Heller's Friends: Claremont Institute and the Scholars

I've had the opportunity to personally thank Bill Buckley for revolutionizing the conservative movement when he added his incredible intellectual weight to the discussions that we have across all the political issues with which we grapple. Bill led the charge that changed the mass perception of the lingua freedom of conservatism from "redneck" to logic based on fundamental principles of human behavior and values.

Today, similar appreciation is due those who labor in the fields of fundamental constitutional rights. Thanks to the efforts of scores, in America's future millions of us will be more like citizens and less like subjects than would otherwise be the case.

Among those are the Criminologists, Social Scientists, Other Distinguished Scholars and the Claremont Institute who today filed as amici curiae in District of Columbia vs. Heller.

As I've written in The Heller Posse: A Roundup of Briefs: The NRA and Heller: The Good Guys Shoot Back, With Effect,

D. C. vs. Heller has been called the most significant constitutional case of the year. It's easily that. It is also the most important Second Amendment case ever.

Marc Ayers, Counsel of Record, and Don Kates have led a team of 19 distinguished authors and professors to create a treasure trove of Second Amendment facts and quantitative data, while punching gaping holes—irreparable holes—in some of the studies used to support the District's case.

Win, lose or draw on Heller, and I believe that SCOTUS will invigorate the Second Amendment, the arguments that these advocates are building will be useful for decades to come.

I'm reminded of the recent comment by a District supporter on how little case law there is on point. The rejoinder—I wish I could remember whose—was, it took 200 years until you guys really stepped in it. Now our job is to make you wish you hadn't!

I love it when they start strong. Here's a first paragraph truth talking about the District and describing the three laws under discussion as a

30-year social experiment with handgun prohibition

They follow up with this, to which I've added the emphasis, just to point out the lawyerly equivalent of "pants on fire."

The District and its amici assert that the District’s gun bans actually reduced violent crime notwithstanding the increased crime rates. However, the studies advanced in support this position are fundamentally flawed and reach conclusions favorable to the District only through questionable selection of data and extremely unorthodox methodologies—such as ignoring large population changes, and counting only raw numbers of homicides (which incorrectly included justifiable homicides as well as murders) rather than per capita murder rates.

Contrary to the assertions of the District and its amici, there is simply no persuasive evidence that the District’s handgun ban has reduced violent crime. Indeed, if there is anything to be discerned from the state of affairs in the District, it is that the handgun ban has made things worse, as murder and other violent crime has skyrocketed. Over the five pre-ban years the murder rate fell from 37 to 27 per 100,000 population. See Appendix at 3a (FBI data on the District’s murder rates since 19602)). In the five post-ban years the murder rate rose to 35. Averaging the rates over the 40 years surrounding the bans yields a pre-ban DC rate (1960-76) of 24.6 murders. The average for the post-ban years is nearly double: 47.4 murders per 100,000 population. The year before the bans (1976), the District’s murder rate was 27 per 100,000 population; after 15 years under the bans it had tripled to 80.22 per 100,000 (1991).

Then, in an early signal that this is a hardball contest, they bring the point home, what the 30 years of experiment has wrought.

In 2003 the Secretary of Defense noted that the District’s murder rate was higher than Baghdad’s.

Sort of like teaching in elementary school, make the point as hard and from as many directions as possible

In 2006, even after a decade of drops in the murder rate, the District’s murder rate “was more than five times higher than the national average, and more than double the rate in comparably sized cities.”

Before the challenged prohibitions, the District’s murder rate was declining, and by 1976 had fallen to the 15th highest among the 50 largest American cities.

Most of us have heard the murder capital language. I didn't know that D.C. was so nearly normal prior to 1976.

The authors point out serious flaws in a study used by D.C.'s team to support the argument that its gun laws work. Among other indications of putting a thumb on the scale, the Loftin study compared all homicides before and after the D.C. ban. Doing so adds justifiable self-defense uses (which occurred prior to the ban but not after) to criminal uses, which occurred both before and after. This sleight of hand artificially increased the pre-ban number and minimized the apparent increase in criminal homicides, which would otherwise be derogatory to the District’s case.

In fact, the authors point out that the Loftin study was so flawed that the National Academy of Sciences issued a finding that there is no conclusive evidence with the respect to the impact of such bans on crime and violence.

The reality is that one’s chance of being murdered in the District has not dropped, but has continually gone up following the enactment of the gun ban. In only one of the 30 post-ban years has the District’s murder rate been lower than its pre-ban 1976 rate.

Like most who will read this, I've tried to stay pretty informed about the area over the years. Still, there are things I didn’t know. I know of the Kellerman studies butI did not know how the baselines were created, as seen in the central quotation, here

The District and its amici claim that merely living in a house with a gun triples the chance of becoming a homicide victim, citing Arthur L. Kellermann, et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 New Eng. J. Med. 1084 (1993). Yet, though the Kellermann study analyzed over 400 homicides, “the authors did not document a single case in which the victim was killed with a gun kept in the victim’s home.” Gary Kleck, Targeting Guns: Firearms and Their Control 245 (1997). Apparently in over 95% of the cases the gun was brought to the home by the killer.

Noting these problems with the Kellermann study, the National Academy of Sciences found that the Kellermann conclusions are not tenable.

More guns, more crime? No, not exactly. Again, emphasis added.

The primary pillar of the argument that gun prohibition produces good results is the notion that “more guns equals more murder.” However, this notion is demonstrably untrue.

To counter such evidence, the District and its amici cite a study by Mark Duggan for the proposition that “increases in gun ownership lead to increases in the number of homicides.” However, the Duggan study is fundamentally flawed, as are these conclusions. The Duggan study was not based on actual data about gun distribution evidence. That is, Duggan never measured whether any city had more guns or less guns. Instead, his study is based solely on the circulation of one magazine, Guns & Ammo.

I know Guns & Ammo. I like Guns & Ammo. I get Guns & Ammo. But I know that the magazine Guns & Ammo is not a gun! How on earth does a credible researcher turn a magazine's subscription list—which, by the by, turned out to have been manipulated by between 5% and 20% in various cities—into guns? For that matter, how did a D.C. lawyer decide to insert such crap into his case?

While many of us have known that England has suffered simultaneously with its tightening regulations, seeing the change over just five years is stark.

Specifically, the number of deaths and injuries from gun crime in England and Wales increased 340 percent in the seven years from 1998 to 2005.

In the 1950s, the term The Big Lie was most often directed at communists and communist sympathizers, who operated under the theory that a lie repeated often enough would become the perceived truth. Then there's this, again emphasis added:

Apparently for the first time, the District now claims that its residents may keep long guns for defense in the home. This assertion was not made below where it would have been subject to discovery. Discovery would have revealed that the District has never (so far as we can find) announced this purported exception either to the public or to its police. We leave to the Brief of Amicus Curiae Citizens Committee for the Right to Keep and Bear Arms (the “Errors Brief”), the refutation of this newly asserted exception. We note, however, that the District has made no attempt to outline what such an exception would entail.

The Errors Brief. Don't you just love how they carved up the tasks? I can't wait to read that one! Continuing...

Consider at least seven different forms which such a defense might take:

a) Despite the challenged ordinances, there is an implicit self-defense exception allowing a District resident to keep an un-trigger locked handgun loaded and assembled in her night stand; or

b) Despite those ordinances there is an implicit exception allowing a District resident to keep an un-trigger-locked shotgun assembled and loaded by her bedside17; or

c) There is an implicit exception allowing a woman who has been stalked, raped, or threatened with death by her ex-husband or someone else to keep an un-trigger locked handgun loaded and assembled in her night stand for selfdefense; or

d) There is an implicit exception allowing a woman who has been stalked, raped, or threatened with death by her ex-husband or someone else to keep an un-trigger-locked shotgun assembled and loaded for self-defense by her bedside; or

e) The obverse of (a)—(d): yes, it was illegal for her to have a handgun or a loaded shotgun, but now that she has shot an intruder with it, that shooting gives her a defense to prosecution for the gun law violations; or

f) There is an implicit exception allowing a woman who has been stalked raped or threatened by her ex-husband or someone else to assemble, load and unlock her shotgun if she spies him lurking outside her home; or

g) When a woman is attacked by a knifewielding attacker in her home there is an implicit exception allowing her to go and assemble, load and unlock her shotgun.

Can't you just imagine this line coming as a question from Justice Scalia? How about future civil suits against the District by victims of violent crime who point out to future juries the logic of the District's legal position.

They make the point that there are alternatives to banning guns. By the way, this is the first time I've seen any credible number in print for the number of citizens licensed to carry. Another valuable nugget for future debates.

… [O]ver the past decade 48 states have issued permits to carry concealed handguns for lawful protection to about five million Americans; most of those states have been issuing under statutorily standardized criteria by which an adult with a clean record and safety training can obtain a permit.

Closing the barn door with research from the Justices' employer:

Confirming this fact are two recent general studies of gun control. In 2005, the U.S. National Academy of Sciences released its evaluation based on review of 253 journal articles, 99 books, 43 government publications and some empirical research of its own. Wellford, et al., Firearms and Violence: A Critical Review, supra, at 98. The Academy could not identify any gun control that had reduced violent crime, suicide or gun accidents. The same conclusion was reached in a 2003 evaluation by the Centers for Disease Control’s then-extant studies.

And hit it one more time, between the eyes. The District's mouth is larger than its facts and the rhetoric is a killer.

In this case, the facts simply do not fit the rhetoric behind the District’s gun ban. Such bans do not produce good results. Rather, such bans irrationally strip law-abiding citizens of the most effective means of defending themselves and their loved ones—and, if the evidence indicates anything, it is that criminals take full advantage.

Great arguments and great writing make for persuasion. These guys are in the X-ring. Their brief is here and well worth reading.

I believe Heller will prevail. If not, these are the arguments our children will see in the future. It will not be like Miller, where our team didn't show.