Same Team, Different Diagnosis: Tackling Gun Violence Without Trampling Liberty

Testimony Second Amendment

Same Team, Different Diagnosis: Tackling Gun Violence Without Trampling Liberty

August 20, 2019 21 min read
Senior Legal Fellow, Meese Center
Amy is a Senior Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Neither the United States generally, nor Virginia specifically, is in the midst of a gun violence crisis necessitating drastic policy changes. Most commonly proposed gun control measures are not likely to meaningfully impact rates of gun violence because they are based on a misdiagnosis of the problem. When we start with an accurate analysis of gun violence in this country, we find many possible avenues for solutions that address the underlying causes of violence without broadly infringing on the rights of law-abiding citizens.

Key Takeaways

We are not in a gun violence crisis. Americans are safer today from violent crime—including firearm-related crime—than we have been since the 1960s.

Commonly proposed gun control policies, including assault weapon bans and background checks, are based on erroneous assumptions about gun violence and will not make us safer.

To curb gun violence we must address the role of untreated serious mental illness in gun violence and consider carefully constructed measures that help identify and disarm dangerous individuals.

Testimony of Amy E. Swearer

Virginia State Crime Commission

Review of Legislation from the Special Session of the 2019 General Assembly

August 20, 2019

Mr. Chairman, members of the Committee, and fellow Virginians, my name is Amy Swearer, and I am the Senior Legal Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation. One of my primary areas of research is the Second Amendment and firearm-related policy. I have been heavily involved in the Heritage Foundation’s School Safety Initiative, which was begun immediately after the tragic 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, to ensure that conservative voices played an active role in conversations about gun violence and school safety. My colleague John Malcolm and I have also co-authored a series of Heritage Legal Memoranda on the intersection of serious untreated mental illness and gun violence.

I view my role as a policy analyst as a bit like a doctor, but for societal problems instead of physical maladies. As any doctor knows, having a correct diagnosis is vital to beginning a correct treatment plan. My goal today is to walk this Committee through that process of evaluating symptoms, forming a diagnosis, and finding solutions. In the end, my contention is that once we evaluate the data, we should reach three conclusions: First, neither the United States generally, nor Virginia specifically, is in the midst of a gun violence crisis necessitating drastic policy changes. Second, most commonly proposed gun control measures are not likely to meaningfully impact rates of gun violence because they are based on a misdiagnosis of the problem. Third, when we start with an accurate analysis of gun violence in this country, we find many possible avenues for solutions that address the underlying causes of violence without broadly infringing on the rights of law-abiding citizens.

I. We Are Not In A Gun Violence Crisis.

I am acutely aware that for individual communities currently reeling from recent tragedies, and for families still mourning the loss of loved ones, no amount of data will bring comfort. Statistical reality does not heal the brokenhearted, nor should we expect it to do so. But if we are serious about addressing gun violence in an effective manner, we must first have an accurate assessment of the problem. Just like a doctor must accurately understand a patient’s symptoms in order to reach a correct diagnosis and form an appropriate course of action, we, too, must look beyond the nation’s cries of pain and deal with reality as we find it.

When we look at the state of gun violence in this country and in this state, we do not find that we are in the midst of a gun violence crisis necessitating sweeping changes to existing law.

A. Violent Crime and Gun Violence Remain Low. Americans are safer today from violent crime—including firearm-related crime—than we have been at any point during my lifetime. We are, in fact, in the midst of a decade of historically low rates of violent crime. Even though the number of guns in this country has increased by about 50 percent since the early 1990s, the rate of homicide and gun-related homicide has fallen by about 50 percent.REF Too few Americans are aware of this reality.REF

This is not just a matter of better emergency room trauma practices saving lives, either. The rate of non-fatal firearm crimes is one-sixth of what it was at its peak in the early 1990s. Moreover, it has remained stable at this low rate for over a decade.REF

Virginia, like the rest of the country, saw similar decreases in violent crime across the 1990s, and remains much safer today than it has been during previous decades. In 2017, the FBI recorded 338 gun murders in Virginia, down slightly from 352 in 2016.REF Everyone should agree that this is 338 too many murders, but it is difficult to characterize this as a crisis.

B. Suicides Rates Are Rising, But Not Exploding. Despite these dramatic decreases in violent crime and gun-related crime, the total number of gun deaths in the United States last year was higher than at any point since 1968. Why? The answer is suicide.

Suicides account for about two-thirds of all gun deaths every year.REF Importantly, while the United States has a very high rate of suicides carried out with firearms compared to the rest of the developed world, we do not have a particularly noteworthy rate of suicide overall. Our total suicide rate is at the European average, and is actually below a number of developed countries known for strict gun-control policies. It is also worth noting that even as more Americans have access to firearms, the percentage of suicides committed with firearms has actually decreased.REF

Similarly, suicides in Virginia account for the majority of gun deaths every year. While the state’s suicide and gun suicide rates are slowly and steadily climbing, this is both a national and international trend over the last two decades, suggesting a deeper underlying problem than broad measures of civilian firearm access. Moreover, the state’s overall suicide rate is below the national average, and well below the suicide rate of countries like Belgium, Switzerland, and South Korea.

Again, this is not to suggest that nothing can or should be done to combat rising suicide rates. It simply to suggest that this is not a crisis.

C. Mass Public Shootings Are Terrifying, But Extraordinary. Finally, there is the question of mass public shootings. The random nature of mass public shootings has a profound effect on our feelings of safety in public places. They are a well-publicized and devastating phenomenon, but they are, fortunately, still an incredibly small threat to any one individual, accounting for only a fraction of a percent of all gun deaths every year.REF Moreover, as criminologist James Alan Fox has noted, there has been a slight increase of mass shootings in the United States, but these increases have happened in previous decades and do not constitute an epidemic.REF

Since 2000, there have been two mass public shootings in the Commonwealth of Virginia. The first was the 2007 shooting at Virginia Tech, and the second was earlier this year in Virginia Beach. These tragedies account for 44 of the more than 16,000 gun deaths in Virginia since 2000.

II. Commonly Proposed Gun Control Policies Fail to Address Reality

The symptoms of gun violence in the United States and in Virginia do not suggest that we need to diagnosis ourselves with a gun violence crisis. And yet, most of plans commonly proposed to combat the symptoms of gun violence are mistakenly premised on the assumption that we are in the midst of a crisis. These common gun control proposals are often, therefore, not just extreme responses, but likely to be very ineffective because they are based on inaccurate views of the problem.

A. “Assault Weapons” Are Not The Problem. Perhaps one of the most common gun control proposals across the nation is to prohibit civilian possession of so-called “assault weapons.” While the term is purposefully vague and has no definitive meaning, it generally refers to guns that have features associated with standard semi-automatic rifles such as the AR-15.

Setting aside serious constitutional and practical concerns with a policy that would criminalize the possession some of the most commonly owned rifles in the United States, we have to ask whether, even if prohibition were 100 percent successful, such a law would have a meaningful impact on gun violence. The answer is no.

Both across the United States and in Virginia, semi-automatic rifles such as the AR-15 are the least likely type of firearm to be used in any subset of gun violence.

Recall, again, that two-thirds of all gun-related deaths are suicides. Handguns appear to be the type of firearm most often used in suicides, but even when semi-automatic rifles are used, it would not matter in the least whether that rifle was replaced with any other type of firearm.REF

Nationally, rifles of any kind are estimated to account for only three percent of all gun-related homicides every year.REF Meanwhile, handguns are used in roughly 90 percent of non-fatal firearm crimes, with the remaining 10 percent of gun crimes attributable to any type of long gun.REF

This low use of common semi-automatic rifles amongst criminals holds true in Virginia, as well. According to FBI data, of the 338 gun murders in Virginia in 2017, only 11 were attributable to rifles generally.REF In fact, four times the number of Virginians were stabbed to death in 2017 than were shot to death with a rifle of any kind.REF

Even for mass public shootings, which account for only a fraction of a percent of all gun-related every year, the complete elimination of semi-automatic rifles would make little meaningful difference. Despite claims that these firearms are the “weapon of choice” for mass public shooters, analyses show that roughly 50 to 60 percent of such shooters use handguns alone.REF Of those shooters who do bring rifles, the majority also bring other firearms, such as shotguns or handguns.REF Both mass public shooters in Virginia used handguns alone.

B. Magazine Capacity Limits Are Largely Irrelevant. Another commonly proposed gun control measure is to prohibit the use of so-called “high capacity magazines,” which are typically considered to be any magazine capable of holding more than 10 rounds. These proposals suffer from many of the same limitations as bans on semi-automatic rifles, even after sidestepping serious concerns about constitutionality and implementation.

Magazine capacity, like firearm type, is irrelevant for suicides, which require only one bullet. With respect to criminal activity generally, and mass public shootings specifically, restrictions on magazine capacity can be easily avoided by shooters who simply bring multiple firearms and extra loaded magazines.

As the Virginia Tech Shooting Review Panel concluded, had the Virginia Tech shooter been limited to 10-round magazines, it “would not have made much difference in the incident.”REF This is supported by at least one recent study of mass shootings, which concluded that shooters typically do not fire at a fast enough rate for casualty counts to be attributed to magazine capacity.REF

On the other hand, to any extent that magazine capacity limits effect the ability of criminals to commit crime, they also impact the ability of law-abiding citizens to defend themselves. Like semi-automatic rifles, magazines with capacities above 10 rounds are standard issue for law enforcement officers who are called to respond to the very same threats faced by civilians. They carry these magazines not because they anticipate needing to use more than 10 rounds in every encounter, but because those encounters do occur.

As some have noted, it took six well-trained officers 65 rounds to subdue the gunman during the recent shooting in Dayton, Ohio.REF While such encounters are rare for both officers and civilians, they do occur, and sometimes officers are not there to help.REF It makes little sense to handicap the ability of law-abiding to respond to threats in an effective manner.

C. Universal Background Checks Do Not Address Real Problems. A third commonly proposed gun control measure is the use of universal background checks. Other presenters have already testified to current federal laws regarding background checks, so I will not reiterate the basics of existing background check laws. Universal background checks would require all private citizens to pay a Federal Firearms Licensee to conduct a background check prior to any transfer of a firearm to another person, with limited exceptions for permanent transfers between family members.

In theory, these laws purport to “close loopholes” that allow dangerous individuals to obtain firearms by bypassing background checks. In practice, they fail to address how would-be criminals actually acquire their guns and are completely ineffective without also implementing universal firearm registration. These policies also place significant burdens on law-abiding gun owners making low-risk and common firearm transfers.

Studies show that most would-be criminals obtain their firearms through illegal sources.REF When they do go through licensed dealers or third parties willing to abide by background check mandates, it should be inferred that they do so precisely because they know they can pass a background check.REF

Regarding mass public shooters, universal background checks would not have prevented a single mass public shooter in recent history from obtaining firearms through lawful channels. These shooters rarely have disqualifying criminal or mental health histories that would preclude them from passing background checks.

The problem is not that mass public shooters are avoiding background checks. The problem is that most mass public shooters can pass background checks in the first place. In both mass public shootings in Virginia over the past two decades, the shooters obtained their firearms through legal channels after passing background checks.

III. What Can We Do?

Just because many commonly proposed gun control measures are excessive and ineffective does not mean that Virginians are left helpless in the face of gun violence. In order to develop properly tailored and effective policies, however, we must start with an accurate understanding of the major factors underlying the different types of gun violence.

Gun violence is a complicated phenomenon, and there is no one-size-fits-all solution that adequately addresses all of the different factors involved in every possible category of gun violence. Many of the factors underlying suicides are different from those underlying gang-related violence, mass shootings, or police-involved shootings. Ultimately, however, any holistic approach to gun violence will require us to address the role of mental illness, increase our ability to identify and disarm dangerous individuals, and recognize the role of lawful gun ownership in the protection of life and liberty.

A. Take A Mental Health-Centered Approach To Gun Violence. It has become increasingly politically incorrect to suggest that there is a relationship between mental illness and gun violence. I suspect that this is due at least in part to a legitimate underlying concern about unfairly demonizing the mentally ill.

I cannot stress this enough: Most mentally ill individuals are not and will never become violent, especially when they are being properly treated. They are not categorical threats to public safety, and are in fact more likely to be victimized than to commit violent crimes.

However, suggesting that there is no relationship between untreated serious mental illness and specific types of gun violence is a bit like suggesting that there is no relationship between excessive alcohol consumption and traffic fatalities. It cannot explain all types of traffic fatalities, but it is certainly associated with drunk driving deaths. The relationship between untreated serious mental illness and gun violence works in a similar manner.

Two-thirds of all gun deaths are suicides. That is inherently a mental health issue. Further, we know that individuals with untreated serious mental illness are at a substantially greater risk of committing suicide, and that they are just as likely as individuals without mental illness to commit suicide with firearms, despite legal barriers to firearm access.REF

Similarly, while mass public shootings play an incredibly small role in gun violence, they have a profound impact on the nation. Roughly 1 in 4 mass public shooters has a diagnosed mental illness, while roughly 6 in 10 has a significant psychiatric history indicating mental illness.REF

Given this significant relationship, a focus on untreated mental health conditions provides a meaningful way of addressing gun-related violence without broadly infringing on the Second Amendment rights of all lawful gun owners. A mental health-specific approach to gun violence can take many forms, including the increased and more effective utilization of existing mental health frameworks, such as civil commitment procedures. This often necessitates an increase in the availability of public psychiatric beds.

Due to well-intentioned but poorly executed policies in the 1960s and 1970s, the United States is suffering from a severe shortage of public psychiatric beds, which often serve as beds of last resort for those in the midst of mental health crises.REF I am aware that Virginia has undertaken efforts to increase the number of these beds, but the number of beds per capita remains woefully below the ratio generally suggested by mental health experts.

We must also take a deeper look at the availability, training, and allocation of school and community mental health services. Perhaps more importantly, people need to be made aware of available resources.

B. Identify and Disarm Dangerous Individuals. Along with efforts to intervene with treatment and resources for those struggling with mental illness or other mental health problems, effective measures can be taken to identify and disarm individuals who are a danger to themselves or others. This can include increased training in threat assessment for both law enforcement officers, school officials, and mental health practitioners, as well as programs that facilitate the reporting of threats by civilians to law enforcement officials.REF It can also include the implementation of “red flag laws” or extreme risk protection orders, which allow non-state actors to file petitions requesting that a hearing be held as to whether someone should have his or her right to possess firearms temporarily revoked because he or she poses an extreme risk of danger.

When properly constructed to afford robust due process protections, red flag laws may provide an important mechanism for intervention with regard to both suicides and mass public shootings.REF Mass public shooters in particular often display important signs of being a serious risk of danger prior to committing their crimes, but very few have disqualifying criminal convictions or mental health histories that prevent them from legally purchasing firearms. Further, not all mass public shooters have a diagnosable mental illness, and therefore cannot be disarmed through civil commitment procedures despite the recognition by friends and family members that they are dangerous.

Red flag laws can provide an intermediate “gap filler” option for situations where someone is clearly becoming a serious threat of violence but has not yet committed a serious crime or falls outside the scope of existing laws. They also allow individuals including friends and family members—who are well-positioned to recognize when a loved one is becoming dangerous—to play a more significant role in alerting law enforcement to that danger.

These laws must, however, protect against the risk of abuse or misuse. They should use narrow and objective criteria for “dangerousness,” impose high burdens of proof, be temporary in nature, and provide meaningful remedies for those who are maliciously or falsely accused of being dangerous. They should also be integrated with existing mental health and addiction systems to ensure that people who are deemed dangerous because of underlying factors receive treatment.

C. Allow Virginians To Defend Themselves. Finally, often overlooked in discussions of gun violence is the important role of law-abiding gun owners in deterring and countering criminal activity. Americans use their firearms in defense of themselves and others far more often than they use firearms to kill each other. This assertion is not based on some wild outlier study. Rather, as the Centers for Disease Control and Prevention stated in a 2013 report, “almost all national survey estimates” have concluded that firearms are used defensively between 500,000 and 3 million times a year in the United States.REF

Moreover, armed civilians are a meaningful safeguard against would-be mass public shooters. The time between when the shooter begins firing and when the shooter is confronted by armed resistance is perhaps one of the biggest factors influencing the number of fatalities. FBI studies on active shooters show that the most common end to these incidents is that the shooter commits suicide when confronted by law enforcement, or is killed by responding officers.REF However, it is clear that armed civilians also sometimes successfully intervene to stop threats posed by these shooters.

There are over 400,000 concealed carry permit holders in Virginia, and they should be allowed to defend themselves or others wherever and whenever threats against them occur. Criminals are not deterred by gun free zones, but by armed confrontation.

IV. Conclusion

Before I conclude my remarks and take your questions, I would like to take a minute to address the rhetoric that I often encounter as someone who actively participates in discussions on gun violence. At times, it can seem as though our common enemy is not violence, but each other.

Let me be clear—regardless of where any individual falls with respect to any specific policy proposal, we all want the same things. We want a safer nation, a safer Virginia, safer communities, and safer families. We want dangerous individuals disarmed, and those bent on crime incarcerated or transformed into law-abiding members of society.

We all abhor the evil acts of those who perpetrate violence on innocent people. Every Virginian with an ounce of humanity sees that bloodshed and is filled with a horrified grief. We do not disagree that mass shootings, gun crime, or suicides are devastating. We disagree only on the scope of the problem and on the effectiveness of many proposed treatment plans.

Every person here today shares this common bond. We are all Americans. We are all Virginians. And as we in good faith discuss solutions to the violence that affects us all, let us refuse to forget that we are on the same team.

Amy E. Swearer is Senior Legal Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.

Testimony Swearer 190818 Appendix Table


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Amy Swearer

Senior Legal Fellow, Meese Center