Johns Hopkins University recently published a White Paper entitled "Case for Gun Policy Reform In America"[bib]201[/bib]. This article will respond to that paper and comment on the larger issues from the context of an organization like the Sheriff's Auxiliary. I target this paper in my criticism for several reasons, the simplest of which is that it was just released and is therefore foremost in my mind, but also because it states reasonably well and clearly commonly-stated gun-control positions which are nevertheless problematic.
I will state the official policy of the Auxiliary early on regarding citizens and bearing arms but the remainder of the commentary shall be my personal opinion. The intent of the article is to begin a discussion which bears drectly on activities of our organization and which is critical to the peace and safety of our society. By writing this down, I am attempting to document rationale for Auxiliary doctrine being developed. As the current commander and founder of this incarnation of the LCS Auxiliary, my opinion may carry weight but is not to be considered the final word on the subject, in or out of the organization. I expect the policies and guidelines of the Auxiliary to be expanded, improved, and corrected as the discussion of the underlying matters develops.
The Johns Hopkins paper identifies a perceived problem, states a rationale for specific policy goals, and discusses potential policies based on those goals. To some extent, the perception of the problem is accurate, and at least some of the goals are reasonable, but the base problem is the framing of the issue in terms purely of utilitarian analysis (of comparative safety) rather than in the rights and duties of both government and governed. In other words, the paper frames the issue as a greatest-good-for-the-greatest-number analytical exercise rather than as a fundamental moral and legal dilemma. Analysis is good and useful, but one cannot step from analysis to policy without directly confronting the moral quandary.
Broad LCS Auxiliary Policy Regarding the Bearing of Arms
The official policy of the LCS Auxiliary regarding armed citizenry is three-fold:
- It is our goal to encourage and facilitate the lawful bearing of or ready access to arms by trained individuals who are well-dispersed in the population. This policy flows directly from our mission to improve citizen response to emergencies and from citizen ownership of both civil defense and law enforcement. The word trained must take into account not just the mechanical skills but also the legal and ethical knowledge to understand when the use of violence is lawful, justified, and effective but should not imply a specific required training curriculum, training source, or narrow religious doctrine.
- We are required under our oaths of service to uphold the fundamental rights of citizens, including the Right To Keep and Bear Arms (RTKBA) as protected by the 2nd Amendment and Missouri Article I Section 23[bib]MissouriConstitution[/bib].
- Enforcement of laws prohibiting possession of firearms through legitimate due process (e.g. violent felons and adjudicated insane) is a legitimate purview of government, a common law and statutory responsibility of our served agency, the Lawrence County Sheriff's Office.
None of these policies is negotiable under our defined structure and purpose. Any public policies we support must be consistent with all of them. Within the constraints of these basic principles, there is still wide room for debate on the precise civil policies for supporting lawful bearing of arms. This is the context in which the Johns Hopkins paper will be discussed.
We quote the Missouri Constitution here because most people are unfamiliar with it:
That the right of every citizen to keep and bear arms in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons. Article I; Section 23 [bib]MissouriConstitution[/bib]
It should be noted that both the US and Missouri Constitions frame the RTKBA in the context of service: the "militia" reference in the US Constitution, the "aid of the civil power" reference here, and similar in the English Bill of Rights of 1689[bib]EnglishBillOfRights[/bib]. Even if those phrases are read as limiting, however (which I would argue that they are not), in all three contexts, such service was considered the right and duty of all adult males. This is true in Saxon law to before written history and of course is also present in the Bible. This concept of service as a Right and Duty coincides neatly with the purposes of the Sheriff's Auxiliary.
Gun Violence Statistics
The paper starts with a summary of gun violence statistics and a comparison of gun crime with other countries: the US has a similar overall crime rate to other countries of similar affluence but a considerably higher rate of firearm deaths. This is essentially true with some caveats: first of all, the largest category of gun deaths in the US is suicides, making up a bit more than half[bib]WISQARS2010[/bib] of all suicides and much more than half of all gun deaths. Although this does say disturbing things about our culture, it does not necessarily say anything about gun control policy unless it is implied that the mere presence of a firearm causes suicide as opposed to simply being a convenient method. The second largest group is typically drug-related violence and large scale studies strongly suggest that many gun-homicides are criminals shooting other criminals. (e.g. "Taking Aim At Gun Control", "Gun Control: A Realistic Assessment"). When gun-control advocates have stated that most victims "know their assailant", this is factually correct, but fails to take into account that "know" is often a business relationship between criminals (e.g. a drug deal) rather than homicidal office workers, baby-sitters, or crazed uncles (Victims with a criminal background are twice as likely to know their assailants). The fact that the US has an unusually large criminal class for a developed country also means that the number of acquaintances of criminals is quite high. Of the offenders themselves, though there is little published hard data, approximately 75% of murderers have adult criminal records and some portion of the remaining 25% have been juvenile offenders prior to homicide (FBI data from the '60s and reports of the Chicago Police Department). Some studies, usually of limited time and area, suggest the numbers of firearm-using-murderers who are already prohibited from possessing arms may be much higher.
While living in cities with higher rates of violence and speaking to both English and European foreigners, I have frequently heard a statement that there is a fundamental difference in attitude between urban US criminals and their European equivalent: the European robber wants your money, while the US robber wants to hurt you, whether or not you comply with their demands. While this anecdotal statement is very hard to quantify, I believe it does point at a difference in character which might very well explain both a higher degree of firearm homicide and a greater need for citizen self-defense in the US. The reasons behind high rates of drug violence, a potential difference in the nature of criminal behavior, the causes of suicide rates which are quite high (although not the highest) among developed countries and so forth, are issues which need to be better researched and discussed. So, it should be agreed that while gun violence is a problem in the United States, it cannot necessarily be viewed separately from a larger picture of crime in our society and comparisons of gun-related statistics from either side of the debate are something which must be done with great care.
US Gun Policy Goals
The Hopkins paper starts the next section on US gun-control policy with "...with recent Supreme Court decisions overturning laws which ban firearm possession in the District of Columbia and Chicago, current gun control policies in the U.S. do not disarm lawabiding adults over the age of 21." It should be noted that the referenced USSC cases came about because urban policy has been targeted exactly at law-abiding citizens over the age of 21 and that organized gun-control advocacy still threatens law-abiding citizens protected by a slim current Supreme Court majority. Gun-owner advocacy therefore is quite reasonable in trying to protect the rights of law-abiding gun owners. That being said, the paper's list of legitimate gun-control policy goals bears serious appraisal:
- Define conditions that prohibit a person from possessing firearms;
- Implement regulations to prevent prohibited persons from possessing firearms;
- Restrict carrying of concealed firearms outside the home; and
- Regulate the design of firearms to enhance public and personal safety.
Of these policy goals, #1 and #2 should brook no argument. Goal #3 is highly problematic as public policy and opinion differs markedly by region on the desirability of Concealed versus Open Carry. The Missouri Constitution, for instance, specifically protects Open Carry above Concealed Carry but many Missouri localities and several states (e.g. Florida) specifically ban Open Carry. Many gun-owner advocates read the Constitutional protections as allowing local public regulation of firearm carry as long as a clear, lawful, and reasonable method of carry (concealed or open) exists (the Constitutional-law principle of "Strict Scrutiny" would apply for determining "reasonable" regulation in this context, just as it would for Free Speech). Which is preferable depends on cultural values which should not be a subject of national policy and certainly should not be stated as a general and universal policy goal. Personally, I find Missouri's policy of lawful Open Carry for all eligible citizens and licensed concealed carry as perfectly reasonable but would not wish to mandate this policy for such different states as New Hampshire and Florida. I do, personally, support laws to protect gun-owners and RTKBA for otherwise law-abiding persons traveling from state-to-state or locality-to-locality in terms of the federal "Peacable Journey" law and, potentially, state-to-state reciprocity for weapons permits.
Goal #4, the regulation of firearm safety, appears unnecessary, intrusive, capricious, and possibly dangerous. The development and refinement of safety features in firearms has been constant and vigorous over the last few centuries. Gun owners and manufacturers have a powerful private incentive for firearms to be safe within their intended use. In other words, a gun which explodes in the hand of the user or discharges accidentally does not remain in market or production long and exaustive testing occurs before a firearm ever reaches the market. Major advances in civilian firearm models often follow substantial investment by military and law enforcement who also have a vested interest in ensuring that a firearm fires always and only when intended to fire. Accident statistics are often cited as justifying a need for safety features, but it is my experience from both examining these statistics and from real life that most accidents (and they are actually quite few per gun owner) occur from people doing things they should not do, such as violating the cardinal rule of firearm use: don't ever point a gun at anything you don't want to put a hole in. A manufacturer cannot prevent wilful misuse. It should also be noted that legitimate accidents while "cleaning a gun" are practically impossible. Most breach-loading firearms require passing a cleaning rod or cord through the empty breach and, in, for instance, common semi-automatic handguns, the first step is often locking the breach open. An accident while "cleaning a gun" has long been a euphimism for having done something shameful which cannot be publicly admitted or for intentional self-injury and is noted as such, for instance, in Stephen Ambrose' recollections of WWII soldiers in his book, "Band of Brothers". This myth is often perpetuated by people who simply do not understand how firearms work.
The life-critical use of firearms for defense causes a strong tendency toward simple and reliable mechanisms as well as toward reliable standard practice. The possibility, for instance, of self-discharge of very old model revolvers (i.e. pre-WWI) caused an almost universal practice of leaving one chamber--- the one under the hammer at rest--- unloaded. This problem was corrected as early as the 1850s (I own a reproduction of the popular 1858 Remington with a inert hammer rest between the chambers) and features to prevent this issue are now almost universally present even though most people still leave an empty chamber. Features to prevent self-discharge on drawing or dropping are present in handguns of all price ranges, including the inexpensive, American-made Hi-Point firearms which are often considered "entry-level" and many cheap former Soviet-block weapons. Firearm bolt-locks and lock boxes for rendering a weapon inoperable are available everywhere, generally provided by the manufacturer or vendor of a new weapon, and given away free by a number of organizations. The life-critical nature of firearms, however, also tends to eschew complex safety mechanisms--- which may themselves cause failure--- in favor of safeties well-integrated into the overall design and intended use of the weapon. Requiring specific government-sanctioned mechanisms will actually stifle this process and make weapons less safe.
But the real threat of this item as a policy goal is that the non-existant problem of safety has often been misused by gun-control advocates for other political aims. The so-called Saturday Night Special laws, for instance, clumsily targeted a problem which cannot be shown to have ever existed in order to make less-expensive firearms less available to lower classes. The history of abuse of that argument will never allow such laws to be accepted by gun-owners and is hard to legally justify in regulation of a right which "shall not be infringed" according to our founding document. If there is a perceived problem, other approaches, such as provisions requiring reliable and appropriate lock boxes in automobiles and low-income housing would be general-purpose, more effective, and less politically contentious (many "glove-compartments" are not sufficient to the task of properly securing a handgun). State and federal support of citizen gun-safety training is also likely to be more effective and less contentious; basic firearms training used to be reasonably common in schools and churches, especially in higher education, but honestly, private programs to this end are already common outside of urban areas. What's more, citizen firearms training is one of the enumerated Constitutional responsibilities of government and will readily pass legal muster.
So, straight off, we find that 2 out of 4 "reasonable" policy goals are less than reasonable, but my largest concern with the paper is the logic used to justify even the first two goals we might otherwise agree on.
Keeping Guns Away From Criminals
As noted above, the goal of keeping guns away from felons and the criminally insane (in which category I would also place a drug addict or habitual substance-abuser) is one which I believe to have almost universal agreement given appropriate definition and attention to due process. Therefore, policy goal #1 (definition of prohibited persons) would be an obviously appropriate purview of both regulation and policy. It is, however, one that is largely already defined and rigidly constrained by the fundamental principles of our society. Both the definition and the practical matters of implementation, however, provide problems which require careful thought and vigorous public debate.
The Hopkins paper starts describing current policy for prohibiting criminals from possessing handguns at the bottom of page 3. Regulations differ somewhat by state, but, in general, the prohibited persons include convicted felons, the adjudicated insane, and convicted substance-abusers. The paper supports these categories with an appeal to utility: that those categories of persons are more prone to commit violent crimes and therefore, that keeping guns away from them keeps us safer. These statements are well supported with facts and, on their face, I would not argue with them. They are completely wrong, nevertheless.
Public safety is not the reason that we, as a society, define prohibited persons in this manner, nor should we do so. The reason is rather that the Right to Keep and Bear Arms is a fundamental right of personhood (protected by law going back before the English Bill of Rights which our Bill of Rights is based on) and that fundamental rights cannot be removed without due process of law (protected by the 4th Amendment, but again, a fundamental and defining right of personhood). A violent felon loses their RTKBA as part of their adjudicated punishment. The fact that basic rights are forfeited by a convicted felon is part of the definition of what constitutes a felony in the first place (and what is therefore dangerous about careless expansion of the list of felony-crimes). The adjudicated insane are likewise prohibited because they are by-definition not legal adults; the danger they might or might not pose is secondary. Habitual substance abuse follows logically (given due process concerns) because someone under the control of an abused substance is not in control of themselves and their own actions and therefore not an adult in that respect.
From this perspective, that of capital-R Rights rather than of safety, the fact that someone guilty of a misdemeanor may be statistically likely to commit a violent crime (at some point) is not relevant. Until and unless that specific individual has committed or attempted to commit such a crime (and been accorded due process), they are a person, they possess basic rights of personhood, and those basic rights cannot be capriciously deprived. Temporary restrictions, such as injunctions and restraining orders based on probable cause and specific circumstances, are possible and permissible given proper oversight and the availability of individual redress, but categorical prohibition is simply not a permissible option. I would go further and state that this definition may not be eroded without giving up entirely on the concept of rights of personhood, including those rights of property and peacable enjoyment which are the very things law exists to protect: It is an all-or-nothing proposition logically incapable of compromise.
In the similar fashion, the paper's statements that a whole manner of possible mental ills, including depression, bipolar disorder, and so forth not rising to a level of adjudicated insanity cause a statistical increase in the risk of violence, or the alleged correlation between drunk driving and later violence even if true, are not relevant both because rights cannot be taken on a mere supposition of possible future behavior and because the effective criminalization of minor mental disorders will lead to even lower willingness to seek treatment than we now suffer. We already have problems where military personnel are reluctant to seek treatment for PTSD and are killing themselves at astounding and unprecedented rates. Now we wish to inflict that on the population at large? Is it possible in the modern world to not suffer minor mental ills without being categorically insane? Can anyone grow up in a place like Chicago or go through public schooling without experiencing psychological trauma? Should we as a community keep an eye on people experiencing problems both to potentially help or intervene if necessary? Absolutely yes. Should we start entering people into big databases and ticking them off as potential dangers? Absolutely not. For one thing, the same factors which might disqualify whole categories of people from keeping firearms might just as easily disqualify them from recommending broad public policy initiatives or from enforcing that policy on the rest of us: all of us are flawed creatures in a flawed and confusing world.
Youth and Guns:
The Hopkins paper states on page 5:
Restrictions on youths’ ability to purchase and possess firearms should be broadened.
where "youth" is defined as persons between 18 and 21 (or possibly 23). Most states currently allow youth to own handguns at 18 years of age, some at 21. The paper states that this category of persons has the highest rate of violent offense and generally exibits riskier and more impulsive behavior than other segments of the population, which is of course factually accurate and not surprising. It is also true of course that this exact age group is the backbone of our military: people we issue firearms and send to foreign countries to kill or be killed. We have drafted youths for that purpose several times in our history, most recently during the Vietnam War. Often, we have ended up drafting youth with no prior weapons training or experience and put them on the front line where life expectencies have been extremely short. Today, many of the armed youth we send to foreign countries are expected to tell friend from foe in a harsh and confusing environment where they often do not even know the local language.
It is a harsh disjunction in our society that we force this age group to bear the greatest burden for preservation of our freedoms and implementation of our foreign policy but constantly profess that we (categorically) cannot trust them. It is possible, of course, that some youth may be trusted and some may not, some mature early and some mature late. Certainly we do not accept all recruits into the armed forces, but this is not what is being suggested and promoted. Instead, it is stated that keeping guns away from all youth because of statistical risk will make us all safer and the situation is likened to regulation of alcohol and minors. Without commenting on the effectively national drinking age and how it was accomplished, it should be pointed out that firearm ownership, for those who wish to possess them lawfully, is considered a fundamental right of citizenship and drinking alcohol is not accorded the same status. From a rights-based perspective, it is hard to elucidate why an 19-year-old adult, for instance, has less of a right or potential need for self-defense than a 21-year old adult. It should also be clear that male and female youth mature differently (and face different threat environments), that gun safety training, circumstances, and criminal tendencies differ markedly by region and population density, by class, by culture, and many other factors. A one-size-fits all solution is easy to suggest from a comfortable statistical distance but hard to implement fairly when presented with vastly different individuals and circumstances.
It is also not clear how much of the instability of this age class is based soley on physical age and how much on inexperience and a need to both make mistakes and observe peers ruining their lives in order to become a responsible adult. At some point, removing responsibility from the young will simply result in older children. Full adulthood need not hit all at once on an arbitrary birthday, but rights and duties should be kept balanced to the extent possible. We need to have a vigorous national debate on what precisely adulthood means and what it confers.
A much more sensible (and moral) approach might be to connect youth right to keep and bear arms with appropriate programs or training, such as military/national guard/reserve or law enforcement service, police or sheriff's auxiliaries, ROTC, civilian marksmanship programs, concealed carry training, and so forth. The requirements need not and should not be onerous. Most youth will not care enough about (lawfully) owning or carrying guns to go through a CCW application process, take required training, and pay the fee, but the few that do would be allowed to exercise their right in a responsible manner. At the same time, wide availability of training programs for youth will ensure that they are better equipped when they are called to military service. As General Leonard Woods (an army base near here is named after him) demonstrated just prior to World War I, a small amount of civilian training in military skills pays large dividends when we go to war. Once again, it is an enumerated responsibility of government to ensure that the citizenry receives military training, so there should be little objection from the Consitutional perspective. For that matter, many states have age-graduated processes for drivers' licenses which couple full adult licenses to drivers' education requirements.
The paper does present one specific problem which is quite serious, specifically, how to handle background checks for young adults against the fact that juvenile felonies are expunged at 18. Clearly, a young adult just turned 18 will not have an adult criminal record. Juvenile records are expunged for a good reason. Crimes committed as a juvenile were, by definition, not committed with the mature consideration or legal effect of adults. Often, juvenile crimes may be dictated by factors which a child cannot control, such as their home environment, and family circumstaces to escape crime or avoid conflict. Keeping these records allows bad upbringing or bad circumstances to ruin an entire adult life. Most states have processes by which juveniles committing crimes in aggravated circumstances may be tried and sentenced as adults, but this is a mechanism which must be used sparingly. Young adults must be allowed to choose their behavior as adults, even if this exposes society to risk.
A possible solution might be to allow records of juvenile crimes committed from, say 15-18 to be expunged at 21 or for certain juvenile crimes to flag firearms or CCW checks prior to age 21, creating a probationary period for violent juvenile offenders. The downside in any case is that young adults who were juvenile offenders are often at greater risk of the kind of violence which might reasonably require self-defense (from, say, felonius family members or community drug culture). If they are to be denied the opportunity to defend themselves, the community must be prepared to take responsibility for and provide protection to those attempting to assert responsibility. Halfway houses and other shared living arrangements for troubled youths can help serve this need but it is important to get at-risk urban youth out of their former circumstances and give them enough rope to make new choices. Attempting to recover at-risk youth places the community at risk--- many attempted rehabilitations will fail--- but the costs of simply abandoning youth, stripping them of responsibility and opportunity, are far worse, morally and practically.
Another tricky situation is that the hodgepodge of youth-related laws is often mutually contradictory. In Missouri, it is technically possible for youth to get a CCW prior to 21 in connection with, for instance, active-duty military service, but it is not legal for them to buy a handgun from an FFL or for any private individual to sell or convey them a handgun. This creates practical difficulties for organizations such as the LCS Auxiliary to make use of persons in that age category even if they obtain the required training, pass required checks, and demonstrate sufficient responsibility to be enlisted or commissioned.
Gun Control and Government:
The Hopkins paper spends considerable effort to categorize and justify whole categories of registrations, checks, and regulations it recommends for keeping guns away from criminals, even though, as stated above, firearms offenders once arrested are seldom punished, and even though centralized data and federal police have been misused to persecute protesters, civil-rights advocates, disidents, and so forth in the past both here and abroad (the Watergate scandal and the Hoover FBI, McCarthyism, as ready examples). Regulatory power is disbursed in our country intentionally and with reason. Past abuses have resulted in changes to our laws and process, including FISA, Miranda Rights, Posse Comitatus, and our own Bill of Rights. The battles at Lexington and Concord at the begining of our Revolution were fought over government attempts to seize private arms stores. Many historical and modern global examples exist of places where gun control was used as a tool in the establishment of tyranny and in the commission of bloody reprisals against whole classes of people. The Drug War has resulted in numbers of our law enforcement "on the take" as well as drug dealers with badges hardly distinguishable from the rest of the criminals. Anti-government anarchist paranoia is not justified by these facts, but neither is belief in a benificient bureaucracy. We have a society of checks and balances and where citizen ownership of essential processes (trial-by-jury, grand juries, elected Sheriff's, citizen soldiers, RTKBA to name a few) is considered fundamental to our way of life. The process is clearly messy but also clearly necessary.
The paper makes this startling statement in defense of its position on more stringent control:
Stronger gun laws will lead to better enforcement of those laws.
which defies both logic and experience. It also states:
Federal law and laws in many states prohibit firearm possession by individuals who were either previously convicted of a misdemeanor for domestic violence, or currently subject to a restraining order sought by a current or former intimate partner. Enforcement of these laws
appears to be spotty, and could be improved through proactive efforts to disarm prohibited IPV offenders.
directly advocating Fourth-Amendement-violating search-and-seizures for people convicted of previous misdemeanors or merely accused by a former partner (sufficient for a temporary restraining order). It also separately states that those with prior violent arrests (but no convictions) are statistically "just as dangerous" as those who have been convicted of misdemeanors. Maybe in some world of statistical purity, treating people as categories irrespective of their individual behavior as indicated by defined judicial process and their rights as human beings makes us "safer", but it is hard to say how it makes us better people.
It is stated that Right-To-Carry laws and shall-issue permit processes "do not make use safer", that, statistically, not having a criminal background does not "make one law-abiding" for purposes of the RTKBA. It should be noted that many states recently went to Shall-Issue processes precisely because May-Issue permit issuance was subject to politicalization, corruption, and abuse. Allowing issuance of permits or ownership of firearms to devolve to the whim of those enforcing it is by definition arbitrary and capricious. Shall-Issue processes or Right-To-Carry are required to clearly define and follow a set process for issuance of permits or for gun ownership, the exact requirements for which vary from state to state. Again, by definition and according to a rights-based perspective, anyone who has not had their rights restricted through due process is entitled to the exercise of that right. I believe that many of the statistics presented in the defense of arbitrary restriction are flawed or slanted, but that is irrelevant to the question of what someone is entitled to do as a mere consequence of being a legal and presumptively law-abiding adult.
Far from its initial reassurance that gun-control policy is not aimed at disarming law-abiding adults, the paper ends by narrowing the definition of law-abiding to those who are innocent of a statistical pre-crime association with a future potential for crime. It is precisely this verbal sleight-of-hand which causes mid-westerners such as myself to "cling to their Bibles and their guns for comfort".
As a matter of Auxiliary policy, a Shall-Issue CCW process combined with Consitutionally-protected Open Carry such as we now have in Missouri meets the requirements of our mission and is something we can officially support. A number of combinations of alternative policies might also pass muster given clear guidelines, reasonable requirements able to be met by most non-prohibited citizens, and consistent implementation. No policy based on actuarial concerns of statistical safety or arbitrary concerns that some "might someday offend" rather than on adjudicated individual behavior meets that test.
In any case, given the Right To Keep and Bear Arms, it is of broad public interest to encourage as many people as possible to receive adequate practical, moral, and legal training to do so correctly, justly, and effectively and to develop the leadership potential of as many people as possible prior to the needs of circumstance. Vigorous public debate on firearms policy and justified use of force is also necessary, but the Natural Rights underpinnings of our legal and moral system, enshrined in our US and state Constitutions must be well-represented in that debate.