What to Do With the Second Amendment

The following is chapter two of an upcoming book by Bruce Krafft:

Why is the right to self-defense called a fundamental right? The right to defend yourself, your family, your neighbors, and your hearth, home and country most assuredly is a right with which the Creator endowed all people, in fact all living creatures. What is a bee’s sting if not a defensive tool? A cat’s teeth and claws can be used to catch prey but they also are highly effective defensive weapons. I realize that this is a pretty bold claim: that self-defense is a fundamental human right. Are there any court cases or legal opinions on point? In fact, there are . . .

The Supreme Court has handed down a number of rulings affirming various aspects of the right of self-defense starting back in the 1890s. In Gourko v. United States, 153 U.S. 183 (1894) and Thompson v. United States, 155 U.S. 271 (1894), the Court stated that merely carrying arms for self-defense purposes did not constitute premeditation.

In the case of Beard v. United States, 158 U.S. 550 (1895) the Supreme Court overturned Beard’s conviction after the lower court judge instructed the jury that Beard should have retreated from the confrontation. Justice Harlan, writing for the Supreme Court stated:

A man assailed on his own grounds, without provocation, by a person armed with a deadly weapon and apparently seeking his life is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control …

In Allison v. United States, 160 U.S. 203 (1895) the Court answered two questions. The trial judge in Allison’s case had determined that Allison had not acted in self-defense and instructed the jury that they were not to consider the possibility of self-defense; the Supreme Court ruled that this is a question for the jury to decide, not the judge. Second the Court ruled that a self-defense claim against an assailant who had made threats and had a history of being armed was not invalidated by the subsequent discovery that the assailant was unarmed.

In the case of Wallace v. United States, 162 U.S. 466 (1896) SCOTUS ruled that testimony about previous threats which the deceased had made to Wallace were relevant to the defense and should not have been excluded.

I find the case of Rowe v. United States, 164 U.S. 546 (1896) actually very interesting. According to the Supreme Court, Frank Bozeman “used language of a character offensive to” David Rowe, the accused. In response, Mr. Rowe “thereupon kicked at or struck at the deceased, hitting him lightly, and then stepped back and leaned against a counter” thus indicating that he was not going to continue the assault. Bozeman, however, attacked Rowe with a knife, cutting his face. Rowe drew his pistol and shot Bozeman. The trial court ruled that since Rowe started the fight he could not then claim self-defense. The Supreme Court reversed on the grounds that, first, Rowe’s attack was in no way life threatening which made the counter-assault with a knife completely disproportionate and second, that by stepping back and leaning against a counter Rowe had withdrawn from the fight thus restoring his right to self-defense.

And then of course we have Brown v. United States, 256 U.S. 335 (1921) which gave us Oliver Wendell Holmes Jr.’s classic [d]etached reflection cannot be demanded in the presence of an uplifted knife.

All of these provide a lovely segue into the first questionable claim of the antis; their claim that guns are not good tools for self-defense. This claim in turn is broken down into several sub-objections, the first being that a gun in the home is more likely to kill someone in the home via suicide or homicide than kill an intruder.

Guns in the Home Are More Dangerous than Shield

Based on Dr. Arthur Kellerman’s study Suicide in the Home in Relation to Gun Ownership, the Brady Campaign states:

Keeping a firearm in the home increases the risk of suicide by a factor of 3 to 5 and increases the risk of suicide with a firearm by a factor of 17

And according to a study performed by Dr. Garen Wintemute of the Violence Prevention Research Program at UC Davis:

the firearm suicide rate for the buyers was 57 times higher during the first week after their purchases than for the population as a whole.

What both of these studies completely fail to address is the fact that if someone is planning on committing suicide with a gun they need a gun before they do the deed. This does not, however, mean that restricting “access” to firearms will reduce suicide rates. Numerous studies have shown that when access to firearms is restricted the rate of suicides using a firearm may go down, but the overall rate remains unchanged. In other words there is a substitution effect.

Dr. Gary Kleck writes in his Targeting Guns: Firearms and their Control:

The full body of relevant studies indicates that firearm availability measures are significantly and positively associated with rates of firearm suicide, but have no significant association with rates of total suicide. Of eleven studies measuring an association between measures of gun availability and the total suicide rate, nine found no statistically significant positive association … one found a significant positive association … and one … obtained mixed results …

This pattern of results supports the view that where guns are less common, there is complete substitution of other methods of suicide, and that, while gun levels influence the choice of suicide method, they have no effect on the number of people who die in suicides.[1] [emphasis added]

These results are also fully in accord with the CDC’s First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws which states (in part):

Overall, evaluations of the effects of acquisition restrictions on violent outcomes have produced inconsistent findings … One study indicated a statistically significant reduction in the rate of suicide by firearms among persons aged >55 years; however, the reduction in suicide by all methods was not statistically significant.

In other words when access to firearms was restricted the number of suicides with guns were reduced but the overall suicide rate was essentially unchanged, meaning people who couldn’t get a gun simply chose another method.

But the antis present study after study showing that higher firearm ownership rates lead to higher suicide rates; e.g. Household firearm ownership and suicide rates in the United States by Drs. M. Miller, D. Azrael and D. Hemenway. In the abstract they state:

RESULTS: In both regional and state-level analyses, for the U.S. population as a whole, for both males and females, and for virtually every age group, a robust association exists between levels of household firearm ownership and suicide rates.

CONCLUSIONS: Where firearm ownership levels are higher, a disproportionately large number of people die from suicide.

So we have dueling studies, back and forth, guns cause suicides, no they don’t, do too, do not, do, don’t! Who are you going to believe? Believe this OFWG[2] because he has found a way to determine, once and for all, if gun ownership rates correlate with overall suicide rates. I simply compared suicide rates in the U.S. (with its lax gun laws and easy access to firearms) to the suicide rates in Japan and Russia (with much more restrictive gun laws). GunPolicy.org provides us with the gun “access” information:

1)     Japan has 0.6 firearms per 100 people

2)     Russia has 8.9 firearms per 100 people

3)     The United States has 88.8 firearms per 100 people

Now in 2008 the U.S. suicide rate was 11.96 per 100,000 people, so if access to guns correlates one-to-one with suicide rates then Russia’s rate should be about 10% of ours (so 1.20 per 100,000) and Japan should be about 1% of ours (at 0.12 per 100,000). While GunPolicy.org has suicide figures for Russia and Japan they are more than 10 years old, but a quick Google search on ‘japan suicide rate 2011′ yields this article which tells us that:

Japan has long battled a high suicide rate. At 24.4 suicides per 100,000 people, the country ranked second in 2009 among the Group of Eight leading industrialized nations after Russia’s 30.1, according to the World Health Organization.

So when you boil it all down, here’s what’s left in the bottom of the pot:

Country	Guns per 100	Suicides per 100K
Japan	0.6	24.4
Russia	8.9	30.1
USA	88.8	11.96

 

Well whaddaya know? There isn’t even the slightest correlation between firearm access and suicide rates.

Now Dr. Kellerman did another study which provided the antis with a number which, although thoroughly debunked and repudiated (even by Dr. Kellerman himself), you can still hear to this day. In Protection or peril? An analysis of firearms related deaths in the home (New England Journal of Medicine 1986, Vol. 314, pp. 1557-60) Dr. Kellerman found that a gun in the home is used to kill a member of the household 43 times more often than to kill an intruder.

Okay, for starters, using the number of intruders killed as a metric for effectiveness of a self-defense system is as nonsensical as rating cops strictly by the number of BGs they kill. But if we were going to rate cops that way, according to the FBI’s Uniform Crime Reports between 2007 and 2010 there were a total of 1,575 justifiable homicides by LEOs[3] using firearms. According to the CDC’s WISQARS[4] website, in that same time period there were 47,382 homicides committed with firearms. In other words, there were 30 times more criminal homicides with a gun than there were LEO justifiable homicides with a gun. Sounds horrific if you say it really fast, but it just sounds nonsensical if you try to think about it.

Furthermore, as guncite.com shows us if you use Kellerman’s data set and methodology to look at homes that do not have a firearm you discover that something other than a firearm is 99 times as likely to kill a member of the household as it is to kill an intruder. Again, that statistic sounds horrific but again, in reality it is utterly meaningless.

Finally, what kind of twisted individual thinks that self-defense boils down to a body count?

But wait, the good doctor has more! According to Kellerman et al.’s Gun Ownership as a Risk Factor for Homicide in the Home (New England Journal of Medicine, October 7, 1993, Vol. 329, pp. 1084-91) a gun in the home makes it 2.7 times more likely that a family member will become a homicide victim in the home. There are just a few problems with that figure. First (as Dr. Kellerman admitted 4 years later) only 34% of those homicides were committed using the household gun, in the other 66% the killer brought the weapon with them. So let’s see now, if we take 34% of 2.7 times more likely we get . . . 0.918 times as likely. Which still does not change a meaningless number into a meaningful one, but I just thought I would throw that out.

Second, correlation does not equal causation! This is known as the post hoc ergo propter hoc (after this therefore because of this) fallacy; the fact that it started to rain after the shaman performed his ritual does not mean that it rained because of the ritual.

Third, Dr. Kellerman failed to control for why there was a gun in the home. People living a high-risk lifestyle may well keep a gun for protection, but if they are killed by a cuckolded husband or jilted lover the fact that they had a gun is irrelevant. Likewise, someone involved in dealing drugs is quite likely to keep guns for protection from rival dealers or ambitious underlings but again, it is their profession which is likely to get them killed, not the fact that they have a gun.

Fourth, a woman with a violent ex-husband may well keep a pistol for self-defense but it is the husband who is increasing her odds of being killed, not the gun. And speaking of abusive partners, the Violence Policy Center tells us:

… Although firearms are used in a relatively small percentage of domestic violence incidents, when a firearm is present, domestic violence can and all too often does turn into domestic homicide. …

A brief moment of thought should make it clear to most people that typically abusers don’t break out the gun unless s/he is planning on killing the partner.

Fifth and finally all of these studies and reports completely ignore the fact that guns are used defensively more than a million times a year, and DGUs save more than twice as many lives as are lost to CGUs[5]. Don’t believe me? Get ready for some math.

According to a study performed in the early 1990s by Drs. Gary Kleck and Marc Gertz, there are between 2.1 and 2.5 million DGUs annually. Now there are a lot of people out there who deride this number as ludicrous. They’re unable or (more likely) unwilling to accept that Dr. Kleck is not a shill for the Eee-vil Gun Lobby™. This, despite the good doctor disclosing in his 1997 book Targeting Guns (quote from GunCite.com):

The author is a member of the American Civil Liberties Union, Amnesty International USA, Independent Action, Democrats 2000, and Common Cause, among other politically liberal organizations He is a lifelong registered Democrat, as well as a contributor to liberal Democratic candidates. He is not now, nor has he ever been, a member of, or contributor to, the National Rifle Association, Handgun Control, Inc. nor any other advocacy organization, nor has he received funding for research from any such organization.

But skeptics will always be skeptical and antis will always prefer their own “reality” so let’s go ahead and throw the Kleck-Gertz study number out in favor of a more conservative one.

Let’s use the numbers from the study which was commissioned by the Clinton Department of Justice shortly after the K-G study came out[6]. That study, conducted by Drs. Philip Cook and Jens Ludwig (who bothhave a long record as very strong proponents of very strict gun control) concluded that there were 1.46 million DGUs per year.

I imagine that some may find even this lower number dubious, probably preferring to rely on the numbers from the National Crime Victimization Surveys which show between 50,000 and 100,000 DGUs per year. Unfortunately for those hopeful doubters, the way the NCVS is structured means that it seriously undercounts the number of DGUs. I’ll let Dr. Tom Smith, Senior Fellow and Director of the National Opinion Research Center at the University of Chicago explain:

First, it appears that the estimates of the NCVSs are too low. There are two chief reasons for this. First, only DGUs that are reported as part of a victim’s response to a specified crime are potentially covered. While most major felonies are covered by the NCVSs, a number of crimes such as trespassing, vandalism, and malicious mischief are not. DGUs in response to these and other events beyond the scope of the NCVSs are missed.

Second, the NCVSs do not directly inquire about DGUs. After a covered crime has been reported, the victim is asked if he or she “did or tried to do [anything] about the incident while it was going on.” Indirect questions that rely on a respondent volunteering a specific element as part of a broad and unfocused inquiry uniformly lead to undercounts of the particular of interest.

There’s another problem with the failure to directly inquire about DGUs: the DGU question is only triggered by someone saying they were the victim of a crime. If someone came towards me with a knife saying “Gimme your wallet,” and I put my hand on my weapon and replied “I don’t think so, Skippy,” causing the assailant to retreat, was I actually the victim of a crime?

Before I started researching these issues I would have told the NCVS interviewer that no, I hadn’t been the victim of a crime so they never would have learned of my DGU.

But now that we have a number for annual DGUs, we need to try to figure out how many lives were saved. I turn once again to Kleck and Gertz’s article Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun[7]. They found that 15.7% of people involved in a DGU believed that they “almost certainly” saved their life of someone else’s.

That might strike some people as an awfully large percentage, but if you take into account the fact that most locales regard the mere act of pulling a gun as using deadly force, and combine it with the fact that most places also require someone to be in “reasonable fear of imminent death or great bodily harm” before he or she can lawfully use deadly force, the number seems more feasible.

In addition to the “almost certainly” pool, The K-G study also found that 14.6% of respondents believed that someone “probably would have” been killed if not for their DGU.

Because I want my numbers to be distinctly conservative let’s say that 9 out of 10 of the “almost certainly” folks were wrong, and let’s say that 99 out of 100 of the “probably” people were also incorrect. That means we can state with a fair degree of certainty that at least 1.716% of the 1.46 million DGUs saved a life.

Doing the math that translates to over 25,000 lives that are saved annually by guns.

So we’ve determined that at least 25,000 lives per year are saved by DGUs, and according to the CDC’s WISQARS website, between 1999 and 2010 there were an average of 11,740 gun-related homicides annually, which means that for every criminal homicide with a firearm there were more than two lives saved by DGUs.

I think we have dealt with the antis’ first objection to having a gun for self-defense, that a gun in the home is more dangerous than helpful, so what is their next objection? How about:

You are more likely to be hurt if you try to fight back; just give your assailant what he wants.

Unfortunately this is not very helpful advice if what your assailant wants is your life, but in addition to being unhelpful, it also is flat out wrong.

Analyzing data from the Department of Justice’s 1992 – 1998 National Crime Victimization Surveys Dr. Kleck discovered that defending yourself with a firearm is safer than any other course of action. He published his results in Armed: New Perspectives on Gun Control[8]. His table of the Effectiveness and Risks of Victim Self-Protection Measures[9] table is below:

 

In his The Value of Civilian Handgun Possession as a Deterrent to Crime or a Defense Against Crime[10], Don B. Kates analyzed National Crime Survey data from 1979 – 1985 to create a similar table, which Guy Smith turned into a bar graph[11] which shows quite clearly that defending yourself with a firearm is the safest course of action in case of an attempted robbery or assault:

 

All of this pretty well puts paid to the idea that you are safer cooperating with your assailant.

The next anti-self-defense argument I’ve heard the antis put forward is that “civilians” can’t be trusted to use a gun to defend themselves; either the criminal will take their gun away from them or they will shoot the wrong person. Dr. Kleck’s Point Blank: Guns and Violence in America, which analyzed more than 180,000 incidents reported to the Department of Justice’s National Crime Survey between 1979 and 1985, found that in fewer than 1% of DGUs was a victim’s weapon taken from them.

Especially after the recent Empire State Building shooting, where officers firing at a murderer struck 9 innocent bystanders, the antis have said that if even highly trained police officers can make mistakes like that then surely untrained civilians will do worse. Again, though, the facts don’t support this idea. First of all, in the Empire State Building shooting most of the bystanders were hit not with stray shots, but with ricocheting bullet fragments after the shooter took cover behind a concrete planter. Second, for some arcane reason known only to the upper echelons of the NYPD, cops’ duty guns have a trigger pull of 12 pounds which is enormously high and which makes it extremely difficult to shoot accurately. And finally, according to Clayton Cramer and David Kopel[12]:

11% of police shootings kill an innocent person – about 2% of shootings by citizens kill an innocent person.

This does not mean that LEOs are lousy shots; these figures reflect the fact that usually citizens are involved in a situation from the beginning and know just who is innocent and who isn’t.

No Duty to Protect

Speaking of the police, people often ask permit holders “Why would you need a gun; the police are there to protect us?” It is true that the police do yeomen’s service fighting crime, but they cannot be everywhere protecting everyone all the time. This reality is reflected in the 150+ years of American jurisprudence which have held that the police have a general duty to enforce the laws and to protect society at large, but that they have no duty to protect individuals.

One of the earliest cases of which I am aware is Daniel South v. The State of Maryland, 59 U.S. (How.) 396, 15 L.Ed.433 (1856). There is not a lot of information about the case available besides the Court’s records, but it appears that it came about when:

[Jonathon] Pottle was engaged about his lawful business, certain evil disposed persons came about him, hindered and prevented him, threatened his life, with force of arms demanded of him a large sum of money

At some point during Pottle’s four day detention, Sheriff South was present, whereupon:

Pottle, applied to him for protection, and requested him to keep the peace of the State of Maryland, he, the said sheriff, having power and authority so to do. That the sheriff neglected and refused to protect and defend the plaintiff, and to keep the peace

The Circuit court ruled in Pottle’s favor, but the Supreme Court reversed, stating:

… [N]o instance can be found where a civil action has been sustained against [the sheriff] for his default or misbehavior as conservator of the peace, by those who have suffered injury to their property or persons through the violence of mobs, riots, or insurrections.

Fast forward a century to New York City, where Linda Riss was being threatened by an ex-boyfriend. Ms. Riss repeatedly went to the police detailing the ever more violent threats being made against her, but the police did nothing to help her. Unable to get help from the police she applied for a permit to carry a pistol, but her application was denied. The day before her engagement party she received an explicit threat that promised an attack very soon. Again she called police, again she was rebuffed. Leaving the party the next evening someone hired by her ex threw lye in her face, blinding her in one eye, damaging her other eye and permanently scarring her face.

Ms. Riss sued the city for failing to protect her, the trial court dismissed the case and the state Court of Appeals upheld the dismissal 6 – 1. In his dissent[13] Judge Keating pointed out rather acidly:

What makes the city’s position particularly difficult to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense (former Penal Law, § 1897). Thus, by a rather bitter irony she was required to rely for protection on the City of New York which now denies all responsibility to her.

The DC Superior Court probably offered the clearest statement of the “no duty to protect” principle in their ruling on Warren v. District of Columbia, D.C. App., 444 A.2d 1 (1981). In this case three women sued the District after they were attacked in their home; robbed and subjected to 14 hours of rape, sodomy and beatings after calling 911. Responding officers knocked on the front door and left when no one answered. The women sued on the grounds that the 911 operator was negligent in failing to inform officers that the assailants had kicked in the back door of the house, and that the responding officers failed to follow department procedures and check the back door. The court released the city and department from liability, ruling:

… [T]he District of Columbia appears to follow the well-established rule that official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection. … This uniformly accepted rule rests upon the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen. …

But in Castle Rock v. Gonzales (04-278) 545 U.S. 748 (2005) the Supreme Court took the “no duty to protect” principle to a new low.

During their divorce, Jessica Gonzales got a restraining against her husband Simon, which, except for set visits, required him to stay at least 100 yards away from the family home and not to “molest or disturb the peace of [respondent] or of any child.” On June 22, 1999 Simon took the girls in violation of the protection order. At the time, Colorado had in effect a law which required police to enforce restraining orders. Under this law the police had no choice but to arrest Simon. Jessica called the police at 7:30 PM to report the kidnapping and again at 8:30 PM after Simon called her to tell her he had the girls with him at a Denver amusement park. She called them again at 10:10 PM and at 12:15 AM and personally went to the station about 12:45 AM. Police did nothing to find Simon and the girls until about 3:20 AM when he pulled up in front of the police station and started shooting. After he was killed police found the bodies of the three girls, who Simon had killed some time before.

You might think that Ms. Gonzales had an ironclad case; police had violated the law by not enforcing the restraining order, and as a direct result Ms. Gonzales’ three young daughters were killed. If only it were so my friends; no, despite the fact that the Court of Appeals had determined

that this statutory provision–especially taken in conjunction with a statement from its legislative history … –established the Colorado Legislature’s clear intent “to alter the fact that the police were not enforcing domestic abuse retraining orders,” and thus its intent “that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.”

the Supreme Court decided that:

We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory.

Not content with that level of dodging responsibility, however, the Court upped the ante further, stating:

Even if the statute could be said to have made enforcement of restraining orders “mandatory” because of the domestic-violence context of the underlying statute, that would not necessarily mean that state law gave respondent an entitlement to enforcement of the mandate.

You got that? The Court is saying that even if some legislature goes back and says “It is mandatory that police arrest violators; they have to arrest them. Go to Jail, go directly to Jail, do not pass Go, do not collect $200, no ifs ands or buts, period, stop!” the police still can’t be held liable if there is a repeat of the Gonzales tragedy. In other words, the police have a general duty to enforce the law but have no duty to protect individuals.

So what is a good law-abiding citizen to do but take responsibility for his or her own protection?

There is one other purpose to the Second Amendment that I need to cover, but What Is Insurrection will get a chapter all to itself later on.