By David B. Kopel
The Blue Press, August 2000
Attacks on one part of the Bill of Rights often endanger other rights. The anti-gun lobbies' war on the Second Amendment has now led to a frontal assault on the First Amendment. The objective: to make it illegal for firearms companies to mention the protective value of guns in their advertising.
The Center to Prevent Handgun Violence (CPHV) is the educational arm of Handgun Control, Inc. Headed by Sarah Brady, the CPHV is one of several groups which belong to the "HELP" network--Handgun Epidemic Lowering Plan.The stated goal of the HELP network is to "work toward changing society's attitude toward guns so that it becomes socially unacceptable for private citizens to have guns."
Mrs. Brady's organization, like most of the rest of the anti-gun movement, is deeply opposed to the use of guns for self-defense. Thus, in 1996 the CPHV filed a censorship petition with the Federal Trade Commission (FTC) asking the FTC to ban gun advertising which encourages defensive gun ownership. A similar petition was filed by a pair of professors at Johns Hopkins University, joined by a professor from the University of California. The documentation for the petitions contains examples of allegedly improper ads from most handgun manufacturers, but two ads arouse special ire.
One ad, from Beretta, shows a handgun lying on a nightstand. Next to the gun is a picture of a mother with two small children. A clock radio show the time is 11:25 p.m. The headline for the advertisement is, "Tip the odds in your favor."
The petitions complain that the ad encourages unsafe storage of a firearm, because the gun is not locked an there are small children in the home. Never mind that the ad depicts the gun as not ready to fire, since the "tip-up barrel" is open, and there is a cartridge nearby, apparently ready to be loaded. Indeed, the ad specifically promotes "safe storage with an empty chamber," coupled with "simple, one-step loading in an emergency."
The complaint about the Beretta ad reveals a lot about the safe storage standards that the anti-gun lobbies want to mandate by law: if you have children in the home, then you cannot ever have the gun ready for use in an emergency.
The second ad, which gets Mrs. Brady's group especially upset, is a Colt advertisement that ran in the Southeast regional edition of Ladies Home Journal. The ad pictures a mother tucking a child into bed. "Self-protection is more than your right...it's your responsibility," is the headline. A Colt semiauto is recommended "for protecting yourself and your loved ones." And the ad compares a firearm to a fire extinguisher: "it may be better to have it and not need it, than to need it and not have it."
The FTC Act give the Federal Trade Commission the power to ban advertising messages that are "deceptive" or "unfair." The CPHV asks that defensive gun ads be banned as "deceptive" because gun ownership does not increase safety in the home, but in fact is very dangerous.
Under current FTC policy, an advertisement is "unfair" if it causes "substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumer...."
The CPHV believes that the defensive gun ads are unfair, because they encourage people to own guns for protection. Gun ownership leads to substantial injuries (e.g. death and non-fatal wounds). There are no countervailing benefits, since defensive gun use is very rare. The CPHV makes the case for the counter productive nature of defensive gun ownership by citing several junk science articles, some of them funded by your tax dollars (via the gun-prohibitionist Centers for Disease Control).
While most gun misuse is perpetrated by persons--such as drug addicts and convicted felons--who are barred from purchasing guns by federal and state law, in the eyes of the anti-gun community, no Americans are responsible enough t town guns for protection. The "unfair" prong of the FTC's censorship authority asks whether a particular harm is "reasonably avoidable by consumers themselves." Obviously, the harm of gun injury from a home handgun is entirely avoidable: read and follow the manufacturer's instructions on safe gun handling and storage that come with every new gun, and you are unlikely to have a gun accident.
Nevertheless, the university-based censorship petitioners argue that the harms cannot be avoided by consumers, especially regarding homicide. In other words, American consumers are by their nature so hot-tempered that they cannot reasonably be expected to refrain from trying to kill somebody. The only way to make things safe is to keep them from having any kind of gun around, even a locked one.
Given this dark picture of ordinary Americans as would-be murderers, it is not surprising that these same Americans are considered too stupid and "vulnerable" to be exposed to advertising about handguns for protection.
The censorship petitions carefully avoid the mountain of evidence about the defensive benefits of gun ownership. Instead, they critique just one study, by Professor Gary Kleck, which estimated that there are about 2.5 million defensive gun uses annually. The petitions do not mention that there are a dozen other studies which report that the number of annual defensive gun uses is at least in the high hundreds of thousands.
More importantly, the censorship petitions ignore the most direct evidence about the defensive use of guns: data from the federal government's National Crime Survey which show that if a robbery victim does not defend himself, the robbery will succeed 88 percent of the time, and the victim will be injured 25 percent of the time. If the victim resists with a gun, the robbery "success" rate falls to 30 percent, and the victim injury rate falls to 17 percent. No other response to a robbery--from using a knife, to shouting for help, to fleeing--produces such a low rate of victim injury and robbery success.
And the censorship studies just ignore the rest of the evidence about the defensive value of guns, such as University of Chicago Professor John Lott's research finding that enactment of concealed handgun laws results in violent crime rate drops of six to eight percent.
They ignore data from the 31 states with concealed carry laws which show that concealed carry permit holders virtually never misuse their guns. The data reinforce the fact that lawful gun owners are not the cause of illegal gun violence.
The censorship petitions ignore the evidence showing that the widespread presence of defensive guns in American homes plays a major role in reducing the rate of "hot" burglaries (break-ins while the victims are home).
Looking at all the available scholarly evidence, the best that can be said in favor of the anti-gun argument is that the evidence is mixed. The worst that can be said is that almost all of the anti-gun studies are junk science created by people with medical degrees who have little expertise in the subject at hand; the studies finding significant benefits from defensive gun ownership are written by some of the nations' most eminent criminologist.
It is not just the First and Second Amendments which are endangered by the censorship petitions. A republican form of government itself is at issue.Neither Congress nor a single state legislature anywhere in the United States has ever voted to censor gun advertising. The gun prohibition groups are trying to win through the bureaucracy what they could never win at the ballot box or in a legislature.
When Congress created the FTC, it never contemplated that the Commission would consider censoring advertisements for mainstream concepts such as defensive gun ownership. The FTC should have promptly shipped the censorship petitions back to their senders. That the FTC has spent over a year apparently giving the censorship petitions serious consideration is in itself an abuse of administrative power.
The censorship petitions highlight the problem with the theory that commercial speech should receive a lesser degree of constitutional protection. The issue of defensive gun ownership is a subject of intense political debate--precisely the kind of debate which is at the heart of the First Amendment. The ads which the CPHV wants to have censored are very much part of that debate, for the ads promote the idea that defensive gun ownership is a good idea, and that ordinary Americans are responsible enough to own guns for protection. The expression of this idea deserves protection, whether the forum is an article in the Maryland Law Review, or a print advertisement from North American Arms.
The Constitution and the Declaration of Independence reflect the belief that Americans are trustworthy people who are capable of doing many things for themselves: owning guns for protection, evaluating speech on controversial issues, and self-governing through democratically chosen legislative bodies.The censorship petitions are inconsistent with these beliefs.