Changing circumstances and firearms lethality

Volokh, Eugene VOLOKH at law.ucla.edu
Sat Apr 18 15:34:52 PDT 2009


	Accuracy at a distance is of little significance in the
overwhelmingly majority of handgun crime; the typical handgun shooting
is at a very short distance.  Nor have I seen any evidence that
lethality has risen dramatically or even materially in recent decades;
the study that Prof. Rosenthal cites reports on the mean number of
gunshot wounds, not actual lethality.  Perhaps there has been an
increase in gun attack lethality since 1983, but indirect evidence such
as the 1992 study tells us very little about it and especially about the
magnitude of the interest (tiny or indeed "dramatic"?).

	More significantly, whether the 15-20% death rate per firearms
assault that caused injury (and the lower number per attempted firearms
assault, period) is higher or lower than what it was 20 or 30 years ago
isn't the issue.  The question for purposes of a "changed circumstances"
analysis is what the rate was in 1791.  It certainly strikes me as quite
possible that, even taking into account the possibility of missing (and
recall that people would sometimes carry a "brace" of pistols), the
death rate per attempted firearms assault in 1791 was at least where it
is now, and possibly higher.  And if the argument relates simply to the
incidence of nonlethal injuries, then obviously that argument is weaker
than one that rests on death rather than injury (especially if the death
rate per assault was actually *higher* in 1791, even if the injury rate
per assault was lower).

	Before we say that changed circumstances -- here, the lethality
of an average firearm assault -- are reason to read a constitutional
right more narrowly than in 1791, shouldn't we have real evidence that
circumstances have indeed changed?

	Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Saturday, April 18, 2009 2:51 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Changing circumstances and firearms lethality
> 
> Handguns are more accurate at greater distance than in the eighteenth
century,
> and can be fired at greater rates.  Both contribute to greater
lethality, no?
> 
> Have advances in medical care kept up with advances in firearms
technology?  I
> know of no eighteenth-century data on lethality from firearms in
general or
> handguns in particular, but there is an abundance of evidence that
lethality has
> risen dramatically in recent decades, corresponding with the greater
popularity of
> higher power, semi-automatic handguns.  See, e.g., Daniel W. Webster
et al.,
> Epidemiologic Changes in Gunshot Wounds in Washington, DC, 1983-1990,
127
> Archives of Surgery 694, 698 (1992) (reporting that the mean number of
gunshot
> wounds increased significantly for patients at a Level I trauma center
from 1983 to
> 1990, the same time period in which "more and more assailants ha[d]
switched
> from revolvers to high-capacity semiautomatic pistols").
> 
> An eighteenth-century handgun could be used by a criminal to fire
(assuming it
> worked properly) one shot at close range.  If that shot missed, it is
unlikely that
> the assailant would have time to reload and get off another shot.
Isn't it apparent
> that the likelihood of today's handguns actually hitting somebody is
greater, if only
> because of improved accuracy and rate of fire?  To be sure, today's
physicians
> are more likely to save somebody actually shot than their
predecessors, but even
> an increase in the danger of nonfatal shootings surely makes today's
handguns of
> greater concern than their 18th-century predecessors.
> 
> Of course, this is not much an argument for gun control.  Today's
handguns are
> more useful to criminals, but they are also more useful for
self-defense than their
> 18th century precedessors.  My only point is that there is little
reason to believe
> that the circumstances that underlay the 18th-century's policy
judgment about the
> utility of firearms (and it was really only a policy judgment about
the advisability of
> federal laws concerning the right to keep and bear arms) apply today,
Maybe
> handgun bans are still bad policy, but surely not because they were
bad policy in
> 1791.  To resolve today's constitutional question, don't we need to
"translate" the
> 1791 policy judgment by reference to contemporary circumstances, which
include
> both greater accuracy and rates of fire, and improved medical care?
> 
> Larry Rosenthal
> Chapman University School of Law
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Sat 4/18/2009 1:15 PM
> To: conlawprof at lists.ucla.edu
> Subject: Changing circumstances and firearms lethality
> 
> 
> 
> 
>         There are important theoretical questions about when a court
> should read a constitutional amendment more narrowly because of
changed
> circumstances (or for that matter about whether the continued
acceptance
> of the individual right to bear arms in self-defense over two
centuries
> of state constitutionmaking should affect the analysis).  But I have a
> factual question:  Do we have any reason to think that firearms
> lethality has indeed increased since 1791, at least with respect to
the
> guns that were at issue in Heller (handguns)?
> 
>         To be sure, handguns are now higher capacity; but medical care
> has also progressed dramatically.  In particular, handgun assault
wounds
> seem to be fatal these days in 15%-20% of all instances in which
someone
> is hit.  Do we know what the fatality rate was for comparable firearms
> wounds in 1791?  It's far from clear that it was materially lower.
(Of
> course, if one wants to use as a denominator firearms assaults, which
> would require us to consider the fraction of the time that someone is
> actually hit, that's fine, too -- it's just that this would be even
> harder to calculate.)
> 
>         Eugene
> 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > bounces at lists.ucla.edu] On Behalf Of Rosenthal, Lawrence
> > Sent: Saturday, April 18, 2009 9:50 AM
> > To: Calvin Johnson; Raymond Kessler; John Bickers;
> conlawprof at lists.ucla.edu;
> > firearmsregprof at lists.ucla.edu
> > Subject: RE: Mass weapons is the original rationale.
> >
> > Professor Johnson's post raises an interesting question about
> originalism as an
> > interpretive methodology.  Heller is certainly correct that the
Second
> Amendment
> > reflect a policy judgment about the costs and benefits firearms, but
> that judgment
> > was made at a time at which crime rates were high, police
departments
> as we
> > know them today did not yet exist, most persons lived in rural areas
> in which they
> > had to depend on themselves for self-defense, threats from unstable
> groups were
> > often present (hostile Native Americans, bands of unemployed
> marauders), and
> > firearms were of limited lethality.  Isn't it reasonable to question
> whether even the
> > dead hands who made that judgment would find it applicable to
> contemporary
> > urban america, in which police protection is pervasive, firearms are
> much more
> > lethal, and are often used by criminal gangs to enforce territorial
> drug and gang
> > monopolies that destabilize (even terrorize) entire communities?
> (much more on
> > this at http://papers.ssrn <http://papers.ssrn/> .!
> >  com/sol3/papers.cfm?abstract_id=1245402)
> >
> > I do not mean to suggest that we can just declare the Second
Amendment
> > obsolete and remove it from the Constitution, but I do wonder
whether
> an
> > argument that a policy judgment made under quite different
> circumstances in 1791
> > should remain binding today without doing a good deal of what Larry
> Lessig called
> > "translation" so that it is not seriously distorted when applied in
> contemporary
> > circumstances.  Heller itself said we had to "translate" so that the
> Second
> > Amendment was applicable to more than just 1791-vintage firearms,
but
> if we
> > perform that act of translation, don't we need others as well if we
> are not to distort
> > the original "policy judgment"?
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Calvin Johnson
> > Sent: Fri 4/17/2009 7:51 PM
> > To: Raymond Kessler; John Bickers; conlawprof at lists.ucla.edu;
> > firearmsregprof at lists.ucla.edu
> > Subject: Mass weapons is the original rationale.
> >
> >
> > I favor original intent of particular puritfied kind.  Members of
the
> militia duly
> > signed on my hold their flintlocks so as .  The thing that is nice
> about flintlocks is
> > that before rifling, you could nto hit the broad side of a barn so
you
> needed a
> > whole companyto have shot at doing damage.  the telling rationale is
> that the arms
> > within the original meaning of duty to bear arms worked only within
a
> militia and
> > did nto function to support individual loonies working alone.
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Raymond Kessler
> > Sent: Fri 4/17/2009 5:36 PM
> > To: 'John Bickers'; conlawprof at lists.ucla.edu;
> firearmsregprof at lists.ucla.edu
> > Subject: RE: Types of weapons protected by 2nd Amend.
> >
> >
> >
> > Very true, but we have to start somewhere--unless you have a crystal
> ball.  I
> > noted that this was dicta.  Arguably, nothing is ever a settled
> question. The
> > Constitution ultimately only means what 5 Justices on the Court say
it
> means.
> > Personally, I don't care what the NRA's position is.  Yes there are
> civilian analogs
> > of M-16's but, except in rare cases, civilians can buy only
> semi-automatics.  Are
> > semi-automatic "assault rifles," protected by the 2nd amendment? I
> think there are
> > enough in circulation to make an argument that they are in common
> use.  Do they
> > play a large role in violent crime? No.   Is there any good evidence
> that the
> > temporary ban on them reduced gun violence?   No. Most serious gang
> bangers
> > have moved up to fully automatics like AK-47's. (I discussed the
> Mexican situation
> > elsewhere)   My personal opinion, however, is that they are not a
good
> choice for
> > home defense.
> >
> > Part of the problem in this country, as you and others note,  is
that
> nobody trusts
> > their ideological opponents.  We have become polarized.  We have
> winner-take-all
> > and scorched earth politics.  Each side demonizes the other (see DHS
> report on
> > right-wing extremism).  Too much kulturkampf and not enough rational
> policy
> > making.  Why don't we call a truce?  The left will stop attacking
gun
> and private
> > property rights if the right will stop attacking gay marriage,
> abortion, etc.
> > Unfortunately, hypocrisy is rampant with regard to rights. Each side
> has its
> > favorites and attempts to punish, stigmatize and demonize  its
> enemies.  The ball
> > is in Obama and Pelosi's court.  Will they introduce new draconian
gun
> control
> > legislation (which IMHO is unnecessary) and enflame the right or try
> to build some
> > trust and consensus in this country?  If people would bother to
> examine the
> > research literature, they would see that there is no solid
consistent
> evidence that
> > gun availability has a caus!
> >  al relationship with the homicide rate.  There is no consistent
solid
> evidence that
> > any gun control measure has worked.  If that's not what it is about,
> what is it
> > about? It's primarily about emotion, status politics  and
kulturkampf.
> >
> > I wish I could continue this debate next week, but my job keeps
> getting in the way.
> > Please carry on in my absence.
> >
> >
> >
> > Ray Kessler
> >
> > Prof. of  Criminal Justice
> >
> > Sul Ross State Univ.
> >
> >
> >
> >
> >
> > From: John Bickers [mailto:bickersj1 at nku.edu]
> > Sent: Friday, April 17, 2009 4:28 PM
> > To: Raymond Kessler; conlawprof at lists.ucla.edu;
> firearmsregprof at lists.ucla.edu
> > Subject: RE: Types of weapons protected by 2nd Amend.
> >
> >
> >
> > "There seems to be some confusion among the public and some posters
as
> to the
> > types of weapons protected by the 2nd Amend."
> >
> > ___________________________________
> >
> >
> >
> > But, respectfully, Prof. Kessler, that really isn't a settled
> question, is it? You are of
> > course correct that Justice Scalia's opinion acknowledges limits,
but
> it is not at all
> > clear (to me, at least) that such language ever binds anyone.
Recall
> that in his
> > dissent in Grutter, Justice Scalia himself made this very
observation:
> the Court's
> > announcement of a principle does not really tell us where the limits
> to that
> > principle are.
> >
> >
> >
> > As Prof. Volokh pointed out earlier in this thread, many of the
> advocates of gun
> > rights do not trust their ideological opponents.  The NRA is wary of
> even
> > seemingly inoffensive government actions because they see in them
> merely the
> > camel's nose under the tent.  I might be so bold as to point out
that
> the same
> > unease is shared by opponents of gun rights; I have heard some fear
> that a right
> > to handguns today might lead to a right to automatic weapons
tomorrow.
> >
> >
> >
> > Indeed (although I am in the camp of neither adversary in this
> struggle), I think
> > Justice Scalia's mention of an M-16 is at least puzzling.  The
> civilian variants of
> > that particlur weapon are, I believe, fairly common.  Many on this
> list will know
> > better than I whether the NRA takes the position, after Heller, that
a
> reinstatement
> > of the "assault weapons ban" is unconstitutional as opposed to
merely
> a bad policy
> > choice.  Such weapons are actually quite effective for the right of
> confrontation
> > spelled out in Heller, and are significantly easier to bear (for
those
> of us not the
> > Governor of California) than a handgun like a Desert Eagle.
> >
> >
> >
> > Heller is no more the end of the legal discussion regarding the
Second
> > Amendment than Brown was the end of the Equal Protection discussion.
> >
> >
> >
> > John Bickers
> >
> > Salmon P. Chase College of Law
> >
> > Northern Kentucky University
> >
> > _______________________________________________
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> _______________________________________________
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