The Volokh Conspiracy

From an opinion piece in The Economist, Apr. 21, 2007:

[The Virginia Tech killer] had two guns: a Glock 9mm and a Walther P22. Both are semi-automatic: they fire bullets as quickly as you can keep pulling the trigger.

Actually, the other dominant form of handgun -- a double-action revolver -- also fires bullets as quickly as you can keep pulling the trigger. The rate of fire from a revolver is, I'm told, slightly less than from a semiautomatic (I take it because in a revolver the trigger pull needs to do more than in a semiautomatic), but only slightly. One can certainly fire a revolver at least once a second with no extra training; it's not a good idea, since one generally won't be accurate with a revolver when firing rapidly, but one generally won't be accurate with a semiautomatic when firing rapidly, either.

Certainly for someone who is shooting at unarmed targets, and thus doesn't have to shoot several times a second -- and apparently the Virginia Tech killer was shooting at a relatively leisurely pace -- the difference between revolver rate of fire and semi-automatic rate of fire is negligible. (The difference in time to reload might be more significant in some situations, though again not in this one.)

Why does this matter? One common argument made by some gun control proponents, expressly or implicitly, is that they're just proposing modest restrictions on just a few guns. After all, it's politically easier to ban something that fewer people own than something that more people own. We're not trying to ban all guns, just so-called "assault weapons." We're not trying to ban all guns, just semiautomatics. We're not trying to ban all guns, just large-capacity magazines. And in the process of making such proposals, they have to explain why this particular kind of gun or magazine is especially deadly.

The trouble is that "assault weapons" aren't really materially deadlier than unbanned non-assault-weapons. Semiautomatic handguns aren't really materially faster-firing than revolvers. Bans on over-10-round magazines will almost never limit criminals, especially the sort of mass killers whom the gun control advocates are discussing. The proposals will do virtually nothing to reduce crime; while I agree that they're not nearly as burdensome to law-abiding citizens as total gun bans would be, they also aren't burdensome to criminals. These modest proposals will fail. And what will gun control advocates propose then?

(More aggressive bans, such as total handgun bans or total gun bans, might actually have more of an effect, both for good and for ill. I think on balance the ill effects will exceed the good ones, but that's a separate matter; at least there's something more than pure symbolism or misunderstanding behind them.)

Bloomberg News reports:

Illinois Representative Rahm Emanuel, chairman of the House Democratic Caucus, said the top priority of his party's lawmakers is hiring more police to fight crime, not tougher gun control.

Emanuel said the House "might" or "might not" re-enact an assault-weapons ban that expired in 2004. That legislation, which limited the capacity of handgun magazines, would have reduced the amount of ammunition used in a shooting rampage that killed 32 people this week at Virginia Tech University.

Setting aside the various other questions raised by assault-weapons bans, how can a news service say with a straight face that legislation limiting the capacity of handgun magazines would have reduced the amount of ammunition used by the murderer?

Recall that semiautomatic handguns are reloaded by popping out a magazine, popping in a new magazine, and chambering another round. If the shooter has preloaded several magazines — which the Virginia Tech murdered had — the process can take a second or two, even with no special training.

Banning 15-round magazines (which the Virginia Tech killer apparently had) and limiting magazines to 10 rounds — as per the expired assault weapons ban — or even to 6 rounds, would thus simply require the shooter to reload a little more often. This may limit a shooter who is in the middle of a firefight when one is shooting very quickly (6 to 10 rounds in a few seconds), but not a shooter engaged in a mass shooting such as this one, which took place over many minutes. It doesn't seem even very plausible that a smaller magazine size would have led to fewer shots being fired. It is certainly wrong to say that it would have reduced the number of shots (even if one recognizes that "would have" represents very high probability rather than just certainty).

This is a classic policy analysis mistake, but one that I've found particularly common in gun control debates: assuming that when one enacts a law, that will change the subjects' behavior in the way the law contemplates, but with no compensating substitution effects. Sure, if by reducing magazine size, we get someone to load 4 10-round magazines rather than 4 15-round magazines, he'll have fewer rounds he could readily shoot.

But why on earth would we think that this is how people will react? Why wouldn't they just load 6 10-round magazines instead of 4 15-round magazines? (Another classic policy analysis mistake is simply not knowing the technical details of the items that one is discussing; my sense is that many people, likely including many reporters, just don't know how quickly one can switch magazines on a semiautomatic, or don't even know precisely what a semiautomatic is.)

I should say that banning semiautomatics altogether, and requiring handgun users to rely on revolvers, might theoretically have more of an effect; reloading a revolver does take somewhat more time. It's not vastly more, and if one has a backup gun handy, one won't even be particularly vulnerable while reloading the revolver; and there are other problems with the proposal, including the political problem that the ban would affect weapons that are owned by tens of millions of gun owners.

But at least there'd be something potentially plausible to talk about there. There is, on the other hand, no credible defense for the claim that "[the] assault-weapons ban that expired in 2004 ..., which limited the capacity of handgun magazines, would have reduced the amount of ammunition used in a shooting rampage that killed 32 people this week at Virginia Tech University."

UPDATE: In the original post, I described the process of replacing a magazine as removing the empty one, loading a full one, and then possibly chambering the round, unless one reloads while there is still a round ready to shoot. On reflection, I realize that one would almost always wait until all the rounds have been used before putting in the new magazine, so I changed the post to say that replacing the magazine requires removing, loading, and chambering. The bottom line is unaffected; reloading can still take a second or two, without any fancy training.

The Yale Daily News reports:

In the wake of Monday's massacre at Virginia Tech in which a student killed 32 people, Dean of Student Affairs Betty Trachtenberg has limited the use of stage weapons in theatrical productions.

Students involved in this weekend's production of "Red Noses" said they first learned of the new rules on Thursday morning, the same day the show was slated to open. They were subsequently forced to alter many of the scenes by swapping more realistic-looking stage swords for wooden ones, a change that many students said was neither a necessary nor a useful response to the tragedy at Virginia Tech....

Brandon Berger '10, who plays a swordsman in the show, said the switch to an obviously fake wooden sword has changed the nature of his part from an "evil, errant knight to a petulant child." ...

Do Yale students have a hard time telling theater from reality? Are they so emotionally fragile that they would be traumatized by seeing a realistic sword on stage?

Is the administration contemplating some weird scenario in which a cunning and patient mad killer-actor decides to kill people by substituting a real sword for the fake one (and would be stopped by this rule from bringing a real sword, or a real gun, in a bag)? Is it afraid that one of the actors will run off-stage waving a fake sword, and lead the police to shoot him for fear that it's a real sword? Or am I missing some other, less far-fetched, justification?

Thanks to Instapundit and Power Line for the pointer.

UPDATE: Commenter Nikki points out: "I wonder if Dean Trachtenberg realizes that elsewhere, the university encourages sword-wielding psychos to practice their craft." Let's make them use wooden swords, too.

Many thanks to Orin for pointing to this opinion; I just read it, and it's pretty shocking how aggressive the prosecution's theory was:

In 2005 Wisconsin selected Adelman Travel Group as its travel agent for about 40% of its annual travel budget of $75 million. The selection came after an elaborate process presided over by Georgia Thompson, a section chief in the state’s Bureau of Procurement. Statutes and regulations require procurement decisions to be made on the basis of cost and service rather than politics. Wis. Stat. §§ 16.70-16.78; Wis. Admin. Code §10.08. Thompson steered the contract to Adelman Travel, the low bidder, even though other members of the selection group rated its rivals more highly. A jury convicted Thompson of violating 18 U.S.C. §666 and §1341. The prosecution’s theory was that any politically motivated departure from state administrative rules is a federal crime, when either the mails or federal funds are involved. Thompson was sentenced to 18 months’ imprisonment and compelled to begin serving that term while her appeal was pending. After concluding that Thompson is innocent, we reversed her conviction so that she could be released. This opinion is the explanation that our order of April 5 promised.

Adelman Travel was the low bidder, but a low price for lousy service is no bargain. Wisconsin’s rules give price only a 25% weight (300 of 1200 points) in the selection process. About 58% (700 points) goes to service, which a working group evaluates subjectively based on written presentations. Adelman had the second-best score for service; Omega World Travel came in third. The combined price-and-service rating had Adelman in the lead. (Fox World Travel received the best service score but had a noncompetitive price.) The final 17% of the score (200 points) depends on the working group’s assessment of oral presentations. These presentations (often dubbed “beauty contests” or “dog-and-pony shows” that may reward the flashiest PowerPoint slides) need not be related to either price or the pitchman’s probable quality of service; why the state gives them any weight, independent of price or quality, is a mystery, but not one we need unravel. Adelman Travel must have made a bad presentation, for six of the seven members of the working group gave it poor marks (from a low of 120 points to a high of 165), while awarding Omega scores between 155 and 200. Thompson alone gave Adelman a higher score (185 for Adelman, 160 for Omega). Adelman Travel’s disastrous oral presentation left Omega World Travel with the highest total score.

The prosecution’s theory is that Omega should have received the contract on the spot but that for political colleagues that a decision for Omega, which is based on the East Coast, would not go over well with her boss, Pat Farley. A jury also could conclude that Thompson said something to the effect that for “political reasons” Adelman Travel had to get this contract. (Witnesses related different versions of what Thompson said, but in each account “politics” or “political” played some role.)

Thompson tried to engage in logrolling, offering to change her scores for bidders on other travel contracts if members of the working group would change their scores on this contract. Horse-trading proved to be unacceptable to the selection group, but a member other than Thompson suggested that the contract be rebid on a best-and-final basis, as state law permitted. Wis. Stat. §16.72(2m)(e), (g). Adelman Travel reduced its price, which — keeping all other elements of the score constant — left Adelman and Omega with 1027 points apiece. The tie depended on rounding to the nearest whole number. Adelman Travel’s score was 1026.6, while Omega World Travel’s score was 1027.3. After Thompson (with her supervisors’ consent) deemed the contest a draw — sensibly, as the difference was trivial compared to the amount of subjectivity and variance in the committee members’ evaluations — Thompson employed a tie-breaking procedure, specified by state law, that gave weight to items not previously figured into the price comparison and declared Adelman Travel to be the winner.

The prosecutor contends that this episode played a role in the Bureau of Procurement’s decision three months later to give Thompson a $1,000 raise in her annual salary. Post hoc ergo propter hoc is the name of a logical error, not a reason to infer causation. But Thompson does not contend that the evidence was insufficient to allow the jury to find that the raise was related to the travel contract, so we shall assume that this link has been established.

I realize that sometimes appellate decisions don't fully explain one side of the case, even when the judges are entirely well-intentioned. Still, I suspect the facts presented at trial were pretty much what Judge Easterbrook — not a notoriously pro-defendant judge by any means — describes; and if that's so, then the prosecution seems to have been singularly ill-founded.

Many law reviews hold their write-on competitions at the start of the summer after the first year of law school. A few tips on what you (or your friends who are finishing up their first year) can do now to prepare, borrowed from my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers and Getting on Law Review:

1. Many law reviews grade you in part on your knowledge of proper citation style. (Some have a separate citation formatting, proofreading, cite-checking, and editing test; many check the accuracy of your footnotes in your write-on paper.) Ask your law review which citation style manual it uses, and whether it has any supplemental instructions explaining how its style deviates from the standard manual. Read the citation style manual several times. Make it your bathroom, bus, or exercise bike reading.

Reader Roger Baumgarten passed along to me some clips about the 1957 Far Rockaway (New York City) High School rifle team.

Change one is obvious from the preceding sentence. Change two: The team was called, for obvious reasons and apparently not facetiously, The Nimrods.

Special bonus: Odd, and likely ultimately not substantive, mental connection to Dire Straits' Tunnel of Love.

In response to my post about how the European Union is requiring states to criminalize (among other things) "condoning, denying or grossly trivialising crimes of genocide ... when [the speech] is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group," a commenter writes:

I'm not a fan of such laws because of free speech concerns and I think they do more to encourage hate speech (making it forbidden attracts the very people you want to discourage) however to be fair you won't get jailed or arrested for doing serious scholarship.

Well, here's a story I wrote about in 2002:

Several years ago, prominent historian Bernard Lewis was sued in France for his comments (made in a Le Monde interview) on the Turkish killing of Armenians during World War I; he stressed that the killing happened, but argued that -- unlike with the Holocaust during World War II -- it was not part of a deliberate campaign of extermination by the Turks. Various plaintiffs, including the French Forum of Armenian Associations and the International League Against Racism and Antisemitism sued, claiming that his speech violated French prohibitions on the historical denial of genocide; and they won.

The invaluable research librarians at UCLA Law School have gotten me an English translation of a French court's decision, and it is as troubling as press accounts described it to be. (Note that I'm not yet sure of the source of the translation, but I found it on a site that appears to be harshly critical of Bernard Lewis, so I doubt that the translation is incorrectly Lewis-friendly.)

Though the court didn't find that Lewis made any false statements, it concluded that Lewis didn't give a balanced presentation (and this in a necessarily brief newspaper interview, not an academic work) -- under this standard, even the most responsible historians could be vulnerable, especially if they are tried before courts that are hostile to their viewpoints. And though Lewis lost only 14,000 Francs, I suspect that the potential damages for future cases would be considerably greater. Here's what seems to me to be the court's key language, though you should just read the entire decision (it's not long and not very legalese) yourselves:

Whereas, even if it is in no way established that he pursued an objective foreign to his role as historian, and even if it is not disputable that he may maintain an opinion on this question different from those of the petitioning associations, the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide; consequently, he failed in his duties of objectivity and prudence by offering unqualified opinions on such a sensitive subject; and his remarks, which could unfairly rekindle the pain of the Armenian community, are tortious and justify compensation under the terms set forth hereafter.

(Note again that the Lewis statement about the lack of serious proof of the genocide referred to the supposed "lack of serious proof ... of a decision and plan of the Ottoman government for extermination of the Armenian nation"; Lewis acknowledged "that the Armenians' suffering [was] a terrible human tragedy," and that many Armenians died as a result of the deportation.)

Say that a European country enacts the core EU proposal (especially without the modifications that the proposal would tolerate though not encourage). Say that a historian -- especially one who lacks Bernard Lewis's prominence -- likewise says that the mass killing of Armenians wasn't "part of a deliberate campaign of extermination by the Turks," which I'm sure some will say "grossly trivialis[es] crimes of genocide." And say that he says this in a way that condemns some Armenians who say the contrary (perhaps claiming that they're deliberately distorting the facts in support of their view), so that it is "likely ... to incite ... hatred against ... a member of such a group [i.e., ethnic Armenians]."

Would we say "to be fair [this historian] won't get jailed or arrested for doing serious scholarship"? (Recall that the EU proposal expressly calls for "effective, proportionate, and dissuasive criminal penalties," specifically with a statutory "maximum of at least 1 to 3 years of imprisonment.") Or is it that sharing Lewis's views, coupled with condemning some who you think are distorting the facts, is per se not "serious scholarship"?

From a newly adopted EU proposal:

1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: ...

(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group....

1b. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.

So if you're writing about whites' relations with American Indians', or the Crusades, or the reconquest of Spain from the Moors, or for that matter about any aspect of history that involves ethnic-based slaughter — think how much of that there has been in history — you might be violating the law. True, this would be covered only if your actions are "carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group." Is that really great comfort, though? If a tribunal concludes that your actions were likely to incite hatred against the defeated group, or even a member of the group, you're a criminal.

The enactment does give states the latitude to limit this:

1a. For the purpose of paragraph 1 Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting....

2. Any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement that it will make denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) punishable only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State and/or an international court or by a final decision of an international court only.

Thank you very much; states may choose not to suppress discussion of history quite as much as the EU suggests. For instance, until a court "establishe[s]" the Official View Of The Crusades, you're free to write history about them; only after the court establishes the True Historical Account would any attempt to question the new legally announced historical orthodoxy become a crime.

Oh, and here are the penalties:

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by effective, proportionate and dissuasive criminal penalties....

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.

But of course there's no danger of restricting free speech: "This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty establishing the European Union.... This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to [...] fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from [...] constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability." Well, OK, then.

Thanks to Victor Steinbok for the pointer.

Iranian Press TV reports, in response to Reid's statement:

Leader of the Democratic majority in the US Congress, Harry Reid, has said the US has lost the Iraq war, and Bush's troop surge has failed.... Reid's comments came a day after 200 fatalities were reported in bombings in Iraq, despite a much touted US Security Plan which the White House said sought to root out insurgency."

A Republican party e-mail also reported the following as translations of items from Al-Jazeera Online, and Al-Sharq Al-Awsat, "The Leading Arabic International Daily"; please let me know if the translations are inaccurate:

"Yesterday the leader of the Democratic majority in Congress, Harry Reid, announced that he conveyed to Bush that the United States lost the war in Iraq and that the additional America forces that were sent there will not succeed in the achievement of any positive progress."

"Leader of the Democratic majority in the US Congress, Harry Reid, has said the US has lost the Iraq war, and Bush's troop surge has failed.... Reid's comments came a day after 200 fatalities were reported in bombings in Iraq, despite a much touted US Security Plan which the White House said sought to root out insurgency."

As I have said before, it may well be quite proper -- and certainly constitutionally protected -- for people to criticize the war; and sometimes the benefits of such criticism, even of the "war is lost" variety and even when said by leading U.S. politicians, outweigh the costs. Yet it seems to me hard to doubt that this statement will have grave cost.

If Napoleon was right that "In war the moral [meaning 'morale'] is to the material as three to one," then it seems to me that Reid's statements may prove highly objectively costly, chiefly by strengthening the enemy's morale as well as by weaking our own soldiers'. Likewise if Churchill was right that even statements that "weaken confidence in the Government" and "make the Army distrust the backing it is getting from the civil power" may prove to be "to the distress of all our friends and to the delight of all our foes" (Speech in the House of Commons (July 2, 1942)). How much more distress and delight must be caused by statements that represent that the Congressional majority actually believes the war to be lost.

Maybe, as I said, the benefit of the statements exceeds their harm. And maybe the harm will be modest, because everyone -- among our enemies as well as among our military -- has already assumed that the Democratic leadership thinks this. Yet my suspicion is that the harm will be quite substantial indeed.

It looks like a UCLA Police Department officer, who happens to have a law degree, is going to be teaching a class here at the law school on Legal Issues in Policing. He's already on campus for his normal patrols, so he'll just pop by for an hour in the middle of his day a couple of days a week. Should be pretty educational for our students.

What did you think when you read that item? (I should note it's a thought experiment, and not a real story, though in principle such a thing would be quite possible.) You might have thought about the teacher's credentials, or the merits of the class, or even about the social divides between police officers and academics. But I strongly suspect you didn't think the following: "Wait, is he going to be lecturing with his gun on his person? Won't this interfere with class dynamics? Plus, isn't it true that 'Schools and guns do not mix. Period.'?"

Now it is possible that having a uniformed police officer teach a class may interfere with class dynamics. There may well be some social divides between police officers and lawyers and law students, even if the police officer is known to have a J.D. Some radically antiauthoritarian students might be put off by having a police officer in class (though in my experience law students are generally not that antiauthoritarian). Some students might have the habit of being on their guard around police officers, because in the past they've generally seen police officers while doing something that might get them in some (usually minor) legal trouble — driving, engaging in underage drinking, littering gum, or what have you. Some students who are deeply swayed by authority might be extra bashful in class.

But none of this, I think, would stem from the officer's even visibly wearing a handgun. If the officer were to become a familiar face, and wear street clothes rather than a uniform, I think these factors would largely go away. But even if these factors remained, it would be they, not the officer's likely possession of a handgun (even if he carries it openly, but especially if he carries it concealed), that throw off class discussions.

Yet why then does Prof. Ralph Luker (History News Network) write, "Some absurd reactions to the Virginia Tech murders: ... Some solutions to campus terrorism: Eugene Volokh says "Arm the teachers!" Aeon J. Skoble says "Arm the students!" [EV: I bracket the arming the students question for reasons I note here.] Both great ideas for improving classroom dynamics. Do you understand why I prefer to read Chris Bray, Tim Burke, and Nathanael Robinson?"

If a police officer acting as an adjunct professor can teach a class while armed without throwing off "classroom dynamics," why wouldn't a full-time professor be able to do the same? Is it that somehow police officers are so much more trustworthy than ordinary professors? Would students think of a normal professor, "if I say something I dislike, the teacher will take a shot at me," given that I doubt they'd think this of police officers?

I'm sure there are some unstable professors, but there are also some unstable police officers; there is a risk of mental trouble, alcoholism, and the like in any profession. But I know of zero evidence that for those professors who are likely to seek and get concealed carry permits, the risk of misbehavior is materially greater than for police officers. Nor do I think that students would perceive such a risk; sure, we like to talk about "those crazy professors," but I doubt that students really would be worried enough about the risk that "classroom dynamics" would be thrown off.

Nor do I see students worrying about the professor more than the police officer in the classroom because they expect that the professor isn't as well-trained at gun use. Setting aside the crazy teacher — whether professor or police officer — the professor's training would only come into play only in the very unlikely scenario of a madman's started shooting into the classroom. I doubt students would much focus on that scenario, and, if they did, I'd hope that they'd prefer to have an armed good guy in the classroom, even if he isn't optimally trained.

So what is it about the possible presence of a magical mystical handgun on a professor's person that would ruin classroom dynamics? Conversely, what is it about the police officer's magical mystical police officer status that would prevent classroom dynamics from being ruined?

There is, I think, no such magical force. An armed professor — whether full-time professor, on-duty police officer, on-duty FBI or BATF agent, on-duty soldier [UPDATE: e.g., military police officer, or soldier who is required to remain armed, as in Israel], on-duty secret service agent, or whoever else — can teach just as well (or as poorly) as an unarmed professor. The students will worry about all the things that throw off classroom dynamics today (what if I embarrass myself in front of classmates? what if I look like too much of an eager beaver? what if the professor disagrees with my politics and embarrasses me? lord, I drank too much last night), and not at all about the professor's being armed.

I was corresponding with a friend of mine -- a very smart fellow, and a lawyer and a journalist -- about concealed carry for university professors. He disagreed with my view, and as best I can tell in general was skeptical about laws allowing concealed carry in public. His argument, though, struck me as particularly noteworthy, especially since I've heard it in gun control debates before:

Forgive me, but I'm old-fashioned. I like the idea of the state having a monopoly on the use of force.

I want to claim that this echo of Weber (who said "Today ... we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory") is utterly inapt in gun control debates, at least such debates in a Western country.

To begin with, note that, read literally, my friend's proposal is not "old-fashioned." It's not new-fashioned. It has never been the fashion in any jurisdiction in America.

1. Every jurisdiction in America has always recognized individuals' right to use not just force but deadly force in defending life. To my knowledge, every Western democracy does the same (though with some differences about the permissible occasions for and extent of such use of deadly force, and of course with differences about what deadly weapons people are entitled to possess). It may well be that virtually every state in the world does the same, at least in many situations, though I can't speak confidently about that.

2. Every jurisdiction in America except D.C. has also always recognized individuals' right to possess loaded guns at home for self-defense, and, generally speaking, defense of others, which I will include under the label of self-defense below. But even D.C., which bans (I use the present tense because the mandate in the D.C. Circuit's Second Amendment decision has not yet issued) possession of handguns and possession of loaded or unlocked rifles and shotguns, allows people to use other deadly weapons, and likely even to load the long guns when needed for imminent self-defense.

3. Use of deadly force for self-defense has always been allowed in public places as well as in private places. Even in the about 12 states (and until recently the count was indeed higher) that do not let virtual all law-abiding adults get licensed to carry guns in public, the use of other forms of deadly force is perfectly legal, nearly anywhere.

4. Throughout America, many non-state organizations even maintain private armed staff -- armed security guards, whether used to protect a business's property on its land, to protect property off the business's land (consider armed guards on armored trucks), or to patrol residential areas on behalf of the residents. I'm sure that most other Western countries allow some degree of such armed protection (with the arms including firearms) by private security guards, though the number of such private guards may vary considerably from country to country.

So whatever the meaning of Weber's statement might be, it does not mean only a state may physical force, or even lethal force -- nor would such a policy be sound or morally acceptable (since it would require a prohibition on all private self-defense using lethal force of any sort). It might mean that the private use of force is allowed only to the extent it's permitted by the state (in Weber's words, "the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it[; t]he state is considered the sole source of the 'right' to use violence"). This may be a controversial moral proposition but which could at least be consistent with the reality I describe above, and with the moral imperative of allowing self-defense. It might also be read as meaning that only the state may generally use retaliatory force, which is to say force aimed at after-the-fact retaliation (whether for retribution, deterrence, incapacitation, or whatever else) when the imminent need for self-defense has passed.

But the "monopoly on the use of force" statement is not relevant to self-defense, either if we're trying to describe current or "old-fashioned" law, or even if we're trying to set up a new rule (unless we are willing to abolish forcible self-defense, which I'm sure even my correspondent would not call for). The question at the heart of concealed carry debates is not whether private individuals should be able to use force in some situations; of course they should. It's not even whether private individuals should be able to have guns for self-defense, except insofar as some people would totally ban all privately owned guns, in the home and outside it. It's whether private individuals should be able to defend themselves using especially effective weapons outside the home, or just using powerful weapons within the home and less effective weapons outside the home (or, even if for those who would ban all guns, using only less effective weapons either in or out of the home).

Nor can my friend's argument be rescued on the grounds that he was simply speaking somewhat inexactly, and omitted a word or two of qualification (or omitted mention of some special cases that are not raised by our discussion about concealed carry). You can add "deadly" before "force" ("the state having a monopoly on the use of [deadly] force"), and the result would still have never been the fashion and would still be deeply morally unappealing when applied to private self-defense. You can say "force using firearms," and the result would still have never been the fashion within the U.S. And of course you can't say "but of course I was making a general statement, and self-defense and defense of others are different matters," because what I was discussing was precisely arming people for self-defense and defense of their friends, acquaintances, coworkers, and students.

I stress again that I'm not trying to disagree with Weber here; I'm not a Weber expert, but it may well be that his position may be sound for some of the reasons I described, reasons that keep the position from excluding forcible self-defense. My point is simply that this Weber quote is of no relevance to the question of private gun possession for self-defense.

A colleague asks: "[I'm] wondering if hollow point bullets are legal and if so, what is the rationale given by gun fanciers for that rule? I know under the international law of war they are not legal in combat, but I take it the same isn’t clear in domestic law."

Many of our readers doubtless know more details than I do, but I think I can summarize the answer fairly well.

The bullets are indeed legal for civilian and police use. Wikipedia puts well the two reasons why many people prefer them, "Despite the ban on military use, hollow point bullets are one of the most common types of civilian and police ammunition, due largely to the reduced risk of bystanders being hit by over-penetrating or ricocheted bullets, and the increased speed of incapacitation."

To unpack this: (1) Because hollow-points deform on impact, they're unlikely to go through or off walls (or through the target and into the person behind him).

(2) If you're trying to defend yourself against attack, your goal isn't just to hit the person, but knock him down. Even a fatal wound might leave the attacker mobile enough long enough for him to kill you (either with his own gun, or with some other weapon if he doesn't have a gun). A hit with a hollow-point is much likelier to knock him down. It is also likelier to kill him, but that's a side effect, not the goal; the goal is for him to stop going at you.

Here's a 1998 story about the NYPD's adopting hollow-points (though I'm not sure whether the NYPD still uses them). The Police Commissioner is quoted as saying,

We are, in fact, going to switch to hollow-point ammunition as soon as we receive it. They are much safer than fully jacketed bullets, which will go through a person or tumble through a person's organs and then continue on and hit innocent victims.... It is the standard around the world in law enforcement to use hollow points.

The story also notes that "Other police officials have pushed for the bullets because they are more effective in stopping dangerous criminals, and they say that aspect further protects bystanders because officers have to fire fewer shots to incapacitate their targets." Likewise, "'[The hollow-point bullet] increases the wound's capacity to the victim, but it reduces a risk that the police are always concerned about: the risk of the bullet perforating the intended target and injuring a bystander,' said Dr. Stephen Hargarten, the director of the Firearm Injury Center in Milwaukee, Wis."

Clayton Cramer, generally no friend of gun controls, suggests that something helpful might be done along these lines. I'm not sure whether that's right, but I thought I'd pass it along.

Apropos my post below, could I re-ask the question, in search of fairly narrowly focused answers? The student will be going to an LL.M. program; I was wondering which of the options -- NYU, Virginia, and possibly George Washington -- is likely to most increase the student's chances of getting a clerkship and a teaching job. If you have some sense of the programs (or at least one of the programs), or of the clerkship and teaching market, I'd much appreciate some helpful advice on this.

Here is the full earlier post: A former student who is considering NYU's, Virginia's, and possibly GW's LL.M. program asks -- which schools are likely to do better at helping their LL.M. graduates get a judicial clerkship, and (ultimately) a law teaching job? (These are the general LL.M. programs, and not specialty LL.M.s, such as those in tax law, international law, or the like.)

Naturally, much depends on the student's credentials, performance in the program, and writing during and after the program; and much also depends on the student's interest. But which program is likely to help the student more, by providing the better education, the better credential, or the better placement help?

I'd love to know your answers to this, both for this student's sake and for the sake of other students who might have a similar question in the future.

Posted by commenter Hoosier:

In order to reflect the hierarchy of faculty, there would have to be stratification:
Assistant Professors get muzzle-loaders
Associate Professors get semi-automatics
Full Professors get automatics
Adjuncts get a sharp letter-opener
Chaired Professors are irrelevant, since they never come to campus

UPDATE: Commenter The Hobbesian Father (Greg for short) follows up:

I'm sympathetic to the plan, but I can't see how it would possibly work unless the changes to campus policy allowed grad students to shoot the bad guys for the professors.

I appreciate Orin's response to my post. If university police officers were indeed always or generally available within "even seconds," we'd have less need for others to be armed. But I don't share his perception of campuses being "crawling with officers from campus police departments"; it doubtless varies from campus to campus, but I almost never see UCLA police officers right around the law school. Perhaps they can come within "even seconds," or at least "minutes," but I rarely see them physically at the law school, whereas there are almost sure to be other university employees much closer.

This does raise the question, though, of what happened at Virginia Tech. Can anyone speak to how long it took for the police to be called, how long it took for them to arrive, and how quickly did they go in after the shooter when they arrived? (I should note that Virginia Tech is a large campus, much larger than UCLA, which I believe is in turn somewhat larger than George Washington University, where Orin teaches.)

A former student who is considering NYU's, Virginia's, and possibly GW's LL.M. program asks -- which schools are likely to do better at helping their LL.M. graduates get a judicial clerkship, and (ultimately) a law teaching job? (These are the general LL.M. programs, and not specialty LL.M.s, such as those in tax law, international law, or the like.)

Naturally, much depends on the student's credentials, performance in the program, and writing during and after the program; and much also depends on the student's interest. But which program is likely to help the student more, by providing the better education, the better credential, or the better placement help?

I'd love to know your answers to this, both for this student's sake and for the sake of other students who might have a similar question in the future.

A reader asks,

Could NBC News be held liable for distributing Cho’s multi-media manifesto because it inspired copycats? Cho made reference in his manifesto to the Columbine murderers. If a subsequent mass murderer copies elements of Cho’s manifesto in his own actions, could a parent successfully bring a wrongful death action against NBC News for distributing the manifesto that incited the subsequent murderer? Does it matter that Cho sent the manifesto to NBC News precisely so that it would distribute it and so to speak inspire others?

Lower courts have dealt with quite a few lawsuits over crimes that seem to have been stimulated by broadcasts; all the courts have rejected the liability claims, some based on general tort law principles and some based on the First Amendment. The courts have taken the view that speakers could generally be punished for the crimes that the speech they communicate inspires only if they fit within the "incitement" exception — if their speech was intended to and likely to cause imminent illegal action. The murderer's manifesto is unlikely cause imminent illegal action (courts do take the imminence requirement seriously), and in any event NBC surely did not intend for it to have such an effect (courts rightly require evidence of the broadcaster's purpose to stimulate illegal action, and not just recklessness or negligence about such action).

The suits have generally been based on copycats inspired by fiction, not by criminals' manifestos, but that shouldn't change the results. The First Amendment value of the manifestos — providing a possible perspective on the criminal's personality — is at least the same as the First Amendment value of fiction. It may well be that as a matter of journalistic ethics, the media shouldn't have broadcast the manifesto because its value in providing the perspective is too modest given the risk that it poses; but the First Amendment value does exist, and given that value, the courts have held that media can't be held liable for copycat crimes.

The reader goes on to ask,

Would the government have a right to suppress a broadcast of the Cho manifesto, in whole or in part, if it seemed highly probable that it would inspire copycats? It seems to me that the government would have to show that copycats arise in most widely-reported cases, and that information/images found only in the manifesto — rather than something else — is what would inspire a copycat.

I don't think the government may accomplish this through legislation (even under the somewhat more relaxed standards applicable to over-the-air broadcasters) any more than through the tort system. Speech generally can't be restricted on the grounds that it persuades people to act violently, unless it fits within the narrow incitement intent-likelihood-imminence framework I mentioned above.

Some could argue that the Court should essentially carve out a new First Amendment exception under the so-called "strict scrutiny" test, which in theory lets the government ban even speech that has First Amendment value, and that doesn't fit within any of the existing exceptions, if the ban is "narrowly tailored" to a "compelling government interest." But this scrutiny of content-based speech restrictions has been, to adapt Gerald Gunther's words, "strict in theory [but] fatal in fact" in virtually all instances, and I think that's good, or else the doctrine would justify restricting a very wide range of speech. It seems to me that, whatever the harm of broadcasting such manifestos, the harm of allowing the government to suppress dangerous speech — despite the perspective that the speech might provide on a tremendously important issue (how we can deal with violent madmen) — is even greater.

Consider two scenarios:

1. An armed madman comes to a place and starts shooting people. None of the people who's around is armed.

2. An armed madman comes to a place and starts shooting people. Several (say, five) people in the vicinity are armed.

Which madman is more likely to be stopped quicker — the one who outguns everyone else 1-0, or the one who is outgunned 5-1?

If this weren't a madman but Jack Bauer — or even an average highly trained soldier — the five may well be unable to stop the one. But otherwise, the odds would seem to be more against the madman in situation 2 rather than 1, no?

No-one can prove anything, of course. Maybe the five would be the first to be shot. Maybe they'd run away. Maybe they wouldn't be around. Maybe they'd shoot and miss. Still, if you had to bet, which would you bet would be the worse scenario for the madman, and the better one for his victims?

Now of course if arming the five people for the extremely rare situation when they'll need to stop a madman will end up causing more harm than good in the much more common situations when there's no madman around, that might be a bad tradeoff. That is the argument I've heard against letting students possess weapons on-campus: They're young, they drink a lot, they'll start shooting when they get into a hot argument in class or at a debate. I'm not sure that's right, but let's say it is.

What, though, is the argument against allowing professors and other university staff to possess weapons, if they choose? (Assume the professors lack criminal records, and assume they go through whatever testing and modest training is required to get a concealed carry permit, or perhaps even some extra training.) One argument is that it's just dangerous for law-abiding citizens to have weapons, because they'll start shooting over arguments or fender-benders. But that's precisely the argument that has been rejected by the 38 states that allow any law-abiding citizen to get a concealed carry license (or, in 2 of the 38 states, to carry without a license). What's more, as I understand it, people who get such licenses have in fact almost never committed unjustified homicide or attempted homicide (or even lesser crimes) using their guns. Whatever the pluses or minuses of shall-issue, the "licenseholders will start shootouts over petty slights" theory has not been borne out.

If Virginia and other states have found that it's safe to let law-abiding citizens carry guns on streets, in shopping districts, in parks, and the like, why wouldn't it be equally safe to let law-abiding professors and staff to carry guns in the university? What magic is there about a university that makes guns in law-abiding citizens' hands (again, let's even set aside college students, if we think they are unusually likely to behave foolishly) more dangerous at a university than elsewhere? I know there are some university professors who are, er, a bit odd. But wouldn't the average professor — or average university employee generally — who wants a concealed-carry license to carry on campus be at least as responsible as the average citizen who wants a concealed carry license to carry outside campus? Given that licensees don't start shootouts over fender-benders, and that gun store employees, police officers eating lunch, and other law-abiding people who are routinely armed don't start shootouts over arguments, why should we think that armed professors (to be precise, that small group of professors who chooses to get concealed carry licensees) would start shootouts at faculty meetings?

What then is the downside? One possibility is that if mad killers know that professors and staff may be armed but students won't be, the killers will shoot the professors first. It's hard to see why this would increase the total death toll, though, especially in cases such as this one. I doubt that the typical mad killer who's willing to shoot any university employees he comes across just in case they have guns would have spared them, and just shot a selected subset of unarmed students (and staff and faculty), if he assumed the employees were unarmed. And in any event, it seems to me that this modest risk is worth running, just as the risk that armed security guards would be shot first is worth running in order to provide the protection that armed security guards might offer.

Another possibility is that the mad killers would just start shooting lots of people very quickly, rather than at the relatively leisurely pace that we've seen in many mass killings. "I was going to walk around killing people over 15 minutes or half an hour," the killer might think (Kleck's Targeting Guns reports two mass killings that happened over 2-4 minutes, but seven that happened over 10 minutes or longer, including five that took 30 minutes or longer) — "but since there's now a substantial chance that I'll be stopped, I'll just shoot as many as I can as quickly as I can." But this strikes me as pretty unlikely; the pace of killings seems to be driven more by the killer's own mad desires rather than by a calculation such as this one.

Another concern might be that the universities would be held liable for their employees' misuse of guns. But, first, I take it universities already have liability insurance policies for possible misuse of weapons by university police officers. The employees who get concealed-carry permits (likely a small fraction of all employees, given that in shall-issue states the general pattern is that only a small fraction of all citizens get licenses to carry) could be added to such policies.

Given the pattern of safe use of guns by shall-issue licensees, I suspect insurance companies won't demand vastly higher premiums from universities for this. And the university could require some extra screening, testing, and training just to make sure that employees who get permits are as reliable as possible. Recall that many armed security guards are trained and screened only modestly, and they are likely to use their weapons more often (since they tend to guard places during high-crime times of day, and are more likely to be called over to the scene of developing crimes, which other armed university employees would rarely have to do). And if one thinks my analysis above is correct, and carrying by employees is pretty safe, but the liability system is unlikely to reflect this sound analysis, then some statutory liability limit — perhaps simply providing that professors and staff are armed on their own behalf, and the university thus wouldn't be liable for their actions — may be sensible.

I've also heard some arguments that suggest universities are different because they are places for reasoning, not violence: They should be gun-free zones (except of course for university police officers and security guards, who for some reason don't count) because that's needed to create the proper climate of peaceful inquiry. But the sad fact is that you can't make a university into a gun-free zone. Mad killers can bring guns, and use them, regardless of what policies you announce. The question is whether they will be able to use them against a disarmed population, or against a partly armed population. Allowing people the tools to defend themselves against the mad killers does not, it seems to me, worsen the climate.

[UPDATE: Finally, to give an even more essentialist version of the argument that universities are somehow unsuitable places for professors to be armed, let me quote a commenter: "There are a million reasons, but one will suffice for now. Schools and guns do not mix. Period. The more guns we inject into a school environment the worse it is for all involved...." It's hard to figure out how to deal with the argument that "Schools [including universities] and guns do not mix. Period." The commenter also mentions that professors "aren't trained for it, and I doubt they would be very good at it," but 38 states have taken the view that all law-abiding adults should be free to get a license to carry concealed weapons, and haven't had serious problems from the concealed-carry holders; the question is why those problems would suddenly appear at universities.]

Again, I should stress that this is not supposed to be a panacea, some guarantee that mad university killers will be immediately stopped. And I should say, as I've noted before, that there may be little point in planning for fortunately very rare events such as this one, which account for a tiny fraction of all homicides in the country. (The yearly average is that mass killings account for less than 0.1% of all U.S. homicides.)

But if we are trying to think what could have decreased the carnage, I've come around to the tentative view that allowing at least university employees to be armed is the likeliest solution. When one person — a not very well-trained person — comes into a place occupied by thousands of people, and kills over thirty, there's a simple explanation for why he could get away with it: Though he was outnumbered, they were outgunned.

If all university professors (and other employees) could be armed, and therefore some would be armed (again, I'm not saying that everyone will be armed, much less will be required to be armed, but only that some will exercise their right to get a concealed carry license allowing carry on campus), he would be both outnumbered and outgunned. Why wouldn't there be a very good chance that they would therefore be able to stop him earlier than he would have stopped otherwise?