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Thursday
Jan032013

Two Fantasies 

I have hesitated about writing a piece on gun control. In the wake of the Sandy Hook shooting the amount of emotion swirling around this is so deep and turbulent that it is almost useless to use reason to analyze it. I’ll stay away from the policy end of things for the moment, but I’d like to address a couple of points in this debate that have been bothering me. They both involve what psychologists call motivated reasoning – starting with the desired result and consciously or unconsciously working backwards to that point. They also both involve a 35 year campaign by firearms manufacturers to maintain sales volume despite a declining customer demographic. These manufacturers have a problem – they make discretionary goods that can easily last a century, and they are up against market saturation. Through a number of mouthpieces, notably including the NRA, they have been promoting two fantasies: The individual rights interpretation of the 2nd Amendment and the concept of personal self-defense with a firearm.

 

The Right to be a Joiner

The Second Amendment was written to address a major concern in the 18th century that is essentially irrelevant now. It defines a right that is neither entirely individual nor entirely collective.

The recent Heller decision by the Supreme Court used a tangled and sometimes self-contradictory train of reasoning to establish, for the first time since 1789, an individual rights interpretation of the 2nd Amendment. Keep in mind that even the National Rifle Association itself didn’t start promoting this interpretation until its schism of 1977. The president of the NRA testified before Congress during deliberations on the National Firearms Act of 1934. A congressman asked him whether there were any 2nd Amendment issues with the law and he said that he hadn’t even considered the possibility. Former Chief Justice Warren Burger, a conservative Republican, called th e individual rights interpretation “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.” Why would Justice Burger say this?

Let’s look at the text of the 2nd Amendment. It is important to see both what it does say and what it doesn’t.

"The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."

Hmmm, that’s not quite right. That is the original text of the amendment, as submitted by James Madison. It was later reversed and edited down to the form we know today. The first section is familiar – it is now the second clause.

Look what Madison says in the rest. First, that a well armed and well regulated militia is necessary for national security. Second, that people whose religion forbids military service will be excused from “bearing arms,” expressed as synonymous with “military service.” No doubt it was a concession to the Quakers. It gives us a window into what the men who wrote the Constitution meant when they wrote “bear arms.” The earlier constitutions of Vermont, Pennsylvania and New York have near duplicate religious exceptions, using “bear arms” as synonymous with “military service.” Steven Krulick makes the point (with a few too many capitalizations), that “bearing arms” had a military meaning in 99.9% of contemporary citations.

Most of those involved in writing the Constitution viewed standing armies with suspicion. They had good reason at the time. Europe was dominated by monarchies with large standing armies doing the bidding of the monarchs. Despite the generally poor performance of the militias during the American Revolution, many viewed them as the small-r republican solution to our military needs. A number of the 18th century state constitutions make mention of the militia being preferable to a standing army.

I should also note that at that time a militia was not an ad-hoc group of self-selected gun owners. Militias were organized by municipalities, authorized and mobilized by state governments, and often financed and equipped by state governments as well. The Constitution federalized the militia in Article 1, Section 8, giving Congress the authority to “provide for organizing, arming, and disciplining the Militia” and also “for calling forth the Militia…”

Then there are the dogs that didn’t bark. Many people read into the 2nd Amendment the concepts of self-protection and resistance to tyranny. The men who wrote the document neglected to put those words in the amendment. Quite the opposite, in the case of resistance to the government. In Article 1, Section 8, the three reasons for the federal government calling forth the militia were “to execute the laws of the Union, suppress Insurrections, and repel Invasions;” It is logically impossible to reconcile suppressing insurrections with fomenting insurrections. It is odd that I even had to write that last sentence, but for some people out there I think I did.

As for self protection, that is the dog that really shut up on us. Three earlier state constitutions mention the right to bear arms, and two of them in reference to self defense.

North Carolina: “XVII. That the people have a right to bear arms, for the defence of the State;”

Pennsylvania: “XIII. That the people have a right to bear arms for the defence of themselves and the state;”

Vermont: “XV. That the people have a right to bear arms for the defence of themselves and the State;”

 The other early state constitutions either make a reference to the necessity of militias or neglect the subject entirely. Still, the men at the Constitutional Convention had the Vermont and Pennsylvania documents as precedent. They could have slipped in “for the defence of themselves” if they had so wished. They didn’t.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Translated: We need militias to protect the country, so people can arm themselves in order to serve in militias.

It’s an odd right, neither purely individual nor collective. It is analogous to our right to peaceably assemble. I have the individual right to go to a political demonstration, but if I am there alone I am not assembling. The 2nd Amendment prohibits the federal government from infringing on our right to belong, armed, to a state organized and federally deployed militia. Whether your interpretation is originalist or textual, that’s how it comes out.

 

No, You Will Not Save the Day

“If only a law-abiding citizen had been there with a gun.” We hear that after every shooting rampage. The evidence shows this to be wishful thinking.

People can’t shoot worth a damn in a combat situation. The very existence of the .223 rifle that Adam Lanza used in Newtown is evidence of this.

Back in 1948, the U.S. military was interested in developing better body armor for the troops. The research team decided to first study gunshot wounds – where and how soldiers were shot, and what the risk factors were. They studied data from about 3,000,000 incidents and published an extensive report that contradicted the conventional wisdom. They found that the supposed marksmanship of the shooter and the accuracy of the rifle and bullet were meaningless. The chances of a soldier being shot were related to the surface area of his body exposed, the duration of exposure, and the number of shots fired in his general direction. In small unit encounters, whichever side fired the most bullets in the shortest time won. Lethality is a volume business.

With much resistance from traditionalists, the U.S. military converted from larger caliber, lower capacity rifles to smaller caliber (.223/5.56 mm) rifles with larger capacity magazines and faster firing rates. The smaller bullets allowed a soldier to carry more and shoot more, making up for the absence of combat marksmanship.

Peacetime shooters are no more successful. A number of ongoing studies have investigated the accuracy of police officers using firearms in the line of duty. Here are some representative nuggets:

From a lecture by M.T. Stevens, an Assistant Professor of Criminology at California State university:

Pistol qualification usually requires at least a 84% proficiency score on two or three consecutive runs of the Practical Pistol Course (PPC), and shotgun qualification usually requires 80% proficiency (which is also the passing score on most written tests).  Officers who shoot at proficiency levels in the 90's usually become firearms instructors.  Some departments exist that allow qualifying scores in the 70-80% range, and another small number of departments require all their officers to qualify in the 90-100% range.

However, there seems to be a consensus among practitioners and researchers alike that police marksmanship in real-life (scene of a crime) situations is less than desirable, something along the order of one hit for every six shots (Morrison 2002).  This means that in gunfighting with actual criminals, the average police officer effectiveness is at the level of 17% proficiency.

The officer's own gun is used in about 12% of all murders.

From what limited research exists, we know that the average ordinary adversary effectiveness is something around the order of 10% proficiency (Morrison 2002).

From an article on “point shooting” technique:

HIT POTENTIAL IN GUN FIGHTS

The Police Officer's potential for hitting his adversary during armed confrontation has increased over the years and stands at slightly over 25% of the rounds fired. An assailant's skill was 11% in 1979.

In 1992 the overall Police hit potential was 17%. Where distances could be determined, the hit percentages at distances under 15 yards were:

Less than 3 yards ..... 28%

3 yards to 7 yards .... 11%

7 yards to 15 yards . 4.2%

From a New York Times article on the NYPD:

While officers hit their targets about a third of the time over all, far fewer bullets generally found their mark during gunfights. In 1999, only 13 percent of bullets fired during a gunfight were hits.

By contrast, in 2006, 30 percent of the shots fired during gunfights were hits, an unusually high percentage.

 In Los Angeles, which has 9,699 officers, the police fired 283 rounds in 2006, hitting their target 77 times, for a hit ratio of 27 percent, said Officer Ana Aguirre, a spokeswoman. Last year, they fired 264 rounds, hitting 76 times, for a 29 percent hit ratio, she said.

So far this year the hit ratio in Los Angeles is 31 percent, with 74 of 237 bullets fired by officers hitting the target.

These are people who train regularly and are tested regularly. They train in marksmanship, tactical shooting, shoot/don’t shoot decision making, and weapon retention. These are people who are used to stressful situations. Even so, they only hit their targets 17-34% of the time. That 84% score on the range is irrelevant. Their civilian assailants manage to get one out of ten shots on target.

This kind of failure of marksmanship in real life is not so much of a concern in military situations. Just fire a few hundred more shots and call in an air strike. It becomes an essential problem in the situations where we are supposedly going to defend ourselves in our homes, businesses, or schools. Missing Adam Lanza or John Holmes in a room full of bystanders has consequences. Bullets go through walls while retaining deadly force. Outdoors, bullets can travel a mile or more.

Let me re-emphasize that skill at the shooting range has no relationship to success in a gunfight.  It’s more probable than not that an armed bystander at the Sandy Hook Elementary School would have accidentally shot several students before being gunned down by Lanza’s superior fire volume.

But, don’t millions of law-abiding Americans successfully defend themselves with firearms every year? Apparently they don’t. At least, the evidence doesn’t slant that way.

The NRA and similar organizations will point to national polls that ask people about defensive firearms use. These polls of several thousand people are extrapolated out to numbers of defensive incidents on the order of 100,000 to 2,000,000 per year.

Some researchers at Harvard dug deeper and found a different picture. In one study, anyone who claimed to have used a firearm defensively, either by firing it or merely brandishing it, was asked “What happened?” In response to this open ended question they collected narratives of the incidents. The researchers assembled a panel of criminal court judges and asked them to review the accounts. Were these justifiable defensive incidents, or something else? In about 20% of cases there was insufficient evidence. In a slight majority of cases the judges decided that the firearm use was illegal, an act of intimidation or unprovoked assault. And this was from reviewing the shooter’s (or brandisher’s) own self-justifying account. With independent witnesses and forensic evidence, the likelihood is that a large majority of the gun use would be ruled unnecessary and criminal. The researchers also note:

 “If we have as little as 1% random misclassification, our results could be off by orders of magnitude. It appears we can obtain substantially higher rates of self defense gun use if we ask respondents about events in the previous six months rather than the previous five years. On the other hand, we can obtain substantially lower rates of self defense gun use if we eliminate the handful of respondents who report the vast majority of uses, the various respondents who report uses that do not appear to meet reasonable criteria for actual use, or the respondents whose use appears offensive rather than defensive.”

In other words, those large self-reported self-defense numbers are political and statistical artifacts, not science. In fact, three times as many respondents reported being threatened with a firearm than reported (probably falsely) that they had used a firearm in self-defense.

But still, you say, that’s not me. I want a firearm to protect myself in case of assault. Perhaps you don’t. A case/control study by University of Pennsylvania researchers found that the possession of a firearm during an assault increased the risk of getting shot by 4.5 times. It’s the real life manifestation of that stock phrase, “Your money or your life.”

Marksmanship aside, there are other snap decisions to be made. Let’s say you are an armed citizen. You hear a commotion and come around a corner to see two men struggling over a gun. Who is the criminal? Or, you hear shots, draw, and come around a corner to see two men shooting at each other amidst a crowd of screaming people, some of them shot. Which man is Jared Loughner and which is your fellow armed citizen? The decision of whether to shoot and who to shoot at is one that police officers train for and still get wrong.

Also, unlike police officers, most civilian firearm users don’t carry around nightsticks or pepper spray. There is no forceful response available to them in between a fistfight and a shooting. The confrontation between George Zimmerman and Trayvon Martin should never have happened, but paranoia mixed with gun-based confidence made it so. Even then, without a gun present it could have stopped at a tense standoff or an entirely forgettable fistfight.

Secret Service agents are selected from a rigorously screened pool of applicants, mostly experienced law enforcement officers. Then they receive even more rigorous firearms training, including shooting while moving and shooting at moving targets, shoot/don’t-shoot training, the works. They train every day they aren’t actually working, because these skills deteriorate otherwise. Then an even smaller group is selected as shooting specialists. They are the ones up on rooftops with rifles during big political events. Key point: These specialists among specialists are rotated out every three years because the stress of the job reduces their capabilities over time. A civilian with a concealed carry permit can’t be rotated out of everyday life every three years.

Other key point: John Hinckley Jr. walked up and emptied his revolver into President Reagan and others before a crowd of Secret Service agents, best of the best, could react. And your average citizen, after a one day concealed carry course, would do better?

Read the opinions of firearm instructors such as Massad Ayoob, who teach firearms skills for concealed carry purposes. (Here, here, and here.) The short version is that when a human being, any human being, gets into a crisis situation, he or she loses most of the physical and mental functions necessary for using a firearm properly. The flood of adrenaline and cortisol, the restriction of blood flow, and other involuntary physical reactions cause the loss of fine motor control, loss of hearing, tunnel vision, trembling, and loss of higher cognitive functions. Extensive, realistic, and continuous training can partially overcome this, but even the pros make deadly mistakes, and 99.9% of us aren’t pros.

So no, the recent decision of a politicized court aside, the Constitution does not grant you the right to possess anything outside of the context of a federalized militia. You are constitutionally welcome to join the National Guard to put down insurrections and defend the nation.  This is just as well, because an ordinary citizen who doesn’t receive ongoing combat training should not be relying on a firearm for self-protection.

An average citizen with a readily accessible firearm, even one who is well practiced with a firearm, is a bad gamble. In terms of protecting against personal loss, an average citizen would be better off buying insurance than a firearm. Actually, an average citizen would be better off buying a lottery ticket.