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Dennis A. Henigan

Dennis A. Henigan

Posted: July 30, 2009 11:57 AM

Taking Gun Laws Seriously


We've all heard the gun lobby's refrain, "Guns don't kill people. People kill people." This clever slogan has long been used to suggest that because guns don't become a problem until they are misused by dangerous people, the only sensible approach to gun violence is to punish violent criminals, not regulate guns. The slogan represents a well-disguised fallacy, but it is a fallacy that recently proved surprisingly persuasive to the highest court in Massachusetts, a state long known for its strong gun laws.

The issue in the case before the Supreme Judicial Court in Commonwealth v. Young was whether Massachusetts law permits a prosecutor to seek the pretrial detention of a criminal defendant charged with unlawful possession of a gun. The relevant legal standard is whether the offense charged is a "felony that by its nature involves a substantial risk that physical force against the person of another may result." If the standard is met, then a hearing is conducted to determine whether the individual defendant is sufficiently dangerous that bail should be denied.

By a vote of 4-1, the Court held that the felony of firearm possession without a legally-required license does not meet the test for pretrial detention. "That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result," wrote the majority. "Rather it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result."

Is it true that the illegal possession of a gun does not create a risk of "physical force against another"? Does that risk arise only when the gun is used unlawfully?

Perhaps it would be helpful here to remind ourselves of the nature of a gun. A gun is not just a dangerous product. It is a weapon, designed as a weapon and desired by its consumers as a weapon. Moreover, a gun is the most lethal weapon generally available in the United States. The research shows that assaults with guns are twenty-three times more deadly than assaults with other weapons or bodily force. This is not to say that law-abiding people should be denied access to guns. The issue in Young involves people who are not law-abiding. Are we prepared to agree with the Young majority that the possession of the most lethal weapon generally available in our society, by persons who were not sufficiently responsible to comply with the legal requirements governing that weapon, does not substantially increase the risk of violence?

The notion that the risk of gun violence arises only when guns are misused, and not before, runs counter to the policy underlying federal gun laws, as well as those of the State of Massachusetts. For over forty years, federal law has barred the mere possession of guns by specified categories of people considered irresponsible or dangerous. Massachusetts long has followed a similar approach. This policy recognizes that it is access to dangerous weapons by dangerous people that increases the risk of violence. In fact, less than three years ago, the Supreme Judicial Court ruled that a homeowner could be liable for damages for allowing an individual with a history of violence to have access to guns in her home. The Court spoke of "the societal concern with weapons reaching the hands of unauthorized users."

Can it be denied that those who illegally possess guns without the proper license as a group are far more likely to commit violent acts with guns than gunowners who have bothered to obey the law? Illegal possession is the likely precursor to illegal use. The Young majority says it can "discern no principled legal distinction between the risk of physical force posed by licensed and unlicensed possessors of firearms." Such a statement seems utterly out of touch with the everyday havoc wrought by the plague of illegal guns in Boston, Worcester and other Massachusetts communities.

The Young decision reflects a troubling failure to take seriously the danger of guns in irresponsible hands and the lifesaving importance of the laws we have enacted to prevent gun misuse before it happens. Massachusetts legislators should enact the legislation supported by Governor Deval Patrick and Mayor Tom Menino to overturn the Young ruling.

The bumper sticker logic of "guns don't kill people, people kill people" -- the unspoken premise of the Young ruling -- should not obscure a truth we have long known: Guns enable people to kill people -- more effectively and efficiently than other weapons. Guns in the hands of law violators are a clear and present danger to us all.

For more information, see Dennis Henigan's new book, Lethal Logic: Exploding the Myths that Paralyze American Gun Policy.