Convicting the Guns (or the Bottles):

The New York Times writes about the recent school shootings:

It is not clear what led [the shooter] to seek out a quiet country school in Lancaster County, Pa., but it is possible he chose it because he knew that it belonged to a trusting, insular community, where there would be no one to stop him from entering with a shotgun, a rifle and an automatic pistol....

There are no simple solutions to this conflict. It is neither possible nor tolerable to secure every school or guard every child. Nor is it possible or politically tolerable to keep tabs on every gun. But in these killings we see an open society threatened by the ubiquity of its weapons, in which one kind of freedom is allowed to trump all others. Most gun owners are respectable, law-abiding citizens. But that is no reason to acquit the guns.

Just what is the editorial board proposing that we do? Apparently it's that we shouldn't "acquit the guns," but what does that mean? Are they urging gun registration of some guns (since they claim that they're not supporting "keep[ing] tabs on every gun")? That surely would do nothing about such school shootings. Are they implicitly urging handgun bans? Even if such bans succeeded in preventing a material number of would-be murderers from getting handguns, which I doubt, this very incident reminds us that shotguns and rifles can be at least as lethal (in fact, are in many respects more lethal, and just as usable if you're not worried about easy and convenient concealability, and are willing to carry the long gun open, to conceal it in a suitcase, or to saw it off).

When pro-gun-control forces urge restriction on guns in response to certain kinds of crimes — for instance, crimes where the criminal is trying to evade detection and capture — then it's at least credible that those controls would be limited to (say) handguns, or illegal carrying of handguns, or some such. But the only gun control that would stop people who are willing to commit multiple murder, and who don't worry about getting caught, would be (1) a total ban on guns, (2) confiscation of the likely more than 200 million guns in private American hands, and then (3) diligent action to control the black market in guns that would inevitably result. So when such multiple murders are seen as occasions for calls to gun control, however disclaimer-laden ("Nor is it possible or politically tolerable to keep tabs on every gun"), people who care about gun rights and self-defense naturally worry that the gun controllers' true goal is broad indeed.

I agree that murder and crime more broadly is a very serious problem, and that gun homicides and (to a lesser extent) other gun crimes are a very serious aspect of that problem. Likewise, for instance, alcohol-related death and crime is a very serious problem.

The question is what exactly should be done about it. Should we ban guns and alcohol? Try to seriously diminish access to them? Try to regulate them in ways that don't seriously diminish access, at least to law-abiding citizens? If we have in mind a particular manifestation of the problem (e.g., school shootings, or drunk-driving deaths, or whatever else), what policy proposals would diminish that aspect of the problem, without unduly exacerbating other problems? Hard questions, and important ones. But simply talking about "not acquit[ting]" the vodka bottle or the shotgun — an inanimate object that one would have thought wouldn't be subject either to acquittal or to conviction — hardly advances the analysis.

Justin (mail):
That's quite a mountain for what was clearly just a figure of speech, in which the Times was (perhaps in a way that would get an English major a C, sure) trying to argue that ignoring gun-control measures as a way of preventing future incidents is a bad policy.

Now, they also don't explain why this is the case, or the myriad of questions that arise (which you mention). But they're also coming in at under 300 words, so there's not exactly a big academic argument that can be made.
10.3.2006 3:29pm
Silicon Valley Jim:
Should we ban guns and alcohol?

Of course, we've already tried banning alcohol, with considerably less than entire success; one can reasonably dispute how much of a role Prohibition played in the rise of organized crime in the United States, but I really don't think that anybody can claim that Prohibition was an unalloyed success. I suspect that banning guns would have similar limited success, although neither I nor anybody else has any conclusive proof on the subject.

I'm certainly not a "gun nut". I've never even fired a true firearm, although I have, in the distant past, fired BB guns, nor do I own any guns of any type. The equivocal success of gun control over the past forty or so years, however, makes me quite skeptical of any claim that additional gun control is the answer.
10.3.2006 3:40pm
Interesting, the Times was so worried about privacy in releasing information about the wiretaps and bank data, but obviously seem to have no qualms about limiting guns.

Both in the name of protection.
10.3.2006 3:50pm
Brooks Lyman (mail):
Eugene -

As you pointed out, only total confiscation and police state regulation of smuggled or illegally-manufactured guns (and simple guns are really easy to make in any machine shop) would have even a prayer of stopping these sort of crimes, or gun crime generally.

Of course, that would leave the honest citizens - particularly women and the elderly - at the mercy of any thug who was in better physical condition than they were or who had any sort of weapon - knife, club, etc. - with which to intimidate their victims. We are seeing this in Britain today....

If we are willing to admit that, short of being locked up in a padded cell, that there is no absolute guarantee of safety in this world, then the practical solution is before us: Allow law-abiding citizens to be armed, including teachers and other school employees (scrap the gun-free school zone laws).

If there is some reasonable degree of uncertainty in the minds of potential mass-murderers as to whether they will even be able to start their slaughter, let alone "get away" with it, most of them will be dissuaded from even considering such crimes, while the few bolder or stupider ones stand a chance of being stopped sooner rather than later by an armed teacher, administrator or janitor.

Of course the same logic applies to society in general, and it has been shown to work, as states with liberal concealed carry laws show a reduction in violent crime after the passage of such laws.

Here in Massachusetts, while ae do have discretionary concealed carry, the 1998 "strictest in the nation" (it's not, but bad enough) gun control law ushered in 8 years of increasing violent (including gun) crime, while the other New England states saw a decline. Go figure.
10.3.2006 3:58pm
Glad to see the Conspiracy end its moratorium on commenting on recent high-profile news stories, even if it does so simply to take a dig at a Times editorial.
10.3.2006 4:31pm
Frank J. (mail) (www):
Maybe we should think outside the box a bit. How about we leave guns alone, but we ban bullets.
10.3.2006 4:43pm
FYI -- the murder rate in schools is less than 1% of the murder rate generally. Our schools remain very safe.
10.3.2006 5:02pm
steveH (mail):
Frank J.;

If you think that illegal guns would be easy to make, ammunition would be even easier to make or smuggle in to the country.

Oh, and it turns out that it would be easier to make a submachine gun than to make a decent revolver; look up the history of the Sten gun some time.
10.3.2006 5:08pm
Dilan Esper (mail) (www):
Professor Volokh poses a false dilemma. The question isn't whether any gun regulation can eliminate all gun crimes, but whether some regulations might reduce the number of them (and without reducing whatever deterrence and self-defense advantages that an armed citizenry provides).

In that respect, yes, there are some gun restrictions that can have some impact on some types of crime. Maybe nothing would have stopped this guy, but waiting periods can potentially stop some who would kill in the heat of passion. Restrictions on the sorts of guns that can be purchased can potentially stop some would-be multiple murderers from attaining enough firepower. Licensing, registration, a permitting process, background checks, and other regulatory hoops could each deter some criminals. (And the "black market" point is also not a definitive argument, as even if illegal guns are available there, that doesn't mean that they will be as easy to obtain or that some people who cannot get the guns legally will not attempt to or be able to obtain them on the black market.)

I don't endorse all these things-- both because I think the Second Amendment confers an individual right and sets some baseline of protection of the right to bear arms, and also because I think in some cases the reduction in the ability of law abiding citizens to own a gun for self-defense outweighs whatever the effectiveness is of the particular regulation. But the issue is not whether a gun regulation will prevent all gun crime or even any particular crime-- it's whether it will prevent some crime, and if so, is it worth the cost (and does it comport with the Constitution)?
10.3.2006 5:13pm
Eugene Volokh (www):
The editorial was using this crime as an argument for some unspecified gun controls ("convicting the gun," I take it); I therefore asked what gun controls, if any, could have helped stop this crime.

As I pointed out, some other controls could possibly help stop some other crimes ("When pro-gun-control forces urge restriction on guns in response to certain kinds of crimes -- for instance, crimes where the criminal is trying to evade detection and capture -- then it's at least credible that those controls would be limited to (say) handguns, or illegal carrying of handguns, or some such"). But the school shootings are quite irrelevant to the argument about those controls.
10.3.2006 5:33pm
10.3.2006 5:35pm
logicnazi (mail) (www):
This sort of article (the original not Eugene's post) disgusts me. I mean what possible support could they have for the claim, "we see an open society threatened by the ubiquity of its weapons." Six people were shot in this situation that's hardly a threat to our whole society. Even if we could stop all the rampage killers in the entire country we would probably save fewer lives than we would be a slight decrease in the speed limit or wider distribution of flu shots. Is our open society threatened by the 65mph speed limit. Worse the article talks about aquiting the guns, a transparent attempt to apply concepts of blame and culpability where they don't belong.

I tend to be pretty sympathetic to gun control (as a matter of policy...I do think the more extreme laws run afoul of the second ammendment) but editorials like this drive me crazy. They are transparent attempts to convince us to make policy changes based on emotional sentiment and salient examples rather than actual reasons. What disgusts me even more is that this seems to be the way most issues in this country are decided. Apparently the benefits of actually basing policy on evidence or expert opinion is just too complicated for most americans to understand.

This having been said I think Esper hit the nail on the head when he pointed out that this isn't an all of nothing sort of thing. While the difficulty of stamping out the black market makes many forms of gun control less effective (the gangs are still going to get guns) I suspect that many rampage killers are law abiding citizens until they snap. If they don't have a gun around when they snap or only have a limited capacity gun they might not shoot anyone else or shoot fewer people. For instance a limitation that required guns to shoot only one or two bullets before being reloaded would greatly reduce the number of people a rampage killer could execute. Though were it not reasonably easily circumventable I believe such a law would violate the first ammendment (which I believe guarantees individual people the right to be armed sufficently well to effectively resist a tryanical government through asymetric means).

However, I very much doubt these gun control measures are justified. Many many gun owners would be displeased and unhappy about such restrictions and the number of people killed by rampage killers is so low that the calculation just doesn't seem to make sense. We would probably be better off banning skiing which, while enjoyed by many people, also leads to a surprising number of deaths or cell phones in cars.

The interesting question is about restricting the guns used in more normal shootings, like handguns. Here I believe it is likely that gun restrictions are justified. My uninformed intuition is that by now the deterrent effect from people who own handguns for self protection is so low that allowing only very few people to own handguns with many restrictions would on net reduce deaths but I would need to read the studies to have any serious position.

Since rifles, not handguns, are what would be necessery to resist a tyranical government (sniping, etc..) I'm not sure handgun bans would necessarily run afoul of the 2nd ammendment. After all we don't interpret the 2nd ammendment to mean literally any armament is legal (nuclear bombs) so I think we must look to the underlying intent of the ammendment which I believe was to allow people the personal weapons to resist (not necessarily wage open war with) an oppresive government.
10.3.2006 6:00pm
couple of obvious comments:

"waiting periods can potentially stop some who would kill in the heat of passion."

What is your evidence for this? I would guess that if you took a hundred or a thousand cases of murder "in the heat of passion" you would find that the weapon was whatever was near at hand, be it a gun, knife, brick or bludgeon. I would guess that you would find virtually no cases in which the murderer left the heated scene, drove to the gun shop, examined the inventory, made a selection, wrote a check, filled out the paperwork, waited for the FBI background check, drove back across town (still in the throes of irresistible passion) and committed murder. Even if you found such a case somewhere it would probably be judged as a killing in cold blood, not uncontrollable passion. And if it's in cold blood he could have waited three weeks as well as three hours. These are guesses since I have no data, but since you made the assertion, maybe you have some?

"Restrictions on the sorts of guns that can be purchased can potentially stop some would-be multiple murderers from attaining enough firepower."

Again, based on what evidence? I remember everyone talking about the military style rifle that was used in Stockton CA. This should be a perfect example of what you're talking about. But, what I thought at the time is how much worse it would have been if he'd used an ordinary pump shotgun, such as bird hunters use. He shot thirty or so kids but with very few fatalities. If he'd used a shotgun with buckshot, emptying five or six shots and reloading as he walked from room to room as a quail hunter does, most or all of those shot would be dead. Regular hunting buckshot puts from 8 to 30 large holes in the target with each pull of the trigger. This sounds so gruesome that I hate writing it, but it's fact. Any weapon is a murder weapon when wielded by a murderer. So, again, what is your evidence?

I think a better clue to the cause of any crime of this sort is the nature of the killer, not the type of tool he happened to use. In the Stockton school shooting, for instance, the killer had inscribed "Hezbollah" on his weapon and written "PLO", "Libya" and "Death to the Great Satan" on his jacket, according to wiki. I think an adult male who was that deranged would have done what he did even with a machete. That instance is the best one I can think of to support your assertion, and it's very weak. Do you have further data?
10.3.2006 6:00pm
The part that makes it pointless (and that the NYT misses) is that the Amish are absolutely nonresistant; this was a religious school, run by a religious group that simply won't fight back (and is very habituated to the idea of being brutalized because of that). The killer could have killed as many people with a knife, or a club, in this case.
10.3.2006 6:04pm
Bruce Hayden (mail) (www):
One big problem with limiting guns to those that can only shoot one or two shots is that that makes most pistols of much less use for self defense. A double barrelled shot gun is a lot more deadly than a two shot pistol, esp. in the hands of an inexperienced potential victim, panicing upon being attacked. S/he is likely to miss with the pistol, but has a decent chance of hitting someone and staving off the attack with the shotgun.

The problem is that a shot gun is great for home defense (which is why I have one, having been assaulted by a former business partner 20 years ago - and he continued to stalk me for awhile after that). But not so good outside the home. If it is (barely) legal, it is still hard to manipulate it in your car, and is totally useless when you leave your car. There, you need a hand gun, that can preferably shoot more than one or two bullets without reloading.

The other problem with banning guns that have to be reloaded after one or two shots is that there are millions, if not tens of millions, of rifles out there in this country, many military surplus, that do take more bullets. I should add here that since many of these are military surplus, the 2nd Amdt. is esp. compelling (i.e., while it is possible to argue that a militia doesn't need hand guns or machine guns, it is far harder to argue that they don't need semi-automatic rifles capable of shooting more than one or two bullets without reloading) (assumming that you buy into that part of the anti-2nd Amdt. argument in the first place).
10.3.2006 6:51pm
The Times shoots from the heart, not from the head. "This is awful and we gotta do SOMETHING about it." It doesn't really matter if what you do has any practical effect or if the costs far outweigh the benefits, it's better (in the Times worldview) to do something with at least symbolic value than it is to do nothing. In this case they are careful not to propose any concrete solution at all, knowing that any proposal that they make would be "politically" intolerable anyway.

There is a three century tradition in this country of people keeping long guns (rifles and shotguns) for hunting, especially in rural areas such as Lancaster County. Millions of these guns exist in unknown hands - even if gun ownership were banned today these guns would mostly go into hiding and not disappear. No one (at least not in this editorial) proposes to end the sport of hunting. Even if hunters were required to keep their guns in police custody when not hunting, a crazed and calculating hunter could divert from his hunting trip to carry out his evil plan. The killer in this case appeared to be a model citizen until the moment of his rampage - he surely would have been trusted with a hunting rifle under almost all systems.
10.3.2006 7:33pm
Archon (mail):
Schools in PA are legislated to be gun free zones. What was this guy doing with guns in a gun free zone? I mean didn't he see the sign that adorns most public school campuses that said "gun free zone"? He must have missed it or because if he saw it he would have turned his truck around and went home.
10.3.2006 7:56pm
Colin (mail):
This is a purely academic (and morbid, I apologize) point, but I can't agree with this:

The killer could have killed as many people with a knife, or a club, in this case.

I know that the Amish are ideationally pacifists, and I can believe that a devout Amish person would not defend him or herself against a violent attack. But in the real world, I'm dubious that the adults in the school, faced with what I assume was the first act of heinous violence they'd ever seen, would stand idle. I think that at least they would take the children out of harm's way, and frankly that they would probably resist to some extent, even if they wouldn't do so if they had time to think about it.

Just my .02.
10.3.2006 7:56pm

Nine wounded, three seriously, from a single attacker with a sword. Probably not as deadly as a guy with a gun would have been, but the article makes it sound like just luck (and perhaps the attacker's lack of skill) that there weren't any deaths; bottom line is that crazy people with weapons other than guns can pose a serious (although somewhat diminished) threat to a group of unarmed people.
10.3.2006 9:21pm
Paul Zrimsek (mail):
After having been told so often that Islamist terrorism doesn't pose an existential threat to our society, it's good to finally learn what does.
10.3.2006 9:26pm
Harry Eagar (mail):
I live in Hawaii, which has a lot of hunters and pretty strict laws about where and when and how you can transport firearms. The police, at least in my county, are extremely vigilant about the violation locally called 'place to keep.'

It's kind of like Wilson and Keller's 'broken window' approach. And it is very effective. We have almost no gun crimes, other than place to keep, in our county. In the 100-year history of the police force, our cops have fired their weapons at a perp with a firearm exactly ONCE. (They did shoot two people dead on two occasions, but they were armed with swords.)
10.3.2006 9:55pm
Dilan Esper (mail) (www):
Professor Volokh:

I think you are using an overly strict definition of "logic". In the real world, people see violent crimes and ask what they might do to prevent other violent crimes. For instance, after 9/11, there were calls for greater seaport security. Of course, such measures would not have prevented 9/11. Nonetheless, to some people (I'd actually say to most people), 9/11 illustrated the fact that we were vulnerable to all sorts of threats.

Similarly, when someone looks at the Amish school shooting and says we need more gun control, they may be right or wrong on the merits, but the fact that the gun controls would not have prevented THIS shooting isn't a conversation stopper, because people also want to revisit the entire TOPIC of gun violence in the wake of something like this.
10.3.2006 11:48pm
Loren Svor (mail):
I just scanned through the comments and may have missed this, but I think, as one commenter stated, one should think outside the box. Except no one did. How about this: require all teachers and other school employees to be properly trained and carry guns. This would, of course, run counter to the increasing feminization of our society, and especially our schools, but it would work. As John Lott showed--more guns; less crime. Why would it be any different in schools? Increase the potential cost of an activity, and you get less of it. Simple economics.
10.4.2006 12:26am
Loren Svor (mail):
Sorry. I see now that someone beat me to this. So I'll just say that I agree with Brooks..
10.4.2006 12:30am
Typical NYT article. Even when an incident happens where THEY KNOW no gun law would prevent it they just can not help themselves.
10.4.2006 1:17am
juris_imprudent (mail):

Nonetheless, to some people (I'd actually say to most people), 9/11 illustrated the fact that we were vulnerable to all sorts of threats.

And we still are, despite the billions of dollars dumped into Homeland Defense.

Franklin had a rather pithy aphorism about the subject you know.
10.4.2006 2:04am
Too Lazy to Log In:
After all we don't interpret the 2nd ammendment to mean literally any armament is legal (nuclear bombs) so I think we must look to the underlying intent of the ammendment which I believe was to allow people the personal weapons to resist (not necessarily wage open war with) an oppresive government.

If the police don't have nuclear weapons, then I'm OK with restricting nuclear weapons.

If the police don't have machine guns, then I'm OK with restricting machine guns.

If the police don't have AR-15 rifles, then I'm OK with restricting AR-15 rifles.

However, if the police do have machine guns or semi-auto weapons, then I want them, too.


(1) Unlike the military, I live in the same community that the police are supposed to protect. That means that I may potentially be confronted by the same bad guys. If the police believe they need Firearm Type X, then so do the civilians they're supposed to server and protect.

(2) I don't fear a military dictatorship. But I am worried about the coming Police State.
10.4.2006 12:38pm
RKV (mail):
I have to disagree with logicnazi when he says "the underlying intent of the ammendment which I believe was to allow people the personal weapons to resist (not necessarily wage open war with) an oppresive government." Please see Article 1 Section 8 US Constitution which defines the missions of the militia "to execute the Laws of the Union, suppress Insurrections and repel Invasions." The Federalist Papers do get to the point which logicnazi makes. "Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger." Federalist 46, James Madison
10.4.2006 6:25pm
Harry Eagar (mail):
NRA's position, unless it's changed, is that law-abiding citizens ought to have machine guns even IF the police don't.

It's really, really hard to take seriously contentions that Americans are insufficiently heavily armed.
10.4.2006 8:01pm
RKV (mail):
Harry, Large numbers of Swiss citizens have had full auto weapons in their homes for over 20 years (since the Swiss Armed Services adopted the SIG 550 in the mid-1980s). They don't appear to have a high level of murders committed using guns (and I have looked at the stats).
10.4.2006 8:20pm
Harry==========Law abiding citizens (in all but I think 12 States) have been able to have machine guns up until this very second whether the police force had them or not. What are you yapping about? Have you ever been to a machine gun shoot? There are many across this great country. And the machine guns are owned and keep by private citizens. You you going to run around and scream the sky is falling? And I must let you know I too grew up and still live in the South. And despite your sterotype not all hunters are drunks with guns. Maybe you have been away from home too long writing for your paper and getting a little confused.
10.5.2006 12:26am
Publicola (mail) (www):
Mr Eager,
The NRA's position is often misunderstood. They're generally in favor of modest gun control &the current laws governing automatic weaponry aren't something they've ever shown much interest in doing away with (matter of fact their president at the time offered counsel on drafting the NFA of '34 which deals with automatic weapons).

As for the populace not being heavily armed enough - the purpose of the 2nd amendment was to ensure that each citizen was or could be quickly armed as well as the average infantryman. Back then the military had a duel role or martial &police forces so it'd be safe to assume that we must include cops in the mix as we look at the goal today.

So when I see that soldiers or cops have access to arms that I don't (such as a fully automatic M-16 or a 14" barreled Remington 870) I see a disparity that should be addressed. Pragmatically we may be sufficiently armed to resist anything overtly tyranical in the unlikely event that it ever happens, but having the same technology in arms would make things easier for us peasants. &I'd want anything like I mentioned above to be as easy as possible on me. :)

As far as Hawaii goes - they have the worst gun control laws in the country - as far as states go at least. I have never looked terribly close at the crime stats there but I'd be surprised if the violent crime rate wasn't proportional to the population. In any case as I said earlier what matters most to me is having the choice of defending myself or not &Hawaii's laws all but negates that choice in most instances. &laws such as Hawaii has &perhaps ones that the NYT is wishing for deter a lot of folks from having the means of self defense.
10.5.2006 4:56am
Harry Eagar (mail):
Hawaii has a population about twice Detroit's and a death rate from firearms at least a hundred times lower.

I will not assert that gun control laws have much to do with that. The difference is probably largely attitudinal.

I just did a check of my newspaper's stories. In my county, population around 130,000 with around 40,000 tourists also here on any given day, so far this year there has been exactly ONE attempt to shoot somebody: a drifter high on ice took a potshot at NINE ARMED POLICEMEN having a barbecue.

Just sayin'.
10.5.2006 3:51pm