Gun Control: United States Statistics and Law

BY GRETCHEN COTHRON — In the United States in 2010, almost 15,000 homicides were committed with a weapon. In 8,775 of  those homicides, the assailant used a firearm.^[1]  Assailants used rifles in 358 homicides, shotguns in 373 homicides; unknown types of firearms in approximately 2,000 homicides, and handguns in 6,009 homicides.[2] Despite the shocking mass murders in Newtown, CT and Aurora,  CO, the rate of violent crimes has nearly halved since 1991, dropping from 9.8 homicides per 100,000 people to 4.8. .[3]

Statistically speaking, the United States appears to be a violent country. A 2011 study asserted that,  compared to similar countries, homicide rates in the United States were “6.9 times higher than rates in the other high-income countries, driven by firearm homicide rates that were 19.5 times higher. For 15-year olds to 24-year olds, firearm homicide rates in the United States were 42.7 times higher than in the other countries.”[4]

Globally, in 2010, there were 468,000 homicides; forty-two percent were committed with a firearm.[5] However, homicide rates do not necessarily drop with the prohibition of firearms. The 2011 UN Global Study on Homicide determined “economic crisis; food insecurity due to environmental changes; inflation; and weak or limited rule of law” were causal factors of increased rates of homicide.[6] Although firearms were the weapon of choice in the largest percentage of homicides (199,000 deaths)[7], correlating gun ownership rates with homicide rates is fallacious. Creating a relationship between firearm availability and homicide rates is “not stable across nations.”[8]

In Britain,  a 1920 law required permission from district police to purchase firearms other than shotguns was tightened in 1968 to include shotguns, and again in 1997 to require the surrender of almost all handguns owned by civilians. The homicide rate in England and Wales has averaged 52% higher since the outset of the 1968 gun control law and 15% higher since the outset of the 1997 handgun ban.[9] Notwithstanding the fact that “[m]ore than 162,000 handguns and 1.5 million pounds of ammunition were “compulsorily surrendered” by February 1998.[10] Using “records of firearms held on firearms certificates,” police collected all but fewer than eight of all legally owned handguns in England, Scotland, and Wales.”[11]

The often-stated statistic that “[i]n homes with guns, the homicide of a household member is almost three (3) times more likely to occur than in homes without guns” is incorrect. Comparing 1,860 households in a three-county area, in which a homicide occurred in demographically similar households in which a homicide did not occur, derived the statistic. After controlling for several variables, the study found that gun ownership was associated with a 270% increase in the odds of homicide.[12] The study was also criticized as “fail[ing] to address the primary inferential problems that arise because ownership is not a random decision. … Homicide victims may possess firearms precisely because they are likely to be victimized.”[13] In fact, a 1994 study found that “Americans use guns to frighten away intruders who are breaking into their homes about 498,000 times per year,”[14] and another study completed in 2000 found that “civilians use guns to defend themselves and others from crime at least 989,883 times per year.”[15]

In the years that Washington D.C. enforced a strict gun law, the D.C. murder rate averaged 73% higher than the rate prior to the law. During the same time period, the United States murder rate averaged 11% lower.[16]

The D.C. law made it a crime to carry an unregistered firearm and prohibited the registration of handguns. The 1976 law also required that all firearms kept in private homes be kept unloaded and rendered temporarily inoperable via disassembly or installation of a trigger lock.[17]

Dick Heller was a D.C. special police officer that was authorized to carry his handgun while on duty, but was barred from keeping the gun at home.[18] The law authorized the chief of police to issue 1-yr licenses to carry a firearm[19] and required residents who lawfully owned firearms other than handguns to keep them “unloaded and disassembled or bound by a trigger lock or similar device.”[20] Heller filed a lawsuit that contested the portion of the law that addressed keeping handguns in the home, and argued that it prohibited the use of  “functional firearms within the home.”[21]

Both sides of the gun control debate invoked the Second Amendment of the Constitution to support their position. For a proper understanding of the current political debate, one must look to the Second Amendment and its text. The Second Amendment, in pertinent part, reads:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[22]

There were, and are still, arguments being made that the Amendment was intended to give organized and regulated militias the right to bear arms, and to exclude individuals from bearing arms. There have also been arguments that the text was only intended to include the firearms that were available at the time of the writing, such as muskets. In District of Columbia v. Heller, the Supreme Court rejected those arguments, holding that the Amendment did not preclude individuals from the right to bear arms[23] and that the Second Amendment includes modern forms of firearms.[24]

The opinion in Heller, written by Justice Scalia, illustrates what must have been a contentious debate within the offices of the Supreme Court. The four dissenting judges interpreted the Second Amendment as only protecting the right to bear, possess, and carry, firearms  in connection with militia service.[25] Heller argued that the right was a right of the individual, regardless of any connection to a militia, and that the right included traditionally lawful firearm uses such as self-defense within the home.[26]

The argument over the Second Amendment in Heller came down to linguistics and grammar. The question was whether the clause “[a] well regulated Militia, being necessary to the security of a free State” meant that firearm possession was only intended to be lawful  in connection with a militia. But did the clause  also intend that “[b]ecause a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed?”[27] Justice Scalia employed his textual  analysis by breaking down the amendment and comparing it to other amendments with prefatory and operative clauses.

Scalia noted that the phrase “the right of the people” is used only twice in the Bill of Rights: in the First Amendment’s “Assembly–and–Petition” clause and in the Fourth Amendment’s Search–and–Seizure clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, nor rights that may be exercised only through participation in some corporate body.”[28] Thus, the right to bear arms is an individual right, not a right of militias only.

Justice Scalia interpreted the term “arms” to include more than just the 1700’s muskets. He illustrated his point by citing “Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defense, or takes into his hands, or useth in wrath to cast at or strike another.”[29] Scalia asserted that the term “arms” extended to any weapon, not only weapons designed for and used in a military capacity. He showed that in Cunningham’s legal dictionary, the term “arms” was also used to describe bows and arrows.[30]

Scalia also argued that other amendments have been modernized to address current advances in technology. For example, it is unlikely that any of the men writing the Constitution and Bill of Rights would have conceived that the Fourth Amendment’s bar of unreasonable searches would include barring police from using thermal heat imaging technology to see through the walls of your home.[31]

Scalia addressed the definition of “carrying arms/firearms” provided by Justice Ginsburg: “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’”[32] Scalia noted that Ginsburg’s definition in no way addressed whether the carrier participates in any organized military or militia.[33]

While many argue that the Second Amendment should be limited to protect only members of a militia or military service, the Supreme Court has determined otherwise. Whether the court will restrict the Second Amendment is questionable. However, the text of the Second Amendment, and its interpretation by the highest court in the land, clearly illustrates that each individual has the right to bear arms/weapons.