Changing circumstances and firearms lethality

Rosenthal, Lawrence rosentha at
Sat Apr 18 22:22:17 PDT 2009

I'm not sure how Professor Volokh measures "lethality," but today's firearms are useful in gang wars, in which drive-by shootings are an important tactic; 18th century firearms, not so much.  Whatever the policy judgment made in 1791, I don't think it considered the risk firearms pose in gang-ridden communities in which drive-by shooting are a common tactic.  I consider that risk part of the calculus when measuring the lethality of firearms.  If Professor Volokh does not, then perhaps our disagreement is merely semantic.
The studies to which I refer are:  H. Range Hutson, Deidre Anglin & Marc Eckstein, Drive-by Shootings by Violent Street Gangs in Los Angeles: A Five Year Review, 3 Academic Emergency Med. 300 (1996); H. Range Hutson, Deidre Anglin & Michael J. Pratts, Adolescents and Children Injured or Killed in Drive-By Shootings in Los Angeles, 330 New Eng. J. Med. 324 (1994).
I quite agree that there is little reason to ban handguns if people are free to carry rifles, but if a jurisdiction intends to impose a general prohibition on carrying firearms in public in order to reduce the risk of violent intergang confrontations in locations likely to threaten bystanders, then there is also a rationale for banning the sale and possession of handguns, since it is much easier to circumvent a ban on carrying firearms in public if concealable firearms are readily available.  If only rifles can be legally possessed and sold in a jurisdiction, the police will have an easier time enforcing a ban on carrying all firearms in public places.  Moreover, potential targets of drive-by shootings and similar intergang conflicts will have a more difficult time going about armed in public (in jurisdictions that prohibit carrying firearms in public places) if they cannot obtain handguns, since it will be difficult to carry a rifle in public without being arrested (and having the rifle forfeited).  Anything that increases the risks that gang members face when going about in public is probably a good thing.  In a recent article, I argue that a strategy along these lines may well explain New York City's success in combating violent crime:  Recall that New York City has quite restrictive firearms laws that some have characterized as tantamount to a handgun ban.
All that said, I had not intended to get into a debate on handgun bans.  That is a complex question and there are many counterarguments that can be deployed against the theory advanced in the preceding paragraph.  My point is that there is no reason to believe that the costs and benefits of firearms today are the same as they were in 1791.
Larry Rosenthal
Chapman University School of Law


From: conlawprof-bounces at on behalf of Volokh, Eugene
Sent: Sat 4/18/2009 8:29 PM
To: conlawprof at
Subject: RE: Changing circumstances and firearms lethality

        I'd love to see the cites on those studies; they seem quite
interesting.  But I'm not sure why a special subset of shootings should
bear on the questions where firearms generally are "much more lethal"
(to quote the original assertion to which I'm responding).  So I ask
again:  Do we have any real evidence that firearms are indeed "much more
lethal" today than they were in 1791?

        Note also that *handgun* controls would have no material impact
on drive-by shootings in any event, because the extra concealability of
handguns isn't much of an issue there.  If you banned handguns and if
the ban was effective in disarming those people who are willing to
commit murder (far from clear to me), the same drive-by shootings could
be more effectively accomplished with rifles, which are (holding caliber
constant) both more accurate than handguns and more lethal when accurate
(since the longer barrel length means a higher muzzle velocity).


> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at]
> Sent: Saturday, April 18, 2009 4:23 PM
> To: Volokh, Eugene; conlawprof at
> Subject: RE: Changing circumstances and firearms lethality
> One study found that drive-by shootings accounted for 33% of
> shootings in Los Angeles County between 1989 and 1994, with 590
victims, and
> nearly half of the persons shot at and one-quarter of the homicide
victims were
> innocent bystanders.  In 1991 alone, there were over 1,500
gang-related drive-by
> shootings in Los Angeles County.  The risk that drive-by shootings
pose to
> bystanders is a consequence of the difficulty in hitting one's target
from a moving
> automobile at some distance.  The reason this tactic has emerged among
> despite problems of accuracy, is that gangs assume that their intended
target is
> armed, and therefore a swift approach and a swift getaway is a
> necesssity.
> Can we agree that the drive-by shooting was not on anyone's mind when
a "policy
> judgment" about firearms was made in 1791?
> Larry Rosenthal
> Chapman University School of Law
> ________________________________
> From: conlawprof-bounces at on behalf of Volokh, Eugene
> Sent: Sat 4/18/2009 3:34 PM
> To: conlawprof at
> Subject: RE: Changing circumstances and firearms lethality
>         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
> as the 1992 study tells us very little about it and especially about
> 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
> assault, period) is higher or lower than what it was 20 or 30 years
> isn't the issue.  The question for purposes of a "changed
> analysis is what the rate was in 1791.  It certainly strikes me as
> possible that, even taking into account the possibility of missing
> recall that people would sometimes carry a "brace" of pistols), the
> death rate per attempted firearms assault in 1791 was at least where
> is now, and possibly higher.  And if the argument relates simply to
> incidence of nonlethal injuries, then obviously that argument is
> than one that rests on death rather than injury (especially if the
> rate per assault was actually *higher* in 1791, even if the injury
> per assault was lower).
>         Before we say that changed circumstances -- here, the
> 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]
> > Sent: Saturday, April 18, 2009 2:51 PM
> > To: Volokh, Eugene; conlawprof at
> > Subject: RE: Changing circumstances and firearms lethality
> >
> > Handguns are more accurate at greater distance than in the
> 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,
> 127
> > Archives of Surgery 694, 698 (1992) (reporting that the mean number
> gunshot
> > wounds increased significantly for patients at a Level I trauma
> 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
> 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
> 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,
> include
> > both greater accuracy and rates of fire, and improved medical care?
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> > ________________________________
> >
> > From: conlawprof-bounces at on behalf of Volokh, Eugene
> > Sent: Sat 4/18/2009 1:15 PM
> > To: conlawprof at
> > 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
> > 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
> > 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
> > 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,
> > would require us to consider the fraction of the time that someone
> > actually hit, that's fine, too -- it's just that this would be even
> > harder to calculate.)
> >
> >         Eugene
> >
> > > -----Original Message-----
> > > From: conlawprof-bounces at [mailto:conlawprof-
> > > bounces at] On Behalf Of Rosenthal, Lawrence
> > > Sent: Saturday, April 18, 2009 9:50 AM
> > > To: Calvin Johnson; Raymond Kessler; John Bickers;
> > conlawprof at;
> > > firearmsregprof at
> > > 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,
> > 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
> > in which they
> > > had to depend on themselves for self-defense, threats from
> > groups were
> > > often present (hostile Native Americans, bands of unemployed
> > marauders), and
> > > firearms were of limited lethality.  Isn't it reasonable to
> > whether even the
> > > dead hands who made that judgment would find it applicable to
> > contemporary
> > > urban america, in which police protection is pervasive, firearms
> > much more
> > > lethal, and are often used by criminal gangs to enforce
> > drug and gang
> > > monopolies that destabilize (even terrorize) entire communities?
> > (much more on
> > > this at http://papers.ssrn <http://papers.ssrn/>  <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
> > Lessig called
> > > "translation" so that it is not seriously distorted when applied
> > contemporary
> > > circumstances.  Heller itself said we had to "translate" so that
> > 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
> > are not to distort
> > > the original "policy judgment"?
> > >
> > > Larry Rosenthal
> > > Chapman University School of Law
> > >
> > > ________________________________

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