The Saturday Night SpecialNicholas Johnson in Liberty Law Blog, May 12, 2013
By Nicholas Johnson
I just dusted off an entertaining screed from 1973 written by former Washington Post reporter Robert Sherrill. Although you can gather it from his credential as a Posty, the prodigious title of the book better signals his views on the “so-called” right to keep and bear arms. To wit: The Saturday Night Special: And Other Guns With Which Americans Won The West, Protected Bootleg Franchises, Slew Wildlife, Robbed Countless Banks, Shot Husbands Purposely And By Mistake And Killed Presidents – Together With The Debate Over Continuing Same. Absent from Sherrill’s list is any suggestion of the utility of firearms for legitimate self-defense.
The book is a vivid reflection of the times, urging confidently the states’ rights view of the Second Amendment that today not a single member of the United States Supreme Court attempts to prop up. But enough nostalgia.
The reason I retrieved Sherrill’s Saturday Night Special from the back of a high shelf was that he offers a lively argument that the 1968 Gun Control Act was mostly about controlling Negroes and not much about controlling guns. That account was the primary reason I bought the many book years ago, and I confess I only just now read it cover to cover. Some of it is quite extraordinary.
Once you cut through the vitriol, the striking thing is Sherrill’s clearheaded critique of several issues that are central to the current gun control debate. Indeed, on several key points Sherrill is in basic agreement with claims that I have developed in detail in my scholarship and summarized in previous posts to this blog.
I have argued extensively that marginal supply controls are fruitless and sweeping supply controls will both fail and make things worse because we already have 300 million guns. In 1973, Sherrill, operating on the estimate of perhaps 200 million guns, basically acknowledged the same thing. He illustrates the point through a comparison. First he notes the episode in 1972 where following the murder of Bermuda’s Governor, police confiscated the island’s 800 registered handguns. Then, for contrast, he offers Governor Pat Brown’s now 40 year old analysis of the “gargantuan task of trying to seize 10 million handguns or making law violators of 10 million people that now possess them.”
Brown’s answer, more of a platitude really, exhibited the kind of glib governmental hubris that is in vast supply in the current debate. “The only answer I can give you” said Brown, “is that you have to begin someplace… I feel we should take the general position that handguns should be barred except by police officials and other authorized people, and then try to find out how to seize them in the days ahead.” This sounds pretty much like the dubious prescription for shrinking the supply of “assault weapons” in Dianne Feinstein’s initial salvo.
The 1970s were a time when anti-gun folks were far more open about the theory and practical demands of their agenda. They felt no compulsion to declare wincingly how much they respect the Second Amendment. Unlike his modern counterparts, Sherrill exhibits open disdain for guns and gun culture. But more remarkably he is clear-eyed about the evident practical boundaries on such proposals. His response to Pat Brown was, “lots of luck.”
Then, in an analysis that is very similar to my detailed description of the implications of defiance to supply controls internationally, Sherrill recounts the martial law gun control measures enacted by Ferdinand Marcos in the Philippines. All private firearms had to be surrendered, anyone in possession of an unauthorized gun faced 10 to 15 years imprisonment and anyone who committed a violent crime with a gun faced a firing squad. Under these pressures, Filipinos still only turned in about half of the estimated civilian gun stock. And the half that remained were now officially black-market guns, circulating among the least law-abiding segment of the community. Hard to see how that was a good thing, and Sherrill was honest in recognizing the problem.
Sherrill’s next assessment puts our recent dispute about assault weapons and its underlying “bad gun formula” in high relief. In 1973, the number one bad gun was the so-called “Saturday Night Special.” Remember that one? Just like today’s “assault weapon,” it was an elastic category with no real boundaries. The label could capture small guns, small caliber guns, cheap guns, and if you really want to get to the point, guns likely to be owned by poor people, and more so black people.
On the status of the Saturday Night Special, Sherrill is a bit schizophrenic. He wants to do something, but he is unwilling to drink the “bad gun” kool-aid of the type that today has people fulminating about pistol grips, ten round magazines and barrel shrouds (this later accoutrement a key House member famously could not even describe let alone explain its evil function).
Sherrill’s work on this point is worth quoting because it so closely tracks what many of us have said about the technically absurd distinctions advanced to support Sen. Feinstein’s recently proposed bad gun classifications. Here is Sherrill:
Gun control advocates have been manipulated into playing the gun status game, and that is a game in which they are guaranteed to make fools of themselves, for their simply is no way to equate quality or price or size or caliber with anything of social import . …. The “nice” .22s of the highest price in the longest barrel manufactured by elite U.S. gun companies send forth bullets that operate in exactly the same fashion. Did the reformers think there was something especially evil in the combination of small size and small price? … Did they feel that the bigger calibers, for some mysterious reason were safer or, for some even more mysterious reason, more civilized? … All guns are terrible, no doubt, but one kind no more than the others. And if there is virtue in any gun, no gun is completely without it.
Wow! That is what I wrote next in the margin next to this passage. Because if you substitute assault rifles versus shotguns or AR 15’s versus Mini 14’s in the right spots, what Sherrill says here is basically the argument I advanced in my February testimony before the Senate Judiciary Committee.
There I highlighted the U.S. Army Combat Shotgun report that showed how the ubiquitous shotgun with standard buckshot loads is, within practical ranges, superior in multi-projectile capability, hit probability and lethality to anything that would be banned under the proposed assault weapons legislation.
This, as I explained to the Committee, made Feinstein’s categories simply incoherent and rendered the proposed legislation constitutionally unsustainable. I recently lost an inquisitive reporter on the technical details, but reconnected with him on the analogy that Feinstein’s classifications were the equivalent of banning red cars on the theory that they are the fast and dangerous ones.
Unlike some of the Senators of the Judiciary Committee, Sherrill was (what to say here?) thoughtful enough, diligent enough, candid enough, about the details to acknowledge how certain objectively measurable variables provide hard policy limits in what is otherwise a whirlwind of analysis. He was unwilling to cloud things further through specious assertions about things that serious people should agree on simply as a matter of physics.
So what does it say about our policy-making that we recently spent so much time and energy debating a sweeping gun ban proposal that was the analytical equivalent of what you would get from turning over regulation of the internet to your grandmother, who thinks that hitting the wrong button on the keyboard will make the house will blow up. That’s basically what we got when the Democrats offered up Senator Feinstein as the authority on firearms policy and she started talking about “spray firing from the hip,” but went all doe-eyed when confronted with the U.S. Army Report showing that the principle evil characteristic she said needed banning were best exhibited by a class of ubiquitous firearms that were included by the hundreds on her list of “good guns.”
The whole thing is so discouraging that it has me rethinking one of my long held criticisms of our political system. For two decades my students have heard me beat the dead horse of the non-delegation doctrine, criticizing nondemocratic lawmaking under the guise of “regulation” by countless, nameless, non-elected bureaucrats—teaming minions assigned to “flesh out the details” of laws that congress has supposedly laid the structure for. I am fond of the illustration of the “law” versus the “regulations” administered under the Resource Conservation Recovery Act. The former is a few thin pages of statute. The latter is several thick volumes of EPA edicts in the Code of Federal Regulations, a word count ratio I eyeball at about 50,000 to 1.
But here is the thing. When courts assess challenges to the regulators’ work product, they ask essentially whether the rules make sense in light of the data, an abundance of which is submitted by affected parties, and weighed in serious fashion. The rule-makers go to great pains to develop regulations that match up with the data and, usually within the limits of reality, the underlying problem. Someone is always unhappy about the results. But the incentives for the faceless rule-makers weigh against unleashing something that on objective analysis is just nonsense. You have to be elected to get away with that.