Gun control and economic discrimination: the melting-point case-in-point.

• Author: Funk, T. Marcus

"Setting a high minimum price for handguns would be an effective means of reducing availability to precisely those groups that account for the bulk of the violent crime problem."(1)

1. Introduction

   In 1992, an estimated daily average of 36 people were murdered with handguns, 32 women were raped at gunpoint, 931 people were the victims of armed robberies, and 1557 people were assaulted with a gun in the United States.(2) During the same year, handgun crimes accounted for approximately thirteen percent of all documented violent crimes.(3) Some states have attempted to bridle such illegal firearm violence with "melting-point laws." The Illinois, South Carolina, Hawaii, and Minnesota legislatures have adopted rigid melting-point schemes designed to remove so-called Saturday Night Specials from the market.(4)

   Illinois, for example, prohibits the sale of handguns having "a barrel, slide, frame or receiver which is a die casting of zinc alloy or any other nonhomogeneous metal which will melt or deform at temperatures of less than 800 degrees Fahrenheit."(5) South Carolina and Hawaii have enacted laws virtually identical to Illinois, and Minnesota has enacted a similar law which has a 1000 degree melting point requirement and prohibits handguns with less than a certain "tensile strength" (resistance of the metal to longitudinal stress) and handguns that are made of a powdered metal less than a certain density.(6)

   The net effect on the handgun market is hard to determine precisely, but in South Carolina, the melting-point laws, along with Bureau of Alcohol, Tobacco, and Firearms regulations, have resulted in bans on approximately ten percent of the handguns available on the retail market.(7) It is undisputed, however, that the handguns which fail to meet the melting-point requirements are made of cheaper materials and are the least expensive.(8) While there are manufacturers that produce handguns which both meet the melting-point standards and are less expensive than the premium makes, the sub-group of guns banned by the melting-point laws is the most affordable, and therefore the most accessible, segment of the handgun market.(9) Thus, the net effect of the melting-point laws has been to eliminate the most affordable segment of handguns from the market.(10)

   The primary arguments made in support of melting-point laws are threefold: (1) handguns which lack "quality materials" also often lack adequate safety and accuracy mechanisms and, thus, are not useful to sportsmen;(11) (2) handguns not meeting the melting-point requirements are made of softer metal, therefore making it more difficult for ballistics experts to identify these guns, and making it easier for criminals to file off the serial numbers;(12) and (3) the Saturday Night Specials which the melting-point laws target are the weapons of choice for criminals, and their removal from the marketplace will therefore reduce the criminals' access to firearms.(13)

   On the other hand, a compelling argument can be made that melting-point laws (1) are arbitrary in determining which handguns they ultimately remove from the market; (2) may have a negative effect on the ability of the police to track down criminals through the use of ballistics tests; (3) do not contribute to crime reduction; and (4) discriminate against the poor who cannot afford to purchase more expensive handguns.

   This Comment will endeavor to avoid the emotionalism which tends to permeate the gun control controversy by focusing on possible legal, factual, and policy flaws which may undermine the arguments advanced in justification of the melting-point laws.

   Il. The Justifications Offered in Support of

   Melting-Point Laws

   1. PREMISE 1: THE HANDGUNS TAKEN OFF THE MARKET BY MELTING-POINT

      LAWS ARE NOT USEFUL FOR SPORTSMEN

      This argument is misleading. It erroneously assumes that the only legitimate use of handguns will be for sport. Many citizens buy handguns for self-defense, not target shooting;(14) indeed, a significant percentage of the public agrees that "personal protection" is a legitimate reason for owning a gun,(15) and at least one-half of all U.S. households keep firearms.(16) Most importantly, criminologists and criminal law scholars have increasingly begun to agree that the public is right.(17)

      But the notion that usefulness for a "sporting purpose" should be a qualifying factor in handgun regulation is not rejected only by those who own guns. Using this criterion to differentiate between acceptable and unacceptable handguns fails to recognize other legitimate purposes for acquiring a handgun. The 1968 Gun Control Act clearly recognized that sporting uses are not the only legitimate purposes for acquiring a handgun: "[Il t is not the purpose of this title to place any undue or unnecessary Federal restrictions on handguns and law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection or any other lawful activity ...."(118) Therefore, the argument that sportsmen will not find these guns useful appears to miss the mark, since it ignores the fact that the primary reason for most legal handgun purchases is legitimate self-defense - a use to which guns are put between one million and 2.5 million times a year.(19)

   2. PREMISE 2: THE HANDGUNS TAKEN OFF THE MARKET BY MELTING-POINT

      LAWS ARE HARDER FOR BALLISTICS EXPERTS TO TRACE,

      AND IT IS EASIER TO REMOVE THEIR SERIAL NUMBERS

      According to ballistics experts, cheaper guns, such as those which do not meet the melting-point law requirements, are no harder to trace ballistically than their more expensive counterparts.(20) A brief discussion of ballistics demonstrates the reasons for this.

      "Tool marks" are impressions made to either the bullet or the cartridge case by irregularities in the handgun's barrel, firing pin, chamber, or cylinder (cuts, nicks, striations, etc.). Ballistics experts use these irregularities to match a specific bullet or cartridge to a specific gun.(21) For example, a metallurgical irregularity in the breach face, firing pin, chamber, extractor, or ejector may leave unique and ballistically traceable marks on the cartridge.(22) Similar marks can be made when the bullet passes through the bore of the gun.(23)

      Contrary to the assertions made by advocates of melting-point laws, cheaper guns are more likely to be identifiable than their costlier counterparts simply because the more expensive guns have fewer irregularities, and the irregularities which do exist are more permanent due to the hardness of the alloys.(24) While some may contend that this is irrelevant, since the inferior metal used in the cheaper guns causes the irregularities to ultimately "wear off" after repeated use (e.g., a nick in the bore of the gun may disappear after repeated firings), this argument loses its persuasive appeal when one considers that the cheaper guns will rarely, if ever, be fired, since they are not intended to be used for sport or for target practice.(25) Additionally, since the cheap Saturday Night Specials have a higher rate of cylinder misalignment, it is more likely that the bullet will retain a "misalignment mark" after it has exited the barrel.(26)

      Another argument that proponents of melting-point laws advance that it is easier to file off the serial numbers on guns made of softer alloy.(27) This matter is scarcely worth considering. Although filing off the serial number of a "cheaper" handgun may take a few minutes less than filing the numbers off of a handgun made of a harder alloy, it does not require any additional tools, and is just as simple an undertaking.(28) More importantly, however, filing the serial numbers off of cheaper handguns is not common criminal procedure for two important reasons: First, it is a dead giveaway to law enforcement that the carrier of the handgun is likely involved in criminal activity, thereby calling much unwanted police attention to that individual;(29) second, filing the serial number off of a gun is a federal offense,(30) and virtually every state's law criminalizes possession of a firearm without a serial number.(31)

      Placing even more doubt on the premise that guns the meltingpoint laws might remove from the market are harder to trace ballistically, experts feel that cheaper handguns generally allow more primer residue to escape the cylinder after the handgun has been fired, thereby making it easier for forensics experts to identify this residue on the shooter's hand.(32) When a person discharges a firearm, primer residue may be deposited on the person's hand in varying amounts. Forensics experts then test for the presence of antimony, barium, -and lead - components of most primer mixtures.(33)

      The "cylinder gap," which separates the front of the handgun cylinder from the rear of the barrel, is usually anywhere from four to nine one-thousandths of an inch wide.(34) Poorly-made guns tend to have a longer gap, thus allowing slightly more residue to escape.(35) Therefore, it appears that using a cheaper handgun in a crime will actually increase the criminal's likelihood of being linked to a particular shooting via a forensic examination.

   3. PREMISE 3: MELTING-POINT LAWS TAKE HANDGUNS OFF THE MARKET

      AND THEREBY REDUCE CRIMINALS' ACCESS TO FIREARMS

      Some gun control advocates have argued that the mere access to guns makes people more likely to commit crimes, because the access to guns causes otherwise law-abiding people to murder in a moment of ungovernable anger or because criminals are facilitated by access to handguns or both.(36) Access to handguns, however, does not turn law-abiding citizens into murderers. Professors James Wright and Peter Rossi from the University of Massachusetts performed what is considered the most complete empirical study on the relationship between guns and crime under a three-year grant from the United States Department of Justice.(37) After surveying all of...