THE GUN CONTROL DEBATE

Linda Cisek GSR 716 May 1997

Crime and Firearm Use Today
A History of Significant Firearm Control Measures
The Gun Control Controversy
Public Opinion Data

Crime and Firearm Use Today

Although crime is declining for the first time in a decade, as reported by the U.S. Department of Justice (1996), the crime rate in the United States is still extremely high. One method used to attempt to reduce this crime rate is gun control. The following is a look at the current state of crime, particularly as it relates to firearm use, as summarized by the U.S. Department of Justice Office of Justice Statistics' "Guns Used in Crime:Firearms, Crime, and Criminal Justice" :

The U.S. Department of Justice's Office of Justice Program's "Firearm Injury From Crime: Firearms, Crime, and Criminal Justice," further summarizes firearm-related injuries, as reported by the Centers for Disease Control and Prevention (CDC):

Another report from the Justice Office of Justice Programs' Bureau of Justice Statistics, "Guns and Crime: Handgun Victimization, Firearm Self-Defense, and Firearm Theft," summarizes the use of guns in self-defense:

Although such statistics indicate that most crime is not committed with guns, they do show that most gun crime is committed with handguns, including murder. Whether strict gun control measures are the appropriate means to significantly reduce these statistics and whether such measures should be used as a method to combat crime continues to be debated. Such opposing views are summarized here, along with important legal issues, which have invoked many such arguments in favor of and in opposition to gun control.

A History of Significant Firearm Control Measures

In Haynes v. United States (US District Court 1968), Miles Edward Haynes appealed his conviction for unlawful possession of an unregistered short-barreled shotgun. The statute under which he was tried, the National Firearms Act (NFA) of 1934, imposed crimimal, regulatory, and tax laws on gangster-type weapons, such as machine guns and sawed-off shot guns. (This act was followed by the Federal Firearms Act of 1938, which established the regulation of the firearms industry and made it a federal crime for felons and fugitives to receive firearms in interstate commerce). Haynes's argument was that, since he was a convicted felon at the time he was arrested on the shotgun charge, he could not legally possess a firearm. He maintained that a convicted felon registering a gun was an announcement that he was breaking the law. Registering the gun would be incriminating himself, but if he did not register it, he would be punished for possessing an unregistered firearm. In this manner, he argued, his Fifth Amendment protection against self-incrimination ("No person...shall be compelled in any criminal case to be a witness against himself") was being violated. He would be punished if he registered it and punished if he did not. The Court ruled that an apt claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions for failure to register a firearm or for possession of an unregistered firearm. Consequently, this case invalidated certain registration requirements of the NFA as being in violation of the rights against self-incrimination. In sum, under this decision, a person illegally possessing a firearm, under either federal or state law, could not be punished for failing to register it.

However, the self-incrimination argument ultimately failed with the Gun Control Act of 1968 , which was established to keep firearms from those not legally entitled to possess them due to age, criminal background, or incompetence. Furthermore, it was enacted to make State firearms laws more effective by channeling interstate commerce in firearms through federally licensed businesses and confining firearms transactions by nonlicensees to their state of residence. In regards to the self-incrimination argument, Congress rewrote the provision by only requiring lawful possessors of firearms to register. The Supreme Court then ruled that the Act no longer violated the privilege against self-incrimination.

In 1981, when an assassination attempt was made on President Ronald Reagan, his press secretary, James Brady, was also seriously wounded. This incident, along with other publicized shootings sparked calls for federal legislation that would require criminal background checks on people who want to purchase handguns. After much controversy, the Brady Gun Control Bill was signed into law in November 1993. Under this law, which amended the 1968 Act, a five-day waiting period before the sale of a handgun was required. During this time, local authorities are required to make a "reasonable" effort to find out if the buyer has a felony record, a history of mental illness or drug use, or some other problem that would make the sale illegal.
The Brady Bill was found unconstitutional by the Arizona District Court in Mack v.United States (1995), which found the bill in violation of the 5th and 10th amendments. This case is now being challenged in the US Supreme Court. The case was brought by a sheriff, whose side argued that under the 10th Amendment, this federal regulatory program is unconstitutional. It was argued that it imposes burdens on the police or sheriff's departments when they want to be out solving crimes and even if it wasn't a burden, it would be a violation of state sovereignty. The government contested that the Constitution allows the federal government to impose such obligations, as long as they are purely administrative. The government further argued that it would take a huge bureaucracy to do this itself, as opposed to enlisting the help of state and local officials, and that the court should allow this as a reasonable accommodation of state and federal governments.

This case is moving to revive states' rights and to revive the 10th Amendment as limit on the power of Congress to regulate the states. In 1995, the US Supreme Court declared another gun law, the Gun Free School Zones Act of 1990, which banned guns within 1,000 feet of schools, unconstitutional. The Court held that the States, not Congress, have the authority to enact such criminal laws. If the Court's ruling in the Brady case, which is expected to be decided this summer, supports the challenge, the entire Brady bill won't necessarily be wiped out, but certain provisions would be.

In May 1994, another gun control measure was signed into law by President Clinton, the Public Safety and Recreational Firearms Use Act. This Act was the section of the Violent Crime Control and Law Enforcement Act of 1994 that included a restriction on the manufacture, transfer, and possession of certain semiautomatic assault weapons. The Crime Bill also strengthened federal licensing standards for firearms dealers, as well as prohibited firearms sales to and possession by individuals subject to family violence restraining orders.

Recently, after the shooting spree in February 1997 at the Empire State Building, President Clinton signed an order that tightens restrictions on gun buyers, including foreigners. New York's law already requires a finger-printing, a criminal and psychological record check, and a good conduct certificate for resident aliens. Also, in New York City, immigrants must be residents for seven years before they are eligible to buy a gun. Among Clinton's proposals for stricter federal gun licensing requirements, which, he says, are intended to protected the American people from gun violence are: prohibiting non-citizens from buying guns; requiring proof of residency, including a photo I.D. and a utility bill in the buyer's name; making "cop killer," or teflon-coated, armor piercing bullets illegal; and requiring child safety locks on the weapons of all Federal officials. Congress has not yet acted on this legislation. In the meantime, on April 21, 1997, The Bureau of Alcohol, Tobacco and Firearms issued residency requirements for persons acquiring firearms as Clinton proposed. This is a temporary regulation in which purchasers of firearms must provide proof of their state of residence, while non-citizens must provide proof of residency, with documentation, such as utility bills, lease agreement, and photo identification.

Currently, there is pending legislation in the 105th Congress concerned with firearms, including:

S.3 "Omnibus Crime Control Act of 1997" (Introduced in the Senate in January) This bill seeks mandatory sentences for criminals possessing firearms. For example, a mandatory 5-year sentence for an individual who is in possession of a firearm during and in relation to any crime of violence or drug trafficking crime; a mandatory term of 10 years if the firearm is discharged; and a life sentence or sentenced to death if the death of any person results.

H.R.186 "Handgun Registration Act of 1997" (Introduced in the House in January) This bill seeks a Federal handgun registration system to apply in all states that do not have a state handgun registration system that meets certain requirements. It calls for state laws requiring handgun registration, along with state laws that impose penalties on individuals who violate the requirement.

S.763 "Safe Schools Act of 1997" (Introduced in the Senate in May) This bill seeks to require each state receiving federal funds to have a state law requiring local educational agencies to expel from schoo, for at least one year, a student found to be in possession of a gun, illegal drug, or illegal drug paraphernalia on school property.

The Gun Control Controversy

Second Amendment Right: Individual vs. State

According to the Second Amendment, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." However, whether this amendment addresses individual rights or collective rights is continuously debated in the gun control controversy.

The most argued view by gun control opponents is the idea that it infringes individuals' right to bear arms. They maintain that the Constitution simply gives them the right to own firearms; firearms that they can use for their personal defense. They believe that the amendment addresses the people's rights, rather than the states' rights.

The alternative is that the Amendment guarantees to the states a right to continue to maintain organized militias, as in the National Guard, free from federal interference. This stance, taken by many including the ACLU, which claims to be neutral in the gun control debate, is referred to as the "states' right" view. They believe that the Second Amendment does not confer to an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration (ACLU, 1996).

The Supreme Court's long-standing interpretation of the Second Amendment (US v. Miller, 1939) states that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected (ACLU, 1996).

President Clinton, in his 1995 State of Union Address, assured the American people who believe they have a constitutional right to own firearms that when he signed the 1994 Crime Bill into law, "[t]he Members of Congress who voted for that bill and I would never do anything to infringe on the right to keep and bear arms to hunt and to engage in other appropriate sporting activities."

Accidental Deaths vs. Crime Deterrence

Gun control advocates, such as Handgun Control, Inc., National Coalition to Ban Handguns, and the Coalition to Stop Gun Violence (CSGV) argue that guns in the home are more likely to kill a family member than to stop a criminal. They maintain that the use of a firearm to resist a violent assault increases the victim's risk of injury and death.

Gun control advocates maintain that the research shows that a gun in the home is far more likely to be used in a suicide, murder, or fatal accidents than to kill a criminal (CSGV). Furthermore, they believe that allowing concealed weapons will make it likely that otherwise law abiding citizens will harm eachother. For example, if a gun is introduced into a violent encounter, it increases the chance that someone will die, for example, in unintentional fits of rage that are later regretted (Cook as cited in Lott and Mustard, 1996) In the end, they maintain, armed criminals are not a deterrent to crime.

Anti-gun control individuals' view is that when law abiding people carry concealed handguns, it deters violent crimes and does not produce accidental deaths. They argue that the threat of citizens carrying weapons deters criminals. Moreover, they believe that concealed handguns have the greatest deterrent effect in areas with the highest crime rates because the criminal is unable to tell whether the victim is armed; in areas where concealed carry is allowed, criminals tend to turn to property crime rather than violent crime involving people.

According to a University of Chicago study from 1977 to 1992, allowing citizens to carry concealed weapons deters violent crimes and produces no increase in accidental deaths. This study also mentions discrepancies in the literature about the frequency of private firearms being used for self-defense. For example, the National Crime Victimization Survey found that there was 80,00 to 82,00 defensive uses of guns during assaults, robberies and household burglaries each year. Other surveys found that such firearms are used in self-defense up to two and a half million times each year, with 400,000 of these defenders believing that using the gun almost certainly saved a life.

Discrepancies such as these found throughout the literature and are utilized to each sides' advantage in the gun control debate.

Gun Control as Crime Control

The idea that gun control reduces crime is the most argued point by pro-gun control groups. They look to low crime rates in England and Japan, which have very strict gun laws, to model our country after in the issue of gun control. Gun control advocates maintain that the stricter the gun laws are, the less crime there will be. By citing statistics relating to guns and violence, they contend that gun control can only be beneficial to society.

Besides arguing that guns deter crime, as stated above, anti-gun control groups, such as the National Rifle Association (NRA), maintain that there is no such proof of crime reduction due to gun control. They contend that we cannot compare our country to other countries because of differences in each nation's collection of crime data and political, cultural, racial, religious, and economic differences (NRA, 1995). On the other hand, they argue, "registration and licensing have no effect on crime, as criminals, by definition, do not obey laws"(1995). Furthermore, "areas having the greatest restrictions on private firearms ownership, crime rates are typically higher, because criminals are aware that their intended victims are less likely to have the means with which to defend themselves"(1995).

In sum, those opposed to gun control say that, in response to the argument that gun control reduces crime, the high crime rate in the United States can be attributed to flaws in the federal and state criminal justice systems, not to the gun laws that aren't as strict as some would like them to be.

Still, others feel, whether pro- or anti-gun control, that we should look at the root of the crime problem, such as social issues, to efficiently reduce it.

Public Opinion Data

According to the General Social Survey, in which respondents were asked whether they favor or oppose a law which would require a person to obtain a police permit before purchasing a gun, public opinion hasn't changed significantly over the past twenty years. The survey results indicate that the majority of individuals favor strict gun control measures. During the years that the survey was administered, between 1972 and 1994, respondents were asked: "Would you favor or oppose a law which would require a person to obtain a police permit before purchasing a gun?" In 1972, 73% favored, while 28% opposed. In 1994, 79% favored and 21% opposed. Throughout the years, the percentage in favor ranged from 71% to 82%, while those who opposed ranged from 18% to 30%.

Public opinion polls corroborate the earlier findings. Three polls conducted by Louis Harris & Associates in 1971 and 1972 found similar results, with the majority favoring gun control. Respondents were asked: "Do you favor or oppose a system of strict gun control measures under which every gun a person owns would have to be registered?" In January of 1971, the poll found that 66% favored and 30% opposed. In October of 1971, 73% favored and 22% opposed. In June of 1972, 71% favored and 26% opposed.

Other surveys by Louis Harris & Associates summarize the public's attitude towards gun control. For example, over a twenty year span, respondents were asked virtually the same question: "Do you favor or oppose federal laws which would control the sale of guns, such as making all persons register all gun purchases, no matter where the purchase was made?" The following table represents the results from selected years:

YEAR
1968
1979
1989
FAVOR
72%
71%
80%
OPPOSE
22%
27%
18%
NOT SURE
6%
2%
2%
N=
1576
1495
1248

Two other questions regarding gun control measures were asked on another Louis Harris survey in August, 1993. (It should be noted that this was administered before the Brady Bill was enacted). Respondents were asked: "Do you favor or oppose stiffer gun control laws?" The large majority (83%) said they favored, 15% opposed, and 2% were "not sure"(N=826). Another question was posed: "I will read you some proposals for fighting crime. Please say for each if you favor or oppose it- imposing a 5-day waiting period between purchase and delivery of a gun?" Again, most people (85%) favored, while 14% opposed, and 1% were "not sure" (N=1259).

Although different issues of gun control are questioned in these polls, the results still indicate that the majority favors gun control measures. However, the percent in support isn't as high in recent studies as in earlier studies (although this can be attributed to the variation in the questions). For example, according to an ABC News/Washington Post nationwide poll in May 1996, 63% of the respondents said that the government has not gone far enough to control gun ownership, while 24% said gone control has gone too far. Furthermore, the results indicated that 69% support the federal law banning the sale of most assault weapons, while 30% oppose the ban.

Another poll by Louis Harris, which addresses issues relating to firearms control, was conducted from March 21 to April 1, 1997 on-line. Although the response rate was low and the method may be biased, the results indicate that the majority is still in favor of certain firearms control measures. Here, 37% favor making it legal to sell semi-automatic assault rifles, while 63% oppose. However, most respondents (60%) agree that it is dangerous to allow the government to ban the sale of any kind of gun because the government will take away more and more of our rights in the future, while the remaining (40%) disagree. Nearly two-thirds of the respondents (65%) agreed that it makes no sense to allow the sale of assault rifles which are designed for killing people, not just for hunting; 35% disagreed.

In conclusion, it is evident that the majority of the American people do favor strict gun control measures, but the issue continues to be debated, both legally and politically. Opposers of gun control continue to argue for their right to bear arms and contend that gun control is not an effective method to reduce crime. Gun control advocates, however, maintain that this method is extremely beneficial in the fight against crime and it seems that legislation currently reflects that view as well.

*This document must be retrieved; a direct link could not be made. [http://neptune.fedworld.gov/cgi-bin/waisgate?waisdocid=1690020526+1+0+0&waisaction=retrieve]

REFERENCES

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