Usual suspects lash out at Supreme Court decision to hear carry case

May 13, 2021


Matthew Hoy

Our friends in the media have predictably lashed out at the decision by the Supreme Court to hear a carry case out of New York. With the court agreeing to hear the case against one of the last eight "may-issue" states in the union, the mainstream media has once again resorted to historical revisionism and tortured data to suggest that allowing Americans to carry firearms to defend themselves will result in a new Wild West.

Today's case in point is an editorial by the St. Louis Post-Dispatch, that is typical of the genre, predicting a wave of "gun violence" that has never materialized when any other state has moved from "may-issue" to "shall-issue" or "constitutional carry."

Continued Historical Revisionism

The Post-Dispatch starts by attempting to re-write the history of the Second Amendment. While describing anyone who would want to carry a firearm for self-defense "wide-eyed zealots," the paper's editorial board claims the "the right of the people to keep and bear arms," is really the right of the states to organize "well-regulated" militias.

The Post-Dispatch claims that the Second Amendment's prefatory clause about militia service effectively deletes "the people['s]" right found in the operative clause. (This is a common tactic amongst gun control zealots, see the Ninth Circuit's decision reading "bear" out of the Second Amendment as well.)

The NRA has been relentless in its campaign to create an alternate history regarding guns and the myth that the Constitution somehow guarantees individual gun rights. Only a few decades ago, such notions were considered an exotic legal argument. It wasn’t until 2008 that a deeply divided Supreme Court ruled in District of Columbia v. Heller that the Second Amendment — which on its face merely provides states the right to maintain militias (i.e., the Missouri National Guard) — also allows individuals to keep firearms in their homes.

The editorial writer's link in the paragraph above points to an article from the National Constitution Center's "Common Interpretation" of the Second Amendment, co-written by law professors Nelson Lund, a Second Amendment supporter, and Adam Winkler, who believes that the Second Amendment allows for extensive gun control. That "Common Interpretation" includes this paragraph:

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion. [emphasis added]

Even the pro-gun control scholar agrees that the Second Amendment confers an individual right! There's no mention of militias there. There was widespread agreement that there existed a right that belonged to the people, not the state governments' militias.

In his essay claiming that the Second Amendment also allows "reasonable" gun control, Professor Winkler writes:

As the Supreme Court correctly noted in District of Columbia v. Heller (2008), the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation. While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners. [emphasis added]

While we certainly disagree with Winkler's position that the Second Amendment allows for just about every draconian gun control law currently on the books in states like California, Hawaii, New York, New Jersey and others, even he does not support the Post-Dispatch's claim that the Second Amendment solely allows for state militias.

Lies, Damn Lies, and 'Gun Violence' Statistics

The tried and true method of raising alarm and attacking the Second Amendment's guarantee to the people to keep and bear arms is to reference "gun violence" statistics, even though that term is both over- and under-inclusive of actual gun violence.

Gun violence, as used by gun control advocates, is the sum of gun homicides (including justifiable homicide) and gun suicides.

Gun violence numbers do not include people wounded by firearms (again, justifiably or unjustifiably) or other cases where a firearm was used to further a crime, but not actually discharged (e.g. robbery, rape). You could include the latter numbers—the FBI has them for robbery and aggravated assault—but that probably doesn't help the "gun violence" narrative, since those crimes are nearly uniformly committed more often with weapons other than firearms.

To take just one example, here's the data for robberies in 2016 in the Gifford's Law Center's A-rated gun control paradise of California.

2016 California Robbery Statistics

Firearms are reportedly used in less than one-third of all robberies in California. Now compare the percentage of robberies committed with firearms in 2016 in A-rated California to the percentage of robberies committed in F-rated Alaska.

2016 Robbery Statistics for Cherry-Picked States

It turns out that the difference is negligible. Do the math and a mere 0.3% separates the two states. That comparison would not be a particularly persuasive talking point for preferring California's gun laws over those of constitutional carry Alaska.

Looking at this, you might be a little skeptical that gun laws have any effect on criminals.

Suicides and homicides are easiest to get solid numbers on. Unlike assaults, robberies, and rapes, they're far less likely to be widespread under-reporting. After all, you generally have a dead body.

But should we really be counting suicides as "gun violence"? Yes, in the most basic sense of the term, a suicide is a violent act against oneself. However, most people when they hear the term "gun violence" suicides aren't what come to mind. Adding suicide numbers, which would never disappear even if you banned all guns, only serves to inflate the "gun violence" numbers and perpetuate a false narrative.

Which is exactly what the Post-Dispatch does, citing numbers in a 2018 USA Today article.

St. Louis’ ongoing flood of gun deaths has been driven by the GOP-dominated state Legislature’s dogmatic refusal to let the city require permits and enforce other safeguards against guns on the streets. The case before the court promises to bring our city’s crisis to other states that have wisely sought to mitigate such violence. It’s not hard to figure out why Missouri consistently ranks in the top 10 states in gun violence rates, while New York ranks near the bottom.

But does it really?

Here's the states with the lowest gun violence rates according to USA Today, which uses data from 2016.

Top 10 states with the lowest 'gun violence' rates (2016)


The important thing to notice here is to look at the number of suicide deaths. In the Top 10, only New Jersey had more gun homicides than suicides in 2016. Obviously a state's may-issue policy has zero effect on the use of firearms for suicide, but you'll see why gun control advocates include these numbers in a moment.

Here's the same USA Today data but with a calculated gun homicide rate, excluding suicides and the other/unknown category, most of which are likely accidental shooting deaths.

Top 10 states with the lowest firearm homicide rates (2016)


Quite a change.

For the eight may-issue states:

  • Massachusetts drops from #1 to #8.
  • New York drops from #3 to #17.
  • Hawaii drops from #4 to #11.
  • Connecticut drops from #5 to #10.
  • New Jersey drops from #6 to #22.
  • California drops from #8 to #23.
  • Delaware drops from #14 to #29.
  • Maryland drops from #19 to #45.

For constitutional carry states:

  • New Hampshire was #13 and jumps to #1.
  • Maine was #9 and jumps to #2.
  • Vermont was #16 and jumps to #3.
  • Wyoming was #38 and jumps all the way to #6.

For those interested in looking at all the numbers, my Excel spreadsheet with all the numbers can be downloaded here.

A couple of notes on the data:

  1. The states color-coded as constitutional carry on the spreadsheet (green) are those that attained that status on or before 2016 with the exception of New Hampshire, which has always been permit-less open carry. May-issue states are highlighted in yellow.
  2. Where I've substituted firearm homicide numbers that were missing from the USA Today data, it has been noted in comments on the cell.

What the numbers tell us

On the spreadsheet, if you sort by the overall violent crime rate provided by USA Today it becomes rather apparent that a state's restrictive may-issue policies tend to have little correlation to reductions in firearms homicides, and more to whether the state has large cities that have a lot of gang violence.

California, for example, was 8th for lowest "gun violence" rate, but is 15th in overall violent crime. Other restrictive may-issue states, Maryland and Delaware, rank even higher for overall violent crime at 11th and 9th respectively.

Second Amendment advocates often point out that restrictive may-issue concealed carry regimes only really have the effect of disarming the law-abiding; criminals don't apply for permits to carry firearms.

So why does the Post-Dispatch editorial board cite numbers that lump together homicides and suicides, call it "gun violence," and then associate it with differing carry permit regimes? Because if you're honest about the numbers, it becomes clear that there is no causation, and even the facile correlation disappears.

There's no proven causation with may-issue or permit-less carry and increased homicide rates, despite the Post-Dispatch's fearmongering. From the Rand Corporation's analysis of studies on the effects of shall-issue firearms laws on homicides and firearms homicides:

Total homicides:

Because studies with comparable methodological quality reached inconsistent results, we find that the best available studies provide inconclusive evidence for the effect of shall-issue laws on total homicides.

Firearms homicides:

With seemingly conflicting evidence, we conclude that the best available studies provide inconclusive evidence for the effect of shall-issue laws on firearm homicides.

St. Louis doesn't have a crime problem because Missouri is a shall-issue state. Should the Supreme Court strike down may-issue permitting regimes in the few remaining states that have them, it won't cause those states to become the lawless Wild West—after all, Maryland is unlikely to get much worse.

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