Observations on Gun Violence in the US
By Matt Daley
A reader has asked for my thoughts on gun control. What follows is an effort both to educate and to stimulate a dialogue on gun violence in the United States. While it does offer opinions and proposals, I have tried to base these on objective data and unbiased research.
Let’s begin with the Second Amendment, which is not a model of artful drafting. It simply says:
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.
In the 2008 Heller case (decision and discussion of same here), the Supreme Court held that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” This was the first time since the 1939 case United States v. Miller that the Supreme Court had directly addressed the scope of the Second Amendment. Subsequent precedents all emanated from the inclinations of the lower courts and had limited authority
Relying on Miller, the Court held that it “does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to those used by the militia, i.e., those in common use for lawful purposes.”
The Supreme Court also noted that The District of Columbia’s “…total ban on handgun possession (even in the home) amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense.”
In the same decision, the Supreme Court affirmed that “the Second Amendment right is not unlimited” and gave examples of regulations or prohibitions that have passed Constitutional muster.
Thus, while we have a few guidelines on how the Supreme Court interprets the Second Amendment, there is ample room for evaluating a wide range of proposals on pragmatic grounds. I submit that we should look at those proposals, assess them on their merits or lack thereof and not try to prejudge how a future case before the Supreme Court will be decided. The Court has just recently agreed to hear a Second Amendment case from New York which may produce a key decision on where one may “bear” arms. Stay tuned.
By way of context, while firearms violence vastly exceeds all other unnatural causes of death in terms of media coverage, it is by no means in first place in the real world. As shown in Table 1, unintentional injuries or accidents rank far above gun deaths, even when gun suicides are included. Even the subset of unintentional poisoning — drug overdoses — ranks far above gun deaths. Deaths caused by medical errors are estimated to be at or above 100,000 annually, more than twice as many as gun deaths of all types, but CDC does not report these deaths. Whether this omission derives from professional courtesy, white coat privilege or some other non-scientific rationale is unknown. Alas, just about all of the issues associated with gun deaths are subject to widespread misconceptions and complicated by insufficient research and analysis.
CURRENT STATUS OF GUN VIOLENCE IN THE US
It is helpful to disaggregate gun deaths into separate categories simply because what is useful analyzing one category is often not going to be directly transferable to others. For this purpose, I distinguish between suicide, homicide and accidents, with mass shooting warranting separate attention because of the disproportionate attention bestowed on this category by the media.
Suicide was the 10th leading cause of death in the US in 2017 with 47,511 completed attempts, of which firearms were used in slightly under half. The trend is clearly in the wrong direction. From 1999 to 2017 the suicide rate increased by 33% or from 10.5 per 100,000 to 14.0. Addressing suicides is perhaps the most complicated challenge for several reasons. One cannot interview the deceased to determine whether, if firearms were not available, the intending suicide would have substituted another method such as hanging, poisoning, etc. That makes it necessary to use other means to determine the degree of “substitutability” between guns and other means of suicide.
Canada is the most comparable nation to the US in terms of societal and cultural variables and it has much more restrictive gun laws. Comparing suicide trends in the US and Canada, one finds that suicide rates are quite close. From 2000 to 2007, the US had 11.0 suicides per 100,000 while Canada averaged 11.5. In the same period, Canadians used firearms to commit suicide 44% of the time compared with 53% for Americans. This suggests that while stricter gun control laws reduce gun suicides, they do not have much impact on the overall number of people who attempt and successfully complete suicide. Put otherwise, a significant number of people seeking to commit suicide do indeed appear to choose an alternate when firearms are not readily available.
Substitutability, however, should not preclude trying to lessen the toll of gun suicides. Measures like waiting periods, safe storage, and red flag laws might prevent some suicides, but the actual lives saved are likely to be few.
A major reduction in suicides would likely come from increased accessibility to mental health services. Obviously, this will have major budget implications. But beware of specious correlations between levels of gun ownership and the suicide rate across various jurisdictions, unless the study also controls for different levels of access to mental health services.
Gun suicide rates could almost certainly be reduced by limiting access to firearms and other devices by those experiencing serious mental issues. This is not going to be easy.
A necessary step is to change current law and canons of the mental health profession under which psychiatrists and psychologists have no obligation to notify federal authorities when a patient should not be allowed to purchase a firearm. This lacuna has contributed to more than one major tragedy. Mental health professionals will have to testify at judicial proceedings and render judgments on whether the individual is deemed a risk to him or herself or to others.
Crafting the rules under which this would happen will be complicated. Those who will be required to surrender their weapons have a right to substantive due process before seizure and after a defined period of time.
Our focus should not be on individuals who have sought mental health treatment per se, but those who have severe diagnosis combined with a history of substance or alcohol abuse and a history of violence or threats of violence. This is an extremely narrow subset of mental health patients. We must be careful not to needlessly and unjustifiably stigmatize individuals who seek mental health treatment as Maryland’s lamentable 2013 legislation did.
Homicides account for the second largest component of gun deaths. Until 2019, the trend of violent crime in the US had been declining for decades both in terms of absolute numbers and deaths per 100,000. From 2018 to 2019, there was a drop of .7% in overall violent crime, but a rise of .7% in murder and non-negligent homicide. While we do not have complete data for the year 2019 (let alone 2020) there seems to have been a further increase in gun homicides. We do not know if this is a blip arising from COVID related problems, reduction in proactive policing due to reactions to a few widely publicized killings of Black Americans by police (the Minneapolis effect), or the beginning of a new upward trend in homicides with less identifiable causes.
The reasons for this most recent increase have yet to be examined carefully but looking at earlier periods can be instructive. My conclusion is that, in general, gun control laws have not had much of an impact on crime rates. The Federal ten year “assault weapons” ban was widely regarded as ineffective. The Brennan Center for Justice at the NYU School of Law tried to assess the factors that impacted on crime from the 1990s into the 2000s. Specifically, the Center considered increased incarceration, increased police numbers, use of the death penalty, enactment of right to carry gun laws, unemployment, growth in income, inflation, consumer confidence, decreased alcohol consumption, aging population, decreased crack use, legalization of abortion, decreased lead in gasoline and police tactics. There were a number of interesting findings, but the most significant was the shoe that did not drop, i.e., gun control laws in general were not deemed worthy of investigation. “Right to carry laws” were, however, examined and here the Brennan Center also found no evidence of an effect on total homicides – though as I note below legal possession of firearms may change homicides committed in the course of a crime into self-defense by the intended victim.
To direct policy toward illegal use of firearms, our judicial system needs to reassess how it treats individuals accused of crimes committed with a firearm. Far too many are not charged fully, released on bail or not imprisoned and soon thereafter are armed again and back on the street. The media could play an important role in ensuring accountability.
Accidents remain the last category and here, happily, the number of deaths is small. These can be further reduced by safe storage laws and training in firearm use and safety. Unhappily, media attention to the rare, tragic event deflects attention from much larger causes.
GUN CONTROL LEGISLATION
There is a largely fruitless debate about specific gun control legislation with social scientists and economists deployed on the several sides of the discussion. I suspect that in general, the ineffectiveness of our firearms laws is in significant measure a function of lack of enforcement. At the federal level, the percent of cases referred by the Bureau of Alcohol, Tobacco, Firearms and Explosives to the Justice Department for prosecution is strikingly low, i.e., in the low single digits. ATF has long been a troubled agency and will need increased funding, political support and a willingness by the Justice Department to take gun cases seriously.
Even if this were done, some suggested remedies will have limited effects. Take the “assault weapon” ban which is again being proposed. FBI crime statistics do not distinguish between assault rifles and all other types of rifles; they are lumped together. What we do know is that in 2019, 364 of 15,020 homicides, or two percent, were committed with rifles of all types. Deaths attributable to the subcategory “assault rifles” must be less than that two percent of homicides, since it is certain that some rifle homicides were hunting or other accidents involving ordinary long guns.
By contrast, 537 homicides were committed with hands and feet. The inescapable conclusion is that even if efforts to ban “assault rifles” were successful (and such a ban would be resisted strongly), it would be difficult to see the impact in aggregate death statistics. Similarly, according to one Johns Hopkins study, banning magazines with over 10 rounds capacity would have no discernible effect on homicides.
So, what more should we do on reducing gun homicides:
- Better law enforcement aimed at dealers who knowingly sell guns to ineligible buyers, the buyers and their accomplices.
- Federal regulations that govern privacy of health information should be modified not only to allow but also to require mental health clinicians to identify those deemed to be a threat to themselves or others to the National Instant Check System with provision for both due process and periodic review.
- Pass legislation known as the TAPS ACT that would share behavioral assessment techniques developed by the US Secret Service with state and local police, educational institutions and others. In the last Congress, this proposal had over five dozen Democratic and over five dozen Republican supporters but was not taken up by the House Judiciary Committee.
- Require that any sale of a firearm by individuals be subject to the same background check system as used by Federally licensed dealers. This would effectively close the misnamed “gun show loophole” and would probably would not be vigorously opposed by legal gun owners if the process were made discernably less burdensome. This would include access to the NICS system by others than licensed dealers. Bear in mind, however, that criminals will bypass this system for the most part. In surveys of criminals (in prison), 56% admitted stealing their firearms; 43% bought their guns on the street or in underground markets; only 3% obtained their guns from a licensed gun dealer. The reality is that while background checks can increase, perhaps unjustifiably, public confidence in the system, their actual impact will be small.
- Acknowledge the “Elephant in the Room,” i.e., the reality that Black Americans commit homicides at rates seven to eight times higher than White Americans. Black Americans are also overwhelmingly the victims of this violence and their communities, especially in our inner cities, need better policing, not less, and a host of other policies that are beyond the scope of this essay.
- As part of a reasoned debate, we need to acknowledge that firearms in private, legal hands are not an unalloyed negative. The vast majority of legal gun owners never use firearms for criminal purposes. CDC has stated that firearms are used in self-defense between 500,000 and 3 million times annually in the US. Civilians also shoot fatally almost as many felons as police. This aspect of legitimate gun use seldom receives media attention but certainly helps explain the popular resistance to gun control proposals that burden almost exclusively law-abiding citizens.
Mass shootings are given vastly disproportionate media attention in comparison to other homicides. Such events get not minutes, but hours on television while an even larger body count in Baltimore or Chicago in the same weekend might well not make the national news. Perhaps because in the latter cases, the victims were predominantly Black. This raises questions about the motives and values of our media which perhaps should be addressed separately.
Analysis of mass shootings is complicated because of a lack of universally accepted definitions, e.g., how many people have to be killed or wounded to count as a mass shooting. Analysis is also complicated by the reality that mass shootings are not close to being a major factor in gun homicides, i.e., the universe of events is smaller. Roughly speaking, mass shootings account for about two tenths of one percent of all homicides in the US. That said, a study conducted by the US Secret Service had some significant findings:
- Two-thirds of the mass shooters had histories of mental health symptoms, including depressive, suicidal, and psychotic symptoms.
- Nearly all had at least one significant stressor within the last five years, and over half had indications of financial instability in that timeframe.
- Nearly all had made threatening or concerning communications and more than three fourths elicited concern from others prior to carrying out their attacks.
In addition to the steps noted above regarding suicides, we need the following:
- Hold public officials accountable when they fail to discharge properly their duties. The mass shooter in the Virginia Tech incident had been adjudicated in court as “mentally deficient” and this information should have been conveyed to the FBI’s database. It was not and thus the shooter was not prevented from buying his guns through licensed dealer. Similarly, a former Air Force sergeant was discharged under terms that should have precluded his purchase or possession of a firearm under Federal law, but again the information was not conveyed to the FBI.
- The laws and professional standards of the mental health profession require revision. The psychiatrist who treated and recognized the very real dangers the Aurora theatre killer posed was not required to notify Federal, state or local officials of his dangerous state and she did not. Crafting such laws and regulations will be complicated, but it is clearly doable.
- Red flag laws are gaining popularity, and in a decade we may be better able to assess their effectiveness and their drawbacks.
- Safe storage laws should not be overly contentious. Casual empiricism suggests that most gun owners now keep firearms in containers that will prevent unauthorized access, and they believe that others should do the same. Whether prosecutors will have the grit to enforce these laws is very much an open question.
- As noted above, passage of the TAPS act would strengthen the ability of law enforcement, educators and others to identify those individuals who are at risk for committing violence and seek interventions.
We need to be realistic about what can be accomplished, especially in the short term. If reducing the death toll is our purpose, our focus must be on reducing the suicide rate and this will require investment in mental health infrastructure and access. Approaching the challenge through limiting the access of troubled individuals to firearms will save some, but likely not many lives. Nonetheless, family members, loved ones and friends have scope for direct action. Similarly, reducing the homicide rate can be marginally improved through legislation, but larger improvements would come from effective law enforcement, prosecution, and judicial decisions. The inconclusiveness of much of research done on the question of gun violence begs more research funding that frames issues objectively and looks at the many relevant variables. Otherwise, uninformed reports and debate will further escalate and deepen the ongoing cultural divides in America.
I agree with most of what Matt says and suggests. Surveys suggest that almost all of his common-sense suggestions would be supported by a vast majority of the population. However, this isn’t new and yet none of these suggestions are being supported by bi-partisan legislation. Why? As long as “gun rights” is a litmus test for right-wing politicians, nothing is going to happen. It is too potent a culture-war issue to use to rile up the troops against the libs. If I were a left-wing political leader, I’d suggest keeping quiet about gun control for a decade or more until the “gun nuts” have moved on to some other issue. Then maybe a bi-partisan consensus could quietly pass the legislation that almost everyone knows we need.