Guns, Law and Society: Understanding the Arguments
Full video and transcript; “Guns, Law and Society: Understanding the Arguments"; May 29, 2015.
Click the icon to the left to download "The Journalists’ Guide to District of Columbia v. Heller and McDonald v. Chicago" by David Kopel.
Bruce Shapiro: …authority has at least been hinted at and in some ways spelled out by the Supreme Court and all of this is playing out in enormous legal changes both nationally and in particular at the state level which many of you are covering. We are lucky here to have two experts with divergent legal analysis but an equal commitment to getting the story right here. David Kopel, who's research director of the Independence Institute in Golden, Colorado, works with the Cato Institute, has done research in association with the NRA and not in association with the NRA and has, for anyone who has followed these issues, is known as one of the most articulate and thoughtful folks on the sort of Second Amendment gun rights side of the equation.
And again you have everybody's biographies in greater detail. And then to his, should be to his left but to his right, but at least stage left here, is Lawrence Rosenthal, who is a professor at the Dale E. Fowler of School of Law, Chapman University and is a major figure on gun policy, gun law, gun rights in the evolving landscape. I'm going to start, David, with you, and just, but what we'll do, this is not a debate at all. What I asked both of these gentlemen to do is to talk a little bit about where they see the constitutional overlapping political and constitutional legal landscape involving guns at the moment, where they think it's been, where it's going. We'll look for points of continuity, points of divergence, and also think about what the markers are that we as journalists should be looking at as these issues evolve in state legislators and at the federal level.
So David, I'll start with you. Give us your précis.
David Kopel: Okay, I'd like to start off with a little transition from the previous topics. I was the media criticism columnist for the Rocky Mountain News in the years when there was a Rocky Mountain News, and currently I write for the Washington Post as part of their Volokh Conspiracy Blog with a group blog of law professors so I even, my father was also a long time journalist.
One of the challenges whenever journalists cover social science is, because they're not PhDs and econometrics and whatever, it's easy to be vulnerable to junk science and stuff that has Greek letters and lots of numbers and, you know, it has a bottom line conclusion that's interesting to the readers. And that is certainly a huge problem, has been for decades, on the gun debate. You're fortunate that with Dr. Wintemute and Professor Cook, those guys are not at all junk scientists. I've written tons of stuff criticizing pro gun control junk science. These guys are the opposite of that. The Chronicle of Higher Education was doing a biographical piece on Dr. Wintemute and they called me and they said this is very frustrating because nobody will say anything bad about him, and it wasn't that we were scared he was going to have his Mafia enforcers come after us.
I disagree with many of their conclusions and would respectfully challenge some of their analysis, but they're solid, serious scholars who make a valid contribution and if you call one of them for a quote on an issue, they will tell you the truth as best they see it without having made up a lot of shady assumptions to get there. But I would also add that you can, on the social science broadly defined world of this issue, there are also scholars who are more skeptical of gun control measures than they are and are not, and are also eminent scholars. One is Dr. Carl Moody, Carlyle is his full name, he's a professor of economics at William and Mary, and another guy, just to have the top two for parity, is Gary Kleck, who is at Florida State University, and is probably the preeminent scholar on gun numbers. And again, I don't agree with everything Kleck says either.
Audience member: Where does he teach?
DK: Florida State University in the School of Criminology. Florida State, not every place, university that teaches criminology has its own department but they do. And his 1993 book won the American Society of Criminology's highest award as the highest contribution to criminology in a three-year period. His 1997 book is called targeting guns, and that is a good compliment to the cookbook you have, which is a definitely a good survey of the issue. Kleck's is probably the best one stop shopping for gun data. How many men own, what's the percentage of men vs. women who own guns, things like that. Even though it's from '97 it's still a very solid book.
The path of the 2nd Amendment that the Supreme Court has set for us in the Heller decision and the follow ups, and as mostly followed by the lower courts is consistent with the broad view that you heard from professor Cook which is you can have gun rights and you can have gun control. Those are not polar exclusives. In fact, in my own view, when they're both done right, they're complimentary to each other, like yin and yang working together to improve public safety. The reason I haven't been around so far earlier today is today I'm filing a brief in the 10th Circuit Court of Appeals on behalf of almost all of Colorado's sheriffs who are challenging two anti-gun laws that were imposed on our state by the benefactor of this event in 2013. And certainly the sheriffs take the view that you can have reasonable constructive gun controls and you can have strong, and you can have protection for gun rights. And the reasonable gun controls are the ones that really do benefit public safety and the reasonable gun rights are the ones of the rights of law abiding citizens to make their own choices about lawful self defense. It's not a system of, shall not be infringed bumper stickers where nobody, you can't have any gun laws at all. And nor is it a system where any legislative body or anybody else can say, well, I don't think people should have guns, guns are bad, and so we've got to constrict them.
What we see from the social science is in the last 25 years the number of guns in this country has increased dramatically. That's true for 50 years. In 1948 we had one gun for 3 people in the United States. That’s about the level of gun ownership of, say, France today. We now have slightly more guns than people. And as we've had this steady increase in gun ownership the homicide rates have gone up, they've gone down, they've gone back up, they've gone back down again, seemingly with no relation to gun ownership, per capita gun ownership, and likewise crime has gone down dramatically in the last 25 years while gun ownership has gone up. That doesn’t mean cause and effect, but it does mean you don't have to really worry that just gun density per self, per se, is a bad thing.
Accidental child, under 14, fatality rates from guns have plummeted 92 percent since 1973, again, while gun density has gone up. And that's an example of what Dr. Cook is talking about, is how you can have safety measures, including voluntary ones, most importantly, that are consistent with gun rights and that really do protect safety. One of the biggest battles going on right now is on right to carry. There's a right to keep arms and there's a right to bear arms. By legislative action in most states, judicial decisions in a few, we now have all but a handful of states have a process by which a law abiding adult who can pass a fingerprint based background check and safety training classes and your various other processes can obtain a permit to carry a handgun, concealed, for lawful protection in public in general. As with drivers license, it's stricter than that, but it's the same process but it's mostly objective and fair. That's probably the biggest change in gun policy nationally we've had. As of 1988 when Florida passed its shell issue, as they're called, concealed carry laws, there are only about a half dozen states where that was true, that you can generally carry guns lawfully, after getting you could get a permit under a fair basis where you wouldn't be denied because somebody doesn't think people should have guns. And now that's the norm and there's only half a dozen or so outlying states. There is a continuing legislative and judicial battle in those states, but I think the long term trends clearly go in one direction. Regardless of what the Supreme Court says, we may not have, well, even if the Supreme Court rules that the federal constitution doesn't say anything one way or the other about gay marriage, even if they did that, I would expect that in Alabama you're going to have gay marriage sooner or later, and it's just a question of the sooner or later. And I think that's likewise true for licensed carry in public.
There are a lot of, as federal courts and state courts look at the right to arms cases, what really seems to motivate them in general, believe me I was writing this brief, I've been working very hard to write to the mainstream of judicial opinion and not to the, you know, the guys who, not to the pro gun side but to the middle of the road or somewhat left of the middle of the road judges, what they care about is what is the practical burden on self defense especially but on gun ownership in general in a case? And then there's lots of legal doctrine that comes out of that. But really that's the step they're looking at.
Some judges, there is variation among the courts about, well, what do they think really constitutes a significant, a genuine burden that the courts ought to get involved in and do something about. So, and it doesn't have to be a burden that says you can't have, we're going to try to reduce your defensive gun fire in your own home. That's actually the case I'm working on right now in Colorado, which I think by all doctrine comes at the extreme end of the burden side, just one step in from banning guns entirely.
On the other hand, Chicago, for example, passed after it lost the McDonald case and the Supreme Court said it had to follow the 2nd Amendment, they said okay, we only give you a gun permit to own a gun at all in your own home in Chicago if you pass a safety class, or if you pass a proficiency, have live fire instruction at a range. That's a much more strict regulation than almost anyplace else has, but I don’t think any court would strike that down as being unconstitutional. But then Chicago also says, oh, by the way, public ranges in the city of Chicago are banned. And the 7th Circuit Court of Appeals said no, you cannot do that. You can't ban bookstores in Los Angeles just because people can go buy books in Irvine. But besides that, it's ridiculous to say you can't have a gun unless you do something, and getting that something done is illegal within city limits. So that's where, and I think we're, I hope we're almost in complete accord on this, that that's what courts are looking at and what litigants are concerned with and will succeed with more is showing genuine burdens, the cases that come in, it's a violation of my rights because it offends me aesthetically to have to go through this process, usually doesn't get very far in courts. But the ones that say this really is a burden and not just a de minimis one on my practical ability to keep arms, or my practical ability to bear arms, those are the ones that sometimes succeed in court.
BS: So what would be, in addition to this Chicago example of not allowing a range within the city limits when that's what you have to do to qualify, what's another example of a burden that you think, that either has succeeded or that you can prevail in court, can be struck down as an unfair burden. What's another example of an unfair burden?
DK: And let's stick to the ones that have been struck down, and these things I'm going to talk about, some of them are still in litigation but at least they've been struck down so far. So Illinois was the odd man out on right to carry. In New Jersey you can apply for a permit to carry and you won't get one but you can apply. And very few people occasionally get them and that has been upheld by the 3rd Circuit Court of Appeals. Illinois didn't even have that. They had no process at all for someone to carry a gun outside their home. So you could carry outside your home if you're going hunting or it might be on your business premises or you were in certain exempted occupations like licensed security guard, which makes sense, or elected official. So if you're a Chicago alderman you can carry without needing a permit. The 7th Circuit Court of Appeals struck that down and said of course there's a right to carry guns, the right to bear arms is not just the right to bear arms while you're in the militia, marching around, it's the right, and clearly when you destroy the right, that must be a violation of the 2nd Amendment. You know, licensing system, then you got to get into the details, well, is the licensing so restrictive that it almost completely destroys the right or not. That's being litigated in California right now. But the Illinois case was the easy one. Likewise, and that's the end of the case. The 7th Circuit ruled one way, Illinois reformed its law to normalize itself and be like Indiana and Ohio and Minnesota and most of, you know, everything in this country that's not close to New York City or California or Hawaii. To say we've got a process, 16 hours of safety training but people can get a permit.
The federal district court in Washington D.C. did the same thing with Washington D.C.'s post Heller laws where nobody could get a permit to carry. There's no process to even apply. Then D.C. said okay, we'll go along with that. We now have a process to apply but just because you're a member of the general public who wants to be safer, that doesn't count. You have to show you face some extraordinarily high risk different from that faced by the rest of the public. And just a couple weeks ago the district court, federal district court in Washington D.C. said no, that's not complying. You can't have a law that says under one percent of the public can exercise the right.
So those are, and then other things, to go back to Professor Cook's point, technology changes, and I think the reasonableness of gun control laws depends contextually on technology. In the 1930s with the technology that existed then, if you want to say we want to keep guns out of the hands of criminals, it was probably consistent with the 2nd Amendment to say, okay, when you buy a gun, you want to buy a handgun, they didn't care about long guns at the time in almost any state, but when you want to buy a handgun in a store, the store sends a form to the local chief of police and you can't pick up the gun for 48 hours or one day or something like that, because if the police chief sees this and says oh, this guy's a real problem, don't sell him the gun, that was how you could do a background check at the time. Since the late '90s we've had the national instant criminal background check system where you go to the FBI, the store does, or via a state point of contact that does the same thing. Now you can get that check done much better than the local police chief could ever do, huge national databases, in a matter of minutes. And so based on that, a federal court in Texas said this law we have from 1968 saying you can't buy a handgun out of your state of residence, which was really tough for, had a big impact on Washington D.C. residents because there are no gun stores in the city, that’s not constitutional as applied to these people because you don’t need, you know, today, in 1968 you would worry about, what if some guy from Washington D.C. goes to Texas to buy a gun, how do the people in Texas know whether he's a bad guy or not?
Well, now we have the national instant check so there's no legitimate reason to forbid purchasing a handgun outside your state of residence provided you're in compliance with who's a lawful handgun owner where you live and with whatever the gun purchase rules are outside of your state.
BS: So there's this interaction between the evolving state of technology and evolving state of law. That's a good place to stop for now. Let me just say, I actually should have said this earlier, that for any of you who are interested in ideologically diverse and indeed sometimes idiosyncratic but always really, really smart analysis of all kinds of constitutional and legal questions, the Volokh Conspiracy, and I'll put it up on the board later, is a fabulous blog, very, very interesting place, and David is one of the regular writers there.
Professor, your thoughts. Professor Rosenthal.
Larry Rosenthal: Well, I want to start by saying how much I like the title of this panel because it's about guns, law and society. And that's really the context in which I most like to talk about this because guns, I think, David and I can agree they're not inherently good, they're not inherently bad. It all depends on the context. And the law itself also needs to be responsive to the context. So you've got a place, firearms and firearms law in a social context, and with that introduction I want to offer a different perspective than I think you've heard so far, not only from David but even from Professor Cook. Because I object to the notion of discussing firearms in a generic way, their costs and benefits. Actually it seems very clear to me that the costs and benefits of firearms differ radically in our society depending on who you are and where you live. So let me start with the statistics from the FBI. Most recent year statistics are available, the firearms homicide victimization rate for white people in this country was 1.9 per hundred thousand population. The firearms homicide victimization rate, I'm only talking about firearms homicide victimization rate, I'm only talking about firearms homicides, for black people, that by the way is the term the Department of Justice uses, not African-American because it doesn't turn on your citizenship. For black people, the firearms homicide victimization rate is 14.6 per hundred thousand population, more than seven times higher. Now I want to caution you. That statistic is highly misleading. Why is it highly misleading? Because in fact it greatly understates the racial skew of firearms homicide victimization in this country, because firearms homicide victimization is concentrated among young males in big cities. Very hard to find good data about that. But the relatively few criminologists that study this actually just break it out in terms of population size. People try to do it by census track and I'll come back to that, but what the data basically shows is the firearms homicide victimization rate in the last few years, which is thought to be a period of low crime, for white people age 25 to 50, I'm sorry, white males, so let's focus on the higher victimization category, males, is probably about 0.4 per hundred thousand population.
The firearms homicide victimization rate for black males age 18 to 24 is probably about 70 per hundred thousand population. Something like 100 times greater. And if you break it down into census tracks and identify the census in areas of concentrated poverty, the skew is even greater. So some of us remember Mayor deBlasio ran for mayor of New York talking about a tale of two cities. Nowhere is it more vivid, the differences between the society that some of us live in where we can't afford to live in stable low crime neighborhoods, and those of who can't afford to live in those kinds of neighborhoods, that when it comes to firearms crime rates, it's kind of astonishing. I encourage you to report on the rate of post traumatic stress disorder among adolescents in your cities who live in high crime neighborhoods. It's astonishing. It's been reported between 40 and 70 percent. People wonder why there's a racial gap in achievement. If you're not safe going to and from school, small wonder you don’t do real well in school. So in order words, the costs and benefits of the liberal availability of firearms differ radically depending on where you live, or more accurately where you can afford to live.
So let me give you another example going back to this debate about more guns, less crime. You know, there's a lot of debate, it's a great slogan, but one thing that's unquestionable is the studies that were done by Mr. Lott and others on this are studying state wide crime rates. There's actually no claim that when you look at localities you get more guns, less crime. In fact, the work that's been done in this area produces a very different result. The highest rates of carrying firearms in public are in high crime impoverished inner cities neighborhoods like South Central Los Angeles. It's hard to study this. You really need sociologists and criminologists who are willing to go out to the neighborhood. But there is some pretty good data based on reporting about rates of carrying firearms. Why do people carry firearms? It's a combination of people don't feel safe and rates of criminal activity, especially drug dealing is very high in these neighborhoods, and since the law doesn't protect drug dealers they have to protect themselves, and so the rates at which people involved in drug trafficking carrying firearms are probably about 100 times higher than that of the general population.
Are those neighborhoods safer? Most guns, less crime? No, nobody claims that. In fact, not only do those neighborhoods have higher rates of firearms victimization, but those neighborhoods have something called the drive by shooting. It's worth reflecting on that. People just report on drive by shootings. No type of shooting, by the way, is more likely to injure an innocent bystander than a drive by shooting. Why would you do a drive by? Those of you that know something about firearms, David knows a lot about firearms, it's hard to hit a target from a moving vehicle. That's why the rate of hitting innocent bystanders is so high, so why do you do it? You do it if you assume that your target is armed and you need the advantage of tactical surprise and the ability to get away quickly. That's why you do a drive by. Not more guns, less crime in those neighborhoods. We've been talking about the crime drop in recent decades. Phil Cook has mentioned something about that. What he actually didn't tell you is that in almost the entire crime drop is located in big cities and it's related about, there are a variety of reasons for the crime rate, but about a third of it, the data is more and more impressed is actually police related. As urban police departments adopted the New York Comstat strategy of aggressive patrol focusing on statistical of gang, drug and firearms related violence, crime rates dropped. It's really kind of a dramatic showing right now, because when you drive guns and drugs off the streetscape the opportunity for confrontations to turn violent and fail drop dramatically.
Now I've talked about public crimes. There's also domestic violence and suicide present very serious problems. We can talk about them later but I'm going to focus on that. So the last thing I want to say is where does the 2nd Amendment come in. And I want to give you just one example. There's very little David said in general about the 2nd Amendment I disagree with. But I want to give you one example of how this plays out in reportage, and that involves the so called Brady Bill, the requirement for a background check.
Now this turns out to be important because in these high crime urban neighborhoods there is a voracious demand for firearms that are untraceable. If you buy your gun lawfully at a licensed dealer there's a record about who bought it. And gang members don't want these traceable guns because they think it's going to be too easy to trace, to figure out who used the gun. So in fact the vast majority of offenders don’t buy their guns lawfully at licensed dealers. They buy their guns through traffickers. As a result, they don’t need to go through any kind of background check. Not only do they have an untraceable firearm, they don't go through the background check. And what's the law? Well, we could summarize the law in one sentence. It's a little bit of an oversimplification but not much. In this country under the Brady Bill you have, if you want a gun you have to go through a background check, unless you don't want to. You go to a trafficker, you go to a so called private sale, its' not hard. And the data shows it's very easy to circumvent the background check system. So President Obama made a proposal we all remember in 2013 to create a comprehensive system of background checks. That would be only one step toward a system that would make all guns traceable the way that all your cars are traceable. If you want to own a car, you've got to tell the government so that the government can trace your license plate. We don't even come that close to that with guns but the first step toward that is the Obama proposal. So what happens? In the Congressional debate, you actually can do a computer search on Lexus, you will find consistently members of Congress as well as firearms rights lobbyists saying the second, this proposal is consistent, inconsistent with the 2nd Amendment, we are violating the 2nd Amendment. Everybody's got a right to have these guns. There is not a single reputable legal scholar who thinks this background check system poses any 2nd Amendment problem. David just discussed it.
And yet in popular parlance all the time we hear, oh, the 2nd Amendment doesn't permit that, and you guys, now I'm going to pick a bone with journalism, you guys report it. You know, the senator from Alabama, Senator Shelby says there's a 2nd Amendment problem with the Brady Bill and you guys just report it. If Senator Shelby says, you know what, we've got to change the murder laws because we've got to have an exception for people who kill others as part of a religious sacrifice, because of course you can't interfere with human sacrifice for religious, if Senator Shelby said that you'd write that he was a nut, that he was dangerous. But in fact this is about the only legal issue I can think of where crackpot arguments just get reported on by journalists who take it all with enormous credulity.
Now it seems to me that that's where journalism really can make a positive contribution to this debate. I agree with David that the 2nd Amendment has meaning but I also agree with David that actually there's a system of regulation that could at a minimum make guns traceable so that the legal risks of using a gun in a crime would be much greater. That doesn't even pose a colorable 2nd Amendment problem. The 2nd Amendment gets used as a pretext basically for people who are actually defending a system that says all right, we're going to have a background check system unless you don't want to go through a background check.
Now, what's the policy argument for that? There's a policy argument. Let's get rid of the whole background check system because it's a waste of money, it doesn't accomplish anything. But they're not willing to say that. They're just saying let's spend the money on background checks as long as anybody who doesn't want to go through one can avoid it. How do you get away with making an argument like that? I think the only way you get away with it is you put it in this constitutional garb. And the way everything gets reported, well, legal experts on one side say one thing and legal experts on the other side say something else. Just like there's crackpot legal discourse in any other area of the law, there's crackpot legal discourse here, there's just a lot more of it. And that's my pitch to you.
BS: Let me ask you both something and then we'll move to questions from the room. As you look around what's out there in the courts now, are there either individual cases or individual issues that you think we should be paying attention to for what they may foretell, about how issues like the burden are resolved, how these contradictions, Larry, that you're describing are resolved. And let's maybe leave the Colorado case out, just in the sort of, the conflict of interest zone. But even though, because you're working on it we know it's interesting. But so besides that.
DK: Well, for what's going on at this moment, there's an interesting law, case, with a petition for XX before the US Supreme Court called Jackson vs. San Francisco coming out of the 9th Circuit. San Francisco says your gun in your home has to either be locked up or you've got to be wearing it. So when you're home you can't, and you know, you might want to have the gun accessible for self defense because in those tough neighborhoods of Chicago or San Francisco or wherever, it's not just a question of geography about do guns affect safety or not, it's guns in whose hands. Guns in the gangbangers hands make everybody more unsafe. The people who, law abiding citizens live in those places have a right to protect themselves and certainly, especially in their home, and San Francisco says you can't have your gun available in a practical sense for self defense in your own home unless you're actually wearing it.
BS: So it's a lock or carry.
DK: Lock or carry. So the Supreme Court has actually relisted it four times, meaning they have these conferences on Monday. Okay, what cases are we going to grant XX, which ones are we going to deny, and then we'll, and this has gotten relisted a lot, which is an interesting thing for court watchers. It is not, the hope on one side is the Supreme Court will just grant, vacate, remand, say we don't need to hear this case, did you notice in Heller we said you have the right to have a gun in your home for protection in a functional sense, and we're not going to go to this ridiculous level of saying it's got to be locked or on your body. You know, maybe if you've got kids in the home there can be rules for that, but to say that you can't have a loaded rifle for defense in your home when you live by yourself, for protection without wearing it on a sling, is preposterous in my view.
I would add, one of the things I'd urge you to look at, because this is, we're here in a global sense for the promotion of the Bloomberg initiatives in Arizona and Nevada. Take a look…
BS: Full stop. Sorry, got to do it. We are here for the promotion of good journalism.
DK: There are some who hope that this will lead to the promotion of those. Dig into the laws because when you listen to that the way Professor Rosenthal described it, yeah, it's a very common sense thing. But there is a large disjunction between what he described vs. the things that get on the ballot. In Washington State you have firearms museums that are having to return the guns to their donors because there's a law about private gun sales that was passed by initiative but all the fine print is incredibly oppressive. It's making it difficult in Washington State and Colorado and lots of other places to do normal things with guns like provide safety instruction in person when you're not doing it at a gun range, for law enforcement to return firearms that have been stolen to their rightful owners or that were secured after an automobile accident.
So that's, we're talking about the disjunction between people with nutty constitutional theories vs. reality. Reality is not just what the federal courts say. Because if that were, well, that's a separate issue.
BS: What you're saying is, keep an eye out for cases in which burden is raised in an interesting, novel and genuine way.
DK: Yeah, and when you cover gun laws in your state legislature or state ballots, don't just cover the top line concept of the law, whatever that is. The details of the law are tremendously important and it can make a law that in concept is fine much, much, much more burdensome than you would think if you just knew the title of the law.
LR: I'm going to suggest a slightly different take on this, because you know, the people on the regular courthouse beat, they can see the pending litigation. What I find striking about so much of this journalism about the crime problem in the inner city which all of a sudden is of interest to people in the last six months is how guns are invisible in this reportage.
Let me give you just two examples. The George Zimmerman case that everybody talked about, and then he wound up being acquitted, and so I guess the press decided well that means there really wasn't an issue. Well, you forget, a great journalist, TRB column in the New Republic used to have what was called TRB's law of scandal. The real scandal was never what's illegal, the real scandal was always what's legal. Florida law combined three features. The first was you were allowed to follow somebody that you found suspicious. Florida stalking laws had been interpreted to permit that kind of private vigilantis. Second, Florida law has this shall issue permit scheme. Basically anybody who doesn't have a prior felony conviction can get a permit and carry a concealed weapon wherever they want in public. Third, Stand Your Ground law. If somebody is coming at you, you don’t have to retreat. You combine those three elements and what could go wrong? The problem, the reason that a teenage is dead in that case is because Florida permits armed untrained vigilantes. Mr. Kopel's so concerned about, oh, how can we require training…
DK: I never said that. To the contrary.
LR: Well, I think training should be burdensome if you're going to carry a gun. You know what, to get a law license you need three years of training and it's real burdensome, and it's real expensive. Going out to a range. They were complaining in the D.C. litigation which was argued in the court of appeals, the D.C. circuit recently, that it might cost as much as a hundred dollars to get yourself trained to get a permit.
DK: What case are you talking about?
LR: The Heller case. Heller 3.
LR: And so my point is, of course, that when you combine a scheme that says you can get a permit without any real training and you can act as a private vigilante and follow people that you find suspicious and when they get, when a teenage loses his temper because this guy is following him, you don’t have a duty to retreat, confrontations are going to turn violent. Now there's all this reportage about police shootings lately. And why does everybody think the police are so nervous in these confrontations? Just because they're a bunch of racists? No, it's actually not the case because in all these neighborhoods they are in high crime areas in which the rate at which people carry firearms is extremely high. And that fact, how the prevalence of firearms drives this friction between the police and the community is never reported on. The guns are invisible in so much of this reportage, and so that's what I ask you to consider when you're looking at these stories. What is the impact of the liberal availability of firearms in so many jurisdictions on these issues?
BS: There's more to say on this…
Audience member: I found your analysis of the Heller and the originalism to be fascinating. I want to read it again and again. But on page 8 you talk about the quote that it is permissible under, the court observed that it is permissible for the state to prohibit possession of firearms by felons or mentally ill or laws forbidding the carrying of firearms into sensitive places such as schools and government buildings. And I immediately thought of Florida, where I worked for 21 years where they're talking about letting you carry a gun into Disneyworld and all of that. So are you saying that it's a legislative prescription rather than a court prescription to essentially restrict this? The courts give the states the ability but the states in fact decide, no, we're going to let you carry a gun wherever or stalk or, because I couldn't agree with you more, all these laws were passed while I was there, and this was the prediction that was, what was going to happen.
LR: That's right, although I do want to add a caveat which is that so much depends on where the gun is being carried, because there's enormous difference between a regulation in a stable, or aggressive law enforcement in a stable low crime neighborhood, and in these inner city neighborhoods. I like to say to groups, you know, if Montana legalized everything, even Bazookas, everybody can carry Bazookas, no permit, you know, it would be fine because Montana has stable low crime people. The ones who want Bazookas in Montana are probably responsible collectors. It would be fine. But you give people the right to open carry in public in high crime inner city neighborhoods where the gangs are fighting with each other, and we go back to a situation where basically the police can't intervene until after somebody gets shot, and then nobody will talk to them because if you do a gang beat, you know that witnesses are afraid to talk to the police. There is a reason why the police adopted these strategies in inner city high crime neighborhoods of trying to get the guns off the street because once somebody gets shot, it's too late. So the real political, legal and sociological problem here is that costs and benefits look different depending on where you live. I got involved in this issue when I was working for Mayor Daley in Chicago and he had a line. When he would go to these high crime neighborhoods, usually African-American neighborhoods on the south or west side of Chicago and he'd say the following line. He'd talk about the firearms right people like the NRA, he'd say they want to protect their liberty or what they think is their liberty by letting the gangbangers run your neighborhoods. Now we might think that's kind of cute, or maybe David might thing it's misleading.
LR: Or libelous. But what we might not anticipate is that that line brought the house down because when you live in those neighborhoods, the balance between liberty and order just looks so much different…
BS: It does raise interesting questions about how if you take this kind of risk analysis or some of the cost benefit analysis we saw this morning, how you craft a law that's targeted at impoverished young African-American populations that is neither a racist, segregationist nor otherwise discriminatory legal regime, right?
LR: Well, I got a couple of thoughts on that. The first is, one of the great policy tragedies of the recent firearms right movement in legislatures is to try to strip local governments of the authority to create their own laws. You know, in Chicago we used to have this argument with the state legislature all the time. At just let us do what we want. We live in a majority minority city. About 70 percent of the voters in Chicago are African-American or Hispanic. If they don't like the balance between liberty and order, they'll let us know in the next election but it's no accident. If you talk to the mayors in these cities, they see it differently. But it's been part of the firearms right movement to make all these decisions one size fits all made at the state level, so that you can't have local policy. And then when you have an overlay on top of that of the 2nd Amendment to further nationalizing policy, you know, the firearms right movement really has an ultimately goal of letting everybody carry guns wherever they want. And in a lot of areas, it's not too different than those red and blue maps that you see, in a lot of areas that would be fine. But the political problem is that the voters who live in these safe low crime areas where guns really don't cause a problem, putting aside suicide and domestic violence, which are big qualifications we haven't talked about yet, but putting aside those, the bottom line is how often do relatively wealthy privileged white people give up their liberty in order to help struggling inner city neighborhoods? The history of this country suggests almost never.
And that's what we wind up with in firearms like so much else.
BS: Another couple questions here?
Audience member: Can you talk a little bit more of the fear of 2nd Amendment rights? You say that there is no real risk for some of these proposals, that people's rights to bear arms go away but there's still like a fear but obviously the general public listens to the big voices. So if media reports and politicians are saying it, then XX but where is it really coming from?
DK: I will answer that one. People resist gun registration and federal law has repeated prohibited the compilation of federal gun registration databases. The first such law was enacted in 1941 on the eve of World War 2 because they saw Nazi and Soviet gun confiscation for tyranny and it's been repeated in federal law since then. That doesn't prohibit state centralized registration. They can see in New York City where people register their guns as they were told to do when a law passed for Mayor Lindsay in 1967 and then they turn around and see those guns being retroactively criminalized under the David Dinkins regime and under the Mayor Bloomberg regime as well, where if you have a rifle that holds six shots, those are being confiscated in New York City currently because they're registered.
So the fear of confiscation is not chimerical in practice, and people who, Mayor Daley, surrounded by bodyguards in the city that banned handguns, banned gun stores, banned gun ranges, was to many folks not credible to say, you law abiding people who live on the south side, you shouldn't be allowed to get a permit. The gang bangers are carrying guns all over the place. Why is it that a law abiding 25 year old woman who will go through 16 hours of safety training in Illinois, that's the toughest law in the country on that, pass a fingerprint based background check, pass through a process which actually has a discretionary veto along the way if there's some problem other than, it's not just felonies, there's lots of disqualifying conditions, and discretion to exclude even that, why can't that person carry a gun when the criminals are carrying guns too and for whatever reason Chicago's gun laws are not doing a good job of keeping guns out of their hands. And I know there's arguments on that. State laws aren't tough enough. It's all Indiana's fault, etc. But whatever the conditions for that reality, that woman lives in a situation where she'd like to protect herself, and why doesn't she have the ability to have that choice?
The mainstream of this country, on the gun issue, is both pro control and pro gun. They think it's perfectly fine to have background checks when you buy a gun. They also think it's perfectly fine for you to have whatever gun, you know, not a machine gun or a Bazooka, and I can't wait to tweet out that Professor Rosenthal is going to help the open carry Bazooka movement in Montana. He's against it in California. The Bazooka lobby will look forward to your testimony.
LR: Bazookas don't kill people. People who shoot Bazookas or other people kill people.
DK: Yeah. There's polarization on both sides, and the fact is, so many of the leaders of the gun control movement, not legislators who vote for it necessarily but the spokespeople come across with such obvious contempt for the idea of people, of ordinary citizens who can't afford bodyguards having guns at all, and then you see things, like we're talking about the Washington and Colorado laws where they come across as very nice at the top line but incredibly destructive. And so when these people keep passing incredibly destructive laws, well, that makes one suspicious that the next time they come up with something, you know, this is not really something that's just the moderate balanced solution but rather a step towards the destruction of the right.
And you see it on abortion too. I mean there are, there a lot of people, I think that the center of gravity in this country is that there should be, whether it's a constitutional issue or not, the policy should allow abortion in some circumstances, it shouldn't be completely prohibited, but on the other hand there should be some law and regulations about it. And the reason the pro choice lobby resists things which are very politically tough for them to do, you know, things that when you ask them at the top line question, you know, might have 75 approval on a particular regulation of abortion but they resist that fiercely even though it's tough for them politically because it makes them look bad to the moderates who only understand the story at the top line, is they understand that the people who are pushing this want the utter eradication of abortion under all circumstances and so they are afraid that if we even give in on something that kind of looks reasonable, that it's just, these people who are pushing it on the other side are just using Fabian tactics to slice us into non-existence one step at a time.
LR: You know, I agree with what David just said. There's a striking congruence between the NRA fundraising letters and the NARAL fundraising letters. They're both like, oh, they never object to the current proposal, it's just this is part of the larger agenda to take all your abortion slash gun rights away. Some people in the regulation movement thought that the Heller opinion was actually a good thing because it offered a constitutional right to possess at least some firearms and so you could no longer credibly argue that, oh, this is just the first step toward confiscation because the 2nd Amendment prohibits confiscation of at least the quintessential self defense weapon, according to the Supreme Court. And that didn't happen, because the fundraising logic on both sides remains the same. I think that the politics of this, just to finish, because it looks like we're getting impatient here.
BS: No, no.
LR: But why is it that the only time this ever comes on the national agenda is when firearms violence comes into the suburbs? You have slaughter in Newtown and all of a sudden it's in front of us. You have a slaughter in Columbine and it's in front of us. But you know, in all your beats, in the high crime inner city impoverished areas, this kind of firearms violence is going on all the time but it's not reported on. It's because when the costs are concentrated in this relatively disadvantaged and powerless community, society doesn't really care very much. When the costs seem to be spreading to a broader population, then all of a sudden the politics of it changes. This is just another legacy of our entrenched inequality, especially racial inequality. And so we find that even proposals for local regulation, just let the big cities regulate in this manner, and if people don't like it, they can move to the suburbs, even those are attacked as the camel's nose in the tent. So at the end of the day I don't think, I think facts ultimately will follow policy, and this is why I have a beef with the press, because so little of the facts about what the liberal availability of firearms does in this inner city communities gets reported.
Fifty years if somebody had said that we would wind up with enormous drops in the rate of smoking and cancer, it would have been scoffed at. But what happened is, starting with the Surgeon General's report, the facts came out and then ultimately, it took decades but the policy followed, I think that the firearms debate, however it's resolved, is only going to be resolved if the facts are reported.
It's no accident, I think, that one of the priorities of the House and Senate Appropriations Committees when they've been under Republican control is to press the CDC not to fund firearms research, because I think the greatest fear of many people on the other side of this debate is not the next regulation. In fact we don't yet have enough political support for the next regulation. It's that we're going to wind up with something like a Surgeon General's report and that will change the politics.
And my final point is that, you know, what David is talking about, the illogic of some of these bills, he's really on to something, but part of the problem here is the politics push for compromise, but policy doesn't. The reason the Brady Bill is so ineffective is because a political compromise had to be struck in Washington to have these big gaping exceptions to background checks. Turns out that criminals, gun traffickers, don't really respect the need for compromise in Washington. You give them a loophole in the name of compromise and it undermines the policy efficacy.
So that’s why a lot of these tortured compromises that emerge from the legislative process really don't look very good as policy matters
BS: Let me ask the two of you to actually look within your own movements, within sort of the gun rights movement, the gun control campaign, if you want to break it down in that polarized way, and ask actually within your own camps what you think the most important divisions and arguments are at the moment. Because that's another thing that I think as journalists we don't pay enough attention to. We are guilty sometimes of oversimplifying campaigns and communities in which there are a lot of divisions and a lot of arguments. David, do you have any, I mean you've been on the receiving end on some of these.
DK: Well, gun rights is not just the NRA, although it's the leading organization. And gun control advocates are not just one organization either. The Brady Center which was the big, called handgun control at the time, which was the big deal in the '90s, and every town these days there, you know, any group, people you look at are going to be diverse and there's going to be a range of views within it. There is, one of the challenges that I think the constructive pro gun organizations face, well, there's two challenges. One is, you know, free speech. There are people who are, shall not be infringed as well. I mean that's the traditional ACLU position, is no, you want to pass a law against interstate trafficking of child pornography? No. That's a censorship law, and no, we're not in favor of child pornography but it's, you know, we're worried it could be abused…
BS: No law means no law.
DK: Exactly. No law means no law. And you get exactly the same argument in the 2nd Amendment from some people. It is not the position of the NRA, because the NRA is interested in passing legislation and if you say we're going to, you know, perfection or nothing, you never pass anything. So whatever rhetorically you hear, it is successful at passing laws because it makes the compromises that you do to pass things, just like the Brady campaign does the same kind of thing. They may have their ideals of a mostly gun free society but they take what they can get, you know, moving step by step in the legislative process. And there are ultras on both sides who resist making forward progress and I would say there are also cynics on both sides who are not operating, who operate fundraising organizations that mainly don't do the job. So the same issue is in the Tea Party.
The Tea Party movement, whatever you think about that, a lot of people who believe in a cause, and there is no a Tea Party, you know, they're not the national Tea Party organization that sort of sits atop or the Everytown Tea Party, you know, you don't have two dominant organizations, there's a multitude. And some of these Tea Party organizations are, do what they say they're going to do, which is give us money and we'll give it to candidates who agree with you and run public education for this point of view, and others are really, if you just give us more money, if you give us money, we will invest that money to raise more money and then we will use that money to raise more money and we will scam the entire public by saying, oh, you know, we're raising it for our PAC and we don’t give that much money to the PAC or we call this money lobbying by which lobbying we mean sending fundraising letters to people that mention some big issue in Congress. That is a problem on the fringe of the Tea Party, it is a problem on the fringe of the gun rights movement. There is a, this is a Colorado issue, there's a guy named Dudley Brown who in my view is running a fairly successful scam called the National Association for Gun Rights which claims to outspend the NRA in lobbying, which is shocking because the NRA has a staff of paid lobbyists and a building, small building near the Capitol in Washington, D.C., and that's what they call their lobbying expense. This guy has one contract lobbyist but all their fundraising and all this stuff they misclassify as lobbying. And he's a classic of don't solve the problem because then I can raise less money.
BS: So within the gun lobby one important issue is are in fact these…the exploitatives and scammers.
BS: What about intellectual division?
DK: Constitutionalism is not just, we both use constitutional law. There is the constitutional doctrine of anything as it exists in the court decisions of the moment. So you're teaching students what is the constitution, you teach them what law is, but you don’t teach constitutional law as this fixed thing because it has changed and it has changed as a result of the aspirations of the public which over the long term affect things. So if you said in the NAACP meeting in 1930 the Equal Protection clause of the Constitution forbids racial segregation in the public schools and in fact requires the Alabama State Troopers to take affirmative action to make up for their past discrimination in only hiring white troopers, they actually have to go beyond non-discrimination, they've got to affirmatively reach out to hire black troopers. If you said that in 1930 at the NAACP meeting, said that in law school, people would say you were freaking crazy and they would call the mental health police and you would be carted off because they didn't have due process protection at the time.
But that in fact is what the Constitution became and it became that partly by aspiration. The 2nd Amendment, whatever it existed in its original meaning, as of 1980 got not protection from the courts, and yet legislators would say with all sincerity the 2nd Amendment forbids this, and what they meant is in my view being faithful to the Constitution, which is my job, not just to rely on what the courts will let legislatures get away with, this is wrong because this is my view of the 2nd Amendment that happens to mirror the view of the majority of the public.
So in the gun rights movement there are people who say the 2nd Amendment means X and they may not have a completely absolutist view but they're more in that direction, and then there's, and that is aspirational constitutionalism and aspiration constitutionalism comes true all the time, it's why the New Deal eventually became constitutional even though it wasn't, certainly by constitutional doctrine from the founding up until 1930 or so.
But aspirational constitutional is not the same as what you win a case on in court today. And there's always a problem on the litigation side of this issue, of people who have their dream of what the Constitution should be but can't separate that from what the federal courts or the state courts will, you have a reasonable chance of getting from them today without making bad precedent.
BS: Larry, most important arguments on the gun regulation side?
LR: Well, I do agree with David. He's really on to something when he says that there are some people I think in the pro regulation movement whose objections to firearms seem to be almost aesthetic or cultural, but it seems to be a knee jerk reaction as opposed to policy driven reaction. Now, that's why I think the work done by people like Phil Cook and Garen Wintemute is so important. I left the city of Chicago before they wound up having to rewrite their gun laws, and I told them, you know, I gave them the opinion. You're going too far, the gun range thing that David's talked about. It seemed to me to be indefensible. And the reaction was among the politicians was, no, we can't give an inch. Now that's because they are living in a high crime majority minority city and they felt the political need not to give an inch. But it seems to me that effective firearms regulation policy, like any kind of effective policy, has got to be policy driven. And I do think there's a distinction between the people whose focus is mostly political, they're looking at the wins and losses in Congress and the state legislature and they're trying to think, you know, either we got to beat this bill or let's pass something even if it's full of holes and loopholes to show we can pass something, and the people who are advocating policy driven regulation. And it is my hope that the policy driven regulation side of the regulation camp prevails.
BS: Okay. I think that's a great place to stop. Thank you both. [Applause] This is a conversation that could go on all afternoon.