Why gun control won't work

...What good would stronger laws do when the courts have demonstrated that they will not enforce them...

...The problem is that our prison system is desperately overcrowded with almost 300,000 inmates...

...Unable to bring themselves to sentence shopkeepers and the elderly to prison, the judges impose only modest fines...

...These homicides occurred despite an interdiction more perfect than anything NCBH could imagine: there were no guns in the thirteenth century...

...By the same token, it is absurd to suggest that a person so disturbed and aberrant that the penalty for murder cannot curb his violent outbursts will worry about an extra five-year penalty for murdering with a gun...

...On sober reflection, however, it is difficult to take this conclusion seriously...

...Judge Shields has testified before Congress in favor of federal handgun prohibition-perhaps in hopes that the responsibility for enforcing that would fall on the federal judiciary rather than upon his Court...

...Michigan and other states which have enacted such legislation do report a substantial decrease in gun robberies...

...THE POINT OF all this is that the issues are a great deal more complex than the proponents of either interdiction or deterrence-based mandatory penalties realize...

...Remarkably enough, interdiction advocates have seized upon the same device to enforce their proposed handgun ban: a federal permit requirement administered to exclude the ordinary citizen (i.e...

...The deterrence strategy allows people to own guns, but seeks to deter misuse by the threat of heavy penalties...

...Basic to those schemes is the belief that handguns (or at least firearms of all types) are the deadliest of weapons...

...Unfortunately much potentially useful energy was defused into the perennial handwringing about "a society that refuses to impose any rational restraints upon the spread of firearms" (Phil Kerby, Los Angeles Times, January 15, 1981...

...The unseen consequence when legislatures mandate imprisonment for all gun criminals is more pressure to release other criminals whom judges would have individually evaluated as more dangerous-and to release murderers who have served their mandatory seven-year sentences even if they continue to be dangerous...

...Judge Shields of Chicago's special Gun Court, which was the subject of the Bendis-Balkin study, describes the poignant human factors involved: most defendants coining before him have no criminal record...

...Close inspection exposes a variety of flaws in such arguments...

...Similarly the most extreme deterrence position is articulated by the pro-gun organizations, e.g...

...He is the editor of Restricting Handguns: The Liberal Skeptics Speak Out...

...they are secretaries, shopkeepers, the elderly-often people who have previously been victimized by violent crime-who carry guns because they are vulnerable, terrified and have no other way of protecting themselves...

...Though robber-murder is rare, it is rarer still if the perpetrator's weapon is not a firearm...

...One pioneering Chicago study, by Bendis and Balkin, denies that the failure of the present law against carrying handguns necessarily proves either NRA claims that gun laws can't work or NCBH claims that only a total ban will work: "It is very possible that if gun laws do potentially reduce gun-related crime, the present laws are all that is needed if they are enforced...

...For England had this in a more rigorous and drastic form than even the NRA proposes: during all the period 1200-1820 in which England led Europe in murder, rape, robbery, burglary, larceny, etc., all those and many other crimes were mandatorily punished by death...

...violence to the adoption of interdiction legislation there-even while unblushingly citing the failure of New York's, New Jersey's, and Michigan's much more drastic interdiction laws as proof that even state handgun bans are inherently unenforceable without a nationwide ban...

...Nor, contrary to NCBH's claims, can England's relative peacefulness today be attributed to its present interdiction policies...

...Note, however, mat there is no decrease in robbery overall, for, as gun robberies go down, robberies with other weapons increase...

...It would appear that Detroit's homicide reduction is but another of those unaccountable local (and temporary) fluctuations in violence rates which have so frequently been mistaken for the product of some gun control policy...

...As the NRA itself never tires of pointing out, most murders are committed not by your average firearms owner, but by disturbed, aberrant, sociopathic persons with long records of irrational violence-losers whose frustrations are expressed in violent outbursts against those immediately around them...

...A minimum five-year penalty would have substantial deterrent impact upon the average citizen (or even the average robber or burglar) who might be contemplating committing a crime with a firearm...

...Thus anti-gun organizations have attributed some rather unimpressive recent reductions in DON B. KATES, JR., a former civil rights worker and O.E.O...

...England had no "gun control" until it abruptly banned handguns in 1920, a century after violence rates began a steep decline...

...But it may BE useful to hear from the other side, before blindly following the NRA and the NCBH into abolishing judicial discretion in sentencing...

...In other words, the NRA is largely responsible for most of the present laws whose failure it claims proves interdiction doesn't work...

...But the NRA does not suggest the repeal of such present interdiction legislation...

...Real reduction in criminal violence cannot be accomplished by trying either to take away weapons or to frighten criminals out of using them...

...The history of crime in England is instructive...

...The NRA's position is more embarrassing...

...It will come only when economic, political, social, and cultural changes greatly reduce our production of people who want to misuse guns, knives, agricultural implements, etc...

...Judicial discretion to single out the most dangerous offenders is considered par-ticulary necessary today when prisons are so overcrowded that the choice is between allotting long sentences to some criminals or short sentences to all...

...For example, the per capita homicide rate in thirteenth-century England exceeded that in our worst American cities today...

...The NRA could maintain its consistency, though at considerable political cost, by frankly avowing these laws as experiments whose failure proves the futility of any form of gun control...

...Yet those homicides were remarkably similar to ours, most perpetrators being disturbed aberrants, often alcoholic, and the victims their relatives and acquaintances...

...the owners of ninety-nine percent of America's present sixty million handguns) who would be subject to mandatory imprisonment for at least a year if caught with a handgun...

...This should not be misunderstood as opposition to "gun controls," however...

...Beyond the human costs of either the deterrence or interdictionist forms of mandatory imprisonment are the financial ones...

...It will startle those who know England today that, until the early nineteenth century, it was considered the most violent country in Europe...

...But some people have no choice...

...In this case, the long and difficult solution is the only solution, despite the illusory attraction of cosmetic short cuts.on of cosmetic short cuts...

...Both sides alternate between pointing to violent crime as proof that present gun laws don't work and claiming that the efficacy of their own proposed additions is proven by local (and invariably temporary) reductions in violence in some jurisdiction which has adopted part of their program...

...Thus the NRA theorizes that fewer victims would be killed if robbers were deterred into using knives or other weapons instead of firearms...

...But most handgun homicides occur indoors where concealability is relatively unimportant and many others involve weapons retrieved from an automobile in which long guns could be kept as easily as handguns...

...One case charged under the California mandatory imprisonment scheme for crimes with a gun involved a nineteen-year-old hunter who jokingly pointed at his brother a shotgun he thought unloaded and pulled the trigger...

...Though judicial discretion in sentencing has come in for sharp criticism recently, especially in connection with its alleged potential for encouraging rehabilitation, n6 consensus has emerged on any alternative approach that would restrict such discretion severely...

...And the only hope for banning handguns altogether is a mandatory penalty more frightening to millions than the prospect of giving up what they see as their families' only defense in a violent society...

...The NRA argues (correctly enough) that a handgun ban will not affect murders by such people because they are too irresponsible to obey it...

...By whomever proposed, mandatory imprisonment departs sharply from the modern practice that the judge suits the penalty to the individual crime and criminal...

...Michael Halberstam, resulted in renewed media interest in the exceedingly complex and amorphous topic of "gun control...

...the National Coalition to Ban Handguns (NCBH...

...Without at ail condoning such an irresponsible act (wanton negligence resulting in death is manslaughter), the appropriateness of mandating imprisonment is dubious...

...British and American studies uniformly report that serious victim injury is much higher per capita in robberies without firearms...

...Consider the consequences in New York City where, because handgun permits have not been available to ordinary citizens, police estimate there are at least two million illegal handguns...

...Do we really want to force a judge to sentence a boy with no prior criminal record, and who is clearly heartbroken, to five years in prison just because his reckless, stupid act was with a gun rather than a car...

...The same is obviously true for the ordinary citizen facing a mandatory year sentence for just owning a handgun...

...A first offense robber who might plead guilty because probation is possible, will demand a jury trial and prosecute every kind of appeal if faced with a mandatory five-year sentence...

...Judges have to give a robber who has only pointed a gun probation if they are to have space available for the rapist or robber who has savagely and gratuitously injured his victim with some other weapon...

...Since the United States has, in fact, a vast system of restraints on firearms, including 20,000 federal, state, and local laws, the commentator can only mean that these statutes do not qualify as'' rational.'' Yet it should be noted that all proposed changes in gun control, like the present laws themselves, follow one or another, or some combination, of what most people would consider two perfectly "rational" strategies for preventing firearms misuse...

...The NRA is touting its alternative deterrence strategy by reference to a University of Michigan study which credits that state's newly enacted mandatory penalty for firearms crime with an "almost miraculous" reduction of Detroit homicides...

...and the addition of these two thousand prisoners would destroy a state penitentiary system already faltering with twenty thousand prisoners...

...But gun-owners (as well as many who are anti-gun) back the deterrence-based mandatory penalty for gun violence as an antidote to supposedly "soft" judges...

...To live or work or have some need to be on this 'frontier' imposes a fear which is tempered by possession of a gun...

...legal services lawyer, is a teacher of constitutional law, criminal law and criminal procedure who maintains a largely civil liberties practice in San Francisco...

...Contrary to the rantings of some advocates of deterrence-based mandatory penalties, the problem is not that judges are "soft" on criminals...

...The same degree of negligent conduct with some other instrument, e.g...

...Murders were committed with knives, clubs, agricultural implements, and the like...

...The interdiction strategy seeks to keep firearms, or at least handguns, from those deemed likely to misuse them...

...As to the (more rare) contract killer or other rational murderer, the deterrence-based mandatory penalty doesn't work since he assumes he isn't going to be caught and punished at all...

...More questionably, NCBH theorizes that fewer people would be killed if prospective murderers could be interdicted from having handguns...

...Given their greater deadliness, if long guns were substituted in only thirty percent of the assaults that now occur with handguns, the rate of gun homicide would double...

...Another disadvantage of the mandatory sentence as a deterrence strategy is the negative effect of mandatory penalties on the courts' capacity to single out the most dangerous offenders for long-term imprisonment...

...Though it does not remind its members of this, the NRA originated and lobbied into law such interdiction measures as banning handgun (or all firearm) ownership by convicted felons, minors, and mental defectives, and prohibiting the carrying of concealed firearms...

...Of course, though there are about twice as many long guns as handguns, their lesser concealability makes it impossible for them to be substituted in all assaults where handguns are now used...

...Depriving the general public of handguns (which kill less than ten percent of those they wound) would not reduce homicide if rifles and shotguns (which kill up to eighty percent of those they wound) were to be substituted...

...To provide jury trials for just one-tenth of one percent of these violators would incapacitate New York City's court system...

...Rather, it proposes the addition of a drastic new deterrence-based mandatory penalty scheme: minimum prison sentences of five, or even fifteen, years for anyone using a firearm in crime-unlike, say, knife-robbers who would continue to serve lesser sentences and/or to receive probation or parole...

...Such penalties have only a cosmetic effect upon violent crime because they treat symptoms while ignoring root causes...

...The nineteenth-century transformation which largely obliterated English violence is attributable not to the coercive force of law, but to the profound economic improvements and related social, political, and cultural changes...

...The penalty must be mandatory because research from Chicago, Detroit, Boston, and other cities shows that judges are unwilling to jail most violators of our present less onerous laws...

...More realistically, the NRA claims that its mandatory penalty program will deter robbers (who are generally not irrational) from using guns...

...a car, would probably have been penalized with a stern lecture and a heavy fine-and the life-long knowledge that a second's careless stupidity had killed his brother...

...On the negative side, robbers without guns eschew commercial targets, preferring to hit isolated individuals, particularly the elderly and other "soft" targets...

...English history equally demonstrates the essential futility of the NRA's deterrence-based mandatory penalty proposal...

...Penological theory has the legislature generally set the retribution appropriate to each kind of crime-with the judge determining the length of sentence necessary to protect the community from the particular defendant he sees before him...

...IN LIGHT OF these costs legislatures would do well to take a very long look before enacting the mandatory penalty schemes of either the pro- or anti-gun groups...

...the National Rifle Association (NRA...

...While the NRA points to the injustice of interdictionist mandatory sentencing, whose burden would fall primarily on the ordinary citizen rather than the hardened criminal, the results of its own proposal for mandatory imprisonment can be scarcely less appalling...

...Washington, D.C...

...In its most extreme form the interdiction position is championed by the anti-gun organizations, e.g...

...One positive effect of the NRA program should be reduction in the number of robbery victims killed...

...Judge Shields observes that the readers of his article (published in a Bar publication) "would not go into ghetto areas except in broad daylight under the most optimum circumstances-surely not at night, alone, or on foot...