From the Harvard Law Bulletin, Summer 2007 edition article “Lawyers, Guns and Money”:
No gun-control strategy with any chance of surviving the political process would have a significant effect on overall gun violence or crime, (Harvard Law Professor Mark) Tushnet believes. To say so publicly would be the boldest and most honest stand that a major politician or candidate could take, he adds.
First runner up, from the same piece:
In the past 20 years, several prominent legal scholars known for liberal views, including Professor Laurence Tribe ’66, have come to believe that the Second Amendment supports the individual-rights view. In the 2000 edition of his treatise “American Constitutional Law,” Tribe broke from the 1978 and 1988 editions by endorsing that view. Other liberal professors, including Akhil Reed Amar at Yale Law School and Sanford Levinson at the University of Texas at Austin, agree.
“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe said in a recent New York Times interview. “I have always supported as a matter of policy very comprehensive gun control.”
Intellectual honesty will sometimes lead you places you’d rather not go.
Now, to repeat something I’ve quoted several times before. From the conclusion of a 1983 meta-study of all the available research on gun control legislation at that time, authors James Wright and Peter Rossi wrote in Under the Gun: Weapons, Crime and Violence in America:
The progressive’s indictment of American firearms policy is well known and is one that both the senior authors of this study once shared. This indictment includes the following particulars: (1) Guns are involved in an astonishing number of crimes in this country. (2) In other countries with stricter firearms laws and fewer guns in private hands, gun crime is rare. (3) Most of the firearms involved in crime are cheap Saturday Night Specials, for which no legitimate use or need exists. (4) Many families acquire such a gun because they feel the need to protect themselves; eventually they end up shooting one another. (5) If there were fewer guns around, there would obviously be less crime. (6) Most of the public also believes this and has favored stricter gun control laws for as long as anyone has asked the question. (7) Only the gun lobby prevents us from embarking on the road to a safer and more civilized society.
The more deeply we have explored the empirical implications of this indictment, the less plausible it has become. We wonder, first, given the number of firearms presently available in the United States, whether the time to “do something” about them has not long since passed. If we take the highest plausible value for the total number of gun incidents in any given year – 1,000,000 – and the lowest plausible value for the total number of firearms now in private hands – 100,000,000 – we see rather quickly that the guns now owned exceed the annual incident count by a factor of at least 100. This means that the existing stock is adequate to supply all conceivable criminal purposes for at least the entire next century, even if the worldwide manufacture of new guns were halted today and if each presently owned firearm were used criminally once and only once. Short of an outright house-to-house search and seizure mission, just how are we going to achieve some significant reduction in the number of firearms available?
Professor Tushnet just restated those two paragraphs with a simple observation: There is no politically acceptable legislation that can be passed that will have any significant effect on gun violence or crime in this country. This is why our opponents try everything to avoid having to submit to the political process. This is why their referendums almost always fail, and badly. This is why they have taken to the courts to achieve their ends, still unsuccessfully as exhibited by these quotes from several decisions dismissing such suits:
“In the view of this Court, the City’s complaint is an improper attempt to have this Court substitute its judgment for that of the legislature, which this Court is neither inclined nor empowered to do.”
“In substance, the City and its Mayor opt to engage in efforts at arbitrary social reform by invoking the process of the Judicial Branch of Government, where apparently the City perceives, but fails to allege, irreversible failures in the appropriate Legislative Branch(s) of Government…. The City should not be permitted to invoke the jurisdiction of this Court to overlay or supplement existing civil and criminal ‘gun’ statutes and processes (either state and federal) by means of a series of judicial fiats which, when taken together, would only create a body of ‘judge made gun laws’.” – Special Judge James J. Richards, Lake Superior Court, County of Lake, City of Gary v. Smith & Wesson, Cause No. 45D05-005-CT-243, slip op. 7 (Ind. Super. Ct. Jan. 12, 2001).
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“The County’s request that the trial court use its injunctive powers to mandate redesign of firearms and declare that the appellees’ business methods create a public nuisance, is an attempt to regulate firearms and ammunition through the medium of the judiciary…. The County’s frustration cannot be alleviated through litigation as the judiciary is not empowered to ‘enact’ regulatory measures in the guise of injunctive relief. The power to legislate belongs not to the judicial branch of government but to the legislative branch.” – Judge J.J. Fletcher, District Court of Appeal of Florida, Third District, Penelas v. Arms Technology, Inc., 778 So.2d 1042, 1045
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“Although this public nuisance lawsuit is brought by the Attorney General on behalf of the State of New York – while the Hamilton action was one initiated by private parties for negligent marketing – both were brought against handgun manufacturers and sellers. Plaintiffs attempt here to widen the range of common-law public nuisance claims in order to reach the legal handgun industry will not itself, if successful, engender a limitless number of public nuisance lawsuits by individuals against these particular defendants, as was a stated concern in Hamilton (96 NY2d at 233). However, giving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.
“All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born. A variety of such lawsuits would leave the starting gate to be welcomed into the legal arena to run their cumbersome course, their vast cost and tenuous reasoning notwithstanding. Indeed, such lawsuits employed to address a host of societal problems would be invited into the courthouse whether the problems they target are real or perceived; whether the problems are in some way caused by, or perhaps merely preceded by, the defendants completely lawful business practices; regardless of the remoteness of their actual cause or of their foreseeability; and regardless of the existence, remoteness, nature and extent of any intervening causes between defendants lawful commercial conduct and the alleged harm.” – from the appeals court decision upholding the dismissal of New York v. Sturm Ruger et. al.
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“Knives are sharp, bowling balls are heavy, bullets cause puncture wounds in flesh. The law has long recognized that obvious dangers are an excluded class. Were we to decide otherwise, we would open a Pandora’s box.”
“The city could sue the manufacturers of matches for arson, or automobile manufacturers for traffic accidents, or breweries for drunken driving. Guns are dangerous. When someone pulls the trigger, whether intentionally or by accident, a properly functioning gun is going to discharge, and someone may be killed. The risks of guns are open and obvious.
“We hold that the trial court properly dismissed the city’s complaint. The city’s claims are too remote and seek derivatively what should be claimed only by citizens directly injured by firearms. The city cannot recover municipal costs. We overrule its assignment of error and affirm the judgment of the trial court.” – Judge Ralph Winkler, Ohio 1st District Court of Appeals in the decision upholding dismissal of Cincinnati’s lawsuit.
What we have is a stalemate in which one side (with the singular exception of the Violence Policy Center) will not admit to its endgame, which is obvious to those of us on the opposing side who are paying attention. Constantly we are told that “the number of guns” is the problem. Not culture, not revolving-door prisons, not poverty, not “the War on (some) Drugs,” not anything but “the number of guns.” As Say Uncle has pithily stated, “Gun control is what you do about crime instead of something.” Yet we are also constantly told that our opponents don’t want to ban anything. Well, except for “Saturday Night Specials.” Or “Pocket Rockets.” Or “.50 Caliber Sniper Rifles.”
But nothing short of a real ban, and its accompanying confiscation, can actually reduce “the number of guns.”
In the hands of the law-abiding.
And that’s not politically achievable. Nor does it seem to be achievable through the courts. (And, as we’ve seen with England, it wouldn’t help anyway – but then it’s not my philosophy, it’s theirs.) So short of that their tactics have become: “We don’t want to ban guns, we just want to make possessing them so legally and financially burdensome that people will voluntarily give them up.” Do that long enough and what wasn’t politically achievable eventually becomes possible, because the people who used to know better – we gun owners, the “gun lobby” – become overwhelmed by those who have never so much as seen a firearm other than in the hands of a government employee or a criminal thug.
After all, it worked in England!
Not on my watch.
