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Mr. Chairman:

Thank you for giving me this opportunity to address you today. My remarks today cover three points:

Point 1. Non-Discretionary concealed handgun license laws are sometimes an aid to public safety, and from the available evidence, not a threat.

Point 2. Concealed handgun license laws are quite rare outside of the formerly slave states, until this century. The available evidence strongly suggests that racism drove the development of these laws.

Point 3. Self-defense is a basic human right, guaranteed by the Michigan Constitution. If you don't have the right to defend yourself from murder, the rest of your human rights are irrelevant. Adopting a non-discretionary concealed handgun license law will protect that basic human right.

The most effective tool for self-defense against sudden attack remains the handgun. This is the reason that while police departments routinely issue pepper spray or tear gas to their officers, they also issue them a handgun - because they know that the threat of death is the surest way to discourage criminal attack, and if the threat isn't enough, a gun is the surest way to stop a criminal attack.

I come to you today asking you to follow the lead of the 20 other states that have adopted such non-discretionary issuance laws. (Another eight states either require no license, or issue permits so readily, that they might as well have non-discretionary issuance laws.) Make it possible for law-abiding adults to use the most effective self-defense tool when they leave their homes. Take away nearly all discretion from public officials in deciding whether to issue a permit. Radical? Crazy? Dangerous? That was my first reaction to non-discretionary issuance.

Let me tell you a little about how I came to write, with David Kopel, the Tennessee Law Review article on concealed weapon permit laws that I believe you have received. I was writing my second book - a scholarly history of how the courts have interpreted both the Second Amendment and the similar guarantees contained in most state constitutions. When I discovered these non-discretionary concealed handgun license laws in 1989, I was curious what would happen. While I believed then that concealed handgun licenses could be safely issued more liberally than they were, even I believed that making permits too easily available would lead to bloodshed, as traffic accidents and minor disputes would escalate to gunfire.

I gathered data about these new laws, to see what happened. What happened to murder rates? My research found that the worst fears of many people (myself included) were incorrect. In the states that adopted these non-discretionary permit issuance laws, there has been no increase in murder rates, except in Virginia, where large numbers of judges ignored clear legislative intent, and refused to issue permits.

In a few states, murder rates have fallen since these new laws took effect. In Florida, the drop in murder rates was dramatic - and the drop started the very first year of the new law. The most detailed examination of licensees, in Florida, found that even in the few cases where licensees broke laws, these were usually technical or unintentional violations - not the tragic crimes that some predicted.

What makes these results so impressive is how many people were licensed to carry under these new laws. In Idaho, 4% of the population now has a concealed carry permit. In Oregon, 2% of the adults in the state are now licensed to carry. In the states for which data is available, the percentage of the population with permits is in the range 1-4%.

So... with so many licensed to carry handguns, and with abundant evidence that it does no harm, and in some cases, appears to have done some real good in reducing murder rates, what does this tell us? What it tells me is that the sort of person who qualifies for a concealed handgun permit isn't as stupid or hot-tempered as many people - myself included - assumed.

It is conventional wisdom that nice, ordinary, sensible people with a gun just fly off the handle and commit murder - the archetypal crime of passion. Yet quite a number of studies show that this is seldom true.

The FBI studied the question in detail in 1975, and discovered that 57% of murderers had prior felony convictions. Common to all the non-discretionary permit laws that have been adopted, those convicted of felonies and recent misdemeanors are ineligible.

At least 30% of U.S. murders in 1993 were committed by teenagers. None of these non-discretionary permit laws adopted in other states require issuance to teenagers - in fact, nearly all require an applicant to be at least 21. And nearly all these new laws prohibit issuance of permits to anyone who has been held against their will for mental health observation in the last few years.

Drug and alcohol abuse are also very strongly correlated to not only murder, but also suicide and gun accidents. For this reason, most of these non-discretionary license laws prohibit issuance of permits to anyone with a recent history of court-ordered drug or alcohol treatment. A few prohibit possession of a gun in bars or while drinking - a perfectly reasonable regulation, comparable to our laws about alcohol and driving.

Once you have removed people in these categories, you have removed the overwhelming majority of murderers in America.

Now, one of the questions that is going to be asked is: "What about the University of Maryland study released earlier this year that shows that murders went up after these laws took effect?" I've looked over the study and frankly, I would be embarrassed to have my name on it.

Let me give just one obvious deficiency of the University of Maryland study. The researchers at the University of Maryland examined homicidecounts (as recorded by the National Center for Health Statistics), not murder rates. Homicide includes not only murders and manslaughters, which go into the FBI's statistics that I used, but also justifiable and excusable homicides. We should expect that if 1-4% of the population is now carrying a gun for self-defense, at least occasionally, a victim is going to shoot back, and one of the bad guys is going to die. When a rapist, robber, or mugger gets killed by his victim, the bad guy's death shows up as a gun homicide in the National Center for Health Statistics data.

Peace is a wonderful thing, but if a rape, a robbery, aggravated assault, or murder is prevented by the death of a criminal, this is not a tragedy - yet the University of Maryland study treats dead criminals and dead victims as equivalent. That's not just incorrect, it's immoral. The lives of decent people count for more than the lives of rapists, robbers, and murderers!

By contrast, the study that Dave Kopel and I prepared uses the FBI's Uniform Crime Reports murder and non-negligent manslaughter rates. There are some problems with the FBI's statistics. The most critical problem is that when civilians kill in self-defense, these incidents are often reported to the FBI as murders - and the FBI's figures aren't corrected when the incident is reclassified by local police or courts. At least 700 civilian defensive killings a year in this country are initially reported as murder. This overreporting of murder is probably even more true for those states where 1-4% of the population now carries a gun for self-defense. For this reason, the data contained within the paper that Mr. Kopel and I wrote probably understates the level of improvement in murder rates.

Some of you are doubtless wondering, "If the average law-abiding adult can be trusted with a gun, why do we have the laws we have today?" Until the 20th century, laws that regulated or licensed the carrying of concealed weapons were rare, except for the states where slaves were held. Before the Civil War, there was only one free state that prohibited or licensed concealed carry: Indiana.

By comparison, slave states were awash in laws that regulated the carrying of arms, concealed, or openly. Many of these laws applied only to blacks, and it appears that even the race-neutral laws were aimed at abolitionists or mulattoes who could pass for white.

The Winter, 1995 issue of the Kansas Journal of Law & Public Policy published a paper of mine titled, "The Racist Roots of Gun Control," which I believe that you have received. My second book also discusses in considerable - some would say, excruciating - detail how laws licensing the carrying of weapons came North at roughly the same time that blacks migrated North in large numbers, and at the same time that the resurgent Ku Klux Klan promoted hatred against blacks, foreigners, and union organizers.

In a few cases, we have direct and explicit statements that these laws were passed to disarm feared minority groups, without violating the 14th Amendment's guarantee of equal protection. Florida Supreme Court Justice Buford's concurring opinion in Watson v. Stone (Fla. 1941) is perhaps the most blunt:

I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State…. [T]he Act was passed for the purpose of disarming the negro laborers ... and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied. [ Watson v. Stone , 4 So.2d 700, 703 (Fla. 1941).]

Significantly, the Michigan Supreme Court did not strike down the law because it treated resident aliens differently from citizens, but because the Legislature, in the words of the Court, "has no power to constitute it a crime for a person, alien or citizen, to possess a revolver for the legitimate defense of himself and his property." [ People v. Zerillo , 189 N.W. 927, 928 (Mich. 1922).]

While the Michigan Supreme Court did agree that the "the Legislature has power in the most comprehensive manner to regulate the carrying and use of firearms…." it also pointed out:

The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff. The part of the act under which the prosecution was planted is not one of regulation, but one of prohibition and confiscation. [ People v. Zerillo , 189 N.W. 927, 928 (Mich. 1922).]

Unfortunately, in the first serious Constitutional challenge to the discretionary issuance of concealed handgun permits, the defendant was arrested on drug charges, and the Michigan Court of Appeals brusquely dismissed the defendant's claim that the licensing system was arbitrary [ People v. McFadden , 188 N.W.2d 141, 143, 144 (Mich.App. 1971).] - even though the earlier decisions make it clear that reasonable regulation of the carrying of weapons was Constitutional, but prohibition was not. When the vast majority of the law-abiding people of a state can't carry a gun for self-defense, as is the case today in Michigan, the right to bear arms in self-defense has been prohibited, not regulated.

Let me give you an example of the difference between "regulation" and "prohibition" and why it is important that you pass a non-discretionary permit system. Cars are potentially very dangerous machines - and they cause about as many deaths each year in America as guns. Cars are very useful, but they're also dangerous, so we regulate who can drive.

We regulate driving by requiring you to be of a certain age that we associate with emotional maturity. We require you to pass tests to demonstrate competence. (Those tests aren't very hard, in most states. In most states, you are required to submit to an alcohol test if an officer suspects you have been drinking. But if you meet those requirements, no official can decide that you don't have a good enough reason to drive. As a general rule, people do not file lawsuits when they fail to get a driver's license. And pretty much anywhere in America, if you get a driver's license, no one wonders if bribery or political influence played a part in it.

Can you imagine if Michigan issued driver's licenses the way it issues concealed weapon licenses? The "automobile driver's licensing board" would be made up of three officials: the county public transit agency director; a representative of the bus driver's union; and the director of the state public transit authority, or his deputy. They would only issue a driver's license if you could show a "good reason" why public transit wasn't good enough, "or has other proper reasons, and is a suitable person to be licensed." The vast majority of applicants wouldn't get a license, and most people wouldn't even bother applying.

If you insisted that you aren't a danger to others, driving a 3000 pound car at 55 mph, all three members of the board would lecture you that driving a motor vehicle is a difficult, hazardous job, best left to highly trained professionals, such as their bus drivers. If you protested that driving a bus is a bit harder than driving a car, they would insist that they are the experts, and you don't know what you are talking about.

When you point out that they are issuing driver's licenses to people who seem to have contributed to their last political campaign, or whose only distinguishing characteristic is that they are wealthy, there is a stony silence, and your complaint is simply ignored. Oh yes, people who live in states that do issue driver's licenses on a non-discretionary basis can use that license when they come to visit!

When you point out that the public transit authority doesn't do a very good job of providing transportation, they say this is a strong argument for increasing their budget, letting them hire more employees, and exempting buses from existing traffic laws. Oh yes, because they have to hire more bus drivers, the county and state public transit agency directors need raises. Because of their jobs, two of the three officials on the board automatically get a driver's license - even when they aren't driving a bus.

Far-fetched? But that's exactly what is going on with concealed weapon permits - and not just in Michigan. Throughout this country, many police chiefs and sheriffs (though seldom beat cops) insist that allowing law-abiding citizens to defend themselves will lead to carnage. Not surprisingly, these same chiefs and sheriffs insist that the real solution to crime is to give them more money, more power, and more control over the lives of law-abiding people.

Let me quote a surprising source for the idea that law-abiding citizens should be able to get concealed weapons permits: Nelson "Pete" Shields, the second director of Handgun Control, Inc. In his book, Guns Don't Die - People Do, Shields argued that violation of concealed weapon laws should carry a mandatory jail term. "We must separate the law-abiding citizen, who will get a license, from the criminal who won't-and then punish unlicensed carrying severely." Shields wished "all states to use stiff mandatory penalties to limit the carrying of handguns to citizens who are known to be law-abiding…." [ Nelson Shields, Guns Don't Die-People Do , (Priam Books, 1981), 151.] Washington State, when it adopted non-discretionary issuance in 1961, also made unlicensed concealed carry into a felony. This is not ideal, but it is a compromise that many gun owners would welcome.

Right now, large numbers of Americans are reluctant to travel into big cities at night, for fear of robbery or murder - and that fear is completely reasonable. Many women are afraid to go for a walk after dark, for fear of being raped. That fear is also completely reasonable. There are many reasons why our cities have become such dangerous places, and I won't claim that passing a non-discretionary permit law is going to suddenly revitalize urban America. But to the extent that it makes people willing to shop, play, and live in big cities, because they are no longer defenseless against criminal attack, there is a chance of reversing the decay of our urban centers.

Thank you.

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