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The Great American Firearms Debate: Logic and Empiricism
Adam R. Tanielian
Abstract: This article examines the debate over gun control. A review of each side of theargument shows that courts have left room open for the legislative branch to control sales of certain weapons, although rights to bear and keep arms as individuals are inalienable under the Constitution. Correlational analysis of national statistics and comparisons between meanshelps shed some light on the successes and failures of the historical system and strategy,which worked in part for some groups, but did not accomplish more expansive goals nor
provide adequate relief to all Americans. Weapons bans may be effective, but the complexityof the legal system makes it impossible to determine by the numbers. Solutions to firearmscrime problems prove elusive, so we take a look at what other nations do. An evolved hybridmodel approach is suggested as a possible means of resolving longstanding murder problems.
Keywords: Firearms, Murder, Violent Crime, Gun Control, Constitutional Law
I. Introduction
Firearms-related deaths in the United States are about as common as traffic fatalities1.
Based upon these numbers, one might suspect firearms are not at all regulated in the U.S., but
such is actually not the case. The Second Amendment
2
is well-known as the source of rights
to bear arms, but sui generis laws and regulations are in no short supply3. It is true that
1Gun-related deaths in the U.S. exceed 30,000 annually, down from almost 38,000 in 1993 but not forecasted
to be on the decline. Motor vehicle-related deaths are less than 35,000 annually and on a steady decline over
the past 3 decades. Shooting-deaths are forecasted to exceed motor-vehicle deaths by 2015. See Chris
Christoff and Ilan Kolet, American Gun Deaths to Exceed Traffic Fatalities by 2015, Bloomberg (Dec 20, 20122:23 AM GMT+0700) http://www.bloomberg.com/news/2012-12-19/american-gun-deaths-to-exceed-traffic-
fatalities-by-2015.html (last visited Feb. 24, 2013).2
U.S. Const. amend. II
3The National Rifle Association (NRA) is frequently cited as referring to “20,000 gun laws” in the United States.
Glenn Kessler, The NRA’s fuzzy, decades-old claim of ’20,000’ gun laws, Washington Post (Feb. 5, 2013 06:00
AM ET), http://www.washingtonpost.com/blogs/fact-checker/post/the-nras-fuzzy-decades-old-claim-of-
20000-gun-laws/2013/02/04/4a7892c0-6f23-11e2-ac36-3d8d9dcaa2e2_blog.html (last visited Mar. 1, 2013).
The Gun Control Act of 1968 (P.L. 90 –618, 82 Stat. 1213) as amended by the Brady Act (18 U.S.C. § 922(g) (1)-
(9) and (n)) prohibits the sale or transfer of firearms to (1) persons who have been convicted or are under
indictment by a court for crimes punishable by more than one year in prison, (2) fugitives, (3) drug addicts, (4)
persons who are mentally defective or have been committed to a mental institution, (5) illegal aliens, (6)persons dishonorably discharged from the military, (7) persons who renounced American citizenship, (8)
persons subject to a restraining order, (9) persons convicted of domestic violence.
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Americans own more guns per capita than citizens of any other country4, creating the
appearance of unfettered rights to bear and keep arms. However, various restrictions apply
under the Brady Act
5
, which requires background checks for potential gun owners. 95% of
Americans and 74% of National Rifle Association (NRA) gun owners are said to support
background checks prior to gun sales, which resulted in over two million denials since the
Brady Act was adopted6.
Recently, due primarily to a series of brutal mass shootings, including at schools in
low-crime areas such as Newton, Connecticut7, the classic firearms debate has re-emerged as
a headline topic. Murder rates below 10 per 100,000 are well within standardized acceptable
risk ranges, but various “fright factors” influence public outrage at random attacks, especially
those involving children8. Whereas public reactions to other violent crime nationwide are
4See GunPolicy.org, United States – Gun Facts, Figures and the Law (2013)
http://www.gunpolicy.org/firearms/region/united-states (last visited Mar. 1, 2013).5
P.L. 103-159, Title I; 107 Stat. 1536.
6The Brady Campaign, Policies and Programs to Save Lives (January 2013),
http://www.bradycampaign.org/xshare/Facts/01142013_Fact_Sheet_-_Biden_Task_Force_FINAL.pdf (last
visited Feb. 24, 2013). Between 1998 and Jan. 2013, the FBI conducted nearly 163 million National Instant
Criminal Background Check System (NICS) checks. See FBI, Total NICS Background Checks (2013),
http://www.fbi.gov/about-us/cjis/nics/reports/20130205_1998_2013_monthly_yearly_totals.pdf (last visited
Mar. 1, 2013).7
Twenty primary students, six faculty and staff members at Sandy Hook Elementary School were shot and
killed on December 14, 2012. This incident sparked nationwide fury over access to military style weapons and
prompted draft legislation on gun control. The Sandy Hook case was particularly devastating due to thenumber of people killed and because of perceptions that such districts are immune to these types of incidents.
Scores of school shootings have occurred since the 1990s, with relatively few making lasting impressions on
the general public nationwide. See The Brady Campaign, Major School Shootings in the United States Since
1997 , http://www.bradycampaign.org/xshare/pdf/school-shootings.pdf (last visited Feb. 24, 2013).8
Boundaries of acceptable individual risk are usually defined as below a probability of 1 in 1,000 per year,
with the “gold standard” being 1 in 1 million per annum. See Paul Hunter and Lorna Fewtrell, Water Quality,
Standards and Health, Chapter 10: Acceptable Risk, London: IWA (2001),
http://www.who.int/water_sanitation_health/dwq/iwachap10.pdf (last visited Mar. 1, 2013). “Fright factors”
interfere with normal tolerable risk models. Risks are less acceptable if they affect small children or pregnant
women. Inequitable distribution in society also reduces perceived acceptableness of risk. It should be noted
that mass murders frequently occur in public places or schools in middle and upper-middle class districts. Massmurders are on the rise – 9 occurred in the 1980s, 11 in the 1990s, and 26 since 2000. See Dale Archer,
Reading Between The (Head)Lines, Psychology Today (July 28, 2012),
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limited, intense attention toward school shootings and random mass murders has yielded an
assortment of surrounding complaints, not the least of which is gun control. More
specifically, restrictions on sales and ownership of assault weapons have been at the core of
calls for changes to the system. Proponents of assault weapons bans consider restrictions a
clear path toward lowering incident prevalence while opponents raise questions of
effectiveness and legality.
This article examines the debate over gun control, focusing on established case law
and empirical evidence obtained through statistical analysis of crime data. A review of each
side of the argument shows that courts have left room open for the legislative branch to
control sales of certain weapons, although rights to bear and keep arms as individuals are
inalienable under the Constitution. Crime statistics imply that a change in policy, strategy or
approach may be useful in securing a more civilized public safety record in the United States.
Correlational analysis of national statistics and comparisons between means helps shed some
light on the successes and failures of the historical system and strategy, which worked in part
for some groups, but did not accomplish more expansive goals nor provide adequate relief to
all Americans. Weapons bans may be effective, but the complexity of the legal system makes
it impossible to determine by the numbers. Solutions to firearms crime problems prove
elusive, so we take a look at what other nations do. An evolved hybrid model approach is
suggested as a possible means of resolving longstanding murder problems.
II. Constitutionality
“A well regulated Militia, being necessary to the security of a f ree State, the right of
the people to keep and bear Arms, shall not be infringed.”
A. Collective or Individual Right?
http://www.psychologytoday.com/blog/reading-between-the-headlines/201207/mass-murders-are-the-rise
(last visited Mar. 1, 2013).
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Perhaps no other part of the Constitution is the source of more controversy than the
Second Amendment, yet it is only 27 words and not excessively vague. A simplified model
of the debate pits interpretation for individual rights against that for collective rights. One
side holds that the amendment‟s ordinary meaning9, if construed as a whole rather than in
parts, ties the right to bear and keep arms to a well-regulated militia, which suggests less for
individual rights and more for States‟ rights or collective rights.
United States v. Miller 10
dealt with questions related to a dangerous and unusual
weapon11
of the time – a sawed off shotgun. In Miller , the Supreme Court determined “the
federal government can limit the keeping and bearing of arms by a single individual as well
as by a group of individuals, but it cannot prohibit the possession or use of any weapon which
has any reasonable relationship to the preservation or efficiency of a well regulated
militia.”12
Questions regarding the reach Miller extended to regulators remained for decades,
during which time the American Courts gave little and vague direction on interpretation of
the Second Amendment.
9"The Constitution was written to be understood by the voters; its words and phrases were used in their
normal and ordinary as distinguished from technical meaning." (United States v. Sprague, 282 U.S. 716, 731, 51
S.Ct. 220, 75 L.Ed. 640 (1931)); see also Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L.Ed. 23 (1824). “Normal
meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that wouldnot have been known to ordinary citizens in the founding generation” (District of Columbia v. Heller, 128 S.Ct.
2783 (2008)).10
“In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less
than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency
of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear
such an instrument.” 307 U.S. 174 (1939) at 178.11
In response to the 2012-13 revived weapons debate, U.S. Attorney General John Walsh said "There clearly
is room for reasonable regulation particularly of dangerous and unusual weapons.”. See Doug McKelway,
Dems ramp up push for assault weapons ban, face headwinds from states, FoxNews (Feb. 27, 2013),
http://www.foxnews.com/politics/2013/02/27/democrats-push-for-assault-weapons-ban-in-congress-but-it-
still-faces-uphill/#ixzz2MATlgmIT (last visited Feb. 28, 2013).12
Cases v. United States 131 F.2d 916 (1942).
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Following World War Two until the early 1960s, murder rates in the USA fell to their
lowest levels since the beginning of the 20th century13
. Then, in the 1960s through 90s, social
and political upheaval ravaged American communities at a time when mass production and
marketing made weapons more readily available. Murder rates and totals underwent a
parabolic rise and fall between the late-60s and late-90s, after which time both leveled-off
above the numbers from early 1960s14
. “White-flight”15
– a mass exodus of Caucasians from
cities – occurred, leaving inner-cities poor, dangerous, and without effective public safety.
Increased danger gave liberals an opportunity to argue against broad rights to own and
keep firearms, and provided evidence supporting claims that more guns create more threats16
.
Conservatives took the opportunity to argue that increased danger increases the need to have
firearms, which seems to be the more successful side of the argument. Since 1991, 24 states
adopted right to carry laws, bringing to the total to 4117
, which the NRA says makes
Americans safer. In District of Columbia v. Heller, the Supreme Court held that a
Washington D.C. ban on handgun possession in the home violates the Second Amendment,
13See Figure 2, U.S. National Center for Health Statistics, Homicide in the United States 1950-1964, 20(6)
(1967), http://www.cdc.gov/nchs/data/series/sr_20/sr20_006acc.pdf (last visited Mar. 1, 2013).14
See FBI UCR Tool, http://www.ucrdatatool.gov/Search/Crime/State/TrendsInOneVar.cfm (last visited Mar.1, 2013).15
Between 1960 and 1970, white populations in central cities experienced roughly 10-17% decrease. See Jan
Blakeslee, “White Flight” to the Suburbs: A Demographic Approach, 3 Focus Institute for Research on Poverty
Newsletter (1978-79), http://www.irp.wisc.edu/publications/focus/pdfs/foc32a.pdf (last visited Mar. 1, 2013).
Detroit was more than 60% white when the 1967 riot happened. In 2012, Detroit is maybe 6% white. See Jack
Lessenberry, Detroit Riots: Forty-Five Years Later , Michigan Radio (July 24, 2012 10:30 AM),
http://www.michiganradio.org/post/detroit-riots-forty-five-years-later (last visited Mar. 1, 2013).16
The Brady Campaign to Prevent Gun Violence cited studies which showed that, among other things, (1)
keeping a firearm in the home increases the risk of homicide by a factor of 3, (2) possessing a gun increases
risks of being shot by 4.5 times. See http://www.bradycampaign.org/ (last visited Mar. 1, 2013).
17 NRA, Right-To-Carry 2012, http://www.nraila.org/gun-laws/articles/2012/right-to-carry-2012.aspx?s=right-
to-carry+2012&st=&ps= (last visited Mar. 1, 2013).
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which the dissent considered an unreasonable departure from the Miller decision18
. Heller
was applied in McDonald v. Chicago19
to grant individuals rights to bear arms under the
Second Amendment, thereby quashing the collective rights side of the interpretation debate.
B. Limitations on Ownership
Both Heller and McDonald dealt with the legality of possessing handguns. Handguns,
while the most lethal type of firearms, are not unusually dangerous when compared to other
varieties of firearms. Assault weapons named in the 1994 Federal Assault Weapons Act20
and similarly-functioning models21
are sufficiently unusual such that the Constitution has
been interpreted to allow for their ban22
. Little reasonable doubt remains as to the
Constitutionality of gun control. Presidents Lyndon Johnson, Bush Sr., and Clinton each used
18 District of Columbia v. Heller, 128 S. Ct. 2783 (2008). Justice Stevens, dissenting, argued “*t+he view of the
Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes,
but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of
weapons—is both the most natural reading of the Amendment's text and the interpretation most faithful tothe history of its adoption.” 19
130 S.Ct. 3020. “If, as petitioners believe, their safety and the safety of other law-abiding members of the
community would be enhanced by the possession of handguns in the home for self-defense, then the Second
Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are
not being met by elected public officials,” at 3050.20
P.L. 103-322 (1994) (repealed 2004).
21Brady Center to Prevent Gun Violence, Assault Weapons: “Mass Produced Mayhem” (October 2008),
http://www.bradycenter.org/xshare/pdf/reports/mass-produced-mayhem.pdf (last visited Feb. 24, 2013).
AK47s, MAC-10s, TEC-9s, Uzis, AR-14s are well known assault weapons that fell under the 1994-2004 ban. A
lesser-known problem arose shortly after the ban went into effect, when firearms manufacturers started
making “copycat” models such as the Bushmaster XM-15. Olympic Arms produced its PCR – “Politically Correct
Rifle”, and Intratec released its AB-10 – “After Ban-10”. See also Brady Center, On Target: The Impact of the
1994 Federal Assault Weapon Act (2004), http://www.bradycenter.org/xshare/pdf/reports/on_target.pdf (last
visited Feb. 28, 2013).22
The Miller Court, most notably, commented on uncommon firearms. Obviously, military-style weapons bear
some relationship to a standing militia, but lacking an organized structure, individuals in possession of such
weapons are not likely to fit the description of members of a militia. Justice Scalia commented in Heller that
“*f+rom Blackstone through the 19th-century cases, commentators and courts routinely explained that the
right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.” “We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons.’” (128 S.Ct. at 2817). “The President shall be commander in chief of the
Army and Navy of the United States, and of the militia of the several states” (U.S. Const. art. II, §2, cl. 1). Beingthe head of the militias, the President may make orders, or otherwise lend executive approval to bans on
certain types of firearms.
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their executive authority to issue orders on the sale of guns and ammunition23
. The
Constitution does not explicitly address Presidential powers to control guns under executive
order, but it has been interpreted to include such grants of power
24
. President Obama signed
23 gun control orders following the Newton, Connecticut massacre25
.
III. Spending Increases and Bans Have Not Solved the Problems
Assessments of violent crime, homicide and firearms-related crime data focus on
national levels and aggregate statistics. Localized reductions, if not part of a general
nationwide trend, are not often interpreted as having great significance. For a variety of
reasons, some communities are safer than others, but the overall safety of the nation or region
is judged by examining a more geographically diverse sample.
Although there is no doubt that increasing direct expenditures on public safety from
the zero level directly results in crime reduction, questions linger regarding the marginal
benefits of increases past a certain point. Beyond this unknown maximum, there may be
diminishing returns on each additional monetary unit spent on justice systems. Unfortunately,
criminal justice systems are too complex and crime levels influenced by too many
uncontrollable variables to pinpoint precise returns on expenditures.
Budget crises in the U.S. give new life to debates about spending and effectiveness of
public safety models. Some analysts argue that indirect spending on institutions like
23Juan Williams, What everybody needs to know about our Constitution and gun control , FoxNews (January
16, 2013), http://www.foxnews.com/opinion/2013/01/16/what-everybody-needs-to-know-about-our-
constitution-and-gun-control/ (last visited Mar. 1, 2013).24
In addition to being head of the militia, the President “shall take care that the laws be faithfully executed”.
(U.S. Const. art. II, §3, cl. 4).25
Colleen Curtis, President Obama Announces New Measures to Prevent Gun Violence , The White House
(January 16, 2013 01:57 PM EST), http://www.whitehouse.gov/blog/2013/01/16/president-obama-announces-
new-measures-prevent-gun-violence (last visited Mar. 1, 2013).
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education enhances public safety and deters crime26
. Still more reflect upon the impossibility
that is perpetual increases in budget expenditures, and the need for a redesigned approach to
tackling crime
27
. Evidence-based policy and action is needed to maximize efficiencies of
human and capital resources. Violent crimes are of a serious nature, but the need for a more
scientific approach to issues is still present despite the highly emotional social context. In
order to accurately and reliably comment on the future direction of gun control and violent
crimes policy, statistical analyses are imperative.
A. Relationships between J ustice Expenditures and Firearms-Related Murder
Between 2001 and 2009, increased justice expenditures at federal, state and local
governments were not associated with statistically significant reductions in total murders or
murders with firearms. Likewise, murders by handguns and rifles were not significantly
associated with direct justice expenditures at any of the three levels of government. Strong,
negative correlations were found between shotgun murders and expenditures at all three
levels of government, although murders with shotguns composed less than 5% of total
firearms murders in the period, whereas over 75% were handgun-related28
.
26S. Patrick Wynne, Increased higher education spending enhances public safety and deters crime, Center on
Juvenile & Criminal Justice (Oct. 4, 2012 11:23),
http://www.cjcj.org/post/public/policy/increased/higher/education/spending/enhances/public/safety/and/deters/crime (last visited Feb. 28, 2013).27
“State and local expenditures in corrections grew to nearly $72 billion in 2007 and have outpaced our
ability to afford a “one size fits all” justice approach. Evidence-based and cost-effective solutions are
imperative in today’s economic environment.” See Jacquelyn Rivers, Improving Criminal Justice and Reducing
Recidivism Through Justice Reinvestment , BJA Factsheet (August 2011),
https://www.bja.gov/Publications/JRI_FS.pdf (last visited Feb. 28, 2013).
Assistant Attorney General Lanny Breuer wrote to Hon. Patti Saris regarding unsustainable spending
in corrections and needs for changes in sentencing. “Given the budgetary environment, the current trajectory
of corrections spending will lead to further imbalances in the deployment of justice resources.” See
http://www.justice.gov/criminal/foia/docs/2012-annual-letter-to-the-us-sentencing-commission.pdf (last
visited Feb. 28, 2013).
28 FBI Expanded Homicide Data tables for years 2001 through 2009 were retrieved using the UCR data tool
available at http://www.ucrdatatool.gov/ (last visited Feb. 28, 2013). Total homicides ranged between 13,636
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B. Impacts of Spending Constrained by Race and Relationship of Victims
Between 1995 and 2010, increases in direct justice expenditures at the federal, state,
and local levels were highly correlated with decreases in firearms-related violent
victimization of whites, but no such effects were noticed among black or Asian-Pacific
victims29
. Near-perfect negative correlations between expenditures and victimization of
whites imply uneven distribution of expenditures throughout districts. At the local level
where the highest expenditures are seen, this is a product of local economy and tax revenue,
where wealthier districts are in a better position to provide higher quality public safety.
and 15,087 in the period. Firearms-related homicides ranged between 8,890 and 10,225. 66.75% of total
murders were related to firearms.
Justice expenditure data was retrieved via Bureau of Justice Statistics, Key Facts at a Glance
http://bjs.ojp.usdoj.gov/content/glance/tables/expgovtab.cfm (last visited Sept. 25, 2010) and Employment
and Expenditures http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=5 (last visited Feb. 28, 2013).
Between 2001 and 2009, Federal expenditures grew from 2.53E+10 USD to 4.69E+10 USD, State
expenditures grew from 5.88E+10 USD to 8.09E+10 USD, and local expenditures grew from 8.30E+10 USD to
1.30E+11 USD. Data regarding direct expenditures at Federal, State, and Local government levels were entered
into SPSS alongside total murders, murders with firearms, and murders by weapon type data. Pearson
product-moment correlations were calculated to determine what, if any, relationship between spending and
firearms murders existed for years between 2001 and 2009. Data were approximately normally distributed as
assessed by Q-Q plots. Federal expenditures were not correlated to total murders (r = -.074, p = .805), murders
by firearms (r = .218, p = 5.74), murders by rifle (r = -.337, p = 3.75), or murders by handgun (r = -.420, p =
.260). State expenditures were not correlated with total murders (r = -.057, p = .884), murders by firearms (r =
.191, p = .622), murders by rifle (r = -.293, p = .443), or murders by handgun (r = -.455, p = .219). Local
expenditures were not correlated with total murders (r = -.071, p = .856), murders by firearms (r = .219, p =
.571), murders by rifle (r = -.348, p = .358), or murders by handgun (r = -.422, p = .258). Statistically significant,
strong negative correlations were found between murders by shotgun and federal direct expenditures (r = -
.699, p = .036), and state expenditures (r = -.770, p = .015), and local expenditures (r = -.730, p = .026).
29 Bureau of Justice Statistics, National Victimization Analysis Tool (NVAT),
http://bjs.ojp.usdoj.gov/index.cfm?ty=nvat (last visited Feb. 28, 2013). Tables were retrieved for violent
victimizations by weapon category, race-expanded categories, and victim-offender relationship for years 1995-
2010. NVAT data were entered into SPSS alongside justice expenditures data (Id.).
Data were approximately normally distributed as assessed by Q-Q plots and Shapiro-Wilk tests (p >
.05). Pearson product-moment correlations were calculated to determine relationships between variables.
Very strong, statistically significant negative correlations were found between victimization of whites and
federal expenditures (r = -.828, p < .0005), state expenditures (r = -.894, p < .0005), and local expenditures (r =
-.852, p < .0005). No statistically significant relationships were found between federal expenditures and
victimization of black (r = -.428, p = .111), or victimization of Asia-Pac (r = -.403, p = .136) race categories. No
statistically significant relationship was found between state expenditures and victimization of blacks (r = -
.465, p = .081), or victimization of Asian-Pacific (r = -.403, p = .136). No statistically significant relationship wasfound between local expenditures and victimization of blacks (r = -.466, p = .080), or Asian-Pacific persons (r = -
.364, p = .183).
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Considering that yearly victimization of whites30
was more than twice as prevalent as
victimization of blacks and Asians combine, a strategy designed to reduce victimizations
among the highest-risk group was rational although its effects were politically incorrect.
These uneven impacts left multiple high-violence neighborhoods across America.
Increased expenditures were also very strongly correlated with reductions in firearms-
related violent victimization of strangers and acquaintances, but no statistically significant
relationship was found between expenditures and victimization of intimates or relatives31
.
Reductions in victimization of strangers may relate to decreases in victimization of whites in
such crimes as car-jackings and muggings. Racial disparities in sentencing32
may also factor
into unequal relationships between expenditures and victim categories. Whereas expenditures
may be increased with intent to protect primarily white populations, sizeable portions of those
expenditures go toward prisons which house primarily black and Hispanic inmates33
.
30Firearms-related victimization of whites (430,222 ± 207,763) included Hispanics; mean and standard
deviation among blacks were 181,454 ± 68,241; and among the Asia-Pacific race category: 16,932 ± 11,464. Id.31
SPSS Pearson tests showed federal expenditures were significantly negatively correlated with firearms-
related violent victimization of strangers (r = -.823, p < .0005), and victimization of well-known persons or
acquaintances (r = -.598, p = .019). Highly significant negative correlations were also found between state
expenditures and victimization of strangers (r = -.877, p < .0005) and of acquaintances (r = -.708, p = .003).
Local expenditures were significantly negatively correlated with victimization of strangers (r = -.843, p < .0005)
and of acquaintances (r = -.635, p = .011). No significant relationships were found between federal
expenditures and victimization of intimates (r = -.483, p = .068) or of relatives (r = .167, p = .569), between
state expenditures and victimization of intimates (r = -.506, p = .054) or of relatives (r = .199, p = .495), norbetween local expenditures and victimization of intimates (r = -.486, p = .066), or of relatives (r = .128, p =
.664).32
David Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts ,
44 J. L. and Econ. 285 (2001). Among a sample of over 58,000 cases, prison sentences for black offenders were
roughly twice those of white offenders. Joshua Fischman and Max Schanzenbach, Racial Disparities under the
Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums ,
http://www.fjc.gov/public/pdf.nsf/lookup/NSPI201212.pdf/$file/NSPI201212.pdf (last visited Feb. 28, 2013).
Judicial discretion, not limited to “subconscious bias” has been at the root of racial disparities in sentencing.33
Kamal Rattray and Nicole Lee, Racial Disparities in Sentencing in the U.S. and Georgia, 2 Georgia J. of Pub.
Pol. (2012), http://digitalcommons.kennesaw.edu/gjpp/vol2/iss1/5 (last visited Feb. 28, 2013). An estimated
$18,000 per year is needed to house each of the more than 53,000 prisoners in the State of Georgia, morethan 60% of which are black. 2011 statistics for federal and state sentenced prisoners show that roughly 62%
of 1.537 million prisoners were black and Hispanic. While 0.5% of white males were in prison in 2011, 3.0% of
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C. Inconclusive Effects of Assault Weapons Ban
In the months following the Sandy Hook elementary shootings, debates ensued over
the effectiveness of the 1994 Act and appropriateness of a renewed term or similar new
legislation. Partisan politics dominated the conversation, with Republicans balking at
encroachment on their interpretation of Constitutional rights, and Democrats pushing for a
new ban34
. President Obama voiced support for gun control legislation as the 2013 Assault
Weapons Ban was introduced35
. Valid arguments exist on both sides of the issue, leading to
questions of a more empirical nature.
If evidence were clear that the 1994 Act were effective, then it would be easier to gain
broader support for a renewal. However, it is not objectively clear whether or not the 1994
Act was primarily or directly responsible for reductions in firearms-related incidents. A clear
and remarkable drop in homicide and firearms-related violent crime levels occurred in the
first few years of the 1994 ban, but no increase back to levels prior to the ban was seen after
its 2004 expiration, suggesting that numerous other factors contributed to the reductions in
homicide and firearms-related violent crime. Significant differences in homicide levels are
noticed between years in which the Act was active and those prior to its enactment, and
blacks and 1.2% of Hispanics were incarcerated. E. Ann Carson and William Sabol, Prisoners in 2011, Bureau of
Justice Statistics (2012), http://bjs.ojp.usdoj.gov/content/pub/pdf/p11.pdf (last visited Feb. 28, 2013).34
Senator Chuck Grassley (R, IA) and House Judiciary Chairman Bob Goodlatte (R, VA) were among those
opposed to an assault weapons ban. Heidi Przybyla, Police Officials, Republicans Clash on Assault Weapons
Ban, Bloomberg (Feb. 28, 2013 5:10AM GMT+0700), http://www.bloomberg.com/news/2013-02-27/police-
officials-republicans-clash-on-assault-weapon-ban.html (last visited Feb. 28, 2013). "They cannot clearly credit
the ban with any of the nation's recent drop in gun violence," Grassley said.
"There clearly is room for reasonable regulation particularly of dangerous and unusual weapons," said
U.S. Attorney General John Walsh. See supra note 11.
35 Vivian Chu, Federal Assault Weapons Ban: Legal Issues, Congressional Research Service 7-5700 (2013),
http://fpc.state.gov/documents/organization/205203.pdf (last visited Feb. 28, 2013).
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between years following its expiration and those prior to its enactment, but no such difference
is found between years during which it was valid and those after its expiration36
.
Three strikes laws, among other more obvious interfering factors, make isolating the
effects of the 1994 Act impossible. Twenty-four States adopted three strikes laws around the
same time as the 1994 Act37
. We could thus infer that stricter penalties rather than the assault
weapons ban were most responsible for decreases in firearms crime. The Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) reported a drop in involvement of assault weapons
in crimes during the ban, but the magnitude was again minimal considering that less than 5%
of gun crimes involved assault weapons prior to the Act38
and handguns consistently make
up 75% or more of total firearms murders39
.
IV. Elusive Solutions
Benefits of gun control laws and regulations are implicit despite the apparent lack of
undeniable evidence of their past successes. Gun control prior to the 1968 Act was virtually a
36See United States Census, Table 312: Homicide Trends 1980 to 2008,
http://www.census.gov/compendia/statab/cats/law_enforcement_courts_prisons/crimes_and_crime_rates.ht
ml (last visited Feb. 27, 2013). Census cited FBI violent crime data. For 2009, see FBI, Crime in the United States
(CIUS), Table 1, http://www2.fbi.gov/ucr/cius2009/data/table_01.html (last visited Feb. 28, 2013).
All data was entered into SPSS. A one-way ANOVA test was run to calculate any differences in
homicides before, during, and after the Act. A statistically significant difference was found between years prior
to the Act and those during which the Act was in force (F(1,23) = 16.826, p < .0005). Homicide was more
frequent between 1980 and 1993 (21,633 ± 2,042) than between 1994 and 2004 (17,805 ± 2,631). There wasalso a statistically significant difference between homicide levels in years after the Act expired and those prior
to its enactment, as determined by a one-way ANOVA (F(1,17) = 30.079, p < .0005). Homicide levels were
higher between 1980 and 1993 (21,633 ± 2,042) than between 2005 and 2009 (16,433 ± 728). While it is
important to note that average homicide levels during the ban were higher than those following its expiration,
no statistically significant differences between means were found with a one-way ANOVA (F(1,14) = 1.271, p =
.279).37
National Institute of Justice, Three Strikes and You’re Out: A Review of State Legislation, (1997),
http://www.nij.gov/pubs-sum/165369.htm (last visited Feb. 28, 2013).38
Between 1990 and 1994, 4.82% of crime gun traces related to weapons named in the Act. During the 10
years when the Act was in force, a 66% drop was seen, leaving only 1.61% of ATF traces related to assault
weapons. This represents roughly 60,000 guns over 10 years. See supra note 21.39
See supra note 14.
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non-issue, and yet murder rates and totals in those years were half to two-thirds those of the
first decade and more of the new millennium. When Michael Moore helped survivors of the
Columbine shooting motivate Kmart to stop selling ammunition40
, the result was a moral
victory rather than a tangible solution to gun crime. In much the same way, new gun control
statutes and regulations provide mostly moral support. Obama‟s gun control gives some
closure to survivors and family members of victims of shootings, and appeals to the more
emotional side of the public. Political remedies win over many hearts and minds, and help
stigmatize the culture of assault weapons and murder in the U.S.41
, but the flat and high
numbers show the problems are persistent. In devising potential cures for the gun violence
illness, assessment of the issue worldwide can offer some guidance.
A. United States of America: Murder Capital of the Developed World
40AP, Kmart Kills Ammunition Sales, CBS News (April 29, 2009 9:59 PM), http://www.cbsnews.com/2100-
201_162-299156.html (last visited Mar. 1, 2013). See also Bowling for Columbine (Michael Moore, MGM
2003).41
Americans have not infrequently been characterized as “gun nuts”. When British-national CNN anchor Piers
Morgan took a strong position on gun control after the Sandy Hook shootings, Alex Jones of Inforwars.com
started a petition to deport Morgan. See http://www.infowars.com/alex-jones-vs-piers-morgan/ (last visited
Mar. 2, 2013). Simon Kelner from the British Independent labeled Jones a “gun nut”, and stood up for Morgan,
saying “To English eyes, a demand for the restricted ownership of firearms seems non-controversial, but over
there it has led to calls for his deportation for impugning the second amendment of the US Constitution (the
right to bear arms).” See Piers Morgan stares down the barrel in bust-up with gun nut Alex Jones ,
http://www.independent.co.uk/voices/comment/piers-morgan-stares-down-the-barrel-in-bustup-with-gun-nut-alex-jones-8443838.html (last visited Mar. 2, 2013).
Characters like Glenn Beck and Alex Jones represent a sect of Republican supporters which are most
vocal in their opposition to gun control. The GOP is generally for more gun rights whereas the Democratic
Party is generally for more gun control. However, there is much more racially-diverse and bipartisan
opposition to gun control in the celebrity media culture. Rappers, most notably, are generally the antithesis of
the Republican Party agenda. Since the 1990s, assault weapons have been called out by name in lyrics of
hundreds of rap songs. Some rappers, like “Mack 10” and “Tech N9ne” named themselves after banned
weapons. “Newsflash: Rappers are big supporters of the Second Amendment. Or so it would seem, judging
from the ridiculous number of MCs who've been arrested for weapons possession or other gun-related
charges over the years.” See BET, Gun Play: Rappers With Weapons Charges,
http://www.bet.com/music/photos/2012/01/gun-play-rappers-with-weapons-charges.html (last visited Mar.
2, 2013). This element of American culture complements the fascination with gangsters, violence and crime inthe movies. “Scarface” is both a popular film and the stage name of a rap music star. Exposure to and
consumption of such media is not limited by demographics. Effects and implications are significant.
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It is no secret that Americans are more murderous than Europeans. Statistical studies
from the U.S. frequently cite stark reductions in homicide over the past three decades, but for
U.S. homicide rates to be on track with EU-27 rates, total murders would need to be reduced
by a factor of three42
. This may seem like an unrealistically onerous endeavor, but it is fitting
that the world‟s wealthiest nation would also be one of the world‟s safest and least violent.
Rates do not tell the whole story, but in the case of homicides, rate comparisons are more
hopeful than those with nominal totals. Only a handful of countries have higher homicide
totals than the United States43
.
B. A Look at Foreign Systems
Debate in the public media includes calls for bans on guns in general44
. Anti-gun
advocates cite successes of countries like the UK, which adopted a ban on private ownership
of all handguns after the 1996 Dunblane massacre45
. One would need to ignore statistics to
conclude that bans on guns are not related to low prevalence of gun violence, but regardless
42For years 2007-2009, “*a+cross the whole of the EU-27 there were 1.3 homicides per 100,000 inhabitants,
ranging from a high of 8.3 in Lithuania – and 6.1 in neighbouring Estonia – down to less than 1 in Spain,
Germany, Slovenia and Austria.” European Commission Eurostat, Crime Statistics (December 4, 2012 14:44),
http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Crime_statistics (last visited Mar. 2, 2013).43
UNODC, Global Study on Homicide (2011), http://www.unodc.org/documents/data-and-
analysis/statistics/Homicide/Globa_study_on_homicide_2011_web.pdf (last visited Mar. 3, 2013). For
example, in 2008 in Africa, only Ethiopia (20,239), South Africa (16,834), and Nigeria (18,422) had more
homicides than the 2009 U.S. total (15,241). In the Americas, 2010 Mexico (20,585), 2009 Brazil (42,909), and
2010 Colombia (15,459) totals exceeded the benchmark 15,000 number. Elsewhere in the world, 2008Indonesia (18,963), 2009 India (40,752), and 2009 Russia (15,954) surpassed the 15,000 mark. A comparison of
murder rate within the OECD shows that in the U.S. (5.0) is higher than all others except for Estonia (5.2) and
Mexico (18.1).44
Lexington, The gun control that works no guns, The Economist (December 15, 2013 4:56),
http://www.economist.com/blogs/lexington/2012/12/gun-control (last visited Mar. 1, 2013).45
In 1996, Thomas Hamilton, 43 years-old, killed 16 children aged five and six and their teacher in a school in
Dunblane, Scotland. Britain, which has no “gun culture” comparable to the USA, swiftly became engaged in a
publicly-supported process to reduce risks of gun violence, leading to a legislative ban on private ownership of
handguns in the mainland. The law was passed within a year and a half of the Dunblane shootings. Following
the enactment of the statutory ban, gun crime decreased by more than 50% from peak levels in the 1990s, and
handgun crimes fell 44% between 2002/03 and 2010/11. See Peter Wilkinson, Dunblane: How UK school massacre led to tighter gun control , CNN (Jan. 20, 2013, 06:57HKT),
http://edition.cnn.com/2012/12/17/world/europe/dunblane-lessons (last visited Mar. 2, 2013).
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of merits and successes of these types of policies, such a restrictive approach is not suitable
for the United States of America.
Aside from prohibition, there are certain social, political, and institutional changes
that could occur in the U.S. In Japan, the community-policing model has been incredibly
effective. Koban and chuzaisho (police boxes) are standardized into every neighborhood.
Instead of roving streets in patrol cars, one or more officers per shift are appointed to a fixed
location in neighborhoods46
. In urban areas such as Detroit, where property values have
plummeted due to foreclosures, a house could be used as both a residence and mini police
station. Such integration of the police into communities in the U.S. could deter crime in high-
risk locations, reduce response time, improve public relations, and get civilians more
involved in public safety.
Throughout the East Asian world, the Confucian legal and social tradition motivates
individuals and communities to prevent and deter crime without formal government
assistance. In contrast to the Common Law and Civil Law traditions, the Confucian tradition
does not rely upon the coercive State to create social order. Instead, independent compliance
with a moral order is stressed. Corrections are handled primarily through a system of
informal processes, generally within the family and localized social hierarchy. Involvement
of the formal courts is somewhat of a last resort47
. Although adoption of such a less-formal
system would be unappealing to many Americans who prefer the adversarial style of the
Common Law, if more informal measures could be used within communities, corrections
spending could be reduced and criminal histories would not as often restrict class mobility.
46 History of the Japanese Police Box System , at
http://www.npa.go.jp/english/seisaku1/JapaneseCommunityPolice.pdf (last visited Mar. 2, 2013).47
Harry Dammer and Jay Albanese, Comparative Criminal Justice Systems, Cengage (2011).
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Neighborhood Watch programs are popular throughout the United States. In
Vancouver, Canada, the police integrated volunteers and civilians a bit more to enhance the
effect of such programs. Citizens‟ Crime Watch volunteers are trained and coordinated by
police officers who work with volunteers to patrol streets. If civilian patrol cars encounter an
incident, they do not get directly involved, but they use their equipment to call in an officer.
Vancouver ‟s innovative public safety strategy also includes community policing centers that
are operated, staffed and governed by members of the local civilian population48
. These
types of projects could be combined with police box and informal remedies to provide real,
cost-efficient, minimally-invasive community-based public safety throughout the U.S.
C. Developing a New Strategy
Each word in the Second Amendment is articulated intentionally to serve a specific
purpose, thus not only is a militia necessary, but a “well-regulated” one. Although many
States have adopted statutes which mention the common private militias, they are not
integrated into any system of defense to the extent of National and State Guards49
. On the
matter of assault weapons bans, if militias wish to petition the government for exemption to
general rules, then this may be an option whereby such organizations could retain rights to
bear certain arms. In such a case, standing militias would need to first organize more and
cooperate with State agencies to register their members, perhaps issuing renewable militia
48Vancouver Police Department, at http://vancouver.ca/police/ (last visited Mar. 2, 2013).
49For a review of State laws regarding militias, see Don Hamrick, American Common Defence Review (2006),
http://constitution.org/mil/law/table_state_militia_laws.pdf (last visited Mar. 2, 2013). The Michigan Militia,
once famously associated with Oklahoma City bomber Timothy McVeigh, features pictures of training
operations on its homepage. Michigan Militia, at http://www.michiganmilitia.com/ (last visited Mar. 2, 2013).
In one picture, a 9 year-old girl is shooting a rifle while wearing a gas mask. Minors are prohibited by
customary international humanitarian law (Rules 136-137) from engaging in military activities. SeeInternational Committee for the Red Cross, International Humanitarian Law , at http://www.icrc.org/ihl (last
visited Mar. 2, 2013).
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identification cards. Otherwise, if individuals cannot show that they are actively involved in a
well-regulated militia, then the Constitution does not extend rights to bear any and all arms.
Assault weapons are not the primary cause of gun violence, though. Handguns are the
main problem, and efforts to reduce their illegal use to a level concurrent with developed,
civilized nations have been largely ineffective. Increased spending has not solved the
problem of murder in the USA. Legislative measures do remain the most attractive approach
on the government end toward curbing gun crime. However, the American populace is
resistant to various government initiatives to the extent that it is unlikely the traditional
coercive powers of the State will effect a comprehensive remedy. The leveling-off of murder
totals against increased justice spending suggests that the government has reached its
maximum level of power, regardless of increased inputs.
More social involvement is needed to effectively minimize murders in the United
States. Simply ignoring the problems by moving out of the cities or into increasingly
ruralized districts does not help the collective American society. Historical “white-flight”
obviously relocated tax revenues and investment capital, leaving major cities like Baltimore,
Oakland, and Memphis without sufficient finances to protect citizens while still providing
other basic services. In many cases, revision of State and County budgets is needed to support
enhanced policing. In other cases, such as that in Detroit, annexing the suburbs into New
York style boroughs is a possible solution. Of course, these types of budgetary maneuvers are
impractical in times of sequestration and public bankruptcy50
. Thus, the majority of the
burden rests on individuals and smaller-scale communities.
50Sequestration officially started in March 2013. Richard Cowan and Alistair Bell, Obama formally orders
‘deeply destructive’ cuts, blames Congress, Reuters (Mar. 2, 2013 1:04am EST),
http://www.reuters.com/article/2013/03/02/us-usa-fiscal-idUSBRE91P0W220130302 (last visited Mar. 2,2013). Municipalities like Central Falls, RI, Harrisburg, PA, Boise County, ID, Jefferson County, AL, and Vallejo,
CA went through bankruptcy following the financial crisis. Alan Farnham, 3 Most Desperate Cities include
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To consider the American people wholly disinterested in the safety of their
communities would be blind to the overwhelming show of support for legal action in cases of
violent crime, especially those related to firearms. However, reliance upon the police and
courts, in many cases, is a fault of the American perspective which contributes to failure to
achieve reasonably safe city streets and blocks. The outlook that public safety should be left
to public officials and servants will likely lead to another ten years like the last, with
homicides around 15,000 annually. Larger-order problems in the American society require
more integrated social action, which could pose significant challenges to the individualist
culture51. Most likely, a real socio-cultural transition needs to occur in the U.S. for the
world‟s most economically powerful nation to join its wealthy peers when it comes to
homicide rankings. Since we live in a period of change, we may have sufficient opportunity
to grow as a people, learn, adapt, and evolve into the great society that Lyndon Johnson may
have desired when he signed the 1968 Act into law.
D. An American Legal Tradition
It is true what Confucius professed, that right living must come from within the
individual52
. Some elements of each type of legal system will be of use in developing a truly
American tradition – that reflecting the melting pot culture. English Common Law forms the
basis of jurisprudence, but in many cases a less adversarial approach would help quell
cynicism, fear and hatred of the government. Longer investigations and a more inquiry-based
Vallejo, Calif., Harrisburg, Pa., Central Falls, R.I., ABC News (Sept. 8, 2011),
http://abcnews.go.com/Business/desperate-us-cities-counties-file-bankruptcy/story?id=14464314 (last visited
Mar. 3, 2013).51
See Hofstede’s National Culture at http://geert-hofstede.com/national-culture.html (last visited Mar. 3,
2013).52
“The Master said: Guide them with policies and align them with punishments and the people will evade
them and have no shame. Guide them with virtue (de) and align them with li and the people will have a senseof shame and fulfill their roles.” Confucius, Analects, Bk. 2, Ch. 3,
http://www.indiana.edu/~p374/Analects_of_Confucius_(Eno-2012).pdf (last visited Mar. 3, 2013).
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process in the style of Civil Law systems could help reduce court expenditures and improve
judicial economy. Combining informal remedies and community responsibility, similar to
Confucian tradition, could help further reduce inefficiencies in criminal justice systems.
Finally, more appropriate application of religious principles and personalized handling of
persons of different religions, in the style of Sacred Law systems, could help motivate
citizens to voluntarily comply with laws. Citizens may well favor a balanced approach,
focusing exclusively on neither factual nor legal guilt, but rather a fair combination of the two
with the aim of rendering win-win outcomes. Such advancements would undoubtedly be
challenging and would require paradigm change.
V. Conclusion
A murder rate of 5.0 per 100,000 inhabitants is obviously tolerable to many people.
Due to the greater magnitude of their impacts, extreme incidents like school shootings, sniper
attacks, and mass murders in public places cause public outrage and spur demands for
increased gun control. Incidents with multiple fatalities are much less probable and represent
a much smaller percent of the total homicides yearly when compared to single fatality
incidents. Likewise, incidents involving assault weapons are much less frequent and cause far
fewer fatalities than handgun incidents. Statistics have shown clearly that new gun control
legislation will not likely cause major impacts, but notwithstanding their potentially mute
effects, they are certainly not without value. Other civilized nations ban military style
weapons. Americans should feel proud to be among such elite external powers in adopting
bans. The underlying, long-term problem with misuse of firearms however, is another matter
entirely.
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Rights to bear arms are clearly set out in the Cons titution, which as the “supreme law
of the land”53
will be the guide for all American gun laws. Court interpretation supports
possession of handguns in homes. Courts may at some future time support possession of
military style weapons for active and documented members of recognized, well-regulated
State militias, if such organizations are properly managed and transparent. In the present-
tense, acceptance of statutes and case law are imperative. While it is true that “guns don‟t kill
people – people kill people”54
, the more complete truth of the matter is that people kill
people with guns. Some guns make killing multiple persons easier. Those guns have been
banned in the past, and future bans are within the Constitutional limits.
In closing the debate, we should look toward the future. If people wish to honor
victims at school shootings, they should join in the cause of making American safer in
general. This broader goal of decreasing homicides to less than 8,000 in total, a rate of less
than 2.5 per 100,000 or lower, requires incredible effort. No amount of public funds is or will
be available that could directly cause this drastic reduction. Such an expansive, ambitious
target will be reached only through grassroots, community-level channels. Volunteer,
interactive, informal and community-based policing are all great ideas, but they require
support from other institutions to be successful. Integrated efforts between branches of
government and between departments like education and corrections will be essential. Public-
private partnerships are of indelible importance. Macroeconomic stability will help, but there
are other means of establishing community responsibility without widespread upward
53U.S. Const. art. VI, cl. 2.
54This is a well-known saying featured on cultural items like bumper stickers and t-shirts. It is also a
conservative “mantra”. See Jill Filipovic, The conservative philosophy of tragedy: guns don’t kill people, people
kill people, Guardian (December 21, 2012 10.00EST),http://www.guardian.co.uk/commentisfree/2012/dec/21/guns-conservative-philosophy-tragedy (last visited
Mar. 3, 2013).
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mobility or constant growth. Religious organizations and charities have powerful effects in
creating moral integrity among people of all classes.
In summary, positive, sustained action is needed on both side of the aisle and both
sides of the courtrooms. Private Citizens need to do more for their communities and they
must do so out of a sense of personal responsibility for society. Governments need to
persuade the public to cooperate more. If the American public felt a sense of ownership over
their legal system, if they felt their individual opinions and beliefs were represented in their
government, they could be more easily moved toward obedience of criminal codes,
compliance with laws of torts, respect for civil rights and other sections of statutory
guidelines. In a democratic society, such wholly representative government should be an
explicit objective, it should be a fundamental goal, and it should be obligatory. We people
should feel honored to make such revolutionary steps, and we should happily move toward a
more harmonic civilization.
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