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The Best Chart For Heller:
There are a bunch of reasons why the Heller case presents the best opportunity in a long, long time for the Supreme Court to adopt a strong individual rights view of the Second Amendment. There's the recent change in the composition of the Court. There's the recent pro-individual rights scholarship. Both are tremendously important. But I wonder if we should also note the influence of this chart:


(Source: U.S. Dept. of Justice)

  Of course, I'm not suggesting that this chart should influence the Court. But I would guess that the reality it represents -- the fact that violent crime rates have plummeted in the last few years -- has helped create a more friendly audience for Heller's arguments.
Mahan Atma (mail):
What if that was the result of stronger gun laws and enforcement?
3.17.2008 8:57pm
r78:
Hmmm - I was wondering what happened in 1993 or 1994 that would explain the downturn. More right to carry states maybe?

Then I followed the link and saw that the study was redesigned (the dark gray background is the period after redesign).

I know that the link says that the data were adjusted after the redesign, but I am still suspicious of the validity of that trendline, since it seems to coincide with the data redesign.
3.17.2008 8:57pm
Rebecca Ryan (mail):
I look at the trend line and two points come to mind. First, the redesign of the study could have had an effect on the results. And second, even taking into account any effect of the redesign, the trend seems to have flattened out somewhere around 2003.
3.17.2008 9:01pm
George Weiss (mail) (www):
so theres less crime: maybe we don't need self protection as much

these things just get spun toward whatever normative view you already have
3.17.2008 9:11pm
Steve Erickson (www):
I think it's important to have a healthy dose of skepticism whenever looking at DOJ data. After all, this is the same agency that published a recent "study" identifying 64% of jail inmates as suffering from mental illness. Likewise, it also reported 56% of state prison inmates and 45% of federal inmates had a reported mental illness.

But to qualify for having a mental illness, inmates only needed to have reported either clinical diagnosis (e.g., "someone once told me I had depression") and treatment by a mental health professional or symptoms of mental illness during the past 12 months (e.g., I'm anxious and depressed since coming to prison).

This was a follow-up to their widely cited study in 1999 which reported a prevalence rate of nearly 16% of persons with mental illness in jail, prison, or probation. Although this study is frequently cited as indicating a prevalence of severe mental illness, no such label is given in the report. To qualify as having a mental illness, the respondent was required only to answer in the affirmative to one of two questions: "Have you ever been told by a mental health professional that you have a mental illness?" or "Have you ever stayed overnight in a mental health facility?"

Now it may very well be that the study Orin refers to used better methodology. Then again, perhaps it didn't.
3.17.2008 9:25pm
Allan (mail):
I don't know.

Assuming that there was a right to bear arms in the 18th century, does it make sense now? The majority of citizens in the 18th century lived on farms. Some lived on the frontier, which was a dangerous place. There was no police force, only, occasionally, the calvary.

Now, most of us live in urban an suburban areas. We have police and sheriffs at the ready, at least in the places that limit ownership of weapons.

And there is that preamble to the second amendment.

A conundrum. I am not sure there is a majority of votes on any side. I think it is a plurality decision.

Thomas
3.17.2008 9:32pm
Brooks Lyman (mail):
Mahan Atma -

Nationwide, the trend follows the increase in the number of states that issue CCWs - licenses to carry a concealed weapon.

Locally, it can be shown that states that adopt a more permissive CCW policy see a drop in violent crime, while states which tighten their gun laws see an increase in violent crime. Massachusetts passed stricter gun laws in 1998 during a general downward trend in violent crime in MA and the rest of New England; since 1998, MA violent crime has more than doubled, while the rest of NE tracks that national curve.

Rebecca Ryan -

Yes, the curve does flatten out about 2003. I suspect that there is a sort of natural "noise floor" (pardon the electronic engineering term) of violent crime that relates to the various factors extant in our society. Whether that graph is showing it, or there are other reasons for the flattening, I can't say, but you get the idea. Along with the poor, the crooked we shall also always have with us....
3.17.2008 9:38pm
Germanicus:
If the redesign was the cause of the shift, it wouldn't be a gradual curve downward, it would be a sudden drop to a new stable level, and then presumably the pre-1993 data would be moved down to make it a continuous line (The data after 1993 wasn't adjusted). Unless I'm missing something, there seems to be a downward trend in violent crime in the real world starting in about 1994, to the extent this data accurately reflects reality.

If any of you are bold enough to pick one of the plethora of factors that play into crime rates and hold it up as "the cause," I wish you luck in proving it.
3.17.2008 9:38pm
PersonFromPorlock:

We have police and sheriffs at the ready, at least in the places that limit ownership of weapons.

Giving rise to the quip: "When seconds count, the police are only minutes away."
3.17.2008 9:40pm
George Weiss (mail) (www):
Steve Erickson

this is probably based on Uniform Crime Report data-which has extremely rigorous definitions for uniformity about what crimes are and how they are classified (e.g. a robbery murder-is that 1 or 2) for the purposes of statistical reporting.
3.17.2008 9:50pm
George Weiss (mail) (www):
woop-my bad-its based on the other main crime statistics data source-the national criminal victimization study. Thats pretty good too though...as when you put the UCR and the NCVS next to each other-they report, as expected, different levels, but y' is about the same for both.
3.17.2008 9:52pm
Elliot123 (mail):
"Now, most of us live in urban an suburban areas. We have police and sheriffs at the ready, at least in the places that limit ownership of weapons."


I'm not sure what "having piloce and sherifs at the ready" means.

I think these police forces would be very effective against a crime where the intended victim identified a threst several minutes before an attack, had the means and ability to call the police, and police units were available for dispatch. They are also effective in removing criminals from the streets so the probability of attack diminishes.

I'm not sure how well they would work for the woman walking across the dark parking lot at 11pm. If she has a gun in her purse, should she reach for her phone or her gun? Rely on the police who may be thirty seconds away or ten minutes away? Not an easy question. I suspect the answer depends on the relative safety and prosperity of the responder's neighborhood.
3.17.2008 9:54pm
George Weiss (mail) (www):
woops again-its based partially on the UCR (the homicide numbers) and the rest on the NCVS
3.17.2008 9:54pm
Tek Jansen:
Brooks Lyman:


Massachusetts passed stricter gun laws in 1998 during a general downward trend in violent crime in MA and the rest of New England; since 1998, MA violent crime has more than doubled, while the rest of NE tracks that national curve.


Are you sure about that?
3.17.2008 10:01pm
theobromophile (www):
<blockquote>Now, most of us live in urban an suburban areas. We have police and sheriffs at the ready, at least in the places that limit ownership of weapons.

And there is that preamble to the second amendment. </blockquote>
I'm pretty sure that the average response time to a 911 call in D.C. is something like eight minutes. Unless we were to literally station a police officer in every home, the response time of self-defence will be faster than that of the police.

To go all cliche on y'all, quis custodiet ipsos custodes? Why assume that the police are never a threat? As a woman, I would much prefer a world in which I can defend myself against criminals and police officers who would abuse their positions than one in which I was forced to rely upon the good nature and timeliness of the aforementioned police officers.

Torts was a while ago, but I seem to recall that there is no right to protection from the police department (i.e. no duty that could be breached) - established in the Riss case. Correct me if I'm wrong.

As for the preamble to the Second Amendment: what do you think of inventions which are unique, useful, and non-obvious, but do not advance the useful arts? written works that do not advance science?
3.17.2008 10:06pm
George W. Bushie:
Looks like Orin admires that famous book "How To Lie With Statistcs".
3.17.2008 10:17pm
anomie:
Pardon me, but I don't understand Professor Kerr's argument. Where does the Second Amendment mention that the nature of the right to bear arms is dependent on the crime rate trend? Why is a declining crime rate supposed to be an argument for an individual right to bear arms? Wouldn't it be, if anything, the opposite? If crime were increasing, wouldn't gun rights advocates see that as a strong self protection argument for an individual right to bear arms?
3.17.2008 10:19pm
Skyler (mail) (www):
1. Tying a fundamental right to crime statistics is poor reasoning. It's either a right or not a right. Whether criminals are involved or not should not be the deciding factor. If crime had gone up for some other reason, this would imply that the right should be curtailed.

2. My battalion had 48 killed in a 7 month period in Iraq. We had just over 1,000 men. I find it hard to believe that this is normal for the entire US population, or even a subset of it. I just don't accept the validity of these statistics. If it were accurate, then even today, most people would have several friends and acquaintances that were victims of gun violence each year. This simply isn't the case.
3.17.2008 10:31pm
OrinKerr:
Looks like Orin admires that famous book "How To Lie With Statistcs".

Bushie,

Can you make an actual argument to back that up, or do you generally leave these sorts of things unarticulated?

anomie,

To win, Heller does not need to persuade "gun rights advocates," who by definition do not need persuading. Rather, to win Heller needs to persuade five Supreme Court Justices.
3.17.2008 10:33pm
OrinKerr:
Skyler writes:
Tying a fundamental right to crime statistics is poor reasoning.
I'm curious, Skyler -- who do you think disagrees with this? I certainly don't, and I don't know of anyone who does.
3.17.2008 10:35pm
Gilbert (mail):
I am baffled.

A) A reduction in crime would cut the other way — there would be less of a need for self defense.

B) It wavers between self delusion and disingenuousness to argue that guns reduce violence. (http://ojp.usdoj.gov/bjs/glance/tables/guncrimetab.htm; http://ojp.usdoj.gov/bjs/glance/tables/frmdth.htm)
3.17.2008 10:41pm
Fiftycal (mail):
"A well-regulated militia, being necessary to the security of a free state, all ugly women will be required to wear burkas". Now, is the meaning of that sentence about militias or women wearing burkas? How about "V-8 juice being good for you, the RIGHT of the PEOPLE to keep and bear arms shall not be infringed". Is the subject V-8 juice or the RIGHT of the PEOPLE?

And if the reduction in crime were due to "gun laws" why is DC still about the most violent place in the U.S.?
3.17.2008 10:45pm
OrinKerr:
Gilbert,

Sorry if the reasoning wasn't clear, but the key is that there are basically two groups here: 1) The gun enthusiasts who think that gun rights lessen crime, and 2) the gun skeptics who think (or at least fear) that gun rights increase crime. Group 1 is already pro-Second Amendment, so they don't care about the stats. But Group 2 is probably sensitive to crime rates; the higher the crime rates, the more Group 2 is likely to be worried about a strong reading of the Second Amendment.

Perhaps these arguments are hard to make of an audience of strongly committed Group 1s.
3.17.2008 10:47pm
Skyler (mail) (www):
Orin, did I make that accusation?

But, why even present it if you think no one else does?
3.17.2008 11:08pm
OrinKerr:
Sorry, Skyler, I thought you did. Very glad to know you didn't!

To be extra clear, there's a big difference between being influenced by something and thinking that being influenced by something is strong reasoning. It is common for recent events to influence our attitudes about the world, even if it clouds our judgement rather than illuminates it.
3.17.2008 11:13pm
darelf:
If people are less fearful of crime, they would be more tolerant of gun ownership.

Is that what you mean?

The problem is, statistics are the worst kind of thing, and I imagine people's perception of crime is much more important than any reality of crime.
3.17.2008 11:15pm
NickW:
Skyler, note that the chart shows victims of "rape, robbery, aggravated and simple assault, and homicide" rather than merely victims of gun violence. Following the links to the assault statistics, it looks like about (rough estimate from quick visual inspection) 80% is accounted for by aggravated and simple assaults. That might make the numbers seem a bit more plausible.
3.17.2008 11:17pm
Skyler (mail) (www):
Orin,

Your initial post specifically asked this question:


But I wonder if we should also note the influence of this chart:


It looks like a question to me, even though there is no question mark. I think insisting on a question mark would be a bit pedantic. So if you were asking the question, why are you so defensive about my answering it by saying that crime statistics should not be used to determine the validity of a constitutional and fundamental right?

Is it not expected that people would post comments that stay on topic? Maybe I should have digressed into the tired old argument about clauses and punctuation, even though that is not what was asked.
3.17.2008 11:17pm
OrinKerr:
Skyler,

I apologized, saying I was sorry that I misunderstood you. I'm not sure what you want me to do at this point.
3.17.2008 11:22pm
Allan (mail):
This is a tough issue.

I know that there are many who would like to carry weapons in order to ensure they can walk across a dark parking lot safely.

And there are criminals who would own weapons, whether they were legal or not.

I am deathly afraid of both groups. I have seen people who are fine when sober, have a few drinks and turn into monsters. The typical barroom brawl would turn into a shootout. And these are the typical macho guys (they are all guys) who would want to have (and use) a weapon to prove their manlihood.

IMHO, if you want a weapon to protect your home, that should be allowed. But, if you want a weapon to carry, it should not be concealed. Further, if businesses wanted to stop you from carrying that weapon on their premises, that should be allowed, too.

I foresee bars, stores, and other public places prohibiting weapons upon entrance.
3.17.2008 11:59pm
Elais:
theobromophile

I am a woman and I the only experience I have had with guns was when my dog was shot with a bb gun when I was a child. I have never seen, smelled, touched or encountered guns in any way shape or form since then and I'd like to keep it that way.

I'm not sure I would feel all safe knowing that all the average joes/janes on the street might be armed with a 9mm or whatever. And wearing a gun myself seems like a 'OK Corral' kind of shootout much more possible.
3.18.2008 12:13am
Dilan Esper (mail) (www):
I think I said this before, but I am really getting the feeling that gun rights advocates may be headed for a big fall in this case. I hope it's not true-- I want the Court to invalidate the DC law-- but there's just WAY too much hubristic thinking about the way Supreme Court justices think and what motivates them.

I will assure all of you that Professor Kerr is right-- if the crime rate were raging, the dynamics of this issue would be quite a bit different. And that's not commenting about whethere there is actually a link between gun ownership and crime, but rather whether the Justices feel safe taking a gamble (and remember, this is the law that governs the city that they work in that is being tested in Heller).
3.18.2008 12:56am
Skyler (mail) (www):
Things move fast on this board, Orin. I didn't see your apology. I apologize for making a second post and making it appear like I was grousing at your apology. All is right with the world, no worries.
3.18.2008 1:08am
Thomas Richardson (mail):
Hasn't this drop in violent crime rate already been reasonably addressed in an argument given by Steven Levitt to be attributed to the decision in Roe v. Wade? The pith of the argument being that mothers whose children would be born into environments that are highly likely to produce individuals with an increased propensity to commit violent crimes had abortions instead of birthing the children. The kicker to this comes when one realizes that the drop in violent crime comes approx. 20 years post R v W; twenty is a rough average age at which individuals committing violent crimes tend to peak in activity, etc.
Additionally, there is also data to support the idea that increased numbers of law enforcement reduce the number of crimes. I suppose the point here being that other contributions exist as well, but the above seems to best explain the trend. I don't want to stray too far from my main comment above, but would instead reference any interested to his (Levitt's) book.
3.18.2008 1:56am
Kazinski:
I do know that Texas and Florida became CCW states at about that timeframe, but I am not crediting that for the drop in crime. Washington has always been a CCW state and it also had a drop in crime at about the same time. But there is no doubt that CCW laws have spread dramatically in the last 20 years and violent crime rates have been dropping, so I don't think anyone can credibly argue that "more guns, more crime". In fact studies show overwhelmingly that legal gun owners have absolutely microscopic crime rates. So why rationalize away one of our founding civil rights for no purpose other than to assuage irrational fears.
3.18.2008 2:29am
George Weiss (mail) (www):
thomas-

as a criminology major, i found that essay to be one of the most patronizing things ever written. He dismisses every other theory of what affects crime rates (which have been developed over centuries) with paragraph responses.

that doesn't mean his theory of the affect of abortion rates as a factor in crime isn't a sound contribution...but why did he have to declare it the supreme and tantamount factor to all other factors.

btw-if the rate did start to occur about 20 years after roe-than that essentially leaves no room for the increase in abortions to begin (its not like all these abortion clinics sprang up overnight)
3.18.2008 2:33am
Kazinski:
Elais,

I'm not sure I would feel all safe knowing that all the average joes/janes on the street might be armed with a 9mm or whatever. And wearing a gun myself seems like a 'OK Corral' kind of shootout much more possible.


Have no fear, in my state, Washington, CCW has been the law since 1935, and about 6% of the adult population have permits. If about 50% of the permit holders carry on a regular basis, that means that in the average theater with 300 seats that there are 6 people are carrying a weapon. You can Google the news for Seattle theater shootouts, and I'm sure you won't find any. Even on nights when the popcorn runs low people seem to be able to keep their pistols in their holsters. Legal gun owners are absolutely the safest people to be around, for instance in Texas a study found that the violent crime rate for CCW holders was about 1/5 that of the general population. The homicide rate was 1/15th the general population (.35 per 100,000 vs 5.5). Think about that, the people that actually have guns and carry them around with them are 1/15th as likely to murder someone as the general (and presumably more likely to be weaponless) general population.

I'm sure we all know people who don't carry guns and have never killed anyone, but you are taking a risk associating with those that statistically do have a greater chance of being killers. For the record I don't have a permit, because my wife, who also is weaponless would kill me if I did. I hope I've made my point.
3.18.2008 3:01am
K Parker (mail):
Allan,
The typical barroom brawl would turn into a shootout.
But it doesn't! That's the fascinating thing about the modern shall-issue concealed-carry movement: every time a state legislature votes on a bill to liberalize carry by law-abiding citizens, there's a surge of hand-wringing by The Anxious certain of the impending blood in the streets, of the return to the Wild West... but it never actually happens. And while concealed-carry permit holders are not angelicaly crime-free, they do offend at a rate less than the population at large.

Elias,

What state do you live in? In mine (WA) it already is the case that "all the average joes/janes on the street" might be carrying; we've had shall-issue concealed carry for a long time, and have issued permits at a fairly high rate compared to most states. And guess what? our violent crime rates are fairly middle-of-the-road; far lower than in the gun-banning utopias of Chicago and DC.

Although I should hasten to add, if you won't/can't feel comfortable learning how to properly carry a gun for self-defense (with all that entails about practice, legal issues, conflict-avoidance mindset, etc) then by all means you shouldn't.
3.18.2008 3:07am
wuzzagrunt (mail):
Kazinski wrote:

So why rationalize away one of our founding civil rights for no purpose other than to assuage irrational fears.

Because appeals to irrational fear is all the prohibitionists have to support their policy position--not facts, not the law, and not Freud.
3.18.2008 3:42am
Kazinski:
Allen:
I foresee bars, stores, and other public places prohibiting weapons upon entrance.

Most CCW states do not allow guns in bars. But as for the others, it is not up to them, commercial establishments and other public places don't have the right to pick and choose whom they serve, absent some overtly offensive behavior. Next you'll be saying that stores, restaurants and other public places can discriminate on the basis of race, religion, or national origin, as well as on the basis of exercising constitutional rights.
3.18.2008 4:55am
Brett Bellmore:

What if that was the result of stronger gun laws and enforcement?


Extend that chart back another half century, and you'll realize how absurd that supposition is. The crime rate may be lower now than a few years back, but it's still quite a bit higher than before the gun control movement started to accumulate successes. Though I'd say the real causal factor is the war on drugs, and the recent drop owes more to consolidation of drug markets than anything.

Of course, Oren isn't proposing this as a reason to uphold the 2nd amendment, he's pointing out that it makes it easier to persuade the Justice on the margin, who more or less by definition is taking into account factors which aren't legally relevant.
3.18.2008 8:16am
Skyler (mail) (www):

and about 6% of the adult population have permits. If about 50% of the permit holders carry on a regular basis, that means that in the average theater with 300 seats that there are 6 people are carrying a weapon


Actually, it would be 9, not 6.
3.18.2008 8:59am
Semi-economist:
Lest anyone believe that Steven Levitt totally attributes the fall in crime to Roe v. Wade, I would submit that he also credits increases in the number of police, the rise in the prison population, and the declining influence of crack cocaine. In his initial summary (see ref below), abortion only counts for about a third of the crime reduction. In any case, I find Mark Duggan's article regarding the relationship between CCW and homicide to be the most satisfying study of the effects of concealed carry. The methodology is important, not the result. The problem is that many people see what they want, like George Weiss mentioned above.

Refs:
Steven Levitt, "Understanding why crime fell in the 1990's: Four factors that explain the decline and six that do not" Journal of Economic Perspectives. 18(1) 2004 pp.163-190.
Mark Duggan, "More Guns, More Crime" Journal of Political Economy. 109(5) 2001 pp.1086-1114
3.18.2008 10:04am
anomie:
To win, Heller does not need to persuade "gun rights advocates," who by definition do not need persuading. Rather, to win Heller needs to persuade five Supreme Court Justices.

Pardon? Are you saying that the Court can now take an activist approach to the individual right to bear arms since the current gun crime trend is down, thereby providing a political opportunity? This political opportunism is more persuasive to Supreme Court Justices than the naked law was previously?
3.18.2008 10:44am
anomie:
Sorry if the reasoning wasn't clear, but the key is that there are basically two groups here: 1) The gun enthusiasts who think that gun rights lessen crime, and 2) the gun skeptics who think (or at least fear) that gun rights increase crime.

Orin,

Didn't you just tell us that the real issue is not persuading gun enthusiasts (and, presumably, is also not persuading gun skeptics), but rather is persuading Supreme Court Justices? How does a declining violent crime rate serve to persuade the Justices about what Second Amendment law is?
3.18.2008 10:53am
OrinKerr:
Anomie,

Supreme Court Justices are often influenced by broader currents in the political culture. Sorry if you find that offensive, or wrongful, or if it makes you angry. But it is true, and my commitment is to truth rather than what strikes you as politically correct.
3.18.2008 11:03am
J. F. Thomas (mail):
But it is true, and my commitment is to truth rather than what strikes you as politically correct.

Well then, you need to read Eugene's post yesterday about the misuse of statistics. You can draw absolutely no conclusions from your chart on the effect of guns on the crime rate.
3.18.2008 11:17am
anomie:
Orin,

It is not so much that I find the influence on Justices of broader currents in the political culture to be surprising as it is that I am having great difficulty in discerning from your vague intimations how, in the process of resolving the Second Amendment issues raised by Heller, you think the arguments and opinions inside a Court with an originalist and textualist bent will or should specifically cite to DOJ statistics on violent crime trends.

I guess now we can look for what role these statistics did, in fact, play in the oral arguments.
3.18.2008 1:36pm
bob (www):
If violent crime had risen during the same period, it would probably be presented on this blog as evidence that gun regulation was making the country less safe. It didn't, and that fact is presented as an argument that gun laws can be relaxed. The reality, I suspect, is that the relationship between gun ownership and crime is irrelevant to gun rights supporters, except as a handy rationalization. If public safety truly motivated the movement, a 60% drop in violent crime would be relevant. At the very least, the argument that guns are necessary for self-protection carries 60% less weight than it did 15 years ago.

If gun ownership is a matter of ego and enjoyment rather than actual self-protection, the decline in overall violence is an argument for looser gun laws. If gun ownership is a matter of personal and public safety, such a decline is an argument for tightening gun laws. If gun ownership is an absolute, the level of societal violence is irrelevant. No matter what happens in society, reduced gun regulation will always be the right answer.

I know this is a legal blog and I should be discussing this in terms of the 2nd Amendment, but I confess that I don't find the 2nd Amendment particularly relevant. I find the notion that a modern militia could defend the nation against *any* threat via private ownership of small arms laughable. I think the question of whether gun ownership makes society safer is a question of fact, not of constitutional principle. I'm not surprised that gun aficionados look to it for absolute protection and argue about how many militias can dance on the head of a pin. I even realize that if it is, in fact, true that gun deregulation makes us less safe, the 2nd Amendment poses a threat to society, but since it clearly isn't going to be changed and the law of the land is being written by conservatives, I'll just hope for the best.

As I did when we liberated Iraq.
3.18.2008 4:00pm
Andrew Okun:
What's all this about gun laws? All this chart shows is that violent crime rates plummet when a Clinton is president and remains stable otherwise. Gosh.
3.18.2008 11:37pm
Elais:
K Parker,

Sorry for the late response. I am from South Dakota.
3.19.2008 7:54pm