In this Special Feature, the Fog of Policy examines the facts and myths surrounding gun death and gun control in modern-day America. Click here for a downloadable version of this report.
The police officer smiled and handed me a bucket with a revolver and thirty loose rounds of ammunition. Outside, it was dusk and the snow was falling sideways.
“This will be fun,” he volunteered with a grin as Walker, Texas Ranger played in the background. “It’s not every day you get to shoot in a snowstorm.”
That’s for sure.
I had come to the Boston Police firing range on Moon Island so that I could demonstrate to the city that I know how to safely operate a handgun. The “Moon Island” moniker struck me as quaint, but since no one had mentioned a ferry, I didn’t expect much in the way of water. This is Boston after all, where “Back Bay” isn’t a bay, but rather a posh neighborhood between the Boston Common and Fenway Park. Fumbling with a list of directions, I crawled my way through the snow in a rental car. Eventually, I found myself on a man-made land bridge just wide enough to accommodate two traffic lanes. Three thousand feet out into Boston Harbor I came to Moon Island. It must be beautiful in the summer. In mid December, it was wet, windy, and frozen.
If Moon Island turned out to be an actual island, the range didn’t turn out to be much of a range. Instead, it was little more than a few lines painted on the asphalt outside of the building that housed the officers and their equipment. A dozen targets were planted into the side of a hill and a handful of elevated lights gave you a little something to see by. The officer in charge informed us that, given the weather, he’d allow us to wear gloves.
It was a tempting offer, but this was only my third time handling a revolver and shooting with gloves wasn’t in my repertoire of tricks. At his instruction, I and five other hopeful applicants went to the firing line, took a knee, loaded our weapons, stood, took aim, and fired. After the first reload, I could no longer feel my fingers.
* * *
Americans are a unique lot – and nowhere is this clearer than in our relationship with guns. Take, for example, the belief that owning and carrying a firearm constitutes a basic political right. It’s a belief that is largely unintelligible to people in other countries, but it’s one that a lot of Americans hold dearly. It’s even written into the Constitution. Even so, large swaths of the country, by and large, don’t understand it. Throw in extraordinary levels of violent crime and gun violence, and the result is a debate about gun control that is fiendishly difficult to make sense of.
Between January 8, 2011, when Representative Gabby Giffords was shot in the head while attending a political event in Tucson, AZ, and December 14, 2012, when twenty children and six adults were shot and killed at Sandy Hook, there were 10 mass shooting events in the United States. These ranged from a highly publicized shooting at a premiere of The Dark Knight Rises in Aurora, CO to the largely ignored events that transpired in Seattle, WA, on May 29, 2012, when Ian Stawicki opened fire in a cafe and killed five people. Later, after a city-wide manhunt, Stawicki shot and killed himself.
A lot of people, including President Obama, thought that the political wave was turning. There was a sense that the Congress would pass significant gun control legislation; judging from the run on ammunition and weapons that followed, a lot of gun owners shared that political analysis. In the end, not much happened.
Despite being pilloried by Second Amendment advocates as “the most anti-gun President ever to occupy the Oval Office,” President Obama has actually only signed one piece of gun-related legislation, making it legal for gun owners to carry firearms in national parks, as well as legalizing the transport of secured firearms on Amtrak trains. That’s it.
In the meantime, a few states have passed stricter gun-control laws, while more states have moved to relax their regulations. For gun-control advocates, many of whom thought that they had finally gained the upper hand, some of these reversals have been deeply mystifying. One indicator of how little political ground gun-control advocates have really won came in February, when Senator Rand Paul introduced an amendment that would have overturned a federal ban on guns in post offices. The relevant committee voted the amendment down, but barely.
As is the case with a lot of issues, the debate on guns isn’t short on simple narratives, heroes, and villains. Gun-control advocates circulate stories highlighting the evils of guns, while Second Amendment advocates swap stories that reaffirm their own beliefs. What there isn’t a whole lot of is meaningful dialogue. As you’ll see, this is largely because there isn’t a whole lot of trust and even less mutual understanding. The gun-control movement has its roots in the sort of Democratic strongholds where hunting and target shooting are rare, where wildlife poses few threats, and where the police are expected to respond relatively quickly. Conversely, the Second Amendment advocates draw their political strength from parts of the country that rarely experience gang violence.
Gun-control laws in Massachusetts are famously (or infamously) strict, and Boston layers its own restrictions on top of that. It also has some of the lowest gun-ownership and gun-violence rates in the country. Ask a lot of gun-control advocates, and they’ll tell you: Massachusetts is a model. Ask a lot of Second Amendment advocates and they’ll tell you that being a gun-owner in Massachusetts is an unnecessary hassle. To me, it looked like a good opportunity to get some first-hand experience, so I set out to learn more about the process by applying for a gun license.
I’ll admit that I started the process with some personal bias, which I’ll get to later. In the end, I changed my mind about some things and not about others. After reading this report, I suspect that you’ll agree with me on some things and not on others. But the most important thing I learned, and the thing I hope that readers will take away from this, is that despite what activists on both sides would have you believe, the issues surrounding guns are fiendishly complicated.
There was a lot to figure out, starting with:
What do the laws say about owning and carrying a gun?
In Massachusetts, it is illegal to purchase or posses a firearm of any kind without a proper license. In order to obtain a license, you first have to take a state-mandated basic firearm safety course. Then you have to file an application at your town’s police headquarters, which involves a criminal background check, a set of fingerprints, and possibly an interview.
There are three basic firearm permits. The most basic is called a Firearm Identification Card (FID), which basically allows you to own a shotgun or a rifle. (It also, incidentally, entitles you to purchase pepper spray, which is otherwise illegal in Massachusetts.) By statute, the licensing authority must issue you an FID if you are not disqualified from owning a gun because you are a felon or have an order of protection against you, or meet any other of a set list of criteria.
Then there is the “License to Carry” (LTC) – which comes both as a Class A or a Class B. Essentially, a Class B license allows you to have and keep a handgun at home, and a Class A license allows you to carry that gun on your person. According to Massachusetts state law, the licensing authority ‘may issue’ an LTC to ‘appropriate persons’; of course, they also may not. It’s up to the discretion of the local chief of police. And there’s another wrinkle: LTCs are often issued with specified restrictions. As a result, few police departments issue Class B licenses, they just issue Class A licenses that are effectively restricted to target shooting – in effect turning a Class A license into a Class B.
A 2013 report in the Boston Globe catalogued that there are dramatic disparities, from police department to police department, in how cities treat LTC applicants. Boston, for example, essentially has a policy of denying unrestricted Class A licenses, while other towns are clear about their willingness to automatically issue them. Once issued, licenses are good throughout the state. In effect, this means that the city of Boston prohibits its residents from carrying a firearm anywhere in the commonwealth, while other cities and towns regularly license their residents to carry firearms throughout the commonwealth – including in Boston. To avoid such disparities, a lot of states prohibit local municipalities from enacting their own gun-control measures.
Federal gun laws set the broad guidelines of what is and isn’t legal nationally. Mostly, federal laws prohibit classes of people from owning firearms and set requirements for Federal Firearms Licensed dealers (FFLs). There is, however, no requirement that a person buy a gun from an FFL, and face-to-face private sales are a significant part of the gun market. Additionally, federal law prohibits guns from certain areas – schools, post offices, etc. – and bans guns that are invisible to a metal detector. There are also special provisions for owning machine guns, which aren’t actually banned outright.
Beyond that, there isn’t much: federal funding for research on gun ownership or violence has been essentially eliminated by Congress, and there’s a law that makes it a crime to keep a federal gun registry. A 1986 law – the Firearms Owners Protection Act (FOPA) – requires states to allow legally-licensed gun owners to travel through their jurisdictions.
Within that framework, states take a variety of different approaches. Some states have storage requirements, others do not. Some states make it harder to carry a concealed firearm, while others make it harder to carry a firearm in the open. Some states ban one or the other outright. Additionally, some states are very friendly towards people licensed in other states, while other states (I’m looking at you, Massachusetts) don’t recognize any license issued elsewhere. Additionally, many states also issue licenses to out-of-state applicants.
Most states issue gun licenses of one style or another, but not all states require licensing. Some states have what is called ‘Constitutional Carry’ – a term which reflects the view that the Second Amendment doesn’t allow any restrictions on owning or carrying guns. You might think that you already know which states have Constitutional Carry, but at least one example is likely to surprise you: Vermont. The reliably Democratic state, which sent a self-declared socialist to the Senate, allows any non-prohibited person to carry a gun, open or concealed, without the need of a permit, even if that person is as young as 16. Arkansas, Wyoming, Alaska, and Arizona have also adopted Constitutional Carry.
The remaining states are split into two groups: ‘shall-issue’ and ‘may-issue’. In shall-issue states, the licensing authority is required to issue a permit to a person that passes a criminal background check and isn’t disqualified by statute. In a may-issue state, the licensing authority can use their own discretion to determine suitability. Hawaii, California, Maryland, New Jersey, New York, Massachusetts, and Rhode Island are may-issue states. So are, technically, Delaware and Connecticut – though they operate on a more shall-issue footing. The remaining 36 states are shall-issue. This leaves out local jurisdictions – such as New York City and Washington, D.C., which have more-restrictive regulations. In recent years, these have come under legal pressure from pro-gun advocates. In 2010, the Supreme Court struck down Chicago’s blanket prohibition of handguns. More recently, a federal district court invalidated San Diego’s gun control regime.
With all this state-to-state variation, you’d expect that it wouldn’t be too hard to answer the next question:
Do more guns lead to more deaths?
Perhaps the most important distinctions that need to be made when looking at gun deaths are between homicides, suicides, and accidents. Here’s an example of how gun deaths are often reported by gun control advocates:
What that leaves out is the fact that, in any given year, more than half of all gun deaths are comprised of intentional suicides. Of all suicides, approximately half are committed with a firearm. So, an obvious question is whether more guns lead to more suicides. One line of argument goes like this: suicide attempts are often impulsive, and if you survive an attempted suicide, then your chances of never committing suicide are encouraging. But a lot hinges on the method that a person uses to make an attempt: simply put, guns are a more effective means of suicide than the alternatives. In this way, guns shorten the distance between suicidal ideation and death, and diminish the opportunity for medical intervention – therefore driving up the suicide rate.
The statistical data on this is suggestive; various studies have found a relationship between firearm prevalence and suicide rates. This seems to be especially true for young people. Higher levels of gun-ownership seem to lead to higher levels of suicide deaths, but not to higher levels of suicide attempts. However, there are also good reasons for researcher modesty.
First, suicide is not a very evenly-distributed phenomenon: men are more than five times as likely to commit suicide as women, and whites are almost three times as likely to commit suicide than Hispanics, Asians, or African-Americans. There is also regional variation: the mountain west has much higher suicide rates than the gun-loving south. Whatever the effect of guns on suicide rates, they’re clearly acting on top of larger underlying factors.
Suicide is both a private and a public tragedy – but it’s hard not to conclude that the conflation of the suicide and homicide numbers confuse the public debate over guns. I don’t think most Americans would disagree with the idea that the government has a much less compelling argument when it’s trying to make laws to keep us safe from ourselves than when it’s trying to make laws to keep us safe from our neighbors. Philosophically, morally, and legally, the arguments for gun control are very different when the premise is suicide than when the premise is homicide, but gun-control advocates routinely conflate the two.
What about accidents? Here, we can be a little clearer. Deaths resulting from gun accidents are rare: fewer than two percent of all gun deaths in a given year.
Even so, a report by The New York Times concluded that – for a host of bureaucratic reasons – fatal gun accidents involving children are sometimes erroneously tallied as either ‘homicides’ or ‘suicides’. Their report suggests that this leads to a significant undercount of fatal gun accidents among children. (The total number of gun deaths doesn’t change, but because the number of accidents are so much lower than the number of homicides or suicides, even a relatively small error rate can have a significant impact on the accident rate while not making much of a difference in the other two.)
Anecdotally, there seem to be two particularly risky periods: the first is when toddlers gain the manual dexterity to operate a trigger but are incapable of comprehending the danger involved, and the second happens when young teens gain enough familiarity with firearms to believe that they know how to operate them safely. In the latter case, a typical story goes like this: an unattended minor finds a gun, removes the magazine, fails to realize that there is still a round in the chamber, points it at himself or a friend, and pulls the trigger. Again, we see a gendered difference: boys are 20 times likelier to be the shooter and five times likelier to be the victim.
I want to be clear: millions of children live around firearms and participate in firearm activities without injury every year. Overall, the risk of accidental death is quite low – even if we factor in the possibility of undercounting, the accidental gun death of a child is only about as likely as the death of a child as a result of the flu and more than a hundred times less likely than accidental death by any other means. But the death of a child is a particularly tragic event – perhaps made even more so because it so rare.
The remaining category of firearm death is the one that most readily comes to mind and the one that drives most of the policy debate: homicide. Unfortunately, the data here is much less clear. Despite frequent press reports claiming that one study or another has found a relationship between gun prevalence and gun homicide, there are good reasons to be skeptical.
The first is that, as we’ve already discussed, a lot of these studies look at total gun deaths, not homicides. Because there’s reliable data on the total number of homicides, that’s an easy problem to look out for. But the second problem is much more slippery: nobody knows how to accurately measure gun prevalence.
At first blush, that might seem like a surprising statement – after all, you’ve probably heard that gun ownership is down in the United States over the last twenty years. Surely, those numbers have to come from somewhere? They do: they come from surveys.
The gold standard for estimating the prevalence of gun ownership is the General Social Survey, which has been asking a statistically representative sample of American households whether or not they posses a firearm at home since 1974. This approach almost certainly produces an undercount, and it almost certainly undercounts precisely those guns that we should expect are most likely to lead to homicides: illegal guns.
Put yourself in the shoes of someone who owns a gun illegally in Chicago or Philadelphia or, for that matter, upstate New York. Suddenly, your phone rings and someone on the other end wants you to tell them whether or not you have a gun at home. How would you answer? And if you’re an underage gang member, it’s even worse: the head of household will probably be the one answering questions, and they’ll probably sincerely provide an incorrect answer.
This is an obvious problem and researchers have known about it for decades. For example, after the 1994 Assault Weapons Ban was enacted, there was a precipitous decrease in the number of Republican households that reported owning a gun. The drop was too dramatic and isolated to be credible; instead, it probably reflected a decreased willingness to disclose that information to a pollster. Generally, researchers have responded to this challenge in one of two ways. The first is to accept that the survey results are an undercount but to maintain that they are consistent in their undercounting from state to state. On its face, this is unconvincing. For example, it is exceedingly difficult to own a gun illegally in Vermont, while it is exceedingly difficult to own a gun legally in Chicago. That alone should produce uneven state-to-state deviation between the measured rate of gun prevalence and the true rate.
A second approach has been to try to develop a proxy – a second and easily measured variable that correlates with gun ownership. These have ranged from the bizarre – the number of subscriptions to Guns And Ammo, presumably because it is a known favorite of criminals – to the creative. The most widely accepted proxy is simply the percentage of suicides in a state that are committed with a firearm (FS/S).
The problem now becomes one of how to validate the proxy. That is, how do you verify that there’s a correlation between the thing you can measure and the thing you want to measure? One approach has been to demonstrate that FS/S correlates strongly with the results of high-quality surveys, but this doesn’t tell us much. In fact, you might argue that it’s a knock against FS/S, since we’re already skeptical of the contention that the survey results are very reliable. The truth is that, if you can’t measure the variable you’re interested in at all, then you’re at a bit of an impasse.
Largely, researchers have adopted the FS/S proxy because it is the best they have and because it produces findings that are intuitively appealing. There are, in truth, good reasons to accept that it is quite good – we just can’t prove it. That’s enticing, but it isn’t science.
So, with all that said, what can we conclude from the evidence: do more guns lead to more homicides? In the simplest terms: no. In 1981 there were 23,361 total homicides, 15,089 of which were firearm related; in 2010 there were 16,259 total homicides, and 11,078 of those were firearm related. During the same period, the nation’s population grew by 35%. In 2007, there were an estimated 89 civilian firearms per 100 people in the United States. It simply isn’t believable that the drop in the homicide rate over that time – which the country is largely unaware of – was due to a decrease in the country’s gun supply.
But that isn’t what people typically mean, is it? More often, what people mean to ask is whether or not more guns lead to more homicides, after you’ve accounted for other factors. Here, the answer is a qualified yes. The best recent study was released in 2013 by a group of researchers publishing in the American Journal of Public Health and it found a positive relationship between gun prevalence (as measured by FS/S) and homicides. But again, it’s worth looking at some of the details.
Their model looked at gun prevalence and homicide rates for each of the 50 states, but there are good reasons to be wary of this approach. To be brief about it, state borders aren’t the natural boundaries for where gun violence happens. For example, Chicago and the rest of Illinois are pretty obviously dissimilar – so are Los Angeles and Orange County or New York City and the Catskills. But a state-by-state analysis lumps such areas together and degrades the reliability of the results.
There are other ways in which lumping all the data together can lead to less clarity on an issue. Consider, for example, what happens if we disaggregate the data and look at how homicide has affected different age and racial groups over time:
What we see is that the wave of violent crime that peaked in the early 1990s was not a randomly distributed phenomenon; rather, homicide peaked at that time because there was a surge in the number of young black men who were killed with firearms.
Which raises the question, what exactly does it mean to control for all other variables when we’re talking about something as complex as homicide? Conceptually, it means that even though State A has a higher (measured) gun ownership rate and a lower homicide rate than State B, you have to allow for the fact that State A is less urban, wealthier, etc. Fair enough, but now you’re not just telling a story about firearms – you’re also telling a story about urbanization, wealth, and so on.
As a thinking aid, consider that this same study showed that – after controlling for the amount of income disparity, the amount of violent crime, the amount of nonviolent crime, and the incarceration rate – the percentage of black people in a state had a higher impact on the homicide rate than the (measured) gun ownership rate. I assume you’re not ready to tell a simple story about black people, so maybe we shouldn’t tell too simple a story about guns either.
Let’s step back from the data for a second. Bottom line, what do we know?
First, we know that greater access to guns leads to more suicides, but that this is an unevenly distributed effect. Second, we know that greater access to guns leads to more fatal accidents, but that these are thankfully few. Third, we know that greater and easier access to guns likely lead to more fatal crimes of passion.
We also know that a large number of urban centers are experiencing high levels of gun violence and that, in these places, the easy access that criminals have to handguns is a major contributing factor. Overwhelmingly, vocal Second Amendment advocates spend much more time talking about how that isn’t an argument for more gun control than they spend thinking about how they might productively help their fellow Americans deal with the violence they encounter every day. I don’t think that’s a problem that better studies can help us out with.
What we don’t know is what the independent effect of gun prevalence is on the homicide rate. Gun-control advocates have an intuitive sense of what that effect is, and pro-gun advocates, informed by different values and different intuitions, reach a different conclusion. Neither side can prove its case. In the end, they’re probably both partially right: some people are perfectly responsible gun owners, while others are a threat to themselves and their neighbors. Which is how we also know that criminals having easy access to guns is bad for society. In turn, that leads the reasonable person to ask:
How do criminals get guns?
A common idea of where illegal guns come from is that they are first purchased from a gun shop, by someone who is legally allowed to do so, for the purpose of transferring them to criminals – which is itself a crime. Such purchasers are referred to as ‘straw-purchasers’. From there, they are trafficked from states with lax gun regulation to states with strict gun regulation, where they are sold to criminals. The term ‘iron-pipeline’ has been coined by some to describe the I-95 corridor, supposedly for the role it plays in supplying the Northeast with illegal guns from Southern states.
To my surprise, that turns out to not be a major part of the story. First, if gun traffickers are active in large numbers, then law enforcement would seem to be preternaturally inept at arresting them. Second, if legally purchased guns were being resold on the street for profit, then we should expect street prices to be higher than legal retail prices – the cost of purchase, plus the cost of transfer, plus the price of offsetting the risk incurred, plus a profit margin. That’s the opposite of what we see: street prices are usually lower than retail prices.
What about the infamous gun-show loophole? That’s a tougher nut to crack. The truth is that the evidence regarding the origin of illegal firearms is almost as bad as the data on illegal gun prevalence. Survey data, and the same price argument made above, seem to indicate that gunshows are also a small part of the story – though it’s hard to say much with confidence. What is clear is that, in most states, gunshows provide an easy opportunity for a determined person, who is disqualified from owning a firearm, to purchase one. Whether that actually translates into easier gun availability for dangerous criminals is something we simply don’t know.
So far, legal gun owners might be feeling pretty buoyed by the fact that the boogeymen of gun-control advocates – gun runners and gun shows – don’t bear much of the responsibility for illegal guns. The problem is that this leaves only one significant source: legal gun owners.
First, straw-purchasers are an important source of illegal guns – it’s just that most straw-purchasers buy guns, not as part of an ongoing criminal enterprise, but as a favor to someone they know who is otherwise disqualified. Similarly, private sales are exempted from most meaningful regulation on firearm transfers and are, not surprisingly, also an important source of illegally owned guns.
Lastly, most illegal guns are likely the result of legal gun owners having their guns stolen – which is consistent with the lower street value of firearms relative to the retail price. In most states, gun owners are not required to report gun loss or theft.
Intriguingly, the important role that gun theft plays in the availability of illegal guns actually helps strengthen the relationship between legal gun and illegal gun prevalence, since a higher number of legal guns makes it likelier that a gun will be stolen during a break in. If this is the case, then it’s possible that FS/S, which should be a reliable metric of legally owned guns, might be more informative about the prevalence of illegal guns than my previous discussion acknowledged. This is conjecture, but it’s worth mentioning – specially after all the criticism that I directed at the state of the research in the previous section.
At this point, we’ve covered many of the important facts and doubts that should inform the gun control debate – except for the question that a veto-wielding number of Americans consider most important:
Is owning & carrying a gun a basic human right?
In the 1972 presidential election, Richard Nixon won 49 states. Pauline Kael, a film critic for The New Yorker, is remembered as observing that she couldn’t believe it – after all, she didn’t know anyone who had voted for Nixon. Ms. Kael never quite said that, but it doesn’t matter: it became a shorthand for political and cultural insulation.
I was reminded of that as I applied for my firearm license. As I’ve mentioned, Massachusetts has a very low gun ownership rate and some of the country’s strictest gun control laws. My experiences and friendships reflect that. Before starting down this road, I knew more victims of gun violence than I knew legal gun owners. The word ‘gun’ was a shorthand for ‘violence’.
The people I actually met, at the safety courses I’ve attended as well as at the gun range, had a decisively different outlook. And I was surprised by how diverse the other class members were. There were noticeably few African-Americans, but there were a lot of women and immigrants, as well as the appearance of class diversity (these things are dangerous to judge off hand). Then, I was surprised by my own surprise at the diversity. What did I expect and why did I expect it? It was a reminder of how easy it is to pigeonhole our neighbors.
But there was also some culture shock. The second class I attended opened with the instructor informing us that he considered the legal requirement of that class to be an infringement on our Constitutional rights. (Of course, that didn’t get us a discount.) There’s an awful lot of space between that view and the views I’m more frequently exposed to.
The argument that owning and carrying a firearm is a basic human right is not rare in the United States, but it is decisively foreign elsewhere. Yet, many Americans have a charming disregard for what other people think should and shouldn’t be a right, so it’s worth thinking about what the argument in favor of it looks like.
Put simply, pro-gun advocates maintain that self-defense is an essential and inalienable right. If that’s so, then access to the means of self-defense must also be a constituent element of the right to self-defense. Where guns fit into the whole thing is, from that point onwards, pretty obvious.
Detractors maintain, largely, that reasonable limits on gun ownership are a protection of, not the right to self-defense, but of rather the right to an expectation of safety. As far as I can tell, that’s where the philosophical rub is: do you see self-defense or safety as a more basic right? Pro-gun advocates tend to subscribe to the notion that ‘negative rights’ – the right to be free from certain government actions – are more important than ‘positive rights’ – the right of the government to do something for you. The reason for that belief is the fact that the government always has the capacity not to do things, so a negative right is a real guarantee; whereas a positive right is bounded by the capacity of the government to deliver. For example, a positive right to unicorns is meaningless in a more profound way than is a negative right to not have your unicorns confiscated. (Presumably, the government is not confiscating your unicorns right now.)
Another way to think about this is to remember the Enlightenment idea of ‘the social contract’ – the notion that being a member of society means trading away your individual freedoms in exchange for the government’s protection of your remaining rights. For example, I’ll surrender my freedom to take your television if the government guarantees that you won’t take mine. If you do, then the government guarantees me a form a redress.
Pro-gun advocates would argue that the only justifiable reason to surrender your right to self-defense would be a governmental guarantee of your safety. Since the government cannot fully grant that guarantee – and since, in the event of your death, redress becomes moot – then it cannot ask you to surrender the means by which, in the final instance, you might protect yourself.
And the truth is that many American jurisdictions have gone as far as the Constitution allows them in banning people from carrying any sort of self-defense weapon. Half a dozen states, for example, prohibit people from carrying a stun gun. Many others place significant restrictions on your ability to carry pepper spray. Most ban people from carrying a baton (or even a baseball bat) for personal protection. Some cities in Massachusetts – and across the nation – prohibit knives longer than 2.5 inches. Such laws make it effectively impossible for people to exercise any meaningful prerogative to defend themselves.
The exception, of course, is guns, where the Second Amendment places limits on what jurisdictions can and cannot do. In the end, I don’t expect that we’ll ever bridge the gap that separates people who think of personal self-defense as a practical concern and people who regard that idea to be as quaint as tricornered hats. But the fact remains that a lot of Americans do think of their right to own guns in precisely those terms, and the Constitution lends them a significant amount of legal and philosophical support.
Such people regard infringements on gun ownership with the same attitude that other people look at limits on free speech or the freedom of religion. Such rights are generally not subject to much in the way of cost-benefit analysis. Your right to vote, for example, is sacrosanct – and the American left has been incensed for years over attempts to subject that right to cumbersome regulation. That’s how the most dug-in elements of the pro-gun community view their cause. Gun-control advocates don’t have to accept it, but their inability to calibrate their political strategy to that reality is a big part of the answer to the next question:
Why are gun control advocates losing?
After the Sandy Hook shooting in 2012, some Democratic legislators started floating the idea of reviving the Federal Assault Weapons Ban (AWB). When the ban was passed in 1994, the bill was written with a 10-year sunset provision, which required it to be reauthorized in 2004. That never happened.
For more than 20 years, conventional Beltway wisdom has held that the AWB cost the Democrats control of the House during the 1994 midterm elections. In turn, that narrative has cemented the role of the NRA as an organization that no politician from a swing district dare cross. By 2008, that narrative had begun to fray and Democrats were again ready to make a push. On February 25, 2009, Attorney General Eric Holder announced that the Obama Administration was prepared to push for the ban to be reinstated. Those efforts went nowhere. After the Sandy Hook shootings, the Obama Administration tried again.
Since the act expired in 2004, the AWB has been a touchstone for both proponents and critics of gun control. For a time, a prominent billboard behind Fenway Park in Boston displayed a digital tally of people killed by guns since the Sandy Hook shooting, and demanded that the AWB be reinstated. Meanwhile, the poster child for ‘military-styled’ rifles, the AR-15, remains the best-selling rifle in the United States.
You’d assume that if gun-control advocates are going to chose the AWB as the hill they’re willing to die on, that they’d have good reasons for doing so. So it’s worth taking a look at what the AWB actually prohibits: rifles with a detachable magazine and a pistol grip may not have an adjustable stock, flash suppressor, grenade launcher, or bayonet mount.
To put it bluntly, the AWB doesn’t prohibit the kind of scary-looking rifles that proponents assume it prohibits. In fact, at the time of the Sandy Hook shootings, Connecticut had in place its own version of the AWB, modeled on the 1994 federal law. The Bushmaster rifle that was used that day complied with that Connecticut law.
More broadly, the AWB and the political debate around it is a good example of why gun-control proponents are losing the fight: the tendency to expend political capital in costly, but ultimately meaningless ways. Another example is the push in California for a technology called ‘micro-stamping‘. The basic idea is that the firing pin on a firearm can be modified to leave a unique identifier on the casing of a round. At a crime scene, that round can be used to trace the bullet back to the gun that was used.
The problem is that the technology is unproven, easy to circumvent, and incompatible with a common type of firearm used during the commission of a crime: revolvers. (It also wouldn’t be very useful without a gun registry.) That didn’t stop California from passing a law requiring that the technology be implemented by gun manufacturers, which in turn has led gun manufacturers to pull out of California.
Similarly, New Jersey has passed a law requiring all guns in the state to be equipped with technology that renders the gun inoperative if anyone but the legal owner attempts to fire it. The problem is that, outside of Hollywood, such technology is in its infancy. While the law’s provision doesn’t go into effect until the state certifies that the technology is ready for prime time, the premature nature of the bill doesn’t encourage gun owners that the state’s certification won’t also come early.
Both of these examples are similar to the debacle that Smith & Wesson (S&W) experienced at the end of the Clinton Administration. In 1999, S&W voluntarily entered into an agreement to equip all of its guns with an internal lock that required a key to make the weapon ready to fire. The result was an NRA-led boycott which contributed to a 40% drop in sales. In the end, the company was sold – back into American hands, as it happens – and the new ownership renounced the agreement.
Objections to the S&W internal lock were both principled and practical. Not only did gun-advocates reject the idea of government influence over weapon design, but there was also a fear that the internal lock could malfunction and spontaneously engage. To understand that fear, you have to appreciate the fact that gun owners are a risk-adverse bunch when it comes to performance: if you own a gun so that it might save your life in a pinch, then your tolerance for malfunction is quite low. This was particularly true for S&W customers, who were often already buying revolvers for their increased reliability.
Government-driven innovation in pistol design from a company that has been manufacturing revolvers since 1852 wasn’t a welcomed development.
These sort of episodes have reinforced in the gun community the idea that gun-control advocates don’t understand what they’re trying to regulate. More often than not, gun regulation seems to be predicated on a fantasy understanding of guns and how they operate, rather than on more down-to-earth concerns. Take, for example, the photogenic ‘silencer’. In Hollywood, silencers render a firearm silent and are a favorite accessory for hitmen. In the backwoods, ‘suppressors’ (as they’re otherwise known) play a different role. For one, they can help promote accuracy. Second, they can help ward off hearing damage. Third, they make it possible to hunt without hearing protection that, I imagine, can become a bit of a nuisance. Typically, suppressors reduce the noise of a rifle shot from 160 decibels (comparable to a rock concert) to between 100 and 130 decibels (more along the lines of a car horn).
Reasonable regulation could set a required range for how much a suppressor can reduce the sound produced by a gun; instead, they’ve been banned in 10 states and are heavily taxed by the federal government. The result is a lot of frustrated hunters and injured eardrums in exchange for an almost-certainly minuscule effect on gun crime. (You can build your own ‘silencer’ at home in an afternoon.)
While many gun owners see relative ignorance of how guns operate as half of the problem, many see bad faith as the other half. Take, for example, what happened to Greg Revell. In 2005, Revell was flying from Utah to Pennsylvania with a firearm. He declared and checked his gun at the airport in Salt Lake City, but because of bad weather, his connecting flight out of Newark was cancelled. The airline offered to put him on a bus, but his luggage was delayed. When his luggage finally arrived, he took it to the hotel, returned to the airport the next morning, and attempted to declare and check his firearm for the last leg of his trip. But because New Jersey doesn’t allow out-of-state residents to posses a firearm in the state, he was reported to TSA and arrested by Port Authority Police. Law enforcement officers argued that FOPA did not apply because his overnight stay meant he was not “passing through.”
After several days in jail, Revell made bail and was released. The charges were dropped a few months later, and his weapon was finally returned in 2008.
This story is pretty well-known in certain circles and highlights one of the dangers that gun owners fear most: the discretionary power that law enforcement has to read gun laws as narrowly as possible. I mentioned earlier that some states allow for concealed-carry but not open-carry. In such states, if the outline of a gun is visible through your clothes (‘printing’) or if your gun becomes visible when you bend over to tie your shoe, it can land you in jail on a charge of ‘brandishing’.
For another example of what might be reasonably interpreted as bad faith, consider Massachusetts’ two-step process for determining which firearms may and may not be purchased by a resident of the state. Licensed dealers may only sell firearms that appear on the Approved Weapons Roster. In order to be listed on the roster, firearms must be submitted to a state-approved independent lab for safety testing. Because some small manufacturers cannot afford testing, and because others oppose participating in the system on principle, many guns that are common elsewhere are not available in Massachusetts.
In addition to being listed on the roster, however, guns must also be approved by the Attorney General (AG) through an entirely separate process. Usually, manufacturers provide notice to the AG’s office that their product complies with that office’s safety standards, and if the AG does not object, then the gun may be sold in the commonwealth. However, the AG refuses to compile a list of approved firearms – which means that there is no single place for Bay Staters to learn which guns are and are not legally available for sale. Additionally, even if a manufacturer provides notice of compliance to the AG, and even if the AG does not object and the gun consequently goes on sale, the AG might still decide at a future date to retroactively withdraw its approval. That’s what happened to Glock in 2004.
This leaves gun manufacturers with a lot of financial liability and significantly increases the hassle for gun purchasers. Of course, the state could enforce the same safety standards while streamlining the process and producing a master list of approved firearms, but it has chosen not to do so.
In countless jurisdictions, no provision of the relevant gun laws is too obscure to elicit concern from gun owners. Having to comply with regulations when you can’t count on the good faith of law enforcement has the tendency to breed a certain amount of paranoia and discourage political horse trading.
In the end, two factors work to reinforce retrenchment on behalf of gun owners. First, examples like the 1994 Assault Weapons Ban have driven home the reality that the federal government is empowered to enact broad gun restrictions on a nationwide basis. Second, places like Boston, Chicago, and Washington, D.C. – which have effectively banned average citizens from carrying firearms – serve to erode the faith that gun owners have in what the Constitution protects.
The irony is that gun owners, despite often feeling besieged and maligned, are more than capable of exercising a veto in Congress. Unable to pass federal gun-control legislation, activists have instead turned to those jurisdictions that they do control and have experimented with tighter and tighter gun-control laws, which leads Second Amendment advocates to further dig in.
One view on these state-by-state differences is that this is precisely how federalism is supposed to work. Pro-gun advocates counter that Constitutional protections are not supposed to be subject to significant state-by-state variation. But for gun-control advocates, the problem is different: state-by-state gun control laws have limited efficacy.
During one 2013 weekend in Chicago, 72 people were shot in a city with some of the country’s strictest gun laws. Since then, a series of federal court cases have invalidated the city’s ban on gun shops and have required the state to allow Chicago residents to qualify for carry permits.
Gun-control advocates have done everything they can without buy-in from the gun community, but that approach has failed and it is now being dismantled by the courts. In the past year, the gun-control community has tried to organize efforts under the assumption that there is enough latent political support for their policy agenda if they can just mobilize their base. In my opinion, that reading of the political landscape is fantasy. Instead, it’s time for them to seriously ask a new question:
What does a compromise on guns look like?
In the final analysis, political compromise hinges on what actual people out in the actual world are willing to accept. Unfortunately, this country hasn’t had a productive conversation about the role of guns in our society for a very long time. It’s difficult for me to imagine where such a conversation might lead. Yet, it might be helpful to outline, in broad terms, what a compromise might look like.
One thing that needs to happen is that gun control advocates need to find a way to move off the highly symbolic, but largely ineffective, policies they’ve pursued over the last few decades. That needs to begin with an understanding of the obvious difference between outlawing guns and removing guns. (Adultery is illegal in almost half of the states, which has proved cold comfort to many a slighted spouse.)
On February 7 of this year, a 14-year-old boy in the Boston neighborhood of Mattapan shot and killed his nine-year-old brother in an apparent accident. The incident involved an illegal gun that the older brother had acquired from a friend. The response from the local media and politicians was predictable: it’s too easy for teenagers to get illegal guns and we need stricter gun control.
The problem is that, as I’ve said over and over, Boston already has some of the strictest gun control laws in the country. From the perspective of making it harder for people to legally acquire and carry a handgun, what more could the city possibly do?
Politicians depend for their professional survival on convincing voters that they can deliver solutions to the problems that ail them. If you’re a mayor or a governor, voters don’t want to hear you say that stricter local gun laws can’t solve the local gun problem – so you keep proposing regulations way past the point of diminishing returns. In Democratic cities, that’s meant convincing voters that there’s a meaningful relationship between issuing handgun and carry permits – which the city controls – and the availability of illegal handguns.
Unfortunately, it isn’t true. In fact, the evidence of the past few decades seems to indicate that you can loosen the requirements for carry permits without increasing the number of people who own guns. Why? Because people who want to have guns in the home, which is the important driver of whether or not guns are available to the black market, can do so today with ease. Making it easier for people to carry outside of the home is unlikely to bring new buyers into the market. If anything, a gun that someone owns and carries is less likely to fall into the hands of a criminal than a gun that someone owns and leaves at home.
The requirement that people pass a criminal background check before they can purchase and carry a handgun makes common sense. If a city wants to require a safety class or a shooting test, that’s their prerogative. But using the licensing process to crack down on legal gun owners because you don’t have a way to crack down on illegal gun owners makes no sense. Cities should make sure that there’s a meaningful path for average citizens to receive the licenses they want. That would go a long way towards making gun owners more open to the idea of compromise. It’s also, quite possibly, the exact place where the courts are going to end up. Already, a federal court in California has ordered two counties to drop their requirement that applicants for carry permits provide “good cause”, reasoning that citizens who are not statutorily disqualified from carrying a handgun should face no further obstacle to permitting.
In addition, the distinction between open and concealed carry should probably be eliminated, since it serves no meaningful purpose, and states should be required to recognize each other’s permits.
I realize that these would be difficult things for gun-control advocates to give in on, but there’s no evidence that any of these policies have a significant effect on gun violence. They do, however, help to poison the conversation around guns and empower the most radical elements of the Second Amendment movement.
Similarly, I would suggest that gun-control advocates also permanently shelve the notion of an assault weapons ban. The biggest problem with the AWB is that so-called assault weapons are overwhelmingly recreational and home-defense guns. They’re expensive and they’re difficult to conceal, both of which make them of little use to criminals. The few instances where they do make an appearance, such as at Sandy Hook, tend to be high-profile but exceptionally rare – orders of magnitude more rare than the popularity of these guns with gun owners.
But there are other problems as well. The 1994 ban, for example, didn’t eliminate the type of guns that its supporters thought it targeted; instead it banned bayonet mounts and grenade launchers. The alternative is something along the lines of US Senator Dianne Feinstein’s (CA-D) proposal, which goes a step further and also eliminates the pistol grip. But now you’re in a pickle: you either have to exempt guns that are already in circulation – which number in the millions – or you have to actually go out and confiscate guns. In the first instance, you’ve just upset a lot of people and accomplished little beyond a symbolic victory. The second instance is an obvious political nonstarter.
So, what should gun-control advocates expect to get in exchange for all this? First, all gun sales and transactions should require a criminal background check – including face-to-face sales between private citizens. Admittedly, this would be a hassle. To help reduce that inconvenience, the government should find a way to facilitate the process. One idea, proposed by Sen. Tom Coburn (R-OK) involves a system for an instant criminal background check conducted through a government online portal. That has potential. Alternatively, law enforcement offices could be required to conduct background checks for prospective buyers and sellers.
The basic principle should be that no one should be able to legally purchase a gun without first proving that they are statutorily qualified to do so, and that the government should make every effort to assure that the cost of complying with the law is as low as possible. Critics might argue that criminals would simply fail to comply with this law as well, but it would be an important arrow in the quiver of law enforcement and would make it harder for people to legally facilitate the purchase of firearms by criminals.
Similarly, if states are going to be required to grant reciprocity to licenses issued elsewhere, then there need to be minimal nationwide qualifications for receiving a permit. That could happen in one of two ways. First, states could be required to accept out-of-state licenses and they could also be required to adopt minimal standards. Alternatively, states could be required to accept licenses from other states that have requirements in place that mirror their own. They should not, however, be empowered to categorically deny out-of-state residents the right to exercise a Constitutional right within their borders.
Lastly, it should be a crime for a gun owner who has knowingly had his gun stolen to not report it.
Beyond this, the only thing left to do is better policing. The refrain in the pro-gun community is that we don’t need new laws, we just need to enforce the laws we already have. The problem is that what follows is a political environment that is decisively disinterested in enforcing those laws. States, for example, don’t always have local rules that mirror federal requirements – which in turn means that in those states the task of enforcing gun regulations falls entirely on the shoulders of underfunded federal law enforcement agencies.
Either each of the states can make a commitment to enforcing the gun regulations on the books, or we can agree to fund federal agencies to the levels necessary to accomplish that task.
The basic insight here is that state-to-state gun regulation doesn’t work very well, and that some states will have to strengthen their regulation while other states relax theirs in order to create some sort of nationally coherent system. It’s precisely the sort of arrangement that is guaranteed to upset everyone. But it’s also the kind of arrangement that might actually work.
* * *
Despite the cold, I managed to get all 30 rounds on the target. In truth, the range test was far more intimidating than it was difficult. A few weeks later my permit arrived in the mail – it was marked restricted for target shooting and hunting. At some level, this didn’t seem entirely unreasonable. I’ll happily admit that I have limited experience around firearms – though it’s impossible that this was the reason why my permit was restricted, since the city never asked me why I wanted a permit or if I was familiar with handguns.
More disconcerting is that there is absolutely no path for me to get from my current restrictions to an unrestricted firearm license. In five years, if I choose to renew, the city will summarily reject my request for a useful carry permit. One consequence is that I now feel considerably more entitled to the protection of the Boston Police Department, since they’ve made it perfectly clear that they want to be fully responsible for my safety.
There’s a final twist in the story. A few weeks later I went back to the same firearm school I first attended and took a class that qualified me for a non-resident concealed carry permit from the state of Utah. The application fee was $51. Outside of the Salt Lake City airport, I’ve never been to Utah. But that’s not why I was interested in their permit: the out-of-state Utah permit is recognized in 32 other states and is granted to anyone who meets the law’s basic requirements. For an additional $60, Maine is now on board as well. In the end, I’m legally licensed to carry a concealed firearm in 34 of the 50 states; if I add the states that allow me to openly carry a firearm, then the total climbs to 38.
But among the 12 states that don’t trust me to carry a handgun is my home state of Massachusetts. I wonder if that really makes anyone feel safer.
When I started the research for this report, I thought I knew what I was going to learn. I expected that I would learn that the laws in Massachusetts are strict but fair, and that they help keep the rate of gun violence low in the state. I was hoping to be able to argue that they made a good model for the country.
As is often the case, the truth is more complicated than that. Today, my impression is that the licensing requirements in Massachusetts represent a legitimate effort to balance the rights of gun owners and public safety, but that the uneven application of that regime raises serious equal protection concerns. The approach, for example, that Boston takes is in my opinion Constitutionally indefensible. Further, the state’s process for approving firearms for sale is a fine example of a bureaucratic mess. Whether that’s the result of incompetence, willful obstructionism, or special-interest lobbying is hard to say.
Also, the more I look at the data, the less convinced I become that Massachusetts’ strict gun laws are significantly responsible for the state’s low rate of gun violence. There are just too many differences between areas with high gun violence and areas with low gun violence to confidently ascribe the difference to gun laws.
It is also painfully obvious from the data that the country could do with spending more resources on mental health and that the high proportion of gun deaths that are the result of suicide is an under-appreciated dimension of the problem. Perhaps that really is the low-hanging fruit to go after.
The more I learn, the more my views on guns, the role of guns in society, and the limits of gun control have come to mirror my views on other topics: it’s complicated, histrionics don’t help, and we all do a little too much asserting and too little questioning of our own assumptions.
Pro-gun advocates, for example, often cleave to an interpretation of the Second Amendment that is unreasonable. The argument that no gun regulation should be allowed is both ahistorical and irresponsible. Conversely, gun-control advocates insist on an interpretation of the text that is, on its face, untenable. Trying to read the words of the Second Amendment so as to permit the most stringent class of gun regulations that exist today is an impressive testament to the power of human ingenuity.
And beginning with the 2008 Supreme Court decision that recognized an individual right to gun ownership, the system that gun-control advocates have tried to develop is in danger of unraveling. Proponents of gun control should recognize that the time to make a deal is now.
Note: There is now a brief follow-up piece responding to some of the feedback that this report has received. You can find that entry here.
Follow Pedro on Twitter @IamPedroA.
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