A Law Enforcement View on Gun Control

[larrymeyer]

http://www.officer.com/web/online/On-the-Street/Op-Ed--Reasonable-Gun-Control/21$49245

Op-Ed: Reasonable Gun Control?
A Law Enforcement View on Gun Control


Posted: Monday, November 9, 2009
Updated: November 9th, 2009 08:46 AM EDT

RALPH MROZ
Columnist


Editor's Note: The opinion(s) expressed herein are those of the author and do not necessarily reflect the opinion(s) of Officer.com, Cygnus Business Media, any of its employees or affiliate or subordinate companies.

***

One of the most controversial policy areas in America today is that of gun control. It's my observation that most law enforcement officers are against additional gun control laws and many even favor fewer restrictions on gun ownership by citizens. (This is in contrast to Chiefs of Police, who are usually politically-appointed officials and who in many agencies are more politician than police officer.) In that vein, I'm writing this piece expressing in some detail what I think might be a more-or-less law enforcement consensus view of the subject.

I am asking for your comments to gauge the opinions of the hundreds of thousands of LE officers who visit this site every month. Please comment below on this article.

No Controls Necessary?

First, there are a number of people - including some POs, I'm sure - who are of the opinion that no (that is, zero) controls are required on any arms. They will often cite a rights view of arms, specifically the second amendment's phrase "the right of the people to keep and bear arms shall not be infringed." This minority view needs to be addressed first so that we can proceed to the main arguments.

There are two main lines of argument against this zero-controls view. First is the common sense one that no rational person believes that someone should be able to store a nuclear bomb in their basement or transport one in their car's trunk. Since (I trust) we all agree on this point, then we have all just agreed that there needs to be some restrictions on the meaning of "bearing arms" - it's just a matter of deciding what restrictions are appropriate.

The second line of argument is that both common sense, and certainly the courts, have always recognized that rights are subject to limitations. We all know that the first amendment's right of free speech (Congress shall make no law... abridging the freedom of speech...) does not give you the right to yell "fire" in a crowded theatre. We have all had drummed into us that the fourth amendment doesn't protect citizens from search and seizure, but rather from unreasonable searches and seizures. The eighth amendment protects us from excessive bail and fines, not bail and fines. And so on. Recognizing that rights can be justifiably limited, we can ask what restrictions might be reasonably placed on the "bearing of arms".

(Another line of argument might start by noting that probably the most powerful weapons available in the late 18th century when the Bill of Rights was written were cannons. Cannons are puny weapons compared to weapons today, and today's much more potent weapons make some restrictions advisable even if there were no restrictions at the time of our country's birth. This is an anti-strict-constructionist argument, and is thus a controversial one. Fortunately we don't need to go down this avenue since I trust that we've all pretty much agreed - as per above - that some restrictions can be appropriate; we just have to decide where the lines are drawn.)

A Well-Regulated Militia

The second amendment 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.

The first two phrases of this amendment, A well regulated Militia, being necessary to the security of a free State, have been the source of much confusion and debate over the years about whether the right to "keep and bear arms" applies only to a militia and just what the modern-day equivalent of a militia is.

Well, actually the debate over the second amendment's meaning, from a historical, contextual, semantic and comparative perspective is settled. The vast majority of serious second amendment scholars are of the opinion that the second amendment recognizes an individual right of arms ownership. Of the 30+ substantive law review articles about the second amendment published since 1980, only a couple have come to a different conclusion. Even many scholars who are personally against an individual right have reluctantly come to the conclusion that's what the second amendment was meant to recognize (but they aren't happy about it). We can accept as settled constitutional law such a right irrespective of the opinions and efforts of politicians and some jurists (such as Justice Ginsburg) to the contrary. (By the way, the term "well-regulated", in the parlance of the times, meant "well-trained" or "competent", not "heavily controlled".)

We also need to consider the fact that an armed society is the final barrier to totalitarian rule. It is a historical fact that totalitarian regimes have had to disarm their societies before they could start their mass slaughter - think of the Khmer Rouge or the Nazis, for starters. While the possibility of totalitarianism may seems remote in America today (or not, depending on your view), the fact is that an armed society is what ultimately prevents (or will prevent) it from becoming a reality. As United States Ninth Circuit judge Alex Kozinski said not too many years ago:

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.

It is inconceivable to me that the founding fathers, who had just thrown off a government by force and by arms - a government that was hardly totalitarian by today's standards, did not have this thought in mind when they enshrined the right to keep and bear arms in the second of ten constitutional amendments (the ten amendments that compose the Bill of Rights are not randomly ordered).

An Even More Fundamental Right

A right that is so fundamental, so common-sensical, so viscerally obvious, so long-established, so humanistic, and so necessary for a just society that it needed no enumeration in the Constitution or Bill of Rights is the right to self-defense. It would no more occur to the founding fathers (or anyone of the time) that a right to self-defense needed to be recognized than a "right to eat" needed to be. And yet today we have arrived at the point where the right to self-defense is under attack (no pun intended) from seemingly every quarter.

Individual self-defense is impossible in many cases without weapons, including firearms. This point is so obvious that I will treat it as self-evident. Thus, in order for citizens to exercise a right that has been recognized since long before the United States existed, they need to also have the right to own and carry arms appropriate for self-defense. You cannot simultaneously assert a right and deny the expression of that right. Saying that self-defense is a right yet denying the right to carry a gun is like saying that free speech is a right while outlawing printing presses.

What of the Consequences?

Gun control advocates assert that it's necessary to control violent crime; gun-rights advocates assert that, as Robert Heinlein said, "an armed society is a polite society". Who's right? For years it was very hard to get good comparative data. The NRA would cite countries like Switzerland where gun ownership is mandatory and crimes are rare, while gun control organizations would cite locations where both gun ownership and crime were high, and so on. What we lacked was a controlled experiment in which two groups - identical in their cultural, historic, political and demographic makeup, but unalike in their gun ownership rates - were compared. We finally got that data when the shall issue movement took hold in the U.S., and literally overnight the laws changed and made gun carry much easier in state after state. As a result gun ownership and gun carry rates went way up in these states over the course of a couple years - too short a time for the population to change in any significant way. What happened? Crime went down.

This phenomenon was extensively studied by economist John Lott, who brought these conclusions to light in his classic book, More Guns, Less Crime. To say that he and his methodology came under severe attack by the academic and gun-control establishment is an understatement, but his data and methods were sound and have never been credibly challenged. If the reader cares to he may investigate this claim himself; a good place to start is with the data itself, and a presentation of the major criticisms of Dr. Lott's work and his replies to the criticisms, both available on his website linked in below. It can be heavy slogging (especially if advanced statistical analysis isn't your forte) but here's a clue: Dr. Lott shows you his data - you can download it; many of his critics don't share theirs.

So Where do we Draw the Line?

I think we can all agree that weapons of large-scale war should be legitimately forbidden to the general public. No one proposes that megaton bombs, for example, are legitimate in civilian hands, and I think that most of us similarly agree that even smaller military-only application weapons like surface-to-air missiles can be legitimately controlled. On the other hand, I think we can agree that weapons that can be legitimately used for self-defense ought to be allowed. Thus the litmus test for what's permitted should be "Is this a weapon that has legitimate self-defense use?" This gets us away from the "sporting use" test so often proposed by gun-control advocates (which, besides being nebulous - on purpose I believe - is also a complete red herring), and away from the loaded vocabulary of words like "assault weapon".

Now, here's where it gets a little politically incorrect (in some circles), but the logic holds: so-called "assault weapons" such as the AR-15 are by definition and by design individual self-defense weapons - that's why they are issued to soldiers and police officers for individual defensive use. (To keep it brief, I will skip here the argument that many "assault weapons" are indistinguishable in functionality from some traditional hunting rifles, and that many unchallenged hunting rifles are much more powerful than any "assault rifle".) To those that think that no self-defense situation could ever call for a small-caliber rifle with a magazine capacity of more than ten rounds, I'd suggest that they consider situations like social unrest (the LA riots, for example), social breakdown (hurricane Katrina, for example), persons targeted by gangs of criminals (people advocating unpopular political positions, or people who have to keep large sums of money at home or at their place of business). The list can easily go on.

Of course, between these two categories - handguns, hunting arms, so-called "assault rifles" and so on the legitimate self-defense end of the spectrum, and large bombs and mortars on the other (legitimately restricted) end - there naturally exists a gray area. I propose that weapons in that gray area (perhaps .50-caliber rifles might be at the low end of this gray area) be granted the benefit of the doubt, and only controlled if they in fact ever become a genuine menace to society's safety (not just used in an occasional crime, as every weapon is and will be).

But Why do You Need...?

One of the arguments that's often raised against the ownership of certain arms such as over 10-round handguns and rifles is "Why do you need (fill in the blank)?" Excuse me??? When did someone else's - let alone some bureaucrat's - opinion of someone's needs become a restriction on their right to own something? What does need have to do with the right to make a purchase in America? If someone wants a pickup truck, they should be able to buy one. If someone wants a large-screen TV, likewise. And so on - so long as the purchase per se doesn't physically hurt someone, then what right does any other person have to say that someone can't spend their money in the way that they best see fit. That's totalitarian!

But guns are dangerous, they say. Yes they are - that's their purpose; if they weren't they'd be no good at their intended self-defense function. But consider this: everyone on both the right and the left will quickly (and correctly) agree that ideas are the most dangerous of all things. Millions and millions of people have died as a result of an idea that they or their killers held. From our servicemen and women dying for the cause of freedom, to the Jews who died in the Holocaust, to the victims of terrorism to... well, you get what I'm driving at: ideas are the most powerful - and dangerous- - of human tools. If it's dangerous things that need regulating, than let's start the book burning ASAP. I'm serious here: the argument that guns (those appropriate for self-defense) need regulating follows the exact same logic as the notion that we should not let people read certain books or be exposed to certain ideas.

And in any case, there are legitimate needs for the kinds of guns that this "Why do you need it?" question gets asked about: to protect oneself and one's family. If such weapons as 17-round handguns and 20 or 30-round so-called "assault rifles" are unnecessary for individual self defense, then the obvious question is “Why do we issue them to individual police officers”? They don't face threats significantly different than any other citizen does, especially if a citizen is being targeted (most police face these same dangers more often, but that's beside the point).

What policies to propose?

In light of al the preceding, here's my list of suggested policy actions:

•Weapons with legitimate self-defense use should be allowed, including so-called assault rifles.
•Weapons that have no legitimate self-defense application should continue to be restricted.
•Weapons in the gray middle area can be decided on a fact- or outcome-basis. If they prove to be a menace they can be restricted; if they do not, there's no need to restrict them further nor to ban them.
•Enforce the myriad of unenforced legitimate laws already on the books. The NRA pushed the Clinton administration hard to do this; the Clintons resisted hard for years, but were finally forced to give in and fund Operation Exile, with a significant reduction in gun violence as a result.
•All gun laws (state, local and federal) ought to be reviewed and abolished if they can't be shown to have their desired outcome, to wit: a depressing effect on violent crime. (This kind of zero-based review of all laws would be wise, but such a proposal is beyond the scope of this article.)
•While right-to-carry licenses should probably, for practical reasons if nothing else, remain under the state's purview, how about a federal License To Carry if the applicant meets the normal criteria - no felony convictions, etc., and passes the same 40 or 80 hour firearms training program that federal agents have to pass in order for them to carry nationwide? The FLETC (Federal Law Enforcement Training Center) firearms program - both the classroom and range parts) - could be made available to certified instructors in the private sector who would certify citizens.

So fellow officers, what do you think?








Ralph Mroz is a police officer in Western Massachusetts, currently assigned to his county's counter drug/gang task force. He is the Training Director for the Police Officers Safety Association. He has produced two videos prior to POSA: Facing the Blade and Extremely Close Quarter Shooting, and two books: Defensive Shooting for Real-Life Encounters and Tactical Defensive Training for Real-Life Encounters, all available from Paladin Press. He is the author of several hundred articles in the professional law enforcement press. Mr. Mroz has taught at international training venues and has dozens of professional certifications and instructorships from nationally recognized bodies.

[Steve_NEPhila]

In all seriousness, I do not care what any LEO thinks about my rights.

To clarify, I view the militarized and large LEO population of the United States as being a "standing domestic army." Being that the interests of LEO's and that of citizens very often conflict, their perspective does not matter. For example, I am going out on a limb here, I presume that the majority of law enforcement would desire more lax rules of search and seizure. Conversely, citizens would very much wish to have tighter restrictions on what LEO's can search or seize.

In short, LEO's have their own specific interests. The citizens, which make up a majority of our population have interests that differ from LEO's. Down with the Patriot Act.

[ungawa]

In all seriousness, I do not care what any LEO thinks about my rights.

To clarify, I view the militarized and large LEO population of the United States as being a "standing domestic army." Being that the interests of LEO's and that of citizens very often conflict, their perspective does not matter. For example, I am going out on a limb here, I presume that the majority of law enforcement would desire more lax rules of search and seizure. Conversely, citizens would very much wish to have tighter restrictions on what LEO's can search or seize.

In short, LEO's have their own specific interests. The citizens, which make up a majority of our population have interests that differ from LEO's. Down with the Patriot Act.

+1. I'd like to +1 each point in detail but I would start crying.

[rflynn]

I believe we have tried reasonable gun control laws since 1968 !
They don’t work! Every time we have this B/S shoved down our throat THE Reasonable crowd (ANTI’s) seem to want more the very next day! The answer from this point on has to be NO!

Ok I will give on the WMD in the trunk of my car thing. But that is not a firearm and certainly not something I am going to use for self defense. A little over the top for an example. If you ask me.

And again! How the fuck does this have anything to do with law abiding citizens. How does restricting us help with the problems of police? Stop blaming the gun!

[nlcrsn]

A well regulated militia? If the Feds have rockets, bombs, nukes. What is the citizens rifle, handgun going to do to stop them?
There should be no Federal Military, an Union of States, with Leaders that control militia hardware. To protect the states against a gov't that wants to make its own rules.
Every citizen has the right to carry anything. Any where in the US openly or any way they prefer! Limits on high explosives, missiles, with mass kill capabilities, I will agree need some form of control. Although, if I want to use a rocket, missle, grenade to remove a tree, house, cave or just for fun, a simple city permit, like a building permit should suffice! Maybe some kind of inspector to go along ! Every man I know would love to run a minigun from a motorized vehicle and obliterate an inanimate object hoooooaahhhhh! A rocket into that pos jeep that keeps breaking down, hooooooaaahhhhhhh!
I believe my expressions are clear and feel that they are similar to my fellow citizens and warriors!

[GHogHarvester]

I think it was thoughtful article, and well considered.

In light of all the preceding, here's my list of suggested policy actions:

•Weapons with legitimate self-defense use should be allowed, including so-called assault rifles.

I agree. Each is a defense against a particular type of threat. My instructor wisely said a handgun is to buy you enough time to get to your rifle. I want my rifle to be able to dispatch a treat, not amuse a threat with how fast I can turn a bolt while he gives me extra orifices.

•Weapons that have no legitimate self-defense application should continue to be restricted.

Here it starts to get fuzzy. Nuclear, biological, clearly offensive. A flash-bang would be on the edge but a resonable argument could be made for it as a means for a civilian to buy time for safety.

•Weapons in the gray middle area can be decided on a fact- or outcome-basis. If they prove to be a menace they can be restricted; if they do not, there's no need to restrict them further nor to ban them.

Now the trouble starts, who decides? The people? the government? If the government is granted that right it will never be reclaimed by the people. If it is a menace, it would have to be overwhelmingly so. What then is overwhelming. One event played up in the media can result in an overwhelming response - look at Columbine and the excessive response thereto.

•Enforce the myriad of unenforced legitimate laws already on the books. The NRA pushed the Clinton administration hard to do this; the Clintons resisted hard for years, but were finally forced to give in and fund Operation Exile, with a significant reduction in gun violence as a result.

This makes complete sense, enforce the existing laws first before further restricting rights. That mean enforcing with real penalties, not a slap on the wrist. Free gun safety and training programs would do far more good than thousands of pages of legispeak.

•All gun laws (state, local and federal) ought to be reviewed and abolished if they can't be shown to have their desired outcome, to wit: a depressing effect on violent crime. (This kind of zero-based review of all laws would be wise, but such a proposal is beyond the scope of this article.)

Yes. Yes. Yes.

•While right-to-carry licenses should probably, for practical reasons if nothing else, remain under the state's purview, how about a federal License To Carry if the applicant meets the normal criteria - no felony convictions, etc., and passes the same 40 or 80 hour firearms training program that federal agents have to pass in order for them to carry nationwide? The FLETC (Federal Law Enforcement Training Center) firearms program - both the classroom and range parts) - could be made available to certified instructors in the private sector who would certify citizens.

I have a problem with any training that is government dictated or controlled - so I like the third party aspect of this. As said, there are many responsible independent organizations that could accomplish this. My view is as long as you have not committed violent crimes or are mentally unfit you should be permitted to carry. In PA at least, my read on the state constitution is it a right that is forever inviolate, therefore the state has no authority to intervene unless it can show that you present a genuine risk to society - if so that is more of a sociopathic issue than a weapons issue.

Thanks Larry, great post.

[larrymeyer]

A lot of the neg post I'm reading appear they didn't read the article but posted because the article may be anti-gun.

I didn't read it that way as a matter of fact I read it as a call for not banning guns.

[ehidle]

It's written in plain English in the constitution that arms control of any kind is unconstitutional.

It doesn't take a law scholar to figure it out.

There is no such thing as "reasonable" restriction on arms. Any restriction of any kind is unreasonable and illegal. It doesn't matter if it's a gun or a howitzer. The people have the right to bear any kind of arms that exist.

[rflynn]

It's written in plain English in the constitution that arms control of any kind is unconstitutional.

It doesn't take a law scholar to figure it out.

There is no such thing as "reasonable" restriction on arms. Any restriction of any kind is unreasonable and illegal. It doesn't matter if it's a gun or a howitzer. The people have the right to bear any kind of arms that exist.

This is 100% correct. And exactly what meant by saying NO! to any more restrictions at all!
This opinion of reasonable gun control is in fact 100% anti gun! And if allowed how we will loose them.