The Civil Liberties Review
3, No. 2, June/July 1976: Page 24
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
Why a Civil Libertarian Opposes Gun Control
Don B. Kates, Jr.
Congressman Robert F. Drinan, a member of CLR's editorial committee and a leading proponent of federal gun control, will present an opposing view in the next issue.
I am frequently asked: how can a civil libertarian oppose gun control? My reply is: how can a civil libertarian trust the military and the police with a monopoly on arms and with the power to determine which civilians may have them I consider self-defense a human right-and one that is particularly vital for women who choose to live without "male protectors" in an increasingly violent society, I also fear that enforcement of even a partial prohibition on handguns would take an immense toll in human liberty and bring about a sharp increase in repugnant police practices as well as hundreds of thousands of jail sentences.
If, as both British and American studies assure us, gun prohibition has no ascertainable effect upon violence, then it seems that its rationale is revulsion against the handgun as a symbol and antagonism toward the conservative but generally law-abiding people who value that symbol. Such a rationale, however, is no more acceptable than the conservative's argument against homosexuality: "I don't do it and I don't like people who do-so it ought to be illegal." [end Page 24]
Advocacy of controversial political or social views frequently provokes violence antagonisms. Although they are unusually unwilling or politically unable to overtly suppress these views, officials can covertly withdraw police protection, leaving the job to such groups as the Ku Klux Klan, the White Citizens Council, the Storm Troopers, and the Cherry Society, and the Black Hand.
What might have happened to civil rights workers if there had been strict gun control in the South is exemplified in the 1969 machine-gunning of several hundred marchers by right-wing extremists, in Mexico City. Both the possession of automatic weapons and the act of murder are as strictly forbidden by law in Mexico as they are in the U.S. Nevertheless, the police made no arrests-either on the center or when the attackers later invaded hospitals to finish off the wounded.
Even assuming that gun prohibition would be enforced against right-wing extremists also, the effect is to render dissenters defenseless without meaningfully preventing lethal attacks upon them. A group of Klansmen or other neo-fascists will hesitate to attack someone they know to be armed or to fire-bomb his house, because they don't want their members to risk injury or death. Even though they may be unarmed, they will not hesitate to attack if they know that their intended victim is also unarmed and that the police will not defend him. No one had guns in the hostile mob which burned the headquarters of the Marxist W.E.B. DuBois Club in 1966 while New York City police looked on. But the DuBois Club member who had to pull a pistol on the mob in order to get out of the burning clubhouse was immediately arrested for gun possession. Needless to say, no members of the mob were arrested.
During the civil rights turmoil in the South, Klan violence was bad enough; it might have been worse with gun control. It was only because black neighborhoods were full of people who had guns and could fight back that the Klan didn't shoot up civil rights meetings or terrorize blacks by shooting at random from cars.
Moreover, civil rights workers' access to firearms for self-defense often caused southern police to preserve the peace, as they would not have done if only the Ku Kluxers had been armed. I remember how Klansmen broke up a series of marches in a Louisiana town with hideous violence and head-bashing while the police looked on in benevolent neutrality. The unarmed marchers' appeals to the [end Page 25] governor for state police protection were in vain. After many weeks of heavy injuries to the marchers, a black man shot one of several Klansmen who attacked him with clubs. The state police arrived the next day, and there was no further violence.
Contrast an incident that occurred in Madrid on November 6, 1975. A meeting of opposition reform parties was broken up and its participants severely beaten by right-wing gunmen. The victims could offer no resistance, since Spanish law strictly forbids civilian possession of handguns (except by right-wing thugs with permits). Falangist policy follows the gun laws of Nazi Germany and fascist Italy, under which Jews and political opponents were disarmed and left helpless against mob violence in the early 1930s. As Hermann Goring said in 1933, "Certainly I shall use the police-and most ruthlessly-whenever the German people are hurt; but I refuse the notion that the police are protective troops for Jewish stores. The police protect whoever comes into Germany legitimately, but not Jewish usurers."
Not only political and racial minorities but also women would be handicapped by gun restrictions. Throughout history women's status has been fixed, and their self-determination curtailed, by male authority figures to which they had to look for protection. Today, as women increasingly choose lifestyles independent of male protection, their ability to protect themselves in a violent society becomes more important. Obviously, in most situations it is futile and perhaps dangerous for a woman to resist a male attacker. Armed defense is even more dangerous, since a rapist will invariably get a gun away from a woman and use it on her-or so most movie and television scripts tell us. It seems that a woman who doesn't have a male to protect her had better just "lie back and enjoy it" and hope her attacker doesn't intend to murder or mutilate her afterward.
Men-even police chiefs-who voice such opinions, however, are usually surprisingly short on specific examples. I have researched the subject in detail and have found no case in which a rapist was able to disarm his victim. Those who are familiar with the martial arts know how extraordinarily dangerous it is to attempt to disarm anyone-even an untrained person. Police training emphasizes that this maneuver should be avoided, unless the alternative is immediate death.
In response to requests from woman who want to
learn how to use handguns, some police departments
have developed training programs.
If women defend themselves with firearms less frequently than they could, it is only because they have been brainwashed by the steady stream of propaganda generated by males. The Eisenhower Commission Firearms Task Force Report, for example, contemptuously dis. misses women in a single sentence: They are "less knowledgeable than men about guns and generally are less capable of self-defense." (To make certain they stay that way, the commission recommends banning handguns.) Having trained women to handle guns and having studied police training for women, I know that they are at least as capable of combat [end Page 26] shooting as are men. In a mechanical age which has largely rendered irrelevant male-female differences in strength, the concept that women are incapable of using firearms is an anachronism. I have investigated over 150 cases in which women rejected this notion. It is noteworthy that in 80% of the cases studied, women chose to defend themselves with handguns. Such weapons are infinitely preferable to long guns because they are more portable and maneuverable and far less lethal. Here are some abbreviated examples:
• California, 1969: A Los Angeles woman shot and seriously wounded an attempted rapist who broke into her house. Police later charged him with two other rapes.
• California, 1970: An armed Modesto woman storekeeper who had wounded armed robbers on two other occasions captured a third.
• Maryland, 1970: Knocked to the street by punches in the face and stomach by a mugger who told her, "You know what I want," a Baltimore woman drew her pistol and gave him a bullet in the neck instead.
• Maryland, 1971: A Baltimore woman shot to death a man who had raped her and threatened to kill her children if she called the police.
• Tennessee, 1972: When a Chattanooga woman drew a pistol, the man who was preparing to rape her left in too great a. hurry to collect the clothes he had just taken off. He was later traced and apprehended through identification found in abandoned clothing.
• Florida, 1973: Although she was seriously wounded by a burglar who stabbed her several times, a Barstow woman shot him to death.
• Kansas, 1974: Commenting, "I don't think you want to do that," a Wichita storeowner’s wife drew a pistol on two armed robbers. They departed in haste.
• West Virginia, 1975: A retired schoolteacher awakened to find an armed burglar in her bedroom. Knocking his gun away, she seized her own pistol and shot him to death.
Gun prohibitionists deny the value of civilian possession of firearms in combating crime. They cite the Eisenhower Commission’s conclusion that "the gun is rarely an effective means of protecting the home against either the burglar or the robber: the former avoids confrontation, the, latter confronts too swiftly." But the report, unlike many people who cite it makes clear that this conclusion applies only to householders, and specifically to those householders who do not have firearms immediately at hand because a criminal attack is completely unexpected. Robbers do not "confront too swiftly" for armed storekeepers, who, the report admits, foil appreciable numbers of them each year. And, although it offers no figures on the success rate of citizens who carry arms for self-defense, the report admits that this practice (which it deplores) does allow for some resistance to street crime.
Like much gun control propaganda, the report does not discuss the utility of [end Page 27] guns in defending householders against political or other criminal attacks, which they have reason, to expect. But among over one hundred people murdered by Ku Kluxers in the 1950-65 era, I recall only one who was armed. While his gun did not prevent that civil rights worker's death, it did lay down covering fire which allowed his wife and children to escape the Klansmen who surrounded their burning house. The shots also disabled a Klan car through which the FBI was able to trace, catch, and convict the murderers.
The Eisenhower Commission report admits that there are no comprehensive statistics on the number of lives saved by armed citizens. Its negative conclusion on the ability of armed householders to defend themselves is based on a limited study, conducted in only two cities and over two short periods of time, of the number of criminals killed by armed householders. My own study, which is national in scope and covers hundreds of incidents, shows that householders and others against whom crimes are attempted injure far more criminals than they kill, and capture without shooting far more criminals than they wound. Moreover, at least half of the incidents I studied were not cases of self-defense but of householders coming to the aid of their neighbors-an issue, which the Eisenhower Commission report ignores.
The hundreds of incidents reported by the national gun magazines, culled b readers from their local newspapers, represent only the tip of an immense iceberg. The local newspapers do not publish every case of civilian self-defense reported to police, and certainly the gun magazines' readers do not check every newspaper or clip every item they see. Far more importantly, the vast majority of such instances are never reported to the police-because the near victim cannot provide an adequate description of the criminal and/or because the citizen possessed or carried his gun illegally.
One rough indication of the frequency of such incidents is the fact that hundreds of thousands of felony arrests are made each year by off-duty police. A trained officer doubtlessly is more capable of pursuing and arresting a robber or a rapist than is an ordinary person who is armed. But an off-duty officer is no more likely to encounter such a situation. Perhaps a better indicator is the apparent success of civilian firearms defense training. In 1968, after Orlando, Florida conducted a highly publicized shooting course for over 6,000 women, it became the only city with a population over 100,000, which showed a decrease in crime. Rape, aggravated assault, and burglary were reduced by 90%, 25 %, and 24% respectively. After a similarly publicized program for retail merchants in Highland Park, Michigan, armed robberies dropped from a total of 80 in a four-month period to zero in the succeeding four months. In Detroit, after grocers received firearms training and shot seven robbers, the number of armed robberies dropped by almost 90%.
The Eisenhower Commission's view that crime will cease when its victims are deprived of the means of self-defense re- [end Page 28] reflects the commission's privileged white intellectual membership and their elitist disregard for those who cannot afford to move to "safe" neighborhoods or the high-security apartment buildings. This constitutes the easy pacifism of those who may never need a gun for self-defense because they can obtain armed security services or special police protection whenever they need it.
Authories examine the wounds of James Meredith after he was
shotgunned in June 1966 during a voter registration march in
A very different view is taken by underprivileged and/or minority people who lack the wealth to flee the areas in which the police have given up on crime control take a very different view. They know that the only real protection they have is that which they provide themselves. Studies and surveys have repeatedly established that blacks are the most frequent victims of crime, are most afraid of crime, and are most likely to keep and carry guns for self-defense regardless of the law. Indeed, the only in-depth study of the question concludes that even the high rate of firearms prosecution against blacks will not stop them from carrying guns for self-defense so long as ghetto areas continue to be plagued by violence.
Selectively misleading American statistics and the misrepresentations of British experience have led many people in this country to believe that banning handguns would reduce violence. Guns make an easy scapegoat for problems, which would otherwise be insoluble short of radically reshaping the mores, and institutions, which produce violent people. Demands for gun prohibition allow us to ignore our own unwillingness either to make the necessary fundamental changes or to accept and live with a violent society. Criminological studies both in the U.S. and in England overwhelmingly demonstrate that peaceful societies do not need hand. Gun prohibition and violent societies will not benefit from it.
Handguns were banned in England in 1920. The only in-depth study of that prohibition, conducted at Cambridge University in 1970, concluded that it has had no ascertainable effect on violence. The prohibition was obeyed only be. Cause England was so peaceable in the 1920s that firearms were not necessary for self-defense. The Cambridge study reports that Britain has remained peaceful despite the fact "that 50 years of very strict controls on pistols has left a vast pool of illegal weapons." The study notes that although New York City's firearms controls are more stringent than England's, New York has far more violence. On the other hand, Switzerland's firearms violence rate is negligible even though it has the world's highest ratio gun possession among civilians.
A 1975 study at the University of Wisconsin concluded, "gun control laws have no individual or collective effect in reducing the rate of violent crime." This study involved a computerized comparison between each state's gun control laws and its crime data. It took into account demographic, economic, racial, and other variables relating to gun control effective- [end Page 30] ness which could be quantified statistically.
Gun control propagandists have evaded the same conclusions of many previous studies by arguing that violence persists only because existing state prohibitions must not been able to get rid of enough pistols. To test this theory, the Wisconsin study examined handgun ownership statistics and found no correlation between high civilian pistol ownership and violence.
Without the societal changes necessary to diminish violence, an effective handgun ban would drive people to the far more lethal long guns for self-defense or for criminal purposes. Those who wish to carry their weapons could, working for a few minutes with a hacksaw, reduce long guns to handgun size. Thus a handgun ban would make the shootings in our violent society as deadly as they are in England without reducing their incidence. However erroneously, millions of Americans feel that they have the constitutional right to own guns or that guns are necessary for their personal security. The sign frequently displayed in their homes and stores, "They'll get my gun when they pry it from my cold, dead fingers," undoubtedly exaggerates the degree of their resistance to gun prohibition. But experience with the far more enforceable prohibitions on liquor and marijuana indicates that millions of people would be alienated by what they deem a tyrannical law, and that those who believe they can get away with it will disobey the law. British police, unhampered by the Fourth Amendment, have nevertheless been unable to stem illegal arms traffic-even with the special search and other powers which successive gun prohibition bills have given them. The British army has been unable to enforce gun laws in Northern Ireland, even with mass street searches and random raids in homes.
In this country, even partial enforcement of a handgun prohibition would result in large numbers of snoopers and informers, "stop and frisk" laws, "no knock" searches, and other repugnant police practices. The result of such invasions of privacy would probably be the jailing of hundreds of thousands of otherwise law-abiding citizens who would react to gun prohibition with the same self-righteous spirit against tyranny that greeted liquor and marijuana prohibitions. In a free society, those who would restrict the people bear the burden of proving probable benefit. The proof would not need to be great in order to ban that which few people value deeply. But mere speculation -against –the weight of the evidence-cannot justify banning that which is valued as deeply as some 40 million Americans value their handguns.
Such a ban is not desirable in itself. It would be virtually unenforceable, and would not be worth the enormous costs in civil liberties of even partial enforcement. As the Wisconsin study concludes "If the law cannot control such highly visible criminal activity as drug traffic, [end Page 31] gambling, and prostitution, with their continuing sales of commodities and services to the general public, then it seems unlikely that it could control the one-time sale of an item that can last for generations. The basic question is, then, are we willing to make sociological and economic investments of such a tremendous nature in a social experiment for which there is no empirical support?"
• • •
Don B. Kates, Jr. teaches at St. Louis University School of Law and is in private practice in San Francisco. While he was a student he did civil rights work in the South, was a law clerk for William Kunstler and Arthur Kinoy, and drafted civil rights legislation for the House judiciary Committee. He subsequently was a member of the California Advisory Committee to the Civil Rights Commission. He has acted as a police legal adviser and consultant on firearms to California legislative committees. His articles have been published in police and firearms technical journals.
• • •
Perhaps because the possession and carrying of arms by civil rights workers and blacks in the South was an individual rather than an organized matter, little has been written about it. Some discussion will be found in "A Reply To Advocates of Gun Control Laws," Journal of Urban Law (1974), by Jonathan Weiss, the distinguished civil liberties and poverty lawyer who is director of the OEO National Legal Services Project for the Elderly Poor.
The latest and most controversial discussion of male physical attacks, and how they have restricted women's roles throughout history, is Susan Brownmiller’s book Against Our Will: Men, Women, and Rape (1975). Kate Coleman's "Lady Get A Gun" in the magazine City of San Francisco, November 18, 1975, recounts the author's experience with rape, firearms, and firearms training. "Point Gun, Pull Trigger" in the May 1975 issue of Police Chief (the magazine of the International Association of Chiefs of Police) reports that the Chattanooga Police Academy's civilian firearms training program for women showed that women were more responsive to combat firearms training than were most police recruits.
Portions of the Eisenhower Commission report appear in the section on "Firearms and Self-Defense" in Firearms and Violence in American Life, a staff report to the National Commission on the Causes and Prevention of Violence prepared by George D. Newton and Franklin Zimring, The study of gun control in England was done for the Cambridge University Institute of Criminology by Colin Greenwood, chief inspector of the West Yorkshire Constabulary. It is published as Firearm, Controlled. A Study of Armed Crime and Firearm Control in England and Wales (1972).
The. University of Wisconsin study is titled "Handguns, Gun Control Laws and Firearms Violence" and is published in Social Problems, October 1975. Douglas R. Murray, a research analyst for the Wisconsin State Council on Criminal justice under the sponsorship of the university, conducted it. Murray discusses most of the earlier studies, including one by Zimring, the leading, academic proponent of gun control, which acknowledges that statistical evidence increasingly casts doubt on the utility of firearms controls in reducing violence. Leroy G. Schultz discusses "Why the Negro Carries Weapons" in the Journal of Criminal Law, Criminology and Police Science, 1962.