My Open Letter to the Vice President (see the post immediately below) generated mail, some of it quite heated. I’ve been called a ""cretin"" and someone suffering from ""pointy headed brainlessness,"" among other things. I’m not going to answer all of the mail, but I respond here to some commonly-made themes.

From the mailbag: “In light of your own statement, is it fair for one to conclude you are simply using dead children as a soap box upon which to advance an agenda that predated the incident rather than addressing the problem the incident brought to light? If it is not, by all means enlighten me professor. This appears to be nothing less than rank opportunism using the most vile of tactics. Am I missing an alternative explanation?”

My response: When horrific events happen, Americans naturally and sensibly consider action to avoid or reduce repeats. After 9/11, was it “rank opportunism” for Americans to propose ways to avoid or reduce future hijackings of aircraft? Did that dishonor the victims? Following a hurricane that has taken lives, is it “vile opportunism” for Americans to talk about better disaster planning? As for my “agenda,” yes I think you are missing the obvious explanation. My interest is simply to make America safer, nothing more. I have no personal interest in the issue; that is, I have no financial interest in the issue and am not employed by or receive money from any organization that does. Please consider this: People who disagree with you may have honest motives.

From the mailbag: “Sir, I just read your open letter to Joe Biden. I couldn't believe you were serious. You deserve to be ridiculed and laughed at all across the nation. And you should be forced to read ‘Unintened [sic] Consequences’ by John Ross. I despise your kind.”

My response: It’s interesting that a freedom-loving American, such as yourself, would want to force a fellow citizen to read anything. There is a book or two I think you might benefit from reading, but forcing you to do so wouldn’t have occurred to me. As much as I appreciate your recommendation, I’m going to pass up the John Ross’ novel. I have already read a great deal by writers who advocate an insurrectionist view of the Second Amendment, that is, who argue that we have the right keep and bear arms in order to go to war against our own government should it fall into tyrannical hands. Here are some problems with that view: (1) There are always some who believe that the government is now in tyrannical hands. John Wilkes Booth and Timothy McVeigh are two examples. (2) If the purpose of the Second Amendment is to potentially wage war against the federal government, then weapons deserving the highest level of constitutional protection would be those needed to wage war against American armed forces, such as machine guns, grenades, rockets, and even nuclear weapons. (3) With the possible exception of Thomas Jefferson, who had nothing to do with writing or ratifying the Second Amendment, the Founders were not insurrectionists. James Madison, George Washington, John Hancock, John Jay, and Samuel Adams, for example, drew a stark distinction between Americans going to war against the British government – which was a foreign government in the sense that Americans had no representation in Parliament – and their own government once the United States of America was established. I have written about this (see “Were the Founders Insurrectionists?” at pages 390-404) and here.

From the mailbag: “Mr. Bogus, You repeat something that I hear very frequently, that ‘hunters and sportsmen’ don't need this or that kind of weapon or accessory or ammunition, implying there’s no damage to the 2nd amendment by restrictions on such.

“Which suggests that you believe the 2nd amendment was written to protect the right to go hunting. Clearly that is preposterous. Justice Story, appointed by Thomas Jefferson, described the purpose of the 2nd amendment: to allow the people to protect themselves from sudden invasion, domestic insurrection, and usurpation of power by their rulers. He said nothing about hunting. Nor did anyone else. There is no history of the amendment that would suggest it has anything to do with hunting. While your tone is reasonable, I don't think this idea of 5-round clips is going to go anywhere.”

My response: Good point. While I believe that the Second Amendment was written to guarantee states the right to have armed militia to provide for their own security, and not for personal self-defense, the Supreme Court has held that I am wrong and the Amendment is indeed about self-defense. So you are right, and my mentioning hunting rather than self-defense was sloppy writing on my part. The issue is whether restricting magazines to five rounds would unduly restrict self-defense. I don’t think it would. Someone could still possess two or three gun magazines and quickly reload by changing magazines. That seems more than adequate for self-defense. Lower-capacity magazines might also protect neighbors, who – especially in urban areas – may be at higher risks of being inadvertently shot by someone who believes there is an intruder in his apartment or townhouse and quickly fires, say, twenty rounds. No rights are absolute, and some restrictions are reasonable if they serve legitimate interests and do not unduly burden the right. Whether a five-round, seven-round, or ten-round restriction meets that standard is, of course, open to debate. New York State’s new seven-round restriction may reach the U.S. Supreme Court, and if so, I’ll bet it’s upheld.

Dear Vice President Biden:

Tomorrow you will recommend gun control measures to the President.

You, the President, and the nation are between a rock and hard place. Truly effective gun control may not be possible.

Not because gun control measures don’t work. As I’ve described here, there are ample data – from studies comparing states with different gun control regulations, nations with different regulations, and places that have changed their regulations over time – showing that gun control does work. However, it may be that only one kind of gun control significantly reduces murders, injuries, and robberies: whatever reduces the numbers of handguns in general circulation. It is, after all, handguns that are responsible for the overwhelming portion of gun-related deaths. But following the Supreme Court’s 2008 and 2010 decisions in the Distict of Columbia v. Heller and McDonald v. Chicago, which hold that people have a constitutional right to have handguns in their homes, restrictions that are so designed may be unconstitutional.

Moreover, any kind of gun control is exceedingly difficult politically. Except for Democrats from metropolitan areas in the Northeastern cities and the West Coast, members of Congress believe that voting for gun control is political suicide. I believe they are wrong about that, but even in the post-Newtown environment they will not be easily convinced, and getting anything through the House of Representatives will be difficult.

What to do?

Stick with what’s truly meaningful, keep it simple, and don’t again succumb to the temptation to propose merely cosmetic measures designed to lead the American public to believe that something effective has been done when it has not, as was the case with the Brady Law and Federal Assault Weapons Ban in 1994.

First, propose legislation to make it unlawful to own a gun magazine (also called a clip) that will hold more than five rounds. It’s been reported that Governor Andrew Cuomo will propose a seven-round restriction in New York State. That number would also be okay. The expired Federal Assault Weapons Ban and current legislation in four states and the District of Columbia make ten rounds the limit; but smaller is better because it complicates schemes of madmen intent on mass murder. The issue for them is how many times they have to change gun magazines to fire, say, 90 rounds. With 30-round gun magazines, which are common today, it’s twice; with ten-round magazines, it’s eight times; with five-round magazines, it’s seventeen times. Meanwhile, it is not asking a great deal of hunters and sportsmen to change a magazine after firing five rounds. It may be inconvenient, but they can be asked to suffer inconveniences for the good of the nation.

Don’t complicate this proposal by focusing on other attributes of so-called assault weapons, such as pistol grips, bayonet holders, flash suppressors, and the like. It’s the number of bullets that matters. Stick with that.

Most important: Do not grandfather existing magazines, as did the Federal Assault Weapons Ban. Because magazines last for decades, that would render the law a nullity. Requiring gun owners to purchase new, lower-capacity magazines will not impose large financial burdens on them. As NRA President David Keene himself told Candy Crowley on CNN yesterday, gun magazines are inexpensive. Because they would make money selling new magazines, gun manufacturers – and the NRA, which the gun industry helps support – may secretly even welcome this restriction even while publicly denouncing it.

Second, close the gun show loophole for background checks. This loophole is so large that an estimated forty percent of gun sales currently avoid background checks. That is, require ""universal background checks"" for all gun buyers, regardless of whether a gun is sold by a licensed dealer or a private party.

These measures will not reduce most of carnage, but they are truly meaningful.

There is, of course, much more that should be done. For example, the Bureau of Alcohol, Tobacco, and Firearms (ATF) should be permitted to gather information that will help law enforcement officials and researchers; the Centers for Disease Control and Prevention (CDC) should be permitted to study gun violence; and the President should nominate – and be prepared to fight for – an effective leader at ATF.

But for now, keep the proposals short, simple, and meaningful.

Respectfully yours,

Carl T. Bogus

What can we do to prevent – or at least reduce the carnage from – mass shootings? As a public policy matter, the question is not difficult.

We can prohibit the possession of high-capacity gun magazines.

Madmen can easily kill many people because they are carrying guns loaded with large numbers of rounds. Gun magazines holding 30 rounds are common; some magazines hold 75 rounds or more. Gun magazines – or gun clips – are the devices that hold the bullets and feed them into the firing chamber. Some are built into the gun itself; most are detachable.

Someone with a modern, semi-automatic gun equipped with a magazine holding 30 rounds can fire 30 bullets before having to do anything to reload. If the magazine is detachable, he may then replace the empty magazine with a full one, and resume shooting.

A shooter armed with one gun and three detachable 30-round magazines can fire 90 rounds in less than a minute, even though he must twice replace the magazine. But if the shooter had magazines that held only five rounds each, he would have to replace the magazine 17 times to fire 90 rounds.

The federal assault weapons ban, which was enacted in 1994 and expired in 2004, restricted gun magazines to ten rounds. But while that was potentially the most important provision of the law, it was crippled by a grandfather provision exempting existing magazines. People who already had high-capacity magazines could continue to own and use them. Moreover, these existing magazines could even to be lawfully sold and purchased. People stocked up on high-capacity magazines before the legislation was enacted, making the existing stock of high-capacity magazines so great that the restriction was of little value.    

Senator Dianne Feinstein (D-CA) promises to introduce a warmed-over version of the 1994 assault weapons ban. Her proposal repeats the earlier mistakes of focusing too much on the cosmetics of assault weapons, limiting gun magazines to ten rounds rather than a lower number, and – worst of all – grandfathering existing weapons, including high-capacity magazines. To be effective, new legislation must apply to all guns and magazines. Legislation that allows people to continue to use – and even sell and purchase – previously-existing high-capacity magazines is of limited utility. Senator Feinstein wants to rely on background checks of purchasers of previously-existing high-capacity magazines, but most mass murderers have used lawfully-purchased weapons. Public safety demands that all high-capacity magazines be taken out of general circulation.

Moreover, while the 1994 federal assault weapon ban limited magazines to ten rounds, mass killings since that time – Columbine, Virginia Tech, Aurora, Newtown, and most recently the ambush of firefighters in Webster, NY, to name only the most notorious on a much longer list – demonstrate the need for a lower limit. Guns containing five rounds are adequate for self-defense, target practice, and hunting. The late Senator Barry Goldwater famously said: “If any S.O.B. can't hit a deer with one shot, then he ought to quit shooting.”

Gun magazines are simple devices and relatively inexpensive. For the good of the country, it is not to much to ask gun owners to replace their high-capacity magazines with new magazines holding fewer rounds.

Of course, high-capacity magazines should still be available to law enforcement personnel and the armed forces. But they should no longer be available to members of the general public.

Gun-rights advocates will argue that murders are committed by people, not guns, and that we should instead focus on mental illness. But the simple fact is that while it is possible to control guns, it is – in a free society – more difficult to control the mentally ill. We can’t always identify them; we can’t be sure which among them may become homicidal; and we can’t lock up everyone – in some cases indefinitely – who we suspect might be dangerous.

Restricting guns and gun magazines to five rounds will not solve all of America’s gun problems. On an average day in America, almost as many people are murdered with guns as were killed in Newtown, Connecticut (and if we include suicides using guns, more Americans die by guns on an average day than were killed in Newtown). We are less aware of this continuous daily carnage because it mostly involves individual shootings. Nor will a five-round restriction eliminate all multiple-victim murders. Madmen will still be able to arm themselves with multiple guns and magazines. But it will make carnage more difficult, and may even deter some madmen from their bloody plans entirely. To not do this because it will cure all of our gun problems would be like not producing medicine that would save half of the people with lung cancer because it would not save everyone.

Senator Feinstein may think it politically impossible to enact truly effective legislation, but there is unlikely to be a more propitious time than now, in the wake of Newtown, to do something meaningful. The major mistake of the gun control movement in the past has been to support fatally flawed legislation in the hope of strengthening it later, but that has proved to be a failed strategy. When we enact gun control legislation – with all the hoopla and self-congratulation that goes with the passage of new laws – we only mislead Americans into believing that we have done what we can. That removes gun control from public debate, and when the medicine proves to be ineffective, intensifies the belief that gun control doesn’t work.

UPDATE (January 6, 2012): This piece by Paul M. Barrett in Bloomberg/Businessweek is the best I've seen since Newtown.