The Value of Civilian Arms Possession As Deterrent To Crime Or Defense Against Crime

By Don B. Kates Jr.

* 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, profilactic 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 PHILISOPHICAL) 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". [12] 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 overreation 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 univeral 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 occured. 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 acquiesence. 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. [18]

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 enuciated 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 ia 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 occurence 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 commited 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 decribes 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] aggragated units too large and internally heterogenous for useful analysis"; [35] and 3) the sleight of hand Mr. Edwards uses to massage the data into suppporting 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 paegn 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, refering 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 latters' views will be found even less persuasive under close scrutiny than 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 preccludes 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. Concommitantly 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 inferrable 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 occured 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 unfocussed 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, longgun 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 auspisces 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 by-standers 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 occured 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 unsuccesful 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 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 underly 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 marskmanship 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 occured in a Jerusalem cafe four months before the San Ysidro MacDonalds 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 Isreali 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. Blythely 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:

Mightn't it be better in those areas of high crime to arm the 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 news- paper 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 occured 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 [105] 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 otherrwise 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 displacment effects are not unique to the deterrent value of civilian gun possession; they apply, and must be taken into account in appriasing, 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 leit motif thoughout 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- confrontantion 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 Institue 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, barbituates 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).

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. 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 entreprenuers 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 accomodation 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 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 prounoucement 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 22A-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 Deliquency] 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 neigbors 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 Presbyterean 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 Presbyterean 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 longguns 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, implictly 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 propopensity 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 unncessary 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 viol- ence 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).

22A. 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 concommitantly 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 maladopted 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, rest- less, alcoholic, troubled people, usually with long crimin- al 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 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 correllate 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, unlimned 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 targetting; shooting at or from moving vehicle so as to endanger innocent hystanders). 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 philisophical 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 decribing 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 misclassifing 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 occuring "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 misclassication 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 disucssion 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 infraz 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 artifically 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 occuring 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 caselaw. 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 themsleves 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 occured 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) (herinafter 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 Aassaultive 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 20of 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 forgun 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" occured 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 unreasonbly 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). 48

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. 49

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 auspisces 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 questionaire which was administered as part of the regular survey in February 1984. The results indicate that "few incidents" occured 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 submssion), 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 Univerity 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 ediorial "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 55 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 McDonalds 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 Agression Eliciting Stimuli", 34 SOCIOMETRY 453 (1971), Fraczek & Macauley, "Some Personality Factors in Reaction to ggressive Stimuli" 39 J. OF PERSONALITY 163 (1971), Buss, Booker & Buss, "Firing a Weapon and Agrression", 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 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 occured 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 fforall 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 criminous 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 off- set 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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