by David Kopel
American Lawyer, January, 1994 / February, 1994, p. 49. More by Kopel on handgun prohibition.
Stuart Taylor, Jr., wants to confiscate all handguns, a move he thinks will make everybody safer without impairing the Constitution in the slightest [Taking Issue, December 1993]. He's wrong.
Let's start where Taylor left off: with Phil Gramm's mother. The senator from Texas thinks that legal handguns are good because "if somebody's going to break in to my mama's house, they've got to worry not just about the sheriff or the police chief, but they've got to worry that my mama's got a gun, and she might shoot them." Taylor advises the senator, "Get your mama a shotgun." In Taylor's view, Gramm's mama can defend herself just as well with a shotgun as she can with a handgun, once handguns are outlawed.
Well, she can't. A shotgun is harder to maneuver and shoot, easier to take away, and more difficult to hold while phoning for help than a smaller gun.
Taylor's overly quick dismissal of Mrs. Gramm's self-defense situation highlights the more serious myopia of his essay -- ignoring the self-defense benefits of handguns.
Research by Peter Hart Associates in 1980 found that 4 percent of American households reported defensive handgun use against a person within the past five years. If we assume only one usage per household in the entire five years, there are 645,000 defensive uses of handguns annually (most of which do not involve firing the weapon or wounding the assailant).
More recently, Gary Kleck of Florida State University conducted interviews in even greater depth, sorting out genuine self-defense usages from mere paranoid reactions to a bump in the night. Kleck found that the number of annual defensive gun uses in the United States is between 850,000 and 2.5 million, and most of those involve handguns.
A rational gun-control policy would aim to protect public safety by reducing the illegitimate uses, not the legitimate uses, of handguns.
Unfortunately, Taylor's prohibition policy will probably achieve just the opposite. Criminals have an easy time these days obtaining illegal drugs, despite nearly a century of severely enforced prohibition. Why would prohibition work any better on handguns?
Given Taylor's penetrating critiques of the drug war, it is astonishing that he does not see that handgun prohibition would, in fact, create even worse problems of enforceability. After all, drug users must continually buy new drugs as old ones are consumed. But an illegal gun purchase takes only one transaction, and there are already about 70 million handguns in the United States. And handguns wear out very, very slowly.
Enforcement of handgun prohibition would inevitably be like Taylor's description of drug prohibition, with "ersatz-tough policies hitting mainly the smalltimers who are the most easily caught but least dangerous players."
Taylor has criticized the drug war's disparate impact on blacks. Handgun prohibition would have a similar effect. According to the American Civil Liberties Union, the St. Louis police have conducted more than 25,000 illegal searches under the theory that any black driving a late model car must have a handgun.
Taylor proposes to enforce his handgun prohibition with walk-through metal detectors. While his dismissal of the Constitution's probable-cause requirement as "traditional, formalist doctrine" is unfortunately close to the minimalist approach to the Fourth Amendment taken by too many federal courts, Taylor is fooling himself if he thinks that legitimation of metal detectors won't lead to widespread pat-downs and other more intrusive searches -- especially aimed at minorities. The use of metal detectors at airports is hardly a model of good constitutional practice. Stand outside a screening area for a few hours and notice how many times the security guards open people's baggage without even asking permission.
Taylor's argument that individuals have no constitutional fight to own a gun is also untenable. Since 1980 there have been more than 40 articles on the Second Amendment published in law reviews. All but five of them conclude that the amendment was intended to recognize an individual fight to own guns.
But what really counts is what the Supreme Court has said. In the 1990 case United States v. Verdugo-Urquidez, Chief Justice William Rehnquist observed that the phrase "right of the people" occurs several times in the Bill of Rights, specifically in the Second Amendment's "tight of the people to keep and bear arms," the First Amendment's "right of the people peaceably to assemble," and the Fourth Amendment's "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." In all cases, the Court said, the phrase "right of the people" is used as a "term of art" referring to members of the American community. (And, therefore, the Verdugo opinion concluded, a Mexican citizen in Mexico City could not complain that he was unreasonably searched by American drug agents.)
Even the Supreme Court's 1939 decision in United States v. Miller, which is relied on by Taylor, treats the Second Amendment as an individual fight. In that case, a bootlegger named Jack Miller had been caught in possession of a sawed-off shotgun, without having registered it or paid the appropriate federal tax. The district court dismissed the charges against Miller because the court found that the registration and tax laws violated the Second Amendment.
The Supreme Court should have dismissed Miller's Second Amendment claim for lack of standing -- -if Taylor's theory of the Second Amendment were shared by the Court. After all, Miller was clearly not a member of the National Guard. Instead, the Court considered the individual claim and remanded the case for further finding about whether the particular weapon (a sawed-off shotgun) was a militia-type weapon. Miller, who had absconded pending appeal, presented no argument to the Court.
But what was the "well-regulated militia" referred to in the Second Amendment? According to the Court, "The militia comprised all males physically capable of acting in concert for the common defense." And were militia weapons owned by the government? To the contrary: "Ordinarily when called for service these men were expected to appear beating arms supplied by themselves and of the kind in common use at the time."
Even if the individual-rights view is correct, argues Taylor, a handgun ban is constitutional because it is not a complete ban on all guns. But banning some guns (one third of the American gun supply), instead of all guns, is no more permissible than banning one third of speech, instead of all speech. As Mrs. Gramm's situation illustrates, long guns are in many instances not adequate substitutes for handguns.
Taylor is a perceptive critic of the constitutional disaster caused by the drug war, including the mandatory minimum sentences championed by Mrs. Gramm's son. Adding one more item to that list of things that many Americans strongly want to possess, but possession of which the federal government makes a felony, will only fuel the vicious cycle of governmental failure and even greater governmental repression wrought by the drug war. Drug prohibition is a failure that endangers society and the Constitution. Handgun prohibition would be even worse.
David Kopel is research director at the Independence Institute in Golden, Colorado, and an associate policy analyst at the Cato Institute in Washington, D.C.