GUN CONTROL AND GENOCIDE, AN ESSAY REVIEW
{The following is presented on this site for those who do not have access to university law libraries. It is my original draft of what became two articles, as liberally revised by my co-author, Northwestern U. law professor Daniel D. Polsby. Note that what were footnotes in the original draft have been rendered into endnotes for this site and linked to the end of the document. [For those who have access to a university law library, the final articles are: Don B. Kates & Daniel D. Polsby, “Of Genocide and Disarmament”, 86 J. CRIM. L. & CRIMINOL. 247 (1995) and Daniel D. Polsby & Don B. Kates, “Of Holocausts and Gun Control”, 75 WASHINGTON U. L. Q. 1237 (1998).] Where easily possible I have replaced the draft’s references to forthcoming articles with the full citations.}
NOTE: At the time this early draft was written, I did not have access to the definitive work on 20th Century mass murders, Rupert J. Rummel, DEATH BY GOVERNMENT (Transactions Press, 1994). Readers should also direct their attention to a truly excellent article by University of Connecticut philosopher Samuel Wheeler, “Arms As Insurance” in v. 13 of PUBLIC AFFAIRS Q. (1999).
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REFLECTIONS ON GUN CONTROL AND HOLOCAUSTS
An Essay Review of LETHAL LAWS
By Jay Simkin, Aaron Zelman, & Alan M. Rice
Milwaukee, Wisconsin
Jews for the Preservation of Firearms Ownership
Pp. 347. $24.00
by Don B. Kates, Jr.*
Certainly I shall use the police — and most ruthlessly — whenever the German people are hurt; but I refuse the notion that the police are protective troops for Jewish stores. The police protect whoever comes into Germany legitimately, but not Jewish usurers.
— Hermann Goering, as head of the Prussian Police, 1934 [1]
All weapons of every kind in the possession of Jews are forfeit to the Reich without compensation and are to be handed in. This embraces all firearms including starting pistols and all edged weapons.
— Dec. 12, 1938 Gestapo circular [2]
[Firearms licenses] will not be granted [to] Jews [or persons] suspected of acting against the state. Those who do not require permission to purchase or carry weapons [include] the whole SS and SA, including the Deaths Head group and officers of the Hitler Youth.”[3]
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Since this essay will have some negative things to say, it is well to open by noting one of the important virtues of this book which, especially given its negligible cost, makes it an obligatory acquisition for any university law library. However one appraises its central thesis, LETHAL LAWS adds importantly to our knowledge of foreign gun law, a subject which ranks among the most frequently mentioned, and muddled, aspects of our own gun control debate. The book includes meticulous translations of historical firearm laws from Germany, the USSR, the People’s Republic of China, Ottoman Turkey, Guatemala, Uganda and Cambodia. On each page facing a page of English translation will be found the corresponding sections of the original statute in the original language. The laws are set in their historical context by brief but trenchant commentaries often including information on enforcement practices.
THE MYTHOLOGY OF FOREIGN GUN LAWS
In a book published almost twenty years ago anti-gun activist Robert Sherrill derisively commented that no debate over gun policy would be complete without a plethora of brief, often inaccurate, and invariably contradictory, references to foreign gun laws and crime rates.[5] For instance, it is asserted that few Israelis own handguns (accompanied by a table suggesting handgun ownership is far less in Israel than in Austria or Canada)[5], and that Israel and Switzerland “have strict handgun laws [and] report negligible deaths by handguns.”[6] Though the “negligible deaths” part is true, the rest is highly misleading. As Israeli criminologist Abraham Tennenbaum notes “The homicide rate in Israel has always been very low … much lower than in the United States … despite the greater availability of guns to law-abiding [Israeli] civilians.”[7] The reason relatively few Israelis own guns is because any law-abiding, responsible Jew who needs an Uzi, or a handgun, just draws it out of an Israeli police armory. In the U.S., far from the state giving firearms to those in need, fully automatic firearms like the Uzi have been forbidden or severely controlled since the 1930s and now the purchase of mere semi-auto copies of the Uzi is banned.[8]
Israelis (including Arabs) who wish to own their own personal firearm must obtain a license but that also is available on demand to any trained, law-abiding, responsible adult. Unlike the United States where carrying a concealed handgun is almost universally illegal, in Israel if you legally possess a firearm you
are allowed to carry it on your person (concealed or unconcealed). The police even recommend you carry it because then the gun is protected from thieves or children. The result is that in any big crowd of citizens, there are some people with their personal handguns on them (usually concealed).[9]
Swiss policy is virtually identical.[10] American massacres in which dozens of unarmed victims are mowed down before police can arrive astound Israelis[11] who note
what occurred at a Jerusalem [crowd spot] some weeks before the California MacDonalds massacre: three terrorists who attempted to machine-gun the throng managed to kill only one victim before being shot down by handgun-carrying Israelis. Presented to the press the next day, the surviving terrorist complained that his group had not realized that Israeli civilians were armed. The terrorists had planned to machine-gun a succession of crowd spots, thinking that they would be able to escape before the police or army could arrive to deal with them.[12]
The point is not to suggest that the U.S., where massacre is a very minor part of the homicide problem, might benefit by allowing the widespread carrying of firearms.[13] We mention the matter only as a dramatic example of how inaccurate and misleading American discussion of foreign gun laws can be. Many such inaccuracies are corrected in David Kopel’s prize-winning analysis of gun laws, policies and crime in England, Canada, Australia, New Zealand, Jamaica, Switzerland and Japan.14] To this invaluable work, LETHAL LAWS adds further reliable information covering historical firearms laws in seven other nations. Regrettably, the information is purely historical, since discussion of whatever the current law may be in these nations is not among the authors’ purposes. Even as to the historical laws it covers LETHAL LAWS is much less discursive than Kopel and gives little attention to crime patterns which may have engendered the laws or followed their enactment. Moreover, because of its narrow focus and the severely limited space devoted to each instance, details tangential to the authors’ concerns are often neglected, regardless of their importance.
Nevertheless as far as it goes, the historical commentary LETHAL LAWS provides is instructive, well-written, balanced and scrupulously accurate. [15] Far from over-playing the extent of genocide, for instance, LETHAL LAWS tends to settle on the lowest reasonable number of victims.[16] Given the authors’ orientation, it is also interesting to observe that they bend over backwards to avoid demonization of Germany, blaming the rise of Nazism exclusively on adverse world and local economic conditions and on the post-World War I Versailles Treaty, which they seem to feel was harsh and unfair to Germany.
GUN CONTROL AND “GENO-POLITICIDE”[17]
LETHAL LAWS is the second book on this subject by a group called Jews for the Preservation of Firearms Ownership (JPFO). [18] The books develop a theme that is central to the argument against firearms prohibition: State abuse of power, including tyranny, geno-politicide and systematic denial of protection to racial, ethnic and other minorities, as a rationale for distrust of government and popular possession of firearms for defense.[19]
At its most basic, the thesis of the JPFO books asserts that geno-politicide occurs only when the target group has previously been disarmed (whether as a deliberate prelude to mass murder or as apparently non-discriminatory, benevolently intended, gun control). To vindicate this thesis, LETHAL LAWS parses the gun laws of the nations involved in “the seven major genocides in the 20th Century” which it enumerates as: the Ottoman genocide of Armenians, the Nazi extermination of Jews (“the Holocaust”) the 1920s and 1930s series of mass murders by the USSR, the mass killings associated with the People’s Republic of China’s “cultural revolution”, Guatemala’s genocide against native Indians and the Ugandan and Cambodian geno-politicides. Chapter 6: “The Anatomy of Genocide” summarizes LETHAL LAWS’ theme:
Genocide has one result – hundreds of thousands, or millions of murders – but many forms. [Other than the following] basic factors … hatred, government, “gun control”[,] the seven major genocides of the 20th Century have few points in common.
It is possible to quibble with the particular geno-politicides selected, but substituting alternative examples would not undermine the link between geno-politicide and unavailability of firearms to the victim group.[20] Given the highly controversial implications of LETHAL LAWS’ thesis, it bears emphasis that at its most literal it is obviously true — if only for reasons which might be dismissed as trivial. Unlike almost any other weaponry, firearms are preeminently defensive in effect. Conflicts carried on with other weapons (or none) generally result in the victims being subjected to whatever their physically stronger or more numerous aggressor(s) want: rape, robbery, murder, etc. But victim(s) who have guns can generally repel a stronger aggressor or aggressor group armed with any lesser weapon.[21]
The defensive advantage lessens when all parties have guns. But there remains a deterrent effect against aggression that is far greater than if only lesser weaponry were involved: Even when an aggressor also has a firearm, if his victims are similarly armed, to attack them subjects him to far greater risk of death or severe injury himself than if all parties had lesser weapons. Of course circumstances can be imagined (e.g. attack by ambush) in which aggressors may be able to kill without significant loss. But so can circumstances in which the presence of firearms on both sides lets weaker victims utterly defeat aggressors without significant loss to themselves. For instance, aggressors who attack a house, village or town may be decimated and beaten off without loss by a far weaker number of defenders, whereas, if both parties had only clubs and knives, a physically and numerically superior group of aggressors could break in and massacre victims with minimal danger to themselves.
The point is that when a victim has a gun the overwhelming advantage otherwise enjoyed by physically superior or more numerous aggressors is much lessened. Thus one effect of a ban on citizen firearms ownership is to facilitate geno-politicide — albeit that effect may be unintended and unanticipated by a ban’s authors, and geno-politicide may not occur or may only occur decades after the ban. (A fortiori, gun bans facilitate geno-politicide in the further sense that they are never universal in effect: They do not apply to government, nor do they disarm murderous civilians or groups whom government may license or covertly permit to possess firearms.[22])
In sum, if a government designs to commit geno-politicide it is desirable that the intended victims be disarmed. But I want to emphasize the triviality of this truth lest I seem to endorse some equally patent untruths. To say that disarming the citizenry will facilitate geno-politicide does not mean either: a) that those who advocate gun prohibitions are secretly plotting mass murder; or b) that geno-politicide inevitably follows from banning civilian possession of defensive weaponry; or c) that geno-politicide would not have occurred, or will not occur in the future, merely because the victim population was/is armed. Examples may be envisioned — of which the Holocaust is perhaps a paradigm — in which access to guns would have only marginal benefits because the victim group is so helpless in comparison to the might of the perpetrators of the geno-politicide.[23] These issues will be addressed below. But first it is necessary to clear the air of an absurdity that not only could be but has been implied by JPFO.
OBLIVIOUSNESS, NOT COMPLICITY
In addition to its books, JPFO has published advertisements comparing Sarah Brady to Adolf Hitler. The point thus suggested is as absurd as it is vile and exceeds all bounds of decent political discourse.[24] Persuasive arguments have been made that firearms ownership helps deter geno-politicide or tyranny[25] (however remote those things may be in the U.S.) as well as two million or more acts of self-defense against apolitical crime annually. [26] But any suggestion that Sarah Brady or other American anti-gun advocates have a secret agenda of promoting geno-politicide (or tyranny) is so patently false that it reflects not on them but on the sanity of any party making such a suggestion.
Indeed, insofar as such analogies have any validity, American anti-gun advocates are comparable not to the Nazis but to their victims. Like those victims, anti-gun advocates simply cannot conceive or believe the depth of evil to which a government having “a monopoly of the means of force” may sink. In this connection, it is noteworthy that it was not the Nazis who disarmed the Germans. That was the well-intentioned policy of the Nazis’ predecessors, beginning with the liberal democratic Weimar government, which thus sought to control violent elements of the extreme Right and Left. The Nazis merely accepted the previous policy whereby, all firearms having first been confiscated from the citizenry, acquisition and ownership required licensure by the police or military who had discretion to confine it to friends and supporters of the state (or at least of the military and police).[27] The only change the Nazis made was forbidding Jewish possession of any kind of weapon while exempting Storm Troopers and Nazi Party officials from the Weapons Law.[28]
Thus, if anti-gun advocates can be charged with anything it is not deliberately facilitating geno-politicide, but obliviousness to the possibility that their program might do so. Nor are they alone in being oblivious to evils from which Americans seem safe because those evils are largely remote from our history (though they loom large in the history of other nations). The Reagan-Bush era federal officials who authorized ever-increasing military involvement in the Drug War, despite long-established principles excluding the military from civilian police activities, were oblivious to the possibility that they might be facilitating an eventual military despotism.[29] The same obliviousness characterizes President Clinton and the others who off-handedly suggest deploying the military on street patrol in major American cities and/or for “major weapon sweeps” to confiscate householders’ firearms.[30] In sum, faced with momentarily exigent or insuperable problems, we all may forget or ignore safeguards which are far more important than any exigency of the moment.
OBLIVIOUSNESS AND “ASSAULT WEAPONS”
Having acquitted anti-gun advocates of intent to aid abuses of state power, I proceed to the more realistic charge that they are obliviousness to that danger. If so arraigned, I suspect anti-gun advocates would brush the charge off on the ground that civilian gun ownership could not deflect geno-politicide. Whether that claim is true will be examined below. But first I must emphasize that in making it anti-gun advocates are merely evading the truth that they are indeed oblivious to the idea that disarming the citizenry may facilitate extreme misuses of governmental power. To demonstrate their obliviousness, a detour onto the subject of “assault weapons” may be useful, though readers who are not independently interested in that subject should be warned to eschew my copious footnoting.
It is clear that, compared to their proportion of the firearm stock, “assault weapons” are under-used in crime; as even Handgun Control, Inc. concedes in candid moments, excepting sensationalized massacres that account for less than .02% of American homicides, in fact such firearms are virtually un-used in crime.[31] Contrary claims made to support banning assault weapons are difficult to explain except as examples of deliberate deceit.[32]
If the case for banning military-style firearms cannot be made on the basis of actual criminal misuse, the real basis for banning them appears in another set of rationales: That, though the arms to be banned are mere semi-automatic replicas of full auto military weapons (i.e. machine guns), it is abhorrent for civilians to want a firearm that even looks like a military weapon or for civilian firearms to be modeled after military ones; moreover, even though current law bars criminals, juveniles and the insane from owning any firearm[33], a ban on assault weapons is needed lest responsible, law-abiding adults have firepower equal or superior to that wielded by police.[34]
These rationales suggest that state abuse of power is a danger to which anti-gun advocates are entirely oblivious. They simply do not consider the possibility that law-abiding, responsible citizens could ever need to defend themselves against the military or the police. Assuming that anti-gun advocates do even remotely consider the concept of the people taking up arms against state power, they apparently dismiss it in absolute confidence that the people would always be in the wrong and the military and police in the right. This absolute confidence is apparently entertained despite the equally absolute failure of anti-gun advocates ever, publicly at least, to have examined the concept. (Gary Wills is the proverbial exception that proves the rule, as discussed below.)
Anti-gun obliviousness to the danger of state abuse of power is epitomized by the new federal “assault weapon” ban. A criterion the ban uses for defining the elusive concept “assault weapon” is whether a rifle has a “bayonet mount.”[35] What is the rationale for banning sales of rifles that can have a bayonet attached? America does not face a wave of crime with bayoneted rifles. Nor can the concern be a pragmatic fear of such weapons being used in citizen challenges to governmental power: Whether civilians’ rifles have bayonet lugs could make no practical difference in a struggle between the citizenry and military or police. The concern with bayonet mounts is purely symbolic: to epitomize the exclusion of civilians from even purely symbolic emblems of defensive or military power.
THE BARBARISM OF SELF-DEFENSE
A concern to strip civilians of military weaponry — down to, and including, even purely symbolic weaponry — closely follows the dominant ideological strain in the gun “control” (more correctly, gun prohibition) movement. For at least 25 years, that dominant ideology has held that defensive firearms ownership by civilians must be banned as part of the “Civilizing Process.”[36] In this dominant ideology “the only reason for guns in civilian hands is for sporting purposes.”[37] In this view it is a defining element of civilized life that civilians are stripped of any means of self- defense and made dependent on the military and police for their physical safety, the mere desire to defend home, family and self being counted “among the worst instincts in the human character.”[38] Anti-gun advocates routinely denounce mere ownership of firearms for defensive purposes as “vigilantism,”[39] a usurpation by citizens of the exclusive prerogative of the state, “anarchy, not order under law — a jungle where each relies on himself for survival.”[40] Accordingly, the anti-gun movement seeks to have Congress enact a national gun licensing program under which self-defense would not be accepted as a ground for gun ownership. Only sportsmen would be allowed to own guns.[41]
These views are epitomized by a series of philippics against gun owners penned by Garry Wills, a nationally syndicated columnist as well as a distinguished cultural historian. Decrying “individual self protection” as “anti-social behavior”, he calls those who own guns for that purpose “anti-citizens”, “anti-patriots”, “enemies of their own patriae.” Professor Wills’ views deserve quotation at length since he comes as close as any anti-gun advocate ever has to addressing the issue of citizen gun ownership vis-a-vis geno-politicide and comparable state abuses:
[The NRA] caves into its nut element, which believes that the citizenry must be armed against its own government. Only if people have guns are they protected from tyranny. The gun nuts who write me say that their liberty may have to be preserved against their own government…. Every civilized society must disarm its citizens against each other. Those who do not trust their own people become predators upon their own people. The sick thing is that haters of fellow Americans often think of themselves as patriots. Give up your gun the gun nut says, and you give up your freedom…. Trust no one but yourself to vindicate your cause. Not the law. Not your representatives. Not your fellow citizens. []Every handgun owned in America is an implicit declaration of war on one’s neighbor. When the chips are down, its owner says, he will not trust any other arbiter but force personally wielded.[42]
These emphatic effusions belie any claim that Professor Wills has ever seriously considered that gun bans facilitate state abuse of power over the citizenry. His are not the words of one who knows that but discounts it as a consideration, having calculated that the abusive state will inevitably be too powerful and determined for any of its victims to escape through armed resistance.[43] (Yet I reiterate that Professor Wills comes closer than any other anti-gun advocate has to expressly considering the issue.) To Professor Wills is it unthinkable that the state would ever do things that would justify citizens in armed self-defense against it. He knows that it is not literally unthinkable; that the possible need for armed self-defense against a rogue state is a major issue for those who defend gun ownership. But he denounces that idea as morally unthinkable, condemning those who think it as “anti-citizens”, “anti-patriots”, “enemies of their own patriae.” He probably chooses this prolix profusion of epithets is because the more traditional epithet is so extremely politically incorrect. Nevertheless the short form of what Professor Wills is saying is that the very idea of self-defense against the state is “un-American.”
Again let me expressly disclaim any implication that Professor Wills is anti-Semitic or a bigot (except against gun owners), much less that he would contemplate or condone mass murder. Having thus cleared the way of false issues, I invite readers to consider how his denunciation of the possession of arms for defense against the state dovetails with the justification a Storm Troop leader gave for rigorous Nazi enforcement of German anti-gun laws:
The associations of the national revival, SA [Storm Troopers], SS [para-military adjunct to the Gestapo] and Stahlhelm [a non-Nazi lunatic fringe para-military organization], offer every decent citizen the opportunity to join their ranks in the struggle. Anyone who does not belong to one of the above named organizations and nonetheless keeps his weapon without permission, or indeed conceals it, must be regarded as an enemy of the national government and will be brought to account without compunction and with the utmost severity.[44]
Or, in the words of Benito Mussolini: “Nothing above the state, nothing outside the state, nothing against the state.”
If those comparisons seem extreme, contrast to the credulous trust Professor Wills feels — and urges on others — in “the law… your representatives … your fellow citizens” — the actual history of pre-Holocaust Nazi Germany where an ever
intensifying campaign of bullying and vicious physical attack culminat[ed] in “Kristallnacht”, the night of Broken Glass [when mobs of ordinary Germans, incited by the Nazis, perpetrated a nationwide] “spontaneous uprising” against the Jews; hundreds were beaten up or killed, their property was smashed, their synagogues burned.[45]
Consider what light the Nazi government’s reaction to Kristallnacht sheds on Professor Wills’ vilification of gun owners who lack his credulous trust in “the law… your representatives.” Calculating the damage to Jewish property at 1 billion Reichsmarks, the Nazis (i.e., the Jews’ “representatives”?) feared that insurance claims in such an extraordinary amount would beggar the German insurance industry. So the Nazi government first canceled the Jews’ insurance coverage by decree and then levied a 1 billion Reichsmark fine on the Jews for having had their property destroyed.[46]
And finally, juxtapose Professor Wills’ belief in the moral necessity of a citizenry rendered physically helpless and entirely dependent on the police to Hermann Goering’s description of the duty of the German national police force he directed: “I refuse the notion that the police are protective troops for Jewish stores. The police protect whoever comes into Germany legitimately, but not Jewish usurers.”[47]
It would be unkind to suggest the gun owners Professor Wills vilifies for their boorish and atavistic mistrust of the state are more aware or intelligent than he. So let us instead consider the suggestion of another distinguished scholar that the Holocaust may bring into question exactly those matters of which Professor Wills is so profoundly certain:
how we can rely on our government, on our fellow citizens, on our neighbors; how we can rely on anyone who today seems at least tolerant, and maybe even friendly, but tomorrow might turn on us with murderous rage just because we are Jews or African Americans or Bosnian Muslims or Irish Protestants or mentally disabled or whatever? [One lesson of the Holocaust may be] … that our government, our neighbors, our friends of today, can quickly and easily become our assassins of tomorrow.[48]
It should be noted that these remarks appear in a commentary on the movie Schindler’s List, not a discussion of gun ownership. But it is also worth noting what Schindler did when he was finally able to free his Jews: “According to Mr. Schindler’s wife Maria, when Schindler decided to liberate his Jewish workers, he handed them all semiautomatic firearms so they could fight the Nazis.”[49]
FUN AND GAMES WITH LIVES AND STATISTICS
Comparisons between lives lost in warfare and civilian gun deaths are a common rhetorical device: Thus it is said that more Americans were killed by civilian guns during the Vietnam War than in that war[50]; or that “over the last 25 years more Americans have died in gun-related murders than were killed in the Vietnam War, the Korean War and World War I combined.”[50A] In vain do gun owners protest that most gun deaths are suicides, the largest number of whom are elderly people[50B] — who, perhaps, are better positioned to evaluate for themselves whether to continue to live than are Handgun Control, Inc. or the National Coalition to Ban Handguns. In vain do gun owners point out that, if the issue is murder, that is almost invariably a crime committed by highly atypical gun owners with life histories of violent attack on those around them, felony, substance abuse, and automobile and other dangerous accidents.
In vain do gun owners note that it is irrelevant to the point of bigotry to blame them as a group for murders committed by a tiny proportion of highly atypical violent aberrants. The reply is that if gun control saves even one life, it is worth it. On examination, that reply appears to be disingenuous: For when forced to confront persuasive evidence that gun use by victims saves far more lives annually than illegal use by criminals takes, anti-gun advocates just shift gears, declaring that it is barbaric for a society to sanction victims to use guns as a deterrent to their murder.[50C]
Being steeped in such self-delusive disingenuousness, it is little wonder that the anti-gun advocacy literature pays no serious attention to issues of geno-politicide, pogrom and state abuse of power. Yet if the concern really is (or should be) the numbers of lives lost, focus on those issues eclipses all the rhetorical anti- gun comparisons. Harff and Gurr calculate that geno-politicide since World War II has killed more people than all the world’s wars in that period, including not only Korea, Vietnam and the Gulf War, but also the India-Pakistan Wars, the enormously sanguinary Iran-Iraq War, all the Arab-Israeli wars, the Falkland War and Russia’s Afghan adventure. Likewise, LETHAL LAWS (p. 4) calculates the total number killed by the Nazi murder machine (exclusive of World War II military casualties) at 13 million Jews, Gypsies, political opponents and Polish, Russian and other innocent civilians over the 13 years 1933-45. Roughly 13,315 Americans are murdered annually with guns.[50D] be calculated at c. 13,315. It would take almost 620 years of such murders to equal the number killed by just this particular state.
THE VIABILITY OF SELF-DEFENSE AGAINST GENO-POLITICIDE
I trust the foregoing demonstrates that at least some anti-gun advocates are oblivious to these issues, if not “in denial.” Yet readers may be bothered by a point which I shall put as strongly as possible: Yes, governments have exterminated (and/or aided some of their citizens to exterminate) almost 170 million of their own people in this Century.[50E] Yes, it is reasonable to distrust the state and fear the terrible crimes it may occasionally commit. But this does not justify civilians being armed for defense against such crimes. Suffice it to say that it is simply silly to think that if Jews had been armed they could have resisted a German Army which crushed Poland, Denmark, Norway, France, Yugoslavia and Greece in the years 1939-41 and then maintained itself against the combined might of the U.S., the U.S.S.R. and Britain until 1945.
But this claim of futility does not suffice because it doesn’t meet the point. That point is not that an armed citizenry is an insuperable bar to geno-politicide, but that in some circumstances the fact that prospective victims are armed will avert it — or at least will allow vast numbers of victims to resist and escape. In this context it is not the armed citizenry which is irrelevant but the Holocaust — for it is an aberrant example, the only example of a 20th Century geno-politicide as to which it might not have made all that much difference for the victim population to be armed. [50F]
The Holocaust is atypical because Jews amounted to less than .5% of an indifferent (and sometimes actively hostile) continental population. It was relatively easy to round them up and kill them. But what about the Cambodian geno-politicide? Had its 1-3 million victims been armed, it is far from clear that a Khmer Rouge army numbering less than 100,000 could have murdered them. At least, the Khmer Rouge doubted they could have done so. The Cambodians were already largely disarmed, guns having been prohibited from the time of the French occupation. Nevertheless, as a prelude to the geno-politicide, the Khmer Rouge took the extraordinary precaution of a nationwide house-to-house and hut-to-hut search to assure that the citizenry were indeed helpless. The rationale the Khmer Rouge gave their victims for disarming would surely have deceived Professor Wills since it is his own. As one witness reported, they would
knock on the doors and ask the people who answered if they had any weapons. “We are here now to protect you,” the soldiers said, “and no one has a need for a weapon any more.” People who said that they kept no weapons were forced to stand aside and allow the soldiers to look for themselves…[This all] took nine or ten days, and once the soldiers had concluded the villagers were no longer armed they dropped their pretense of friendliness.[50G]
Even closer in point is the survival against Turkish genocide of some armed Armenians. Having systematically disarmed Armenians through a series of decrees over a 25 year period, the Turkish Army and police were able to round up and slaughter ca. 1.1 million by a combination of overt killings and forced marches over hundreds of miles without food or water and in unendurable heat. But the thousands of Armenians from Aleppo province who had secreted guns took to the hills. Having defeated the first Turkish Army units sent against them, they retreated from stronger forces in good order, until they reached the sea from whence the British (who were at war with their murderers) could evacuate them.[50H]
This impels me to pause for a poignant and telling anecdote. In 1916 Britain, France and Czarist Russia, all being then at war with Turkey, self-righteously denounced the Armenian genocide. But Britain and France demurred when approached to support a coup to overthrow the Turkish government and put in place new ministers who pledged to halt the geno-politicide. The problem was that one of the new ministers’ conditions for taking Britain and French support was that those nations publicly eschew their desire to grab up oil- rich Turkish lands in what are now Iraq and Syria.[50I] This outcome speaks volumes for Professor Wills’ prescription that people should trust in government rather than arms: The 1.1 million Armenians whose lives depended on the good will of governments (their own or foreign) perished, while the thousands who depended on their own arms for safety survived.
It bears emphasis that this Anglo-French inaction in the face of genocide is not an isolated exception to a general record which otherwise justifies Professor Wills’ position. On the contrary, if there is anything exceptional about the Armenian genocide it is that England and France bothered to notice the genocide enough to condemn it — a condemnation which, of course, accorded with their national interest. Referring to geno-politicides in the 20th Century, Prof. Harff notes that
lack of international sanctions and/or interventions against massive human rights violators is the norm rather than the exception. Unless national interest combined with the ability to interfere dictates intervention, few efforts are made to ameliorate the suffering of local populations.[50J]
As she has also pointed out “The main precedents for humanitarian interventions” against geno-politicide all involve a more powerful nation intervening in the affairs of an enemy nation: “India in East Pakistan, now Bangladesh in 1971; Vietnam in Cambodia in 1978 and Tanzania in Uganda in 1979. The interveners’ motives in [all] these cases were politically suspect….”[50K]
Returning now to the viability of armed self-defense against mass murder, consider Uganda where 500,000 victims were slain by Idi Amin’s army, which numbered only about 25,000, and secret police (the “State Research Bureau”), which was only 3,000 strong. The army was ill-disciplined and incompetent, and collapsed not long after Amin declared war on Tanzania in late 1978.[50L] Had the 500,000 victims been armed, it is difficult to believe that they would have been slain by forces so small and poorly organized.
And then there is Indonesia. Had its “Communists” and other political dissenters been armed in the mid-1960s, it is all but inconceivable that a half-million or more of them could have been slain by fellow civilians armed with edged weapons, as well as firearms lent them for that purpose by the Indonesian government. [50M]
Of course, had the Indonesian leftists successfully resisted the government’s civilian proxies, that might just have provoked the military to attack directly, leading Indonesia into virtual civil war. Nevertheless, that has not been the pattern in other cases in which armed victims have successfully resisted. The first Turkish geno-politicide against the Armenians occurred in the 1890s and largely involved civilian proxies specially armed by the government for that purpose. Armenians were slaughtered by the tens of thousands. But where Armenians were armed they fought both the irregulars and some Turkish units to a standstill. Perhaps out of fear that civil war or prolonged disorders might provoke foreign intervention, the Army recalled the arms from its proxies and ended the attacks (though the Armenians arms were confiscated, too, which facilitated the second geno-politicide 20 years later).[50N]
The same phenomenon often seems to have occurred in our own South during the early 1960s. Southern police were content to see blacks and civil rights workers brutalized, and even slain, so long as the violence was only by the side they favored. But when blacks displayed arms for self-defense, the police intervened to halt KKK outrages — lest they lead to gun battles in the streets and other disorders.[50-O] It is the view of the International Society for the Prevention of Genocide that “Prompt defensive measures are the most effective means for the prevention of genocide.”[50P] Of course, in taking this view the International Society is doubtless influenced by a further disagreement with Professor Wills, Ms. Friedan, et al. over the legitimacy of self-defense which the Society deems “the most moral” and “the most sacred juridical institution.”)[50Q]
In any event, assuming that the Indonesian leftists had been armed and that their resistance to civilian attackers had caused the Army to join the attack, how would the half-million or more murdered victims have been worse off? Or consider Bosnia where forty-five years of Communist gun banning gave the Serb-controlled former Yugoslavian government just the monopoly of arms Professor Wills extols as requisite to civilized life. And that monopoly has been sustained because ever since Serbian “ethnic cleansing” of Bosnian Moslems began, arms sales to “both sides” have been barred by European governments that agree Professor Wills’ belief that “Every civilized society must disarm its citizens against each other.” The result in the past two years has been the massacre of over 200,000 unarmed Bosnian men, women and children. Though even President Clinton belatedly disagrees, those European governments adamantly insist on continuing the embargo to the Bosnians (as to their own citizens) confident, to quote Ms. Friedan, “that lethal violence even in self-defense only engenders more violence and that gun control should override any personal need for safety.”
As Professor Wills, Ms. Friedan, et al. ought to be aware, the resulting genocide against Bosnians Muslims is not some unique, or even unusual, phenomenon. Tragically, the 200,000 Muslims who have died as a result of policies based on the anti-gun worldview are but the latest of 50+ million unarmed civilians massacred by gun- banning European governments in this Century. Given this history, the “gun nuts”, “anti-citizens, anti-patriots”, Professor Wills, Ms. Friedan et al. so vilify may, in their turn, wonder whether he and she and their European compeers suffer under some kind of learning disability.
CAN IT HAPPEN HERE?
If the foregoing seems too harsh an assessment it may be that to many Americans geno-politicide is so remote that they dismiss out of hand whether measures to preclude it have relevance in fashioning public policy. LETHAL LAWS serves as an antidote to such myopia — a reminder of the frequency of 20th Century geno-politicide even in “First World” powers such as Germany, the USSR and China.
As a “reality check” for Americans who reflexively dismiss the relevance of geno-politicide, consider a “thought experiment” for which I am indebted to Rutgers University Law Professor Robert Cottrol: Let us suppose we could go back to the year 1900 and inform a select group of the most eminent savants that within 50 years a great nation will exterminate a minority group. Having done so, we solicit their guesses as to whom both the victim group and the perpetrator nation would be. The peril of myopically ignoring the possibility of geno-politicide is illustrated by the fact that in 1900 not even the most perspicacious and knowledgeable observers would have been able to predict the Holocaust. Yes, they might have listed the Jews as a likely victim group. But other victim groups would have been ranked as likelier targets; and, as to potential perpetrators, the U.S. would have been ranked very high — while Germany would not have figured at all, in Europe at least.[50R]
In 1941, our government herded 100,000 American citizens of Japanese descent into concentration camps, as a result of which they lost (along with their freedom) billions of dollars in property — all their businesses, virtually all their personal property of any value, and much of their realty. As with the Turkish geno-politicide against the Armenians, American policy was based on wartime fear of a poorly-understood minority group which, having suffered decades of discrimination, was believed likely to be disloyal. Fearing sabotage, espionage and other “Fifth Column” activities there as well, the U.S. even urged Central and South American governments to round up their own citizens of Japanese descent and ship them to the U.S. for internment in our camps.[50S]
Nevertheless our policy differed from that of the Turks in one pertinent and fundamental respect: Genocide was neither our intent nor the result. But LETHAL LAWS raises the disturbing question of what might have happened had the terrible defeats we suffered at and after Pearl Harbor continued beyond the battle of Midway. In that battle the Imperial Japanese fleet marshalled a potentially overwhelming force. Had we not deciphered the Japanese codes and known their plan in advance, Midway might have resulted in another staggering U.S. defeat rather than being a catastrophe from which the Japanese fleet never recovered. As a result, Hawaii might have been captured and the entire, highly vulnerable West Coast menaced by invasion or at least extensive raiding and shelling. Had such a disaster befallen the U.S., there would have been no steady diet of victories after Midway to assuage the violent fury of the American populace over the Pearl Harbor attack. Demagogues searching for a scapegoat might well have blamed the Midway defeat and loss of Hawaii on subversion by Japanese-Americans in Hawaii (who were not interned because they were too large a proportion of the populace) and exploited paranoid fears of supposed sabotage on the Mainland. Further suspicions might have been fueled if the hot-air balloons equipped with incendiary devices that Japan released toward our Pacific Northwest had produced mysterious, massive forest fires, which was the Japanese intent.[50T]
In these circumstances, might America have committed genocide against Japanese-Americans? Before dismissing the question as far- fetched, consider a Gallup Poll taken in 1944 — by which time America’s eventual victory in the war seemed assured. Nevertheless, asked “What do you think we should do with Japan, as a country, after the war?”, 13% of the respondents answered, “Kill all Japanese people.”[50U]
AND YET…, AND YET…
And yet evidence is not entirely lacking from which one might infer that our institutions give the U.S. some insulation from the evil of geno-politicide. Consider the history of the Second Ku Klux Klan which in the U.S. was initially much more successful than was the Nazi Party in Germany. At its high point in the 1920s, KKK membership exceeded 4.25 million and even outside the deep South the KKK “came to wield great political power, dominating for a time the states of Oregon, Oklahoma, Texas, Arkansas, Indiana, Ohio and California”, as well as wielding substantial power in New Jersey and Illinois.[50V] One element in this success was the severe economic downturn of the immediate post-WWI years which persisted throughout the 1920s in the nation’s agricultural areas.[50X] Another was that (if I may be excused for quoting myself):
A younger generation of blacks — led by soldiers returning from World War I familiar with guns and willing to fight for the equal treatment they had received in other lands — had to be painfully reintroduced to the forces of social control.[50Y]
Those forces of social control included restrictive gun laws directed against African-Americans. Over a period of two centuries those laws had played an indispensable part in Southern control of slaves and, after the Civil War, of freedmen.[50Z] This legacy to the Second KKK from the triumph of its ancestor, the First KKK, and beyond was further buttressed when in 1911 New York State followed Southern examples (and presaged post-WWI Germany) by conditioning handgun ownership on obtaining a police license — a requirement intended to disarm Italians, Jews and other supposedly criminous immigrant groups.[50-AA]
Even so, the American tradition of armed self-defense was difficult to eradicate. When attacked by the Klan and/or other racist groups in the 1910s and 1920s, armed victims defended themselves vigorously; mob members and other attackers were killed or wounded and the Klan defeated by “mass, armed counterattacks so determined that the National Guard was called out on at least one occasion.”[50-BB]
It is not surprising that the threat of uncontrolled firearms ownership formed a leit motif in the KKK’s warnings against dangers which were no less terrifying for being imaginary: “that Catholics were stockpiling weapons to take over the country”; that “white people must ready themselves for an imminent race war with people of color”[50-CC]; that America was being inundated with radical alien immigrants like Sacco and Vanzetti (arrested under a Massachusetts gun control law) whom many Americans fearfully associated with the savage, bloody revolutions radicals had staged first in Russia and then in post-World War I Hungary and Germany[51]; and that the danger of radical uprising was enormously magnified by the machinations of the Catholic Church which was so dedicated to its long-time goal of violently overthrowing free American government that it was willing to make common cause with leftist radicals for that purpose.[52]
Concomitantly, 1917-1927 were the watershed years for states to enact firearms licensing requirements which, like those of pre- Nazi Germany, allowed police to selectively deny firearms to those deemed untrustworthy. In both North and South, the states adopting such laws during that period were Klan-controlled or substantially Klan-influenced.[53] Likewise a Congressional ban on cheap handguns was proposed by a Tennessee senator for the express purpose of allowing “the dominant race” to prevent “the carrying by colored people of a concealed deadly weapon, most often a pistol….”[54]
But by the end of the 1930s the Klan was discredited and in steep decline, unable to take any advantage of the same Depression that brought the Nazis to power in Germany. One factor in the KKK’s defeat and decline was that its victims continued to have access to the means of self-defense. The credit for that continued access accrues to the National Rifle Association and the U.S. Revolver Association, whose unceasing efforts caused such laws to be defeated, repealed or held unconstitutional across the nation. [55]
America’s rejection of the Second Klan was neither solely nor primarily attributable to our tradition of firearms ownership and armed self-defense. But that tradition had three important effects: First, armed self-defense brought police intervention which martyrdom would not have. African-Americans, Catholics, Jews, immigrants and radicals were neither popular nor powerful in the areas in which the KKK thrived. Public authorities and influential private citizens might have been content to see unarmed victims brutalized or slain, if the violence could have been so confined.[56] But when victims arm themselves, authorities feel compelled to take action, lest incidents lead to widespread bloodshed and disorder.[57] Florida’s
Gov. Martin spoke out forcefully. Such a situation in which “mobs formed at night to terrorize the community and [so] citizens had to carry concealed weapons” [for their own protection] could not continue.[58]
As the author of the law that broke the theretofore-increasing power of the Klan in another state put it, “We don’t want conditions in North Dakota to become such that a man must carry a pistol to be safe.”[59]
Second, gun ownership gave victim groups both the courage and the means to maintain themselves in the face of the KKK threat and police indifference or hostility.[60] And victim perseverance was essential to eventually discrediting the KKK. By defeating its initial attacks, managing to maintain themselves and asserting their rights, victims showed the way and encouraged decent citizens in the majority community to come to their aid. Third, because those decent citizens were themselves armed, they were encouraged to speak out, thereby generating the overall community support that eventually ostracized the Second KKK into obscurity.[61]
In this connection, I have always found surprising the self- righteousness with which many Americans condemn the entire German people for not “doing something” to end the Holocaust and the years of preceding Nazi atrocities. No doubt many Germans who learned of those horrors actively endorsed them. But any who felt differently and might have sought to stop the horrors had been systematically disarmed and systematically propagandized to eschew guns as things possessed only by criminals, Communists and other demonized left- wing extremists.[62] Even though the Germany Army and the SS Deaths Head Units (Waffen SS) were fully occupied on the Eastern and Western Fronts, if decent Germans wanted to “do something” to stop the Holocaust, what “something” could they do? Were they supposed to attack the concentration camp guards with their bare hands?
ON MORALS, RIGHTS, PRIVILEGES AND PRUDENCE
Professor Wills, Ms. Friedan, et al take as a moral truth, and an indispensable element of civilized life, Max Weber’s definition of the state as a “community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”[63] Despite its appeal to many modern American opinion leaders, Weber’s definition conflicts sharply with the spirit of an American Constitution and Bill of Rights enacted in an era which
abound[ed] with favorable references to the citizenry’s widespread possession of personal arms as characteristic of the “diffusion of power” necessary to preserve liberty [and] … fears that the new federal government might disarm the populace, leading to a “monopoly of power [which] is the most dangerous of all monopolies.”[64]
Concomitantly, Weber’s dictum, “The state is considered the sole source of the right to use violence,” conflicts with the American concept of inalienable rights and the entire liberal philosophical tradition on which it rests. However accepted the idea of the state as a (much less “the sole”) source of the right to self-defense may be in European philosophy today, it contradicts what the Founders deemed fundamental in their own beliefs and those of the European philosophers they embraced: That there is a “natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression” — which right is “the primary law of nature [and, therefore, cannot be] taken away by the law of society.”[65]
Professor Wills and other anti-gun advocates may disagree with the idea of inalienable rights or of self-defense as such a right. But they would be quite wrong to think that their disapprobation for the private use of force finds sanction in Weber’s definition of the state as an entity enjoying a monopoly of the use of force. On the contrary, as Weber himself saw, implicit in his definition is that the state may privilege private citizens to kill whenever the state wants — even in circumstances where killing would be clearly illegal in our society which deems self-defense sacred and inalienable.[66] Thus, for those elite Europeans who are licensed to possess firearms the privilege to use them has traditionally far exceeded the right of self-protection enjoyed by Americans. For instance, under the West German “criminal code of 1975 (as well as the superseded [German] code of 1871), everyone who suffers an unjustified invasion of rights has an absolute privilege to use whatever force is necessary….” That is to say, a privileged European gun owner who suffers a minor assault by a non-privileged, unarmed European could legally shoot him if “necessary to thwart the invasion.” Likewise, “If the only way to stop a fleeing thief, even a child stealing fruit, is to shoot the thief, the courts and the scholars have supported the property owner’s right to use deadly force.”[67]
CONCLUSION
Our Constitution, including the Second Amendment, derives from a “republican” philosophy which held, as Thomas Paine put it, that “arms like laws discourage and keep the invader and plunderer in awe and preserve order in the world… Horrid mischief would ensue were [victims] deprived of the use of them… the weak will become a prey to the strong.” A further tenet of the republican view is that (quoting Paine again) when victims are disarmed and weak it “allures the ruffian” [68]; but, conversely, when victims are armed and defend themselves from oppression it draws to them the support of other good people. As the English liberal Francis Place explained how hatred and violence against Jews were eradicated in 18th Century England:
Dogs could not be used in the streets in the manner many Jews were treated. One circumstance among others put an end to the ill-usage of the Jews. About the year 1787 Daniel Mendoza, a Jew, became a celebrated boxer and set up a school to teach the art of boxing as a science. The art soon spread among young Jews and they became generally expert at it. The consequence was in a very few years seen and felt too. It was no longer safe to insult a Jew unless he was an old man and alone. But even if the Jews were unable to defend themselves, the few who would now be disposed to insult them merely because they are Jews, would be in danger of chastisement from the passers-by and of punishment from the police.[69]
Two related tenets of that tradition were that to be armed for self-defense is as much a profound moral commitment as a practical necessity[70], and that the surest way to avoid bloodshed is by keeping “the invader and plunderer in awe….”
Such ideas are, of course, foreign to opinion leaders who feel “that lethal violence even in self-defense only engenders more violence and that” prospective victims’ desire to be able to defend home, family and self represents “the worst instincts in the human character.”[71] Equally foreign to Ms. Friedan, the editors of the WASHINGTON POST, et al., is the terrible truth our classically educated Founders knew from Thucydides’ rendition of a genocide he himself sorrowfully records. In 416 B.C. the Athenians put the population of Melos to the sword, exempting only those deemed suitable for sale as slaves. The lesson Thucydides drew remains as inescapably true today as it was 2400 years ago: “The strong do what they will, the weak endure what they must.” Conscious of that terrible but inescapable truth, our Founders rejected the concept of state “monopoly of [armed] power … the most dangerous of all monopolies”, in favor of what James Madison, author of the Second Amendment, acclaimed as “the advantage of being armed, which the Americans possess over the people of almost every other nation” and guaranteed individuals the right to possess arms in order to assure the “‘diffusion of power’ necessary to preserve liberty.”[72]
ENDNOTES for REFLECTIONS ON GUN CONTROL AND HOLOCAUSTS
* Attorney and criminologist, San Francisco, CA. The author wishes to thank the following for helpful comments: Prof. Robert Cottrol, Rutgers University – Law; Prof. Ted Robert Gurr, University of Maryland – Political Science; Prof. Barbara Harff, U.S. Naval Academy (Annapolis) – Political Science; Dr. C. Kates, F.A.C.S., Novato, CA; Ms. Marilyn King, Novato, CA; Prof. Daniel Polsby, Northwestern University – Law; Rudolf J. Rummel, University of Hawaii – Political Science. Of course, for errors of fact or interpretation the author is alone responsible. =======================================================================
1. Quoted in Don B. Kates, “Why A Civil Libertarian Opposes Banning Guns”, CIVIL LIBERTIES REVIEW, June-July, 1976 at p. 26.
2. Quoted in Richard Munday, “The Monopoly of Power”, a paper delivered to the 1991 annual meeting of the American Society of Criminology.
3. From an official commentary on the German Firearms Act of 1937 quoted in Don B. Kates, RESTRICTING HANDGUNS 185 (1979).
4. R. Sherrill, THE SATURDAY NIGHT SPECIAL 176 (N.Y., Penguin, 1975). For examples, see: the contrasting treatments scattered throughout two early books C. Bakal, NO RIGHT TO BEAR ARMS (N.Y. Paperback Library, 1967) and R. Kukla, GUN CONTROL (Harrisburg, Pa., Stackpole 1973) (anti-gun and pro-gun respectively); Ramsey Clark, CRIME IN AMERICA 90 (Simon & Schuster, 1970); and the full chapters devoted to foreign comparisons in GUNS DON’T DIE, PEOPLE DO (N.Y. Priam, 1981) by Handgun Control, Inc. chairman Nelson “Pete” Shields and GUNS, CRIME AND FREEDOM (Washington, Regnery: 1994) by NRA executive vice president Wayne LaPierre.
5. F. Zimring and G. Hawkins, THE CITIZEN’S GUIDE TO GUN CONTROL 9 (N.Y. Macmillan, 1986).
6. Diane H. Shetky, “Children and handguns: A public health concern” 139 Am. J. Dis. Child. 229 (1985), Shields supra at 67.
7. Abraham Tennenbaum, “Israel Has A Successful Gun Control Policy” in Charles P. Cozic, GUN CONTROL: CURRENT CONTROVERSIES 250 (San Diego, Greenhaven, 1992). In this connection it is instructive to note that, though the American suicide rate is higher than our murder rate, and very much higher than Israel’s, the suicide rates in many European nations are so much higher than the American rate that they actually equal or exceed the American rates for murder and suicide combined.
8. Id.; Compare Swiss and Israeli laws and practices cited in Glenn H. Reynolds & Don B. Kates, “The Second Amendment and States’ Rights: A Thought Experiment”, forthcoming in WILLIAM AND MARY LAW REVIEW (1995) and Don B. Kates, “Handgun Prohibition and the Original Meaning of the Second Amendment”, 82 MICH. L. REV. 203, 249, n. 193 (1983) (cited hereinafter as “Original Meaning”) to Title 18 U.S.C. Sec. 922(o) and the newly enacted (v) and 26 U.S.C. Sec. 5845.
9. Tennenbaum, supra, at 248.
10. For discussion of gun availability and carrying under Swiss law see David Kopel, “Peril or Protection? The Risks and Benefits of Handgun Prohibition”, 12 ST. L. U. PUBLIC L. REV. 285, 299 (1993) and David Kopel, THE SAMURAI, THE MOUNTIE, AND THE COWBOY: SHOULD AMERICA ADOPT THE GUN CONTROL OF OTHER DEMOCRACIES?, ch. 8 (Prometheus 1992); see also Reynolds & Kates, supra.
11. See e.g. the guest editorial by Israeli criminologist Abraham Tennenbaum, “Handguns could help” Baltimore Sun, October 26, 1991.
12. Don B. Kates, “Firearms and Violence: Old Premises, New Research” in 1 T. Gurr (ed.) VIOLENCE IN AMERICA at p. 209. Though common in Israel, such events are, for some reason, rarely reported in the American press. Compare the following from an Ap. 7, 1994 A.P. release which appeared in few papers except the MARIN (CA) INDEPENDENT JOURNAL p. A3: “JERUSALEM — A Palestinian opened fire with a submachine gun at a bus stop near the port of Ashdod today, killing one Israeli and wounding four before being shot to death by bystanders, officials said…. National police spokesman Eric Bar-Chen said today’s attacker, who was armed with an Uzi submachine gun, was shot and killed by a civilian and a soldier who were at the bus stop and hitchhiking post used by soldiers. Ashdod is 15 miles South of Tel Aviv and 15 miles north of the Gaza Strip…. Bar-Chen identified the gunman as a Palestinian from the Shati refugee camp in the Gaza Strip. ‘Six ammunition clips and a knife were found on his body,’ he added.”
13. Such policies have been adopted by statute, administrative practice or judicial decision in a dozen or more states including Connecticut, Florida, Indiana, Oregon, Pennsylvania and Washington. Unfortunately, in most of them the policy is too new to allow for any coherent result to be evaluated. The best that can be said is that in no case has the policy resulted in sharply increased murder rates as would be predicted by believers in the notion that guns in the hands even of law-abiding, responsible adults “cause” murder. In Florida, five years of widespread concealed carry licensure has correlated with sharply reduced homicide. (We emphasize correlated in deference to the all too often neglected truism that correlation is not proof of causation.) See Clayton E. Cramer & David B. Kopel, “SHALL ISSUE”: THE NEW WAVE OF CONCEALED HANDGUN PERMIT LAWS (Golden, CO: Independence Institute, 1994), forthcoming in TENNESSEE LAW REVIEW (1995).
14. THE SAMURAI, THE MOUNTIE [etc.] supra, winner of the 1992 Comparative Criminology Award of the Division of International Criminology of the American Society of Criminology.
15. For instance, at p. 314 LETHAL LAWS notes among the targets of the Cambodian genocide “all Khmer Muslims (Chads).” Professors Harff and Gurr note that this genocide has been little recognized because it amounted to only about 200,000 deaths (about one-half of the whole Chad people) out of a Cambodian bodycount that may be as much as 15 times greater. Barbara Harff & Ted Robert Gurr, “Toward Empirical Theory of Genocides and Politicides: Identification and Measurement of Cases Since 1945”, 32 INT’L. STUD. Q. 359, 366 (1988).
16. Compare LETHAL LAWS at p. 315 (“It seems safe to conclude that Pol Pot murdered about one million Cambodians, some 14% of the population.”) to Professor Leiser’s estimate of “some two to three million” Cambodian deaths. Burton M. Leiser, “Victims of Genocide” in Diane Sank & David I. Caplan, TO BE A VICTIM: ENCOUNTERS WITH CRIME AND JUSTICE 278 (N.Y. Plenum Books: 1991). See also Harff & Gurr, supra at 364, listing the death toll at 800,000-3,000,000.
17. The complexities of defining “genocide”, and distinguishing it from other varieties of murder and oppression are addressed by a leading theoretician, Barbara Harff, “Recognizing Genocides and Politicides” in Helen Fein (ed.), GENOCIDE WATCH (New Haven, Yale: 1992); see also Harff & Gurr supra and Barbara Harff & Ted Robert Gurr, “Victims of the State: Genocides, Politicides and Group Repression Since 1945” 1 INT’L REV. VICTIMOL. 23 (1989) (cited hereinafter as “Harff & Gurr-Victims”).
For present purposes I have adopted the term suggested by Harff (pp. 27-28), “geno-politicide” and her definition of it as “the promotion and execution by the state or its agents that result in the deaths of a substantial portion of a group. In genocides the victimized groups are defined primarily in terms of their communal characteristics. In politicides, by contrast, groups are defined primarily in terms of their political opposition to the regime and dominant group.” In addition, I shall follow Harff’s distinction of geno-politicides from “pogroms” which she describes as “short-lived outbursts by mobs, which, although often condoned by authorities, rarely persist.” The distinction here is that Harff specifies that geno-politicide must have occurred over an (admittedly arbitrary) time period of at least six months. If that durational requirement is fulfilled, it is irrelevant whether the killing is by government agents directly or by government-condoned private actors. Id. at 37; see also Harff & Gurr, supra at 24 defining geno-politicides as including instances in which state agents “assist or knowingly acquiesce in the killing of undesirable groups by vigilantes, “death squads”, or private militia. [Also] instances [in which] governments simply ignore their obligations to protect vulnerable minorities attacked by murderous mobs or profiteers.” See examples discussed infra.
18. The first was Jay Simkin & Aaron Zelman, “Gun Control: Gateway to Tyranny” (1992) (available from JPFO, 2872 South Wentworth Avenue; Milwaukee, WI 53207, [414] 767-0760) (hereinafter cited as “German Gun Control”).
19. See, e.g. two works by David I. Caplan who, like his wife, Professor Sue Wimmershoff-Caplan, is a member of the NRA national board of directors: The Warsaw Ghetto: 10 Handguns Against Tyranny, Am. Rifleman, Feb. 1988 (reprinted in NEW DIMENSIONS, special issue 1989) and “Weapons Control Laws: Gateways to Oppression and Genocide” in Sank & Caplan, supra. See also: Elliott Rothenberg, Jewish History Refutes Gun Control Activists, Am. Rifleman, Feb. 1988; Wayne LaPierre (NRA Executive Director), GUNS, CRIME AND FREEDOM 166-70 (Washington, D.C., Regnery: 1994); John Salter, “Civil Rights and Self-Defense”, AGAINST THE CURRENT, July-August, 1988; Raymond Kessler, “The Ideology of Gun Control”, Q. Journal of Ideology 381 (1988), and “Gun Control and Political Power” 5 LAW & POLICY Q. 381 (1983); Stefan Tahmassebi (an NRA employee), “Gun Control and Racism”, 2 GEO MASON CIV. RTS. L. J. 67 (1991); J. Neil Schulman, “Talk at Temple Beth Shir Shalom” in J. Neil Schulman, STOPPING POWER: WHY 70 MILLION AMERICANS OWN GUNS (Santa Monica, CA, Centurion, 1994).
20. There are, unfortunately, far more than seven instances of geno-politicide in this Century. Harff & Gurr, supra, pp. 363-5, writing in 1988, identified “forty four episodes of state-sponsored mass murder” which meet their criteria since World War II alone. But their criteria expressly accept small instances as well as vast ones. (“A ‘few hundred’ killed constitutes as much genocide or politicide as the death of thousands if the victim group is small to begin with.” (Harff & Gurr-Victims, supra at 26.) Also, eight of their forty-four instances involve yet other geno-politicides in the same nations LETHAL LAWS covers and in which the same anti-gun laws were still in effect. Nor did the victims in any of the forty- four geno-politicides have widespread access to firearms for their defense. (Private communication from Prof. Harff. See also next footnote.)
21. In many even fairly recent instances of geno-politicide the killings were substantially or primarily committed against unarmed victims by the use of clubs, edged weapons, agricultural implements and other makeshift or primitive weaponry. This includes Burundi, Rwanda, India and even Cambodia (where the Khmer Rouge cadres were generally equipped with firearms but often bayoneted or clubbed the victims to death rather than shooting them). Private communications with Professors Gurr and Harff.
22. Thus, for instance, many of the 500,000 or more slaughtered Indonesian “Communists” were killed by right wing civilians with firearms specially provided them for that purpose by the Indonesian government. More current examples of civilian “killing squads that are not only accepted but often endorsed by governing authorities” are found in the Philippines and El Salvador. Harff supra at 37. For similar phenomena in the Ottoman Empire of the 1890s and Bosnia in the 1990s see discussion infra.
23. While arms might not have made a great deal of difference in the Holocaust, where arms were available they saved some lives. Caplan cites an incident in which a Dutch gentile concealing Jewish children shot a Nazi police officer who had detected her “crime.” In Sank & Caplan supra at 308. Compare Nechama Tec, DEFIANCE: THE BIELSKI PARTISANS (STORY OF THE LARGEST ARMED RESCUE OF JEWS BY JEWS IN WORLD WAR II) (Oxford, Oxford U. Press: 1993). There were other more or less successful Jewish uprisings. See, e.g. Yechiel Granatstein, The War of a Jewish Partisan (Brooklyn: Mesorah, 1986) and Chaika Grossman, The Underground Army: Fighters of the Bialystok Ghetto (N.Y.: Holocaust Library, 1987). Even in the death camps of Sobibor and Treblinka, Jews seized arms from the Nazi guards and attempted to escape. A few succeeded, and, more significantly, the camps had to be closed prematurely. LETHAL LAWS supra note 2, at 158.
24. The advertisement appears at p. 133 of German Gun Law supra, featuring pictures of both Hitler and Brady. In defense of JPFO, it may be noted that the advertisement does not expressly suggest that anti-gun advocates plot or condone geno-politicide. Rather it denounces as bigotry the central tenet of anti-gun advocacy which blames on law abiding, responsible gun owners a homicide rate which is the work of a tiny, highly aberrant and atypical subset of criminal gun owners. JPFO is, of course, correct that it is bigotry to blame a large group of entirely innocent people for ills perpetrated by a tiny fraction of highly atypical members. It is surprising that liberal, enlightened people who would properly denounce the bigotry of blaming a whole (racial or ethnic) group for crimes committed by some people of that race or ethnicity commonly attribute to gun owners in general the violence committed by a tiny fraction of highly atypical and violent aberrants.
Nevertheless, even though anti-gun advocates often engage in such bigotry — which is a staple of American political discourse, e.g., the all too common suggestion that the ACLU is to blame for crime — that does not remotely justify comparing them to Adolf Hitler. Regarding the innocence of gun owners generally and the aberrance of murderers, compare J. Wright & P. Rossi, ARMED AND DANGEROUS: A SURVEY OF FELONS AND THEIR FIREARMS 4 (N.Y., Aldine: 1986) (“It is clear that only a very small fraction of privately owned firearms are ever involved in crime or [unlawful] violence, the vast bulk of them being owned and used more or less exclusively for sport and recreational purposes, or for self-protection.”) to Don B. Kates, “The Value of Civilian Arms Possession as Deterrent to Crime or Defense Against Crime”, 18 AMERICAN JOURNAL OF CRIMINAL LAW 113, 127 (1991) (“Murderers generally have long prior histories of criminal and other dangerously aberrant behavior.”). See also Don B. Kates, “Bigotry, Symbolism, and Ideology in the Battle Over Gun Control,” 1992 PUBLIC INTEREST LAW JOURNAL 31. 25. See, e.g. Sanford Levinson, “The Embarrassing Second Amendment”, 99 YALE L. J. 637 (1989). [and the 1999 Wheeler article cited at the start of the text, supra.]
26. Gary Kleck and Marc Gertz, “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun”, forthcoming in the 85 J. OF CRIM. L. AND CRIMIN. # 2 (1995), Gary Kleck, POINT BLANK: GUNS AND VIOLENCE IN AMERICA (N.Y., Aldine, 1991) ch. 4; see also Gary A. Mauser, “Gun Control in the United States,” 3 CRIMINAL LAW FORUM 147 (1992).
27. German Gun Control supra 7; LETHAL LAWS supra at pp. 149-183, discussing and translating the August 7, 1920 Law on the Disarmament of the People and April 12, 1928 Law on Firearms and Ammunition.
28. March 18, 1938 Weapons Law Sec. 12, 18 and 19 exempting: “Members of the SS-Reserves and the SS Deathshead Units”; a plethora of Nazi Party officials; officers in the Hitler Youth movement, the SA and the SS; and Nazi Party Departments authorized by the Fuhrer’s Deputy to stockpile arms for distribution to their members. See translation at pp. 165 and 167 of LETHAL LAWS. Compare Dec. 12, 1938 Gestapo circular and 1938 German legal commentary — both excerpted on the first page of this essay-review.
29. See, e.g. Peter B. Kraska, “The Police and Military in the Post-Cold War Era: Streamlining the State’s Use of Force Entities in the Drug War” 4 POLICE FORUM 1 (1994), Charles J. Dunlap, Jr. “Welcome to the Junta: The Erosion of Civilian Control of the U.S. Military”, 29 WAKE FOREST LAW REVIEW 341 (1994) and a mock-history warning by Col. Dunlap which won the Joint Chiefs of Staff award, “The Origins of the American Military Coup of 2012”, 22 PARAMETERS 2 (1992-3) (U.S. Army War College Quarterly).
30. McGrory, “An Annus Horribilis For Us All”, WASHINGTON POST Jan. 3, 1993, p. C-1 (In Somalia, “The Marines [went] … door to door, demanding the residents turn over all firearms. Let’s hope they take careful notes so they can repeat the exercise here.”); Toledo, Ohio BLADE editorial “The Gun Confiscators” Dec. 17, 1992 (same); Catherine O’Neill, “Bring in the Army to End the Fear”, LOS ANGELES TIMES ; “D.C. Mayor Calls for [National] Guard to Fight Crime, MARIN INDEPENDENT JOURNAL, Oct. 23, 1993 (Mayor Sharon Pratt Kelly asked the President to assign 3,000 armed National Guard personnel to patrol the District of Columbia); U.S. Newswire, Inc., Transcript of President’s Oct. 4, 1993, remarks during “A California Town Hall Meeting”). See also the call by the president of the L.A. Medical Association for a “‘military attack'” on ghetto areas, “‘make a sweep through those neighborhoods, take all the weapons…'” (quoted in Cotton, “CDC Investigators Explore New Territory in Aftermath of Unrest in Los Angeles” 267 J. Am. Med. Ass’n. 3001 [1992]) and the Superintendent of the Chicago Police Department’s opinion that to seize guns “some constitutional rights of citizens should be suspended.” “To Fight Crime, Official Would Suspend Rights”, WASHINGTON POST July 13, 1991, P. A6.
31. See, e.g. “The Folly of Focusing on ‘Assault Weapons'” by anti- gun advocate Osha Gray Davidson, NEW YORK TIMES, Aug. 24, 1994 and James Jacobs, “Assault Rifles Are Bad Targets”, NEWSDAY, May 28, 1993.
Gary Kleck, POINT BLANK: GUNS AND VIOLENCE IN AMERICA 73 (Aldine, N.Y. 1991) quotes an HCI spokesman admitting that assault weapons “play a small role in overall violent crime.” Prof. Kleck comments: “Although there was no upward trend in sales of semi- automatic centerfire rifles in the general public from the early 1970’s to the late 1980’s, it might be argued that the prevalence of ownership and use of these and other weapons falling into the broad “AW” category increased among criminals during this period. There are no reliable quantitative trend data for this period, partly because the matter did not become an issue until late in the period. The best available information appears to be that pertaining to Dade County [Miami] trends. [The Florida Commission on Assault Weapons’] informal 1990 survey of the seven firearms examiners in that county yielded the unanimous opinion that “AW” use in shootings had been slowly and steadily declining since 1981.
“It was commonplace for news sources in the late 1980s to refer to ‘assault rifles’ as the ‘favored’ weapon of criminals, or, more specifically, of drug dealers and youth gangs. There is no hard evidence to support such a claim, either for criminals in general or for these specific types of criminals. Analyses of samples of guns seized by police from criminals indicate that only a small fraction can be described as ‘assault weapons.’ This fraction was less than 3% (“assault rifles” only) in Los Angeles in 1988, 1/2 of 1% (“assault-type long guns”) in New York City in 1988, 8% (“assault weapons”) in Oakland, California, less than 3% (semiautomatic rifles, including sporting ones) in Chicago, and 0% (“assault weapons” covered under the 1989 federal import ban) in Washington, D.C. Of 217 homicides committed in 1989 in Dade County (Miami) Florida, 3 or 1.4% involved an ‘assault weapon.'” Id. at 72-3.
Less than 1.9% of firearms submitted to the California Bureau of Forensic Services Laboratories for analysis in connection with murder or assault in 1990 were on the list of firearms whose future sale was prohibited by the California assault weapon ban. Based on a larger list of “assault-type weapons” submitted in 1986 and 1987 (prior to the in 1989 California law), only 2.3% of guns in murders and assaults fell into that category. Of the 1,979 firearms seized in raids by the California Bureau of Narcotics Enforcement in 1990, only 2.9% were on the prohibited list. — Feb. 13, 1991 memorandum from S. Helsley, Assistant Director of the California Department of Justice Investigation and Enforcement Branch to the Director of the Division of Law Enforcement.
For a detailed review of the latest studies and statistics nationwide, see Edgar A. Suter, M.D. “‘Assault Weapons’ Revisited: An Analysis of the AMA Report” 83 MEDICAL J. GEORGIA 281 (1994). 32. The following epitomize the pervasive misinformation and deceit involved: 1) During private strategy sessions between the California Attorney General and other supporters of the proposed California assault weapon ban it was suggested that his Department of Justice could compile a study of the extent to which such weapons are actually misused. According to an internal Department of Justice memorandum the suggestion was rejected out of a frank realization that such a study “was unlikely to support the theses on which the [Act] would be based.” (The memorandum went on to describe the arms the banned arms as constituting “no conceivable threat” to the public.) Feb. 14, 1991 memorandum to Assistant Attorney General P. Kenady from S. Helsley, Assistant Director of DOJ’s Investigation and Enforcement Branch. 2) The NEW YORK TIMES quotes the author of the federal assault weapon ban, Senator Dianne Feinstein, as singling “out the [Steyr] AUG, for instance as the ‘favorite of drive-by shooters because of its light weight and firepower.'” (Weiss, “A Hoplophobe Among the Gunnies”, September 11, 1994 NEW YORK TIMES magazine p. 66.) But when Daniel Gifford, a freelance journalist checked this he was told by California law enforcement officials that there were no more than 10,000 AUGs in the country, mostly owned by law enforcement, serious collectors and the movie industry, and that calls to other police agencies across the nation found no one who had ever heard of an AUG being used in a drive-by shooting. 3) Urging the enactment of an assault weapon ban, Col. Leonard Supenski of the Baltimore County Police Department declaimed “We’re tired of passing out flags to the widows of [Baltimore] officers killed by drug dealers with Uzis.” (LOS ANGELES TIMES, May 25, 1990.) The F.B.I., however, reports that only one officer has ever been killed with an Uzi and that was in Puerto Rico, not Baltimore. Less than 1.5% of police officers killed in the 1980s were killed with any “assault-type weapon.” June 20 and September 5, 1990 letters from J. H. Wilson, Chief, Uniform Crime Reporting Program to Paul H. Blackman, Research Coordinator of the NRA.
33. Title 18 USC Sec. 922(g)(1). Comparable state provisions are exemplified by Cal. Penal C. Sec. 12021ff., 12072, 12076, 12100-1, 12551-2 and W & I. C. Sec. 8100-8105.
34. See, e.g. Monograph, ASSAULT WEAPONS AND ACCESSORIES IN AMERICA (Educational Fund to End Handgun Violence, 1988) at 24 (“Previously the standard for restricting weapons [was] … Is the harm done by a given category of firearm outweighed by any possible benefit? [Since “assault weapons” are often semi-automatic replicas of modern military firearms] a new standard is emerging: For what purpose was this weapon designed?”) and John Hoyt Williams, “The Militarization of the American Rifle” THE CHRISTIAN CENTURY, Jan. 25, 1984, p. 78 (“When members of a local gun club in New Hampshire, Indiana or New Mexico can control more devastating firepower than the armies of Tanzania or Paraguay, it is time to rethink priorities.”)
It should be noted that both these sources, like most other arguments for banning such firearms, combine the points just quoted with (fallacious) claims that such firearms are often misused, that they are somehow particularly susceptible to misuse and/or that they are exceptionally dangerous. In fact, semi-automatic “assault weapons”, like the modern military arms they imitate, are designed to minimize lethality in accordance with the Hague Convention and because smaller, down-powered ammunition is logistically preferable to the use of older, larger high-powered ammunition. Even the most powerful “assault rifle” cartridge is far less powerful than those used by the older generation of semi-automatic hunting rifles. , V. Di Maio, GUNSHOT WOUNDS: PRACTICAL ASPECTS OF FIREARMS, BALLISTICS AND FORENSIC TECHNIQUES 146 (CRC, 1985); T. Bowen & R. Bellamy, Emergency War Surgery-NATO Handbook (Washington, D.C. – Gov’t. Printing Office, 1988), ch. 2 (“…many wounds from this weapon resemble those caused by much lower velocity handguns.”); M. Fackler, M.D., Wounding Patterns of Military Rifle Bullets, 22 International Defense Review 59 (1989); Fackler, Malinowski, Hoxie & Jason, Wounding Effects of the AK-47 Rifle Used by Patrick Purdy in the Stockton Schoolyard Shooting of Jan. 17, 1989″, 11 Am. J. Forensic Med. & Pathol. 185 (1990).
35. Title 18 U.S.C. Sec. 921(a)(30)(B)(iii) and 922(v), as added by the 1994 Crime Bill.
36. “Guns and the Civilizing Process”, WASHINGTON POST editorial Sept. 26, 1972. Compare Betty Friedan, calling “the trend of women buying guns ‘a horrifying, obscene perversion of feminism'” and asserting “that lethal violence even in self-defense only engenders more violence and that gun control should override any personal need for safety.” Interview by A. Japenga, HEALTH, March/April 1994; p. 54.
The premier anti-gun group, the National Coalition to Ban Handguns was founded, and is still sponsored by, the Board of Church and Society of the United Methodist Church. The Methodist Board teaches that it is a woman’s Christian duty to submit to rape rather than do anything that might imperil her rapist’s life. “Is the Robber My Brother” is the question rhetorically posed in the Methodist Board’s official publication. The answer is “yes” for, though the burglary victim or the “woman accosted in the park by a rapist is [not] likely to consider the violator to be a neighbor whose safety is of immediate concern***[c]riminals are members of the larger community no less than are others. As such they are our neighbors or, as Jesus put it, our brothers…” Brockway, “But the Bible Doesn’t Mention Pistols”, May, 1977 ENGAGE-SOCIAL ACTION FORUM. The language quoted is from pp. 39-40 of this issue, which has been published as a separate pamphlet by the Methodist Board of Church and Society under the title HANDGUNS IN THE UNITED STATES. For purely secular arguments to the same effect see citations given infra and particularly discussion of the views of Garry Wills.
7. Interview with Handgun Control chairperson Sarah Brady; Oct. 21, 1993 TAMPA TRIBUNE (Jackson, “Keeping the Battle Alive.”) In a more recent interview her husband responded to the question “Aren’t any handguns defensible?”, “For target shooting, that’s ok. Get a license and go to the range. For defense of the home – that’s why we have police departments.” PARADE June 26, ’94, p. 18: “In Step With: James Brady.” This has long been the attitude of anti-gun advocates as epitomized by the assertion of one of the earliest and most active, University of Chicago Professor Robert Replogle, M.D., organizer of a Chicago anti-gun group: “The only legitimate use of a handgun that I can understand is for target shooting.” Handgun Crime Control Hearings, 1975-6 Senate Judiciary Committee [Subcommittee re Juvenile Delinquency] Oversight of the 1968 Gun Control Act, v. II at 1974.) Another long-time opponent of defensive gun ownership, syndicated columnist Garry Wills asserts “Mutual protection should be the aim of citizens, not individual self-protection. Until we are willing to outlaw the very existence or manufacture of civilian handguns we have no right to call ourselves citizens or consider our behavior even minimally civil. There is something obscene about a person’s appeal to our basic social contract to justify [this] anti-social behavior [i.e. defensive gun ownership.]” From “John Lennon’s War”, CHICAGO SUN- TIMES, Dec. 12, 1980.
See also testimony on behalf of the Presbyterian Church, USA (a member organization of the National Coalition to Ban Handguns) emphasizing that it does not seek to ban rifles and shotguns because they are to be used for sport but only handguns which are illegitimate because their purpose is personal defense — 1985-6 Hearings on Legislation to Modify the 1968 Gun Control Act, House Judiciary Committee, Subcommittee on Crime; v. I at 127 and 128.
38. Quoting WASHINGTON POST editorial “Guns and the Civilizing Process” supra. See also: Geewax, ATLANTA CONSTITUTION, Aug. 20, 1993 p. A12 (“the crazy gun lobbyists … say guns don’t kill people. No, guns are doing something worse – they are killing civilization.”); Garry Wills quoted infra; Braucher, “Gun Lunatics Silence Sounds of Civilization” MIAMI HERALD, July 19, 1982 and Richard Hofstadter’s application against gun owners of D.H. Lawrence’s denunciation of the American soul as “hard, isolate, stoic and a killer.” “America As a Gun Culture” in AMERICAN HERITAGE, Oct. 1970 at 82. Compare the characterizations: by HCI vice president Jeanne Shields of NRA members as macho men who “don’t understand the definition of a civilized society” (NEWSWEEK interview, May 8, 1978); and of defensive gun ownership as “simply beastly behavior” in “Gun Toting: A Fashion Needing Change”, 93 SCIENCE NEWS 613, 614 (1968).
39. See, e.g.: June 19, 1975 Press Statement of the Young Christian Women’s Association of the United States; Trexler editorial in THE LUTHERAN, official publication of the Lutheran Church of America (a member organization of the National Coalition to Ban Handguns), Dec., 1979; and Testimony of the Board of Church and Society of the United Methodist Church in 1985-6 Hearings on Legislation to Modify the 1968 Gun Control Act, House Judiciary Committee, Subcommittee on Crime; v. I at 141.
40. Ramsey Clark, supra at 88, also decrying defensive gun ownership as an insult to government, for “A state in which a citizen needs a gun to protect himself from crime has failed to perform its first purpose.” To the same effect see discussion of Garry Wills views in the text infra.
41. Eckholm, “A Little Control, A Lot of Guns”, N.Y. TIMES, Aug. 15, 1993, quoting Sarah Brady. Compare LOS ANGELES TIMES editorial “Taming the Monster: The Guns Among Us” Dec. 10, 1993: “Under our plan individuals could own sporting weapons only if they had submitted to a background check and passed a firearms safety course. Other special, closely monitored exceptions could be made, such as for serious collectors.” To the same effect see LOS ANGELES TIMES editorial “Taming the Gun Monster: How Far to Go” Oct. 22, 1993 recommending that federal law limit ordinary citizens to “ownership [only] of sporting and hunting weapons.”
42. Garry Wills: “NRA is Complicit in the Deaths of Two Children”, DETROIT FREE PRESS, September 6, 1994; “Or Worldwide Gun Control” PHILADELPHIA INQUIRER, May 17, 1981; “Handguns that Kill”, WASHINGTON STAR, Jan. 18, 1981; and “John Lennon’s War”, CHICAGO SUN-TIMES, Dec. 12, 1980. 3
43. It should be noted that some language in Wills’ 1994 DETROIT FREE PRESS column could be read as also arguing that resistance to government will necessarily be futile. What will not be found in any of the columns, however, is recognition that armed defense against government could ever be morally legitimate. Rather, their consistent and insistent theme is that a citizen’s first duty is unquestioning trust in government; that those who even contemplate the possibility of having to defend themselves against it are un- American.
44. Quoted in Munday, supra.
45. Ann & John Tusa, THE NUREMBERG TRIAL 151 (Atheneum, N.Y.: 1986).
46. Id. 276, 283.
47. Quoted in Kates, RESTRICTING HANDGUNS supra at 188.
48. Southmayd Professor of Law at Yale, Robert A. Burt, “Confronting Holocausts: Remarks on Spielberg’s Schindler’s List,” 40 YALE LAW REPORT 13, 14 (1994).
49. William R. Tonso and David B. Kopel, “Gun Bans and ‘Schindler’s List'”, Independence Institute release, Aug. 24, 1994; see also Thomas Keneally, SCHINDLER’S LIST 346-347.
50. P. Shields, GUNS DON’T DIE, PEOPLE DO 35 (N.Y.: Arbor, 1981).
50A. LOS ANGELES TIMES editorial, “Taming the Gun Monster that is Consuming America”, Oct. 15, 1993, reprinted in Paul A. Winters (ed.), CRIME AND CRIMINALS (San Diego, Greenhaven, 1995) at p. 159.
50B. Wintemute, “Firearms as a Cause of Death in the United States.” 27 J. of Trauma 532 (1987).
50C. See, e.g. the review by Prof. Lawrence Ross [98 AMERICAN J. SOC. 661 (1992)] of Prof. Kleck’s book, POINT BLANK, supra. Without caviling at Kleck’s finding that handguns are used to repel crime more often than to commit it, Ross asserts that “despite the masses of data and the cleverness of his analysis and argument, Kleck has missed the point” because he accepts the idea of a society in which “masses of potential victims use the threat of gun violence against masses of potential armed criminals. [This ought to] disgust rather than cheer the civilized observer.” Indeed, after approvingly noting that the tragic “fate of James Brady” provided the “impetus for attempts at broader gun control” Prof. Ross actually welcomes “more [such shooting] incidents, more heinous ones with more tragic or important victims, [as the impetus for us] to develop the necessary determination” to legislate beyond “narrow controls” to banning and confiscating guns. [Id. at 662.]
50D. Mathematical average of 1980-1992 gun murder figures from Appendix (Table 1), p. 13, U.S. Dept. of Justice, Bureau of Crim. Statistics (Feb. 1994), FIREARMS AND CRIMES OF VIOLENCE: SELECTED FINDINGS FROM NATIONAL STATISTICAL SERIES.
50E. Prof. Rummel estimates the total at 169,198,000. Rupert J. Rummel, DEATH BY GOVERNMENT, ch. 1 (New Brunswick, Transactions, 1994).
50F. While I concede the matter arguendo, it has been argued that far more Jews would have survived if the Jewish Community had been armed to resist the Holocaust. Caplan notes that the initial Nazi attempt to liquidate the Warsaw ghetto was repelled by resisters armed “with only ‘ten pistols.’ Nevertheless, the shock of encountering even this relatively small resistance forced the German war machine to retreat and ‘discontinue their work in order to make more thorough preparations.’ For three months thereafter, the German Nazi soldiers did not dare to venture into the Ghetto.” Caplan in Sank & Caplan supra at 310. “This just shows what you can expect from Jews if they lay hands on weapons,” commented the Nazi Propaganda Minister, Joseph Goebbels, according to Rothenberg, supra. For the whole story of the Warsaw ghetto battle see Yitzhak Zuckerman, A Surplus of Memory: A Chronicle of the Warsaw Ghetto Uprising (Berkeley: U. of Cal. Pr., 19XX).
50G. Alec Wilkinson, A Changed Vision of God, The New Yorker, Jan. 24, 1994, at 54-55 50H. LETHAL LAWS supra at 83.
50I. Christopher Simpson, THE SPLENDID BLOND BEAST: MONEY, LAW AND GENOCIDE IN THE 20TH CENTURY 30 (N.Y., Grove: 1993).
50J. Barbara Harff, “The Etiology of Genocide” in I. Walliman & M. N. Dobkowski (eds.), GENOCIDE AND THE MODERN AGE (Greenwood Press, 1987) 43-44.
50K. Harff, “Bosnia and Somalia: Strategic, Legal and Moral Dimensions of Humanitarian Intervention” 12 PHILOS.& PUB. POL. 1, 5 (1992).
50L. Barbara Harff, “The Etiology of Genocide” in I. Walliman & M. N. Dobkowski (eds.), GENOCIDE AND THE MODERN AGE (Greenwood Press, 1987). Compare LETHAL LAWS at 280 estimating the Ugandan genocide toll at the more conservative figure of 300,000.
50M. As in most geno-politicides, the precise number of victims will never be known. The estimates run from 500,000 to 1.2 million. The perpetrators include elements of the army and individual and ad hoc groups of civilians armed by the military and also with their own knives and agricultural implements. Victims include not only “Communists” (i.e. leftist oppositionals), but also those suspected of being communists, including vast numbers who were suspected just because they were ethnic Chinese. Predictably, the loosing of mass murder against the targeted groups resulted in many cases in which the perpetrators took the opportunity to indiscriminately massacre people on the basis of feud, ancient enmity or personal dislike, without any connection to the overall program of political or ethnic murder. (Personal communications with Professors Harff and Rummel.)
50N. LETHAL LAWS, supra at 80-81.
50-O. CIVIL LIBERTIES REVIEW supra at 25-6. See also discussion of armed resistance to the KKK in the 1920s infra.
50P. Per V.V. Stanciu, Secretary of the International Society as quoted by David I. Caplan, in Sank & Caplan, supra, p. 308.
50Q. Id.
50R. Had Professor Cottrol and I been asked to guess (based on the worldview of a year-1900 savant) our choices would have been, in descending order of probability: 1) Perpetrator: Ottoman Empire Victim Group: Armenians 2) Perpetrator: U.S. Victim Group: Blacks 3) Perpetrator: U.S. Victim Group: Indians 4) Perpetrator: Russia Victim Group: Jews 5) Perpetrator: France Victim Group: Jews
I ran the question by leading analysts of geno-politicide. Professor Ted Robert Gurr (Political Science, University of Maryland) agreed with our choices, emphasizing particularly the U.S. as perpetrator and American Indians as the victim group. But the list offered by Prof. Rudolf J. Rummel (Political Science, University of Hawaii) differs significantly. In part this reflects his view which denies that democracies commit geno-politicide against their own citizens. His list would have been 1) Perpetrator: Ottoman Empire Victim Group: Armenians 2) Perpetrator: China Victim Group: Moslems 3) Perpetrator: Russia Victim Group: Jews 4) Perpetrator: Mexico Victim Group: Indians As a caveat, he notes that this list is based on an expectation of only hundreds of thousands of victim deaths in Russia and Mexico, respectively, rather than millions. He also notes that in their African colonies Belgium, France, Portugal and particularly Germany could have been expected to continue killing natives by the tens of thousands through forced labor under unendurable conditions and, in the case of the Germans, savage suppression of native opposition.
50S. LETHAL LAWS at 23.
50T. See Gerhard L. Weinberg, A WORLD AT ARMS: A GLOBAL HISTORY OF WORLD WAR II 3, 870-1 (Cambridge U. Press, 1994).
50U. Gallup poll released Dec. 20, 1994, question 2, in Gallup Poll, p. 477.
50V. Quoting Frederick Lewis Allen, ONLY YESTERDAY: AN INFORMAL HISTORY OF THE 1920’s 55-57 (N.Y., Harper & Roe, 1931) (hereinafter ONLY YESTERDAY); see also 2 James West Davidson & Mark Hamilton Lytle, AFTER THE FACT: THE ART OF HISTORICAL DETECTION 275 (N.Y. Knopf, 1982) and the separate chapters David M. Chalmers devotes to the 1920s Klan in Georgia, Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Oregon, North and South Carolina, California, Colorado, Missouri, Kansas, Minnesota, Indiana, Ohio, Illinois, Wisconsin, Michigan, Florida, Virginia, Pennsylvania, New Jersey and New York. HOODED AMERICANISM (N.Y. Doubleday, 1965).
Whatever else may be said about the KKK, it’s activities made a substantial contribution to American law nationwide and in many contexts. For instance, the Klan was responsible for the Oregon prohibition against parochial schools which was voided in Pierce v. Society of Sisters, 268 U.S. 510 (1925). HOODED AMERICANISM, ch. 12. And the leader of the Indiana KKK, having kidnapped and repeatedly raped a woman who caught his fancy, was the deserving subject of a path-breaking case upholding a conviction of murder when in terror and despair she committed suicide as the only way to escape captivity. Stephenson v. State, 179 N.E. 633 (Indiana, S. Ct., 1932). William Kunstler, noting Klan strength in Southern New Jersey, has suggested that it may have been responsible for the famous, but never solved, Hall-Mills Murder. William Kunstler, THE HALL-MILLS MURDER: THE MINISTER AND THE CHOIR GIRL (New Brunswick, Rutgers U. Press, 1964).
50X. See generally Nancy MacLean, BEHIND THE MASK OF CHIVALRY: THE MAKING OF THE SECOND KU KLUX KLAN (Oxford, Oxford U. Press, 1994) (hereinafter cited as THE MAKING OF THE SECOND KU KLUX KLAN), chs. 1-3.
50Y. D. Kates, “Toward a History of Handgun Prohibition in the United States”, 19 in D. Kates (ed.) RESTRICTING HANDGUNS (1979); and THE MAKING OF THE KU KLUX KLAN, supra at 28-9.
50Z. As a Florida Supreme Court justice frankly avowed in denying the application of such a law against a white appellant: “The Act was passed for the purpose of disarming Negro laborers … [it was] never intended to be applied to the white population.” Watson v. Stone, 4 So. 2d 700, 703 (1941) (concurring opinion). Southern gun laws from the 18th Century through the early 20th are discussed in: Robert J. Cottrol & Raymond T. Diamond, “The Second Amendment: Toward an Afro-Americanist Reconsideration”, 80 GEORGETOWN L.J. 309 (1990), Robert J. Cottrol & Raymond T. Diamond, “‘Never Intended to be Applied to the White Population’: Firearms Regulation and Racial Disparity, The Redeemed South’s Legacy to a National Jurisprudence?” forthcoming in CHICAGO-KENT L. REV. (1995), and Kates, History of Handgun Prohibition, supra.
50-AA. For the history of New York’s Sullivan Law, and its purposes see id. and also discussion in Don B. Kates, “The Battle Over Gun Control” 84 THE PUBLIC INTEREST 42 (1986) and L. Kennett & J. Anderson, THE GUN IN AMERICA: THE ORIGINS OF A NATIONAL DILEMMA, ch. 7 (London, Greenwood, 1975).
50-BB. THE MAKING OF THE SECOND KU KLUX KLAN, supra at 13, 14. For other incidents of armed resistance by individuals or groups, and of bearing arms for protection against potential KKK attacks, see HOODED AMERICANISM supra at 66, 67, 179, 198, 239, 248, 249, 273, 338 and 348.
50-CC. Quoting THE MAKING OF THE SECOND KU KLUX KLAN, supra, Introduction, p. xi. HOODED AMERICANISM, supra, 67 notes KKK claims that “Arms were being stored in [Catholic] church basements as the Pope got ready to seize the government. Among Klansmen “One popular story was that every time a boy was born to a Roman Catholic family, the father added a rifle and ammunition to his local church’s arsenal.” Id. at 111.
Significantly, the oath which every Klansman took omitted any mention of the Second Amendment right to arms, though it committed him to upholding “the sacred constitutional rights and privileges of free public schools, free speech, free press, separation of church and state, liberty, white supremacy, just laws and the pursuit of happiness against any encroachment.” Id. at 115-16.
51. THE MAKING OF THE SECOND KU KLUX KLAN, supra, 70, 83, 91, 93, 96. Acute fear of imminent, sanguinary revolutionary activity was not confined to the KKK. Southern employers and union leaders alike denounced the “flooding of the South and Georgia with … the scum of Europe, a people in nowise in sympathy with the spirit of our institutions and form of government.” Id. at 70. Such fears were entertained throughout the nation. See ONLY YESTERDAY supra at 16- 17 and ch. 3 and Davidson & Lytle, supra.
Nor were such fears entirely groundless. Prior to World War I anarchist assassins had taken the lives not only of a Russian Czar, an Austrian Empress, a King of Italy and a Spanish Premier, but also of President William McKinley. Barbara Tuchman, THE PROUD TOWER, ch. 2 (N.Y., Macmillan: 1962). In the immediate aftermath of the War, anarchists (or communists or syndicalists with whom they were often confused): exploded a bomb in Wall Street, killing 30 and wounding over a hundred; and attempted to assassinate Oliver Wendell Holmes, the Attorney General, the Postmaster General, the Secretary of Labor, the Commissioner of Immigration, J.P. Morgan, John D. Rockefeller and a number of other magnates. ONLY YESTERDAY 41-42, 59-62.
52. THE MAKING OF THE SECOND KU KLUX KLAN, supra 96, History of Handgun Prohibition, supra at 17-18. There is ample precedent for the current lunatic fringe belief that John F. Kennedy was killed by a nefarious secret cabal. A comparable 19th Century literature alleged that the Catholic Church had assassinated Lincoln and had secretly sponsored secession out of its hostility to the U.S. (as to popular government everywhere). Then, as now, such views were buttressed by a plethora of falsehoods, e.g. that all the Lincoln assassination conspirators were Catholics. (Actually only the Surratts and Mudd, who was innocent, were.) A la the movie “JFK”, the evidence for Catholic Church complicity included solemn claims that Catholic priests a thousand miles away had been aware of the assassination before Lincoln’s death. An excellent account will be found in William Hanchett, THE LINCOLN MURDER CONSPIRACIES (U. of Ill. Press, 1983).
53. The states adopting these laws were North Carolina (1917), Missouri (1919), Arkansas (1923), Virginia (192 ), New Jersey (1924), and Oregon (192 ). “History of Handgun Prohibition”, 15, 19-20. I am not suggesting that the Klan was the sole, or even the most important, factor in enacting such laws. Most of the post-Civil War Southern gun laws discussed in footnotes 50Z were enacted after the formal dissolution of the First KKK and before the creation of the Second. Likewise, a full six years before the latter event the predecessor publication of the current University of Virginia Law Review editorialized in favor of disarming “the son of Ham” as follows: “It is a matter of common knowledge that in this state and several others, the more especially in the Southern states, where the Negro population is so large, that this cowardly practice of ‘toting’ guns has been one of the most fruitful sources of crime…. Let a Negro board a railroad train with a quart of mean whiskey and a pistol in his grip and the chances are that there will be a murder, or at least a row, before he alights.” Comment, “Carrying Concealed Weapons”, 15 VA. L. REG. 391. 391-2 (1909).
54. 65 CONG. REC. 3946 (Mar. 11, 1924). The proposal mirrored a law that Tennessee had adopted as soon as whites regained control of its legislature in 1870. Similar laws designed to raise price barriers to handgun ownership — and thereby exclude the impecunious African-American population — were a common feature in the late 19th and early 20th Century South. “History of Handgun Prohibition”, supra, 14-15. Such laws are commonly denominated “Saturday Night Special” laws, the derivation being from “niggertown, Saturday night.” Id. at 25.
55. THE GUN IN AMERICA, supra, 165-215, “History of Handgun Prohibition”, supra at 24-25. The Uniform Revolver Act, which was drafted and promoted by gun owner organizations as a more moderate alternative to licensing and prohibitory legislation, was adopted in virtually every state. See “Original Meaning”, 82 MICH. L. REV. supra at 210. Inter alia, Arkansas and Oregon adopted it and repealed their handgun license requirements.
56. A central aim of the KKK was to infiltrate government and the police because “the backing of politicians [could] protect it from hostile legislation and prosecution.” THE MAKING OF THE SECOND KU KLUX KLAN, supra at 16. Chalmers emphasizes the Klan’s success in infiltrating and controlling police agencies in every state or locality in which the KKK operated; in several instances in which shoot-outs resulted in the death of masked Klan attackers, the deceased turned out to be (off-duty?) policemen. HOODED AMERICANISM supra at 41, 87, 144, 196, 228, 311 and 336.
57. See, e.g. HOODED AMERICANISM, supra ch. 8 (defeat of the KKK in Louisiana).
58. Id. at 228.
59. Id. at 141, quoting author’s statement in support of law against appearing in public masked.
60. Compare HOODED AMERICANISM id. and ch. 9 (armed self-defense by family of Mississippi U.S. Senator opposed to the KKK) to POINT BLANK, supra at 29 (“… results from a number of national surveys have all indicated that most protection gun owners feel safer because they have a gun in their home….”), 119-20 (as also do gun owners who have guns for other reasons).
61. “Firearms and Violence: Old Premises, New Research” supra at 202-3 noting study showing that 81% of “Good Samaritans” who rescued crime victims or arrested criminals “‘own guns and some carry them in their cars. They are familiar with violence, feel competent to handle it, and don’t believe they will be hurt if they get involved.'”
62. E.g. the Storm Troop leader’s vilification of firearms ownership which so closely dovetails with Professor Wills views; see text accompanying footnote 44 supra.
63. Italics in original. H.H. Gerth and C. Wright Wills, FROM MAX WEBER 78 (Oxford, Oxford U. Press: 1981).
64. Kates, “Original Meaning”, 82 MICH. L. REV. supra at 235.
65. 3 W. Blackstone, COMMENTARIES *4. Compare Montesquieu, 2 Spirit of the Laws 60 (“Who does not see that self-protection is a duty superior to every precept?”), T. Hobbes, LEVIATHAN 88, 95 (“a covenant not to defend myself with force from force is void.”), A. Sidney, Discourses Concerning Civil Government 175, 180-1, 266-7, 270 (1698) (“Swords were given to men, that none might be Slaves, but such as know not how to use them”; “Nay, all Laws must fall, human Societies that subsist by them be dissolved, and all innocent persons be exposed to the violence of the most wicked, if men might not justly defend themselves against injustice….”).
66. Weber wrote not that the state alone may use violence but that “The state is considered the sole source of the right to use violence.” FROM MAX WEBER supra.
67. All the immediately preceding quotations are from George P. Fletcher, “The Right and the Reasonable”, 98 HARV. L. REV. 949, 952 (1985). Prof. Fletcher informs me that this is no longer the law in Germany.
68. Writings of Thomas Paine 56 (M. Conway ed. 1894). In a much earlier criticism of pacifism, Paine wrote: “I am thus far a Quaker, that I would gladly argue with all the world to lay aside the use of arms, and settle matters by negotiation, but unless the whole will, the matter ends, and I take up my musket and thank heaven he has put it in my power.” Quoted in A.J. Ayer, THOMAS PAINE 8 (U. Chi. Press, 1988). Note that Paine is not suggesting that one only needs guns because others have guns. He is saying that one needs guns because others will not give up violence in favor of peaceful resolution of disputes.
69. F. Place, Improvement of the Working Classes (1834) as quoted in R. Webb, Modern England: From the 18th Century to the Present 115, n. 14 (1970).
70. The Founders “believed that the perpetuation of a republican spirit and character in their society depended upon the freeman’s possession of arms as well as his ability and willingness to defend both himself and his society.” Robert Shalhope, “The Armed Citizen in the Early Republic”, 49 LAW & CONTEMP. PROBS. 125, 138 (1986); Don B. Kates, “The Second Amendment and the Ideology of Self- Protection” 9 CONSTITUTIONAL COMMENTARY 87, 94 (1992): “Arms possession for protection of self, family and polity was both the hallmark of the individual’s freedom and one of the two primary factors in his developing the independent, self-reliant, responsible character which classical liberal political philosophers deemed necessary to the citizenry of a free state.”
71. Quoting Betty Friedan and the WASHINGTON POST respectively. See note 36 supra.
72. “Original Meaning” supra, 82 MICH. L. REV. at 235 quoting debate on the Constitution, including Madison in The Federalist, No. 46.