Firearms Law and the Second Amendment

454 Pages·2014·12.22 MB·English

Firearms Law and the
Second Amendment
Regulation, Rights, and Policy
Online Chapters
Nicholas J. Johnson
Professor of Law
Fordham University
David B. Kopel
Adjunct Professor of Law
University of Denver
George A. Mocsary
Assistant Professor of Law
Southern Illinois University
Michael P. O’Shea
Professor of Law
Oklahoma City University
Copyright #2014 CCHIncorporated
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CasebookISBN: 978-1-4548-0511-3
Contents
12
Social Science 1
A. Challenges of Empirical Assessments of Firearms Policy 2
B. American Gun Ownership 6
1. Gun Ownership by State 7
2. Gun Ownership by Type 9
Lydia Saad, Self-Reported Gun Ownership in U.S. Is Highest
Since 1993: Majority of Men, Republicans, and Southerners
Report Having a Gun in Their Households 9
C. Defensive Gun Use: Frequency and Results 13
1. Self-Defense and Victim Welfare: The Risk of Armed Self-Defense 14
2. The Frequency of Defensive Gun Use 15
a. The National Crime Victimization Survey 15
Assessment of the NCVS as a Measure of DGUs 15
b. Kleck & Gertz Survey 17
c. Other Surveys 18
D. Firearm Accidents 20
1. Why Have Fatal Gun Accident Rates—Including Rates for
Children—Plunged? 21
2. How Common Are Gun Accidents Compared to Other
Accidents? 23
E. Firearm Suicide 25
F. Firearm Violent Crime 28
1. Homicides 28
2. Aggravated Assaults and Robberies 32
G. How Do Criminals Obtain Guns? 37
Gary Kleck & Shun-Yung Kevin Wang, The Myth of Big-Time
Gun Trafficking and the Overinterpretation of Gun
Tracing Data 38
H. Race, Gun Crime, and Victimization 55
William Oliver, The Structural-Cultural Perspective: A Theory of
Black Male Violence in Violent Crime 55
iii
iv Contents
1. Experience in Washington, D.C. 64
Claire Johnson, Public Information Specialist, Homicide in
the District of Columbia 64
2. Problem of Intra-Racial Violent Crime 67
3. Firearms Policy and the Black Community 68
I. Youth Crime 70
J. Recent Downward Trend of Violent Crime and Growth of the
American Firearms Inventory 75
1. Some Statistics on the Decline in Violent Crime 75
2. Some Theories about the Cause of the Decline in Violent Crime 81
K. Does Gun Ownership Reduce Crime? 86
1. Firearms Ownership as a Factor Reducing Home Invasion
Burglary 87
2. Studies of Criminals and Deterrence 89
3. Real-World Experiments in Gun Possession as a Deterrent
to Crime 90
4. Police Response as a Factor in the Decision to Own a Firearm 91
5. Lawful Defensive Carry of Firearms 92
a. Crime outside the Home 92
b. Do Concealed-Carry Laws Affect the Crime Rate? 92
James Q. Wilson, Dissent 93
Committee Response to Wilson’s Dissent 95
L. Does Gun Control Reduce Crime? 99
1. The Argument for Disarming the Law-Abiding 99
2. National Research Council Metastudy of Gun Control 102
National Research Council, Firearms and Violence:
A Critical Review 102
M. Polling Dara about Gun Control and Gun Rights 110
1. Public Opinion 110
Jeffrey M. Jones, Record-Low 26% in U.S. Favor Handgun
Ban Support for Stricter Gun Laws in General Is Lowest
Gallup Has Measured 110
2. Police Attitudes about Firearms and Gun Control 115
Appendix Firearms and Violent Crime Measures by State 117
13
International Law 197
A. Modern Treaties and the United Nations 198
1. Modern Human Rights Conventions and Other Documents 198
a. Universal Declaration of Human Rights 198
b. Resolution on the Definition of Aggression 199
c. African Charter on Human and Peoples’ Rights 199
d. European Convention on Human Rights (ECHR) 199
2. Modern International Gun Control Treaties and Documents 201
Programme of Action to Prevent, Combat and Eradicate the
Illicit Trade in Small Arms and Light Weapons in All Its
Aspects 201
Contents v
U.N. Human Rights Council Prevention of Human Rights
Violations Committed with Small Arms and Light Weapons 213
The Frey Report 213
The Nairobi Protocol for the Prevention, Control and
Reduction of Small Arms and Light Weapons in the Great
Lakes Region and the Horn of Africa 220
Inter-American Convention Against the Illicit Manufacturing
of and Trafficking in Firearms, Ammunition, Explosives,
and Other Related Materials (CIFTA) 224
B. Classical International Law 234
1. Francisco de Vitoria 235
2. Francisco Sua´rez 238
3. Hugo Grotius 239
4. Samuel Pufendorf 241
5. Emmerich de Vattel 245
6. Jean-Jacques Burlamaqui 247
C. Resistance to Genocide 252
Convention on the Prevention and Punishment of the Crime
of Genocide, opened for signature Dec. 9, 1948 252
David B. Kopel, Paul Gallant, & Joanne D. Eisen, Is Resisting
Genocide a Human Right? 252
Antonio Cassese, The Various Aspects of Self-Defence Under
International Law 260
D. Bringing International Law Home, or a Global Second
Amendment? 262
Harold Hongju Koh, A World Drowning in Guns 262
14
Comparative Law 269
A. National Constitutions 269
1. Constitutional Rights to Arms 269
a. Mexico 270
b. Haiti 270
c. Guatemala 270
2. Constitutional Right of Self-Defense 270
3. Constitutional Self-Defense against Tyranny 271
4. Constitutional Security against Home Invasion 272
B. Multinational Comparative Studies of the Effects of Private Gun
Ownership on Crime and Violence 278
Martin Killias, John van Kesteren, & Martin Rindlisbacher, Guns,
Violent Crime, and Suicide in 21 Countries 282
Don B. Kates & Gary Mauser, Would Banning Firearms Reduce
Murder and Suicide? A Review of International and Some
Domestic Evidence 297
vi Contents
Irshad Altheimer & Matthew Boswell, Reassessing the Association
between Gun Availability and Homicide at the Cross-National
Level 315
Nicholas J. Johnson, Imagining Gun Control in America:
Understanding the Remainder Problem 333
David Kopel, Carlisle Moody, & Howard Nemerov, Is There a
Relationship between Guns and Freedom? Comparative
Results from 59 Nations 339
C. Gun Control and Gun Rights in Selected Nations 357
1. United Kingdom 357
David B. Kopel, United Kingdom—History of Gun Laws since
1900, in 3 Guns in American Society: An Encyclopedia of
History, Politics, Culture, and the Law 842 357
2. Japan 364
David B Kopel, Japan, Gun Laws, in 2 Guns in American
Society: An Encyclopedia of History, Politics, Culture, and
the Law 449 364
3. Mexico 371
Ernesto Villanueva & Karla Valenzuela, Security, Firearms
and Transparency: Myths and reality of the right to own
and bear firearms in Mexico (ebook excerpt) 371
4. Switzerland 376
Stephen P. Halbrook, Remarks at the introduction of his book,
Target Switzerland: Swiss Armed Neutrality in World War II 378
5. Canada 381
Parliament of Canada, 41st Parliament, 1st Session, Ending the
Long-gun Registry Act (Feb. 13, 2012) 381
6. Kenya 396
David B. Kopel, Paul Gallant & Joanne D. Eisen, Human
Rights and Gun Confiscation 396
15
In-Depth Explanation of Firearms and Ammunition 401
A. Introduction to the Parts of a Firearm 401
B. Ammunition 403
1. Bullet 404
2. Case 406
3. Primer 408
4. Gunpowder 409
C. Firearm Features 410
1. Firing Mechanism 410
2. Magazine 410
3. Safety Devices 411
4. Firearms Safety Rules and Education 414
Contents vii
5. Eye and Ear Protection 415
6. The Major Types of Firearms 416
D. Handguns 417
1. Semi-Automatic Pistols 417
2. Revolvers 421
a. Single-Action Revolvers 422
b. Double-Action Revolvers 422
3. Legitimate Uses of Handguns 423
4. Criminal Uses of Handguns 424
E. Rifles 425
1. Bolt-Action 425
2. Semi-Automatic 426
3. Lever-Action 430
4. Single-Shot 430
5. Characteristics of Rifles 430
6. Legitimate Uses of Rifles 432
7. Crime with Rifles 432
F. Shotguns 432
1. Shotgun Shells 433
2. Shotgun Gauges 434
3. Types of Shotguns 434
4. Legitimate Uses of Shotguns 435
5. Crime with Shotguns 436
G. Specialty Types of Firearms and Accessories 437
1. Muzzleloaders 437
2. Machine Guns 438
3. Silencers or Suppressors 439
4. Armor-Piercing Ammunition 440
5. Air Guns 441
6. Paint Guns 441
H. Nongun Arms 442
1. Swords, Knives, and Other Edged Weapons 442
2. Bows 443
3. Sprays 444
4. Electric Devices 445
5. Blunt Weapons 445
6. Martial Arts Weapons 445
7. Knuckles 446

12
SOCIAL SCIENCE
This is online Chapter 12 of the law school casebook Firearms Law and the Second
Amendment:Regulation,Rights,andPolicy,byNicholasJ.Johnson,DavidB.Kopel,
George A. Mocsary, and Michael P. O’Shea. The printed book, consisting of Chapters 1
through 11, is available at the website of Aspen Publishers. The printed book is also
available from Amazon.com and Barnes & Noble (bn.com). The public website for this
casebook,firearmsregulation.org,containsthefouronlinechapters(Chapters12through15),
pluspodcastsoneachchapter,resourcesforstudentresearchpapers, andmore.
Note to teachers: Chapter 12, like all of the online chapters (and like the printed
Chapters1through11),iscopyrighted.YoumayusethisonlineChapter12withoutcharge
foraclass,andyoumayhaveitprintedforstudentswithoutcharge—providingthatyou
notifytheauthorsofsuchuseviaoneoftheemailaddressesprovidedonthepublicwebsite
for this textbook. Of course, you may choose to use only selected pages, and you may
supplement this chapter with materials of your own. However, this chapter may not be
electronically altered or modified in any way.
Chapter12presentsempiricaldataandstudiesonfirearmuseandmisuse.
Mostofthechapterinvolvescriminologicalissueslikegunuseincrime,resisting
crime,andgunsasdeterrentstocrime.Thechapteralsocoversmanyfacetsof
the debates about gun control or gun ownership as strategies for reducing
crime. In addition to the strictly criminological issues, we present information
on suicide and accidents. The chapter is divided into the following sections:
A. Challenges of Empirical Assessments of Firearms Policy
B. American Gun Ownership
C. Defensive Gun Use: Frequency and Results
D. Firearm Accidents
E. Firearm Suicide
F. Firearm Violent Crime
G. How Do Criminals Obtain Guns?
H.Race, Gun Crime, and Victimization
I. Youth Crime
J. RecentDownwardTrendofViolentCrimeandGrowthoftheAmerican
Firearms Inventory
1
2 12. SocialScience
K. Does Gun Ownership Reduce Crime?
L. Does Gun Control Reduce Crime?
M.Polling Data about Gun Control and Gun Rights
Appendix: Firearms and Violent Crime Measures by State
Forstudentswritingpolicy-orientedresearchpapers,thismaterialandthe
workcitedherewillbeagoodresource.Inadditiontothesectionssummarized
above,thechapterendswithanAppendixthatpresentsavarietyofdatabystate.
Thesedatadonotshowcauseandeffect.Buttheydopermitinteresting,rough
comparisonsbetweenstatesthathavedifferentformsofguncontrol.
A. Challenges of Empirical Assessments of Firearms Policy
Almostallempiricalassessmentsofsocialissuesinvolvesomedatachallenges,and
this is certainly true of empirical studies of gun policy. A good place to start in
appreciatingthechallenges,andagoodsourceofanalysisofthefullrangeofempir-
icalclaimsaffectingthegundebate,isthe2005metastudybytheNationalResearch
Council,FirearmsandViolence:ACriticalReview(2004).Thisbook-lengthreportwas
developed by the National Academies at the request of a consortium of federal
agencies and private foundations, including the Centers for Disease Control and
the Joyce Foundation (both of which have taken positions strongly favoring
increasedguncontrol).
The federal Centers for Disease Control (CDC) conducted its own metas-
tudy, ‘‘First Reports Evaluating the Effectiveness of Strategies for Preventing
Violence:FirearmsLaws,’’publishedintheCDC’s(memorablynamed)Morbid-
ity and Mortality Weekly Report (Oct. 3, 2003).
Both the National Research Council and CDC studies are agnostic on the
effectiveness of existing gun controls. That is, each metastudy concluded that
existing data and studies were not sufficient to draw solid conclusions about
whether gun control (in its variousforms) reduces or increases crime, nor did
theypermitconclusionsaboutwhethergunownershiporguncarrying(intheir
various forms) reduces or increases crime.
When the American gun control debate becamea major national issue in
thelate1960s,therewasalmostnosocial-scienceresearchonthetopic.Butsince
thelate1970s,therehavebeenmanystudies,someofthemofveryhighquality.
Thatthesumtotalofthesestudiesleadtoagnosticismindicatesthedifficultyof
drawingsolidconclusionsabouttheeffectofpublicpolicyinterventionsaimed
atacomplicatedsetofbehaviors.Inlegislatures,itiscommonforstatisticsand
studiestobebandiedaboutbybothsides,butusuallyforthepurposeofreinfor-
cing the intuitions of whichever side is doing the bandying.
A good illustration of the complexity of the field—even in areas where
excellent data are available—appears in Section B of this chapter. It begins
by asking a simple question: How many guns are owned by civilians in the United
States? (That is, all guns in the United States excluding those owned by the
military but including guns owned by individual police officers and by police
departments.)