Elian & guns

[Randy Barnett]

Michael Froomkin  wrote:

>Anyone who enters a home in greater Miami without expecting there to be
>guns present is probabalistically deluded.  Statistics published around
>the time of Hurricane Andrew (when people were afraid of looters),
>suggested that about half of the homes in this area had one or more guns
>even before the hurricane. Thus, even if there had not been various armed
>security people from cuban exile groups present from time to time outside
>the home, no one could reaonsably conclude there was little chance of guns
>in the home.  (We moved here a few days before Andrew; our new neighbors
>attempted to reassure us the day afterwards that they had an arsenal and
>would keep on watch for looters.  This failed to increase our comfort
>level.)

>That is not to say, of course, that the presence of a gun had there been
>one would be probative of an intent to use it against a federal agent.

I have not heard any allegation by Janet Reno or anyone else that the
government was in possession of reliable information that the Gonzoles
family and associates were likely to use firearms to resist the government.
(Indeed, we are now learning that government agents knew in advance that
there were no guns present but this is not relevant to my question.)

The questions Michael's comment made me think of are these:

Given the high rate of legal gun ownership in America--let's use Eugene's
figure of between 35-50% of all households--does the government now claim a
legally justified power to execute a search warrant by using military force
of the sort employed in Miami to enter *any* house of its choosing at its
discretion given that the odds may be  50-50 that a gun will be present?  Or
any house in which it believes guns are legally (or illegally) present which
is to say 35-50% of all homes?  Does a citizen's choice to own legally a
firearm, standing alone, now justify the use of military force and forced
entry into that citizen's home?

In answering these questions, we must distinguish between the force that may
be warranted for crowd control under the circumstances in Miami and the
force that is justified to enter *the home* of a person believed or known to
possess legally a firearm to execute a search warrant.  We must also
anticipate that an affirmative answer to the question would, if widely
known, greatly increase the political resistance to gun registration laws
which would provide law enforcement with the information upon which to
justify their use of military force.

As an aside to Michael's other observation that:

>There is some irony in learning, as I did this week, that in
>pre-revolutionary days, perhaps about 1 in 10 colonial households had a
>gun; we are today ever more so that people "numerous and armed" which Gov.
>Hutchinson wrote so despairingly of to his English masters.

As Eugene already mentioned, this is very far from a settled fact.  I am
told that it is based on a survey of approximately 1000 probate records (the
NYT erroneously said 11,000), though I was not aware that either the data or
the survey methodology has yet been published.  Even taken at face value,
however, there is simply no reason to be confident that most firearms were
still in the possession of those who made wills that were subject to probate
rather than having been given away during the life of the person, or that
most persons with guns would have specifically listed them in their will.
Some have observed that, at best, this data only suggests that no fewer than
10% of Americans owned guns--assuming households with wills were
representative of households without wills.

An interesting test of Bellesile's methodology would be to see, for example,
if he reports how many family bibles were present in the probate records,
since we can safely assume that family bibles were both valuable and nearly
universally owned.  When the data is published, it will be important to be
sure it is controlled in some such manner.

Randy

__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
mailto:rbarnett at bu.edu
(617) 353-3099 (phone)
(617) 353-3077 (fax)
www.bu.edu/rbarnett
www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
www.LysanderSpooner.org (Lysander Spooner Website)