As a member of several legal bar associations, I receive numerous local bar journals and magazines. Last month, one such magazine included a glowing review of Dennis Henigan's (Henigan is a VP of the Brady Center) new book entitled "Lethal Logic." You can find the text below (it is very long).
I also submitted a letter to the editor in regards to this one. While there were dozens of items I would have liked to address (arguing for gun control by mentioning that "two members of The Beatles were attacked—John Lennon was shot and died; George Harrison was stabbed and survived...", among others) I had to keep it short to have any chance of having the letter published. We'll see whether they do so.
Would be interested in hearing your thoughts and responses to the book review.
First, the book review: (very long)
Lethal Logic: Exploding the Myths That Paralyze American Gun Policy
By Dennis A. Henigan
Potomac Books, Inc. 2009 Review By Ronald Goldfarb
How can it be that despite national polls consistently documenting a large majority of the American public as being in favor of gun controls, escalating data describing an intolerable amount of gun violence, and daily news reports about innocent children and other American citizens killed or maimed by crazed gunmen, our country continues on its path of treating the right to have guns sacrosanct? In a 2005 Gallup poll, 35 percent of American households reported owning a gun. In Lethal Logic, Dennis A. Henigan, a veteran Brady Center to Prevent Gun Violence attorney and vice president, attributes this historic phenomenon to the ability of the National Rifle Association (NRA), the powerful lobby, to proselytize its three-pronged mantra: “Guns don’t kill people; people kill people;” “When guns are outlawed, only outlaws will have guns;” and “An armed society is a polite society.”
One by one, Henigan analyzes these three slogans, describing them to be deadly effective but fallacious bumper sticker philosophy. That guns are morally neutral and only dangerous because of people ignores our experiences with laws involving comparable products—alcohol, cars, and drugs. Like guns, these three products are dangerous in the hands of irresponsible people. We have laws controlling the use of alcohol, drugs, and cars (their effectiveness is another subject) despite having had to recognize that outright prohibition (of alcohol and drugs) does not work. But regulation is not the same as an outright ban.
Studies demonstrate the uniqueness of guns as enablers of fatal violence at far greater levels than, say, knives or poison. Henigan reminds readers that two members of The Beatles were attacked—John Lennon was shot and died; George Harrison was stabbed and survived. He quotes columnist Molly Ivins’ wry remark that “people are seldom killed while cleaning their knives,” and a social scientist’s clever logic that if people and not guns kill, why give people guns when they go to war? Henigan’s conclusion: Guns have the unique capacity for causing mortality. He compares crime data of the United States with that of other countries, demonstrating that crime is universal, but ours is more deadly.
What about the NRA’s second claim that if guns were outlawed, good citizens would obey and be disarmed, but criminals would still have guns? Henigan counters that this argument is a shell game. First, banning guns is not the goal of most gun control advocates. Background checks, tough licensing and registration regulations, manufacturing regulation, documentation requirements, and control on sales, storage, and possession all are not inconsistent with the possession of guns.
The other part of this argument is that because criminals do not obey laws, therefore laws are useless. But the claim that gun control laws are futile would lead to eliminating all criminal laws for the same reason—murderers murder so why make murder a crime?—a result no intelligent person would propose.
Henigan includes studies demonstrating that weak gun control laws lead to an active interstate market for illegal use, and undercut the effectiveness of strong gun control laws in other states. This data supports the case for interstate laws such as those governing pollution, which by its nature also cannot be left to individual states. “Our gun laws are a hodgepodge, full of unexplainable gaps and bizarre distinctions,” Henigan concludes. This creates a Catch-22 of controls.
There is a federal law precedent. Henigan points out that the National Firearms Act of 1934 taxing machine guns, silencers, and other weapons preferred by outlaws was effective, suggesting that handgun control would be, too. Notably, that law did not lead to a “slippery slope” of banishing or confiscating machine guns in the 75 years since its enactment.
A central point Henigan makes is that “[m]ost gunshot deaths in America are inflicted with guns owned by law abiding citizens,” not professional criminals. While guns are the weapon of choice in homicides, suicides and accidents are the major causes of gun deaths. There are more gun-related suicides each year than homicides— approximately 12,000 homicides against 17,000 suicide deaths. And more so in rural states with weak gun control laws. Suicide is an impulsive act that could be reduced by requiring waiting periods on gun sales. Henigan cites the “dramatic drop in auto deaths,” following changed policies that led to requirements for safety features in cars, as evidence that unintentional shootings could be curbed by the manufacture of safer guns. These surprising data demonstrate that slogan No. 2 is a myth.
The NRA claims that any controls will start us on a slippery slope, leading to a ban on all weapons. The essential fact is that controls are not the same as bans. The slippery slope argument requires proving a negative that is impossible to counter rationally. To argue that waiting periods, background checks, licensing, safety training, registration of sales, consumer safety standards, and curbs on large volume sales would inevitably lead to outright bans and, thus, are unacceptable precedents is speculative if not specious. The argument is as logical as saying controls on assault weapons would lead to a ban on rifles for duck hunting. Henigan contends that this is a paranoid argument, that guns have become a core religious tenet tied to human liberty. Take my gun “from my cold, dead hands…,” the late actor and NRA president Charlton Heston intoned in 2000, a declaration NRAers still echo. The argument that to concede any control over gun use will lead to total controls over people by the state defies proof. Incremental reform exists in countless other situations; regulations in tobacco and alcohol are examples. There, as with guns, Henigan admits the country is not prepared to condone outright bans, though it is in favor of controls. Indeed, an outright gun ban is now foreclosed by the U.S. Supreme Court’s recent decision in District of Columbia v. Heller.
The third slogan suggests that self-defense makes society safer, and that guns deter crime. If that is so, Henigan asks, why does our extraordinarily armed society have such a highly violent, lethal crime rate? Why does society regulate possession of guns for safety reasons (such as in airports, churches, government buildings, and schools) if guns make places safer? “The greater our fear of violence,” Henigan writes, “the greater our efforts to exclude guns.”
Henigan includes data from university studies showing that gun crimes exceeded self-protective use of guns 10 to 1 in one report, and between 4 and 6 to 1 in another. Henigan’s data demonstrates that “just as gun-owning nations are not more polite, and gun-owning states are not more polite, neither are gun-owning households.” The policy of fighting crime through a proliferation of guns as gun enthusiasts advocate, now that is a slippery slope.
Having participated in some of the litigation against gun manufacturers, Henigan’s observations are instructive. In defending various product liability claims against manufacturers, the defense has been to blame the customers (is Budweiser responsible for drunk drivers?), criticize the plaintiff’s lawyers, and argue that courts should not legislate. But in the absence of legislation or administrative regulation, courts have the historic right to determine if manufacturers are failing in their duty to provide safe products. Are accidents foreseeable, given what is known about the unsafe features of guns that are curable at negligible costs? Is there a duty to avoid sales to known criminal markets? Sixty percent of guns used in crimes originate from 1 percent of licensed gun dealers. Henigan’s experiences are edifying, as is the sad history of one company’s (Smith & Wesson) efforts to take preventive measures, only to be ostracized by the industry.
The Second Amendment of the U.S. Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” While opinions about the meaning of those words differ, passionately, the Supreme Court historically had interpreted the clause four times—in 1875, 1886, 1894, and 1939. In each case, the Court concluded that the amendment pertained to militia service and restricted acts of the federal government, but does not give all people the right to own guns. The amendment was written to give state militias the right to arm their citizens to protect their political sovereignty. At present, 40 states also have right to bear arms laws.
In 2007 the Supreme Court again addressed the Second Amendment question in Heller. The Court ruled 5–4 that the Second Amendment protects the people’s right to possess firearms for lawful purposes, free from any bans by federal—not state or local—laws. (The Supreme Court is reviewing a follow-up case, which deals with the application of the Amendment to state and local laws.) But that right is not unlimited, the Court added. It is not a right to carry any weapon whatsoever and for whatever purpose. The Court specifically noted that its opinion should not be interpreted as permitting guns to mentally ill people or felons, or in sensitive places such as government buildings and schools, or as limiting states’ rights to control the commercial sale of arms. We can expect years of test cases questioning which limitations are and are not permitted. Henigan’s partisan but analytical book should help courts and legislators define what those limitations ought to be.
When I was an officer in the U.S. Air Force Judge Advocate General, my first major trial involved two young men, friends, who were assigned all-night guard duty at the entrance to an isolated aircraft control and warning base in northern Wisconsin. To avoid the boredom, they played “slap leather.” They cleared their weapons and imitated cowboys drawing their guns from their holsters, seeing who could do it faster. My client was faster. But he made a fatal mistake—one bullet remained in the chamber of his weapon, and when he pulled the trigger he killed his friend. When one plays with guns, accidents can be fatal. That is the unique feature of handguns, and all the emotional clichés are deceptions. Henigan calls it lethal logic.
Henigan’s book will never persuade gun advocates, the cogency of his arguments notwithstanding. Gun ownership, like other emotional issues such as abortion, capital punishment, and school prayer, has defied civil discourse and rational debate. The NRA opposes a new crime prevention technology called microstamping—putting traceable, microscopic engravings on bullets—as a way to trace crimes, viewing it as a scheme of ammunition registration. It opposed a U.S. Government Accountability Office recommendation in 2005 to add known and suspected terrorists to the list of people forbidden by law from buying guns. It provocatively criticizes the Bureau of Alcohol, Tobacco, Firearms and Explosives, the government’s law enforcement agency in this field, for its aggressive enforcement of firearms laws.
The essential facts are that the majority of Americans believe there is a right to bear arms and that gun controls are proper. The book Henigan—or someone—should write is one that would help us understand the emotional, psychic, primal, and passionate defiance that gun control generates. Or is it just that money and politics prevail in battles over responsible public policy?
Second, letter to the editor: (had to be short)
In Ronald Goldfarb’s November 2009 “books in the law” segment, he leaves unchallenged the straw man arguments posited by Dennis Henigan in his anti-gun book, “Lethal Logic,” and after implying that those who support the right to keep and bear arms “[defy] civil discourse and rational debate” he questions why some support the right so fervently. To answer this question I suggest that Mr. Goldfarb consider the rationale for the Second Amendment's inclusion in the Bill of Rights, which Thomas Jefferson described as follows:
“[t]he strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”
Advocates for the right to keep and bear arms often face criticism when discussing its primary rationale. Many who favor increased gun regulation feel that the right has no place in peaceful society. They do not believe that our government could ever go the way of the Stalin regime or the Khmer Rouge. Mr. Henigan appears to be of this mindset and tries to convince readers that the “slippery slope” argument (that allowing some gun control will lead to increased regulation until the right to keep and bear arms is eviscerated) is absurd. He indicates that incremental reform would never lead to our government banning guns. As Mr. Goldfarb’s article suggests, “banning guns is not the goal of most gun control advocates.”
Interestingly enough Mr. Henigan has supported just the sort of legislation that would effectively ban an entire class of firearms, handguns, affixing his name to an amicus brief filed with the Supreme Court in support of such a law in the District of Columbia. It is just this sort of “incremental change” that our founding fathers warned against. In Jefferson’s words, “even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” James Madison, in a speech at the Virginia Ratifying Convention in 1788, agreed and stated that “[t]here are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
It is because of these sorts of “gradual and silent encroachments” that supporters of all of our civil rights must remain vigilant, for once lost such rights are not easily regained. As Judge Alex Kozinski of the Ninth Circuit stated in Silveira v. Lockyer,
“The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”