By David B. Kopel
A shorter version of this was published in the Washington Post in 1992. More by Kopel on handgun prohibition.
The time has come to eliminate handguns from American society, suggests Rhode Island's Senator Chafee, sponsor of legislation to confiscate all handguns in private hands. America's public health epidemic of gun violence proves the need for gun control, he argues. Unfortunately, Senator Chafee's proposed cure -- the confiscation of all handguns -- would make the national disease of violence even worse.
If the Chafee bill succeeds at wiping out the American handgun supply, thousands of additional people will die of gunshot wounds every year.
The reason for this counterintuitive result? The Chafee bill eliminates handguns, but leaves long guns -- which are much deadlier -- uncontrolled. Most people who are shot with handguns survive, and most people who are shot with shotguns die. As the Annals of Surgery put it: "Shotgun injuries have not been compared with other bullet wounds of the abdomen as they are a thing apart...[A]t close range, they are as deadly as a cannon."
From a criminal's point of view, a sawed-off long gun is a good substitute for a handgun. In five minutes a criminal can hacksaw a rifle or a shotgun down to an 11 inch length; the new weapon is about as concealable as a 12 inch TEC-9 pistol or a 9 inch Ruger revolver -- and much more lethal.
According to a National Institute of Justice survey of felony prisoners, 75% of the "handgun predators" (those who specialized in handgun crime) said that if handguns became unavailable, they would switch to sawed-off shoulder weapons. Even if only a third of criminals switched from handguns to long guns, fatalities would still increase sharply.
Unlike street criminals, persons who own guns at home do not care about concealability, and thus would be especially likely to buy long guns if handgun were illegal. Most people fearful enough to think they need a loaded handgun for protection would not give up the idea of armed defense simply because one type of gun became unavailable. As long guns supplanted handguns in the home, the death rate from domestic shootings, firearms suicides, and firearms accidents would skyrocket. Even if the actual number of shootings fell somewhat, the net fatality rate would still rise, because each shooting would carry a larger risk of death.
But while homicides of all types would increase, America would find itself increasingly short of the prison space in which to confine the additional murderers. The drug war (which Senator Chafee enthusiastically supports) is overwhelming the nation's prisons, making it increasingly difficult to confine violent criminals for lengthy terms. In many large cities, the criminal justice system is collapsing under the immense volume of drug prosecutions.
The Chafee war on handguns would make the war on drugs look small time. In California, only 20% of gun-owners obeyed a requirement that they register their semi-automatics. In New Jersey, fewer than 2% of owners of "assault weapons" have complied with the legal mandate to surrender their guns.
While there are only a few million "assault weapon" owners, about a quarter of all households in the United States contain a handgun. Under the most optimistic compliance scenarios, 15-20% of American households would ignore the handgun ban. Possessing newly-illegal handguns, tens of millions of Americans would now be defined as felons, eligible for Senator Chafee's five-year federal prison term. The number of new "gun criminals" would be at least as large as the current number of "drug criminals."
The only way to prevent the Chafee bill from swamping the criminal justice system would be to enforce the handgun ban sporadically, making the law a mockery, and creating serious risks of selective prosecution against minorities.
America may never face the unintended consequences of the Chafee handgun confiscation, however, since the law would probably be declared unconstitutional. Senator Chafee insists that there is no Constitutional right of individuals to bear arms, and claims that pro-gun advocates "have not read their Constitution lately."
The Senator, though, hasn't read Supreme Court opinions lately. In the 1990 Verdugo-Urquidez case, Chief Justice Rehnquist's majority announced that the phrase "the right of the people" has a consistent meaning in the Constitution. The Court specifically pointed to the First Amendment "right of the people peaceably to assemble," the Second Amendment "right of the people to keep and bear arms," and the Fourth Amendment "right of the people to be secure...against unreasonable searches." In every instance, Chief Justice Rehnquist wrote, the phrase refers to an individual right of Americans.
To a Court looking to original intent, handguns would clearly be within the scope of the Second Amendment, since handguns were in common use at the time the Amendment was enacted.
It is true that former Chief Justice Burger took a different Constitutional view, but he never decided any gun control cases when he was on the Court. The late Chief Justice's polemics in Sunday newspaper supplements carry less legal weight than do the current Chief Justice's formal opinions.
Even putting aside the Second Amendment, the Chafee proposal runs afoul of another provision of the Bill of Rights which is enjoying increasing judicial solicitude: the Takings Clause of the Fifth Amendment, which states "nor shall private property be taken for public use without just compensation."
Senator Chafee's offer to pay $40 each for the confiscated guns might be attractive to someone who owns a broken "Saturday Night Special." But with the average handgun today selling for over $300, the Chafee bill fails to offer just compensation for its taking of private property.
Senator Chafee, like most gun prohibitionists, means well, but his proposal rests more on sentiment than on logic. While America certainly needs improved gun laws, a bill which would causes thousands of extra deaths, wreck the criminal justice system, and violate the Constitution is no place to start.
David B. Kopel is an Associate Policy Analyst with the Cato Institute, and a Technical Consultant for the International Wound Ballistics Association. His book The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? will be published by Prometheus Books in July.
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