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How gun control got murdered.


The nation was horrified in January when Jared Loughner shot 20 people in Tucson, Arizona, killing 6 and wounding 14. But as horrified as we may be, we are also inured to this kind of carnage. Other armed-to-the-teeth madmen shot 48 people at the University of Texas in 1966; 35 schoolchildren at an elementary school in Stockton, California, in 1989; 43 people at a cafeteria in Killeen, Texas, in 1991; 38 people at Columbine High School in Colorado in 1999; 49 students and faculty at Virginia Tech in 2007; and 43 people at Fort Hood in Texas in 2009. These events are only the biggest and most widely reported massacres on a long list.

Most gun violence does not make page one. In 2009, the last year for which the FBI Uniform Crime Reports provide complete data, guns were used in 9,146 homicides, 149,335 robberies, and 146,773 aggravated assaults. On a typical day in America, about 100 people are shot and 800 held up or assaulted at gun point.

Can't we do anything about this? The unhappy answer is that we used to have means for reducing gun violence significantly, but that may no longer be the case. Substantial political support for gun control has disappeared. The National Rifle Association and rightwing candidates still play Paul Revere, riding through the countryside to spread the alarm that "gun-ban politicians" are on the march. John Bolton, for example, ominously warned attendees at the NRA's annual meeting in April that if Barack Obama is re-elected, they should expect gun control "at the federal level and the international level" to be at the top of the president's agenda.

But such claims are charades, designed to keep money flowing into NRA coffers or gin up support for someone like Bolton, who was toying with a presidential run. Gun-control advocates know their cause is considered dead and buried. When they learned about the Tucson massacre, they did not expect gun-control efforts to revive and were not surprised when, at the memorial service, President Obama spoke not about guns but about the need for a more civil discourse.

Still, there are people who think the movement will live to fight another day. In his new book, Gunfight, Adam Winkler, a law professor at the University of California, Los Angeles, argues that Americans have always believed in gun control as well as an individual right to possess guns and that the two aims can be reconciled. "This book shows," Winkler writes, "that we can have both an individual right to have guns for self-defense and, at the same time, laws designed to improve gun safety." In support of his case, Winkler takes the reader to scores of historical events. We find ourselves in England during the Glorious Revolution of 1689; at Lexington with the minutemen; in the South during Reconstruction; at the shootout in Tombstone, Arizona; with the Black Panthers in 1967; and at many other events. These vignettes can be illuminating. We discover, for example, that there was strict gun control in the Wild West. In 1873, signs in Wichita, Kansas, instructed visitors, "Leave Your Revolvers at Police Headquarters, and Get a Cheek." A huge billboard in the middle of the main road in Dodge City read, "The Carrying of Firearms Strictly Prohibited."

The gunfight of Winkler's title is the legal battle in District of Columbia v. Heller, the 2008 ease that led the Supreme Court to hold for the first time that people have a right to keep and bear arms for their own self-defense, unconnected to service in the militia. Winkler begins each chapter with part of the story of that lawsuit, from the initial idea of two libertarian lawyers to construct the strongest possible Second Amendment case, through the strategizing and maneuvering in the opposing camps, to oral argument and ultimate decision in the Supreme Court. But only a few pages into each chapter, Winkler interrupts the tale to flashback to other episodes in history. Each of these, in turn, lasts only a few pages before Winkler jumps to another place and time. This is a shame. Winker can write well and create drama, but he employs a structure that robs him of the ability to sustain it.

More important, while his history may show that Americans have always believed in both gun control and an individual right to own guns, Winkler ultimately fails to reach a persuasive conclusion because he does not face up to the evidence on what effective gun control would actually require--and why it doesn't stand a chance.

WHAT ACCOUNTS FOR the strange death of gun control? Paradoxically, the story begins with two supposed victories for the gun-control movement, both during the Clinton administration. The first was the Brady Act, which established a five-day waiting period for handgun purchases, to be replaced by instant background checks when a system for those checks was developed (which occurred in 1998). The second victory for gun control was the assault-weapons ban, which prohibited domestic manufacturers from producing 19 specified models of guns and other weapons with certain characteristics such as bayonet mounts and pistol grips. The NRA argued that the assault-weapons ban was largely cosmetic because while assault weapons look more fearsome than other semi-automatic rifles, there is no functional difference between the two. That argument had some merit, but the assault-weapons ban did have one critical provision: It prohibited the manufacture of gun magazines holding more than ten rounds.

Both the Brady Act and the assault-weapons ban, however, had major flaws. The Brady Act applied only to sales by licensed gun dealers. Private sales, many of which occur at gun shows, were not covered, and 40 percent of gun sales occur in these exempted venues. Despite the law, someone wanting to buy a gun without background checks or reporting requirements has little trouble doing so. The boys who committed the Columbine massacre, for example, used cash to purchase two shotguns and a semi-automatic rifle at a gun show. Meanwhile, the important provision in the assault-weapons legislation that limited gun magazines to ten rounds prohibited only the future manufacture of the magazines. It was lawful to continue to possess or sell previously manufactured high-capacity magazines.

The gun-control movement hoped to close these loopholes in subsequent legislation and to make the assault-weapons ban permanent (the law was set to expire in ten years). But for interrelated reasons involving politics, policy, and law, both the Brady Act and assault-weapons ban turned out to be Pyrrhic victories.

The political factor came quickly on the heels of the passage of both measures. In November 1994, when Republicans took over Congress, the NRA claimed a large share of the credit. It had worked to defeat 24 members of Congress who voted for gun control, and 19 of them lost. Although the NRA's claims of its own political efficacy were probably exaggerated, they were widely believed, and ever since, the conventional wisdom has been that supporting gun control can be political suicide.

During the fight over the Brady bill and assault-weapons ban, the gun lobby warned that these measures were preludes to gun confiscation. Gun-control supporters insisted, however, that all they wanted were "commonsense" regulations; stringent measures were neither necessary nor appropriate. But the data do not bear out that confidence.

Epidemiologists and social scientists have been studying different schemes of gun regulation for years. Gun availability varies markedly by region and state--for example, handguns are present in about 11 percent of New York households and 30 percent of Texas households--and these differences have allowed cross-state comparisons. Researchers report that homicide rates in high-gun states are triple those of low-gun states. Studies have also tracked the impact of the adoption of new gun-control laws. For example, according to a study in the New England Journal of Medicine, during the nine years after the District of Columbia enacted a handgun ban, D.C. saw gun-related homicides fall 25 percent compared with contiguous areas in Maryland and Virginia. International comparisons yield similar results. One study found that stringent gun control works, while modest regulation does not.

The data from the research are complex and controversial, but the bottom line is this: Whatever significantly reduces the number of handguns in general circulation--whether through culture or regulation--reduces homicides. Other measures such as waiting periods, required training for gun owners, and enhanced sentences for criminals have no discernable effect.

In its decision in District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees the right to have a handgun in one's home and therefore the District's handgun ban was unconstitutional. But according to the Court, the right is not unlimited and does not prevent restrictions relating to felons, the mentally ill, sensitive places such as schools and government buildings, or the commercial sale of firearms. The justices may have thought their decision did not endanger public safety because commonsense gun regulation is still permissible. Under the Court's ruling, however, laws designed to reduce the prevalence of handguns in general circulation may now be unconstitutional. At the moment, no strong form of gun control is going to get enacted anyway. But circumstances change, and Heller may permanently bar the only kinds of regulation that work.

In Gunfight, Winkler is at his best when discussing Heller. He does a good job of showing how and why the NRA tried to stop the case. The gun lobby was afraid of losing, and it was also afraid of winning and thereby undermining its own fundraising. Winkler also shows how libertarian lawyers handling the case outmaneuvered the NRA. But he entirely ignores research about the efficacy of gun control and, as a result, fails to confront the real significance of what the Court decided. We can still enact gun-control regulations. The only trouble is that they may not do much good.

Carl T. Bogus is a professor of law at Roger Williams University. His most recent book, Buckley: William F. Buckley Jr. and the Rise of American Conservatism, will be published by Bloomsbury Press in November.
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Title Annotation:'Gunfight: The Battle Over the Right to Bear Arms'
Author:Bogus, Carl T.
Publication:The American Prospect
Article Type:Book review
Date:Sep 1, 2011
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