A World Without Guns
Be forewarned: It's not a pretty picture
By Dave Kopel, Paul Gallant, and Joanne Eisen of the Independence Institute
December 5, 2001 9:40 a.m.
Imagine the world without guns" was a bumper sticker that began making the rounds after the murder of ex-Beatle John Lennon on December 18, 1980. Last year, Lennon's widow, Yoko Ono, followed up on that sentiment by announcing she would become a spokeswoman for Handgun Control, Inc. (which later changed its name to the Brady Campaign to Prevent Gun Violence, and which was previously named the National Council to Control Handguns).
So let's try hard to imagine what a world without guns would look like. It isn't hard to do. But be forewarned: It's not a pretty picture.
The way to get to a gun-free world, the gun-prohibition groups tell us, is to pass laws banning them. We can begin by imagining the enactment of laws which ban all non-government possession of firearms.
It's not likely that local bans will do the job. Take, for example, New York's 1911 Sullivan Law, which imposed an exceedingly restrictive handgun-licensing scheme on New York City. In recent decades, administrative abuses have turned the licensing statute into what amounts to prohibition, except for tenacious people who navigate a deliberately obstructive licensing system.
Laws affect mainly those willing to obey them. And where there's an unfulfilled need--and money to be made--there's usually a way around the law. Enter the black market, which flourishes all the more vigorously with ever-increasing restrictions and prohibitions. In TV commercials that aired last August, New York City Republican (sort of) mayoral candidate Mike Bloomberg informed voters that "in 1993, there were as many as 2 million illegal guns on the street." The insinuation was that all those guns were in the hands of criminals, and the implication was that confiscating the guns would make the city a safer place. What Bloomberg never explained was how he planned to shut down the black market.
So let's imagine, instead, a nationwide gun ban, or maybe even a worldwide ban.
Then again, heroin and cocaine have been illegal in the United States, and most of the world, for nearly a century. Huge resources have been devoted to suppressing their production, sale, and use, and many innocent people have been sacrificed in the crossfire of the "drug war." Yet heroin and cocaine are readily available on the streets of almost all large American cities, and at prices that today are lower than in previous decades.
Perhaps a global prohibition law isn't good enough. Maybe imposing the harshest penalty possible for violation of such a law will give it real teeth: mandatory life in prison for possession of a gun, or even for possession of a single bullet. (We won't imagine the death penalty, since the Yoko crowd doesn't like the death penalty.)
On second thought, Jamaica's Gun Court Act of 1974 contained just such a penalty, and even that wasn't sufficient. On August 18, 2001, Jamaican Melville Cooke observed that today, "the only people who do not have an illegal firearm [in this country], are those who do not want one." Violent crime in Jamaica is worse than ever, as gangsters and trigger-happy police commit homicides with impunity, and only the law-abiding are disarmed.
Yet the Jamaican government wants to globalize its failed policy. In July 2001, Burchell Whiteman, Jamaica's Minister of Education, Youth and Culture spoke at the U.N. Disarmament Conference to demand the "implementation of measures that would limit the production of weapons to levels that meet the needs for defence and national security."
And as long as governments are allowed to have guns, there will be gun factories to steal from. Some of these factories might have adequate security measures to prevent theft, including theft by employees. But in a world with about 200 nations, most of them governed by kleptocracies, it's preposterous to imagine that some of those "government-only" factories won't become suppliers for the black market. Alternatively, corrupt military and police could supply firearms to the black market.
We'd better revise our strategy. Rather than wishing for laws (which cannot, even imaginably, create a gun-free world), let's be more ambitious, and imagine that all guns vanish. Even guns possessed by government agents. And let's close all the gun factories, too. That ought to put the black market out of business.
Voilà! Instant peace!
Back to the Drawing Board
Then again.....it's not very difficult to make a workable firearm. As J. David Truby points out in his book Zips, Pipes, and Pens: Arsenal of Improvised Weapons, "Today, all of the improvised/modified designs [of firearms] remain well within the accomplishment of the mechanically unskilled citizen who does not have access to firearms through other means."
In the article "Gun-Making as a Cottage Industry," Charles Chandler observed that Americans "have a reputation as ardent hobbyists and do-it-yourselfers, building everything from ship models to home improvements." The one area they have not been very active in is that of firearm construction. And that, Chandler explained, is only because "well-designed and well-made firearms are generally available as items of commerce."
A complete gun ban, or highly restrictive licensing amounting to near-ban, would create a real incentive for gun making to become a "cottage industry".
It's already happening in Great Britain, a consequence of the complete ban on civilian possession of handguns imposed by the Firearms Act of 1997. Not only are the Brits swamped today with illegally imported firearms, but local, makeshift gun factories have sprung up to compete.
British police already know about some of them. Officers from Scotland Yard's Metropolitan Police Serious Crime Group South recently recovered 12 handgun replicas which were converted to working models. An auto repair shop in London served as the front for the novel illegal gun factory. Police even found some enterprising gun-makers turning screwdrivers into workable firearms, and producing firearms disguised as ordinary key rings.
In short, closing the Winchester Repeating Arms factory--and all the others--will not spell the end of the firearm business.
Just take the case of Bougainville, the largest island in the South Pacific's Solomon Islands chain. Bougainville was the site of a bloody, decade-long secessionist uprising against domination by the government of Papua New Guinea, aided and abetted by the Australian government. The conflict there was the longest-running confrontation in the Pacific since the end of World War II, and caused the deaths of 15,000 to 20,000 islanders.
During the hostilities, which included a military blockade of the island, one of the goals was to deprive the Bougainville Revolutionary Army (BRA) of its supply of arms. The tactic failed: the BRA simply learned how to make its own guns using materiel and ammunition left over from the War.
In fact, at the United Nations Asia Pacific Regional Disarmament Conference held in Spring 2001, it was quietly admitted that the BRA, within ten years of its formation, had managed to manufacture a production copy of the M16 automatic rifle and other machine guns. (That makes one question the real intent behind the U.N. Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, which followed several months later: the U.N. leadership can't be so daft as to fail to recognize the implications for world disarmament after learning of the success of the Bougainville Revolutionary Army.)
If this single island of Bougainville can produce its own weapons, the Philippine Islands have long had a thriving cottage industry to manufacture firearms--despite very restrictive gun laws imposed by the Marcos dictatorship and some other regimes.
It looks like we'll need to revisit our fantasy, yet again.
Okay. By proclamation of Kopel, Gallant, and Eisen, not only do all firearms--every last one of them--vanish instantly, but there shall be no further remanufacturing.
That last part's a bit tricky. Auto repair shops, hobbyists, revolutionaries--everyone with decent machine shop skills--can make a gun from something. This takes us down the same road as drug prohibition: With primary anti-drug laws having proven themselves unenforceable, secondary laws have been added to prohibit possession of items which could be used to manufacture drugs. Even making suspicious purchases at a gardening store can earn one a "dynamic entry" visit from the local SWAT team.
But laws proscribing the possession of gun-manufacturing items would have to be even broader than laws against possession of drug-manufacturing items, because there are so many tools which can be used to make guns, or be made into guns. What we'd really have to do is carefully control every possible step in the gun-making process. That means the registration of all machine tools, and the federal licensing of plumbers (similar to current federal licensure of pharmacies), auto mechanics, and all those handymen with their screwdrivers. And we'd need to stamp a serial number on pipes (potential gun barrels) in every bathroom and automobile--and everywhere else one finds pipes--and place all the serial numbers in a federal registry.
Today, the antigun lobbies who claim they don't want to ban all guns still insist that registration of every single gun and licensing of every gun owner is essential to keep guns from falling into the wrong hands. If so, it's hard to argue that licensing and registration of gun manufacturing items would not be essential to prevent illicit production of guns.
Thus, we would have to control every part of the manufacturing process. That would add up to a very expensive, complicated proposition. Even a 1% noncompliance rate with the "Firearms Precursors Control Act" would leave an immense supply of materials available for black-market gun making.
In order to ensure total conformity with the act, it's difficult to imagine leaving most existing constitutional protections in place. The mind boggles at the kinds of search and seizure laws required to make certain that people do not possess unregistered metal pipes or screwdrivers!
For example, just to enforce a ban on actual guns (not gun precursors), the Jamaican government needed to wipe out many common law controls on police searches, and many common law guarantees of fair trials. We'd have to trash the Constitution in order to completely prevent a black market in gun precursors from taking hold. Still, as the gun-prohibition lobby always says, if it saves just one life, it would be worth it.
But, what if, despite these extreme measures, the black market still functioned--as it almost always does, when there is sufficient demand?
It's time to seriously revisit our strategy for a gun-free world. Maybe there's a shortcut around all of this.
Okay. We're going to make a truly radical, no-holds-barred proposal this time, take a quantum leap in science, and go where no man has gone before. There may be those who scoff at our proposal, but it can succeed where all other strategies have failed.
We, Kopel, Gallant, and Eisen, hereby imagine that, from this day forth, the laws of chemical combustion are revoked. We hereby imagine that gunpowder--and all similar compounds--no longer have the capacity to burn and release the gases necessary to propel a bullet.
Peace for Our Time
Finally, for the first time, a gun-free world is truly within our grasp--and it's time to see what man hath wrought. And for that, all we have to do is take a look back at the kind of world our ancestors lived in.
To say that life in the pre-gunpowder world was violent would be an understatement. Land travel, especially over long distances, was fraught with danger from murderers, robbers, and other criminals. Most women couldn't protect themselves from rape, except by granting unlimited sexual access to one male in exchange for protection from other males.
Back then, weapons depended on muscle power. Advances in weaponry primarily magnified the effect of muscle power. The stronger one is, the better one's prospects for fighting up close with an edged weapon like a sword or a knife, or at a distance with a bow or a javelin (both of which require strong arms). The superb ability of such "old-fashioned" edged weapons to inflict carnage on innocents was graphically demonstrated by the stabbing deaths of eight second graders on June 8, 2001, by former school clerk Mamoru Takuma in gun-free Osaka, Japan.
When it comes to muscle power, young men usually win over women, children, and the elderly. It was warriors who dominated society in gun-free feudal Europe, and a weak man usually had to resign himself to settle on a life of toil and obedience in exchange for a place within the castle walls when evil was afoot.
And what of the women? According to the custom of jus primae noctis, a lord had the right to sleep with the bride of a newly married serf on the first night--a necessary price for the serf to pay--in exchange for the promise of safety and security (does that ring a bell?). Not uncommonly, this arrangement didn't end with the wedding night, since one's lord had the practical power to take any woman, any time. Regardless of whether jus primae noctis was formally observed in a region, rich, strong men had little besides their conscience to stop them from having their way with women who weren't protected by another wealthy strongman.
But there's yet another problem with imagining gunpowder out of existence: We get rid of firearms, but we don't get rid of guns. With the advent of the blow gun some 40,000 years ago, man discovered the efficacy of a tube for concentrating air power and aiming a missile, making the eventual appearance of airguns inevitable. So gunpowder or no gunpowder, all we've been doing, thus far, amounts to quibbling over the means for propelling something out of a tube.
Airguns date back to somewhere around the beginning of the 17th century. And we don't mean airguns like the puny Daisy Red Ryder BB Gun with a compass in the stock, longed for by Ralphie in Jean Shepard's 1984 classic A Christmas Story ("No, Ralphie, you can't have a BB gun--you'll shoot your eye out!").
No, we're talking serious lethality here. The kind of powder-free gun that can hurl a 7.4 oz. projectile with a
muzzle energy of 1,082 foot-pounds. Compare that to the 500 foot-pounds of muzzle energy from a typical .357 Magnum round! Even greater projectile energies are achievable using gases like nitrogen or helium, which create higher pressures than air does.
Before the advent of self-contained powder cartridge guns, airguns were considered serious weapons. In fact, three hundred years ago, air-powered guns were among the most powerful and accurate large-bore rifles around. While their biggest disadvantages were cost and intricacy of manufacture, they were more dependable and could be fired more rapidly than firearms of the same period. A butt-reservoir .31 airgun was carried by Lewis and Clark on their historic expedition, and used successfully for taking game. [See Robert D. Beeman, "Proceeding On to the Lewis & Clark Airgun," Airgun Revue 6 (2000): 13-33.] Airguns even saw duty in military engagements more than 200 years ago.
Today, fully automatic M-16-style airguns are a reality. It was only because of greater cost relative to powder guns, and the greater convenience afforded by powder arms, that airgun technology was never pushed to its lethal limits.
Other non-powder weapon systems have competed for man's attention, as well. The 20th century was the bloodiest century in the history of mankind. And while firearms were used for killing (for example, with machine guns arranged to create interlocking fields of fire in the trench warfare of World War I), they were hardly essential. By far, the greatest number of deliberate killings occurred during the genocides and democides perpetrated by governments against disarmed populations. The instruments of death ranged from Zyklon B gas to machetes to starvation.
Imagine No Claws
To imagine a world with no guns is to imagine a world in which the strong rule the weak, in which women are dominated by men, and in which minorities are easily abused or mass-murdered by majorities. Practically speaking, a firearm is the only weapon that allows a weaker person to defend himself from a larger, stronger group of attackers, and to do so at a distance. As George Orwell observed, a weapon like a rifle "gives claws to the weak."
The failure of imagination among people who yearn for a gun-free world is their naive assumption that getting rid of claws will get rid of the desire to dominate and kill. They fail to acknowledge the undeniable fact that when the weak are deprived of claws (or firearms), the strong will have access to other weapons, including sheer muscle power. A gun-free world would be much more dangerous for women, and much safer for brutes and tyrants.
The one society in history that successfully gave up firearms was Japan in the 17th century, as detailed in Noel Perrin's superb book Giving Up the Gun: Japan's Reversion to the Sword 1543-1879. An isolated island with a totalitarian dictatorship, Japan was able to get rid of the guns. Historian Stephen Turnbull summarizes the result:
"[The dictator] Hidéyoshi's resources were such that the edict was carried out to the letter. The growing social mobility of peasants was thus flung suddenly into reverse. The ikki, the warrior-monks, became figures of the past . . . Hidéyoshi had deprived the peasants of their weapons. Iéyasu [the next ruler] now began to deprive them of their self respect. If a peasant offended a samurai he might be cut down on the spot by the samurai's sword. [The Samurai: A Military History (New York: Macmillan, 1977).]"
The inferior status of the peasantry having been affirmed by civil disarmament, the Samurai enjoyed kiri-sute gomen, permission to kill and depart. Any disrespectful member of the lower class could be executed by a Samurai's sword.
The Japanese disarmament laws helped mold the culture of submission to authority which facilitated Japan's domination by an imperialist military dictatorship in the 1930s, which led the nation into a disastrous world war.
In short, the one country that created a truly gun-free society created a society of harsh class oppression, in which the strongmen of the upper class could kill the lower classes with impunity. When a racist, militarist, imperialist government took power, there was no effective means of resistance. The gun-free world of Japan turned into just the opposite of the gentle, egalitarian utopia of John Lennon's song "Imagine."
Instead of imagining a world without a particular technology, what about imagining a world in which the human heart grows gentler, and people treat each other decently? This is part of the vision of many of the world's great religions. Although we have a long way to go, there is no denying that hundreds of millions of lives have changed for the better because people came to believe what these religions teach.
If a truly peaceful world is attainable--or, even if unattainable, worth striving for--there is nothing to be gained from the futile attempt to eliminate all guns. A more worthwhile result can flow from the changing of human hearts, one soul at a time.
from http://www.nationalreview.com/kopel/kopel120501.shtml
posted by Greg at 9:52 AM
Dissent by Judge Kozinski
KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases-or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller's Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon-a sawed-off shotgun-was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out tolunch when it last visited a constitutional provision.
The majority falls prey to the delusion-popular in some circles-that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth-born of experience-is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
All too many of the other great tragedies of history-Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few-were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed-where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel's mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:
"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."
The sheer ponderousness of the panel's opinion-the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text-refutes its thesis far more convincingly than anything I might say. The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it-and is just as likely to succeed.
http://keepandbeararms.com/silveira/enbanc.asp
posted by Greg at 8:30 AM
