TEN YEARS LATER: AN ANALYSIS OF THE EFFECTS OF NEW YORK CITY’S MANDATORY SENTENCING LAW
Talcott J. Franklin

Talcott J. Franklin teaches Sociology at the University of Washington and is research director for the Second Amendment Foundation.

Introduction

As one of the most contested national disputes, the gun control debate has been viewed as being characterized by embellished claims, bias, and extreme statements. Traditionally, such statements have been used to characterize the positions of the National Rifle Association,1 although recently, Handgun Control, Inc., has also been accused of exaggeration and outright lying.2 The motivation for these claims is in part explained by historian Barry Bruce-Briggs:

[The handgun prohibition controversy] represents a sort of low grade war between two alternative views of what America is and ought to be. On the one side are those who take bourgeois Europe as a model of a civilized society: a society just, equitable and democratic; but well ordered, with the lines of responsibility clearly drawn, and with decisions made rationally and correctly by intelligent men for the entire nation. ... On the other side is a group of people who do not tend to be especially articulate or literate, and whose world view is rarely expressed in print. Their model is that of the independent frontiersman who takes care of himself and his family with no interference from the state. They are "conservative" in the sense that they cling to America’s unique pre-modern tradition -- a non-feudal society with a sort of medieval liberty writ large for every man.3

Gun control advocate turned pro-gun author Paxton Quigley puts it more bluntly: "The debate is a hot one and each side truly despises the other."4

When I began this project, I discussed the New York City law with a number of lay people. Perhaps the debate is best [Page 92] summed up by the opinions of two of them. The first was a female college student, age 21. When I told her about New York’s laws, she didn’t believe me. "But the Constitution guarantees we have a right to bear arms," she said. "They can’t take that away." The other, a journalist, became very angry and emotional. "What possible use can there be for a handgun?!?" he exclaimed.

Given the degree of animosity separating the two groups, it is not startling that each side would resort to exaggerations (a mild term) to support their claims. Although a great deal has been written accusing the NRA of distortions,5 the lobbying arm of the NRA, the Institute for Legislative Action, was recently chosen with the American Library Association as the only lobbies "whose information was considered consistently truthful and reliable by legislators."6

So goes the debate. Both sides are absolutely convinced they are right. Both sides cannot understand each other. The idea that anyone would want to own a handgun for anything other than killing was absolutely inconceivable to the journalist. The idea that a city could take away her perceived Constitutional right to bear arms was equally unbelievable to the student. This research is an attempt to breach that gap by looking at the effects of the most extreme form of gun control available -- the mandatory sentencing of persons possessing a handgun, even if they did not intend to use it in a crime.

The idea behind gun control legislation, that it will reduce crime, has been studied in a great many localities,7 states,8 and nations.9 Although a number of studies suggest gun control reduces crime,10 these studies were insufficient to convince Wright, Rossi, and Daly in their exhaustive review of the evidence for gun control.11 Since Wright, et al., only two studies have suggested gun control reduces crime,12 one of which must be questioned on several grounds.13 Despite this, claims are still made that passing certain gun control laws will reduce crime. 14

On June 13, 1980, New York State passed a law mandating a mandatory minimum one-year jail sentence for possession of an illegal, unloaded gun; two and one-third to seven years for possession of an illegal loaded gun; and five to fifteen years if the gun is used for a felony crime such as robbery.15 The law went into effect on August 12, 1980.[16] Although the law was meant to deter criminals,17 it has been used to imprison otherwise law-abiding individuals using an unregistered gun in self-defense,18 even if they were denied a [Page 93] police permit for a firearm without just cause.19 The law was widely advertised through road signs, television, radio, and in newspapers.20

After the passage of the law, Handgun Control, Inc., made the following claim:

Just two weeks ago, New York passed the toughest handgun control law in the nation. This historic legislation was vehemently opposed by the NRA. But the new law will go a long way toward reducing the 882 handgun murders and the 35,519 felonies which were committed in New York City alone last year.21

Ten years after the passage of the law, this paper will test the impact of the mandatory sentencing law on the area which most enthusiastically enforces the Sullivan Law, New York City.22

Literature Review

Although much of the gun control debate centers on the adoption of a national "Sullivan Law," there have been only two studies to date on the effectiveness of the Sullivan Law,23 both conducted prior to the enactment of the 1980 mandatory sentencing law.

In his comparison of the homicide rate of New York City with the standard U.S. homicide rate over a fifty-year period, Benenson found "a startling symmetry, despite the presumed difference to be made by the Sullivan Law."24 Benenson determined that the Sullivan Law not only appeared to have little effect on homicide, but also on gun homicide. In 1956, New York City’s homicide rate began to surpass that of the national average, despite the Sullivan Law. This rise in the City’s homicide rate, according to Benenson, was "due to more and more pistol homicides, which [had] more than doubled from 1963 to 1967."

Although countless comparisons have been made between New York City and other regions of the country since the adoption of the mandatory sentencing law, these comparisons are usually merely illustrative rather than scientific validations of the effects of the law.25

An analysis of the impact of the mandatory sentencing law in Massachusetts by Deutsch and Alt determined that the law, in its [Page 94] first six months of enactment, had reduced the number of gun assaults and armed robberies, but did not affect homicides.26 The study, which utilizes the multiplicative empirical-stochastic models of order, as contrasted with Benenson’s simple comparisons, has been criticized by Hay and McCleary as inconclusive.27

Other analysis have shown a decline in gun assaults, gun robberies, and gun murders after the enactment of the law.28 An analysis by Walker, however, indicates that this decrease may have been the result of other factors, as similar decreases in crime were reported in other jurisdictions without the new law, although Walker is willing to grant that despite the ambiguity of the evidence, the law may have had an effect, based on the "thorough and cautious evaluations" of several researchers.29

By contrast, other analyses of mandatory sentencing, such as Loftin, Heumann and McDowell’s study of a Michigan law requiring a mandatory sentence for the use of a handgun in a crime using an interrupted time-series model found no evidence of an effect on violent crime.30

A US Department of Justice study on the effects of the "nation’s toughest drug law," which was enacted in New York in 1973, revealed that the law had little effect on drug use, drug crime, or drug recidivism. The study concluded that "the threat embodied in the words of the law proved to have teeth for relatively few offenders."31 In regard to such mandatory sentencing laws, the study concluded mandatory sentencing laws directly affect only an end product of a long criminal justice process -- the convicted offender."32 Considerable leakage in the criminal justice system may have led to the ineffectiveness of the law. As Walker has pointed out, "deterrence and incapacitation are wonderful in theory but do not necessarily work in the real world."33

Methodology

Only homicides were included in the analysis, simply because of the poor quality of data for robbery and assault rates.34 In addition, the adoption of the law might make people more likely to report gun assaults and robberies to the police because they believe the offender will at least get a mandatory, one-year sentence if apprehended. This factor would unfairly bias the data against the new law, showing an increase in robbery and assault when the [Page 95] increase was merely in reporting of those crimes, and not their actual incidence. Homicide statistics, by contrast, are fairly reliable.

Several methods were used to determine the impact of the law on New York City homicides. The first was mere observation of the trend in handgun-related homicide as a proportion of total homicide. The law should have affected homicides in the following manner: people who would normally carry firearms will be more likely to leave them at home or get rid of them now that the law is in effect. Because they no longer will have immediate access to a firearm, these individuals will use a stick or their fists to settle a dispute, rather than the firearm they normally would have used before the law deterred them from carrying it.

This particular scenario is given by Bowers, et al., as an explanation for a decrease in armed assaults in Massachusetts. Claims Bowers:

Particularly in the category of armed assaults, most of which typically stem from arguments and spur-of-the-moment things, people seem less likely to run to their cars or their homes and come back with a gun. Instead, they appear to have just reached for a bar stool or something more frequently. We don’t see it as a deliberate substitution of a knife or some other weapon for a gun, but rather an emotional resort to whatever is handy during a heated conflict, with guns being less handy because of the law.35

If firearm homicides begin to shrink as a proportion of total homicides, it would be evidence that the law is working: people are less likely to use a gun in a homicide because guns are less available on short notice. If firearm homicides rise as a proportion of total homicides, it is evidence of the law’s failure: murderers are not being deterred by the law.

To help control for other factors, a comparison of total US homicides (minus New York City’s) was used. The assumption was made that New York homicide trends will reflect those of the entire nation, and the many factors affecting homicide in the nation will affect homicide in New York City as well.

The New York trend in firearm homicide was then compared with the national trend. Because the rest of the nation was not affected by the New York law,36 the New York trend should be [Page96] different than the national trend it the law had any effect.37

The second method for assessing the impact of the law was to look at the firearm homicide rate for both New York City and the nation as a whole. Assuming that national homicide rates are subject to the same factors as New York City homicide rates, the firearms homicide rate should differ from the national rate if the law had any effect.38

The Effect On Homicide

In New York City, the effect of the mandatory sentencing law on homicide appears to be negligible at best. As table 1 demonstrates,39 in 1978, before the adoption of the law, New York had 769 firearm homicides, and 739 non-firearm homicides. By 1981, the first full year the law went into effect, New York City had increased its firearm homicides to 1,093 while the number of non-firearm homicides remained 739.

Meanwhile, firearm homicides in the rest of the United States began to decrease as a proportion of all homicides, despite the fact that the nation was not subject to the New York law.40 In the three years prior to the law’s adoption, x2[squared] for New York City v. the rest of the nation was highly significant, ranging from 113.4 to 28.4. After the law’s adoption, x2[squared] was not significant at .001 (except in 1982 and 1986), ceasing to be significant at .1 in 1987. By 1988, x2[squared] was again significant, but the proportion of firearm homicides began to "favor" New York City, with 64.8 percent of its homicides due to firearms misuse, compared to 60 percent for the remainder of the nation.

In terms of absolute numbers, the 1980 law did not reduce firearm murders in New York City. Judging from the 1,093 firearms murders in 1981, the law did not stand in the way of those bent on taking the life of another. Indeed, the entire increase in homicide that year over 1978 was due to firearm homicides alone. By 1984, firearm homicides had dropped below 1979 levels, although the proportion of firearm homicides was still far above the 1979 level.

In 1987, however, the downward trend had thoroughly reversed itself, and firearm homicides in New York began to rise as non-firearm homicides remained largely stable. In fact, by 1989, firearm homicides comprised 68 percent of all New York City homicides, far above the nation’s 62 percent. [Page 97]

To further determine the effect of the Sullivan Law, Benenson’s firearm-homicide rate analysis has been replicated for the study years 1976-1989. The data show a clear trend in New York City, following the national trend (table 2). After the adoption of the mandatory sentencing law, the national trend of increasing firearms homicides continued in New York City, peaking in 1981 at 15.45 per 100,000. By 1985, New York City’s firearm homicides hit a local minimum, at 10.72, while the nation’s local minimum occurred a year earlier at 4.09. After 1985, New York City’s firearm homicide rate began to skyrocket, increasing to 17.75 in 1989, while the rate for the rest of the country fluctuated little, remaining below 1986 levels in 1989.

Several conclusions can be drawn from the data. First, the strengthening of the Sullivan Law had no obvious effect on the firearm homicide rate. However, it is impossible to determine what might have happened in New York City had the mandatory sentencing law not been in effect. It is arguable that without the law, the carnage would have been much worse in 1981.

Second, the evidence disputes the theory that gun availability "causes" crime. In the United States as a whole, gun ownership has increased each year since 1976. If guns "caused" people to become homicidal, both the firearm homicide percentage and the firearm homicide rate should logically increase. Despite this, the data show a relatively stable pattern in the firearms homicide rate, and a decrease in the percentage of firearm homicides.41

A homicide requires two elements, the means to kill and a person willing to commit the act. It does not appear logical to assume that an increase in the means to homicide will lead to an increase in the act of homicide unless there is also an increase in the number of people willing to commit that act. It is subject to debate whether a decrease in one means of homicide will result in a decrease in homicide or substitution of another means. Obviously, other means besides firearms exist to kill, although these means may not be as effective.42

Although the assertion that a reduction in the technology of murder will result in less of it seems logical, it actually flies in the face of several studies on homicide. In his classic study of Philadelphia homicides, Wolfgang concluded: [Page 98]

Several students of homicide have tried to show that the high number of, or easy access to, firearms in this country is causally related to our relatively high homicide rate. Such a conclusion cannot be drawn from the Philadelphia data. ... It is the contention of this observer that few homicides due to shootings could be avoided merely if a firearm were not immediately present, [because] the offender would seek some other weapon to achieve the same destructive goal.43

The California Department of Justice reached a similar conclusion:

[T]he mere availability of weapons lethal enough to produce a human mortality bears no major relationship to the frequency with which this act is completed. In the home, at work, at play, in almost any environmental setting a multitude of objects exist providing means of inflicting illegal death....44

More recently, Centerwall has argued:

An increase in the availability of firearms in the United States appears to have resulted in a shift in the choice of weapon in weapon-related assaults and homicides, but it has not had any discernable effect on total rates of criminal homicide and aggravated assault independent of underlying upward trends in the aggressiveness of the U.S. population.45

In New York City, those willing to kill are not being deprived of the means to do so, and in fact are using a greater proportion of firearms to kill than in the years before the adoption of the mandatory sentencing law. This may have something to do with the fact that if one is going to commit a homicide, for which the maximum penalty is 25 years to life in New York, the additional penalty for carrying an illegal firearm will mean nothing.

Indeed, this conclusion is strongly supported by Wright, who concluded:

Among the predatory felons, gun ownership and carrying is seen as essential because they fear what the prospects of an unarmed life on the streets would mean for their physical safety and security. For this group of most serious offenders, [Page 99] enhanced sanctioning policies would be unlikely to pose much threat; for them, the cost of being caught unarmed in a dangerous situation would be many times greater than the cost of a few years in prison.46

This conclusion is also borne out by the research of Swersey and Enloe, who’s study of homicide in New York City concluded: "It appears that these changes [in New York City’s homicide rate] reflect changes in murder, i.e., changes in intent to kill, rather than changes in the availability and quality of weapons and their spontaneous use."47

Swersey and Enloe found "the intentional killings are related mainly to disputes involving narcotics activities,"48 and that "Since deliberate killings are less likely to be affected by gun control laws, the change in the circumstances of homicide has probably reduced (in New York City, at least) the fraction of homicides preventable by gun control legislation."49

What public policy conclusions can be drawn from the data? First, additional gun control legislation is unlikely to reduce homicide in New York City. Second, the City might wish to look at its drug laws for a partial solution. It is subject to debate whether said laws should be strengthened or eliminated, but if drugs are anything like guns, strengthening drug laws will be pointless. What is the difference between smuggling a gun into New York City and a kilo of cocaine? The drug laws, by making such commodities incredibly valuable, may be encouraging homicide by providing individuals with a motive to murder. I would call on future research to attempt and discover ways to remove the motive for future killings, as it appears that removing the means is impossible.

Enforcement of the Law

There are plenty of opportunities to send someone to jail under New York’s "tough" gun law. In New York City, the number of unlicensed guns has increased from 1.3 million in 1960 to over 2 million today,50 with only 66,755 citizens having legal permits to own 134,437 guns.51 Over forty percent of the 27,094 individuals allowed to carry a concealed weapon in New York City are private security guards or retired police officers.52

Following the enactment of Massachusetts’ Bartley-Fox law, Zimring predicted that the number of jury trials for carrying [Page 100] violations would increase, with a decrease in the number of prosecutions and convictions, In addition, the type of defendant will change, with a higher percentage of those charged having previous criminal records.53 This section will analyze the enforcement of the law in New York City, based on arrests, prosecutions, and convictions,

Arrests

Table 3 demonstrates the weapons arrests of those without prior felony or misdemeanor convictions as a proportion of total arrests for the years 1975-1989.[54] Interestingly, the majority of individuals arrested on weapons charges have never been convicted of a crime (mean percentage since 1981 = 64.7%). The adoption of the mandatory sentencing law seems to have had little impact on that figure. The year before the law went into effect (1979), 65.8 percent of weapons arrestees had no proven criminal history.[55] In 1981, the first full year the law went into effect, 64.3 percent of weapons arrestees had no prior criminal record. Since that time, that proportion has stayed relatively stable.

It may be argued, however, that if the law did impact police enforcement, it probably did so to the benefit of those without previous criminal histories. An analysis of the mean no-priors arrests as a proportion of all arrests reveals that for the years 1975-79, no-priors arrests constituted 67.6 percent of all arrests, while making up 64.6 percent of all arrests during the years 1981-1985.[56] Due to a lack of data for the years prior to 1975, I am unequipped to evaluate this claim. However one interprets these results, one must concede that although the police may be letting a few people without previous records off, by and large the law is still being enforced primarily against those individuals who do not have previous criminal histories.

After the enactment of Bartley-Fox, the evidence suggests greater restraint by police officers in searching for guns on "otherwise innocent 93 civilians. Indeed, the number of reports by police of gun incidents dropped 25 percent in Boston between 1974 and 1976.[57]

By contrast, the adoption of the mandatory sentencing law in New York had no influence on the numbers of weapons arrests. In the 224 days before the law took effect, there were approximately 5,168 weapons arrests, a rate of 23 per day. Between August 12, 1980 and December 15, there were 2,830 weapons arrests, a rate of 22.46 per day.58 [Page 101]

In the year 1979, there were 8,611 weapons arrests, a rate of 23.6 per day, and in 1978, there were 8,270 weapons arrests, or 22.7 per day. In 1981, there were 8,440 weapons arrests, or 23 per day.

1982, however, experienced a rise in weapons arrests, to 9,778 or 27 per day. The number of arrests continue to stay fairly high, peaking in 1989 at 10,340, or over 28 per day.

This increase in arrests is more likely a result of Mayor Koch’s[59] (and now Mayor Dinkins’[60]) almost fanatical desire to enforce the law rather than the police perception that weapons arrests will result in actual prison sentences for offenders,61 since such arrests actually fell slightly after the laws’ adoption.62

Prosecutions

As mentioned earlier, Zimring predicted that the mandatory sentencing law in Massachusetts would result in fewer prosecutions of those without prior criminal records. Prima fascia, the raw data seem to validate Zimring’s prosecutions predictions for New York City. However, closer analysis reveals little change in prosecution practices.

True, prosecutions decreasingly "favored" those without prior convictions, dropping from a high of 70.6 percent in 1975 to 65.5 percent in 1979 and 63.7 percent in 1981. However, this drop merely reflects the drop in arrests of those without previous convictions, from a high of 70.9 percent in 1975 to 65.8 percent in 1979 and 64.3 percent in 1981 (table 4). The r2[squared] for prosecutions of those without prior convictions as a function of arrests of those without prior convictions is .985, an extremely high correlation.

Zimring’s prediction that the number of prosecutions would drop does seem to be validated by the data. As demonstrated in table four, the number of prosecutions dropped the first year the law went into effect, from 6,066 in 1979 to 5,830 in 1980 and 5,864 in 1981. More importantly, the percentage of offenders prosecuted also dropped, from 96.28 percent in 1979 to 93.82 percent in 1980, 93.97 percent in 1981 and 93.75 percent in 1982.

As table 5 demonstrates, Zimring’s prediction that the type of offender would change, "favoring" those with prior convictions, is not borne out by the data. Apparently, prosecutors did not base their decision to prosecute on a defendant’s previous criminal [Page 102] record. In 1979, 96.2 percent of those without prior convictions were prosecuted, as opposed to 96.5 percent of those with prior misdemeanor convictions, and 96.3 percent of those with prior felony convictions. In 1980, 93.8 percent of those without prior convictions were prosecuted, as were about 94 percent of those with prior convictions. This figure remained fairly stable throughout the early 1980’s, until 1986, when the percentage of those prosecuted without previous convictions actually exceeded the percentage of those prosecuted with prior convictions (95.8 percent v. about 95.2 percent of misdemeanors and 95.7 percent of felonies).

Sentencing

Mayor Koch was very explicit in the purpose of the new law. When asked if he had any qualms about sending someone to jail who was otherwise honest but had possession of an illegal gun, the Mayor stated: "The honest citizen ought not to have an illegal gun. He’s breaking the law."63 In a stern warning, the Mayor proclaimed that "those people who simply think that because you’re a nice guy and you have a grocery store that you’re going to have a gun in violation of the law, forget it. If I have anything to do about it you’re going to jail."64 You’re not a nice guy if you have a gun ... even if you are a nice guy."65

If the law’s intention was to send people to prison rather than deter them from homicide, it has certainly met its goals.66 From the outset, the new law tended to increase the number of those arrested that went to prison.67 In 1979, only 5.88 percent of those arrested on felony weapons charges and 6.57 percent of those prosecuted for felony weapons violations went to prison. In 1980, the first haft-year of the law’s adoption, 8.89 percent of those arrested and 10.04 percent of those prosecuted went to prison. By 1981, that number had shot up to 10.09 and 11.41 percent, respectively. These numbers began to drop in 1982, but have never fallen lower than the pre-law mark.

This increase in prosecution came at the expense of many who had no previous criminal history. According to table six, of the 5,088 prosecutions of those without previous criminal histories in 1979, 1.28 percent were given prison sentences. In 1980, that percentage increased to 2.43, and jumped again to 3.06 percent in 1981, more than doubling since 1979. In 1982, the rate began to decline, down to 2.15 percent. [Page 	103]

Of the 935 weapons prosecutions of those with previous felony convictions, 11.66 percent went to prison in 1978 increasing to 15.64 percent in 1979. By 1980, it had increased to 21.76 percent, and 26.5 percent in 1982, staying above 21 percent every year except 1989.

For those with previous misdemeanors, the percentage of prosecutions sent to prison was 3.35 in 1979, jumping to 5.1 in 1980 and 6.33 in 1981, falling in 1982. Apparently, the sternness exhibited by judges after the adoption of the law moderated with time, yet judges are still much harsher on those who have previous felony convictions, and between 1985 and 1988, the percentage of those sentenced to prison without previous convictions steadily increased, dropping only slightly in 1989.

Conclusion

At the conclusion of Sense and Nonsense About Crime, Walker urges intellectuals to fulfill their responsibility "to speak truth to power ... If some new crime control program is utterly crazy, we should say so."68

Very well. The New York law has probably done little to reduce the numbers of illegal firearms in New York City or deter homicide. While the law has been in effect, homicides have risen to unprecedented levels, increasing 45% in New York City during the first three months of 1990 over that same period in 1989.[69]

"Crime is tearing at the vitals of this city and has completely altered ordinary life," stated Thomas Reppetto, president of the Citizens Crime Commission.70 In a recent statement, several New York politicians noted, "Based upon the most recent statistics and our personal observations as elected officials, we find that a condition of lawlessness prevails in certain parts of New York City."71 Time magazine’s cover story on September 17, 1990, "The Decline of New York," reported:

A growing sense of vulnerability has been deepened by the belief that deadly violence, once confined to crime-ridden ghetto neighborhoods that the police wrote off as free-fire zones, is now lashing out randomly at anyone, anytime, even in areas once considered relatively safe.72 [Page 104]

A poll conducted for Time/CNN found that 60% of New York City residents worry about crime 49 all the time or often" and 73% believed that "A dangerous place to live" describes how they "feel about New York City."73

Responding to public pressure, the mayor of New York City, the Governor of New York State, and several legislators have begun the cry for more gun control.74 The absurdity of the situation was demonstrated in a letter to the editor written by Matt Egloff:

In Dodge City, Kan., you can walk into a pawn shop with a Kansas driver’s license and money and walk out with any and as many guns as you want. Dodge City has had one murder in the past 20 months. ... In New York City, all legal guns are licensed. The licenses cost hundreds of dollars. If you are not rich or well connected,... [i]t will take about $2,500 in legal fees to force the city to issue you a license to buy a gun, even though the law doesn’t give them the right to put you through this bureaucratic harassment. In New York City there are dozens of murders each week. "This is no Dodge City," the mayor [of New York, David Dinkins] said. He’s right. Dodge City is a safe place to live.75 ...Everywhere else in the country, there is a fairly realistic approach to crime. Gun laws are part of that approach, but they are not emphasized as a cure-all, nor are they maliciously enforced to deny people firearms for sport or self-defense. ... New York City is looking for a quick fix. David Dinkins at first called for stricter gun laws in New York City, until he realized they could get no worse unless he called for gun confiscation and that would affect his rich friends and businessmen. He announced a gun turn-in amnesty period and in a month got five guns.76

The amnesty program’s effectiveness was questioned by Thomas Reppetto, of the Citizens Crime Commission "since the people we really want to get the guns away from are not the people who are likely to turn them in."77 This is not New York City’s first experience with a gun amnesty program. Prior to the adoption of the new law, Mayor Koch announced a gun amnesty program, and received eight working guns in the first week, two of which were B.B. guns.78

The continuing call in New York for newer and tougher gun laws can hardly be defended on rational grounds. Some may point [Page 105] to Bowers, et al.’s research on Massachusetts and conclude that the law may not affect homicide, but it does deter handgun assaults. Bowers stated there was a substitution of "a bar stool or something" rather than a gun during a conflict. I would pose the following questions: if people are being assaulted at the same rate, but with different weapons, does it really matter? Is there really much difference between being assaulted with a gun and being assaulted with a club if the end result is the same? The only possible benefit of a decrease in gun assaults is that less assaults will end in homicide because guns are more deadly than bar stools. If that is not occurring, however, why does it matter what people assault each other with? To paraphrase Wright, Rossi, and Daily, if people are going to be assaulting each other no matter what, and the end result will always be the same, shouldn’t we be just as happy if they assault each other with guns?79

If gun robberies and gun assaults decline, but other types of robberies and assaults rise to make up the difference, then what have we accomplished? Are we suddenly "more civilized" because we are wounding and robbing each other with rocks and sticks rather than guns?

New York City currently has some of the toughest weapons laws in the country.80 Its law-abiding citizens are denied the means of self-defense -even to the point of outlawing chemical Mace81 -yet gun homicides continue to increase. Indeed, New York City’s Police Chief and Mayor recently attempted to export a taste of New York’s gun laws to the rest of the nation.82

An editorial by the New York Times is especially candid regarding New York’s gun laws:

That the concealed weapon law has not worked as well as was expected, or at any rate hoped, by those of us who commended it in principle, if not in details, is a fact too obvious for denial. Criminals are as well armed as ever, in spite of the sternness with which the law has been applied to a few of them, while there has been a general impression among honest men, mistaken but none the less real, that they were wrongly deprived, if not of the means, at least of the right to have the means, for defending themselves and their property... Something very much like a natural instinct tells the honest householder that to make him ask anybody’s [Page 106] permission to have a revolver in his bureau drawer, or even under his pillow, is a hardship tinged with absurdity. A weapons law, to be enforceable, must be as considerate as possible of this feeling, and it was a grave weakness of the Sullivan law that it didn’t do it.

That editorial was written on May 24, 1913, yet its analysis may be as valid today as it was then.83 According to "America’s preeminent spokesman for handgun control,"84 HCI Chair Pete Shields:

Licensing [and registration] [are] nothing more than the law-abiding citizen standing up to his accountability. ... it’s the law-abiding citizen saying: "I’m a responsible citizen. Check me out. And when you find out I’m all right, put the number of this gun down after my name, so that if it’s ever misused, you know who to come and get." That’s responsible citizenship.85

In New York City, licensing has nothing to do with responsible citizenship: it is a tool used by the government to keep guns out of the hands of all but the wealthy and powerful.86 In contrast to the rest of New York State, New York City has unique licensing procedures which attempt to make obtaining a permit nearly impossible, expensive, and an incredible hassle to keep.87 There are 2 million-plus illegal guns in New York City precisely because the police department has chosen to make those guns illegal. According to the President’s Commission on Crime in the District of Columbia:

New York City administers the Sullivan Law’s licensing provisions restrictively with the apparent goal of making private ownership of handguns as uncommon as possible; compliance is made burdensome and pre-licensing investigations are exhaustive.88

This policy is contrary to the intent of the Sullivan law and pursued with unbridled zeal. According to Kates: [Page 107]

This policy of progressively limiting permits given ordinary citizens had reduced premises permits to one-seventh the number issued in London [England]. When New York appellate courts held that applicants could only be rejected if found unfit, New York City simply ignored the rulings. When the gun lobby obtained injunctions forcing the city to comply, it did, but only after establishing a two-year waft to obtain the gun permit form. Finally, when the New York legislature reaffirmed the court decision and ordered that permit approvals or denials be made within six months, the city imposed an enormous processing fee, making application and renewal economically feasible only for the well-to-do.89

The feelings this practice incites in the populous of New York City might be characterized by a letter to the editor written by David Steele:

... currently 27,094 New Yorkers have "carry permits" and 7,646 have "premise permits" for handguns. In other words, in the robbery capital of the United States, only 34,740 people out of 7 million have lives that are officially worth protecting. Since the NYPD’s Stakeout unit was disbanded, the only thing an armed robber has to worry about is entering a store owned by one of those 34,740 people.90

If the police department wants to use registration and licensing procedures as tools to insure accountability, as gun control advocates suggest, it should be issuing permits to the law-abiding people who request them.91 If New York City wants a draconian gun ban with thinly veiled exceptions for ex-cops and the wealthy, then it should keep the status quo.

We have seen the effect of the latter option. The law is ignored as the police and politicians issue loud calls for "tough new laws" that will punish offenders more severely while suspending the Bill of Rights.92 Said one policeman while calling for tougher gun laws, "It makes you wonder if a dictatorship isn’t a better system of government."93 Meanwhile, homicides continue unabated, a number of previously law-abiding citizens go to jail for wanting to protect themselves, and the law is seen by those who wish to own guns as something to fear rather than respect.94 A law banning military- [Page 108] style, semi-automatic firearms in the city recently passed the city council.95 If registration lists are used to confiscate previously legally registered semi-automatic guns, the situation will be further complicated.96

There is no logical reason for denying gun permits to honest citizens. Some have advanced the argument that increasing guns in the hands of honest citizens will increase homicide since most homicides are committed by previously law-abiding people.97 There is not much evidence to support this position.

First, various analyses of homicide have concluded that the average murderer has a previous arrest record.98 According to Kates:

Murderers are atypical, highly aberrant individuals whose spectacular indifference to human life, including their own, is evidenced by substance abuse, automobile accident, felony, and attacks on relatives and acquaintances.99

Research on domestic disputes has revealed that in nearly ninety percent of domestic homicides in Kansas City and Detroit, police had responded to at least one disturbance call at the home in the two years prior to the homicide.100

Studies also show the proportion of "previously law-abiding" murderers in New York City is extremely small. In their analysis of homicide in Harlem, Swersey and Enloe found: "that the great majority of both perpetrators and victims of assaultive homicides had previous arrests, probably eighty percent or more."101

Second, the argument that "heat-of-the-moment" murders are most common is based on false assumptions. According to Wright:

Clearly... the assumption that heat-of-the-moment murders far outnumber willful murders cannot be justified by evidence on prior victim-offender relationships. Such information does not support conclusions about homicidal motives or about the number of slayings that might be prevented if fewer guns were available.102

Third, the people with licenses empirically are not criminals. According to Krug, "No licensed handguns [in New York City] were [Page 109] used in the commission of any criminal homicide, aggravated assault, or robbery."103

Finally, there are currently over two million illegal guns in New York City. It can be reasoned that allowing those illegal guns to be licensed will decrease spontaneous homicides because a potential murderer will know that, in the words of gun control advocate Pete Shields, the police "will know who to come and get" if the gun is misused.104

This position is not without empirical support. As Krug points out, the firearms homicide rate is much higher in New York City than in the rest of the state:

Both the 1966 firearms murder rate and firearms aggravated assault rate were substantially greater in New York City than in the New York State area outside of the city. In fact, the combined rate was nearly five times as great in New York City as it was in the rest of the state (37.4/7.6). For the years 1962-1966, the firearm homicide rate in New York City was 2.4; in New York State it was 0.8. All of these phenomena occurred in spite of the fact that New York City has special, ultra-restrictive powers under the Sullivan Law.105

I would call for future research on the effect of the mandatory sentencing law across New York State, testing the theory that if permits are distributed fairly and reasonably by the police, such mandatory sentencing laws may have an effect on crime, as may be the case in Massachusetts, while if permits are given only to the police and the wealthy, widespread contempt for the law will lead to its violation.

Footnotes

1. See, for example, Ruth, Daniel, "Every red-blooded hunter needs an AK-47," Chicago Sun-Times, January 21, 1989, p. 13; Campbell, Bill, "Campbell takes aim at NRA, gun advocates," Streator (IL) Times-Press, March 27, 1989; Fulton, Bruce, "Both sides of gun control debate fear court ruling," Tucson Citizen, March 21, 1990; Handgun Control, Inc., fund-raising letter, November 9, 1988; Vaughn, Jerry, interview, "IACP Director speaks for Police Chiefs nationwide," Washington Report, a publication of Handgun Control, Inc., vol. 13, no. 1, Spring, 1987, p. 4.

2. See, for example, Kopel, David B., "Gun foes should tell the whole story," Chicago Tribune, March 30, 1991; Cook, Philip J., "A policy perspective on gun control," unpublished Ford Foundation study (mimeo, Duke University, 1976); Fulton, Bruce, [Page 110] supra, note 1; "Sarah Brady Stop Lying" advertisement, Washington Times, June 18, 1990; Coombe, James M., "The big lies about gun control," Cincinnati Enquirer, June 8, 1990; Blackman, Paul H., "Law enforcement lobbying and policy-making on gun control," Journal on Firearms and Public Policy, Summer, 1990, note 4; Clede, Bill, "Arguments of gun-control lobby based on misinformation," Hartford Courant, June 20, 1990; Benenson, Mark K., "A controlled look at gun controls," infra, note 7.

3. Bruce-Briggs, B., "The Great American Gun War," The Public Interest, Fall, 1976. Similarly, the Wall Street Journal editorialized: ‘The assault rifle’ issue, it seems to us, is less a public policy debate than a cultural clash. The cosmopolitan culture doesn’t know one kind of weapon from the other and doesn’t much care. Basically, it believes that guns are nasty and duck hunting is barbaric. The bedrock culture may not like white wine and Brie, but it is plenty smart enough to recognize Men it is under attack. It fights back in tones that may be inelegant, but it does know what it’s talking about here." "Rifle Orientation," Wall Street Journal, March 24, 1989, p. A 10.

4. Quigley, Paxton, Armed & Female (New York: E.P. Dutton), 1989, p. 57. 5. Supra, note 1.

6. "Alarum and Diversions," Library Journal, September 15, 1988.

7. Wolfgang, Marvin, Patterns in Criminal Homicide (University of Pennsylvania), 1958, p. 82; Benenson, Mark K., "A controlled look at gun controls," in Kates, Don B., Jr., (ed.) Restricting Handguns. the Liberal Skeptics Speak Out (North River Press, Inc.) 1979, p. 79; McDowall, "Gun availability and robbery rates: A panel study of large US cities, 1974-1978, " 8 Law & Pol. Q. 135 (1986); Bordua, "Firearms ownership and violent crime: A comparison of Illinois counties,"; Kleck and Patterson, "The impact of gun control and gun ownership levels on city violence rates," (1989), available from the authors at Florida St. U. school of criminology; Bordua & Lizotte, "Patterns of legal firearms ownership: a situational and cultural analysis of Illinois counties," 2 Law and Policy Quarterly 147 (1979).

8. Narloch, R., Criminal Homicide in California, prepared by the California Department of Justice, Bureau of Criminal Statistics, 1958; "The Regulation of Firearms by the States," Wisconsin Legislative Reference Library Report, Research Bull. 130, 1960; Krug, "The relationship between firearms licensing laws and crime rates: A statistical analysis," Congressional Record, vol. 113, pt. 15, July 25, 1967, p. 20060; Magaddino, "An economic analysis of state gun control laws: A statistical study of 1970 data," (doctoral thesis, Virginia Polytechnic Institute, 1972); Dyer, "Guns, crime, and the law," (unpublished manuscript, 1975); Murray, "Handguns, gun control laws, and firearm violence," Social Problems, vol. 23, 1975, p. 81; Magaddino, Joseph P., and Marshall H. Medoff, "Homicides, robberies and state ‘cooling off’ schemes," in Kates, Don B., (ed.) Why Handgun Bans Can’t Work, (Bellevue, WA: Second Amendment Foundation), 1982, p. 100.

9. Tanner, E.S., Homicide in Uganda, 1964 (Uppsala: Scandinavian Institute of African Studies), 1970; Greenwood, Colin, Firearms Control. A Study of Armed Crime and Firearms Control in England and Wales, (London: Routledge & Kegan Paul) 1972; Azeraj, V., An Analysis of the Role of Firearms Control Laws in South African Society (master’s thesis, University of Capetown), 1973; Weight, James, Peter Ross!, and Kathlene Daly, Under the Gun: Weapons, Crime, and Violence in the United States (New York: Aldine), 1983; Centerwall, B., "Exposure to television as a cause of violence," In: Comstock, G. (ed.), Public Communication and Behavior, vol. 2 (New York, NY: Academic Press), 1989, pp. 1-58.

10. Zimring, F., "is gun control likely to reduce violent killings," University of Chicago Law Review, 1968, 35: 721-737; Sietz, F.T., "Firearms, homicide and gun control [Page 111] effectiveness," Law and Society Review, 1972, 6:596-613; Phillips, L., H.L. Votey, Jr., and J. Howell, "Handguns and Homicide: minimizing losses and the costs of control," J. of Legal Studies, 1976, 5:463-478; Fisher, J.C., "Homicide in Detroit: the role of firearms," Criminology, 1976, 14: 387-400; Deutsch, S.J., and F.B. Aft, "The effect of Massachusetts’ gun control law on gun-related crime in the City of Boston," Evaluation Quarterly, 1977, 1:543-568.

11. Wright, J., Peter Rossi, and Kathleen Daly, Under the Gun: Weapons, Crime, and Violence In America (Aldine: New York), 1983.

12. Sloan, John H., et al., "Handgun regulations, crime, assaults, and homicide: A Tale of Two Cities," New England Journal of Medicine, November 10, 1988, p. 1256; according to Kates, "The consistent result of studies attempting to link gun ownership to violence rates is either no relationship or a negative one." in Kates, Don B., "Guns, murders, and the constitution: A relativistic assessment of gun control," Policy Briefing, Pacific Research Institute for Public Policy, February, 1990.

13. First, the study uses cross-cultural comparisons, between Vancouver, British Columbia (Canada) and Seattle, Washington (United States). Second, the study’s authors demonstrate a lack of knowledge about Vancouver gun control laws and the number of guns in each population (e.g.; the study’s authors report: "In Vancouver, self-defense is not considered a valid or legal reason to purchase a handgun." [p. 1257] The Code of Canada, however, allows handguns "to protect life." [s. 106.1(3)(c)(i)]). Third, the study makes the egregious error of comparing two cites with enormous cultural differences. When similar racial groups are compared, i.e.; individuals of European-origin, the results are altered significantly. The homicide rate for Caucasians in Seattle is 6.2 per 100,000, compared with 6.4 per 100,000 in Vancouver - higher.

14. Brady, Sarah, "You can do something about handgun violence," an unpaginated, undated pamphlet by Handgun Control, Inc.; Lasher, Howard L., "Do you agree?" New York Post, July 16, 1990; Rosenthal, A.M., "Too many guns, too many deaths of babies, teens," Detroit News/Free Press, August 5, 1990.

15. The law was meant to strengthen penalties for violations of New York State’s Sullivan Law, adopted in 1911, at the urging of politician Tim Sullivan. The law requires a police permit for the possession of a weapon.

16. Haberman, C., "Mayor Assails ‘Slow Disposition’ Of Cases Under Tough Gun Law," New York Times, February 4, 1981; "Authorities Report Major Flaw in New York Law," Gun Week, 17 October, 1980.

17. Raab, S., "Is New York Firing Bullets Or Blanks on Gun Control?" New York Times, August 17, 1980.

18. The most notable case is that of Bernard Goetz, who was acquitted of all criminal charges by a jury -- with the exception of the gun charge, which the jury also wanted to drop. The judge instructed the jury that Goetz had to be found guilty of the illegal weapons charge. Goetz served eight months of a one-year sentence. Several other recent cases are reported by the New York Daily News. "Bronx livery driver Rafael Lora fires a shot from an unlicensed pistol after losing $70 in a robbery to a gunman who fires first. He is [awaiting trial) on misdemeanor gun charges. Kenny Mendoza wealds an unlicensed .38 pistol to shoot Ronald Ford as he attacks Mendoza’s pregnant neighbor in East Harlem. Mendoza, free without bail, is charged with murder... Yvesnande Bureau, 20, who was mugged three times last year, fires an unlicensed gun at a man who tries to rob her at a Brooklyn traffic light. She faces gun charges and if convicted could go to jail for up to seven years." New York Daily News, "At a glance: Fighting Back, " May 6, 1990, p. 33. See also, Edwards, James E., Myths [Page 112] About Guns (Coral Springs, FL Peninsula Press) 1978, pp. 57-58.

19. Permits to possess a firearm are extremely difficult to obtain. The applicant must demonstrate a "need" for a permit. According to the New York Daily News, "About 25 percent of those who apply are approved. Applicants must prove they regularly carry large amounts of cash or operate a robbery-prone business in a high-crime area. Few who ask for a carry permit simply because they have been mugged are approved." New York Daily News, May 6, 1990, p. 33. Goetz did not demonstrate a "need" for a permit - although he had previously been mugged.

20. For example, one ad read: "New York has the toughest gun law In America, If you get caught carrying an illegal handgun In New York, you’ll go to jail for one year. And that’s not a threat. It’s the law." (From "Gun Control Hodgepodge," Newsweek, December 22, 1980, p. 47).

21. News Flash..., attached to a Handgun Control, Inc., Political Acton Committee fund-raising letter, July 15, 1980. The Citizens Crime Commission concurred, arguing the law could save 200 lives in a two-year period. (Controlling Firearm Violence: Get the Gunmen Off the Street, A report by the Citizens Crime Commission of New York City, April, 1980). The New York Times editorialized: "More rigorous handgun controls could save at least some lives." ("For Pistols, Jail," March 3, 1980). The New York Daily News, New York Post, and many other dailies ran continual editorials and stories throughout February, 1980 supporting the adoption of the new law.

22. Benenson, Mark K., "A controlled look at gun controls," in Restricting Handguns, supra, note 7, p. 77. Other areas of New York view the law differently. For example, Earlville, New York, adopted a resolution which stated: "Every adult citizen, being of good character, sound mind, and legal age, is hereby recognized as having the right to keep and bear arms. ...every citizen ... has the responsibility and duty to self, family, and country to possess firearms and acquire the necessary knowledge for the safe and judicious use of said firearms; and they are encouraged, but not required, to do so." ("NY Town Urges Gun Ownership," Gun Week, April 8, 1983).

23. Benenson, Mark K., "A controlled look at gun controls," in Restricting Handguns, supra, note 7; Krug, Alan S., Does Firearms Registration Work?: A statistical analysis of New York State and New York City (National Shooting Sports Foundation, Inc.), July 22, 1968.

24. Benenson, supra, note 7, p. 78.

25. See, for example, Gottlieb, Alan M., Gun Rights Fact Book (Bellevue, WA: Merril Press), 1988, p. 152; Edwards, James E., Myths About Guns, supra; Martinoff, Michael J., "A tale of two cites: A Vancouverite’s perspective," American Rifleman, June 1989, p. 13; Tartaro, Joseph P., "New York City Absurdities," Gun Week, September 28, 1990, p. 11. In response, see Shields, N., Guns Don’t Die -- People Do (Arbor House: New York), 1981, pp. 79-80.

26. Deutsch and Alt, supra. Interestingly, Bartley-Fox was scarcely enforced, especially in 1975, the year analyzed by Deutsch and Aft. According to the Boston Herald: "For nearly 15 years, the Bartley-Fox gun control law... was just words, a law in name only, like the speed limit signs posted across the state. So few law breakers went to prison (20 in all of 1975) that even fewer took the law seriously." From "Gun law enforced at last," Boston Herald, September 27, 1990.

27. Hay R., and R. McCleary, "Box-Tiao time series models for impact assessment: A comment on the recent work of Deutsch and Alt," Evaluation Quarterly, vol. 3, no. 2, 1979, p. 277. This commentary was refuted by Deutsch in "Lies, Damn Lies, and Statistics: A rejoinder to the comment by Hay and McCleary," Evaluation Quarterly, vol. 3, no. 2, 1979, p. 315. In defense of Deutsch and Aft, Wright, et al., labeled their [Page 113] methods "an excellent example of how [modeling prevailing trends with time series analysis] may be accomplished," Wright, et al., note later, however, that the appropriateness of the models selected was challenged by Hay and McCleary,

28. Pierce, G., and W. Bowers, "The Bartley-Fox Gun Law’s Short-Term Impact On Crime," The Annals, May, 1981, pp. 120-137.

29. Walker, S., Sense and Nonsense about Crime: A Policy Guide, 2nd Edition (Brooks/Cole Publishing: Pacific Grove, CA), 1989, p. 91.

30. Loftin, Colin, Milton Heumann, and David McDowall, "Mandatory Sentencing and Firearms Violence: Evaluating an Alternative to Gun Control," Law and Society Review, Spring, 1983, pp. 287-318. Loftin, Colin, and David McDowall, "One with a gun gets you two: Mandatory Sentencing and Firearms Violence in Detroit, " Annals of the American Academy of Political and Social Science, May, 1981, pp. 150-67.

3 1. U.S. Department of Justice, The Nation’s Toughest Drug Law Evaluating the New York Experience (Washington, DC: U.S. Government Printing Office), 1978, p. 18.

32. U.S. Department of Justice, The Nation’s Toughest Drug Law, supra, p. 13.

33. Walker, S., Sense and Nonsense about Crime: A Policy Guide, supra, p. 89.

34. Walker, Samuel, "Who Do You Trust? The Debate Over Crime Statistics," Sense and Nonsense about Crime: A Policy Guide, supra, p. 14.

35. Quoted in Shields, Pete, Guns Don’t Die, People Do, supra, pp. 84-85.

36. Except Massachusetts. However, the Massachusetts law was not strictly enforced. See discussion, infra.

37. Cited in tables as US-NYC. New York State is included in US-NYC because the procedure to obtain a permit is different. See discussion, infra.

38. Clearly, a major assumption. However, this method does have the advantage of minimizing measurement error through a use of only a small number of variables. One possible source of error is in using population estimates for non-census years.

39. All tables are located at the end of the article.

40. The notable exception is Massachusetts, which enacted the Bartley-Fox handgun law in 1975. However, Bartley-Fox was scarcely enforced. Convictions for Bartley-Fox ranged from a low of 20 in 1975 to 69 in 1987 (Heaney, J., "Once-scorned gun-control law rebounds as convictions soar," Boston Herald, September 23, 1990). For an analysis of the Bartley-Fox law, see Deutsch and Aft, supra, note 10; Pierce, G., and W. Bowers, "The impact of the Bartley-Fox crime law in Massachusetts," unpublished paper, Northeastern University: Center for Applied Social Research; Rossman, D., P. Froyd, G. Pierce, J. McDevitt, and W. Bowers, "The impact of the mandatory gun law in Massachusetts," Boston University School of Law: Center for Criminal Justice.

41. See also, Benenson, Mark K., letter to the editor, Journal of the American Medical Association, September 6, 1990. Benenson writes: "If Fingerhut and Kleinman are right that more handguns mean more murders, then adding 50 million pistols to the national supply ought to have markedly increased both homicide rates and the risk of being a victim. Nothing like that has happened. This surely seems to indicate that the number of homicides is essentially independent of, and unrelated to, the undoubted easy availability of handguns in the United States."

42. The New York Times, for example, attributes the rise in firearms homicides to more sophisticated weaponry. "Violent crime is more violent today because more street criminals carry bigger guns. The most popular is the 9-millimeter semi-automatic pistol, capable of firing clips of a dozen bullets or more, in rapid succession and with great penetrating power. Small wonder that the portion of New York City homicides committed with a gun soared from 19 percent in 1960 to 68 percent last year." "Illegal [Page 114] Guns: Go Get Them," New York Times, August 13, 1990.

43. Wolfgang, Marvin, Patterns in Criminal Homicide (University of Pennsylvania), 1958, p. 82.

44. Narloch, R., Criminal Homicide in California, prepared by the California Department of Justice, Bureau of Criminal Statistics, 1958.

45. Centerwall, Brandon, "Exposure to Television as a Cause of Violence," Public Communication and Behavior, Vol. 2, 1989, p. 15.

46. Wright, James D., "The Armed Criminal in America," National Institute of Justice, Research in Brief, November, 1986, p. 5. This view was echoed by Leon Polsky, a former New York state Supreme Court Justice: "A second offender can now get up to 25 years for committing a felony with a gun. That doesn’t stop thousands of people from doing so. Why should the threat of one year in jail deter them from carrying a gun?" In Raab, S., "Is New York Firing Bullets Or Blanks on Gun Control?" New York Times, August 17, 1980.

47. Swersey, A., and E. Enloe, Homicide In Harlem, Draft Release (The New York City Rand Institute: New York, NY), October, 1975.

48. Swersey, A., and E. Enloe, Homicide In Harlem, supra 49. Swersey, A., and E. Enloe, Homicide In Harlem, supra.

50. Krajicek, David J., "Alarmed &Armed," New York Daily News, May 6, 1990, p. 32. Given the fact that ownership of an illegal gun can result in a seven-year prison sentence, estimates of illegal guns are pure speculation, since few people are willing to admit to such a crime. As a side note, the Patrolmen’s Benevolent Association is asking the mayor for 9mm semi-automate pistols as replacements for the .38 revolver currently in use "to keep up with the increasingly sophisticated weaponry criminals are using." Foran, K., "New Pistols Go Underground," New York Newsday, August 4, 1990.

51. Firstman, Richard, "Guns R’ Us," Long Island Newsday, September 18, 1990, p. 17. The New York City Police Department agrees With the licensing figure, but places the number of licensed guns at 147,445. The licenses can be one of four types and are broken down thus: 27,094 carry permits, which allow one to carry a concealed weapon on the street; 7,646 premise permits, which allow one to keep a gun in the home or business; 7,855 special permits, which must be obtained by one licensed to carry a concealed weapon outside New York City to carry the weapon in the City; and 24,160 target permits, which allow gun ownership for target practice. Krajicek, D., New York Daily News, May 6, 1990, p. 32, supra.

52. A 1980 analysis of New York City’s firearms permits revealed that of 26,143 individuals licensed to carry a concealed weapon, 10,667 were of those two groups. Lombardi, F., "Gun City," New York Daily News, Sunday News Magazine, March 2, 1980, p. 17. That proportion has increased markedly. A 1990 analysis reveals that of the 27,094 people licensed to carry a concealed weapon, 11,777 (43 percent) are retired police officers. Krajicek, D., New York Daily News, May 6, 1990, supra.

53. Zimring, supra, note 10.

54. Source: New York State Department of Criminal Justice Statistics.

55. I recognize many of these individuals may have been involved in criminal enterprises. However, I consider this the best available measure of prior criminal activity.

56. The law was adopted on June 13, 1980, and went into effect on August 12, 1980. Thus 1980 reflects both the period prior to and after the enactment of the law, and is excluded from the analysis here. With 1980 included, the means are 67.1 for 1975-1980, and 64.5 for 1981-1986. [Page 115]

57. U.S. Department of Justice, Mandatory Sentencing: The Experience of Two States, Policy Brief (Washington DC: U.S. Government Printing Office), 1982.

58. Because the data does not cover the last sixteen days of December, the 5,168 figure was extrapolated by subtracting what I determined was the number of arrests for that sixteen day period (5,527 - 359 = 5,168). The 359 figure was reached by multiplying the average number of arrests for the period August 12 to December 15 by sixteen days (22.46 arrests x 16 days = 359.4). Even if we assume there were no arrests in the last sixteen days of December (it was Christmas so the cops were nice), the daily average number of arrests prior to the law’s adoption would be 24.67.

59. According to Mayor Koch, "People must know that if they carry a gun they will go to jail." Mayor Koch originally lobbied for a much harsher law, and accused the judiciary of "abusing" the new law when he felt that enough people weren’t being sent to jail. All in Haberman, C., "Mayor Assails ‘Slow Disposition’ Of Cases Under Tough Gun Law," New York Times, February 4, 1981.

60. Mayor Dinkins recently called for strengthening New York’s gun control laws ("Big Cites Seek Gun Control Measures to Battle Rise in Crime," New York Tribune, October 1, 1990) and blamed the judiciary for inadequately enforcing the mandatory sentencing law, a la Koch (Gonzalez, S., "Dave: Bar assault guns," New York Daily News, January 4, 1991). Said Dinkins, "The cost of failing [to strictly enforce the gun law] is much greater ... We cannot lock up enough people and we cannot build enough jails to deal with this problem." (Jordan, G., "Ban Assault Guns in City, Mayor Asks," New York Newsday, January 4, 1991). Dinkins also attempted to export such laws to the rest of the country, asking Congress to adopt stricter gun control measures. Dinkins was joined by New York City Police Commissioner Lee Brown ("Big-City Police Chiefs Seek New Gun Controls," St. Louis Post-Dispatch, September 11, 1990).

61. According to police officer and self-defense expert Massad Ayoob, "What the policemen themselves want is rapid and inescapable justice for lawbreakers, especially those who use guns in crime. ... the [New York] Police Benevolent Association is pushing for ... special ‘gun courts’ that will permit the swift and certain prosecution of criminals caught with guns." In The Experts Speak Out The Police View of Gun Control, Second Amendment Foundation Monograph Series, (Second Amendment Foundation: Bellevue, WA), 1981.

62. This has not been a function of population growth, as the following table demonstrates:

year 	arrest rate

1978	43.1

1979	47.4

1980	50.9

1981	56.9

1982	68.2

1983	71.0

1984	93.0

1985	122.3

1986	119.2

1987	126.7

1988	140.1

1989	140.3

63. Smith, P., "Think Again Fellas, Koch Tells Lawmakers," New York Post, February 20, 1980. [Page 116]

64. "Even Tougher Gun Law Sought By Koch As His Last One Proves Futile," Reports From Washington, Vol. 9, No. 8, May 5, 1982.

65. Reiser, H., "Koch to New Yorkers: Turn in your guns," New York News World, February 22, 1980.

66. This was not enough to please Mayor Koch, however, who sharply criticized the judiciary by stating that his "gut reaction" was that judges were "abusing" the latitude they have to sentence defendants if they find mitigating circumstances. (Haberman, C., "Mayor Assails Slow Disposition Of Cases Under Tough Gun Law," supra). Judge Leo Milonas responded that this was "an irresponsible overreaction to a lack of conclusive evidence." (Haberman, C., "2 Top Judges Retort To Koch On Gun Law," New York Times, February 5, 1981). He added that the mayor "always" blames the judiciary, and that "The judges are duty-bound to enforce the laws In the Constitution of this country. The mayor is not going to change that." (Sutton, L. and V. Cosgrove, "Top judge fires back in gun law dispute," New York Daily News, February 5, 1981).

67. A study done by New York City Criminal Justice Coordinator Robert Keating on the first nine months of the law concluded: "The figures show increasing productivity by the criminal justice system in disposing of gun charges." (Sutton, L., "More drawing jail terms under tough state gun law," New York Daily News, June 11, 1981). The Brooklyn District Attorney, Eugene Gold, noted that his office "asks for time in jail in all gun cases." (Raab, S., "Some Not Being Given Mandatory Prison Terms Under New York Gun Possession Law," New York Times, February 24, 1981).

68. Walker, S. (1989), supra.

69. Hinds, Michael deCourcy, "Number of killings soars in big cites across the US," New York Times, July 18, 1990.

70. Time magazine, September 17, 1990, p. 39.

71. The Associated Press, "Cuomo urged to curb NYC crime," Rochester (NY) Democrat-Chronicle, September 21, 1990. The legislators demanded Cuomo "Recall the Legislature to consider legislation upgrading penalties for unlawful possession and use of firearms, recall the legislature to consider establishing a city firearms prosecutor, [and) issue a proclamation commanding city residents to surrender illegal weapons." Cuomo’s spokesman, Gary Fryer, responded, "New York state has the toughest firearms possession law in the country. To suggest that the governor issue a proclamation isn’t going to prove effective." Meanwhile, New York City Mayor David Dinkins "made an impassioned plea for stricter gun control laws." From the editorial "Act on gun control," New York Daily News, September 29, 1990.

72. Time, supra, note (abv), p. 38.

73. Time, supra, note (abv). From a telephone poll of 1,009 New York City residents taken on Aug 2 to 5 by Yankelovich Clancy Shulman. Sampling error is plus or minus 3%. The questions read: "How frequently do you worry about crime? All the time or often, 60%; Sometimes, 26%; Rarely or never, 13%" (p. 37). "Which, if any, of these statements describes how you feel about New York City? A place that is dirty, 78%; A dangerous place to live, 73%; A city you like to live in, 54%" (p. 40).

74. On January 3, 1991, Dinkins called for a ban on so-called "assault guns," arguing "there is no legitimate role for these weapons of war in our society. No one hunts ducks and deer with machine guns." (Gonzalez, S., "Dave: Bar assault guns," New York Daily News, January 4, 1991). Notably, machine guns have been illegal since 1934. The "machine guns" Dinkins wants to ban are actually semi-automatic replicas of the real Mccoy, but fire only one round with each pull of the trigger. Governor Cuomo has also proposed a ban on said "assault weapons," as well as a 10 percent tax on all gun and ammunition purchases, new fees for handgun licenses, and a safety exam [Page 117] prior to handgun license approval. (Letter from New York Assemblyman Matthew Murphy, published in Gun Week, May 24, 1991, p. 4). Murphy opposes new controls. For legislators favoring controls, see description, Rochester (NY) Democrat-Chronicle, September 21, 1990, supra.

75. According to historian Robert Dystra, Dodge City was rather mild in regard to homicides. During the "wild west" years (1870-1885), the average number of homicides per cattle town was about 1.5 per year. For six of those years, Dodge City had zero homicides, and reached a peak of only five in 1878 (from a May 17, 1991 Gun Week review of Dykstra, R., The Cattle Towns, 1968).

76. Egloff, Matt, "NYC Seeks Quick Fix For Crime," Syracuse Post Standard, September 10, 1990. For other reports on the absurdity of the situation see "Gunning for guns," Washington Times editorial, September 10, 1990; "The Jogger and Gun Control," Wall Street Journal editorial, August 21, 1990; Cooke, David P., "Disputes Wicker’s gun control views, " Letter to the editor, Springfield (MA) Union News, August 8, 1990; Tartaro, Joseph P., "New York City Absurdities," Gun Week, September 28, 1990, p. 11. For rebuttal, see Rosenthal I, A.M., "Too many guns, too many deaths of babies, teens, " Detroit News/Free Press, August 5, 1990; Wicker, Tom, "The Guns of America, " New York Times, August 2, 1990; "Pass Gun Restraints: Murder Rates Are Soaring," Long Island Newsday editorial, July 20, 1990; "The Brady Bill and New York Guns," New York Times editorial, September 13, 1990.

77. Patrick, Reginald, "Grim stats on gun violence," Staten Island Advance, August 16, 1990. For a discussion of the likelihood of serious felons turning in their guns, see Wright "The Armed Criminal in America," supra. Time magazine reported: "in the war against crime, Dinkins’ initiatives have been piecemeal and halting, ranging from a stillborn gun amnesty program (only 35 firearms have been turned in) to the hiring of less than a forth of the additional 5,000 officers that police commissioner Brown contends are needed to win back the streets." September 17, 1990, p. 41.

78. Giordano, M., and P. McLaughlin, "Low-caliber response to gun amnesty," New York Daily News, February 25, 1980. "The people who shouldn’t have guns aren’t turning them in to us," a bewildered New York cop said of the amnesty program in the Daily News.

79. Wright, Rossi, and Daily asked: "It can be taken as a given that some people will continue shooting at one another as long as there are any guns around. This being the case, we have to muster the courage to ask whether we wouldn’t be just as happy if they shot at one another with handguns." (Under the Gun, supra, p. 323).

80. Although several small cites ban handguns, like Morton Grove, Illinois, the act was mostly symbolic and not harshly enforced, as in New York City.

81. "Armed and Dangerous: Citizens weigh the risks of shooting back," Newsweek, September 24, 1990, p. 82.

82. "Needle points" of the Santa Anna (CA) Register, September 19, 1990 reports: "New York Police Commissioner Lee Brown and Washington, DC, Police Chief Isaac Fulwood urged Congress last week to pass tougher federal gun laws, including a waiting period before a gun could be purchased, and a ban on ‘assault weapons.’ Funny. Both these cities have some of the strictest local gun-control laws in the country -- and some of the highest crime rates. You’d think the local police chiefs would have learned something about just how effective gun control laws are at reducing crime." By contrast, New York Newsday editorialized: "[The federal laws urged by Brown] won’t end our epidemic of violence. Nor will they keep guns out of the hands of every criminal. But they will dry up much of the supply -- in particular, weapons that reach New York from anything-goes states like Florida. If nothing else, [Page 118] they might keep semi-automatics out of the hands of kids." From "Ban the Guns, Save the City: Two ways Congress can help," Newsday, September 24, 1990. This view was echoed by the New York Times ("Stronger federal gun law needed," in the Las Vegas Sun, September 14, 1990) and New York Daily News ("Act on gun control," September 29, 1990).

83. Things have changed since 1913. Recently, the New York Times has joined the mayor and police chief in attempting to export New York’s gun laws to the rest of the nation. See "Dear Tom Foley," New York Times, October 16, 1990.

84. Shields, P., Guns Don’t Die People Do, supra, back cover.

85. Shields, P., Guns Don’t Die People Do, supra, p. 126.

86. A court order allowed a journalist to examine the list of New York City permit-holders. According to a subsequent newspaper article, permit-holders were "entertainers, publishers, media stars, [and) politicians of all stripes." Examples of those with permits include Aurthur Sultzberger, publisher of the New York Times which continually editorializes for "tougher" gun laws; the husband of Dr. Joyce Brothers, the pop psychologist who claims that gun ownership is a sign of male sexual dysfunction; Donald Trump; David, John, Laurence and Winthrop Rockefeller; William Buckley; Leland Dupont; Henry Cabot Lodge; Robert Goulet; Sid Caesar; Michael Korda; and gun control advocates John Lindsay and Nelson Rockefeller. All from Kates, D., "The Battle Over Gun Control," The Public Interest, No. 84, Summer 1986, pp. 42-52.

87. For example, permits issued outside New York City are good for life and appear to be issued to law-abiding citizens without first proving a "need. " In Dicker, F., "Key legislator to oppose Carey illegal-gun proposal," Albany Times-Union, February 24, 1980. See also, "Editorial, "Jewish Review, March 14, 1980; Kates, D. (1986), supra. 88. President’s Commission on Crime in the District of Columbia, Report of the President’s Commission on Crime in the District of Columbia (U.S. Government Printing Office: Washington, DC), 1966, p. 624. According to Wright, et al. (1983, supra, p. 317), " ... New York City has on the books one of the most restrictive set of statutes in the country governing the possession of handguns, one where virtually no one except municipal and private police can qualify for handgun permits."

89. Kates, D. (1986), supra.

90. "Steele, D., "Dodge City," Letter to the Editor of New York, October 1, 1990.

91. Based on their previous statements, Handgun Control, Inc., should support this position. On January 25, 1990, HCI Chair Sarah Brady stated on ABC-TV that "I believe strongly in the right of the people to have guns." She has also stated: "I don’t believe in taking away the right of a law-abiding person from defending themself [sic]. " (Tape: Alan Gottlieb debates Sarah Brady. Topic.- Gun Control, Second Amendment Foundation: Bellevue, WA, 1990). HCI Founding Chair Pete Shields writes: "[When enforcing mandatory sentencing laws] We must separate the law-abiding citizen, who will get a license, from the criminal who won’t -- and then punish unlicensed carrying severely." (Guns Don’t Die -- People Do, supra, p. 151).

92. Less than two years after the adoption of the law, Koch pushed for an even tougher statute. "Even Tougher Gun Law Sought By Koch As His Last One Proves Futile," Reports From Washington, Vol. 9, No. 8, May 5, 1982. Police have made calls for even tougher punishments, such as "cutting of the fingers of someone who uses a gun illegally... like they do in Arabia," and suspending the protections of Forth Amendment guarantees against unreasonable search and seizure in gun cases. (Gentle, D., "Need tough gun laws & jail terms: cops," New York Daily News, February 14, 1980). Whether the Second Amendment rights "to keep and bear Arms" are infringed is a [Page 119] matter of great contention. See Levinson, S., "The Embarrassing Second Amendment," and Brown, W., "Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson’s The Embarrassing Second Amendment," both in The Yale Law Journal, Vol. 99, No. 3, December, 1989, pp. 637-667 or Halbrook, S., That Every Man Be Armed: The Evolution of a Constitutional Right, Liberty Tree Press, San Francisco, CA, 1984.

93. Gentile, D., "Need tough gun laws & jail terms: cops, New York Daily News, February 14, 1980.

94. According to Charles Dickey, the Director of the National Shooting Sports Foundation, "[Gun owners] are fearful of the arbitrary police power to say who can own a firearm and who cannot." This fear could largely be abated by a permit system that allows a law-abiding citizen to own a gun. In Krug, A., Does Firearms registration Work? A statistical analysis of New York State and New York City, supra, foreword. 95. Moran, K., "Weapons Bill Assaults City’s Good Citizens," New York Post, July 22, 1991, p. 48. Even the previously ant-gun New York Post editorial board protested the ban. See "The assault rifle smokescreen," New York Post, July 18, 1991, p. 30.

96. Kenney, J., "Mayor on wrong track on assault guns," New York Daily News, July 24, 1991, p. 64. Kenney writes: " ... say what you will about the NRA, it predicted several years ago, when long-time New York City gun owners were required to register their guns, that once a government has a list of gun owners, the next step is confiscation. That’s where we’re at now. The New York City police department already has a list of legal gun owners. What do you think the next step will be? I know of more than one gun owner who now is sorry he registered his guns."

97. Kairys, D., "A Carnage in the Name of Freedom," Philadelphia Inquirer, September 12, 1988. Kairys editorializes: "That gun in the closet to protect against burglars will most likely be used to shoot a spouse in a moment of rage ... The problem is you and me -- law-abiding folks."

98. For a review of the literature, see Kleck, G., and D. Bordua, "The Factual Foundation For Certain Key Assumptions Of Gun Control," Law & Policy Quarterly, Vol. 5, No. 3, July 1983, pp. 271-298.

99. Kates, D. (1990), supra.

100. Browne and Williams, "Resource Availability for Women at Risk: Its Relationship to Rates of Female-Perpetrated Partner Homicide," presented at the 1987 annual meeting of the American Society of Criminology.

101. Swersey and Enloe (1975), supra. An analysis by the New York Police Department found that 77.2 percent of perpetrators had prior arrest records in 1976 and 70.3 percent of perpetrators had prior arrest records in 1977. (Office of Management Analysis, Crime Analysis Section, NYCPD, Homicide Analysis, 1977).

102. Wright, J., "In the Heat of the Moment," Reason, August/September, 1990, pp. 44-45.

103. Krug, A., Does Firearms registration Work? A statistical analysis of New York State and New York City, supra, p. 1581.

104. Shields, Pete, supra.

105. Krug, A., Does Firearms registration Work? A statistical analysis of New York State and New York City, supra, p. 1590.

[Page 120]

Table 1: Firearm v. Non-Firearm Homicides, US and NYC
Year: 1989	NYC	US-NYC
Firearm	1308	10524	11832
Non-Firearm	610	6512	7122
	1918	17036	18954
% Firearm	68.196	61.775
			x2=30.30
Year: 1988	NYC	US-NYC
Firearm	1240	9655	10895
Non-Firearm	673	6403	7076
	1913	16058	17971
% Firearm	64.8196	60.125
			x2=15.776
Year: 1987	NYC	US-NYC
Firearm	1026	9686	10712
Non-Firearm	642	6609	7251
	1668	16295	17963
% Firearm	61.51	54.44
			x2=2.69
Year: 1986	NYC	US-NYC
Firearm	879	10503	11381
Non-Firearm	731	7145	7876
	1609	17648	19257
% Firearm	54.568	59.5138
			x2=14.92
Year: 1985	NYC	US-NYC
Firearm	770	9526	10296
Non-Firearm	616	6633	7249
	1386	16159	17545
% Firearm	55.555	58.95
			x2=6.07
[Page 121]
Year: 1984	NYC	US-NYC
Firearm	817	9358	10175
Non-Firearm	640	6445	7085
	1457	15803	17260
% Firearm	56.07	59.216
			x2=5.44
Year: 1983	NYC	US-NYC
Firearm	921	9974	10895
Non-Firearm	715	7063	7778
	1636	17037	18673
% Firearm	56.295	58.54
			x2=3.10
Year: 1982	NYC	US-NYC
Firearm	964	10757	11721
Non-Firearm	754	7010	7764
	1718	17767	19485
% Firearm	56.11	58.54
			x2=3.10
Year: 1981	NYC	US-NYC
Firearm	1093	11430	12523
Non-Firearm	739	6791	7530
	1832	18221	20053
% Firearm	59.66	62.729
			x2=6.68
Year: 1980	NYC	US-NYC
Firearm	1031	12619	13650
Non-Firearm	789	7421	8210
	1820	20040	21860
% Firearm	56.648	62.969
			x2=28.42
Year: 1979	NYC	US-NYC
Firearm	898	12142	13040
Non-Firearm	839	6712	7551
	1737	18854	20591
% Firearm	51.698	64.40
			x2=110.49
[Page 122]
Year: 1978	NYC	US-NYC
Firearm	769	11141	11910
Non-Firearm	739	6065	6804
	1508	17206	18714
% Firearm	50.99	64.75
			x2=113.38
Year: 1977	NYC	US-NYC
Firearm	872	10402	11274
Non-Firearm	685	6074	6759
	1557	16476	18033
% Firearm	56.005	63.13
			x2=30.85
Year: 1976	NYC	US-NYC
Firearm	818	9774	10592
Non-Firearm	804	5209	6013
	1622	14983	16605
% Firearm	50.43	65.23
			x2=138.829

Table 2: Firearms Homicide Rate
Year	US-NYC	NYC
1976	4.63	11.52
1977	4.88	12.28
1978	5.28	10.83
1979	5.70	12.63
1980	5.78	14.65
1981	5.15	15.46
1982	4.79	13.58
1983	4.40	12.97
1984	4.09	11.40
1985	4.11	10.72
1986	4.49	12.23
1987	4.10	14.09
1988	4.05	16.88
1989	4.37	17.75

[Page 123]

Table 3: Weapons Arrestees Without Priors, New York City

Year