     upon resisting a criminal and are therefore more hesitant to do
     so.

          However absurd the concept of a thoughtful gun owner will
     seem to Messrs. Grizzard, Braucher, Ellison, Wills, Clark,
     etc., [87A] analogy may be found in the mid-1970s debate over
     the advisability of having patrol officers wear bullet proof
     vests under their uniforms. Some observers feared this might
     actually increase officer risk by producing a sense of
     invulnerability that would lead officers to throw caution to
     the winds. The actual result has been the reverse: wearing the
     vest seems to remind officers of how vulnerable they really
     are, thereby inclining them to increased caution. [87B] By the
     same token, when civilians take the momentous step of buying
     and actually keeping a gun for self-protection it may provoke
     them to a more sober consideration of the risks of incautious
     resistance. The low rate of injury to gun armed crime victims
     suggests they may be more capable of evaluating the
     opportunities and risks of resistance than a non-owner who,
     having never seriously contemplated the matter, is suddenly
     confronted by a robber.

          The risks and opportunities involved in the option to
     resist gun ownership confers may be illustrated by considering
     some alternative circumstances involving woman menaced by a
     rapist in her home: if she becomes aware of him as he breaks
     in, the gun allows her to frighten him off or capture and hold
     him for police [88]; but if her first knowledge is being
     awakened by the pressure of a weapon against her throat,
     nothing compels her to reach for a gun. Properly secreted it
     remains available for use if, for instance, believing her cowed
     the rapist becomes distracted in disrobing or by a police or
     fire siren or some other external event [88A]; or if it becomes
     clear that he intends to mutilate or kill her regardless, so
     that it is rational to resist no matter how slim her chances of
     success. [89] In short, a gun simply offers victims an option
     -- a dangerous option to be used only with discretion and/or
     because throwing oneself on the mercy of a violent attacker may
     be more dangerous yet. Fortunately people who have the
     foresight to equip themselves with what for most victims is the
     only effective means of resistance seem also to have the good
     judgment not to try to use it when that would only serve to
     endanger them.

          A Note on self defense and the Issue of Massacres In July,
     1984 an unemployed and apparently deranged security guard
     killed 21 customers and employees at a San Ysidro California
     MacDonalds Hamburger outlet. [90] In August, 1986 a similar
     massacre in which 15 died was perpetrated in an Oklahoma Post
     Office by a recently discharged postal worker using guns he had
     received as a National Guard marksmanship instructor. [91] Both
     of the perpetrators remained on the scene to be killed,
     eschewing any opportunity to escape before the police arrived.

          It is ironic that these and similar tragedies of the past
     three decades have been seen as arguing for, rather than
     against, gun bans. [92] Massacre presents a situation in which
     the value of defensive firearm use is at least arguable, while
     standard anti-gun arguments have no force at all: The most
     important argument against forcible resistance is that it may
     cause a criminal to kill a victim whom he would otherwise only
     rob or rape. Obviously that argument has no application to a
     situation in which a deranged killer opens fire without
     provocation or making any demand for his victims to satisfy.
     Also inapplicable by its own terms is the argument that even
     though a gun ban may disarm the victim it may also disarm the
     attacker. Basic to that argument is the proposition that in
     acquaintance or domestic homicide situations killers often act
     out of momentary rage, not out of a fixed intent to kill. From
     this premise it follows that such killings might not occur but
     for the immediate access to firearms. [93]

          Realistic gun control advocates recognize the
     impossibility of disarming the killer who really wants to kill
     and wants a gun for that purpose. They thus implicitly, and
     often explicitly, concede that gun control measures can be of
     little use against killers so highly motivated for personal or
     political reasons as to undertake massacres which are
     substantially likely to result in their own deaths. [94] A
     contrasting policy alternative for dealing with this special
     problem is exemplified by an incident which occurred in a
     Jerusalem cafe four months before the San Ysidro MacDonald's
     massacre: three terrorists who attempted to machine-gun the
     crowd were able to kill only 1 victim before being shot down by
     handgun-armed Israelis. When presented to the press the next
     day the surviving terrorist bitterly complained that his group
     had not realized that Israeli civilians were armed. The
     terrorists had planned to machine-gun a succession of crowd
     spots, believing that they would be able to escape before the
     police or army could arrive to deal with them. [95]

          In sum, anti-gun policies not only offer no solution for
     the massacre situation but are detrimental in precluding
     whatever chance the victims might have to protect themselves in
     the crucial time it will take the police to arrive on the
     scene. [96] Because terrorism is its most pressing criminal
     justice problem, Israel maximizes the presence of armed
     citizens by firearms training and encouraging gun ownership and
     carrying by almost the entire populace (Jews of both sexes and
     for the Druze and other pro-Israeli Arabs). [97] The
     advisability of such measures in a country in which military
     training is not universal even for males presents quite a
     different question - which does not necessarily merit even
     examination since American homicide is not primarily a matter
     of massacres. [97A] Melodramatic as they were, the MacDonalds
     and Post Office massacres combined constituted only a fraction
     of 1% of the criminal homicide totals for those years. The
     massacre issue is thus a "red herring"; and the use made of it
     by anti-gun advocates is at once ironic and evidence of the
     simple-minded and/or unscrupulous debate which is,
     unfortunately, no less characteristic of them than of the gun
     lobby. [98]


     DETERRENCE

          To reiterate, as used herein deterrence refers not to the
     actual use of a gun in repelling an attempted crime (defense
     use) but to the phenomenon of crime not even being attempted
     because of the potential criminal's fear of confronting an
     armed civilian. There are several kinds of such deterrence as
     Prof. Gary Green has noted in emphasizing the need to
     distinguish between them: in "displacement" the effect when
     some victims (or neighborhoods or communities) are perceived as
     well armed is only the redirection of the same crime against
     others; in sharp contrast are both "total deterrence", in which
     criminals are deterred from crime altogether, and
     "confrontation deterrence", in which they are deterred
     altogether from crimes like rape or robbery which involve
     confronting a victim. [99]

          Ignoring the vital distinction between displacement and
     total or confrontation deterrence has allowed pro-gun advocates
     to present the evidence on deterrence as less ambiguous and
     equivocal than it really is. Blithely assuming that deterring
     crimes against victims perceived to be well armed reduces the
     total quantum of crime -- rather than just foisting it off on
     other victims -- extreme pro-gun advocates support arming the
     populace as a deterrent to crime. Thus when Ford Administration
     Attorney General Edward H. Levi proposed forbidding guns in
     high crime areas, Ronald Reagan (then a private citizen)
     commented in an article published in a gun journal:

          Might homeowner and the shopkeeper, teach him how to
          use his weapons and put the word out to the
          underworld that it is no longer totally safe to rob
          and murder?... One wonders indeed if the rising crime
          rate isn't due as much as anything to the criminal's
          instinctive knowledge that the average victim no
          longer has any means of self-protection... No one
          knows how many crimes are committed because the
          criminal knows he has a soft touch. No one knows how
          many stores have been let alone because the criminals
          knew it [sic] was guarded by a man with a gun or
          manned by a proprietor who knew how to use a gun.
          [100]

     Local "experiments" in deterrence through publicizing gun
     ownership--

          As pro-gun advocates like former NRA chief lobbyist Neal
     Knox are quick to note, experiments involving the deterrent
     effect of an armed victim population seem to have been very
     successful: [101]

          in 1966 there were a series of brutal rapes in
          Orlando, Florida which panicked the women of the city
          into buying firearms for defense. Fearing a rash of
          accidental shootings, the local newspaper co-
          sponsored a firearms training class conducted by the
          police department; in the next few months some 6,000
          [sic -- the actual number was c. 3,000] women were
          trained in firearms safety and through the
          extensively publicized program. The results were
          remarkable... [In 1967] Orlando was the only city in
          the U.S. of more than 100,000 population to show a
          decrease in crime.

          Mr. Knox's article continues:

          An equally startling example of the crime-deterrent
          value of well-publicized gun ownership occurred in
          1967 in Highland Park, Michigan, a Detroit suburb.
          Having read of the Orlando and similar firearms
          training programs, Police Chief Bill Stephens
          conducted a firearms training program for retail
          merchants who were being plagued by an unprecedented
          number of armed robberies... [This was denounced by
          the anti-gun Detroit Police Commissioner] resulting
          in headlines in Detroit newspapers. Four months after
          the program began [Chief Stephens reported] that
          armed robbery of retail stores had been averaging two
          every three days immediately prior to the
          announcement of the training program; but from the
          day the newspapers carried the story, there had been
          not a single retail store robbery in the city -- for
          a third of a year!

          [In Detroit itself a grocers' association sponsored
          such classes which were publicized both because of
          the Police Commissioner's criticism and because] in
          the following few months seven armed robbers were
          killed by store owners -- and Detroit grocery store
          robberies dropped by almost 90%. [103]

          In fairness, pro-gun advocates have some excuse for
     missing this point since their opponents have generally, though
     unintentionally, diverted attention from it. Anti-gun works
     like HOW WELL DOES THE HANDGUN PROTECT YOU AND YOUR FAMILY
     [105A] invariably frame the issue as whether gun ownership
     actually protects the individual family. By focussing on that
     pro-gun advocates have been able to overlook the inconvenient
     reality that, though it clearly does serve the interest of the
     individual gun owning family to displace criminal attackers
     onto the unarmed, no larger social utility accrues if such
     attacks are not thereby decreased overall.

          Indeed, if displacement were the only effect it could be
     argued that deterrence is actually socially deleterious. Assume
     for the sake of discussion that programs that dramatize that
     women in a particular area are well armed only displace rape to
     some other area where it is less likely that the rapist will
     confront an armed victim. Of course those who appraise
     probabilities more realistically than the gun lobby will
     conclude that many times even armed victims will not be able to
     defeat a criminal. [106] But from the perspective of overall
     social benefit the important point is that the likelihood of
     rape being repelled is enormously greater if the victim is
     armed than if she is a helpless victim -- a fortiori even more
     so the chances that the rapist will be apprehended or killed
     (thereby disabling him from further rape) or frightened into
     eschewing rape in the future. [107] So deterrence would be
     socially counter-productive if all it caused were displacement,
     thereby actually diminishing the defense-use benefits that
     would otherwise accrue to society from civilian gun ownership.

          Fortunately the deterrent effect of civilian arms
     possession is not limited to displacement. As Prof. Green
     recognizes, realistically the great majority of rapists are
     not, when deterred from striking at one place, going to commit
     at least as many rapes elsewhere. Even as to rapists who pre-
     plan their crimes, the reduction in incidence will be not
     insubstantial since planning for a new area (i.e., out of the
     area with which the criminal is most familiar) creates both
     real and psychological problems. [108] Of course the incidence
     of rapes (or other crimes) committed opportunistically may
     especially be reduced when a criminal becomes frightened of the
     victims likely to be found in his regular haunts.

          At the same time it must be recognized that displacement
     effects are not unique to the deterrent value of civilian gun
     possession; they apply, and must be taken into account in
     appraising any kind of crime deterrence program. For instance,
     a drastic increase in numbers of uniformed police assigned to
     ride the New York subways at night was followed by robbery
     reduction during those hours -- but robbery then increased
     during daytime subway operations. Nevertheless since the
     daytime increase was far less than the nighttime decrease the
     program must be accounted a net success. [109] Thus the
     possibility of displacement does not refute the value of
     programs designed to deter crime, including publicizing victim
     armament. The point is only that careful study, with
     displacement being taken into consideration, is what is needed
     if the existence and extent of such net gain is to be
     accurately appraised.


     ON THE IMPORTANCE OF DETERRING CONFRONTATION CRIMINALS INTO NON-
     CONFRONTATION CRIMES

          As suggested above, even as to rape it may reasonably be
     assumed the deterrent effect of a highly publicized firearms
     training program for potential victims may produce significant
     net reduction overall. As to other kinds of crimes the
     deterrent effect may be much greater. The difference is that
     because for rape there is no non-confrontation alternative, the
     deterrent on a rapist must be total. In contrast, to reduce the
     incidence of a crime like robbery the deterrent need only
     frighten robbers into non-confrontation alternatives such as
     dealing drugs, stealing cars, burglarizing unoccupied premises,
     forgery, etc. Since these are also serious felonies, such
     deterrence is not an unalloyed benefit as Prof. Green has
     pointed out. [109A] But since deterring confrontation crime
     into non-confrontation crime radically decreases likelihood of
     victim death or injury, its social benefit is very great.

          This point has unaccountably been missed by those who have
     made the one anti-gun argument that remains viable in light of
     present evidence about the defensive value of arms possession.
     A leitmotif throughout their analyses has been that guns are
     rarely used against burglars because burglars take care to
     strike only when premises are unoccupied. [110] It appears that
     a major reason for that care is fear of meeting an armed
     householder. [111] If so, civilian arms possession palpably and
     substantially benefits burglary victims by minimizing their
     risk of injury or death in confrontations with burglars. It is
     only because few burglaries occur when premises are occupied
     that physical injury to victims is comparatively rare in
     burglary. Victim surveys show injury to be quite frequent in
     the 12.7% of burglaries that involve occupied premises. [112]
     The deterrent effect of civilian arms possession can be largely
     credited for the far lower rate of victim injury or death in
     burglaries than in robberies which are, by definition,
     confrontation offenses. [113]

          Thus programs that promote civilian arms possession
     palpably serve the public good if the publicity they generate
     deters robbers into non-confrontational burglary. It is worth
     noting that such non-confrontational deterrence constitutes a
     reversal of Prof. Green's observation that displacement
     deterrence benefits only gun owners and not society. In this
     instance civilian arms possession aids society but not gun
     owners in particular for rarely do burglars know the gun
     owners' homes from those of non-owners (nor, if the burglar is
     really careful to strike when no one is home to shoot, would
     the distinction matter to him). So any reduction in victim
     injury or death consequent upon this care benefits potential
     victims in general but not gun owners more than others. [114]

          Difficulties and complexities of deterrent effects Though
     the evidence so far reviewed provides relatively strong support
     for the deterrent effect of civilian arms possession in the
     abstract, as to formulating concrete policy it raises almost as
     many questions as it resolves. Dramatic decreases in
     confrontation crime have followed in the wake of local programs
     dramatizing victim arms possession. [114A] But even leaving
     aside the issue of displacement, two questions suggest
     themselves: would such programs be legal and practicable if
     tried on a regional, state or anything beyond the purely local
     level; and, even if such programs did work in broader
     application, does their deterrent effect continue over time or
     is it merely transitory? [115]

          Related to, but transcending, these questions is the
     probative significance of such programs for the broader
     deterrent implications of an armed civilian population. The gun
     lobby cites the apparently dramatic effects of the Orlando and
     other local programs as proving that widespread gun ownership
     must reduce violent crime. Now at least unless one is a priori
     opposed to guns it will be intuitively evident that to grow up
     in an area where criminals are frequently shot by victims would
     at least tend to disincline people to confrontation offenses.
     But this intuition is only remotely supported by such local
     program results as the 90% reduction in Detroit grocery
     robberies when gun training for grocers led to the well
     publicized shootings of 7 armed robbers. [116] Perhaps hearing
     of 7 such deaths over a few weeks time has a shock effect on a
     fellow-robber that far exceeds the general deterrent effect of
     having heard of 25-30 such deaths over the entire period in
     which he grew up. Conversely, perhaps such a shock effect is
     only temporary; perhaps having grown up hearing of two or three
     such deaths each year would produce a greater deterrent effect
     on the prospective criminal's psyche over the long run. But
     "perhapses" are not evidence; or, rather, they are evidence of
     the numerous questions that remain after such evidence as
     exists is evaluated.

          Moreover in evaluating these and other questions it must
     be remembered that a deterrent does not constitute an absolute
     bar to crime but only a disincentive, something which counters
     tendencies and creates disinclination. In an area where
     opportunities for non-confrontation crime are low, the
     incentive to rob might well outweigh the aversive tendency or
     disinclination created even for criminals who have grown up
     routinely hearing of incidents of robbers being killed by their
     victims. Doubtless widely publicized firearms training for
     victims (or a series of shootings of criminals by victims)
     might dramatically reduce the number of robberies for some
     period of time. But perhaps this result would reflect only an
     immediate shock effect without lasting impact on robbery rates.

          Nor can the evidence as to burglary be heedlessly
     generalized to suggest that civilian arms possession will have
     comparable deterrent effects on more dangerous kinds of crime
     and criminals. In itself the fact that almost 90% of home
     burglaries occur when the premises are unoccupied suggests that
     burglars generally want to avoid confronting armed
     householders. This is confirmed from statements by criminals
     themselves, including the responses to the National Institute
     of Justice felon survey. [117] But, again, the deterrent can
     not be evaluated independent of the incentive. Compare the two
     in relation to robbing liquor stores versus burglarizing
     occupied homes: In each case the deterrent (being shot by the
     victim) is the same yet the robbers' incentive to confrontation
     is immensely greater. To offset the robbers' risk of getting
     shot there is the incentive of a substantial cash take. But to
     off-set the risk a burglar takes by not eschewing occupied
     premises there is only the prospect of adding to the goods he
     steals from the home the marginal amount of cash he may get
     from the person of a householder he confronts. [118] This very
     real difference in the incentives to confrontations in the two
     crimes clearly appears in the responses to different questions
     in the National Institute of Justice felon survey: 74% of the
     inmates agreed "One reason burglars avoid houses when people
     are home is that they fear being shot during the crime", but
     only 58% agreed that "A store owner who is known to keep a gun
     on the premises is not going to get robbed very often." [119]

          These and other results of the felon survey do
     significantly support (albeit with significant reservations)
     the intuition that the phenomenon of criminals being repelled
     by armed victims does deter confrontation crime. In addition to
     the results just noted, 56% of the felons agreed that "A
     criminal is not going to mess around with a victim he knows is
     armed with a gun" and 57% that "Most criminals are more worried
     about meeting an armed victim than they are about running into
     the police." Over 80% of the felons felt that a criminal should
     always try to determine whether his victim was armed, while 39%
     said they personally had aborted at least one crime because of
     belief that the intended victim was armed and 8% said they had
     done so "many" times. [120] "Beyond all doubt, criminals
     clearly worry about confronting an armed victim" is the summary
     given by the National Institute of Justice analysts. [121] As
     they recognize, however, to "worry" is not the same as to be
     deterred from the activity which causes the worry -although
     worry may deter even an violent criminal into committing
     markedly less confrontation crime than he would in its absence.
     And a risk that worries even hard core violent criminals whose
     courage is (as we shall see) likely to be fortified by potent
     combinations of alcohol and illegal drugs, may completely deter
     the less violently inclined or less experienced or less
     reckless criminal. Overall the results of the felon survey
     suggest the deterrent effect of victim armament is a
     substantial reason why some felons specialize in non-
     confrontation crime only and eschew the greater immediate
     rewards of confrontation crime altogether.

          Yet the results are both more mixed and more complex than
     the gun lobby would like to admit. [122] About 40% of the
     felons claimed that in planning a crime they never even
     considered the possibility of being shot by a victim -- and
     almost one-quarter of them said they actually found victim
     armament an incentive, "an exciting challenge." [123] Some of
     this can be dismissed as macho posturing. Felons may be able to
     be more candid in describing the fears of criminals in the
     abstract than in describing their own. But it must also be
     considered that a subset of the criminal population which is
     disproportionately significant because murders and accidental
     fatalities are so heavily concentrated among them are
     characterized by a signal indifference to human life, including
     their own. [124] There is no necessary inconsistency between
     the attitudes of this subset and indifference -or even
     attraction -- to armed victims.

          Moreover, another and larger subset, the "violent
     predators", [125] are characterized by very high rates of
     substance abuse (which is true of the most murderous subset as
     well). Referring to the sub-groups they denominated
     respectively as handgun or shotgun predators, the National
     Institute of Justice analysts described them as "criminal
     opportunists ... omnibus felons" whose days out of prison are
     devoted to indiscriminate criminality -- "more or less any
     crime they had the opportunity to commit." [130] Just as such
     omnivorousness violates the stereotype that criminals normally
     stick to some specialty like robbery, burglary or forgery, so
     does the omnivorousness of their substance abuse violate
     stereotypes of the simple heroin or cocaine or marijuana user.
     Predators are likely not only to alternate these drugs with
     liquor, barbiturates, etc., etc., but to combine them in
     various fashions. With their spirits fortified with liquor,
     cocaine, PCP, etc., singly or in combination, the violent
     predators may be relatively indifferent to the danger of
     confronting an armed victim. [131] But even if they are not,
     addicts' desperation to finance their drug habits may make them
     willing to court that danger.

          Clearly worry about being shot by an armed victim did not
     deter many of the felons in this sample from a life of
     confrontation crime. Such worries may deter other criminals
     into non-confrontation crime and it may reduce the rate at
     which even violent predators engage in confrontation crimes.
     But the number of violent offenses which are nevertheless
     attempted prove that many criminals on many occasions can
     overcome their fears of the deterrent presented both by an
     armed citizenry and by the police and the prospect of
     punishment by the courts.


     CONCLUSION

          This article began with the proposition that both pro- and
     anti-gun positions on the utility of guns against crime had
     been arrived at by faith in the period before the existence of
     credible empirical evidence on the issues. Having examined the
     evidence that has become available in the last decade it must
     be concluded that parts of each faith have been sustained:

          As to actual defensive handgun uses, the evidence from
     surveys both of civilians and of felons is that they are much
     more frequent than has previously been realized. It may
     tentatively be concluded that handguns are used as or more
     often to prevent the commission of crimes than by felons
     attempting them. This should not be understood as suggesting
     that the decision to resist a felon can be made lightly or that
     their handguns automatically insulate resisters from injury.
     The unique defensive value of a handgun is not the only cause
     for comparatively low rates of injury among gun-armed
     resisters; as or more important is the wisdom not to resist in
     circumstances in which this is unlikely to succeed.

          As to the gun lobby's vaunted deterrent effect of gun
     ownership the evidence is even more equivocal. In general
     (though not without equivocation) it does support the common
     sense intuition that the average criminal has no more desire to
     face an armed citizen than the average citizen has to face an
     armed criminal. Widespread defensive gun ownership benefits
     society as a whole by deterring burglars into making efforts to
     avoid occupied premises; and by deterring from confrontation
     offenses altogether an unknown proportion of criminals who
     might otherwise be attracted by the immediate profitability of
     robbery into committing at least a few of them. Even when
     criminals are not so deterred, widespread gun ownership may
     frighten them into reducing the overall number of such offenses
     they commit; and it does frighten them into abandoning some
     specific offenses -- particularly in areas where special local
     programs have dramatized the likelihood of victim arms
     possession. Yet it must also be noted that the possibility that
     gun ownership reduces the activity level of confrontation
     offenders is only an unsubstantiated speculation; gun lobby
     propaganda has exaggerated the deterrent effect of gun
     ownership by not discounting for displacement effects that
     represent no net gain in overall crime reduction.

          Finally some caveats may be offered on the limited import
     of the evidence I have reviewed for issues of firearms
     regulation: clearly this evidence disposes of the claim that
     handguns are so lacking in social utility that courts should,
     in effect, ban their sale to the general public under the
     doctrine of liability without fault. This evidence likewise
     cuts strongly against severe statutory restrictions based on
     the belief that handgun ownership offers few social benefits to
     offset the harms associated with it. But even if strict
     liability for guns were factually supportable, it is very
     evident that the courts are unwilling to accept it as a matter
     of law. [136] Moreover, even if handguns offered no benefits
     whatever, neither does banning them -- except as part of a
     policy of outlawing and confiscating guns of all kinds. [137]

          What the evidence on crime reductive utility of firearms
     most definitely does not do is undercut the case for controls
     tailored to deny firearms of all kinds to felons, juveniles and
     the mentally impaired. Indeed, Professors Kleck and Bordua, the
     criminologists principally responsible for documenting that
     utility, remain strongly supportive of such controls (if
     carefully tailored not to prevent handgun ownership among the
     responsible adult population). [138] Moreover it is still
     possible to argue for going beyond control to the prohibition
     and confiscation of (all kinds of) firearms if it can
     realistically be posited that the net gain in reducing suicide,
     gun accident and certain kinds of homicide might outweigh the
     reductive effect of civilian firearms ownership on crime.


                                  REFERENCES


     1.   W. McAdoo, WHEN THE COURT TAKES A RECESS 131 (1921).
          In a subsequent article Magistrate McAdoo averred
          that he "would as soon place a full-venomed cobra
          snake in my house as a loaded revolver". "Causes and
          Mechanisms of Prevalent Crimes" 24 SCIENTIFIC MONTHLY
          415, 419 (1927).

     2.   Fisher, "Are Handgun Manufacturers Strictly Liable in
          Tort", 56 CAL. ST. BAR. J. 16, 18 (1981) (emphasis
          added) (supporting imposition of strict
          manufacturers' liability as a mechanism for judicial
          abolition of the handgun). See also Riley, "Shooting
          to Kill the Handgun: Time to Martyr Another American
          'Hero'" 51 J. URB. L. 491 (1974) (urging legislative
          prohibition of handgun ownership) and Fields,
          "Handgun Prohibition and Social Necessity", 23
          St.L.U.L.J. 35 (1979) (same).

     3.   See Fields, "Does Blame for Handgun Crime Lie at the
          Factory Gate", BUSINESS & SOCIETY REVIEW, Spring,
          1983 (same argument by same author as id. in support
          of strict liability approach) and Baker, "Without
          Guns Do People Kill People?" 75 AM. J. PUB. HEALTH
          587 (1985) (supporting either statutory or judicial
          abolition of all guns but recommending "restricting
          the sale and ownership of handguns" particularly
          "because of their very low benefit-risk ratio.").
          Other articles advocating the strict product
          liability approach include Note: "Common Law Strict
          Liability against the Manufacturers and Sellers of
          Saturday Night Specials", 27 SANTA CL. L. R. 607
          (1987); Note: "Do Victims of Unlawful Handgun
          Violence Have Remedy Against Handgun Manufacturers:
          An Overview and Analysis", 1985 U. ILL. L. REV. 967,
          Teret & Wintemute, "Handgun Injuries: The
          Epidemiologic Evidence for Assessing Legal
          Responsibility", 6 HAMLINE L. REV. 341, 349-50 (1983)
          and Turley, "Manufacturers' and Suppliers' Liability
          to Handgun Victims", 10 N. KY. L. REV. 41 (1982).

     4.   Virtually every issue that divides the sides of this
          perfervid debate has been marked by the anomaly of
          contentions strongly advanced in the absence of
          strong evidence to support either side. [missing
          text] hibited confined to the value of gun ownership
          as an antidote to crime. Only a decade ago a
          distinguished analyst writing in our leading journal
          of public policy scathingly dismissed the entire
          corpus of scholarly literature then extant:

               [Despite an enormous volume of writing,] it
               is startling to note that no policy
               research worthy of the name has been done
               on the issue of gun control. The few
               attempts at serious work are of marginal
               competence and tainted by obvious bias.

          Bruce-Briggs, "The Great American Gun War", Fall, 1976,
          THE PUBLIC INTEREST. Although anti-gun advocates saw this
          assessment as hostile to their position particularly (see
          e.g. Fields n. 2 supra, 23 St.L.U.L.J. at 40), at about
          the same time Prof. Philip Cook, a criminologist whose
          seminal contributions in the area have been partially
          underwritten by anti-gun organizations, was writing:

               While the consistent failure of gun control
               proposals to pass Congress has often been
               blamed on lobbying efforts of the NRA, part
               of the problem may be that the case for
               more stringent gun control regulation has
               not been made in any scientific fashion A
               Policy Perspective on Handgun Control 14
               (mimeo, Duke U. 1976).

          Likewise the authoritative review of pre-1979 gun control
          literature done for the National Institute of Justice
          provides an overwhelmingly negative assessment of
          virtually every aspect. J. Wright, P. Rossi & K. Daly,
          WEAPONS, CRIME AND VIOLENCE IN AMERICA: A LITERATURE
          REVIEW AND RESEARCH AGENDA (Washington, D.C., Gov't.
          Print. Off.: 1981) commercially published as J.
          Wright, P. Rossi, K. Daly, UNDER THE GUN: WEAPONS,
          CRIME AND VIOLENCE IN THE UNITED STATES (N.Y.,
          Aldine: 1983).

     3A.  See text accompanying note 63 infra.

     4.   For discussion and relevant citations: on factors (1)
          and (5) see Kates, "Handgun Prohibition and the
          Original Meaning of the Second Amendment", 82 MICH.
          L. REV. 203 (1983) and especially pp. 270-2, and 204,
          n. 5 (hereinafter cited as MICH. L. REV.), Olmsted,
          "Morally Controversial Leisure: The Social World of
          Gun Collectors", 11 Symbolic Interaction 277 (1988);
          Kessler, "Enforcement Problems of Gun Control: A
          Victimless Crimes Analysis", 16 CRIM. L. BULL. 131
          (1980) and Hardy and Chotiner, "The Potentiality for
          Civil Liberties Violation in the Enforcement of
          Handgun Prohibition" in D. Kates (ed.) RESTRICTING
          HANDGUNS (1979); on factors (2)-(4) see J. Wright, P.
          Rossi, K. Daly, n. 3 supra chs. 7, 8 and 14
          (hereinafter cited as UNDER THE GUN), Kates, "Handgun
          Banning in Light of the Prohibition Experience" in D.
          Kates (ed.) FIREARMS AND VIOLENCE (1984) McDowall &
          Loftin, "Collective Security and the Demand for Legal
          Handguns" 88 AM. J. SOC. 1146, 1158 (1983) and
          Benenson and Hardy, "Critiquing the Case for Handgun
          Prohibition" in RESTRICTING HANDGUNS supra at 85-90.

     5.   Anent the role of cost-benefit analysis and other
          issues relevant to outlawing widely desired
          commodities see H. Packer, THE LIMITS OF THE CRIMINAL
          SANCTION (1968), J. Kaplan, MARIJUANA -- THE NEW
          PROHIBITION (1975) and Kaplan, "A Primer on Heroin",
          27 STAN. L. REV. 801 (1975). Treatments of those
          principles in the gun context include both Cook and
          Kessler n. 5 supra, Lizotte, "The Costs of Using Gun
          Control to Reduce Homicide" 62 BULL. N.Y. ACAD. MED.
          539 (1986) and Kaplan, "The Wisdom of Gun
          Prohibition" 455 ANNALS OF THE AMER. ACAD. OF POL. &
          SOC. SCI. 11 (1981) and "Controlling Firearms" 28
          CLEVE. ST. L. REV. 1 (1977).

     6.   Surprisingly in light of its voluminousness, the
          literature on "gun control" contains no real
          discussion of satisfying people's felt need for
          personal defense in non-lethal ways. Typical in
          length, though more acute than most discussions of
          the possibilities, is Prof. Polsby's comment that
          burglar alarms are not alternative, but only
          supplementary, to guns because burglars would not
          deterred by alarms except for the fact that they
          summon people who are armed. "Reflections on
          Violence, Guns and the Defensive Use of Deadly
          Force", 49 LAW & CONTEMP. PROB. 89, 96-7 (1986). The
          one exception to this virtual dearth of discussion
          proves the rule. Jacobs, "The Regulation of Personal
          Chemical Weapons: Some Anomalies in American Weapons
          Law" 15 U. DAYTON L. REV. 141 (1989) is not an
          exhaustive policy discussion, but rather a review of
          current American law on the subject.

           To an extent, inattention to the possibility of
          substituting non-lethal weaponry for guns may reflect
          technical evaluations that current non-lethal weapons
          (stun guns, tear gas, aerosol sprays, etc.) are
          generally ineffective, particularly against enraged,
          excited and/or inebriated persons. M. Ayoob, IN THE
          GRAVEST EXTREME 35-8 (1980). But failure to develop
          more effective non-lethal weapons may itself be at
          least partly attributable to the gun control
          controversy. While the anti-gun movement in general
          has not endorsed such bans, they are pursued by the
          numerous and influential segment of anti-gun
          advocates who disapprove of every form of private
          self protection (see nn. 9, 11 and 24 infra and
          accompanying text); in contrast, comparatively few of
          those who so indefatigably oppose gun bans care
          deeply about laws that threaten only the prospective
          profits of non-lethal weapons' developers rather than
          the confiscation of their own property. This
          political situation deters entrepreneurs from
          underwriting the cost of research and development.
          Such investment constitutes an unreasonable risk if
          the political reality is that development of
          effective non-lethal weapons would only lead their
          being banned.

     6A.  For discussion of the quality and content of analyses
          that typify gun lobby thinking see nn. 33ff. and
          accompanying text.

     7.   But see n. 34 infra. Cf. Tonso, "Social Science and
          Sagecraft in the Debate Over Gun Control", 5 LAW AND
          POLICY Q. 325 (1983) using gun control as an example
          of Florian Znaniecki's construct (THE SOCIAL ROLE OF
          THE MAN OF KNOWLEDGE, 72-4 [1968]) of intellectuals
          as "sages" who, under the pretense of scholarship,
          invent or interpret data in the service of a
          preordained conclusion.

     7A.  These labels are taken from two pieces in which I
          have addressed the issue of public opinion. Kates,
          "Bigotry, Symbolism and Ideology in the Battle Over
          Gun Control", a paper presented at the 1990 Annual
          Meeting of the Law and Society Association and Kates,
          "The Battle Over Gun Control" THE PUBLIC INTEREST,
          Summer, 1986. For analysis of the most modern and
          extensive polls see Wright, "Public Opinion and Gun
          Control", 455 ANNALS 24 (1981), Bordua, "Gun Control
          and Opinion Measurement", 5 LAW & POLICY Q. 345
          (1983).

     8.   Thus it is not these criminological disagreements
          that make this controversy so bitter that it is not
          subject to resolution with mutual accommodation and
          rational compromise of the kind that suffices to
          resolve political disputes of other kinds. What
          precludes this as to the gun issue are cultural and
          moral antagonisms so savage that, as a neutral
          observer comments, "gun owners believe (rightly in my
          view) that the gun controllers would be willing to
          sacrifice their interests even if the crime control
          benefits were tiny." Moore, "The Bird in Hand: A
          Feasible Strategy for Gun Control" 2 J. POLICY AN. &
          MANGMNT. 185, 187-8 (1983). In other words gun owners
          end up fanatically opposing controls many of which
          they may themselves deem reasonable and sensible in
          the abstract (see n. 7A supra) because the way in
          which "gun control" is debated convinces them that,
          at bottom, it is not a criminological program but an
          expression of culturally or ethically based hatred of
          them.

          [Experience with this debate] convinces America's
          handgun owners that they are a hated minority whose
          days are numbered by mortal enemies -- enemies who
          hate them more than crime. With the die cast so, gun
          owners are made to think that they have everything to
          lose if those who loath them have any success at all.
          [Knowing this, the gun lobby actually] disseminate[s]
          the nastier [anti-gun] cartoons and vituperative op-
          ed pieces in publications read by gun owners to fan
          the flames of incipient paranoia.

          Stell "Guns, Politics and Reason", 9 J. AM. CULTURE
          71, 73 (1986) (emphasis in original). See also Kates,
          "The Battle Over Gun Control" THE PUBLIC INTEREST,
          Summer, 1986, Bruce-Briggs n. 3 supra at 61, Tonso n.
          4 supra at 330ff., UNDER THE GUN 323-4 and Kaplan,
          "Controlling Firearms" n. 5 supra at 5-7.

     8A.  UNDER THE GUN supra n. 5 at p. 4.

     9.   The first quote is from "Gun Toting: A Fashion
          Needing Change", 93 SCIENCE NEWS 613, 614 (1968), the
          second from Hofstadter, "America As A Gun Culture" in
          AMERICAN HERITAGE, Oct. 1970 at 82 (applying to gun
          ownership D. H. Lawrence's definition of "the
          essential American soul"). Compare the pronouncement
          of columnist Sydney Harris that "The mere possession
          of a gun is, in itself, an urge to kill, not only by
          design, but by accident, by madness, by fright, by
          bravado." CHICAGO DAILY NEWS, Ap. 11, 1967. See e.g.
          Luedens, "Wretchedness is A Warm Gun" 48 PROGRESSIVE
          50 (1984), Braucher, "Gun Lunatics Silence [the]
          Sounds of Civilization" and "Handgun Nuts are Just
          That -- Really Nuts", MIAMI HERALD, July 19, 1982 and
          Oct. 29, 1981, Ellison, "Fear Not Your Enemies",
          HEAVY METAL. Mar., 1981, Grizzard, "Bulletbrains",
          ATLANTA CONSTITUTION, Jan. 19, 1981 and references
          cited at notes 11, 11A and a-23 infra.

     10.  J. Cooper and the editors of GUNS AND AMMO magazine,
          HANDGUNS, p. 1 (1976).

     10A. See e.g. P. Shields, GUNS DON'T DIE, PEOPLE DO (N.Y.:
          Arbor, 1981) in which the Chairman of Handgun Control
          Inc. advises: "the best defense against injury is to
          put up no defense -- give them what they want or run.
          This may not be macho, but it can keep you alive."
          (pp. 124-5). See also N.Y. TIMES Dec. 11, 1984:
          "Don't Resist Robbery Chicago Study Warns" (interview
          with Zimring and Zuehl, the authors of the study
          cited at n. 78A) and, more generally [Yeager].

     11.  Wills, "Handguns that Kill", WASHINGTON STAR, Jan.
          18, 1981 and "John Lennon's War", CHICAGO SUN TIMES,
          Dec. 12, 1980 and "Or Worldwide Gun Control"
          PHILADELPHIA INQUIRER, May 17, 1981 ("The gun nuts
          who write me say that their liberty may have to be
          preserved against their own government, their own
          fellow countrymen, someday ..."; emphasis added.).
          11-1. Wills supra n. 11 "Handguns that Kill"

     11A. Id. To the same effect see e.g. the categorical
          assertion of University of Chicago Prof. Robert
          Replogle, testifying before Congress that: "The only
          legitimate use of a handgun that I can understand is
          for target shooting." (Handgun Crime Control
          Hearings, 1975-6 Senate Judiciary Committee
          [Subcommittee re Juvenile Delinquency] Oversight of
          the 1968 Gun Control Act, v. II at 1974); or the
          DETROIT DAILY PRESS' equally categorical editorial
          statement (Jan. 22, 1968):

                    No private citizen has any reason or
               need at any time to possess a gun. This
               applies to both honest citizens and
               criminals. We realize the Constitution
               guarantees the "right to bear arms" but
               this should be changed.

                    Typically such assertions are based on
               purely secular morality (e.g. Prof.
               Janowitz as quoted in the June 21, 1968
               issue of TIME). But similar religiously
               based sentiments abound. A Methodist
               publication affirms the moral necessity of
               submission rather than using a gun to
               resist a rapist or other felon; Brockway,
               "But the Bible Doesn't Mention Pistols" in
               Engage-Social Action Forum, HANDGUNS IN THE
               UNITED STATES (Methodist Board of Social
               Concern, 1977). Rhetorically posing the
               question "Is the Robber My Brother", Rev
               Brockway answers in the affirmative: for
               though neither the robbery victim nor the
               woman accosted in the park by a rapist is
               likely to consider the violator to be a
               neighbor whose safety is of immediate
               concern...[c]riminals are members of the
               larger community no less than are others.
               As such they are our neighbors or, as Jesus
               put it, our brothers....

                    The Methodists, or at least Rev.
               Brockway, seem to concede that the victim
               may morally use a gun if she believes that
               the attacker will kill her after raping
               her. Id. The Presbyterian Church USA
               disagrees, since it holds that the rape
               victim is morally required to give up her
               life rather than use a gun to menace the
               life of her attacker. As its
               representative, Rev. Young, the director of
               its Criminal Justice Program, recently
               testified before Congress:

                    The General Assembly [of the
               Presbyterian Church USA] has declared in
               the context of handgun control and in many
               other contexts, that it is opposed to "the
               killing of anyone, anywhere, for any
               reason." (1972).

          --House Judiciary Committee [Subcommittee on Crime]
          1985-6 Hearings on Legislation to Modify the 1968 Gun
          Control Act; v. I at 128. As Rev. Young took care to
          emphasize the Church does not object to long guns
          because it assumes that they are not to be used in
          self-defense but only "by sports people"; conversely,
          handguns must be prohibited because "There is no
          other reason to own a handgun (that we have
          envisioned, at least) than to kill someone with it."
          For the similar pronouncement of the Union of
          American Hebrew Congregations see id. at 121-5.

     12.  The moral equivalency of calling the police and of
          defending oneself was apparent to Thomas Hobbes. Of
          course he could not have offered this precise
          equation since he lived before the institution of
          police in England. But an alternative Prof. Wills
          recommends, the use of locks, did exist in Hobbes'
          time and he had no difficulty recognizing its
          equivalency to arms in addressing arguments like
          Prof. Wills'. Thus LEVIATHAN ch. 13 cites the fact
          that those who in theoretical discussions decry
          Hobbes' characterization of man as an insult to human
          nature, implicitly affirm it when they safeguard
          themselves by keeping arms and by locking their homes
          and strong boxes "against their own neighbors" (to
          quote Wills). Nor is gun ownership the only example
          of the distrust of, and hostility "against[,] their
          own neighbors" that so exercises Prof. Wills. Such
          feelings are equally evident when people move from
          high- to low-crime areas -- thereby choosing
          neighbors whom they feel they need not fear. That
          example, in turn, suggests a question about the
          relationship between morality, privilege and
          obliviousness to the situation of the disadvantaged:
          Does the good fortune that allows Prof. Wills to live
          in a peaceful suburb like Evanston make him morally
          superior to those who, living on Chicago's South
          Side, must be prepared to defend their families from
          attack by "neighbors" they too would eschew if they
          could afford to do so? Cf. Silver and Kates "Self
          Defense, Handgun Ownership and the Independence of
          Women in a Violent Sexist Society" in RESTRICTING
          HANDGUNS supra n. 5 at 147-50.

     12A. See e.g. the statement of former California Governor
          Edmund G. ("Pat") Brown Sr., Chairman of the National
          Commission on Reform of Federal Criminal Laws,
          appearing before a subcommittee of the Senate
          Judiciary Committee in 1971 to assail defensive gun
          ownership as a manifestation of exaggerated,
          unrealistic public fears of crime. (In addition, of
          course, he advanced lines of argument which retain
          greater credence today, see nn. 41-3 infra and
          accompanying text.) HEARINGS [on S. 2507] BEFORE THE
          SUBCOMMITTEE TO INVESTIGATE JUVENILE DELINQUENCY AT
          55-6 (1971). See also the assertion that "Studies
          [show] ... that the likelihood of injury or death
          during a burglary is minimal." in M. Yeager and the
          Handgun Control Staff of the U.S. Conference of
          Mayors, HOW WELL DOES THE HANDGUN PROTECT YOU AND
          YOUR FAMILY 3 (1976) citing, inter alia G. Newton and
          F. Zimring, FIREARMS AND VIOLENCE IN AMERICAN LIFE
          (hereinafter cited as Newton and Zimring) at p. 62
          (1970). While his opposition to handgun ownership
          remains no less fervent today, Prof. Zimring's views
          on the dangers of home intrusion seem to have changed
          radically. Cf. Zimring and Zuehl, "Victim Injury and
          Death in Urban Robbery: A Chicago Study", 15 J. LEG.
          STUD. 1, 9ff. (1986). See also discussion at n. 112
          infra and accompanying text.

     12B. W. Tucker, VIGILANTE: THE BACKLASH AGAINST CRIME IN
          AMERICA 38ff. (N.Y., Stein & Day, 1985).

     12C. Personal communication from Insurance Agent Jack
          Martin.

     13.  Wright, "The Ownership of Firearms for Reasons of
          Self Defense" in FIREARMS AND VIOLENCE n. 4 supra at
          316. A subsequent U.S. Department of Justice study
          concludes that over a 20 year period almost 75% of
          all American homes will be burglarized. N.Y. TIMES,
          March 9, 1987: "83% to be Victims of Crime Violence".

     13-1.Tucker supra n. 12B at 41 ("America now has the highest 
          crime rate in the industrialized world.") Drinan and
          then. Compare D. Shipler, RUSSIA: BROKEN IDOLS,
          SOLEMN DREAMS (N.Y. Times Books, 1983) at 128-9 and
          231 quoting an IZVESTIA journalist suggesting that if
          Russian crime statistics were sensationalized (or
          even published at all) "there would be as much fear
          [in Moscow] as there is in New York."

     13A. See generally, Thompson, Bankston, Thayer-Doyle,
          Jenkins, "Single Female Headed Households, Handgun
          Possession and the Fear of Rape", a paper presented
          at the 1986 Annual Meeting of the Southern
          Sociological Society (available from the authors at
          the Department of Sociology, La. State U., Baton
          Rouge), DeFronzo, "Fear of Crime and Handgun
          Ownership", 17 CRIMINOLOGY 331 (1979). UNDER THE GUN
          n. 4 supra at 120 describes lesser fear of crime as
          one of the few significant differences between the
          personalities of gun owners and non-owners.

               One difficulty in evaluating findings of lesser
          fear of crime among gun owners is that these may not
          be entirely independent of the phenomenon that areas
          with large gun ownership tend to have less crime to
          fear. See e.g. Bordua, "Firearms Ownership and
          Violent Crime: A Comparison of Illinois Counties", in
          J. Byrne and R. Sampson (ed.) THE SOCIAL ECOLOGY OF
          CRIME (1986), Eskridge, "Zero-Order Inverse
          Correlations Between Crimes of Violence and Hunting
          Licenses in the United States", 71 SOCIOLOGY & SOCIAL
          RESEARCH 55 (1986). 14. For a particularly eloquent
          indictment of the gun in this respect see former U.S.
          Attorney General Ramsey Clark's CRIME IN AMERICA 90
          (1971). Current statistical breakdowns on handgun
          homicide, suicide and fatal accidents are given at n.
          49 infra and accompanying text.

               At the insistence of two reviewers of this
          article I hasten to add two caveats on the subject of
          suicide: first, that some people deem suicide not an
          evil but simply a matter of personal choice. It might
          even be deemed hubris for lesser mortals to presume
          to judge a course deemed appropriate in their own
          circumstances by inter alia, Socrates, Demosthenes,
          Hannibal, Cleopatra, Clive, Castlereagh, Virginia
          Woolf, Robert LaFollette Jr. and Ernest Hemingway.
          Second, common sense and cross-cultural "data show
          that people will find a way to commit suicide
          regardless of the availability of firearms." Danto,
          "Firearms and Their Role in Homicide and Suicide" 1
          LIFE THREATENING BEHAVIOR 10, 14 (1971) (noting that
          many countries where guns are effectively unavailable
          have far higher suicide rates than ours). Even
          strongly anti-gun analysts find little reason to
          quarrel with this; cf. Newton & Zimring n. 12A supra,
          ch. 6.

     15.  See e.g. Cook, "The Role of Firearms in Violent
          Crime: An Interpretative Review of the Literature" in
          M. Wolfgang and N. Weiler (ed.) CRIMINAL VIOLENCE 269
          (1982)

               A gun becomes involved in a fatal accident
          through misuse. [Unlike the general gun owning
          population, those] who cause such accidents are
          disproportionately involved in other accidents,
          violent crime and heavy drinking.

               As might be expected when such characteristics
          prevail in the high risk group for fatal gun
          accidents, they also prevail among those who
          intentionally misuse weapons. It has been observed
          that gun accident perpetrators strikingly resemble
          murderers: both groups exhibit singular
          irresponsibility and indifference to human life and
          welfare (even their own) as evidenced by life
          histories of serious felony, alcohol and drug abuse,
          automobile and other dangerous accidents, often
          irrational assaults on acquaintances, relatives and
          even strangers. Compare Kleck, "Firearms Accidents"
          (draft ms., Florida State U. Sch. of Criminology,
          1986) to FIREARMS AND VIOLENCE, supra n. 4 at 145.
          Kleck suggests that the pertinent inquiry about one
          who displays such characteristics is not whether he
          will kill himself or someone else, but when he will
          eventually manage to do so. See also Kleck, "Policy
          Lessons from Recent Gun Control Research", 49 LAW &
          CONTEMPORARY PROBLEMS 35, 40-1, 59-60 (1986)
          (recommending that gun laws focus on such high-risk
          owners, and seek to deprive them of all guns, not
          just handguns).

               But gun accidents and murders differ "rather
          dramatically" from gun suicides whose circumstances
          and perpetrators closely parallel those
          characterizing the general population. Cook id. and
          270-1, Danto, "Firearms and Violence", 5 INT'L. J.
          OFFENDER THER. 135 (1979) and Danto and Danto,
          "Jewish and Non-Jewish Suicide in Oakland County,
          Mich.", a paper delivered at the 1981 annual meeting
          of the American Association of Suicidology.

     16.  See e.g. Calogrides v City of Mobile, 475 So. 2d 560
          (S.Ct. Ala. 1985) -- quoting with approval from
          Weutrich v Delia, 155 N.J Super 324, 326, 382 A.2d
          929, 930 (1978) "'a public entity such as a
          municipality is not liable in tort for its failure to
          protect against the criminal propensity of third
          persons'" -- Morris v Musser, 478 A.2d 937 (1984),
          Morgan v District of Columbia, 468 A.2d 1306 (D.C.
          Ct. of Ap. 1983), Davidson v City of Westminster, 32
          C.3d 197, 185 Cal. Rptr. 252, 649 P.2d 894 (S. Ct.
          Cal. 1982), Chapman v City of Philadelphia, 434 A.2d
          753 (Sup. Ct. Penn. 1981), Sapp v City of
          Tallahassee, 348 So.2d 363 (Ct. of Ap. Fla. 1977),
          Simpson's Food Fair v Evansville, 272 N.E. 2d 871
          (Ct. of Ap., Ind.), Silver v City of Minneapolis, 170
          N.W.2d 206 (S.Ct. Minn. 1969), Riss v City of New
          York, 22 N.Y. 2d 579, 293 NYS2d 897, 240 N.E. 2d 860
          (N.Y. Ct. of Ap. 1968), Keane v City of Chicago, 98
          Ill. App.2d 460, 240 N.E.2d 321 (1968). See also
          Bowers v DeVito, 686 F.2d 61 (7 Cir. 1982) (no
          federal constitutional requirement that state or
          local agencies provide sufficient police protection).

     17.  444 A.2d 1 (D.C. Ct. of Ap. 1981).

     18.  RESERVED

     19.  Id. Compare Chambers-Castanes v Kings County, 669
          P.2d 451 (S. Ct. Wash. 1983) holding that a special
          duty could arise as an exception to the non-liability
          principle where the plaintiffs alleged not just mere
          general reliance on the police but that plaintiffs
          were dissuaded from taking steps to protect
          themselves because when they called for police
          assistance they were specifically assured that help
          was on its way.

               This raises an interesting question as to the
          liability of those cities whose officials issue
          highly publicized statements advising the citizenry
          that personal gun ownership is unnecessary because
          the police will provide them all the protection they
          need: in a fact situation like that involved in
          Warren could a rape victim recover damages for
          failure to protect on the theory that such advice had
          dissuaded her from buying a gun to protect herself?

               It should be noted that even if such a theory
          had merit in those jurisdictions which allow
          defensive firearms, it can have none in the Warren's
          actual situs, the District of Columbia since its law
          forbids civilians to have firearms of any type
          available for self defense. Having been disarmed by
          law, the Warren plaintiffs had no grievance even if
          they had been misled by official assurances that the
          police could protect unarmed crime victims. However
          badly they were injured in fact when such assurances
          proved false, in law they suffered no injury, or at
          least none attributable to the assurances. Thus the
          majority opinion in Riss supra n. 13 takes no note of
          the dissent's argument that the plaintiff should be
          allowed to collect damages because she had been
          injured through her obedience to New York's handgun
          prohibition law.

     20.  Cal. Gov't. Code 821, 845, 846 and 85 Ill. Rev. Stat.
          4-102 construed in Stone v State, 106 C.A.3d 924, 165
          Cal. Rptr. 339 (Cal. D.C.A. 1980) and Jamison v City
          of Chicago, 48 Ill. App. 567 (Ill. Ct. of Ap. 1977)
          respectively; see generally 18 McQUILLIN ON MUNICIPAL
          CORPORATIONS sec. 53.80 as well as the authorities
          cited at nn. 16-18, 21 and 22 herein and the cases
          annotated at 46 ALR 3d 1084.

     21.  Silver and Kates, "Handgun Ownership, Self-defense
          and the Independence of Women in a Violent, Sexist
          Society" in RESTRICTING HANDGUNS supra n. 4 at 144-7.
          Prof. Leddy, formerly a N.Y. officer, cites personal
          experience:

                    The ability of the state to protect us
               from personal violence is limited by
               resources and personnel shortages [in
               addition to which] the state is usually
               unable to know that we need protection
               until it is too late. By the time that the
               police can be notified and then arrive at
               the scene the violent criminal has ample
               opportunity to do serious harm. I once
               waited 20 minutes for the New York City
               Police to respond to an "officer needs
               assistance" call which has their highest
               priority. On the other hand, a gun provides
               immediate protection. Even where the police
               are prompt and efficient, the gun is
               speedier.

          -- "The Ownership and Carrying of Personal Firearms",
          forthcoming in INT'L. J. VICTIMOL. Cf. Bowman, "An
          Open Letter", POLICE MARKSMAN, July-August, 1986. Cf.
          Riss and Silver n. 16 supra as well as Wong v City of
          Miami, 237 So.2d 132 (Fla., 1970), all emphasizing
          the need for judicial deference to administrators
          allocating scarce police resources as a reason for
          denying liability for failure to protect.

     22.  Weiner v Metropolitan Transit Authority, 433 N.E. 2d
          124, 127, 55 N.Y. 2d 175, 498 N.Y.S. 2d 141 (N.Y.
          App. Div. 1982).

     a.   See discussion at n. 11A and accompanying text; also
          infra at n. 22B and 25. But it bears emphasis by
          reiteration that the term "anti-gun" is not used here
          to describe mere support for gun control; rather it
          is used only in its most literal sense: cultural or
          moral revulsion against guns and their owners, and
          concomitantly against gun use in self-defense. It
          bears reemphasis that most Americans are not anti-gun
          in this sense yet are "pro-control" in perceiving a
          need for rational control of deadly weaponry. See n.
          7A and accompanying text supra.

     22B. Huston, Geis & Wright, "The Angry Samaritans",
          PSYCHOLOGY TODAY. June 1976, 64.

     22C. Williams and McGrath, "Why People Own Guns", 26 J. OF
          COMMUNICATION 22 (1976). Compare UNDER THE GUN n. 4
          supra at 122 ("There is no evidence suggesting" that
          gun owners are "an especially unstable or violent or
          maladapted lot; their 'personality profiles' are
          largely indistinct from the rest of the population.")
          But see nn. 13A supra and 76 infra.

     22D. J. Ratcliffe (ed.) THE GOOD SAMARITAN AND THE LAW
          (N.Y. Doubleday, 1966).

     22E. See n. 11 supra and accompanying text.

     23.  Clark n. 14 supra at 88. To the same effect see e.g.
          "Guns and the Civilizing Process" WASHINGTON POST
          editorial, September 26, 1972, Duncan, "Gun Deaths",
          CHRISTIAN CENTURY, Aug. 25, 1979 at 471, and the
          various references cited at notes 9, 11 and 11A
          supra.

     24.  UNDER THE GUN supra n. 4 at 193, n. 3. See generally
          Howard, "Husband-Wife Homicide: An Essay from a
          Family Law Perspective", 49 LAW & CONTEMP. PROB. 63,
          69-74 (1986) -- but see 74ff. noting that a wife who
          kills her husband is much more likely to have trying
          to avoid a beating than culminating her own pattern
          of previous physical abuse against him. Compare
          Bruce-Briggs n. 3 supra at 40 decrying "The
          calculation of family homicides and accidents as
          costs of gun ownership" because

                    The great majority of these killings
               are among poor, restless, alcoholic,
               troubled people, usually with long criminal
               records. Applying the domestic homicide
               rate of these people to the presumably
               upstanding citizens whom they prey upon is
               seriously misleading.

               See also n. 15 supra and accompanying text. The
          difference between the perpetrators of lawful self-
          defense homicides and murderers is actually minimized
          by the statistic that two thirds of the latter have
          at least one prior felony arrest record. In addition
          a Kansas City study found that in the two years
          preceding 85% of domestic homicides the police had
          been called to the scene at least once to stop an
          altercation; in 50% of the cases the police had to
          appear five or more times. But because the police
          generally treat such incidents as "family affairs"
          few of them result in a felony arrest before the
          culminating incident in which death actually occurs.
          FIREARMS AND VIOLENCE supra n. 4 at 145, n. 24.

     24A. Straus, "Domestic Violence and Homicide Antecedents",
          62 BULL. N.Y. ACAD. MED. 446, 450 (1986). Compare
          Kleck, "Capital Punishment, Gun Ownership and
          Homicide", 84 AM. J. SOC. 882 (1979).

     25.  M. Yeager and the Handgun Control Staff of the
          Conference of Mayors, HOW WELL DOES THE HANDGUN
          PROTECT YOU AND YOUR FAMILY? (1976) at 1, J. Alviani
          & W. Drake, HANDGUN CONTROL: ISSUES AND ALTERNATIVES
          (1975) at 8 (emphasis added). Virtually identical
          formulations as to "domestic homicide" appear in
          other anti-gun discussions of self-defense, e.g.
          Rushforth, et al. "Violent Death in a Metropolitan
          County" 297 NEW ENGLAND J. MED. 531, 533 (1977),
          Drinan, "Gun Control: The Good Outweighs the Evil", 3
          CIVIL LIBERTIES REV. 44, 49 (1976). See also Shields
          n. 10A supra at 49-53 and 124-5.

     26.  Wechsler, "A Rationale of the Law of Homicide", 27
          COLUM. L. REV. 701, 736 (1937).

     27.  Se defendendo referred only to homicide committed in
          defense against an attack growing out of a quarrel or
          feud. When a civilian (there were no police, but
          soldiers performed occasional police duties) had to
          kill a robber, rapist or other felon the common law
          strongly approved. See analysis and authorities cited
          in Kates, "The Second Amendment: A Dialogue", 49 LAW
          & CONTEMP. PROB. 143, 147-8 at n. 24 (1986).

     28.  In addition to n. 26 supra, see e.g. F. Pollock, A
          TREATISE ON THE LAW OF TORTS 201 (New Amer. ed. 1894)
          and Bishop as cited with approval by Perkins in his
          CRIMINAL LAW (2d ed. 1969) at 1003-4. For an
          innovative modern application of game theory to
          justify the legal principles of deadly force self
          defense as a disincentive to criminal behavior see
          Polsby, "Reflections on Violence, Guns and the
          Defensive Use of Lethal Force" 49 LAW & CONTEMP.
          PROBS. 89 (1986). Brandeis went even further,
          following the Founding Fathers view of self defense
          as basic to the character of a free man. Compare
          Shalhope, "The Ideological Origins of the Second
          Amendment", 69 J. AM HIS. 599 (1981) and MICH L. REV.
          article n. 4 supra at 229-32 to A. Lief, THE BRANDEIS
          GUIDE TO THE MODERN WORLD 212.

     28A. The equation of "vigilantism" with lawful use of
          defensive force by a civilian fundamentally
          misinterprets the concept. In fact vigilantism is
          force illegally used by anyone (whether civilian or
          government official makes no difference) in order to
          impose summary punishment without due process of law.
          Indeed the unstated correlate of defining vigilantism
          as civilian action is to trivialize police use of
          excessive or unnecessary force. The unintended but
          logical consequence of misdefining vigilantism as
          applicable only and always to civilians is to reduce
          the principal vigilantism problem of our era, the
          imposition of summary punishment by police, to the
          status of a miscellaneous, unlined wrong. See
          discussion infra.

     29.  See studies discussed in Geller, "Deadly Force: What
          We Know", 10 J.POLICE SCI. & AD. 151 (1982).

     29A. Based only on the evidence gathered by the Chicago
          Police Department's own internal investigations,
          Prof. Harding found 14% of killings by Chicago
          officers to be "prima facie cases of manslaughter or
          murder" and "Several others presented factual
          anomalies sufficient to suggest that a thorough
          investigation might well have revealed such prima
          facie cases." Yet none of these officers were
          prosecuted nor were departmental reprimands given
          even where the shooting admittedly violated official
          policy (e.g. shooting through a door so that officer
          was unable to determine who he was targeting;
          shooting at or from moving vehicle so as to endanger
          innocent bystanders). Harding, "Killings by Chicago
          Police, 1969-70: An Empirical Study", 46 U.S.C. L.
          REV. 284 (1973). See also Geller & Karales,
          "Shootings of and By Chicago Police: Uncommon Crises,
          Part I: Shootings by Chicago Police", 72 J. CRIM. L.
          & CRIMINOLOGY 1813 (1981). Though Chicago has a long
          and unenviable reputation for such abuses, they are
          not unique to Chicago; a Police Foundation study
          found a pattern of whitewashing killings by police in
          such diverse cities as Birmingham, Detroit,
          Indianapolis, Kansas City (Mo.), Portland (Or.),
          Oakland and Washington, D.C. C. Milton, et al.,
          POLICE USE OF DEADLY FORCE (1977). For Houston and
          Philadelphia see n. 30 infra and accompanying text.

     30.  686 F.2d 1220 (5 Cir. 1983). See also Hampton v City
          of Chicago, 600 F.2d 600 (7 Cir. 1980) and Goode v
          Rizzo, F.2d (3 Cir.).

     31.  Silver & Kates supra n. 21 at 154-5.

     32.  MICH. L. REV. n. 4 supra at 207; Feb. 27, 1986 letter
          to the author from ACLU executive director Ira
          Glasser.

     33.  My derision for the gun lobby's intellectual
          philistinism, is not intended to deny its devotees'
          occasional contributions to scholarly literature.
          Modern Second Amendment interpretation largely began
          with an article by NRA national board member David I.
          Caplan, "Restoring the Balance: The Second Amendment
          Revisited", 5 FORDHAM URBAN L. J. 31 (1976).
          Invaluable contributions have been made by another
          pro-gun activist, Prof. Stephen Halbrook, whose
          research into the writings of the Founding Fathers
          and the philosophical tradition they represented have
          compelled the agreement even of historians who find
          his argumentation simplistic and transparently
          partisan. See reviews of S. Halbrook, "THAT EVERY MAN
          BE ARMED": THE EVOLUTION OF A CONSTITUTIONAL RIGHT
          (1984) by Prof. Fussner, 3 CONST. COMMENTARY 582
          (1986) and Prof. Malcolm, 54 GEO. WASH. L. REV. 452
          (1986). My own debate with Prof. Halbrook appears in
          49 LAW & CONTEMP. PROB. # 1 (1986).

               In the area of criminology, the National Rifle
          Association's resident scholar Dr. Paul Blackman has
          presented papers at numerous scholarly meetings in
          the 1980s, e.g. "Flaws in the FBI Uniform Crime
          Reports Regarding Homicide and Weapons Use", co-
          authored with NRA Assistant General Counsel Richard
          Gardiner, presented at the 1986 annual meeting of the
          American Society of Criminology. This paper is
          typical of Blackman's work in that it concentrates on
          "flaws" in the FBI Uniform Crime Reports that relate
          to issues that disserve the gun lobby's interests;
          flaws that might distort the crime picture in ways
          that aid the gun lobby go unmentioned. See discussion
          at n. 40 infra.

     33A. J. Edwards, MYTHS ABOUT GUNS (1978) p. 7; see
          generally pp. 7-14 and the footnotes thereto. For
          comparable assertions see B. Davidson, TO KEEP AND
          BEAR ARMS 175 (2d ed. Paladin Press, 1979) and W.
          McBirnie, "Why Gun Control Laws CANNOT Reduce Crime
          But CAN Reduce Your Security!" (a Community Churches
          of America pamphlet) at p. 13.

     34.  The following table compares the 1968 regional survey
          data on gun ownership (which Mr. Edwards uses in
          comparisons to regional crime figures for years as
          late as 1976) to regional gun ownership data in a
          July 6, 1975 Gallup survey release.

                              1968                    1975
                      Handguns All guns      Handguns All guns
               EAST       15%     33%             11%     31%
               WEST       29%     49%             19%     40%
               MIDWEST    20%     51%             15%     46%
               SOUTH      18%     59%             28%     58%

     35.  Bordua, "Firearms Ownership and Violent Crime: A
          Comparison of Illinois Counties", in J. Byrne and R.
          Sampson (ed.) THE SOCIAL ECOLOGY OF CRIME (1986) at
          p. 156. Illustrative of the difficulties with Mr.
          Edwards' broad regional comparisons is Cook's
          observation that "the western region includes both
          the Pacific states and the mountain states; the
          former tend to be low and the latter very high in
          density of handgun ownership." Cook n. 15 supra at
          269. Thus it might turn out that it was only the
          comparatively low gun ownership Pacific states that
          were low in crime while the high ownership states in
          the region were much higher -- thereby refuting the
          point Mr. Edwards' regional statistics are supposed
          to support.

     36.  Mr. Edwards correctly notes that the East, though
          lowest in both handgun ownership and all-gun
          ownership, had generally much higher rates of violent
          crime, property crime and all crime than either the
          Mid-West, the South or the nation as a whole in all
          three comparison years. But to claim that gun
          ownership reduces crime required Mr. Edwards to shirk
          another comparison which equally appears from this
          data set at least: The West, with nearly twice the
          handgun ownership and nearly 50% more gun ownership
          overall than the East had much more property crime
          and overall crime than had the East in each of the
          comparison years. Of violent crime it had either
          slightly more or slightly less depending on which
          years were compared.

     37.  Bordua supra n. 35, Eskridge, "Zero-Order Inverse
          Correlations Between Crimes of Violence and Hunting
          Licenses in the United States", 71 SOCIOLOGY & SOCIAL
          RESEARCH 55 (1986).

     38.  See e.g. Krug, "The Relationship Between Firearms
          Licensing Laws and Crime Rates", 113 CONG. REC. 20060
          (1967), Snyder, "Crime Rises under Rigid Gun
          Control", 117 AMERICAN RIFLEMAN 54 (1969), and
          Snyder, "Statistical Analyses Show Handgun Control
          Laws Don't Stop Homicide", POINT BLANK (July, 1975).

     39.  Compare to each other and to Cook infra n. 39A,
          Murray, "Handguns, Gun Control Law and Firearm
          Violence", 23 SOCIAL PROBLEMS 81 (1975); Lester and
          Murrell, "The Relationship Between Gun Control
          Statutes and Homicide Rates", 4 J. CRIME & JUS. 145
          (1981); DeZee, "Gun Control Legislation: Impact and
          Ideology", 5 LAW & POLICY Q. 367 (1983); Kleck, "The
          Relationship between Gun Ownership Levels and Rates
          of Violence in the United States" in FIREARMS AND
          VIOLENCE n. 4 supra, Magaddino and Medoff, "An
          Empirical Analysis of Federal and State Firearm
          Control Laws" in FIREARMS AND VIOLENCE n. 4 supra at
          99, McDowall, Gun Availability and Robbery Rates: A
          Panel Study of Large U.S. Cities, 1974-1978, 8 LAW &
          POLICY Q. 135 (1986); Bordua, "Firearms Ownership and
          Violent Crime: A Comparison of Illinois Counties"
          supra; Kleck & Patterson, "The Impact of Gun Control
          and Gun Ownership Levels on City Violence Rates", a
          paper presented to the 1989 Annual Meeting of the
          American Society of Criminology (available from the
          authors at Florida State University School of
          Criminology). See also Eskridge, "Zero-Order Inverse
          Correlations between Crimes of Violence and Hunting
          Licenses in the United States", 71 SOCIOLOGY & SOCIAL
          RESEARCH 55 (1986).

     39A. Polsby n. 6 supra at 97-8 discounting a finding from
          Cook's "The Effect of Gun Availability on Robbery and
          Robbery-Murder: A Cross Section Study of 50 Cities" 3
          POL. STUD. REV. ANN. 743, 776-778 (1979).

     39B. See discussion at text accompanying nn. 7A and 23-5
          supra. By the same token, as I have suggested in
          debating the 2nd Amendment with the gun lobby, the
          fact that it guarantees responsible adults a right to
          keep a handgun for home defense does not preclude the
          vast majority of gun controls (i.e. those designed to
          keep guns from the criminal and the irresponsible
          rather to disarm the ordinary citizen) nor does it
          preclude even more stringent regulation of the
          carrying of arms outside the home. Compare Kates n.
          27 supra to the counter-argument of the NRA
          representative, Halbrook "What the Founders Intended:
          A Linguistic Analysis of the Right to 'Bear Arms'",
          49 LAW & CONTEMP. PROB. 151 (1986).

     40.  See e.g. Riley n. 2 supra at 497-8, Drinan, "Gun
          Control: The Good Outweighs the Evil", 3 CIVIL
          LIBERTIES REV. 44, 49 (1976), Clark n. 14 supra at
          88-9, Hoffman, "Homicide by Means of Firearms",
          reprinted in H. Wilson, OUTLAWING THE PISTOL 22-3
          (1925), McAdoo n. 1 supra and "Causes and Mechanisms
          of Prevalent Crimes" 24 SCIENTIFIC MONTHLY 415, 419
          (1927), M. Kavanagh, THE CRIMINAL AND HIS ALLIES, ch.
          25 (1927).

               The partisan deceptiveness of both pro- and
          anti-gun advocates is epitomized by the NRA's
          contrasting explication. Blackman, "The Armed
          Criminal", AMERICAN RIFLEMAN, Aug. 1985 notes what
          anti-gun advocates misleadingly omit: that the most
          ruthless criminals are unlikely to be good shots
          since their crimes are generally committed (as their
          lives are lived) under the influence of one or even
          several debilitating intoxicants. Of course Blackman
          neglects to note the correlative implication that
          these particularly reckless, dangerous criminals will
          be less deterrable from confrontation crime than less
          dangerous criminals by the prospect that a victim may
          be armed with a gun. See discussion in the text
          accompanying n. 131 infra.

     41.  See e.g. G. Newton & F. Zimring, FIREARMS AND
          VIOLENCE IN AMERICAN LIFE (hereinafter cited as
          Newton & Zimring) at 62-8 relying on mid-1960s
          estimates by police officers in Detroit and Los
          Angeles.

     42.  Meredith, "The Murder Epidemic" SCIENCE, Dec. 1984 at
          46; see generally Yeager, Alviani, Rushforth et al as
          referenced at n. 25 supra and the various works
          referenced at nn. 2 and 2A supra.

     43.  Cf. Bruce-Briggs supra n. 3 describing the anti-gun
          argument from justifiable homicide statistics as
          "ingeniously specious" because:

               People do not have "house guns" to kill burglars
          but to prevent burglaries. The measure of the
          effectiveness of self defense is not the number of
          bodies piled up on doorsteps but in the property that
          is protected. We have no idea how many burglars are
          challenged and frightened off by armed householders.
          And, of course, there is no way to measure the
          deterrent effect on burglars who know that
          householders may be armed.

               Indicative of the advance of empirical knowledge
          since that was written (in 1976) is the fact that
          there is now a considerable amount of evidence on the
          matters addressed in the last two sentences quoted
          above. See discussion infra.

     44.  Cook, "The Case of the Missing Victims: Gunshot
          Woundings in the National Crime Survey" 1 J. QUAN.
          CRIM. 91, 94-96 calculates from a variety of
          empirical studies that almost 6 times as many people
          recover as die from a handgun or small caliber rifle
          wound. Kleck, having reached the same result from
          other data, adds:

                    The use of guns to shoot criminals,
               however, represents only a small minority
               of the defensive uses of guns. Most
               incidents involve a gun being used only to
               threaten, apprehend or shoot at a criminal,
               or to fire a warning shot, without killing
               or wounding anyone.

          -- "Policy Lessons from Recent Gun Control Research",
          49 LAW & CONTEMPORARY PROBLEMS 35, 44 (1986)
          [hereinafter cited as "Policy Lessons"].

     45.  See e.g. Newton & Zimring n. 41 at 62, M. Yeager and
          the Handgun Control Staff of the U.S. Conference of
          Mayors, HOW WELL DOES THE HANDGUN PROTECT YOU AND
          YOUR FAMILY? 3 (1976).

     46.  See e.g. Rushforth, Hirsch, Ford & Adelson,
          "Accidental Firearm Fatalities in a Metropolitan
          County (1958-73)" 100 AM. J. EPIDEM. 499, 502 (1975).

     46A. See nn. 47 and 55 infra. The problem is exacerbated
          by the anti-gun practice of not just ignoring
          statistics of lawful defensive homicide involving ex-
          husbands, etc. but misclassifying such incidents as
          "domestic and acquaintance homicide", i.e. murder.
          See discussion at n. 25 and accompanying text supra.

     47.  See Newton & Zimring n. 41 supra as criticized by
          Silver and Kates n. 21 supra at 156. Whatever may or
          may not have been the situation in Detroit during the
          mid-1960s: in 1920 such homicides comprised 26.6% of
          all Detroit homicide. Robin, "Justifiable Homicide by
          Police Officers" at p. 295, n. 3 of M. Wolfgang,
          STUDIES IN HOMICIDE (1967); and in the years 1975-
          1980 the number of violent felons killed by civilians
          outnumbered those killed by police by more than 2-1.
          Policy Lessons supra n. 44 at 43-44.

     48.  Rushforth, Hirsch, Ford & Adelson, supra n. 46. See
          also n. 45 infra.

     49.  See generally Wright, P. Rossi, K. Daly, WEAPONS,
          CRIME AND VIOLENCE IN THE UNITED STATES, ch. 7 (1981)
          and other references at n. 12 supra. For the
          incidence of murder/manslaughter with handguns see
          F.B.I., UNIFORM CRIME REPORTS 1982 at p. 10 placing
          the number for that year at 8,474 (but see Kleck n.
          46 infra indicating that as many as 3,000 of these
          were lawful self defense); as to fatal accidents
          handgun involvement figures became available from the
          National Safety Council only in 1979 and so far have
          been released only for that year (311 handgun deaths
          out of 2004 for all guns) and 1980 (288 handgun
          deaths out of 1955 for all guns). As to suicide,
          handgun involvement is even more difficult to
          determine. They can definitely be identified as the
          weapon in only about 2,200 suicides per year but the
          great majority of gun suicides are not identified as
          to kind of firearms. Based on their proportion of the
          gun-identifiable suicides, the anti-gun National
          Alliance Against Violence MANUAL FOR PUBLIC EDUCATION
          CAMPAIGN ON HANDGUN VIOLENCE issued in June 1983 at
          p. 32 estimates the actual handgun suicide total per
          year at 6,600. This is consistent with the results of
          state level studies, e.g. Marrow and Hudson,
          "Accidental Firearms Fatalities in North Carolina,
          1976-1980" 76 AM. J. PUB. H. 1120, 1122 (1986) (46%
          of gun suicides involved shotgun or rifle).

     50.  Policy Lessons supra n. 44 at 44.

     51.  It is suggested in "Firearms Accidents" n. 15 supra
          that gun suicides are routinely misclassified as
          accidents (perhaps to spare the feelings of the
          deceased's family); for instance, an experienced
          medical examiner comments that he has never seen or
          heard of a death occurring "by accident" in cleaning
          a gun that did not turn out, on examination, to be
          either a suicide or a murder. As to the possible
          misclassification of suicides as accidents in
          Rushforth, Hirsch, Ford & Adelson (supra n. 46)
          specifically, see the critique in 82 MICH. L. REV. n.
          4 supra at n. 277 and the references there cited.
          Compare the later article in which the same authors
          (without emphasis or making the obvious comparison)
          generate from the same sample statistics from which
          it may be calculated that civilians lawfully kill
          three times as many violent felons as do police.
          Rushforth et al. "Violent Death in a Metropolitan
          County" 297 NEW ENGLAND J. MED. 531, 533 (1977). For
          other misleading tactics see n. 46 supra.

     52-3 RESERVED

     54.  In addition to the various statistics set out at
          notes 46, 47 and 51 supra, see Robin n. 47 supra
          citing the classic early 20th Century study of
          American homicide (H. Brearley, HOMICIDE IN THE
          UNITED STATES 63 [1932]) as showing that lawful
          civilian homicides made up 32% of total homicide in
          Washington, D.C. in the period 1914-8, and 31.5 and
          26.6% of total homicide in Chicago and Detroit
          respectively in 1920. A further caveat must be noted
          about these figures and those set out in nn. 55-7
          infra and accompanying text: it was not the case in
          all of these lawful homicides that the victims killed
          the criminal with a gun; in at least a small
          proportion of the killing was done with some other
          weapon or without a weapon.

     55.  MICH. L. REV. n. 4 supra at n. 278, citing both
          recent national statistics and local ones for
          California, Chicago, Cleveland and Houston for the
          proposition that armed citizens justifiably kill up
          to three times more violent felons than do police.
          See also Policy Lessons n. 47 supra.

     56.  Id. at 43; see also Kleck, "Crime Control Through the
          Use of Force in the Private Sector", draft ms.,
          Florida State U. School of Criminology, 1986 --
          forthcoming in SOCIAL PROBLEMS.

     56A. See n. 56 supra as to the FBI classification scheme.
          As to common law distinctions between justifiable and
          excusable homicide see Kates n. 27 supra at n. 24.

     57.  Id. Problems both of misclassification and of
          comparability to killings by police cause even this
          comparison to understate the import of lawful
          homicide by civilians. The misclassification problem
          has already been alluded to at the text accompanying
          nn. 29-31 supra: while killings by civilians are held
          lawful only after at least ordinarily rigorous
          scrutiny, killings by police enjoy an extraordinary
          bias toward exonerating the officer even in the most
          egregious cases. Available data do not allow
          estimation of how many police killings routinely
          classified as "justifiable" should have instead been
          classified as unlawful. But the one comparative study
          finds that while innocent persons had been
          misidentified as criminals in 2% of cases where
          civilians used guns defensively, 11% of a sample of
          police gun uses involved such misidentification.
          Though mistaken identification is not necessarily
          criminal -- none of the officers or the civilians
          were charged -- if negligent they can be
          manslaughter.

               The problem of comparability derives from the
          fact that until recently the police were lawfully
          entitled to shoot in a major sub-set of cases in
          which civilians could not shoot. Until 1985 most
          jurisdictions allowed police (but not civilians) to
          shoot even non-violent felony suspects if necessary
          to prevent their escape. (In the early 1970s for
          instance, while working for California Rural Legal
          Assistance, I represented the family of a confused
          and troubled Chicano youth who had been killed by
          police while fleeing a charge of cultivating
          marijuana.) Tennessee v Garner, 105 S. Ct. 1694, 85
          L.Ed. 2d 1 (1985) holds that due process allows
          shooting to apprehend fleeing suspects only where
          there is probable cause to believe they have
          committed a felony involving threat of deadly force.
          But since Garner postdates the statistics used in
          this article presumably a currently comparison of
          lawful killings by police and civilians respectively
          would show even fewer police homicides.

     57A. See discussion and analyses of these polls in Policy
          Lessons n. 44 supra at 44-5, Kleck n. 56 supra and
          both Bordua and Wright n. 7A supra.

     58.  See discussion in e.g. Edwards, "On Errors in
          Surveys", 9 AM. SOC. REV. 359 (1944).

     59.  See e.g. Wright, "Public Opinion and Gun Control: A
          Comparison of Results from Two Recent National
          Surveys", 455 ANNALS 24 (1981). Both the private
          polling organizations and the pro- or anti-gun
          organizations that sponsored these particular surveys
          had every reason to avoid any kind of fabrication of
          the results. Clients employ these private polling
          organizations to survey public opinion or marketing
          behavior primarily for the client's internal use in
          formulating marketing or political strategies. To
          fabricate results would thus be counter-productive
          for the client and a reputation for doing so would be
          ruinous for the polling organization.

               Of course it must be doubted that, for instance,
          the NRA would have made the results of these internal
          polls public -- much less arranged for their
          publication in the CONGRESSIONAL RECORD -- unless it
          deemed that those results serve the pro-gun cause, at
          least in general. On the implications for the
          political strategies of pro- and anti-gun groups
          respectively of polls commissioned for their internal
          use (and later released) see Bordua, "Adversary
          Polling and the Construction of Social Meaning", 5
          LAW & POLICY Q. 345 (1983).

               The primary internal use purpose of the "gun
          polls" involved here is suggested by the fact that
          both the NRA and (in the case of the poll principally
          relied on herein) the anti-gun organization opted to
          sample not the population in general but only
          registered voters within it. Of course such a choice
          itself produces bias (in the statistical sense rather
          than the pejorative): a representative sample of
          registered voters may differ materially in ethnicity,
          race, education, income and other demographic factors
          from the general populace. Insofar as such
          differences are relevant to the issue of defensive
          gun use they would be most likely to minimize its
          full incidence: minorities and the poor, while they
          are underrepresented in a sample of registered
          voters, are disproportionately subjected to criminal
          attempts against which a gun would be used. See nn.
          80A-82 infra and accompanying text.

     60.  The polls are only mutually supportive in general;
          for the reasons set out infra this data cannot
          support Kleck's precise estimate of annual defensive
          uses (see n. 61 infra and accompanying text) which
          estimate is calculated from the Peter Hart survey
          alone.

               The generalizations which the surveys mutually
          support are a) that defensive gun uses are enormously
          more frequent than have previously been recognized
          and that b) as to handguns at least, such uses
          approximates in frequency, and even slightly exceed,
          the number of criminal misuses annually. See UNDER
          THE GUN n. 4 supra for the same finding based on
          comparison of the earlier Caddell and DMI polls.
          Neither those nor the other polls can support an
          estimate of annual defense uses because their
          questions were framed in terms of whether the
          respondent or members of his household had "ever"
          used a gun or handgun defensively. Other than the
          Hart poll the only survey to ask about defense uses
          during a single year or span of years was the survey
          of Californians whose results are compared to the
          Hart results at n. 61 infra.

     61.  The calculation is Kleck's based on responses to the
          1981 Peter Hart (Hart Research Associates) survey
          question:

                    Within the past five years, have you
               yourself or another member of your
               household used a handgun, even if it was
               not fired, for self-protection or for the
               protection of property at home, work, or
               elsewhere, excluding military service or
               police work?

               Although 6% of the sample answered "yes", a
          subsequent question determined that 2% (i.e. one-
          third of the 6%) of these self-defense instances
          involved use against animals rather than criminals.
          Multiplying the resulting 4% figure by the number of
          American households reflected in the 1980 census
          report and dividing by five (years) Kleck calculates
          "664,976 defense uses of handguns against persons per
          year, excluding police or military uses." Kleck, n.
          56 supra.

               This c. 645,000 figure may artificially
          exaggerate lawful defense gun uses in one way and
          minimize them in five others. The possible
          exaggeration arises because the survey question
          refers to protecting property. Although a criminal
          who is only stealing property that is not on anyone's
          person can lawfully be threatened with a gun, he can
          not be shot to prevent the theft. Thus a respondent
          whose answer of "yes" refers to an incident in which
          he only threatened a car thief with a handgun, was
          describing a lawful defensive use; but if he shot the
          thief that would be an unlawful use (absent some
          additional circumstance, e.g. the thief reacted to
          discovery by advancing on the respondent).

               The ways in which the survey may underrepresent
          the number of lawful defense uses are: (a)
          respondents who actually acted legally may
          nevertheless give a negative answer out of unfounded
          fear that they may have broken the law (or perhaps
          because they were illegally carrying the gun though
          their actual use of it was legal); (b) the question's
          reference to self-protection may have elicited a
          negative answer where the respondent was acting to
          protect another, e.g. a male respondent used a gun to
          protect a neighbor against a rapist; (c) as discussed
          in n. 59 supra, a sample of registered voters will
          disproportionately exclude the groups most likely to
          have occasion use a defense gun; (d) Kleck's
          calculation, like the question from which it derives,
          allows for only one defensive use whereas some
          households' members may have had more than one over
          the five year period; (e) the five year period is
          overly long since survey evaluation literature shows
          crime victims tend to forget even quite serious
          victimizations occurring more than a year or two
          previously. See e.g. Skogan, "Sample Surveys of the
          Victims of Crime", 4 PUBLIC DATA USE 23, 26-7 (1976).
          It is suggestive that in a 1976 survey the percentage
          of gun-owning California respondents who stated that
          they personally (not just one of the members of their
          household) had used a handgun defensively within the
          previous two years was only slightly lower than the
          Hart survey number for 5 years. Field Institute,
          TABULATIONS OF THE FINDING OF A SURVEY OF HANDGUN
          OWNERSHIP AND ACCESS AMONG A CROSS SECTION OF THE
          CALIFORNIA ADULT PUBLIC (1976).

     62.  Kleck n. 56 supra. I offer this comparison of defense
          uses to criminal attempts only because of its
          relevance to the strict liability issue (see n. 63
          infra). It should be understood that there are
          important comparability problems with the comparison,
          including: that defense uses are calculated from
          survey data for the period 1976-80, while criminal
          attempts by handgun armed felons are calculated from
          national victim survey data (see n. 85 infra.) for
          the year 1980; and that the samples differ
          substantially in size with criminal attempts being
          calculated from a much larger sample than defense
          uses.

     63.  See references cited at n. 2A supra for advocacy of
          the strict liability approach. Compare Robertson v
          Grogan Investment, 710 S.W.2d 680, 682 (Ct. of Ap.,
          Tx. 1986):

                    The proposition that the manufacture
               or sale of a handgun is an ultrahazardous
               activity giving rise to strict liability
               has been rejected in every case in which it
               has been considered. See, e.g. Perkins v
               F.I.E. Corp., 762 F.2d 1250, 1268 (5th Cir.
               1985) (Louisiana law); Martin v Harrington
               & Richardson Inc., 743 F.2d 1200, 1203-4 (7
               Cir., 1984) (Illinois law); Kelley v R.G.
               Industries, Inc., 304 Md. 124, 497 A.2d
               1143, 1147 (1985); Burkett v Freedom Arms,
               Inc., 299 Or. 551, 704 P.2d 118, 122
               (1985); Riordan v International Armament
               Corp., 132 Ill. App. 3d 642, 477 N.E.2d
               1293 (App. Ct. 1985).

               The closest any case has come to accepting the
          strict liability argument is Kelley supra. There
          Maryland's highest court held that makers of
          "Saturday Night Specials" could be strictly liable --
          but nevertheless rejected the theory espoused by
          Fisher and the other articles cited at n. 2A. The
          Kelley holding is based not on denial of the value of
          gun-armed self defense or of handguns for that
          purpose, but on a technical finding that cheaply made
          short barrelled handguns are too ineffective and
          unreliable as weapons to be useful for self defense.
          This as aspect of Kelley has not been followed in
          subsequent case law. Moore v R.G. Industries, 789
          F.2d 1326, 1327 (9 Cir. 1986), Delahanty v Hinckley,
          F. Supp. (D.C. 1986). Other cases rejecting strict
          liability include: Moore, supra, Patterson v Roehm
          Gesellschaft, 608 F. Supp. 1206 (N. D. Tex. 1985),
          Rhodes v R.G. Industries, 325 S.E. 2d 469 (S. Ct. Ga.
          1985), and cases there cited. For adverse law review
          comment on the theory see, e.g. Note, "Handguns and
          Products Liability", 97 HARV. L. REV. 1912 (1984) and
          Halbrook, "Tort Liability for the Manufacture, Sale
          and Ownership of Handguns?" 6 HAMLINE L. REV. 351
          (1983).

     63A. See n. 138 infra and accompanying text.

     64.  See nn. 7, 14, 137 and accompanying text.

     65.  Unfortunately none of the various surveys discussed
          herein asked either victims or felons about
          confronting gun-armed opponents when they themselves
          were so armed. From the prison survey discussed in
          the text at notes 73-4 infra it appears that the
          felons most likely to have confronted a handgun-armed
          victim were felons who had themselves used guns in
          some crimes. But this is not to say that such
          confrontations necessarily occurred when both felon
          and defender were armed with guns. Because felons who
          sometimes used guns tended to have been both more
          active criminals than those who never used any weapon
          beyond a knife and more likely to have engaged in
          crimes involving confrontation (e.g. robbery as
          opposed to forgery) they would naturally have been
          more likely at some time in their criminal careers to
          have met a gun-armed defender -- whether or not they
          themselves happened to be so armed on that
          particularly occasion. J. Wright & P. Rossi, ARMED
          AND DANGEROUS: A SURVEY OF FELONS AND THEIR FIREARMS
          156-7 (1986) (hereinafter denominated the National
          Institute of Justice felon survey).

               The best available evidence (though it is by no
          means very good) of the proportion of gun-armed
          defenders who meet gun-armed criminals derives from a
          monthly column in the NRA magazine AMERICAN RIFLEMAN.
          This column recounts civilian defense-use incidents
          which are taken from current newspaper clippings sent
          in by NRA members. A review of these columns from
          Jan. 1983 through October 1986 finds 37.5% of the
          incidents involved confrontation of a gun-armed
          criminal by a gun-armed defender. But this 37.5%
          figure represents, at best, a minimum for gun v. gun
          encounters. For obvious reasons the NRA only
          publishes incidents in which the defender succeeded.
          Since a gun is the most powerful weapon for criminal
          as well as defender it must be assumed that the 37.5%
          figure derived from the defender-successful cases
          underrepresents the universe of gun vs. gun
          confrontations. For discussion of the problems
          involved in making inferences from the NRA column see
          Silver & Kates supra n. 21 at 154.

     66.  - 69 RESERVED

     70.  Kleck n. 56 supra. See the Table in the text
          accompanying n. 87 infra which is taken from Kleck
          id.

     71.  For robbers it is clear that a gun greatly increases
          both likelihood of success in general and in robbing
          not just the ordinary pedestrian but "hardened"
          targets such as retail stores (whose owners may
          themselves be armed with guns) or banks and other
          establishments where the robber may have to overawe a
          larger number of people. By the same token, a gun
          robber is less likely to actually injure his victims
          because the mere display of his gun is more likely to
          elicit compliance from them (and perhaps also because
          he is reluctant to risk the noise that actually
          shooting would produce). Cook n. 15 supra at 261,
          Hardy and Kates, "Handgun Availability and the Social
          Harm of Robbery: Recent Data and Some Projections" in
          RESTRICTING HANDGUNS (supra n. 4) at 121-2.

               Based on the national victim surveys Prof. Kleck
          estimates that gun-armed robbers succeed in obtaining
          their victim's property in 83% of robbery incidents
          (personal communication to the author) which accords
          well with the success figure of gun-armed defenders
          (see n. 70). But there is no way to extrapolate this
          success percentage to other gun crimes. The following
          examples illustrate the difficulty of computing
          "success" in the case of aggravated assault, for
          instance: A) one of two competitors for the favors of
          the same woman points a gun at the other in an effort
          to dissuade him from pressing his suit. The felon
          (this constitutes aggravated assault in most American
          jurisdictions) succeeds in frightening his victim
          into promising not to see the woman again. Thereafter
          the victim calls the police and, reneging on his
          promise successfully pursues the woman during his
          competitor's absence in prison. The criminal is
          unlikely to call this "success"; should we? In case
          B) a criminal, intending to break his victim's nose
          strikes him in the face with a gun that goes off
          killing the victim. Does the criminal regard this as
          success; should we? While possessing a gun may aid a
          criminal -- as would any other weapon -- the
          comparative advantage of a gun over other weapons is
          that it allows the weak to overawe or overcome the
          strong. Cook n. 15 supra at 247-8, Policy Lessons
          supra n. 44 at 37, Howard, "Husband-Wife Homicide: An
          Essay from a Family Law Perspective", 49 LAW &
          CONTEMP. PROB. 63 (1986). Since criminals generally
          tend to be younger, stronger and in better condition
          than victims it is fair to assume that guns are more
          essential to victim success against criminals than
          vice versa.

     72.  Policy Lessons supra n. 44 at n. 50, 82 MICH. L. REV.
          supra n. 1 at n. 276 and references there cited.

     73.  National Institute of Justice felon survey n. 65
          supra at 154. Kleck n. 56 supra feels that this 34%
          figure should be viewed as a minimum, because some
          respondents may have falsely denied, or at least
          underreported, in answering the survey "Given that
          being 'scared off' by a victim is not the sort of
          thing a violent criminal is likely to want to
          admit...."

     74.  Id. at 145 and Table 7.2.

     75.  Drinan, n. 40 supra at 50-51.

     76.  Wright supra n. 13 at 327.

     77.  See nn. 22B and 22C supra.

     78.  See e.g. treatments cited at n. 41 supra.

     78A. For a summary description of the national crime
          victim surveys see n. 85 infra. The preeminent
          submission exponents include Zimring & Zuehl, "Victim
          Injury and Death in Urban Robbery: A Chicago Study",
          15 J. LEGAL STUD. 1 (1986), Skogan & Block
          "Resistance and Injury in Non-Fatal Assaultive
          Violence" 8 VICTIMOLOGY 215 (1983) and Wolfgang,
          "Victim Intimidation, Resistance and Injury: A Study
          of Robbery" (paper presented at the Fourth
          International Symposium on Victimology, Tokyo 1982).
          Prof. Wolfgang's ethically based support for banning
          guns is detailed in Benenson, "A Controlled Look at
          Gun Controls" 14 N.Y.L. FOR. 718, 723 (1968). As to
          Prof. Zimring's pragmatically based anti-gun views
          (which Prof. Block shares) see Newton and Zimring n.
          41 supra as well as Zimring and Zuehl supra at 37-8.

     78B. See quotation in text accompanying n. 10 supra; also
          Ronald Reagan and Neal Knox quoted in the text
          accompanying nn. 100-3 infra.

     78C. Prof. Cook, some of whose work has been underwritten
          by the anti-gun Center for Study & Prevention of
          Handgun Violence, supports outlawing at least all
          small handguns (i.e. "Saturday Night Specials" plus
          high quality weapons of the kind favored by
          detectives and plain clothes police), Cook, "Making
          Handguns Harder to Hide", CHRISTIAN SCIENCE MONITOR,
          May 29, 1981; in their critique of the submission
          position Professors Ziegenhagen and Brosnan make
          their support for gun controls clear. "Victim
          Responses to Robbery and Crime Control Policy", 23
          CRIMINOLOGY 675, 677-8 (1985).

     79.  Ziegenhagen & Brosnan supra n. 78C.

     80.  Cook, "The Relationship Between Victim Resistance and
          Injury in Non-Commercial Robbery", 15 J. LEGAL STUD.
          405, 407 (1986). For further discussion of some
          sequencing problems in the data see n. 87 infra.

     80A. Kates, n. 8 supra at 45 and 46.

     81.  A recent U.S. Department of Justice study concludes
          that, over their lifetimes, 83% of American children
          now aged 12 will be victims of some kind of violent
          felony, and 52% of them will suffer two or more such
          offenses, while 87% will have property stolen on 3 or
          more occasions; in all these crime categories blacks
          will be much more frequently victimized than whites.
          N.Y. TIMES, March 9, 1987 n. supra 13. Compare
          Sherman, "Free Police from the Shackles of 911", WALL
          STREET JOURNAL, March 20, 1987: Minneapolis police
          records show that in 1986 "23% of all the robberies,
          15% of all the rapes and 19% of all the assaults and
          disturbances" occurred repetitively at only .3% of
          the city's commercial and residential addresses; "a
          mere 5% of all the addresses ... produced 64% of all
          the calls for police service." Needless to say, it is
          unlikely that any of those who have to live or work
          at those repetitive victimization addresses are white
          male academics.

     82.  Compare "'There's This Place in the Queens Its Not
          Such a Good Idea to Rob'" WALL STREET JOURNAL, Oct.
          20, 1971 (Puerto Rican shopkeeper reported to have
          shot more violent criminals in a year than had any
          New York City police officer in an entire career).
          Kleck and Bordua, "The Factual Foundation for Certain
          Key Assumptions of Gun Control", 5 LAW & POLICY Q.
          271, 281 (1983) speculate criminals may avoid
          neighborhoods that are known to be well armed as they
          do confrontation crimes in cities that have that
          reputation. See nn. 99-104 and accompanying text
          infra. Criminals themselves have attested to
          defensive gun ownership as a significant factor in
          their targeting choices. Discussing the crime career
          from which he retired after being paralyzed in a
          shoot-out with Washington D.C. police, an armed
          robber declares his preference for banks over gas
          stations and other targets proprietors are likely not
          only to be armed but to be willing to take large
          risks to protect their livelihoods. J. Allen

     83.  Kates and Engberg, "Deadly Force Self-Defense Against
          Rape" 15 U.C.-DAVIS L. REV. 873, 879-80 n. 20 and
          898ff. (1982). Avoidance of the issue or rape has
          made it unnecessary for submission exponents to
          address this consideration specifically. But rape is
          specifically treated in the one sustained anti-gun
          attempt to apply the submission position to the gun
          issue. M. Yeager and the Handgun Control Staff of the
          U.S. Conference of Mayors, HOW WELL DOES THE HANDGUN
          PROTECT YOU AND YOUR FAMILY? (1976). Curiously,
          having argued at pp. 18-19 that physical resistance
          to robbers is of little avail and unreasonably
          dangerous, at p. 33 they claim women do not need
          handguns against rapists because of "the
          effectiveness of other means of resistance, such as
          verbal and physical resistance." -- notwithstanding
          that robbers and rapists are often the same people.
          Yeager et al also argue that the circumstances in
          which most rapes occur rule out gun-armed self-
          defense (id. at 32-3) citing evidence which leads
          more neutral evaluators to the opposite conclusion.
          Kleck and Bordua supra n. 82 at 290. Yeager et al
          deserve at least credit for devoting two pages to
          women and their concerns. In contrast, the most
          scrupulous and reliable anti-gun treatment airily
          dismisses the entire subject with the contemptuous
          observation that women are "less knowledgeable than
          men about guns and generally are less capable of
          self-defense." Newton & Zimring supra n. 41 at 64.
          This is contradicted by police firearms instructors
          and other experts who conclude that trained women are
          not only fully capable of armed self-defense but much
          easier to properly train: they lack the masculine ego
          problems which make men resistant to instruction.
          See, e.g. Hicks, "Point Gun, Pull Trigger", POLICE
          CHIEF, May 1975 (after an hour on the range and two
          hours of classroom instruction in a Chattanooga
          Police Academy combat pistol course for civilian
          women "most of [whom] had never held a revolver, much
          less fired one", they were consistently outshooting
          police cadets who had just received eight times as
          much formal instruction and practice), M. Ayoob, IN
          THE GRAVEST EXTREME 38 (1980).

     83A. One difficulty pervasive in both partisan pro- and
          anti-gun treatments and more neutral policy
          discussions is not recognizing the differences that
          sometimes exist between the utility of defense gun
          ownership to the individual owner and to society as a
          whole. (See e.g. discussion infra of deterrence:
          however well it serves the interests of some victims
          for their reputation for owning a gun to displace
          criminal attack onto others, this serves no general
          social purpose if the overall volume of crime remains
          undiminished.) Keeping this distinction between
          individual and societal benefit in mind,
          criminologists may make judgements, as this article
          does, on the benefit to society of victim resistance
          in repelling or deterring crime and on the detriment
          to society when such resistance causes a victim to be
          killed or injured. But it is simply presumptuous for
          scholars, however learned, to pontificate as to what
          course is best for an individual victim whose
          circumstances and values they may not share. Consider
          the reflections of a woman who (without a gun)
          successfully resisted rape:

                    I believed he would kill me if I
               resisted. But the other part was that I
               would try to kill him first because I guess
               that for me, at that time in my life, it
               would have been better to have died
               resisting rape than to have been raped.

                    I decided I wasn't going to die. It
               seemed a waste to die on the floor of my
               apartment so I decided to fight.

          Quoted in Silver & Kates n. 21 supra at 139.

     84.  See n. 32 supra and discussion of the same sample in
          Policy Lessons supra n. 44 at 45. One reason for the
          surprisingly high rates of success of either armed
          citizens or police using firearms against violent
          felons may be a side-effect of the deterrent impact
          of an armed victim population. The subset of
          criminals who are willing to take the risk of
          committing confrontation-type crimes against armed
          victims tend to fortify themselves with one or more
          drugs. This may not be the best condition in which to
          try shooting it out with gun-armed citizens or the
          police, much less to try overcoming them with weapons
          less effective than firearms. See notes 40 and 131
          and accompanying text.

     85.  Yeager et al. supra n. 25 at 15-6 (1976). The
          national victim surveys are conducted under the
          auspices of the Justice Department utilizing Census
          Bureau interviewers who contact a nationally
          representative sample of about 60,000 households
          every six months and record information from personal
          interviews concerning the crime victimization
          experience of all household members aged twelve or
          older.

               Cook, n. 80 supra at 406. See also Skogan supra
          n. 61. The resulting data are believed to allow a
          more accurate estimation of the actual extent of
          victimization than the F.B.I.'s yearly UNIFORM CRIME
          REPORTS which include only crimes that were actually
          reported to the police and, in turn, by the police to
          the F.B.I.

     86.  See discussion at n. 70 supra and accompanying text.

     87.  Kleck n. 56 supra from which Table 1 is taken. The
          fact that 22% of unresisting victims nevertheless
          suffered injury (while only 7.5% of victims who
          resisted with a gun did) points up a problem that may
          cause these surveys to artificially exaggerate the
          dangers of resistance theme. As Yeager et al (note
          85) themselves point out but then ignore -- one
          cannot infer from the fact that X number of resisting
          victims were injured that those people were injured
          because they resisted. The victim surveys generally
          do not explore the issue of sequence: did the injury
          come as a result of the resistance or was it suffered
          before any resistance? Often victims are injured
          before or regardless of resistance, e.g. in a pure
          assault situation where the perpetrator's original
          intent is to injure (or kill) regardless of any
          question of resistance. In theory that would not be
          the case in robbery. But, in fact, some robbers do
          gratuitously injure or kill even unresisting victims
          out of pure viciousness or as a means of precluding
          or forestalling resistance. For instance 22% of
          victims in the national victim survey who say they
          did not resist were injured nevertheless.

               While the questions generally used in the victim
          surveys do not provide information as to this
          sequencing issue, such information is available from
          a special Victim Risk Supplement questionnaire which
          was administered as part of the regular survey in
          February 1984. The results indicate that "few
          incidents" occurred in a sequence from which it is
          arguable that it was victim resistance that caused
          the attacker to inflict injury. Kleck supra n. 56.
          Note that this does not include another possible cost
          of gun-armed resistance which may be important: there
          may be cases in which the robber initiates the crime
          by gratuitously hurting the victim who responds by
          pulling a gun -- which, in turn, causes the robber to
          inflict more severe injury than if there had been no
          resistance. For a detailed treatment of the issues
          (with a schematic representation of the multiple
          possibilities) concluding that it is impossible to
          resolve them based on presently available data see
          Cook n. 80 supra.

     87-1. See discussion in Silver & Kates n. 21 at 165.

     87-2. See n. 87 supra.

     87A. See notes 9, 11 and 23 supra and accompanying
          quotations in the text.

     87B. Private communication from M. Ayoob, a veteran police
          training officer and nationally recognized lecturer
          on officer survival.

     88.  See e.g. Dufy, "The Dog Barked and Suddenly She Was
          Glad She Had Her Gun", L.A. TIMES May 29, 1981 (op-ed
          by gun-armed woman whose dog alerted her to an
          intruder armed with an ice pick concealed in her
          bathroom).

     88A. See discussion in Silver and Kates supra n. 21 at
          165-6.

     89.  Cf. Kates and Engberg n. 85 supra at 886-888
          (tendency of rapists to kill or mutilate victims
          regardless of their submission), Cook n. 15 at 263
          ("20 out of 30 victims killed in gun robberies in
          Dade County [Miami] between 1974 and 1976 [had] not
          resist[ed] the robber"). Compare Hardy and Kates
          supra n. 71 at 136, describing an incident in which a
          shopkeeper, after initially submitting, killed a
          robber who made evident his intention to dispose of
          all witnesses by executing the customer who had lain
          face down on the floor at his command, L.A. TIMES,
          Aug. 30, 1981 "Clerk Saves Life, Loses Job at Store"
          (clerk who, after initially submitting, killed robber
          who was going to execute him, is fired because 7-
          Eleven policy forbids clerks to have guns) and Taylor
          v Superior Court, 91 Cal. Rptr. 275, 477 P.2d 129
          (1970) (robber accomplice may be held for
          recklessness homicide where his compatriots are
          killed by victims who reasonably concluded from their
          actions that the robbers intended to kill them even
          if they handed over their money).

     90.  L.A. TIMES July 20, 1984, p. 1: "Killer Painted as
          Troubled, Anti-social".

     91.  SAN FRANCISCO CHRONICLE Aug. 21, 1986, p. 1: "15 Die
          in Post Office Massacre"; INSIGHT Sept. 15, 1986, p.
          72. For less publicized massacres in the United
          States and elsewhere see SAN FRANCISCO EXAMINER June
          3, 1983, p. 1: "Gunman Kills 5 in Classroom, Then
          Himself" (deranged man with two pistols burst into
          German elementary school, killing three children, a
          teacher and a policeman and wounding 13 others); SAN
          FRANCISCO EXAMINER, Nov. 13, 1984 p. A8: "Oregon
          Sniper's Motive May Never Be Revealed" (rifleman in
          combat fatigues kills one athlete and wounds another
          in University of Oregon stadium then kills himself);
          SAN FRANCISCO CHRONICLE Oct. 31, 1985, p. 1: "Woman
          Fires on Crowd -- 2 Slain, 8 Injured" (woman attired
          in combat fatigues shot at random into crowd with .22
          caliber rifle until disarmed by bystanders). See also
          n. 95 infra.

     92.  See e.g. Schwerin, "Two Shootings, One Lesson: Gun
          Control", N.Y. TIMES Op-Ed, Sept. 15, 1986; N.Y.
          TIMES editorial "The Gun Collector", July 22, 1984;
          LOS ANGELES TIMES editorial "Our Daily Massacre",
          July 27, 1984.

     93.  These issues are critically addressed in ch. 10 of
          UNDER THE GUN n. 4 supra. A related shibboleth holds
          that most homicides are committed by ordinary law-
          abiding people in large part because of the
          availability of a loaded gun in a moment of
          ungovernable rage. But homicide studies show
          perpetrators have long prior felony histories,
          particularly of irrational assault on relatives and
          acquaintances. See n. 15 supra. Such a background is
          especially characteristic of men who kill their wives
          (formal and common law). Howard, "Husband-Wife
          Homicide: An Essay from a Family Law Perspective", 49
          LAW & CONTEMP. PROB. 63, 69-74 (1986) -- but see
          74ff. noting that a wife who kills her husband is
          much more likely to have trying to avoid a beating
          than culminating her own pattern of previous physical
          abuse against him.

     94.  See, e.g. NATIONAL LAW JOURNAL, April 13, 1981
          editorial p. 14: "Controlling Guns" ("no amount of
          control will stop a determined assassin -- or a
          determined street robber -- from getting a gun."),
          Harding, "Firearms Ownership and Accidental Misuse in
          S. Australia", 6 ADELAIDE L. REV. 271, 272 (1978)
          (revolutionaries, professional criminals), Zimring,
          "Is Gun Control Likely to Reduce Violent Killings",
          35 U. CHI. L. REV. 721 (1968) (same).

     95.  THE ECONOMIST, Ap. 7, 1984, p. 34. See also SAN
          FRANCISCO EXAMINER July 15, 1986, p. 1: "Tragedy Ends
          Love Triangle" (gunman who apparently intended to
          kill his ex-girlfriend and her current boyfriend's
          family entered their residence in early a.m. hours
          armed with silenced guns and explosives and wearing a
          bullet-proof vest; gunman killed by 13 year old boy
          who armed himself after the gunman had wounded his
          father and killed the girlfriend and the boy's older
          brother) and N.Y. TIMES July 8, 1986: "Man With a
          Sword Kills 2 on Staten Island Ferry" (deranged Cuban
          refugee kills 2, wounds 9 before being stopped by
          bystander who was licensed to carry gun).

     96.  This has been denied by anti-gun advocate Mike Royko
          in a derisive column that appeared shortly after the
          Post Office massacre. He argues that, given
          Oklahoma's "weak" gun laws, the gunman should have
          been shot down by his victims if gun armed self
          defense really works. But regardless of state law,
          the federal Gun Control Act of 1968 prohibits
          possession of a gun in a federal building. This
          policy may well be cost-beneficial overall. But in
          the massacre situation its cost was that the only
          armed person in the Post Office was the killer who
          was not deterred by the prospect of having to violate
          the law. Compare examples cited in n. 95 supra and
          accompanying text.

     97.  82 MICH. L. REV. supra n. 1 at n. 193.

     97A. Of course the value of a public policy of encouraging
          the carrying of guns may merit examination in another
          context suggested earlier: national victim survey
          data indicate that even without guns upwards of 85%
          of all victims will resist robbers, whether forcibly
          or by screaming or running away. Although a large
          proportion of these victims will suffer injury or
          death as a result, it might be argued that this is
          irrelevant. Since these people are apparently going
          to resist in any event, they would be better off with
          guns; or even if they would not, society may benefit
          because the increased likelihood of robbers meeting
          potentially lethal victim resistance would deter
          robbery. But against any such hypothetical benefit
          must be offset the certain costs. Given that
          defensive gun use is already quite high, to increase
          it implies that people would not only keep guns in
          the home but carry them on the street, thereby
          geometrically increasing the difficulty of the gun
          owner's decision of whether or not to use them. When
          a gun is merely kept in the home, the legal
          parameters of its defensive use are comparatively
          simple: generally speaking, any intruder who breaks
          into a home may be shot unless he surrenders on
          sight. But on the street apparently threatening
          circumstances may arise in which it will turn out to
          be unnecessary even to brandish a gun, much less to
          discharge it. In deciding whether to issue a permit
          to carry a gun the authorities should test the
          applicant's knowledge of when he can and can not
          legally shoot. Unfortunately they rarely do. Kates,
          "The Battle Over Gun Control", Summer 1986 THE PUBLIC
          INTEREST at 45-6. The prospect of large numbers of
          unknowledgeable people carrying guns on the streets
          is disquieting to say the least. Id. For other
          arguments even more strongly distinguishing the
          dangers of allowing gun carrying from the crime
          reductive benefits of home possession see Jacobs,
          "Exceptions to a General Prohibition on Handgun
          Possession: Do They Swallow Up the Rule?" 49 LAW &
          CONTEMPORARY PROBLEMS 5, 16, n. 35 (1986) and Polsby
          supra n. 6 at 110. Per contra Leddy n. 21 supra.

     98.  Indeed the massacre issue presents a whole gaggle of
          red herrings as far as handgun ban advocacy goes.
          Over and above the irrelevance of any kind of gun law
          to this issue, the perpetrators of the Post Office
          and McDonald's massacres used long guns as well as
          handguns. See Kleck, "Handgun-Only Control: A Policy
          Disaster in the Making" in FIREARMS AND VIOLENCE
          supra n. 4 (arguing the necessity of applying
          controls no less stringently to long guns since these
          can be used in most situations in which handguns
          assaults occur but are far more likely to inflict a
          fatal wound). Moreover the perpetrators of these
          massacres were people who would be legally entitled
          to have either handguns or long guns under even the
          most stringent extant or proposed American bans --
          which specifically exempt the military and private
          security personnel. See generally Jacobs, n. 97A
          supra (arguing that, while there may be reasonable
          rationales for exempting private security guards,
          off-duty police, university, railroad and other
          special police, police administrators, prison guards,
          etc. from a handgun ban, consistent and equitable
          application of the same rationales would result in
          exempting, or issuing special permits to, most people
          who can legally possess handguns under present
          American gun laws).

     99.  This distinction, apparently first suggested in
          Silver & Kates supra n. 21 at 167-8 and MICH. L. REV.
          n. 4 supra at 268, n. 276 is more systematically
          treated in Green, "Citizen Gun Ownership and Criminal
          Deterrence: Theory, Research and Policy", 25
          CRIMINOLOGY 63 (1987). The terms "confrontation
          deterrence" and "total deterrence" are mine.

     100. "Ronald Reagan Champions Gun Ownership", published as
          an article, and subsequently as a brochure by GUNS
          AND AMMO magazine 1975.

     101. Knox "Should You Have a Home Defense Gun?" at 108 in
          G. James (ed.) GUNS AND AMMO GUIDE TO GUNS FOR HOME
          DEFENSE (1975). When this was written Knox was editor
          of RIFLE and HANDLOADER magazines; his subsequent
          employment as NRA lobbying chief began several years
          later; having been discharged in a subsequent
          political shake-up within the NRA, he is currently
          president and lobbyist for the rival organization he
          founded, FIREARM COALITION and editor of its HARD
          CORPS REPORT.

     102. Without at all implying inaccuracy in Mr. Knox's
          figures (which come from unpublished communications
          with the Orlando Police) I have elected to omit them
          in favor of my own calculations based on the F.B.I.'s
          UNIFORM CRIME REPORTS for 1966 (pp. 85, 172), 1967
          (pp. 11, 64 and 179) and 1971 (pp. 13, 64-68, 88,
          199). See also Policy Lessons supra n. 44 at 47. Note
          that in making these comparisons care must be
          exercised in several respects: First it must be
          realized that the figure for Orlando is not that in
          the FBI table for the "Orlando Standard Metropolitan
          Statistical Area" (that covers the surrounding area
          as well as the city), but rather the figure for the
          city alone which the FBI lists in the later table
          "Number of Offenses Known to the Police [in] Cities
          and Towns over 25,000 Population". A second problem
          is that the latter (i.e. city) table does not list
          both the raw number of rapes and the rate per 100,000
          population (as does the Standard Metropolitan
          Statistical Area table), but only the raw number. To
          determine the rate for the city it is necessary to
          compute it from the raw number. The figures given in
          the text supra represent the comparison of the rate
          thus computed to the rates that are given in the
          different tables for the state of Florida and the
          U.S. (respectively) as well as that for the Standard
          Metropolitan Area.

     103. Knox n. 101 supra with emphasis added. See also
          Tucker n. 12B supra at 46, stating that "recently"
          when Jacksonville, Fla., police, reacting to "a
          series of brutal rapes", offered a program similar to
          Orlando's "Rapes immediately plummeted to only 5% of
          their former rate." As Mr. Tucker offers no reference
          for this and gives neither pre and post program
          figures nor dates it is impossible to verify the
          matter.

     104. Kleck and Bordua, "The Factual Foundations for
          Certain Key Assumptions of Gun Control", 5 LAW &
          POLICY Q. 271, 284-8 (1983).

     105. Further abstract evidentiary support may be found in
          a line of experiments that have been publicized by an
          anti-gun psychologist under the delusion that they
          prove that guns stimulate their owners' hostile and
          aggressive impulses. Berkowitz, "How Guns Control
          Us", PSYCHOLOGY TODAY, June 1981; Berkowitz,
          "Impulse, Aggression and the Gun", PSYCHOLOGY TODAY,
          September, 1968. In these experiments the subjects
          (most of them college students) were tested under
          laboratory conditions to determine their levels of
          hostility in the course of being deliberately
          irritated or annoyed by people some of who were
          associated with guns in some way, while others were
          not. Amusingly, to the limited extent that these
          experiments showed any effect it necessarily can only
          be diametrically opposite to that suggested by Prof.
          Berkowitz's formulation "the trigger pulls the
          finger"; since in no case was the gun associated with
          the students whose hostility levels were being tested
          (but only with those against whom they were hostile),
          all the marginal and erratic results could possibly
          prove is that some college students are hostile to
          guns or their owners.

               In later experiments by other psychologists, a
          deterrent effect has been observed: however hostile
          weapons might have made them, experimental subjects
          observed more restraint in expressing in expressing
          hostility toward persons associated with weapons than
          toward others. Fischer and Kelm, "Knives as
          Aggression-Eliciting Stimuli", 24 PSYCH. REPORTS 755
          (1969), Ellis, Weiner & Miller, "Does the Trigger
          Pull the Finger? An Experimental Test of Weapons as
          Aggression Eliciting Stimuli", 34 SOCIOMETRY 453
          (1971), Fraczek & Macauley, "Some Personality Factors
          in Reaction to Aggressive Stimuli" 39 J. OF
          PERSONALITY 163 (1971), Buss, Booker & Buss, "Firing
          a Weapon and Aggression", 22 J. PERSONAL. & SOC.
          PSYCH. 296 (1972), Turner & Simons "Naturalistic
          Studies of Aggressive Behavior", 31 J. OF PERSONALITY
          AND SOC. PSYCH 1098 (1975). Of course such results
          constitute at best only abstract evidence. It is
          questionable that whatever we learn about the extent
          to which weapons may deter aversive reaction from
          (presumably) non-criminal experimental subjects
          receiving minor annoyance is applicable to violent
          acquisitive criminals who may be acting under the
          influence of multiple intoxicants. See text at n. 131
          infra.

     105A. M. Yeager and the Handgun Control Staff of the 
          Conference of Mayors, HOW WELL DOES THE HANDGUN
          PROTECT YOU AND YOUR FAMILY? (1976).

     106. See text accompanying nn. 87-9 supra.

     107. Compare the results summarized at p. 149 of the
          National Institute of Justice felon survey n. 65
          supra: As to "Which felons thought most about being
          shot by their victim in the course of a crime", a
          "major factor appears to be having had the experience
          of encountering an armed victim at some prior time."
          When those who had this experience prepared
          thereafter to commit other crimes 45% of them
          regularly or often worried that a victim might shoot
          them. In contrast this was the case with only 28% of
          those who had not had the same experience. Indeed 48%
          of those who had never had the experience had also
          never thought at all about being shot by a victim.
          (On the other hand this group probably contains a
          disproportionate number of felons who specialize in
          non-confrontation crime and so would neither have had
          occasion to confront a victim nor reason to fear
          doing so in the future.)

     108. Robbers and by parity of reasoning other violent
          criminals "typically operate close to home", P. Cook,
          "Robbery in the United States: An Analysis of Recent
          Trends and Patterns" 12 (Nat'l. Institute of Justice
          pamphlet, 1983).

     109. See discussion in J. Wilson, THINKING ABOUT CRIME 65-
          6 (N.Y.: Basic Books, rev. ed. 1983).

     109A. Green n. 99 supra at 70-71.

     110. See references cited at n. 45 supra. Based on
          interviews with a sample of Pennsylvania felons it is
          reported that, of the almost two hours these men
          averaged on each suburban burglary, time inside the
          house averaged 5 minutes or less; the rest was spent
          targeting a particular house and making sure it would
          be unoccupied. G. Rengert and J. Wasilchick, SUBURBAN
          BURGLARY: A TIME AND PLACE FOR EVERYTHING (1985).

     111. Compare the findings of Rengert and Wasilchick id. at
          30 (burglars eschew late night burglaries because if
          it is too difficult to tell if the premises are
          occupied, "That's the way to get shot") and J.
          Conklin from an earlier survey of criminal opinion
          ROBBERY AND THE CRIMINAL JUSTICE SYSTEM 85 (1972)
          (former burglars he talked to had discontinued such
          offenses because of the "risk of being trapped in a
          house by the police or an armed occupant") to the
          agreement by 57% of the felons in the National
          Institute of Justice felon survey (n. 65 supra) with
          the statement that "Most criminals are more worried
          about running into an armed victim than they are
          about running into the police", and of 74% of them to
          the burglary-specific statement "One reason burglars
          avoid houses when people are home is that they fear
          being shot during the crime". See nn. 74 supra and
          117 infra.

     112. U.S. Bureau of Justice Statistics release HOUSEHOLD
          BURGLARY (Jan. 1985) indicating that in 30.2% of
          those occupied premises burglaries (amounting to 2.8
          million cases) the fact that victims were at home
          when burglary occurred resulted in a violent crime
          being directed against them. Although in a minority
          of this sub-set of violent burglaries the crime was
          only a simple assault, the remainder involved serious
          violent felonies including 623,000 aggravated
          assaults, 281,000 rapes and 786,000 robberies.

     113. Based on figures given in Kleck n. 56 supra for the
          total numbers of robberies and burglaries and of
          robbery-murders and burglary-murders in 1980
          (respectively) it appears that the rate at which
          robbers murder their victims is more than 40 times
          greater than the rate at which burglars murder
          theirs. This difference can be attributed almost
          exclusively to the difference between a crime which
          (by definition) involves confrontation and one which
          almost 90% of the time does not involve it.

     114. MICH. L. REV. n. 4 supra at n. 276.

     114A. See discussion at nn. 101-104 and accompanying text.

     115. The Kennesaw mandatory firearms ownership ordinance
          (which has been adopted by several other small towns)
          exempts conscientious objectors thereby avoiding not
          only possible constitutional problems but even the
          possibility of challenge at least in the federal
          courts since no opponent would have standing. But
          even a mandatory ownership law that did not exempt
          objectors would probably pass constitutional muster.
          From the earliest period of American settlement
          colonial and, subsequently, federal and state
          statutes imposed a duty to possess arms on virtually
          every household (and on every military age male in
          each such household) as both a defense against and a
          deterrent to attack by Indians, foreign powers and
          criminals alike. MICH. L. REV. n. 4 supra at 214-218.
          Based inter alia on this precedent the courts have
          invariably upheld the far more intrusive concept of a
          military draft for all military age males with
          exemption for conscientious objectors being a matter
          of legislative grace. See e.g. Selective Draft Law
          Cases, 245 U.S. 366 (1918).

               But the decisive issue for a local or state
          program of deterring criminals through dramatizing
          victim gun ownership is publicity, not whether the
          victims actually have guns or even whether the
          criminals actually get shot thereby. In neither
          Orlando nor Kennesaw were any criminals actually
          shot; and the effect in Detroit was not caused by the
          criminals actually being shot but by the publicity
          this generated in light of the preceding
          denunciations of the grocer's association firearms
          training program by the police chief. Obviously no
          state or local agency could compel the media to carry
          stories dramatizing gun ownership. Cf. Miami Herald
          Publishing Co. v Tornillo, 418 U.S. 241, 254-258
          (1974). But common sense and actual experience join
          in suggesting that public compulsion or sponsorship
          of programs designed to maximize civilian gun
          ownership are likely to generate controversy and
          consequent media attention. While that publicity
          might quickly abate, public officials would probably
          be able to revive it ad infinitum by tactics such as
          speeches praising the program, releases describing
          reported incidents of criminals being routed by
          victims or any reduction in violent crime that might
          be attributed to the program, etc. This would require
          consistent allegiance to the concept by one or more
          law enforcement agencies (not necessarily the same
          agency) over a prolonged period, although strong
          opposition by other agencies and/or prominent persons
          or organizations might actually generate additional
          publicity.

     116. See n. 103 supra and accompanying text.

     117. See nn. 110-11 supra and accompanying text. Also note
          in this connection the comparison of two figures
          reported by Yeager et al supra n. 2A5 at 6-7: a
          sample of 1988 Boston home burglaries finds that only
          8% were committed against occupied residences,
          whereas 44% was the comparable figure from a sample
          of 1665 home burglaries in Toronto, Canada where
          protective gun ownership is notoriously much lower.
          (Consistent with their fixed opposition to gun
          ownership, Yeager et al do not even consider it as a
          possible explanation for the 5.5 times greater
          incidence of occupied premises burglaries in Toronto.
          They comment only that the Boston figures may for
          some unknown reason be too low.)

               Kleck & Bordua n. 104 supra calculate that a
          burglar's chance of meeting an armed householder
          actually exceeds his chance of being otherwise
          caught, prosecuted, convicted and actually serving
          time in jail. One may well ask which is the greater
          deterrent: a small chance of being shot or an even
          smaller chance of going to jail?

     118. Kleck, n. 56 disagrees, noting that the "fenceable"
          value of the good taken in the average burglary is
          less than $70.00 so that realizing as little as
          $35.00 in cash from the wallet of a victim who was
          present would yield the perpetrator over 50% more. I
          believe this quantitative fact conceals a qualitative
          truth: the armed predator (see n. 125 infra and
          accompanying text) robs stores because he feels the
          chance of a $400.00 cash take justifies the danger of
          meeting an armed proprietor; most burglars
          assiduously avoid occupied premises because the
          chance of increasing the take by $35.00 does not
          justify that danger.

     119. National Institute of Justice felon survey n. 65
          supra at 145 and Table 7.1.

     120. Id. and at pp. 154ff.

     121. Id. at 150.

     122. See discussion of Blackman n. 40 supra.

     123. National Institute of Justice felon survey n. 65
          supra at Table 7.1. But see n. 73 supra.

     124. See n. 15 supra.

     125. This term appeared originally in the pioneering RAND
          California prison survey. The authors of the
          subsequent National Institute of Justice felon study
          adapt it to their own focus on gun offenders, by
          using "handgun predator" and "shotgun predator" to
          differentiate two sub-types of prolifically criminal
          violent offenders.

     126. -129 RESERVED

     130. National Institute of Justice felon study supra n. 65
          at 76 and 77.

     131. Id at 50-4 and 71. See also the U.S. Bureau of
          Justice Statistics release PRISONERS AND DRUGS (Jan.
          1983) citing prisoner surveys for the proposition
          that almost one-half of the offenders had been
          drinking at the time of the offense for which they
          are presently incarcerated while one-third had been
          under the influence of drugs. See n. 40 supra.

     132. Cf. Green n. 99 supra at 73 and n. 6.

     133-5. RESERVED

     136. See n. 63 supra and accompanying text.

     137. Indicative of the futility (indeed counter-
          productiveness) of legislating against the handgun
          alone is that it is less deadly than the long gun
          which can be substituted in enough situations in
          which handguns are presently misused to greatly
          increase the number of gun deaths. Lizotte, n. 5
          supra. Long guns outnumber handguns by about 2-1 and
          there is good reason to believe that handgun
          ownership is most common among households where long
          guns are already present. UNDER THE GUN n. 4 supra,
          ch 3. Moreover people who are strongly motivated to
          have a gun, whether for self-protection, sport, crime
          or some other reason are likely to opt for a long gun
          if a handgun is not available. If a handgun ban
          resulted in the substitution of long guns for
          handguns among substantial numbers of people who keep
          a gun loaded and immediately at hand the most likely
          effect would be sharp increases in death from gun
          assaults and accidents with no decrease in gun
          suicide. Policy Lessons, n. 45 supra at 48-50.

               As to suicide, a ban on handguns alone would not
          prevent anyone who was peculiarly determined to
          commit suicide only with a firearm to use a long gun,
          as did some hundreds of thousands of Japanese
          soldiers during World War II to avoid the shame of
          surrender. Indeed, though handguns are readily
          available today, they do not predominate over long
          guns in firearms suicide at present. See n. 49 supra.
          See also n. 14 as to the non-utility of gun laws as a
          means of reducing suicide.

               As to criminal violence, the substitution of
          long guns which, even when sawed off are more
          difficult to carry, would presumably reduce the
          number of crimes of opportunity committed with guns.
          This would not greatly reduce felony homicide since
          unplanned street muggings and rapes rarely involve
          guns and even more rarely end in death. Nor would gun
          use in planned robberies and rapes be much reduced
          since virtually any crime can be planned so as to
          allow the use even of unaltered long guns, much less
          sawed offs. A fortiori there would be little or no
          reduction in deliberate or planned murder with guns.
          Gun use in crimes of passion would also be little
          reduced since a long gun kept loaded for home defense
          is not materially less accessible than a handgun.
          Compare Kleck, "Handgun-Only Control: A Policy
          Disaster in the Making" in FIREARMS AND VIOLENCE
          supra n. 4 at 195 (estimating that in 54-80% of
          crimes now committed with handguns long guns could be
          substituted) to the National Institute of Justice
          felon survey (85% of handgun criminals responded
          that, if unable to acquire a handgun, they would
          carry a sawed off shotgun or rifle).

               More important, any such reductions in the base
          number of gun assaults if long guns had to be
          substituted for handguns would be offset disastrously
          by the great increase in the proportion of assaults
          that result in actual death. A handgun wound is only
          marginally more lethal than a stab wound from an ice
          pick or long bladed knife, with only 1-2 out of 20
          victims dying on the average; but long guns are 8-15
          times more lethal. Compare Baker n. 2A supra at 587
          to RESTRICTING HANDGUNS supra n. 4 at 107-11. These
          considerations are even more applicable to the
          problem of gun accident, since long guns are not only
          enormously deadlier but much more susceptible to
          accidental discharge. MICH. L. REV. n. 4 supra at
          261-4. The predictable result of a handgun ban that
          left those who feel they need a defensive gun the
          option of keeping a loaded long gun in home or office
          would be large increases in both the number of gun
          accidents and the number of deaths.

               In sum, since the deleterious effects of gun
          ownership are at present actually minimized by the
          predominance of handguns in both crime and self
          defense, sensible public policy requires that any new
          restriction of handgun ownership be accompanied by
          equivalent (or greater) restriction of long guns. As
          remarked somewhat jocularly by the authors of the
          encyclopedic and authoritative modern evaluation of
          American gun control literature:

                    If someone intends to open fire on the
               authors of this study, our strong
               preference is that they open fire with a
               handgun.... The possibility that even a
               fraction of the predators who now walk the
               streets armed with handguns would, in the
               face of a handgun ban, prowl with sawed-off
               shotguns instead causes one to tremble.

          -- UNDER THE GUN supra n. 4 at 322-3 (emphasis in
          original).

     138. See e.g. Policy Lessons n. 44 at 59-62, Kleck &
          Bordua n. 103 at 293-4.



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