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The Right to Keep and Bear Arms

David Kopel joins us this week for a discussion on the Second Amendment to the U.S. Constitution: the right to keep and bear arms.

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David Kopel joins us this week for a discussion on the Second Amendment to the U.S. Constitution: the right to keep and bear firearms. Aaron and Trevor introduce the debate over gun rights in America today by asking questions: Why allow people to own guns at all? Aren’t we past that point as a civilization? Does having more guns around actually reduce crime? How many crimes each year are stopped by guns…and how many don’t occur in the first place because criminals think their victims could have guns? Is it worth the risk to have guns in the home? Are public health concerns about gun ownership well-founded? Assault weapons—what are they and why do American gun control groups want to ban them in particular? And if the Second Amendment gives us the right to keep and bear arms, what’s to stop an individual from owning something like a tank or a personal rocket launcher?

Show Notes and Further Reading

David B. Kopel, The Truth About Gun Control (book)

John R. Lott, Jr., More Guns, Less Crime: Understanding Crime and Gun Control Laws (book)

Transcript

Aaron Ross Powell: Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I’m Aaron Ross Powell, Editor of Libertarianism.org and a research fellow here at the Cato Institute.

Trevor Burrus: And I’m Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies.

Aaron Ross Powell: Our guest today David Kopel, Research Director at the Independence Institute, Adjunct Professor of Advanced Constitutional Law at the University of Denver Sturm College of Law, an Associate Policy Analyst at the Cato Institute. He’s the author of 14 books and a recognized expert on firearms policy.

So we’re talking about guns today and I guess I will start by saying – by asking why allow people to have guns at all. I mean it seems like we think of times of large gun ownership as like the Wild West, this uncivilized age when everyone was violent towards each other and had to take their lives into their own hands. But aren’t we past that as a civilization, beyond the point of needing guns?

David Kopel: Well, actually we are now in the Golden Age. The golden in Golden Age is in terms of gun density in this country. Since 1948, the United States had about one gun per three people and now that has increased until we have slightly more guns than people.

Aaron Ross Powell: Where are all these guns? I don’t own a gun. Most people I know I don’t think own guns. Are they just stockpiled somewhere or …

David Kopel: Well, part of it is people are not always out of the closet about their gun ownership. Somebody in New York City might say that same thing and that’s sort of like somebody in say Tulsa, Oklahoma in 1952 saying, “Well, I don’t know any homosexuals.” No, you probably do but you don’t know any people who are – who told you that they are.

So certainly in the Northeast Corridor, one of the more regressive zones in terms of protecting Second Amendment rights, people may be shyer about admitting their gun ownership casually.

Trevor Burrus: Is that – because it seems like the gun owners have been demonized a lot in that way.

David Kopel: Well, they certainly are by some in the press and the anti-gun groups, the Michael Bloomberg groups, the groups like – that was originally called Handgun Controls, now called the Brady Campaign, sometimes say that they respect gun owners or that they – they like the Second Amendment just as much as everybody else. But they also do a lot of demonization and fear and you’re told that gun owners are an inherently dangerous group you should be afraid of.

Trevor Burrus: So let’s go back to Aaron’s first question. Why do we even allow – first of all, why do we allow it and then secondly, should we allow it?

David Kopel: Well, the premise of the Second Amendment and of most of the Bill of Rights is that’s not something that any legitimate government has the power to forbid. So there would be that – like asking, why do we allow the free exercise of religion? And we certainly see cases where the free exercise of religion is abused, where somebody who has sort of a deceptive, false charisma lures people in and gets them into a bad situation in an abusive church for example.

But the declaration of independence says that the reason we have governments in the first place is to protect preexisting fundamental, inalienable human rights which come from the creator and not from the government. So the government may grant you the right to have a – let’s say a driver’s license. But the government doesn’t grant you the right of freedom of religion or the right of self-defense or the Second Amendment right to arms or lots of other rights which are recognized and protected by the constitution but not created by it.

It is wise that the United States follows this policy of protecting human rights rather than trying to suppress them because the evidence I think shows when carefully examined that guns in the right hands enhance public safety and certainly guns in the wrong hands harm public safety. So the sensible policies are the ones that say for that vast majority of the law-abiding public, they should be able to choose to have a firearm if they want for self-protection and we can also have fair and reasonable laws which say that people who have proven that they are not responsible enough to don firearms – for example they’ve been convicted of a violent crime, cannot have firearms.

Aaron Ross Powell: How do we draw that line between right and wrong? Because a lot of the people arguing for stricter gun control are not arguing for banning guns entirely. They just want more control over who gets them. They want a more clearly defined or shrink the category of the people who are considered the right people to have guns, so things like mental health and whatever else. How do we choose as a society who gets to have guns and who doesn’t?

David Kopel: Well, the gun probation law has been trying to shrink the category of people who can and they do as much shrinkage on the margins as they can accomplish at any given time. Sometimes they make legitimate arguments and sometimes those arguments have already been made and accepted and then properly implemented but not enforced.

So for example, you may have situations where somebody has been adjudicated mentally ill and put in an institution to help them for say half a year. That person by federal law since 1968 hasn’t been allowed to own a gun. But often the records don’t get transmitted to the state and national systems that conduct background checks and also along with that, that’s an example of something where if a person was institutionalized when they were 25, maybe by the time they’re 45, their mental health problems have gone and they ought to be allowed to don a firearm again.

Unfortunately at the federal level, there’s no procedure to restore the person’s rights. California is actually on the more progressive, positive side of this because they do have a procedure where after about five years, the person who had a mental health adjudication can at least start a process to have his case reviewed.

Trevor Burrus: It seems like then the presumption should be that you can own a weapon that’s defeasible from the government side as opposed to some people who would like you to have to prove to the government you’re allowed to open a weapon. The other side is better because it’s a natural right, correct?

David Kopel: Exactly. It’s not a privilege that’s granted by the government subject to conditions. But it is a right and which is not to say that in the modern United States, it’s impossible for there to be any kind of a process to go through it on the way to exercising that right, as long as that process is fair and accurate and expeditious. So I think the vast majority of people would say, well, when you go into a store to buy a gun and under the national criminal instant background check system that we’ve had set up in this country since 1998, the gun dealer contacts the state point of contact – you know, the state police or the FBI and you can do a computerized records check on that individual quite quickly within a matter of seconds when the system is working properly.

That additional time which might be no longer than the time it takes to process the credit card, people would I think accurately say that doesn’t violate the Second Amendment right even though you come in having the presumption of the exercise of the right. This step along the way is not an infringement of that.

Aaron Ross Powell: Let me ask about this gun ownership as a right question because earlier you compared it to – First Amendment to religious practice, right to religious practice, right to religious expression and it seems like there’s – we can distinguish those in some way. Like, they’re not quite the same because we don’t – we tend to think of freedom of speech, freedom of conscience, freedom of religion as these really important parts of expressing who we are, of being the kind of people we want to be, of personal autonomy that seems to go much deeper than gun ownership.

We don’t tend to think of gun ownership as something as central to our sense of selves as our religious faith or our beliefs.

Trevor Burrus: Or perhaps even to add on to that, some people might grant that there’s a right to self-defense in the sense of – you know, someone jumps on top of you and starts pummeling you. You can fight back. But how do you get from a right to self-defense to the right to own an assault weapon? There’s a bridge there, right? Maybe an assault weapon is not as important as religion.

David Kopel: Well, the right of self-defense was in the view of the classical philosopher. The most – John Locke, Grotius, Pufendorf and many, many others. The most fundamental of all rights, it’s the right to the integrity of your body. Being able to go to the church of your choice is a very important part of one’s self or to choose not to go to any church. But you can’t make that choice if on Sunday morning – if on Saturday afternoon a gang of people came and beat you up and killed you and likewise the right not to be raped is a core right of individual autonomy, integrity and choice.

So self-defense almost necessarily has to be the most fundamental right of all because if you don’t have that, then it’s impossible to exercise any of the other rights.

Aaron Ross Powell: Isn’t this though what we have police for? I mean this is the social contracts theory we tell, right? We lived in the state of nature where everyone had to defend themselves from roving bands of marauders. But then we bandied together and created this government so that we could then have the government protect our rights instead of us each having to do it for ourselves. So we got cops to protect us from the mobs and the rapists.

David Kopel: Well, and sometimes they do and it’s great. I think police officers, sheriffs, deputies and our law enforcement system in the country has a huge number of really hardworking, good citizens who do their best to protect people. But they’re not around all the time. When somebody is burglarizing your house and coming in not just to take your iPad but to assault you, that’s fine.

You can call the police on the phone and they may come as fast as they possibly can. But the data we have from 911 call centers and cities all over the country, for what they call their priority one calls, life is in danger, that level, their highest level, response times on the average are in the best and most ideal cities, 5 or 6 minutes; up to 12 or 15 minutes in some other cities.

So you have that time when you’re the first responder. That’s just a fundamental fact of responsibility. The reason we – I didn’t go to medical school. We have doctors as we have police officers, people in society who are specialized and help us. I wouldn’t – I would much rather pay a doctor to diagnose me and tell me what medicine to take in some situations than I would myself. But likewise with your healthcare, you’re also your own first responder.

If you get stuck in the middle of the night, you may have to take care of yourself immediately to stay alive long enough to get to the hospital in some kind of emergency. Whatever the situation is, the responsible adult has to be the first responder for himself or herself and the people in her care like children and family just by necessity. We don’t have one police officer per person.

Trevor Burrus: That’s an interesting analogy. You should be able to tie a tourniquet on your own leg in those situations, even if you’re not a professional, and you have the ability to obtain reasonable tools of self-preservation in even a medical context, right?

David Kopel: Exactly. It’s all back to that fundamental right of it’s your body. You have the right and the duty to control and protect it.

Trevor Burrus: Let’s go back to something you mentioned previous which I’m sure many of our listeners have heard before which is a core part of this. More guns equal less crime, which is something that is said a lot. You’ve mentioned it previous. A lot of people would say that just seems obviously wrong and the only people who have said …

Aaron Ross Powell: That’s counterintuitive to say the least.

Trevor Burrus: Yeah, the people out there commit crimes because they have access to a violent weapon or at least more violent crimes. So how could it possibly be the case that more guns can cause less crime?

David Kopel: Well, it may not be that more guns up or down directly causes changes in crime. So we have over 300 million people in this country and we have over 300 million guns. Now suppose you change that drastically. Suppose we went from 300 million guns to 400 million guns overnight. You know, just to have all the guns multiplied like – a multi-celled organism. You know, some of them like clone themselves.

Trevor Burrus: The Tribbles in Star Trek. Is that what they’re called?

Aaron Ross Powell: Exactly. Or imagine otherwise that they did a reverse thing. So some of the guns merged with each other and now you had – instead of one guy who had three guns, now he has two. So we suddenly went down to having 200 million guns instead of 300 million. My guess is that that drastic change plus or minus 100 million in the gun supply would have very little discernible effect on the crime rates up or down. What we can say we know for sure is that major increases in firearms supply and density are not associated with increases in crime. The gun supply in this country has increased massively by over 100 million over the last 20 or 25 years.

In that time, we have seen crime go down drastically including violent crime and including gun crime. In fact gun crime declining more so than violent crime in general. Now that doesn’t prove that having more guns in the hands of law-abiding citizens led to a decline in gun crime. But it certainly shows that having increases in guns is not associated necessarily with increases in gun crime. It depends on whose hands they’re in.

If you put more guns in the hands of more law-abiding people, it’s not going to turn those people into criminals. That’s one of the big debates in the issue. Some people think that guns make people crazy. Guns cause people to become criminals.

Aaron Ross Powell: Can I quickly ask? You say gun crime. Is that different from gun fatalities? Because those people, you give lots of people guns. They may not – the law-abiding people may not start committing crimes but there could be more accidents, accidental shootings, things like that.

David Kopel: Sure. Let’s split those into two categories. On accidents. Our peak year, since we – we have data on gun accidents going back to the late 1940s. Our peak year per capita for gun accidents was – per capita was in – about 1973 or so. Since then, the gun accident rate has fallen by approximately 90 percent and during a time when we’ve roughly tripled the national gun supply.

So it’s indisputable that more guns does not cause more gun accidents per se. We’ve made a lot of progress and improved safety training over the last 30 or 40 years. One of many examples is the National Rifle Association’s Eddie Eagle Program. Eddie Eagle is a character like Smokey the Bear who teaches kids safety and that Eddie Eagle has been taught to literally tens of millions of schoolchildren and they have the characters dress up in the Eddie Eagle costume and they have coloring books and all these things. It’s very straightforward message.

If you see a gun, stop. Don’t touch. Leave the area. Tell an adult. Of course we have other things that have also made people more safety-conscious about guns and partly I guess is a fact of greater economic prosperity. There are now more gun owners who can afford gun safes which reduce the chance of an accident.

Hunter safety training was – and actually hunting accidents are approximately half of all fatal gun accidents. Hunting accidents have also declined drastically because starting with New York in the late 1940s, new hunters at least have had to get hunter safety training. I went through it in Colorado. They have – it’s a great program and teaches you all kinds of things about accident avoidance. Not just about gun accidents but how to avoid boating accidents, how to get in and out of the canoe without falling in the water and then drowning perhaps.

So there are all kinds of constructive, positive things that have happened and that’s why the gun accident rate is down by I believe 88 percent in general and 92 percent among adults – among children over the last 40 years. You would be hard-pressed to find any other social problem in this country, which has declined so drastically as gun accidents.

I was speaking at a continuing legal education program a few years ago to some – a group that is basically elite corporate lawyers of the Northeast and we were having a gun debate. I said, “OK, raise your hand. How many gun – I’m going to give you a number. Tell me if you think this is about – how many gun accidents there are involving children, ages 0 to 14 per year.” You know, a million and 100,000. The answer meant – the large majority thought the number was at least in the tens of thousands or more of fatal gun accidents involving children annually. The number actually is a few dozen and keeps declining even at that level.

Trevor Burrus: Let’s go back to crime then. That’s very interesting. I think that is true. There is definitely a sense that a gun in the home is like having a snake on the ground that you just keep in your house. So if we would – decline the accidents. But how about crime? Because we were talking about how guns can possibly decrease crime and they said they don’t make normal people criminals. They don’t turn a marginal person into a criminal. But do criminals really react to guns? Are criminals crazed enough to not actually care whether or not someone has a gun?

David Kopel: Let’s talk first on the gun in the criminal’s hand. All the things that make a gun useful for self-defense, it’s portability. It’s the fact that you can use it as a distance. That’s that really makes any – I know you can use bows and arrows at a distance too. But guns are a lot easier for most people to use effectively and well than is archery equipment.

A gun in the hand can be harmfully-empowering to a criminal. Let’s take a scrawny 16-year-old who wants to get some money by robbery. Maybe he can find an old lady walking down the street alone and he can physically threaten her and then successfully rob her. But against a tougher target, let’s say a liquor store, if he just goes in …

[Crosstalk]

David Kopel: Yeah, and demands money, he could – with his bare hands, he could demand money from the old lady. He probably wouldn’t succeed with that at the liquor store. But if he comes in with a gun, then that changes the equation. So he might be a more …

Trevor Burrus: Likely criminal.

David Kopel: Exactly. And you can imagine all kinds of situations that are like that. So that’s why it’s important that there be policies to not only arm or allow the choice of armament for the law-abiding but also to disarm the dangerously non-law-abiding. In terms of whether guns are a deterrent to criminals, one way we can find this out is – and it has been extensively – is by asking criminals.

The National Institute of Justice funded studies of incarcerated adult felons in 11 different state prison systems in the 1980s and among the many things that were studied in the survey was attitude toward guns. Where did you get your last gun, things like that. Have you ever personally decided not to commit a crime because you were afraid the victim was armed?

There was a very significant percentage of criminals who said yes and then they asked in general. Do you think …

Trevor Burrus: I think it was 42 percent actually. It’s a very large percentage.

David Kopel: Yeah, personally. And then do you think criminals in general are reluctant to attack people they think might be armed? And a huge majority said that. Another study was done in St. Louis of active burglars, not the ones who were in jail who had gotten caught like the first National Institute of Justice say, but people who were – I suppose the cream of the crop of St. Louis burglars because they were career burglars who were outdoing it and …

[Crosstalk]

Trevor Burrus: You guaranteed them anonymity I guess.

Aaron Ross Powell: But you’ve got to find them first, right?

David Kopel: Well, that’s what …

Trevor Burrus: That’s why we call Batman to find Catwoman. It’s the same type of thing, yeah.

David Kopel: Well, some high end sociologist really have the skills like good journalists, street reporters do, is they know how to network and talk and meet some people and then you talk to one guy and then meet some others and you network. So they did the study of over 100 currently active St. Louis burglars and this was also – what they found is very consistent with prior studies that have been done of incarcerated burglars or easier to find.

The American burglars’ biggest part of the working day is casing the joint, is observing the potential target and making sure no one is home. That actually takes way more time than getting in and out and taking the stuff.

American burglars work very hard at this because according to the burglars, they’re very afraid of getting shot if they enter an occupied residence. It is by far their largest occupational hazard and the risks of it are at least as high as the risk of getting caught and end up going to jail, which you figure if that’s a deterrent, I might go to jail. Well, I might get shot is even more the immediate deterrent and that’s one of the reasons why in the United States, the – our rate of – when you have a burglary of a home, what fraction of those burglaries take place when the victims are home? Well, in England, the majority take place when the victims are home …

Trevor Burrus: Because that time, I’m thinking, right, of course, they’re sleeping …

David Kopel: Well, they’re most likely – if you want a victim at home, you have a better chance of getting them once everybody is at least home for dinner. The English burglars prefer this because they get – wallets and purses will be home and therefore you can get cash and unlike stolen goods, which you have to sell at a discount and are – have some difficulty in carrying away, cash is great. You get 100 percent of the value of the cash immediately. An enormously high burglary rate not only for the home invasion percentage but the total burglary rate in England is extremely high where the government more or less forbids people to own guns for self-defense and makes gun ownership in general extremely difficult.

In the United States, the studies show that only a quarter or less of home burglaries are against occupied residences because the – most burglars try to stay away from them because of the occupational hazard of encountering an armed homeowner.

Trevor Burrus: Well, I think someone then would say, OK, shotguns. We often hear this—Joe Biden’s favorite weapon is a shotgun—maybe even handguns. But that’s OK. It’s easier to own shotguns in Australia and other places to Europe. But why – if we’re going to have – protecting people in their homes, do we need to give them these weapons of war, these assault weapons, these things that are only good for military purposes? How does that add to the home defense or self-defense equation?

David Kopel: Oh, well, genuine weapons of war wouldn’t, which is why for example you wouldn’t have a good Second Amendment argument to say, “Well, I would like to own a bazooka or a nuclear weapon or a tank, a large quantity of poison gas. I need some anthrax for home defense,” or for that matter, according to the Supreme Court—machine guns, or sawed off shotguns.

Trevor Burrus: Machine guns meaning when you hold on the trigger, it releases a stream of bullets.

David Kopel: Yeah, exactly. You press the trigger once and just keep your finger squeezed and bullets will come out continuously.

Trevor Burrus: Wasn’t that what an assault weapon is though?

David Kopel: Now, that is a deliberate lie invented by the gun prohibition lobby. You can trace it back to a memo by a guy named Josh Sugarmann who now runs the Violence Policy Center and in 1988, he was working for a different anti-gun group and he put out a memo saying – this is not a secret memo. You can find it on the internet.

Sugarmann explains that the media has gotten bored with our handgun ban stuff. We gave it a good try. We got as far as we did but …

Trevor Burrus: We got HCI which was Handgun Control Incorporated.

David Kopel: Look, we’re just not getting traction on this anymore. So we need something new. Let’s do assault weapons and as he said, the public and the press will think if it looks like a machine gun, it is a machine gun. That was the whole – the strategy of Abraham – testing Abraham Lincoln’s theory and Sugarmann certainly proved you can fool all of the people some of the time and for a while, he fooled the majority of the people on this issue.

But the fact that a gun looks like a machine gun doesn’t mean it is a machine gun. You cannot as an observer look at a picture of a gun on the newspaper, see the internal mechanics, which tell you whether it is a machine gun or not. A machine gun – so the most popular rifle in the history of the United States is the AR-15 rifle.

Trevor Burrus: Which is produced by a variety of companies, right?

David Kopel: Right, originally – yes, came out in – introduced in 1964. So it has been around for quite a long time, extremely popular, very, very mainstream American gun. It is a semiautomatic. It fires one bullet each time you press the trigger.

Trevor Burrus: And you don’t have to cock it in between the bullets.

David Kopel: Well, that’s right. The concept of a semiautomatic which ejects the empty shell casing using some of the bullet energy from the gun powder explosion and then loads a fresh round into the chamber. That has been around since the 1890s. Semiautomatics are today 82 percent of all handguns that are produced in the United States and are a large fraction of rifles, one of several popular rifle types.

So the fact that a gun is a semiautomatic means it’s using a technology that is now roughly about 120 years old, not some kind of new fancy high-tech idea. Just with continuation of something that has been with us a – before anyone listening to this podcast was born and probably before their grandparents were born. That’s how old semiautomatic technology is.

But yes, some semiautomatics look like automatics. All the difference in the world, I mean – between an automatic and a semiautomatic is – once said in an oral argument to a court on this issue which the judge I think found amusing, you know, there’s a difference between, Your Honor, if I called you a wit versus if I called you a half-wit. So the difference between automatic and semiautomatic is enormous and American law has always consistently at the federal level – almost always. So yeah, machine guns are one thing and other guns are a whole other thing.

The guns that fire one bullet every time you press the trigger, we’re going to put them in one category and the guns that fire an infinite number of bullets, as long as you keep the trigger pressed, we’re going to have a separate category for them.

Trevor Burrus: So the assault weapons ban of 1994, we hear a lot about that and it gets discussed every time because it seemed like these AR-15s get used by school shooters and other mass shooters which maybe is just a reason to take them away anyway. But we did that with the assault weapons ban. What did that ban and what did it do?

Aaron Ross Powell: I guess what is an assault weapon? Is there a difference between semiautomatic rifles and assault weapons?

David Kopel: No. The objective of the gun probation lobbies, which exist not only in the United States but other countries, is to ban as many guns as possible under the currently achievable conditions. So you have some countries which have outlawed all semiautomatic rifles. In the United States, that is not currently politically feasible. So there’s an effort to pretend that oh, some semiautomatic rifles are OK, but others are really bad.

So what’s the difference between them? Because in the internal mechanics, how fast can you fire? One semiautomatic is going to be just about the same as any other semiautomatic. So you end up with things based on cosmetic features or things that have nothing to do with the gun’s rate of fire. So for example, the – Dianne Feinstein’s assault weapon ban that was enacted in 1994. One of the things that makes something an assault weapon is whether it has a bayonet lug on it because that means, oh, this gun is military.

Well, the number of drive-by bayoneting, drive-by crimes in this country has been very low for a long, long time, at least since the Civil War, maybe before that.

Trevor Burrus: That’s horse-by bayoneting.

David Kopel: Yeah, yeah, that’s right. Yeah. So why is a gun that has a bayonet lug on it some kind of awful thing that no reasonable person would ever want to own? And then you take that same gun and take the bayonet lug off and oh, well, that’s a nice happy sporting weapon. According to the definition in the Feinstein-Clinton assault weapon ban which congress I think rightly led sunset in 1994 and then when we had this …

Trevor Burrus: Or 2000 …

David Kopel: 2004, right, an act in 1994, sunset by its own terms in 2004. New York, Connecticut where the governors and Michael Bloomberg exploited the Newtown murders to try to ram through successfully gun ban legislation. What gets banned is – oh, does the gun have a folding stock on it? So that you can – if you’re taking it out for hunting, you can carry it more easily on your back or an adjustable stock.

Lots of guns these days now have an adjustable stock. A stock on the long gun is the part that you hold up against your shoulder to secure the gun and have a solid point of contact for stead aim. Well, not everybody in this country is the same height or has the same arm length. So, manufacturers have been making stocks adjustable these days more and more. So that if you’re 6’6” tall, you would have the stock be longer because your arms are longer for the proper fit. On the other hand, if you’re 5’3”, you would have the stock be shorter.

That according to Connecticut and New York is some terrible thing that transforms a nice semiautomatic gun into an evil assault weapon. So the definitions are utterly irrational and they make sense only from the point of view of lobbyists that say, “We want to ban as many guns as we can. How inclusively can we write this definition?”

Even in New York today, we still can’t be on all semi-auto rifles. So we will just define what we call an assault weapon as broadly as we possibly can and all the better if, as in New York, the governor forces the spineless legislature to vote on the bill before they’ve even read it.

Trevor Burrus: It seems like you hear this a lot because one of the things that I’ve heard them say – say why are we banning guns that are used responsibly 99.9 percent of the time? And they often say it’s a start almost as if …

David Kopel: Yeah.

Trevor Burrus: … you know, showing their hand that they want to get rid of all of these guns. Do you think that that’s true? Do you think that despite them maybe saying sometimes that we don’t want to ban all guns, do you think that many of the prohibitionists actually do want to ban all guns?

David Kopel: Their logic has no stopping point. But I would also say that if you – I’ve met a lot of the folks and the gun prohibition lobbyists over the years. Some do want to ban everything eventually, although they recognize they might not get there within their own careers and others sincerely would not. They would think that oh, there is some category – they might not have an exact definition but I think there’s at least some category of nice gun – you know, rifles or shotguns for hunting that people ought to be allowed to use to have under at least some circumstances.

But what we see in other countries is there’s never any – the – an individual anti-gun lobbyist might be satiated. But the movement itself can never be because as long – you have some famous atrocity and so you crack down on gun owners, on law-abiding gun owners and then ban a larger category of guns. OK. Well, that keeps things satisfied for a few years. But then there’s some other crime and – or an accident or whatever.

So then there’s this new thing. Well, we have to do something. OK. Well, we’ve already banned A, B and C. So now it’s time to ban D, E and F. You just keep on going. So that’s why I think the pro-gun groups are right to say we are not going to accept the banning of anything else, period. They draw a line on the sand on that.

There’s this media myth that the NRA, which is by far the most influential of the pro Second Amendment lobbies, they never compromise. They’re totally hardcore and all that.

Trevor Burrus: And that they opposed everything before, right?

David Kopel: Right, which is …

Trevor Burrus: It’s just wrong.

David Kopel: It is historically wrong and the NRA may have its idealistic rhetoric. But then like any organization that actually is effect in a legislature, you have to compromise and do things and sometimes you accept more of a restriction than you would want in exchange for improving on other things.

That’s for example how we got license to carry in most of this country now is the laws that we have on how to get a permit to carry a gun for lawful protection, which are typically fingerprinting, safety – a fingerprint-based background check, biometric check. Mandatory safety training and even on top of that, some discretion by local law enforcement to deny a person who maybe has a clean record but there may be something identifiably wrong with it.

Trevor Burrus: The town drunkards or like that.

David Kopel: Exactly. The town drunkard, the town nut who’s – you know, the naked guy who sits in his lounge chair screaming about the Martian invasion all day but has never been committed to a mental institution. The NRA wouldn’t necessarily favor all of that in a platonic ideal world but they’ve accepted that as to get an effective licensing system up and running. I think that’s good.

But what they do draw the line on, in an absolute sense, is no gun bans. We’re not going to accept anything that bans more stuff.

Aaron Ross Powell: You mentioned other countries. But isn’t it the case that there are a lot of other countries say in Europe that have much stricter gun control laws than we have in the US and also have much lower rates of gun violence? The United States seems to be – we’ve got a lot of guns and a lot of gun violence.

David Kopel: Well, yeah, and of course that’s the frame that the gun prohibition groups want you to say that in. If you’re attacked by a rapist who has a gun, is that – what’s the difference from being attacked by a rapist who has a knife or three rapists who have their hands and feet and beat you up and severely injure you?

England, and especially Scotland, is a much more violent country than the United States. These days when you look at total major violent crime, the four classic categories of homicide, rape, aggravated assault, and robbery, robbery being an in-person confrontation for the taking of money. Now in 1925, you could say England had a much lower crime rate than the United States and had much more repressive gun laws.

Today, England’s gun laws have gotten vastly more repressive than they were in 1925 and its violent crime rate has skyrocketed. So it is a – for total violent crime, it is a much worse place than the United States.

Its gun homicide rate is lower but it is not a more – it is not a more – it is certainly not a safer society at all. Then you add on top their burglary problem, which doesn’t – is not – well, counted as major violent crimes although often burglaries do lead to violent crimes against people in the home.

Trevor Burrus: But the lethality rate, that might be important too. We might want to say, OK, people would rather have assaults with knives than guns, right?

David Kopel: Yeah.

Trevor Burrus: In terms of lethality. So maybe they’ve solved one problem of having more people robbed but few people dying from it.

David Kopel: Yeah, and then that’s essentially the argument of Franklin Zimring, one of the most eminent American criminologists and really the – going back to the late 1960s, sort of the intellectual founding father of pro-gun control social science research and Zimring is certainly not a junk scientist or anything like that. He has got a book on that called Crime Is Not the Problem, which is – he says don’t think so much about the crime rate. Think about the lethality rate and if we can just have more bar fights that end in knife brawls, instead of shootings, that would reduce our homicide rate.

He has a point on that. If you want to avoid getting shot, one of the top things on your list should be don’t go to sketchy bars on weekend nights. Get really drunk and then get into confrontations with similar people. There are a lot of homicides and knifings and shootings and other things that come out of those kinds of situations and he’s absolutely right.

If we had more knives and fewer guns in those situations, it would reduce homicides. The question is, how are you going to go about doing that without – if you had a magic magnet that took all guns away, that would do it. We haven’t invented the magic magnet yet. But failing that, the problem is the kind of folks I mentioned who get into these confrontations with each other, are the one who are least likely to be affected by the laws.

Every state in the country, it’s illegal to be in actual physical possession of a gun like wearing it on your body while you’re intoxicated. Well, they were already breaking that rule and they’re the people who have the easiest access to the black market. The fact is the gun supply that exists in this country and with the ease of homemade manufacture of guns, a black market is very likely to supply at least all of the – exactly the kind of people you would prefer to disarm first in the Zimring scenario.

There’s a lot of talk these days about 3D printed guns and we will see what happens with that. But the fact is you can manufacture. If you know how to run a home – machine tools at home, it is possible to build function in guns. Around the world, West Africa, Ghana, Philippines, Micronesia, there are people who are building large numbers of guns under conditions a lot more difficult than the guy – they are so far below what the average guy who – you know, has some machine tools in his garage can accomplish.

I mean they’re using literal wood fires to heat the metal things like that and building effective firearms. In those countries as well, it all depends on who has the guns. In some of these countries, the government bans guns because they’re authoritarian and then don’t want any tribes other than the – whatever tribe is running the country to have any power. In some of these places, you see people build guns. They’re using them for hunting to feed their families. In other places, people use guns for negative purposes.

Trevor Burrus: Well, it seems like most of the people who would start building guns would probably be on the criminal side than on the law-abiding side.

David Kopel: Well, let’s say – yeah, in the United States, sure …

Trevor Burrus: In Ghana I would say. I mean …

David Kopel: Well, most of the people who were going to Christian churches in Iran and China are – maybe criminals too with the sense that the government has outlawed something that’s a fundamental human right and people are evading that. But I don’t think that’s a true crime.

Trevor Burrus: Let’s go back to mass shootings which usually are the things that catapult the gun issue into the media, into the public eye, and you hear a lot of discussions of gun-free zones and making sure that we have gun-free campuses and making sure that we don’t allow guns in these areas or try to get rid of certain weapons. In terms of mass shootings, how does that affect the debate – how should that affect the debate and how can we best deal with mass shootings?

David Kopel: Well, mass shootings like political assassinations, President Kennedy and then Martin Luther King ad Robert Kennedy in the 1960s, these are the core drivers of the political success of the Gun Prohibition Movement. They most of the time don’t get very far on their issue. But what gives them that spike and that window of opportunity is an atrocious, nationally – internationally famous crime. So that’s why they used Newtown which took place in mid-December and by January, the New York state legislature had passed a bill without even reading it because it was such an emergency. A terrible bill, a bill that – for example harmed law enforcement – it made it illegal for law enforcement officers to have arms at school.

Well, a lot of schools have school resource officers and safety officers and that would be – it’s not like the legislature actually thought we want to ban law enforcement officers from having guns at school. They just wrote the bill so fast and actually Fredric Dicker of the New York Post reported this, is basically nobody had a clue what was going on and they were just – the governor’s office was taking its drafting information from the Bloomberg Group and from the Brady Organization.

Those people know that they don’t like guns. But in terms of that detailed, careful, legislative drafting, of how are you going to fit this in to New York’s enormous body of statutes, they didn’t take the time or have the ability to craft that properly.

Gun-free zones I think are fine as long as they really exist. So let me give you an example of what I think is a proper gun-free zone. In Colorado, we like most of the country have a fair process for law-abiding adults to get a permit to carry a handgun for protection.

The state’s statute says, “OK. Well, what about government buildings?” and the answer is if a government building wants to ban license to carry in there, they can. They can have a gun-free zone. They just have to make it real, which means you – at every public entrance, you have metal detectors and you have armed guards there and therefore that will work to say, OK, now – now, once you’re inside the Department of Motor Vehicles, nobody is going to be carrying a gun because we’ve checked to make sure about that.

What is harmful, drastically harmful, is the pretend gun-free zone, where you put up a sign that says “No guns allowed”. Well, the only people who obey that are the law-abiding people and it means for the criminal, you’ve got a great opportunity of guaranteed unarmed victims or at least the vast majority of victims will be unarmed because they’re law-abiding. They followed the gun-free sign.

Mass murders seem to happen a lot more often in gun-free zones than in other places. One of the reasons you don’t hear about the mass murder that happened in the non-gun-free zone was because often the criminal got shot at the beginning.

Trevor Burrus: Has that ever actually happened?

David Kopel: It happened two days before Newtown at a mall in Oregon where a guy with a rifle – crowded mall, Christmas season, all that, guy with – apparently visibly mentally disturbed goes and starts shooting at a mall in Oregon. A citizen with a gun shoots him and …

Trevor Burrus: No story.

David Kopel: No national story. Wrote an article in Los Angeles Times in January of 2013 which cataloged about a dozen of these incidents, all the famous mass murders you never heard about that because they never became mass murders because they got stopped earlier by law-abiding people, sometimes law enforcement officers than often not carrying firearms. More recently, there was an incident in Philadelphia where a psychiatric patient started shooting people. He was absolutely – everybody says in retrospect clearly on a rampage. He would have killed dozens or more if he could have.

Well, it turned out that a psychiatrist in the hospital illegally had a gun. He was violating that hospital’s gun-free zone policy. He had a gun and he shot the criminal and saved dozens of lives. The hospital fortunately did the right thing and said, “Well, actually yeah, you did violate our policy. On the other hand, you saved probably 50 of our employees from being killed. So …”

Trevor Burrus: We will let that one slide.

David Kopel: We’re not going to fire you for this one.

Aaron Ross Powell: We’re almost out of time. So I was hoping – maybe you could close by giving us a sense of where Second Amendment jurisprudence is right now.

David Kopel: The lower courts are working on adjusting to the new world of the Heller and McDonald decisions from the Supreme Court where the Supreme Court said, hey, you know, that thing that comes after the First Amendment, that’s really part of the law too and you’ve got to follow that and as Justice Alito wrote in McDonald, the Second Amendment is not a second class right. It is as fundamental as the other rights in the Bill of Right including the First Amendment and the courts should treat it with equivalent respect.

That doesn’t mean every First Amendment rule applies to the Second Amendment. But it means you – that’s the judicial attitude is when you hear a freedom of religion case, you start off by thinking, oh, religion is really important. That’s an important American value for people to have freedom of that. I, as a judge, I’m going to look carefully at the law rather than just lazily accepting a government’s justification for it, which might not necessarily have much factual or logical support.

Some courts have followed what the Supreme Court has said and that means they’ve taken a rigorous and serious look when gun laws have been challenged and sometimes they uphold those gun laws because the law has properly passed the tough but not impossible tests that exist in our jurisprudence for having regulations or restrictions on constitutional rights and other laws the courts have said fail.

Those are the good courts. There have also been some bad and lazy courts which are just recalcitrant as some judges knew that Brown versus the Board of Education was the law of the land but they were not exactly enthusiastic about making it apply within their jurisdiction. We have a wide – so we have a variety of judicial responses.

Trevor Burrus: Are you hopeful though?

David Kopel: It’s a generational thing in part. Federal judges are not on the cutting edge. They’re not designed to be. They’re not on the cutting edge of social change and new attitudes. The fact that a bare majority of the Supreme Court ruled in favor of the Second Amendment being a real, existing, actual right. In 2008, came long after – well, the American public had always thought the Second Amendment was a real individual right and even in the elite academic world, that that idea which was sort of widely accepted in – for much of our country’s history but then became anathema as of say 1975. The academic world had long since returned to recognize that the Second Amendment guarantees some kind of meaningful individual right and the Supreme Court came along last.

I don’t think the courts want to be the vanguard of social change these days. But they rather reflect the consensus that has already emerged. So you have some federal judges who came of age in law school in like 1973, when if you’re in constitutional law class and somebody raises their hand and say, “Well, professor, what about the Second Amendment?” and the professor would mock. Oh, everybody knows that’s just a collective right. Oh, really? What case says that? I don’t know! But what are you? Some kind of right-wing crazy nut? Maybe we will kick you out of school except we don’t have policies to kick mentally ill people out of school. We’re going to change that.

You couldn’t even discuss it legitimately and now of course you can in law schools. So we have courses on the Second Amendment. I’m co-author of the first law school textbook on the Second Amendment. So look at women’s right. Ruth Bader Ginsburg, the first textbook on women’s rights, as a topic worthy of being examined in law school, came out in 1971. You couldn’t have said – you couldn’t have made women’s right arguments which are now very mainstream in constitutional law in a law school in 1933 or you would have gotten mocked just like making Second Amendment arguments in 1973.

But over time, the judiciary will change and we will have a new, more progressive pro-rights, hopefully, judiciary that comes along. But in the meantime, there are plenty of good judges who are conscientiously trying to follow Heller and McDonald and that sometimes leads to the more inappropriate anti-gun laws being recognized as unconstitutional.

Aaron Ross Powell: Thank you for listening to Free Thoughts. If you have any questions or comments about today’s show, you can find us on Twitter, @FreeThoughtsPod.