Heller, McDonald, and murder: testing the more guns = more murder thesis.

AuthorKates, Don B.
PositionGun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

Introduction I. Falsehood: The Ordinary-Person-As-Murderer II. Correlations Between High Gun Ownership and Murder III. Do Societies with No Firearms Have Low Murder Rates? A. Primitive Societies B. The Dark Ages and Afterward IV. Do Societies with Fewer Firearms Have Fewer Murders? A. England B. Continental Europe: Myths of Gun Control 1. Europe Does Not Have a Low Incidence of Murder Compared to the United States 2. Europe Does Not Have More Stringent Gun Controls than the United States 3. The Anti-Gun Policies Prevailing in England and Some of the Smaller Nations of Continental Europe Cannot Be Responsible for Low European Murder Rates V. Gun Ownership and American Crime A. The Colonial Period B. Pre-Civil War United States C. The Civil War and Later in the Nineteenth Century D. Twentieth and Twenty-First Century America Conclusion INTRODUCTION

In 2008, the Supreme Court recognized that the Second Amendment guarantees a right of law-abiding, responsible adults to own firearms for self-defense; it therefore struck down the District of Columbia's bans on keeping defensive firearms as violating that right. (1) It thereafter struck down Chicago's handgun ban, holding that the same right applies against states and localities. (2)

It is by no means our intention to minimize the Second Amendment legal issues, on which one of us has written extensively. (3) But it is fair to assume that the Heller Court gave at least some consideration to the criminological issues. The Court undoubtedly gave attention to the National Academy of Sciences' 2004 finding that, after exhaustive investigation, it could not identify any gun control measure that had reduced violent crime, suicide, or accidents. (4) The Justices also may have noted the same result that the Centers for Disease Control reached in an even more extensive study (5) as well as in the cognate results of other researchers. (6)

Such research notwithstanding, politicians and other laymen still widely hold the belief that more guns mean more murder and fewer guns would mean less murder. This widely held faith is the basis of the gun ban ordinances challenged in Heller and in McDonald

The purpose of this Article is to focus evidence on these widely held beliefs and to acquaint the legal community with that evidence. In that respect, it may be useful to recall the conclusion of the University of Massachusetts's Social and Demographic Research Institute from an exhaustive federally funded review of the extant gun control literature during the Carter Administration:

It is commonly hypothesized that much criminal violence, especially homicide, occurs simply because the means of lethal violence (firearms) are readily at hand, and thus, that much homicide would not occur were firearms generally less available. There is no persuasive evidence that supports this view. (7) Part I of this Article examines the misperception that murderousness is common among law-abiding people. Part II examines the illogic of the common error of assuming that if a high violence rate induces many people to buy guns, the number of guns is a cause of violence rather than a result of the violence. We examine examples of nations in which more guns have been associated with less crime. Parts III and IV establish that many societies with few or no firearms are far more afflicted with homicide than societies where guns abound. Finally, Part V traces the history of murder in America in relation to gun ownership.

We begin by examining two myths that may promote the belief that more guns mean more murder, and fewer guns less murder. One of these views involves a logical error, the other an outright falsehood.

  1. FALSEHOOD: THE ORDINARY-PERSON=AS-MURDERER

    The reason why many people perceive that more guns necessarily will mean more murder is that they are misled by a common falsehood. That falsehood is that murderousness is a universal human trait and part of the make-up of ordinary people. Innumerable articles--even scholarly articles--offer falsehoods like "most shootings are not committed by felons ..., but are acts of passion that are committed using a handgun that is owned for home protection." (8) To see a similar argument, consider the Aug. 13, 2005 L.A. Times Op-Ed. "Targeted by Gun Nuts," by Jenny Price, a scholar at the UCLA Center for the Study of Women. Her article claimed that "thousands of law-abiding citizens annually become criminals when they pick up a firearm and shoot other people." (9) From the premise that most murders are committed by previously law-abiding people in a fit of rage, it would follow that gun ownership by ordinary people would promote murder and that the more guns available, the more murder would result. The problem with this is that the premise is utterly false. Concomitantly, the scholarly articles that state that premise are truly remarkable for their absence of sources supporting the proposition. (10)

    The reason why relevant references for the point are lacking--even in scholarly articles that reference all other points--is that no studies support this false premise. (11) Rather, studies of homicide--including those reaching back to the Nineteenth Century--document the opposite: far from being ordinary people, most murderers are extreme aberrants with life histories of psychopathology, crime, and/or violence.

    Reviewing pre-1997 studies of murder and murderers, Elliott summarizes a perpetrator characteristic: "[T]he vast majority of persons involved in life-threatening violence have a long criminal record with many prior contacts with the justice system ... ." (12) Likewise, Kates and Cramer evaluate post-1997 homicide studies detailing the prior criminal and psychiatric histories of murderers in a 2009 study. (13) So invariably do studies document it that the criminal aberrance of murders has been characterized as one of the "criminological axioms." (14)

  2. CORRELATIONS BETWEEN HIGH GUN OWNERSHIP AND MURDER

    Because guns may be widely owned for reasons having no relation to crime, such as hunting, there is no necessary correlation between the two. (15) Thus, Norway has Western Europe's lowest murder rate despite having the area's highest proportion of gun ownership. (16)

    Nevertheless, because individuals often own guns to protect themselves and their families against violent crime, there often is a correlation between high murder rates and widespread gun ownership. Such correlations are regularly cited as proving that guns cause crime. This conclusion is comparable to citing the fact that many diabetics use insulin as proof that insulin causes diabetes.

    If ordinary people do not commit murder, even with guns present, then by logical extension gun ownership by ordinary people does not increase murder. Furthermore, if people acquire firearms in response to crime in order to protect themselves, then an increase in crime implies an increase in gun ownership. If people protect themselves with guns and such behavior increases the cost of attack to the attacker, then more guns means less crime. In sum, the correlation between high crime and high gun ownership could be positive, negative, or zero. Nevertheless, even if one found that more guns were positively correlated with crime, it does not prove causation, since people may well acquire guns in response to crime. Researchers have found all three values in studying guns and crime. However, Southwick showed that a positive correlation is more likely a result of causation running from crime to guns (more crime causes more guns) rather than from guns to crime (more guns cause more crime). (17) Moody updated and confirmed Southwick's analysis using more recent data. (18) Moody and Marvell found no significant relationship between guns and crime, which they attribute to the fact that guns can both cause crime and deter crime, with the net effect being approximately zero. (19)

    While there may be no significant correlations in the United States today, this Article examines several examples from history and anthropology in which more guns have been associated with less crime.

  3. Do SOCIETIES WITH NO FIREARMS HAVE LOW MURDER RATES?

    It may seem odd to begin our treatment by discussing societies that are obscure or long gone. However, doing so disposes of an unavoidable problem: the mere fact that guns have been outlawed in a society does not exclude them from that society. Banning guns just drives them underground.

    As discussed infra, England discouraged gun ownership ever more stringently throughout the twentieth century. (20) But progressively discouraging gun ownership coincided with progressive increases in British violent crime. (21) Yet that does not necessarily prove anything about the presence (or absence) of guns promoting violence, because it does not prove that guns actually were absent. Yes, outlawing and confiscating handguns in 1997 resulted in more than 160,000 legal handguns being surrendered by law-abiding owners. (22) But, as to the overall success of that measure, a 2002 report of England's National Crime Intelligence Service states, that while "Britain has some of the strictest gun laws in the world [I]t appears that anyone who wishes to obtain a firearm [illegally] will have little difficulty in doing SO." (23) Therefore, it is appropriate to begin by discussing societies in which we can be confident that firearms actually are or were non-existent rather than merely illegal.

    1. Primitive Societies

      One source of data to test the hypothesis of guns causing murder is the experience of modern day primitive gun-free societies. For example, according to Bruce Knauft, the Bushmen of the Kalahari (featured in the movie The Gods Must Be Crazy (24)) had a homicide rate equivalent to 41.9 per 100,000 over the thirty-five year period of 1920-55. (25) In contrast, current American murder rates are roughly five per 100,000 population, one-eighth that of the Bushmen. (26) In the 1950s and early 1960s American murder...

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