Vol. 14 No. 4 (April 2004)

GUNS, CRIME, AND PUNISHMENT IN AMERICA, by Bernard E. Harcourt (ed.).  New York:  New York University Press, 2003.  432pp.  $45.00 Cloth.  ISBN: 0-8147-3655-6.

Reviewed by Priscilla H. M. Zotti, Department of Political Science, The United States Naval Academy.  Email:  zotti@usna.edu.

GUNS, CRIME AND PUNISHMENT IN AMERICA is a collection of eighteen essays that explain, critique, and analyze the various policy perspectives of gun control.  This thoughtful collection includes discussions of the Second Amendment, the well known Brady bill, and a presentation of a variety of policy interventions whose collective goal is to curb the problems surrounding guns in society.  In spite of the vast ground covered, the writers, while presenting their varied points of view, collectively agree on the following thesis: “The great American gun debates are presently polarized along two extreme positions for and against gun control measures.  This polarization obscures, rather than clarifies, the debate.  To move the conversation forward, it is essential that we focus on more nuanced and subtle discussions of particular policy interventions and on the relationship among the different approaches” (p.3).  Current gun control policy has not provided clarity but rather an oversimplification of both the problem and possible solutions.  The book presents a convincing case that an effective solution can only be found with a multi faceted approach. 

The book begins with an excellent essay by the book’s editor, Bernard E. Harcourt.  In it he connects guns, crime and punishment and outlines the theoretical arguments of the writers.  Harcourt begins with statistical fire power (no pun intended).  The numbers give credence to the love affair between Americans and their guns.  This unique cultural phenomenon is labeled by Harcourt the ‘Cowboy Corollary’ to the Declaration of Independence.  That is, in addition to our rights of life, liberty and pursuit of happiness comes our right to own a gun for protection and enjoyment.  “Between 35 and 50 percent of households are estimated to have at least one firearm, and the personal adult gun ownership rate is around 25 percent” (p.4).  This “cult of the gun” goes hand in hand with another cultural phenomenon, violence.   Statistics make the case that the proportion of violent crimes which include firearms has steadily risen.  Despite a drop in the crime rate in the 1990s, gun violence remains high.  In tandem with these data is the steady increase in punishment for gun violence.  Mandatory minimums and enhancement statutes both at the state and federal level have become common. 

The first section in the book, entitled “Perspectives,” presents four essays that give the reader a general sense of the gun control debate.  The writers present historical and contemporary views about the role of guns in society, as well as the cultural phenomenon in the United States surrounding guns.  The first essay by Franklin Zimring, entitled “Continuity and Change in the American Gun Debate,” provides the reader with a solid historical foundation of the core components of the debate on gun control.  This history has led to a recent crescendo in the discussion of guns.  Zimring argues that Americans tend to view the gun debate in pro-con terms without concern for details of distinction.  Most of these beliefs are stable over time and generalized.  Whether changes to the law are vast or narrow, most Americans tend to be committed generally one way or the other, latching on to the symbolic label of pro or con gun control.  Zimring succinctly captures the current status of the national dilemma over guns and offers the reader some things to consider.  He states that “what will improve the gun debate at the top end of the policy community is careful attention to the differences between types and intensities of firearm regulation” (p.42).

The second essay by Dan M. Kahan argues that the rhetoric of the gun debate is tired and fruitless in its current form.  In “The Tyranny of Econometrics and the Circumspection of Liberalism,” his manifesto, Kahan takes issues with the rhetoric surrounding the gun debate.  First, he argues, the over-emphasis on statistical data does little to push the debate forward.  Kahan blames this “tyranny of econometrics” on both the pro and con contingencies for driving their arguments with statistical data to make their case. The moral components, the arguments surrounding liberty versus authority are drowned out by the statistical fervor of both sides.  Kahan takes the lack of diversity in American political culture to task in his second argument.  He argues that our lack of  tolerance for the “cowboy culture” and the stereotypical depiction of gun owners add acrimony rather than clear understanding. 

Richard Slotkin writes, in “Equalizers:  the Cult of the Colt in America Culture,” that God may have created man but Samuel Colt made them equal.  We as a society revere private gun ownership with cult-like dedication.  Linked to this belief is a higher tolerance for violence than most democratic systems would bear.   In Slotkin’s words, we not only want to own guns, we want to “accumulate firepower” far in excess of our need.  Slotkin neatly traces the origins of the custom and tradition of use of force for survival, justice, and honor.  Samuel Colt’s invention in 1836 democratized law enforcement and justice, making gun ownership available to many.  The growth of modern mass media, the cinema, and literature, all spread the ethos of individual liberty and self defense via the firearm.   The end result is an embedded cultural acceptance of violence which Slotkin argues must factor into any intelligent discussion of gun reform.

In tandem with Slotkin’s “culture of the colt,” the next essay presents evidence that the cultural attachment to guns runs deep.  An often overlooked perspective is presented in Bernard Harcourt’s wonderfully titled piece, “Hell No, You Can’t Jack that Fool.  He Stays Strapped.  He’s Strapped All the Time: Talking about Guns at an All-Boy Correctional Facility in Tucson, Arizona.”  Through extensive interviews with young boys incarcerated at the Catalina Mountain School in Tucson, Harcourt informs his reader about the powerful cultural role guns have to the youngest criminals, most between the ages of twelve and seventeen.  Harcourt coded the often reoccurring patterns of speech about guns, finding that symbolically guns represent protection, a source of danger, a commodity of street life, and a source of power.  Their attachment to them is passionate and, in some ways, seductive.

The paucity of work on the Second Amendment was the status quo until Sanford Levinson ignited a new-found interest in the Second Amendment with his 1989 YALE LAW REVIEW article, “The Embarrassing Second Amendment.”  His essay here, “The Historians’ Counterattack:  Some Reflections on the Historiography of the Second Amendment,” argues that the scholarship on the origins and meanings of the Amendment is in its infancy.  He poses questions to energize the dialogue among scholars in seeking to understand the Second Amendment.  Is it merely an assurance to limit the reach of the federal government?  Does it convey individual rights?  Levinson is critical of historians who argue a standard model of the Second Amendment exists.  Scholars, he asserts, have just begun to scratch the surface.

“What does the Second Amendment Restrict?” presents a collective rights model of the Second Amendment by Carl T. Bogus.  Bogus addresses the problem of whether to read the Second Amendment as bestowing individual rights of gun ownership or only collective rights.  The problem with the latter is the sense that ownership only within the context of a state militia is trivial and irrelevant.   Bogus presents a compelling argument that individual rights within the confines of a militia are relevant, giving historical examples to justify his logic.  Bogus argues that the concern that Congress would undermine the slave system indirectly by controlling the state militias was at the heart of the Amendment, not an individual right to gun ownership.  The Amendment was to protect state militias, reasoning that Congress might be unable to control insurrection.  Bogus then analyzes several fascinating case histories to make his point.  His discussion of the Little Rock crisis in 1957 and the resulting federalizing of the Arkansas National Guard is particularly interesting, making the Second Amendment a more relevant constitutional provision.

In “Moral Principle and the Second Amendment” Christopher L. Eisgruber argues that the textual reading of the Second Amendment, in terms of bestowing individual or collective rights, misses the mark.  Eisgruber analyzes the linguistic intentions of the framers in using the words “keep” and “bear” much like scholars have analyzed the words “high crimes and misdemeanors.”  He concludes that textualism brings little new understanding to the Second Amendment and that the discussion of gun possession and gun control should be a principled one based on moral concepts of property rights in a free society, not on “how many Americans owned muskets in the late eighteenth century.”

The second portion of the book addresses policy approaches to the gun control debate.  The first piece, by Philip J. Cook and Anthony A. Braga, addresses the growing policy of gun tracing.  Comprehensive firearms tracing seems to have a strategic benefit for law enforcement, contributing to better information about gun suppliers and gun trading.  A supply side approach, gun tracing makes the ATF a focal point of gun identification and tracking to assist local law enforcement in tracking suppliers to youths and gangs.  The analysis of data compiled by the Bureau of Tobacco and Firearms indicates that the routing of guns from manufacturers into the criminal world is more narrow than commonly believed and that licensed gun dealers play a significant role in supplying guns to those who sell to criminals.  This interesting essay concludes with the encouraging notion that understanding the supply side of gun trafficking may give law enforcement the information they need to reduce the number of guns used in criminal episodes.

Jeffrey A. Fagan and Garth Davies provide the second policy piece in “Policing Guns.”  This thought-provoking essay explores police and community strategies that target gun violence. Whether styled as “community policing,” “problem-oriented policing,” or “order-maintenance policing,” the aim of these well know strategies is to reduce gun violence.  The analysis of the order-maintenance approach by Mayor Rudolph Guiliani in New York City is an interesting study of reordering crime control initiatives to address the pressing problem of gun violence.  The campaign became popular and was hailed as a success, although Fagan and Davies conclude that these aggressive tactics have been “socially toxic” for minorities and have decreased an adherence to social control.

“Should We Have Faith in the Churches” is a case study of crime in Boston conducted by Jenny Berrien and Christopher Winship.   The writers track the effectiveness of the Ten-Point Coalition, a group of ministers whose efforts helped to reduce violence and racial conflict in Boston in the 1990s.  The authors conclude that the coalition helped to facilitate better relations between the police and the community, which made police strategies more effective.

Jerome Skolnick and Abigail Caplovitz confront the hot button issue of racial profiling in “Guns, Drugs, and Profiling.”  The authors systematically dispel the myth that the use of racial profiling is effective in solving certain types of crime.  Skolnick and Caplovitz analyze STATE OF NEW JERSEY v. CARTY (2002), in which the New Jersey Supreme Court outlawed racial profiling.  The authors then provide viable alternatives to make policing more effective without the use of morally repugnant tactics such as racial profiling.   

Another policy tactic instituted to control gun violence is the Brady Handgun Violence Prevention Act passed in February 1994.  Authors Philip J. Cook and Jens Ludwig discuss the impact in “The Effects of the Brady Act on Gun Violence.”  The Brady Act requires background checks of gun purchasers by licensed dealers, the law effecting 32 states that did not have such a provision at the time of its passage.  The authors compare the states with Brady-type statutes (eighteen) to those new to background checks.  Their findings are quite interesting.

Another policy intervention related to the Brady Act focuses on regulating gun shows as a means of controlling the transfer of guns from legal to criminal sources. Despite the fact that only about two percent of gun sales occur at gun shows, high profile tragedies such as the Columbine High School shootings (committed by two teenagers who obtained their weapons through gun shows) have drawn the public’s attention to these weekend arms sales. James B. Jacobs explores the secondary gun sale market in his essay, “Gun Shows and Gun Controls.”  Despite the numerous legislative attempts to regulate gun shows and impose Brady-like requirements, Jacobs concludes that regulations of gun shows is ineffective in controlling the transfer of guns.

The federal enforcement of gun laws is discussed in the next two essays.  Daniel C. Richman discusses the strategy used in Virginia of prosecuting local arrests of gun violence in federal court, taking advantage of federal sentencing structures and “exiling” convicted felons to far-off federal prisons.  In “Project Exile and the Allocation of Federal Law Enforcement Authority” the author explains the political factors surrounding Project Exile in Richmond, Virginia in 1997.  When a street officer found a gun, contact would be made with federal agents, and if a federal violation existed, the individual would be prosecuted in federal district court for the Eastern District of Virginia.  Federal law provided bail restrictions, mandatory minimums in sentencing, and the possibility of sentencing convicted criminals to distant federal penitentiaries.  Apparently effective, the writer explores the question of whether or not Project Exile is a good idea, one supported by Republicans and Democrats alike.

Sara Sun Beale’s piece, “the Unintended Consequences of Enhancing Gun Penalties,” explains how increased penalties have surprisingly modified the behavior of many actors in the criminal justice system.  Federal prosecutors have used plea bargains or refused to bring charges when faced with enhanced penalty provisions.  In addition, the push for enhanced gun penalties has led to federal-state police powers disputes over the reach of gun control statutes in the historic 1995 Supreme Court case, UNITED STATES v. LOPEZ. 

The last policy intervention measure in regulating guns is the use of civil litigation against gun manufacturers.  David Kairys in “The Cities Take the Initiative” explains the innovative litigation against gun manufacturers, called public-nuisance torts.  The argument is that the relative ease with which criminals obtain handguns can be traced to marketing and distribution practices of gun manufacturers.  Their actions, knowingly and intentionally facilitating easy access to guns that can be used by youths and criminals, create a public nuisance.  Since 1998 more than forty cities and counties, including most major cities, have brought such a lawsuit against gun manufacturers.  Kairys explains this novel litigation and surmises about its potential impact in the gun control debate.

Mark Westfield, in “Tort Law and Criminal Behavior (Guns),” carefully outlines the limitations of tort litigation on third party criminal behavior.  Both under the standard of strict liability and that of negligence, it is hard to make a causal connection between the practices of gun manufacturers and the violent use of their product.  Westfield contends that the standards are applied inconsistently, and at times inappropriately, in attempting to regulate guns with tort lawsuits.

“Guns and Burglars,” by David Kopel, makes the point that suits against gun manufacturers are not the best or most appropriate way to address gun control.  His thesis is that courts are institutionally not equipped to assess the costs and benefits of gun possession.  Kopel makes his point using comparative data from the United States and Canada.

Collectively, the writers leave it to the reader to render any conclusions about gun control. The gun debate is presented here in a sophisticated manner, making it clear that there is neither one problem nor one solution.  The problem of guns in America is a multi-dimensional, important public policy issue.  A gathering of well known scholars and policy experts, Harcourt’s GUNS, CRIME, AND PUNISHMENT IN AMERICA is an interesting and captivating read.  Students of criminal justice will find the book current in analysis as well as thought provoking.  Policy types will find it thoughtful and sophisticated.  This book is a collection of ideas, not a hodgepodge of topically related articles.  Taken together, they make for a very satisfying book.

REFERENCES:

Levinson, Sanford. 1989. “The Embarrassing Second Amendment.”  99 YALE LAW REVIEW 637-659.

CASE REFERENCES:

NEW JERSEY v. CARTY, 790 A.2d 903 (N.J. 2002).

UNITED STATES v. LOPEZ, 514 U.S. 549 (1995). 

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Copyright 2004 by the author, Priscilla H. M. Zotti