The Value of Civilian Arms Possession As Deterrent To Crime Or Defense Against Crime

"If you publish this, you must indicate that it is the text and footnotes to an article that appeared in v. 18 of the AMERICAN J. OF CRIM. LAW (1991)." So noted.

The Value of Civilian Arms Possession As Deterrent To Crime Or Defense Against Crime

* LL. B. Yale University (1966). Member of the California, District of Columbia, Missouri and United States Supreme Court Bars. San Francisco partner, Benenson & Kates; of counsel, Hallisey & Johnson, San Francisco, Ca. I wish to thank the following for their assistance: Professors David Bordua (Sociology, U. of Illinois), Philip J. Cook (Public Policy Studies and Economics, Duke U.), F. Smith Fussner (History, Emeritus, Reed College), Gary Green (Criminology, U. of Evansville),

Ted Robert Gurr (Political Science, U. of Colorado), John Kaplan (Law Stanford U.), Raymond Kessler (Criminal Justice, Memphis State U.), Gary Kleck (Criminology, Florida State U.), Daniel Polsby (Law, Northwestern U.) James D. Wright (Social and Demographic Research Institute, U. of Mass., Amherst); Ms. P. Kates and C. Montagu, San Francisco, Ca. and Ms. S. Byrd and Mr. C. Spector, Berkeley, Ca. Of course for errors either of fact or interpretation the responsibility is mine alone.

The crime reductive value of civilian firearms ownership is a central issue in the "gun control" controversy. Sixty five years of vitriolic debate have amply proven the wisdom of a leading early 20th Century opponent of gun ownership, New York City Chief Magistrate William McAdoo in predicting that

We shall make no progress in removing this national menace until this basic fact as to the ineffectiveness of arming citizens is well and thoroughly understood by the people who foolishly buy pistols and arm themselves. [1]

Given the fervor of each side in this decades-old debate, it is not surprising that neither has seemed fazed by the lack, until comparatively recently, of any substantial quantum of hard evidence upon which to base rational judgments about the supposed utility of civilian firearms ownership in reducing crime. The purpose of this paper is to analyze the empirical evidence on that issue most of which has become available only in the last decade. [3] Prior to such discussion it is necessary, however, to set out some caveats and two definitions.

Caveats

Obviously the conclusions reached in this paper may have import for the gun control debate; indeed in the case of at least one oft- mentioned option they seem decisive. [3A] But this paper emphatically does not attempt to resolve the general issue of the extent to which public policy should circumscribe or allow gun ownership. To resolve that would require broadly assessing at least the following: (1) not just any crime reductive utility, but every other supposed benefit of gun ownership to individuals or society generally (e.g. conservation and ecology, promotion of national defense, deterring despotism etc., etc.); (2) comparison to those alleged benefits of all the costs (e.g. accidents, violence and suicide) of gun ownership -- in light of a hardheaded evaluation of (3) the likely extent to which non-compliance or other factors might frustrate the salutory purposes of a gun ban, (4) the costs to the criminal justice system of trying to overcome such non-compliance, and (5) constitutional barriers either to particular gun restrictions or to the means needed for their enforcement. [4]

In other words to determine what particular level of gun control is desirable requires an enormously broader inquiry than is attempted here. As the factors just enumerated suggest, it requires a pragmatic inquiry: not just a balancing whether in the abstract of whether guns do more harm than good but consideration of whether, in fact, any particular control strategy will produce a favorable trade-off by actually reducing the harms (or the more important ones) that involve guns more than it reduces the values. [5] Such an inquiry requires systematic attention to all the foregoing factors and to numerous subsidiary issues, e.g. could the supposed benefits conferred by civilian gun ownership be better achieved by non-lethal means? [6] In contrast this paper is limited to only one sub-issue of #(1) of the factors enumerated in the last paragraph.

My second caveat is that the disproportionate attention given herein to studies and analyses authored by opponents of gun ownership reflects necessity rather than a bias against gun ownership. The fact is that the gun lobby has, in effect, defaulted as to the production of academic literature. [6A] Thus studies by "gun control" advocates constituted almost the whole corpus of academic literature available on gun issues until the last decade when more neutral scholars began addressing those issues. Significant of all too many aspects of the gun control controversy is that gun owners require no scholarship -- nor even "sagecraft" -- to maintain their talismanic faith in the protective efficacy of guns, although they have produced a voluminous technical literature on defensive weapons and tactics. [7]

Definitions

The first definitional problem was to find apt shorthand labels for the respective positions of the gun lobby and its opponents. In line with the imagery of religious faith this article employs, the terms gun iconodule and gun iconoclast seemed appropriate. But the difficulties inhering in terms of reference relating to a now-obscure Byzantine religious controversy are obvious. So instead the terms "pro- gun" and "anti-gun" will be used herein for the respective polar extremes in the American gun controversy.

It bears emphasis that these "pro-gun" and "anti-gun" positions are extremes -- albeit they have, tragically in my view, tended to dominate and drown out more moderate voices. In fact, polls over the past half century consistently show that most Americans, including a majority of gun owners, are neither pro-gun nor anti-gun but rather "pro-control". [7A] On the one hand, most Americans reject anti-gun disdain for self-defense and the basic anti-gun creed of the inherent depravity of guns. On the other hand, most Americans also reject the puerile pro-gun shibboleth that the existence of laws against murder and other violent crime makes it superfluous to reinforce them with sensible, profilactic controls on weapons that can be used to commit such crime. This article may be described as a self-conscious attempt to apply the moderate pro-control position which characterizes the rational majority to the claims which each extreme offers about the crime reductive value of civilian gun ownership.

The second definitional problem involves distinguishing actual use of a gun to thwart a crime in progress (hereinafter described as defense-use) from the deterrent effect of actual or perceived victim arms possession in dissuading criminals from attempting a crime at all (hereinafter described as deterrence). Though basic, this distinction has only rarely been observed even by criminologists and anti-gun writers and almost never by pro-gun writers. It is crucial because conceptual and practical difficulties make the evidence for deterrence more complex and more ambiguous than for defense-use.

The order in which this article treats these issues is first defense-use and then the possible deterrent effects of civilian gun ownership. But before either aspect of defensive gun ownership can be analyzed empirically certain ethical or cultural concerns must be addressed -- if only because they have so often intruded into, and more or less subtly obfuscated, purportedly empirical discussions of these issues.

NON-EMPIRICAL (MORAL AND PHILISOPHICAL) CONSIDERATIONS

Some analysts see in the notoriously extreme bitterness of the gun control debate a clash of cultural and ethical values disguised in more or less pseudo-criminological terms. The proposition is not that criminological disagreement is not a part of "the Great American Gun War" but that such disagreement is minor in comparison to the violent cultural and moral antagonism it cloaks. [8] Indicative of the depth of those antagonisms is the description offered in the encyclopedic review of American gun control literature done by the University of Massachusetts for the National Institute of Justice): that many gun control advocates seriously view gun owners as "demented and blood- thirsty psychopaths whose concept of fun is to rain death on innocent creatures, both human and otherwise" [8A]; that gun ownership is "simply beastly behavior" the gun being both real and symbolic mechanism of a peculiar savagery lurking in an American soul that is "hard, isolate, stoic and a killer". [9] As one would expect, the pro- gun is utterly different; as Col. Jeff Cooper, one of the more articulate spokesmen for defense gun ownership, puts it:

Weapons compound man's power to achieve; they amplify the capabilities of both the good man and the bad, and to exactly the same degree, having no will of their own. Thus, we must regard them as servants, not masters -- and good servants to good men. Without them, man is diminished, and his opportunities to fulfill his destiny are lessened. An unarmed man can only flee from evil, and evil is not overcome by fleeing from it. [10]

Examination of Some Non-Empirical Elements of Anti-gun Faith-

Some professions of anti-gun morality may also be subject to refutation either as contra-factual or as internally inconsistent: A prime instance of internal inconsistency occurs in connection with statements like those of the distinguished nationally syndicated columnist and cultural historian Garry Wills who feels that "gun fetishists" are at once immoral and unpatriotic, "traitors, enemies of their own patria", "anti-citizens" arming "against their own neighbors." [11] Yet what Prof. Wills and the many others who echo such statements contemplate as the appropriate response when people are subjected to criminal attack is summoning a police officer. [11-1]

There is an amusing, but none the less very real, impediment to analyzing this position: it is so inconsistent that one who does not start out accepting it is hard put to believe that Prof. Wills et al are actually saying what they are, in fact, saying. Thus I emphasize that their concern is not simply pragmatic, e.g. to deny that gun-armed self-defense is effective or to laud the obvious advantages of police assistance when that option is open. Entirely independent of (though often accompanying) such pragmatic concerns, anti-gun advocates advance the moral view that under no circumstances is it ever legitimate to use a gun in defense of self or family. [11A] Thus Prof. Wills holds that people who own guns in order to be able to protect their families in the event that police assistance proves not immediately available exhibit a morally abhorrent attitude toward fellow-Americans. [11A] Of course, if consistently adhered to, Prof. Wills' view is as immune from rational dispute as is any other moral belief. But if one is willing to call on others (the police) to defend his family with a gun it is patently inconsistent to condemn the morality of others because they are willing to defend their families themselves if the police are unavailable when the need arises.

Another common profession of the anti-gun faith is that which characterizes defensive gun ownership as "paranoid". [12A] What "paranoid" means in this context is not entirely clear (at least today). It may now be no more than a psych-jargon dressed expression of Prof. Wills' abhorrence of defensive gun ownership. But what "paranoid" literally conveys is a view that was common among American intellectuals up to about a decade ago. In that view the extent of crime had been vastly exaggerated as a result of public hysteria; crime was neither increasing nor dangerous or pervasive enough to justify being armed; such a precaution so far exceeded the real level of danger as to be an irrational overreaction. [12B] Thus it may be useful to compare defensive gun ownership to another kind of precaution that is generally deemed sensible. Homeowners who buy earthquake insurance are considered not paranoid but prudent even in California where such insurance runs at least $2.00 per $1,000.00 valuation, or $300.00 annually (for what is a middle class dwelling at California prices, c. $150,000.00). [12C] Over a ten year period the homeowner will pay $3,000.00 in earthquake insurance premiums. In contrast, a used Smith & Wesson .38 special revolver, which will last forever with proper maintenance, costs perhaps $150.00. Yet the likelihood of an average American household (much less one in a high crime area) suffering burglary or robbery over that period is roughly 10 times greater than of injury from all natural disasters (flood, earthquake, hurricane, tornado) combined [13].

Can defensive gun ownership be deemed an irrational overreation if it is reasonable to pay 20 times as much to insure against a danger less than one tenth as likely? The gun owner might even argue that his weapon is a better investment in that it may actually avert the anticipated harm while insurance only recoups its costs. It may be objected that insurance is not comparable to a gun since insurance always pays off, but whether gun ownership protects against crime is a matter of controversy. True enough, but beside the point which is "paranoia". If the empirical evidence discussed infra proves the gun owner's faith in the weapon's protective efficacy to be wrong then wrong is what it is -- not "paranoid". That gun ownership does not represent so exaggerated a perception of the crime problem as to constitute irrational overreaction is made evident by the now well accepted view that crime makes life significantly more dangerous here than it is in many other countries. [13-1] Moreover, if fear of crime equates to paranoia, the mental health of gun owners appears actually to be superior to that of non-owners; apparently because gun owners feel more confident about their ability to deal with crime, studies find them less frightened of it than are non-gun owners living in the same areas. [13A]

But whatever the benefits of lessened fear to gun owners, for society in general what is unquestionably more important is the part guns play -- some people believe it causative -- in about 33,000 suicides, accidents and murders annually. [14] Thus regardless of any fear reductive effect, gun ownership may be contra-indicated, particularly for people in the high-risk groups for gun abuse [15]. But, as noted earlier, the desirability of a univeral gun ban, or of any other particular level of restriction, involves issues far beyond the scope of this article.

The police as a source of personal protection for individual citizens. Another possible interpretation of the paranoia characterization is that defensive gun ownership is "paranoid" because personal self defense has been rendered obsolete by the existence of a professional police force. Regrettably this exaggerates the factual effects of policing and totally misstates its function in law and theory, as plaintiffs who attempt to sue for non-protection have found. [16] Doubtless the deterrent effect of professional policing helps assure that many will never be so unfortunate as to live in circumstances in which they will require personal protection. But for those who do need such protection -- e.g. women threatened by former boyfriends or husbands -- the fact is that the police do not function as bodyguards for individuals.

Rather the police function is to deter crime in general by patrol activities and by apprehension after the crime has occured. If circumstances permit, the police should and will protect a citizen in distress. But they are not legally duty bound even to do that, nor to provide any direct protection -- no matter how urgent a distress call they may receive. [16] A fortiori the police have no responsibility to, and do not, provide personal protection to citizens who have been threatened (although in major cities police may perform bodyguard services for the mayor and other prominent officials).

Typical of cases enunciating the non-responsibility of the police for protecting individual citizens is Warren v District of Columbia [17] in which three rape victims sued the city and its police department under the following facts: Two of the victims were upstairs when they heard the other being attacked by men who had broken in downstairs. Half an hour having passed and their roommate's screams having ceased, they assumed the police must have arrived in response to their repeated phone calls. In fact their calls had somehow been lost in the shuffle while the roommate was being beaten into silent acquiesence. So when the roommates went downstairs to see to her, as the court's opinion graphically describes it, "For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands" of their attackers. [19]

Having set out these facts, the court promptly exonerated the District of Columbia and its police, as was clearly required by

[the] fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen. [19]

"Vigilantism" and related concepts

In tandem with anti-gun disdain for armed self-defense [22A] the common misunderstanding that the police exist to protect individuals has given rise to an elusive, but frequently expressed, attitude that equates gun use in defense of self or others to "vigilantism". A striking facet of this attitude is that it not only outweighs but even reverses the approbation normally accorded Good Samaritans: Thus based on a study of those who rescued crime victims and/or arrested their attackers, PSYCHOLOGY TODAY disapprovingly characterizes them in terms of the fact that 81% of these Good Samaritans "own guns and some carry them in their cars. They are familiar with violence, feel competent to handle it, and don't believe they will be hurt if they get involved." [22B] Similarly an anti-gun survey actually classifies gun owners as "violence prone" based on positive responses not to questions about criminality but about the legitimacy of using force in order to stop a crime in progress or rescue its helpless victim. [22C] Similarly the editor of a book on the legal status of Good Samaritans introduces it with the question

Are we to encourage the ordinary citizen to take direct action in the prevention of crime or the apprehension of criminals, after centuries of social development clearly pointing toward the elimination of vigilante [sic] action and the concentration of responsibility in the hands of public officials? [22D]

For all its appeal to refined and high-minded (but uncritical) readers, such an attitude lacks practicality in actual application. How does society benefit if, instead of shooting the ex-husband who breaks into her house, a woman allows herself to be killed because the civilized thing to do is to wait for him to be arrested for her murder? Far from advancing the cause of rational gun control, such attitudes actually retard it by creating "straw men" which aid the gun lobby in diverting attention from serious arguments for control. Unfortunately such extreme anti-gun attitudes have played a part in shaping the ideology and rhetoric of the gun control movement -- and have particularly influenced its analyses of defensive gun use. Even supposedly pragmatic works appear subtly colored by the unstated but unshakable belief that, even when legal, defensive gun use represents vigilantism or some other social wrong. It will suffice to present only one example of this subtle coloration here since others will be discussed infra:

As noted earlier, murderers generally have long prior histories of criminal and otherwise dangerously aberrant behavior; domestic homicide particularly

is often not an isolated occurence or outbreak, but rather is the culminating event in a pattern of interpersonal abuse, hatred and violence that stretches back well into the histories of the parties involved. [24] The day-to-day reality is that most family murders are prefaced by a long history of assaults. [24A]

Even in a violent society the number of homicidally irrational aberrants is so small that few of us have such friends, acquaintances or relatives. But some people do have that misfortune. Of course it is tragic when, for instance, an abused woman has to shoot to stop a (current or former) boyfriend or husband from beating her to death. But it is highly misleading to count such incidents as costs of gun ownership by misclassifying them with the very thing they prevent: murder between "family and friends". However atavistic or unpatriotic such incidents may be, they are not vigilantism and they are not costs; rather they are palpable benefits of defensive gun ownership from society's and the victims' point of view if not from their attackers'.

Both Anglo-American and foreign law affirm what Prof. Wechsler called "the universal judgment that there is no social interest in preserving the lives of the aggressors at the cost of those of their victims." [26] While medieval common law looked askance at the social value of what it called homicide se defendendo, [27] later thinkers from Grotius, Locke, Montesquieu, Beccaria and the Founding Fathers on through Bishop, Pollock, Brandeis to Perkins and beyond have deemed self defense unqualifiedly beneficial to society. [28] It is only the unnecessary or excessive use of force that is harmful and wrong. Furthermore, that harm is qualitatively the same whether the wrong is commited by citizens or by the police. Unless "vigilantism" is a solecism it must, on the one hand, not apply to lawful defensive use of force by anyone, while on the other hand it must condemn all excessive or unnecessary uses of force for the purpose of imposing summary punishment, whether the vigilantes be citizens or police. [28A]

With the issue of vigilantism thus properly understood, concerns over victim misuse of force can be seen in proper perspective. While qualitatively the evil of vigilantism is the same whether committed by civilians or police, quantitatively only police vigilantism is a major social problem today. In contrast civilian vigilantism appears to be quite rare -- perhaps because officials are alert to the need for vigor in suppressing it. Civilians' claims to have used deadly force defensively receive very close examination, with prosecution likely in the event of wrongdoing. Unfortunately comparable review is rare when police misuse of deadly force is suspected; several studies suggest that a high proportion of police homicides are unjustified, [29] yet officers are rarely prosecuted even for clearly wrongful use of deadly force. [29A] These findings are buttressed by the extensive evidence adduced in civil rights cases like Webster v City of Houston [30] in which it was held to be a de facto municipal policy for each officer to carry an untraceable "drop gun" to be planted on those he might shoot (in order to falsely validate his later claim of self defense). It is perhaps also significant that in comparing police to civilian shootings of alleged criminals the police have been found to be 5.5 times more likely to have shot an innocent person in the belief that he was a criminal. [31]

This is not to deny that civilian gun misuse is a legitimate subject of concern. The point is only that current legal sanctions appear generally sufficient to deter civilian "vigilantism". So the principal problem in this area is effective oversight of police use of force. The American Civil Liberties Union's tergiversations about the issue are significant: in 1968 the ACLU endorsed unspecified "gun controls" on the express ground that this would safeguard dissenters and the criminally accused from private violence. When the National Coalition to Ban Handguns was organized, the ACLU gave specific content to this position by joining. In the early 1980s the ACLU revised its 1968 resolution by deleting the express rationale, with membership in the Coalition being continued without any express civil liberties rationale. As of mid-1986, however, the ACLU has withdrawn from the Coalition. In sum, however persuasive the general public policy reasons for banning guns may be, they are not compelling as a civil liberties issue. [32]

EMPIRICAL EVIDENCE AS TO THE VALUE OF ARMS, A pro-gun analysis

Earlier in this article the disproportionate attention it gives to anti-gun analyses was attributed to their virtual monopoly of the scholarly literature (until neutral criminologists began to discuss defensive firearms use in the last decade). [33] Yet at least pseudo- scientific analyses have sometimes appeared in material written for gun owners and their sympathizers. One example is the apparently self- published book MYTHS ABOUT GUNS by James E. Edwards whom the book's rear jacket decribes as a lawyer and former mayor in Coral Gables, Fla. In bold red letters the front jacket proclaims: "Theme of the book: More Guns ... Less Crime". The jacket then proceeds to describe the book's purpose as to provide

A concise, indexed, documented, pro-gun book of ready reference which explodes the main dogmas and myths of the anti-gun fanatics. Useful for debates, legislative hearings, letters to the editor and fighting bad gun laws.

Unfortunately such comparisons stumble on various methodological obstacles, including: 1) radical changes in regional patterns of gun ownership as indicated by mid-1970s survey data; [34] 2) that "survey data on the level of national regions [results in] aggragated units too large and internally heterogenous for useful analysis"; [35] and 3) the sleight of hand Mr. Edwards uses to massage the data into suppporting his argument. [36]

But above and beyond these problems is an even more basic error which deserves extended discussion because of its almost universal appearance when gun issues of any kind are analyzed by partisans on either side. This lies in two assumptions whose fatuity ought to be apparent to anyone who has ever had an introductory course in social science. The first of these assumptions is that a correlation between two phenomena is sufficient to prove that one of them has caused the other. This may be illustrated by the fact that Mr. Edwards is quite right about his "more guns ... less crime" correlation; indeed, it is supported by far stronger evidence than he himself presents. [37] But by the same token, there could probably be established an equally strong negative correlation between more cows ... less crime. Before breaking into a paegn of praise to Bessie the Great Protector, it might be wise to ask whether this correlation represents anything beyond a spurious artifact of rurality: cows tend to be found in rural areas and crime doesn't. Of course the low per capita crime rates in rural America may be attributable to its high rates of gun ownership. But for the rational and dispassionate observer more proof of that is required than the bald correlation between "more guns ... less crime."

Mr. Edwards' second false assumption is that, even where some basis exists for deducing causation from a correlation between two factors, which is the cause and which the effect can not be blithely presumed according to one's preconceived perspective. This may be illustrated by another frequently encountered, but erroneous, pro-gun argument: that states which severely restrict handgun ownership have higher crime rates than less restrictive states. [38] A factual difficulty with this as a proof that gun ownership reduces crime is that the studies do not consistently show the more restrictive areas have more crime; some studies show them with no more crime than less gun restrictive areas. [39] But even if the more restrictive were to be found to have more crime, other explanations are equally or more plausible than the deterrent or self- defense effects of gun ownership in reducing crime. Prof. Polsby, refering to such a finding by a respected scholar who is markedly less convinced of the value of gun ownership than Mr. Edwards (or Prof. Polsby himself), notes [39A]:

Thus to evaluate the defensive utility of firearms it is necessary to consider forms of evidence more directly relevant than mere inference from comparisons of the crime statistics of different jurisdictions or regions. This requires turning from pro- to anti-gun authors since they provided the earliest attempts to analyze more directly relevant forms of evidence. Because the latters' views will be found even less persuasive under close scrutiny than than those of the gun lobby it is important to reemphasize the definitions with which this article began: the term anti-gun is not here used as a synonym for "pro-control", but in its literal sense of antagonism toward gun ownership. Such morally or culturally based antagonism (and an associated disdain for the right of self-defense) underlies much of the argument for banning handguns based on the purportedly empirical claim that guns are useless for self-defense. But it simply does not follow from the untenability of those claims that we must accede to puerile gun lobby arguments against the need for rational control. The fact that handguns are useful no more exempts them from reasonable regulation than the fact that automobiles and innumerable other commodities are useful preccludes reasonable regulation to minimize the likelihood of their being misused. [39B]

Lawful self defense homicides as an index to defensive gun use -

The standard arguments against the utility of defensive gun ownership date back to the early part of the Century; even their more modern formulations were all written at least a decade ago. Because directly relevant empirical evidence has been largely unavailable until recently, such arguments have tended to be speculative rather than empirical. For example it was (and is) argued that resistance is useless and dangerous because criminals are more ruthless or better shots or will have the drop on victims. [40] Where empirical evidence has been cited it consists in idiosyncratic local statistics of self defense homicide suggesting that gun use in self defense is a very uncommon phenomenon. [41] From this it is argued that reduced gun availability would confer great benefit at little corresponding cost because "Guns purchased for protection are rarely used for that purpose." [42]

Anti-gun argumentation from lawful homicide figures provides clearly better evidence of the extent of defensive gun use than Mr. Edwards', and other pro-gun attempts to infer it from differentials in crime rates. But lawful homicide figures as an index to overall defensive gun uses raise problems not only conceptually [43] but, more important, factually. In the vast majority of defensive gun uses the outcome is not that criminals die but only: that they are wounded or injured or that they are apprehended or scared off without being injured at all. [44] So even had far more broadly based long term, geographically diverse lawful homicide figures been available before the 1980s, homicides are too small a proportion of overall defensive gun uses to be a reliable index to the frequency of such uses. At least if better indexes were available, one would certainly not measure the value of guns in police work by simply totting up the number of violent felons police kill. By the same token lawful defensive homicides are not a fair measure of the overall value of defense guns to civilians.

The justification for anti-gun use of the idiosyncratic local justifiable homicide statistics is that until recently those have been the only available data from which the extent of civilian defensive gun use could even remotely be inferred. But this still does not excuse the misleading selection and manipulation of such data. For instance, it is well known (the point having been made often in anti-gun studies [45]) that householders rarely have the opportunity to use guns against burglars since burglars take care to strike when no one is home to shoot them. It was therefore misleading to cite as evidence that defense guns are rarely used under any circumstances the rarity of intruders being killed by householders. Concommitantly misleading was the citation of such statistics without even mentioning [46] the much higher incidence of lawful defense homicides of other kinds -- e.g. woman kills homicidal ex-boyfriend, shopkeeper kills robber etc. [46A] By the same token it was highly misleading to cite "guesstimates" by Detroit, Los Angeles and New York City police officers of the number of criminals civilians were killing there in the mid-1960s without mentioning the availability from the Chicago Police Department of complete and official figure showing that for decades the numbers of lawful defensive homicides by civilians had generally equalled the numbers by police and lately were tending to outnumber them by as much as 3-1. [47]

The effect of these and other statistical manipulations was to artificially minimize the incidence of lawful defensive homicides (and therefore of overall defensive gun use inferrable therefrom) in the anti-gun studies. Consider the now-discredited -- though still widely cited -- comparison that handgun accidents kill 6 times as many householders as householders kill burglars [48]. Based on this finding of an anti-gun study of Cleveland gun deaths, it might be thought that gun accidents must account for a substantial part of the yearly handgun death toll; yet even nationwide the National Safety Council can identify only about 300 accidental handgun fatalities annually -- as compared to c. 6,000 handgun suicides and 6,000-9,500 handgun murders. [49] The actual ratio of fatal handgun accidents to lawful defensive killings is not six to one in favor of the former but more like 1 to 3 in favor of the latter. [50] While something unique about Cleveland might explain this 1800% deviation from the norm, a more plausible suggestion that has been made is that the number of accidents in Cleveland was inflated by the random inclusion through misclassification of large numbers of what were actually handgun suicides. [51] In sum, the anti-gun attempts to minimize the extent of defensive gun use could not have been sustained by full and accurate description of even the sparse city-level lawful homicide data available when the various anti-gun studies were written. [54]

Subsequently as such data have become available for other cities, and on state and national bases, the anti-gun argument has suffered further. [55] Though it does not publish them in its yearly Uniform Crime Reports, the FBI now collects national "justifiable homicide" figures which show armed citizens annually lawfully kill more violent felons than do the police. [55] Yet even these figures actually underrepresent the full extent of lawful defensive homicide by 50% or more. The FBI statistics count as criminal any intentional killing whose legality was initially questioned (even those later ruled lawful by the district attorney, coroner's jury etc.). [56] Also, based on the obsolete distinction between "excusable" and "justifiable" homicide, the FBI excludes from the latter category any killing that occured in defense of the defender's life rather than in repelling a felony having some other object. In other words, however strange it may seem: if a woman shoots an ex-boyfriend who is strangling her, or a contract killer hired by her husband who wants to inherit her estate, the FBI counts that as a criminal homicide (for statistical purposes only) because the attacker's immediate purpose was only to kill her; but if a merchant kills a robber or a woman kills a rapist the FBI counts that as a justifiable homicide because the attacker's purpose was some crime other than homicide. [56A] It is estimated that if all lawful civilian self defense killings were counted, the actual number of violent criminals killed by citizens might exceed the number killed by police each year by as much as five times. [57]

Survey data as an index to defensive gun use

Until fairly recently survey evidence on gun issues was limited to the results of whatever general unfocussed inquiries the Gallup or Harris polls had haphazardly decided to ask in the 4 or 5 question polls they had devoted to gun matters over the years. But during the past decade both pro- and anti-gun groups have sponsored intensive sophisticated multi-question private national surveys on various issues in the gun control debate. Common to several of these private surveys were questions as to whether guns in the respondents' homes had been used defensively. The surveys were not conducted directly by the partisan groups sponsoring them but by independent private polls including Peter Hart and Patrick Caddell (for the anti-gun groups) and the Decision Making Information organization (for the NRA).[57A] Although less well known than Gallup or Harris, these are respected polls: the Hart and Caddell firms regularly poll for Democratic Party groups and candidates (President Carter and Senator Cranston among them), while the Republican luminaries DMI has worked for include Presidents Ford and Reagan.

As with any poll, these are subject to the objection that they generalize about a population of upwards of 250 million on the basis of information obtained from a sample of only about 1,500 supposedly representative people. [58] But, excepting objections to surveys in general, there is no reason for discounting the results of these gun polls in particular; while these polls were paid for by partisans, the reputations of the independent organizations actually conducting them precludes any question of falsification and academic studies have favorably cited and relied upon their results. [59] To exclude even unreasonable doubts as to validity, however, the discussion here will be based only on the evidence of anti-gun-sponsored polling. It is possible to simply discard the results of the NRA-sponsored polls since the data yields on defensive gun use from all the surveys are mutually consistent. [60] Based only on the survey evidence sponsored by anti- gun groups, it has been calculated that handguns are used in defending against c. 645,000 crimes per year. [61] The magnitude of this figure may be assessed by noting that it slightly exceeds the estimated number of crimes committed or attempted by handgun-armed felons each year, c. 581,500. [62]

Thus the empirical evidence fails to sustain the claim that handguns are often used in crime but rarely to defeat it. Since that claim is the foundation of the legal theory for judicial abolition of handgun manufacture via the doctrine of strict liability the fact that defense uses approximate or actually exceed criminal uses might seem to apply the coup de grace to that legal theory. But factual refutation seems superfluous since the courts have not in any event found that theory a legally sound basis for intruding into what they deem purely legislative or political matters. [63] Yet the fact that defense uses approximate or exceed criminal misuses emphatically does not refute the need for legislatively imposed gun control. Controls carefully tailored to disarm felons but not good citizens would reduce the incidence of gun misuse but not of lawful defensive use. [63A] Moreover even a complete ban might still be advocated on the theory that the possible benefit of reducing suicide or homicide outweighs the certain cost of reducing the overall number of crimes thwarted by defensive firearms use. [64]

Two other problems with the comparison given above should be noted: First, it is impossible to tell how much the c. 645,000 crimes that handguns defend against overlap with the c. 581,000 criminal attempts by handgun-armed felons. Doubtless in some cases handgun-armed felon meets handgun-armed defender; but many cases involve either felon or defender confronting an opponent who is unarmed or armed with a knife, club, longgun or miscellaneous other weapon. [65] Next, it is important to understand that the comparison is not of success in either case but only of 581,000 handgun crimes attempted annually versus the 645,000 defense uses. Evidence from two sources suggests that handgun- armed defenders succeed in repelling criminals (however armed) in 83-4% of the cases. [70] But comparable evidence is lacking as to the rate at which handgun-armed criminals succeed in crimes they attempt. [71]

As to the incidence of defensive gun use, an independent body of data confirms the survey evidence of its frequency. This second data source consists in formal or informal surveys taken among inmates of various federal and state prisons over the past two decades. Some of these surveys are methodologically crude and/or involve inadequate samples. [72] But since the results of all of these surveys too are mutually consistent and supportive, it will suffice to refer to the latest and most recent which was conducted under the auspisces of the National Institute of Justice in state prisons across the country. [73] While most of its questions on victim arms possession focussed on the question of deterrent effect (see discussion infra), several did address self defense. Responding thereto, 34% of the convicts

said they had been "scared off, shot at, wounded or captured by an armed victim," [quoting the actual question asked] and about two-thirds (69%) had at least one acquaintance who had had this experience. [73]

Peace of Mind

To continue the religious simile with which this article began, one benefit which must (however reluctantly) be conceded by even the most ardent atheist is that faith may be conducive to at least a delusive peace of mind. Likewise anti-gun claims that "those who own handguns for self-defense are engaging in dangerous self-deception" [75] implies (however reluctantly) that at least delusive peace of mind may be a benefit of the opposing faith. In fairness, even ardent anti- gun advocates ought to admit the value of this in a society so crime- ridden that they themselves proclaim that crime and the fear it creates palpably diminishes the quality of life. [75] More neutral observers forthrightly acknowledge that

If people feel safer because they own a gun and in turn lead happier lives because they feel safer and more secure, then their guns make a direct and nontrivial contribution to their overall quality of life. [76]

Of course defensive gun ownership is a dangerous self-deception if it causes gun owners to be injured or killed through involvement in otherwise avoidable situations. But the evidence reviewed in the next section does not suggest that gun ownership produces feelings of invulnerability that encourage owners to recklessly court danger. If anything, non-owners appear less able to evaluate the danger and the opportunities of opposing criminals, and thus more inclined to unwise opposition, than are gun owners.

POTENTIAL COSTS OF ARMED CITIZEN RESISTANCE TO CRIME

The "success" of defensive handgun use cannot be evaluated independently of the most obvious and immediate problem of any kind of resistance: that victims may suffer (additional) physical injury or death who otherwise would only have been feloniously assaulted, maimed, raped or robbed. Because of the paucity of evidence until very recently, anti-gun arguments emphasizing these dangers have, once again, generally had to proceed from speculation or anecdotal evidence. [78] This lack of empirical evidence for the anti-gun viewpoint has been obscured by a controversy which only superficially seems relevant to the dangers of gun-armed self-defense -- largely because most of the disputants are morally or otherwise opposed to gun ownership.

Based on national crime victim survey data, a number of scholars who happen to be anti-gun recommend that victims eschew forcible resistance of any kind; if an attacker cannot be "talked out" of his crime, the victim should submit in order to avoid injury. [78A] Doubtless this submission position would excite paroxysms of scorn from defense gun advocates like Col. Cooper [78B]. But, in fact, its scholarly critics have not been pro-gun nor have they urged gun-armed resistance specifically. [78C] Their criticisms involve issues of policy (that to advise victims to submit may encourage crime [79]) and of methodological error (e.g. that, since the data do not show time sequence, it is not clear how often victims are injured after they resisted; they may have been harmed prior to any resistance in that the criminal began the attack by gratuitously injuring them which was what prompted them to resist). The latest, and probably the definitive, analysis concludes that the "data, when interpreted carefully, do not support any strong [general] assertions concerning the victim's safest course of action when confronted by a robber." [80]

One criticism which has curiously been overlooked is that the submission position is a parochial reflection of its expositors' own sexual, racial and economic circumstances. In general, the submission position literature has avoided any discussion of rape and invariably it treats robbery and assault as the once-in-a-lifetime dangers which they are (at most) for salaried white academics. It does not seem to have even occured to any submission exponent to question whether the calculus of costs and benefits of resisting might be different for

an elderly Chicano whom the San Francisco Examiner reports has held onto his grocery by outshooting fifteen armed robbers [while] nearby stores have closed because thugs have either bankrupted them or have casually executed their unresisting proprietors... [Or] welfare recipients whom robbers target, knowing when their checks come and where they cash them [or] the elderly trapped in deteriorating neighborhoods (like the Manhattan couple who in 1976 hanged themselves in despair over repeatedly losing their pension checks and furnishings to robbers).[80A]

By no means am I arguing that forcible resistance with guns (or without) is optimum for crime victims in any or all circumstances. I am only only laying out additional factors that really ought to be considered before a well-salaried white, male intellectual presumes (as I certainly would not) to tell the kind of people who are most often crime victims what is best for them. [83A]

At the same time it must be recognized that the considerations that underly the submission position are irrelevant to the defensive value of guns, notwithstanding the coincidence that that position has been championed largely by those who happen to be anti-gun advocates. The evidence they cite does not focus on guns nor do lessons drawn from less effective weapons seem to apply to resistance with guns. The only extant study specific to gun-armed civilian resisters found they suffered slightly lower rates of death or injury at the hands of criminals (17.8%) than did police (21%). [84] These results are open to question because the study involved only a very small sample. But confirming evidence from an enormously larger data base is available in the national crime victim surveys. (These, however, provide information only as to victim injury, not death, since victims who died resisting robbers are not available to answer survey questions.)

In fact, earlier versions of the national victim surveys were cited by the one specifically anti-gun presentation which has tried to empirically validate the dangers of resistance theme. [85] But the survey questions in those early versions of the surveys lumped all resistance together without differentiating the injury and success rates of gun-armed resisters from those of resisters who were unarmed or armed only with less effective weapons. The more recent national victim surveys which do so differentiate have already been cited as showing that victims who resisted with guns were much less likely to lose their possessions to robbers than those who resisted with any other kind of weapon. [86] As the Table below shows, this recent data finds gun-armed resisters c. 50% less likely to be injured as victims who did not resist at all. [87] In contrast, knife-armed resisters were more likely to suffer injury than non-resisters and much more likely to be injured than gun armed resisters; comparisons to other forms of resistance are also favorable to the effectiveness of gun armed self- defense. [87]

INSERT TABLE ABOUT HERE

Care must be taken to avoid exaggerating the importance of these findings as support for the utility of defensive gun use. Ironically, a major factor which might lead to exaggerating their import is a basic conceptual error in anti-gun analyses of the utility of gun armed self- defense. Implicit in many such anti-gun analyses has been the unexamined -- indeed unstated -- assumption that having a gun somehow compels the victim to resist with it even in circumstances that make it senseless and dangerous to do so. [87-1] But the whole point of a gun (or any other precaution against emergency) is to provide an option for use if, but only if, this is wise under the circumstances.

With this point in mind it becomes evident that the survey data on victim injury do not support any suggestion that victims who have guns can safely resist no matter what the circumstances. On the contrary, though guns do maximize successful resistance, of at least equal importance in minimizing injury is that gun owners seem mostly to eschew resistance when submission is the wiser choice. Although the number of victims in the surveys who say they resisted with a gun is not statistically insignificant, it is dwarfed by the number who tried to flee or scream or resisted forcibly without a gun. [87-2] The much higher rates of injury among victims who resisted in such ways do not at all prove that resistance with a gun would have been safer in their particular circumstances. Rather, the much smaller number of gun armed victims who resisted at all suggests that gun owners may be disproportionately less likely to resist when the circumstances for that are inauspicious. Possibly gun owners are more likely than other victims to have considered the dangers attendant upon resisting a criminal and are therefore more hesitant to do so.

However absurd the concept of a thoughtful gun owner will seem to Messrs. Grizzard, Braucher, Ellison, Wills, Clark, etc., [87A] analogy may be found in the mid-1970s debate over the advisability of having patrol officers wear bullet proof vests under their uniforms. Some observers feared this might actually increase officer risk by producing a sense of invulnerability that would lead officers to throw caution to the winds. The actual result has been the reverse: wearing the vest seems to remind officers of how vulnerable they really are, thereby inclining them to increased caution. [87B] By the same token, when civilians take the momentous step of buying and actually keeping a gun for self-protection it may provoke them to a more sober consideration of the risks of incautious resistance. The low rate of injury to gun armed crime victims suggests they may be more capable of evaluating the opportunities and risks of resistance than a non-owner who, having never seriously contemplated the matter, is suddenly confronted by a robber.

The risks and opportunities involved in the option to resist gun ownership confers may be illustrated by considering some alternative circumstances involving woman menaced by a rapist in her home: if she becomes aware of him as he breaks in, the gun allows her to frighten him off or capture and hold him for police [88]; but if her first knowledge is being awakened by the pressure of a weapon against her throat, nothing compels her to reach for a gun. Properly secreted it remains available for use if, for instance, believing her cowed the rapist becomes distracted in disrobing or by a police or fire siren or some other external event [88A]; or if it becomes clear that he intends to mutilate or kill her regardless, so that it is rational to resist no matter how slim her chances of success. [89] In short, a gun simply offers victims an option -- a dangerous option to be used only with discretion and/or because throwing oneself on the mercy of a violent attacker may be more dangerous yet. Fortunately people who have the foresight to equip themselves with what for most victims is the only effective means of resistance seem also to have the good judgment not to try to use it when that would only serve to endanger them.

A Note on self defense and the Issue of Massacres In July, 1984 an unemployed and apparently deranged security guard killed 21 customers and employees at a San Ysidro California MacDonalds Hamburger outlet. [90] In August, 1986 a similar massacre in which 15 died was perpetrated in an Oklahoma Post Office by a recently discharged postal worker using guns he had received as a National Guard marskmanship instructor. [91] Both of the perpetrators remained on the scene to be killed, eschewing any opportunity to escape before the police arrived.

It is ironic that these and similar tragedies of the past three decades have been seen as arguing for, rather than against, gun bans. [92] Massacre presents a situation in which the value of defensive firearm use is at least arguable, while standard anti-gun arguments have no force at all: The most important argument against forcible resistance is that it may cause a criminal to kill a victim whom he would otherwise only rob or rape. Obviously that argument has no application to a situation in which a deranged killer opens fire without provocation or making any demand for his victims to satisfy. Also inapplicable by its own terms is the argument that even though a gun ban may disarm the victim it may also disarm the attacker. Basic to that argument is the proposition that in acquaintance or domestic homicide situations killers often act out of momentary rage, not out of a fixed intent to kill. From this premise it follows that such killings might not occur but for the immediate access to firearms. [93]

Realistic gun control advocates recognize the impossibility of disarming the killer who really wants to kill and wants a gun for that purpose. They thus implicitly, and often explicitly, concede that gun control measures can be of little use against killers so highly motivated for personal or political reasons as to undertake massacres which are substantially likely to result in their own deaths. [94] A contrasting policy alternative for dealing with this special problem is exemplified by an incident which occured in a Jerusalem cafe four months before the San Ysidro MacDonalds massacre: three terrorists who attempted to machine-gun the crowd were able to kill only 1 victim before being shot down by handgun-armed Israelis. When presented to the press the next day the surviving terrorist bitterly complained that his group had not realized that Isreali civilians were armed. The terrorists had planned to machine-gun a succession of crowd spots, believing that they would be able to escape before the police or army could arrive to deal with them. [95]

In sum, anti-gun policies not only offer no solution for the massacre situation but are detrimental in precluding whatever chance the victims might have to protect themselves in the crucial time it will take the police to arrive on the scene. [96] Because terrorism is its most pressing criminal justice problem, Israel maximizes the presence of armed citizens by firearms training and encouraging gun ownership and carrying by almost the entire populace (Jews of both sexes and for the Druze and other pro-Israeli Arabs). [97] The advisability of such measures in a country in which military training is not universal even for males presents quite a different question - which does not necessarily merit even examination since American homicide is not primarily a matter of massacres. [97A] Melodramatic as they were, the MacDonalds and Post Office massacres combined constituted only a fraction of 1% of the criminal homicide totals for those years. The massacre issue is thus a "red herring"; and the use made of it by anti-gun advocates is at once ironic and evidence of the simple-minded and/or unscrupulous debate which is, unfortunately, no less characteristic of them than of the gun lobby. [98]

DETERRENCE

To reiterate, as used herein deterrence refers not to the actual use of a gun in repelling an attempted crime (defense use) but to the phenomenon of crime not even being attempted because of the potential criminal's fear of confronting an armed civilian. There are several kinds of such deterrence as Prof. Gary Green has noted in emphasizing the need to distinguish between them: in "displacement" the effect when some victims (or neighborhoods or communities) are perceived as well armed is only the redirection of the same crime against others; in sharp contrast are both "total deterrence", in which criminals are deterred from crime altogether, and "confrontation deterrence", in which they are deterred altogether from crimes like rape or robbery which involve confronting a victim. [99]

Ignoring the vital distinction between displacement and total or confrontation deterrence has allowed pro-gun advocates to present the evidence on deterrence as less ambiguous and equivocal than it really is. Blythely assuming that deterring crimes against victims perceived to be well armed reduces the total quantum of crime -- rather than just foisting it off on other victims -- extreme pro-gun advocates support arming the populace as a deterrent to crime. Thus when Ford Administration Attorney General Edward H. Levi proposed forbidding guns in high crime areas, Ronald Reagan (then a private citizen) commented in an article published in a gun journal:

Mightn't it be better in those areas of high crime to arm the homeowner and the shopkeeper, teach him how to use his weapons and put the word out to the underworld that it is no longer totally safe to rob and murder?... One wonders indeed if the rising crime rate isn't due as much as anything to the criminal's instinctive knowledge that the average victim no longer has any means of self-protection... No one knows how many crimes are committed because the criminal knows he has a soft touch. No one knows how many stores have been let alone because the criminals knew it [sic] was guarded by a man with a gun or manned by a proprietor who knew how to use a gun. [100]

As pro-gun advocates like former NRA chief lobbyist Neal Knox are quick to note, experiments involving the deterrent effect of an armed victim population seem to have been very successful: [101]

in 1966 there were a series of brutal rapes in Orlando, Florida which panicked the women of the city into buying firearms for defense. Fearing a rash of accidental shootings, the local news- paper co-sponsored a firearms training class conducted by the police department; in the next few months some 6,000 [sic -- the actual number was c. 3,000] women were trained in firearms safety and through the extensively publicized program. The results were remarkable... [In 1967] Orlando was the only city in the U.S. of more than 100,000 population to show a decrease in crime.

An equally startling example of the crime-deterrent value of well-publicized gun ownership occured in 1967 in Highland Park, Michigan, a Detroit suburb. Having read of the Orlando and similar firearms training programs, Police Chief Bill Stephens conducted a firearms training program for retail merchants who were being plagued by an unprecedented number of armed robberies... [This was denounced by the anti-gun Detroit Police Commissioner] resulting in headlines in Detroit newspapers. Four months after the program began [Chief Stephens reported] that armed robbery of retail stores had been averaging two every three days immediately prior to the announcement of the training program; but from the day the newspapers carried the story, there had been not a single retail store robbery in the city -- for a third of a year!

[In Detroit itself a grocers' association sponsored such classes which were publicized both because of the Police Commissioner's criticism and because] in the following few months seven armed robbers were killed by store owners -- and Detroit grocery store robberies dropped by almost 90%. [103]

Indeed, if displacement were the only effect it could be argued that deterrence is actually socially deleterious. Assume for the sake of discussion that programs that dramatize that women in a particular area are well armed only displace rape to some other area where it is less likely that the rapist will confront an armed victim. Of course those who appraise probabilities more realistically than the gun lobby will conclude that many times even armed victims will not be able to defeat a criminal. [106] But from the perspective of overall social benefit the important point is that the likelihood of rape being repelled is enormously greater if the victim is armed than if she is a helpless victim -- a fortiori even more so the chances that the rapist will be apprehended or killed (thereby disabling him from further rape) or frightened into eschewing rape in the future. [107] So deterrence would be socially counter-productive if all it caused were displacement, thereby actually diminishing the defense-use benefits that would otherrwise accrue to society from civilian gun ownership.

Fortunately the deterrent effect of civilian arms possession is not limited to displacement. As Prof. Green recognizes, realistically the great majority of rapists are not, when deterred from striking at one place, going to commit at least as many rapes elsewhere. Even as to rapists who pre-plan their crimes, the reduction in incidence will be not insubstantial since planning for a new area (i.e., out of the area with which the criminal is most familiar) creates both real and psychological problems. [108] Of course the incidence of rapes (or other crimes) committed opportunistically may especially be reduced when a criminal becomes frightened of the victims likely to be found in his regular haunts.

At the same time it must be recognized that displacment effects are not unique to the deterrent value of civilian gun possession; they apply, and must be taken into account in appriasing, any kind of crime deterrence program. For instance, a drastic increase in numbers of uniformed police assigned to ride the New York subways at night was followed by robbery reduction during those hours -- but robbery then increased during daytime subway operations. Nevertheless since the daytime increase was far less than the nighttime decrease the program must be accounted a net success. [109] Thus the possibility of displacement does not refute the value of programs designed to deter crime, including publicizing victim armament. The point is only that careful study, with displacement being taken into consideration, is what is needed if the existence and extent of such net gain is to be accurately appraised.

On the importance of deterring confrontation criminals into non-confrontation crimes

As suggested above, even as to rape it may reasonably be assumed the deterrent effect of a highly publicized firearms training program for potential victims may produce significant net reduction overall. As to other kinds of crimes the deterrent effect may be much greater. The difference is that because for rape there is no non-confrontation alternative, the deterrent on a rapist must be total. In contrast, to reduce the incidence of a crime like robbery the deterrent need only frighten robbers into non-confrontation alternatives such as dealing drugs, stealing cars, burglarizing unoccupied premises, forgery etc. Since these are also serious felonies, such deterrence is not an unalloyed benefit as Prof. Green has pointed out. [109A] But since deterring confrontation crime into non-confrontation crime radically decreases likelihood of victim death or injury, its social benefit is very great.

This point has unaccountably been missed by those who have made the one anti-gun argument that remains viable in light of present evidence about the defensive value of arms possession. A leit motif thoughout their analyses has been that guns are rarely used against burglars because burglars take care to strike only when premises are unoccupied. [110] It appears that a major reason for that care is fear of meeting an armed householder. [111] If so, civilian arms possession palpably and substantially benefits burglary victims by minimizing their risk of injury or death in confrontations with burglars. It is only because few burglaries occur when premises are occupied that physical injury to victims is comparatively rare in burglary. Victim surveys show injury to be quite frequent in the 12.7% of burglaries that involve occupied premises. [112] The deterrent effect of civilian arms possession can be largely credited for the far lower rate of victim injury or death in burglaries than in robberies which are, by definition, confrontation offenses. [113]

Thus programs that promote civilian arms possession palpably serve the public good if the publicity they generate deters robbers into non- confrontational burglary. It is worth noting that such non- confrontantion deterrence constitutes a reversal of Prof. Green's observation that displacement deterrence benefits only gun owners and not society. In this instance civilian arms possession aids society but not gun owners in particular for rarely do burglars know the gun owners' homes from those of non-owners (nor, if the burglar is really careful to strike when no one is home to shoot, would the distinction matter to him). So any reduction in victim injury or death consequent upon this care benefits potential victims in general but not gun owners more than others. [114]

Difficulties and complexities of deterrent effects Though the evidence so far reviewed provides relatively strong support for the deterrent effect of civilian arms possession in the abstract, as to formulating concrete policy it raises almost as many questions as it resolves. Dramatic decreases in confrontation crime have followed in the wake of local programs dramatizing victim arms possession. [114A] But even leaving aside the issue of displacement, two questions suggest themselves: would such programs be legal and practicable if tried on a regional, state or anything beyond the purely local level; and, even if such programs did work in broader application, does their deterrent effect continue over time or is it merely transitory? [115]

Related to, but transcending, these questions is the probative significance of such programs for the broader deterrent implications of an armed civilian population. The gun lobby cites the apparently dramatic effects of the Orlando and other local programs as proving that widespread gun ownership must reduce violent crime. Now at least unless one is a priori opposed to guns it will be intuitively evident that to grow up in an area where criminals are frequently shot by victims would at least tend to disincline people to confrontation offenses. But this intuition is only remotely supported by such local program results as the 90% reduction in Detroit grocery robberies when gun training for grocers led to the well publicized shootings of 7 armed robbers. [116] Perhaps hearing of 7 such deaths over a few weeks time has a shock effect on a fellow-robber that far exceeds the general deterrent effect of having heard of 25-30 such deaths over the entire period in which he grew up. Conversely, perhaps such a shock effect is only temporary; perhaps having grown up hearing of two or three such deaths each year would produce a greater deterrent effect on the prospective criminal's psyche over the long run. But "perhapses" are not evidence; or, rather, they are evidence of the numerous questions that remain after such evidence as exists is evaluated.

Moreover in evaluating these and other questions it must be remembered that a deterrent does not constitute an absolute bar to crime but only a disincentive, something which counters tendencies and creates disinclination. In an area where opportunities for non- confrontation crime are low, the incentive to rob might well outweigh the aversive tendency or disinclination created even for criminals who have grown up routinely hearing of incidents of robbers being killed by their victims. Doubtless widely publicized firearms training for victims (or a series of shootings of criminals by victims) might dramatically reduce the number of robberies for some period of time. But perhaps this result would reflect only an immediate shock effect without lasting impact on robbery rates.

Nor can the evidence as to burglary be heedlessly generalized to suggest that civilian arms possession will have comparable deterrent effects on more dangerous kinds of crime and criminals. In itself the fact that almost 90% of home burglaries occur when the premises are unoccupied suggests that burglars generally want to avoid confronting armed householders. This is confirmed from statements by criminals themselves, including the responses to the National Institute of Justice felon survey. [117] But, again, the deterrent can not be evaluated independent of the incentive. Compare the two in relation to robbing liquor stores versus burglarizing occupied homes: In each case the deterrent (being shot by the victim) is the same yet the robbers' incentive to confrontation is immensely greater. To offset the robbers' risk of getting shot there is the incentive of a substantial cash take. But to off-set the risk a burglar takes by not eschewing occupied premises there is only the prospect of adding to the goods he steals from the home the marginal amount of cash he may get from the person of a householder he confronts. [118] This very real difference in the incentives to confrontations in the two crimes clearly appears in the responses to different questions in the National Institute of Justice felon survey: 74% of the inmates agreed "One reason burglars avoid houses when people are home is that they fear being shot during the crime", but only 58% agreed that "A store owner who is known to keep a gun on the premises is not going to get robbed very often." [119]

These and other results of the felon survey do significantly support (albeit with significant reservations) the intuition that the phenomenon of criminals being repelled by armed victims does deter confrontation crime. In addition to the results just noted, 56% of the felons agreed that "A criminal is not going to mess around with a victim he knows is armed with a gun" and 57% that "Most criminals are more worried about meeting an armed victim than they are about running into the police." Over 80% of the felons felt that a criminal should always try to determine whether his victim was armed, while 39% said they personally had aborted at least one crime because of belief that the intended victim was armed and 8% said they had done so "many" times. [120] "Beyond all doubt, criminals clearly worry about confronting an armed victim" is the summary given by the National Institute of Justice analysts. [121] As they recognize, however, to "worry" is not the same as to be deterred from the activity which causes the worry -although worry may deter even an violent criminal into committing markedly less confrontation crime than he would in its absence. And a risk that worries even hard core violent criminals whose courage is (as we shall see) likely to be fortified by potent combinations of alcohol and illegal drugs, may completely deter the less violently inclined or less experienced or less reckless criminal. Overall the results of the felon survey suggest the deterrent effect of victim armament is a substantial reason why some felons specialize in non-confrontation crime only and eschew the greater immediate rewards of confrontation crime altogether.

Yet the results are both more mixed and more complex than the gun lobby would like to admit. [122] About 40% of the felons claimed that in planning a crime they never even considered the possibility of being shot by a victim -- and almost one-quarter of them said they actually found victim armament an incentive, "an exciting challenge." [123] Some of this can be dismissed as macho posturing. Felons may be able to be more candid in describing the fears of criminals in the abstract than in describing their own. But it must also be considered that a subset of the criminal population which is disproportionately significant because murders and accidental fatalities are so heavily concentrated among them are characterized by a signal indifference to human life, including their own. [124] There is no necessary inconsistency between the attitudes of this subset and indifference -or even attraction -- to armed victims.

Moreover, another and larger subset, the "violent predators", [125] are characterized by very high rates of substance abuse (which is true of the most murderous subset as well). Referring to the sub- groups they denominated respectively as handgun or shotgun predators, the National Institue of Justice analysts described them as "criminal opportunists ... omnibus felons" whose days out of prison are devoted to indiscriminate criminality -- "more or less any crime they had the opportunity to commit." [130] Just as such omnivorousness violates the stereotype that criminals normally stick to some specialty like robbery, burglary or forgery, so does the omnivorousness of their substance abuse violate stereotypes of the simple heroin or cocaine or marijuana user. Predators are likely not only to alternate these drugs with liquor, barbituates etc., etc., but to combine them in various fashions. With their spirits fortified with liquor, cocaine, PCP etc., singly or in combination, the violent predators may be relatively indifferent to the danger of confronting an armed victim. [131] But even if they are not, addicts' desperation to finance their drug habits may make them willing to court that danger.

Clearly worry about being shot by an armed victim did not deter many of the felons in this sample from a life of confrontation crime. Such worries may deter other criminals into non-confrontation crime and it may reduce the rate at which even violent predators engage in confrontation crimes. But the number of violent offenses which are nevertheless attempted prove that many criminals on many occasions can overcome their fears of the deterrent presented both by an armed citizenry and by the police and the prospect of punishment by the courts.

CONCLUSION

This article began with the proposition that both pro- and anti- gun positions on the utility of guns against crime had been arrived at by faith in the period before the existence of credible empirical evidence on the issues. Having examined the evidence that has become available in the last decade it must be concluded that parts of each faith have been sustained:

As to actual defensive handgun uses, the evidence from surveys both of civilians and of felons is that they are much more frequent than has previously been realized. It may tentatively be concluded that handguns are used as or more often to prevent the commission of crimes than by felons attempting them. This should not be understood as suggesting that the decision to resist a felon can be made lightly or that their handguns automatically insulate resisters from injury. The unique defensive value of a handgun is not the only cause for comparatively low rates of injury among gun-armed resisters; as or more important is the wisdom not to resist in circumstances in which this is unlikely to succeed.

As to the gun lobby's vaunted deterrent effect of gun ownership the evidence is even more equivocal. In general (though not without equivocation) it does support the common sense intuition that the average criminal has no more desire to face an armed citizen than the average citizen has to face an armed criminal. Widespread defensive gun ownership benefits society as a whole by deterring burglars into making efforts to avoid occupied premises; and by deterring from confrontation offenses altogether an unknown proportion of criminals who might otherwise be attracted by the immediate profitability of robbery into committing at least a few of them. Even when criminals are not so deterred, widespread gun ownership may frighten them into reducing the overall number of such offenses they commit; and it does frighten them into abandoning some specific offenses -- particularly in areas where special local programs have dramatized the likelihood of victim arms possession. Yet it must also be noted that the possibility that gun ownership reduces the activity level of confrontation offenders is only an unsubstantiated speculation; gun lobby propaganda has exaggerated the deterrent effect of gun ownership by not discounting for displacement effects that represent no net gain in overall crime reduction.

Finally some caveats may be offered on the limited import of the evidence I have reviewed for issues of firearms regulation: clearly this evidence disposes of the claim that handguns are so lacking in social utility that courts should, in effect, ban their sale to the general public under the doctrine of liability without fault. This evidence likewise cuts strongly against severe statutory restrictions based on the belief that handgun ownership offers few social benefits to offset the harms associated with it. But even if strict liability for guns were factually supportable, it is very evident that the courts are unwilling to accept it as a matter of law. [136] Moreover, even if handguns offered no benefits whatever, neither does banning them -- except as part of a policy of outlawing and confiscating guns of all kinds. [137]

What the evidence on crime reductive utility of firearms most definitely does not do is undercut the case for controls tailored to deny firearms of all kinds to felons, juveniles and the mentally impaired. Indeed, Professors Kleck and Bordua, the criminologists principally responsible for documenting that utility, remain strongly supportive of such controls (if carefully tailored not to prevent handgun ownership among the responsible adult population). [138] Moreover it is still possible to argue for going beyond control to the prohibition and confiscation of (all kinds of) firearms if it can realistically be posited that the net gain in reducing suicide, gun accident and certain kinds of homicide might outweigh the reductive effect of civilian firearms ownership on crime.