Can Handguns Be Effectively Regulated?

DEBATE CAN HANDGUNS BE EFFECTIVELY REGULATED? The FBI has recently reported that violent crime has increased for the second straight year across the nation. In particular, the FBI’s report demonstrates that in major metropolitan areas, such as Philadelphia, homicides have increased by 6.7%. In the midst of this upsurge in violent crime, Professors James B. Jacobs, of New York University, and David Kairys, of Temple University, reengage with America’s long-running debate over the effectiveness of gun (specifically handgun) control regulation. Professor Jacobs initiates the debate by asking whether it is realistic to pursue a strategy of enhanced regulation of firearms in a country in which “there are 300 million firearms in civilian hands,” and “the large majority of firearms used in crime . . . are either stolen or purchased on the black market.” After providing a number of critiques of what he believes to be a shifting target set by pro-gun-control advocates, Professor Jacobs concludes that “[g]un control offers no magic bullet for reducing crime, suicide, or accidental deaths and injuries.” In contrast, Professor Kairys does not consider the current amount of handgun regulation to be nearly enough to satisfy what common sense should tell us is necessary to adequately ensure that handguns are not easily available to criminals and youth. He specifically notes that any emphasis on the “black market” in handguns overshadows the disturbing reality that “any person without a record can buy large quantities of cheap, easily concealed handguns and sell them to others indiscriminately, often without violating any law.” At a deeper level, both Professor Jacobs and Professor Kairys agree that the debate on handgun control “at its core is [related to] a personal, cultural, and political identification of guns with personal selfworth . . . , freedom, liberty, and . . . God and country.” Whereas Professor Jacobs accepts this as a political reality and uses it as an anchor from which to engage in this discussion, Professor Kairys steadfastly disagrees: “The best hope for emerging from our disgraceful state of denial is to respectfully engage and challenge the cultural and political identification of guns with our nation’s highest ideals and the deadly legacy of that identification as it is currently conceived.” (188) 189 UNIVERSITY OF PENNSYLVANIA LAW REVIEW PENNumbra [Vol. 156: 188 OPENING STATEMENT What Can We Expect of Gun Control? James B. Jacobs † “Gun Control” is a topic that typically throws off more heat than light. Indeed, as an issue it functions symbolically, contributing to the “culture war.” Gun rights advocates and proponents of gun controls both stake out claims to the moral high ground. The former believe that the citizenry has a right and duty to be armed in defense of self and collectivity and that guns are good; the latter believe that guns are inherently evil, cause crime, homicide, suicide and accidents. Each side demonizes the other. I do not wish to argue that guns are good or bad, or that a new country (created on a deserted island) would be better off with an armed or disarmed citizenry. My question is this: if guns are a problem in U.S. society today, what remedial policy options are available? This question forces us to specify the problem. In fact there are three possible problems: gun crime, gun suicide, and gun accidents. Gun crime seems to drive most proposals for gun control, although each year there are twice as many firearm suicides as homicides. Gun accidents are relatively few in number, and fatality rates (deaths per 100,000 population) have decreased over the twentieth century. In the limited space available here, I will predominantly focus on gun controls directed at gun crime, but it is important to keep in mind that some gun control proposals seem to be directed at the two other problems. In my view, our policy options for addressing gun crime are sharply limited by certain facts: 1) there are 300 million firearms in civilian hands; 2) 40% of households have at least one firearm; 3) a large percentage of Americans, including elites, believes in a constitutional right to keep and bear arms, a belief that would not be shaken even by a Supreme Court decision to the contrary; and 4) most gun crime is committed by individuals who have criminal records or are significantly involved in crime, including violent gang behavior and drug trafficking. † Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, New York University School of Law; Director, Center for Research in Crime & Justice. He is the author of CAN GUN CONTROL WORK? (Oxford Univ. Press 2002). 2007] HANDGUN REGULATION EFFECTIVENESS 190 There are many types of gun control that range from imprisoning armed felons to imposing tort liability on manufacturers. The most politically popular type of gun control in the U.S. is the severe punishment of crimes committed with firearms. All Americans support severe sentences for firearms offenders, except for those who advocate reduced punishment and imprisonment across the board. Federal and state criminal codes already provide for long prison terms for armed felons. Many police departments and prosecutors’ offices have special programs to identify, fast-track, convict, and assure long prison terms for armed felons. For at least the last decade, the U.S. Department of Justice has made enforcement of the federal “felon-inpossession” (of a firearm) law a top priority. Local police departments have launched initiatives to remove firearms from so-called “hot spots,” locations where a disproportionate number of violent crime occurs. There is little, if any, political impediment to enforcing these laws and policies. Tougher law enforcement action against those who commit crimes with guns is not what most gun control advocates seem to have in mind when they debate gun controls. Instead, they seem to believe that gun crime could be significantly reduced by prohibiting or significantly restricting civilian (nonmilitary and nonpolice) access to firearms. I disagree. Data show that there is no correlation, at the state or city levels, between firearms density (percentage of population owning firearms) and rate of gun crime. Even if there were, prohibiting or substantially restricting the extent of gun ownership of all firearms (300 million now in circulation) or, alternatively, just handguns (100 million now in circulation), is not a realistic option for the U.S. and serves only to energize gun owners and polarize the population. There is no conceivable scenario whereby firearms prohibition could muster a majority (or supermajority if a constitutional amendment is necessary). The idea that gun crime in our inner cities (much of which takes place among drug dealers and gang members with significant criminal records) will be significantly reduced by taking guns away from ranchers, farmers, small town residents and suburbanite (...truncated)