By Mark Esposito, Guest Blogger
The horrific events in Newtown, Connecticut have left us all with a sense of shock and helplessness. Twenty elementary school children dead, six educators slaughtered, and a place we all like to think of as a safe haven from the misery of the world polluted by horrific violence wrought by weapons more properly used on a battlefield. Politicians from President Obama to New York Mayor Bloomberg have called for “meaningful action” to combat gun violence which is endemic to America.
But does this mass murder of innocents present the right case to support effective gun control? From what we know now the answer is “no.” The shooter, 20-year-old Adam Lanza, was a troubled teen who suffered from either Asperger’s syndrome or a personality disorder according to the New York Daily News. One family friend described the young man, saying, “This was a deeply disturbed kid. He certainly had major issues. He was subject to outbursts from what I recall.”
Lanza also had strange permutation of the syndrome in that he was impervious to normal stimuli. Another “longtime” family friend said Lanza had a condition “where he couldn’t feel pain. A few years ago when he was on the baseball team, everyone had to be careful that he didn’t fall because he could get hurt and not feel it.”
Asperger’s syndrome is an autism spectrum disorder (ASD) which allows the sufferer to maintain high academic and cognitive functioning but handicaps social interaction. It is the classic high school brainiac who is unable to ask a member of the opposite sex out on a date. The cause is unknown but certain genetic markers may be present to suggest that is its origin. Thus, Lanza may have acted from a motivation he had little control over and which no amount of gun control or mental health legislation could control.
Additionally, the guns used in the slayings were purchased legally by Lanza’s apparent first victim, his mother, Nancy. Lanza stole the weapons — a .223 Bushmaster assault weapon*, and two semi-automatic handguns, a 9 mm Sig Sauer, and a 9 mm Glock — after murdering his mother and thus began his rampage. The simple fact is that no gun control measures either on the books or reasonably under consideration could have stopped such a disturbed person from acquiring these weapons if he was willing to kill to get them.
As much as many of us would like to see guns regulated at least as much as cars or liquor, the facts here do not present the best case to achieve this goal. The American love affair with guns is seemingly getting stronger with sales of firearms setting new records. Gun manufacturers and their minions at the NRA have succeeded in scaring many Americans into believing that Obama and the Democratic Party have a secret agenda to disarm the public.
In fact, the public’s support for gun control has been on a steady decline according to polling conducted by Pew Research. Even the school mass murder at Columbine registered only a bump of support which quickly vanished. The chart below (from the Huffington Post) graphically demonstrates the public’s attitude about guns in an era of distrust with government and the political process.
It would take a paradigm shift in the culture to create the political will to take on the Second Amendment. It is a telling — and perhaps damning — fact that even the death of 20 children under age 10 is simply not enough.
Source: CNN; New York DailyNews; Huffington Post
~Mark Esposito, Guest Blogger
PSs:
Our good friend, slartibartfast, has provided a link on the effectiveness of the federal ban on assault weapons. It’s good reading. Here it is: Did the federal ban on assault weapons matter?
*Also commenter, Roman Berry, (9:19 am) has provided some context for the term “assault weapon.”
Thanks, guys.
Mike,
I think I stipulated exactly that by noting how his reasoning often is full of holes created by his ideology and his generally being a scumbag. However, he does possess the rudiments of logic despite frequently misusing that tool. He’s not an idiot. He is what I’d describe as just smart enough to be dangerous. Again I give you Heinlein’s Razor: “Never attribute to malice that which can be adequately explained by stupidity, but don’t rule out malice.”
The legal logic in the majority opinion of Heller is technically speaking sound logic and legal reasoning but it’s not a complicated argument either.
The decision summary lays it out thusly:
“(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.”
Even a freshman English student would have to admit the analysis of the wording of the 2nd itself is proper grammatically.
The decision is also not grasping like the dissent written by Breyer (which relies heavily on the individual versus collective right argument). It’s one of the few times I think Breyer missed the ball completely. Stevens dissent was much better, but I ultimately found his reading of the 2nd both grammatically and as it related to the precedent of the English Bill of Rights of 1689 unpersuasive although much of it was well reasoned.
You can read the whole case here: District of Columbia v. Heller, 554 U.S. 570 (2008)
It is important to note that both the majority and the dissent all allow that the right is not absolute and reasonable regulation is permissible. The only people making the absolute right argument are the extremists. Absolute rights are a fairly rare commodity under the social compact.
In a non-partisan, objective mode of legal analysis, I have to go with the majority on Heller as much as I’d like to give Scalia, Ailito, Roberts and Thomas the finger simply on general principle (I’m giving Kennedy a pass of finger – I feel magnanimous today). The Gang of Four gets a lot of things wrong for various reasons, but like my grandfather (and many other grandfathers) said, “It can’t rain every day.”
Gene,
Re: Heller and Scalia. A stopped clock…………………..
@Gene, Blouise: A hypothetical question, here: Does the unlimited right to “keep and bear arms” automatically imply the unlimited right to buy arms?
For example, I can own a gun I made myself or a gun passed down to me by my father. How much does the act of buying a gun have to be restricted before it impinges on the right to “keep and bear arms?”
Can we prohibit the purchase of guns without a Constitutional Amendment?
Slarti:
Crime skyrockets in Washington, DC after Heller allows private handguns
“The Brady Campaign warned us about this. It’s obvious that more handguns in the hands of ordinary citizens will lead to more murders and more violent crime.
This TRUTH is so obvious it hardly needs real-world evidence. But the gun worshippers won’t accept obvious TRUTH; unfortunately for them, the data is in. It proves what we knew all along–more handguns = more crime.”
@Gene: [Saying To Blouise] Your desire for outcome determinism is showing. You are arguing from what you want the law to be, not what it actually is, to get a result you desire.
I would not see that as a pejorative; that is the point of all legal argument. As the North argued against slavery, they argued for what they wanted the law to be, not what it was. As women demonstrated for the right to vote, they argued for what they wanted the law to be, not what it was.
As for “outcome determinism,” you may mean something different than that sounds; but to me we punish murder, theft and rape because we don’t want them to happen, we pass new laws (like workplace safety) because we want to force specific outcomes (or at least make them far more probable).
I think we can agree on what the law IS without agreeing that is what the law should be.
Slarti,
The bulwark against tyranny was not the only consideration of the Founders in formulation of the 2nd. That it’s a disproportionate battle today should it come about is a perfectly good reason for further eroding the right and skewing the odds in favor of a tyrannical government. That makes perfect sense. 🙄
It is a generally protected natural right as worded in the Constitution and that is how the Founders saw it as evidenced by their own writing.
Any other reading of the language is wishful thinking.
You know I hate Scalia. I think he’s an ideologue and his logic is often impaired by that in addition to being just a bad guy in general, however, he’s not an idiot. That’s Thomas’ job on the Court. The logic of Heller is sound as is the logic of McDonald. You know that saying about broken clocks and time, well, this is one of those moments.
“he’s not an idiot.”
Gene,
I seriously strongly disagree with you on this point alone. He is an idiot, if as I think your connotation of “idiot” in the context of your comment means he’s intelligent.
To me intelligence is a combination of the ability to absorb information, in tandem with the ability to look at that information critically with a mind open to its meaning. Scalia is indeed able to absorb information, but his critical facility in digesting that information is rigidly closed to any but the information he deems valid. Ultimately to me that is the mark of a stupid man, an idiot if you will.
“I don’t believe that any individual or group, unless supported by elements of the military, can stand against the federal government exercising the full extent of its power.”
In an age of warrantless wiretaps and wholescale trawling of Internet traffic, anyone trying to organise a significant force would be picked up by the military and detrained indefinitely without trial in a military facility. POTUS signed that into law.
#LongerMovieTitles ‘We know what you did last Summer – and yesterday. We know who you communicate with and who they communicate with. We know what you talk about. We know what you buy. We know you better than you know yourself’.
Such people should also listen out for a strange buzzing noise way overhead.
Neighbours should reflect before going to the assistance of people in a house that had suddenly been demolished by a missile. There could be a double-tap.
It might be unwise to attend funerals arising from such incidents. Just send flowers – but don’t order them over the Net and do use cash. Be advised that use of cash is one of the suspicious “See something, say something” signs. http://www.dhs.gov/if-you-see-something-say-something-campaign
Remember that Movie “Falling Down”?
Best line: “I’m the bad guy? ……. How did that happen?”
Gene,
The “prima facie end runs” were what I was referring to (although in the case of the 2nd a similar action would likely be by the left rather than by the right). I agree that this would not be any more justified, I’m just saying that it’s a possible result of the dynamics in play (when the Republicans repeatedly game the system to accomplish their policy goals I think many Democrats start to believe that they are justified in following suit [although I personally disagree]). I’m suggesting that you consider the possible overreaction of the left and how that might be prevented.
Also, I wasn’t suggesting that the SCOTUS always does the right thing — just acknowledging what is clearly within their power should they choose to exercise it.
As for what I think should happen in a ideal world, I would note that, in my opinion, the premise: “A well regulated Militia, being necessary to the security of a free State,” is no longer true, and, if so, the Second Amendement should be amended to reflect its appropriate role in today’s society.
In addition, given the overwhelming force that the US government has at its disposal (should it, for example, disregard posse comitatus), I don’t believe that any individual or group, unless supported by elements of the military, can stand against the federal government exercising the full extent of its power. If one of the purposes of being “well armed” (whatever that means) is to protect the people from tyranny by their own government, I would suggest that no US citizen is sufficiently armed. This aspect of the 2nd seems to stoutly bar the barn door while ignoring that all the animals have already left through a gaping hole in the wall…
Just my $0.02.
Slarti,
Those other times that the Bill of Rights have eroded without being amended? Are either permissible interpretation of statutes that minimally infringe on rights for the gain of substantive societal benefit – such as defamation being a tort or menacing a crime – or they have been prime facie end runs around proper process like the Patriot Act and the NDAA where a right has been effectively eliminated without amendment. To do so with the 2nd would be just as wrong as what both the Patriot Act and the NDAA did to the 4th. Violating the rule of law to get a desired effect is simply wrong no matter which branch of government is responsible for it or what their reason might be. Again, the Constitution is not a salad bar. When speaking of reasonable restriction, I have no problem with idea and in fact I’m for it, but to carry it to the point of neutering a right is bad law and unconstitutional. My primary disagreement with Blouise is over the nature of the right. It was at the time of the Constitutional convention an individual natural right that the Framers considered so important to a valid reasonable governmental interest in militias that that explicitly protected it in general by the way they worded the 2nd. It is recognized as an individual right in the subsequent jurisprudence. Blouise’s interpretation is wishful thinking legally speaking and it will remain unpalatable to me as such. And just because SCOTUS could change their mind is irrelevant for two reasons: 1) they haven’t and 2) SCOTUS is not perfect. Citizens United proved they are just as susceptible to bad logic and (yeah, I’m going there) ideological and general corruption over sound non-partisan objective rational legal principle. If you want to effectively remove the right to bear arms, the only right and Constitutional way to do it is by amendment. I won’t back any proposal that tries to do an end run around a right that rightfully requires amendment to eliminate. Blouise says she’s not for eliminating the 2nd and I accept her word on that, but the urge to overreact is just as strong on the left as it is on the right. A society where a citizen could become their own nuclear power or a society where arms are forbidden to all but the government are both bad ideas.
Some more information for the discussion:
Here’s another way of looking at the data Sam Wang presented which, in my opinion, shows what would be an effective response — namely a ban on oversized magazines*.
Personally, I’m also in favor of much stronger penalties for any crime involving a gun (we can free up the prison space by commuting the sentences of all non-violent drug offenders to probation, community service and/or fines 😉 ). I believe this would have a chilling effect on gun violence in general, although it clearly wouldn’t have made a difference in this case (or any mass shooting in which the shooter accepts that he will be caught or killed or commits suicide).
I have always wondered why gun control advocates didn’t take this position as it seems to be a hard one for the gun lobby (and the “tough on crime” part of the right) to oppose (and likely to be effective at discouraging gun crime and keeping criminals off of the streets as well).
*preferably with a buyback program and penalties for possession of illegal clips and especially for their use in any other criminal act.
Gene,
I disagree with you regarding the need to amend the Constitution — even ignoring that the SCOTUS could choose Blouise’s interpretation at any time if it wanted to, it is clear that other parts of the Bill of Rights have eroded without being amended (either with or without the help of the SCOTUS) and I see no reason why something similar couldn’t happen to the Second Amendment. I’m not suggesting that this is a good thing or a course which should be pursued, but it is the context within which we find ourselves and must be acknowledged (if only to prevent it from happening again in this case). You might consider that Blouise’s position may be much more palatable to you than some of the possible alternatives. Which is not to imply that you haven’t supported the ideas which are plausible to implement and most likely to work in any case…
OS,
Ornate shotguns are nice to look at but not at the top of my wishlist. If I had that kind of money to blow on guns, I’d buy a few pre-64 Model 70’s in their original (unopened) boxes. And maybe an old Mauser or Springfield rifle still packed in cosmoline….
My feeling is that the Second Amendment was simply a child of its time. It was drafted in a a world that would find the modern world to be alien.
In that environment, it envisaged citizens being part of trained militias who could be on hand should the British decide to return.
I sincerely doubt the the drafters envisaged the current state of affairs and what could be termed “fetishisism”.
The problem seems to be that once a handful of modern-era judges have decided for themselves what precisely was intended by some people a few hundred years ago, everybody is stuck with this interpretation.
On this sort of question, is rule by Executive really any different to rule by Judiciary?
Well, of course it it.
The Judiciary are totally independent of the Executive and politics. Political parties go to huge efforts to try to ensure that any appointed judges are completely independent of *the other* political party.
Hmmmm.
Pork chops.
And it is lunch time . . . perhaps a break from working the keyboard for some porcine delight is in order.
Gene,
Probably the name of your FAVORITE porkchop.
Blouise,
Sorry! Did I call someone betty other than bettykath? If I did, I plead the hazards of multi-tasking. I was in the midst of sending out a last minute appeal for Blawg 100 votes. I do know some Bettys.
Speaking of which:
Get out the vote, blog peoples!
Register here:http://www.abajournal.com/register
The registration is minimal. Name, e-mail address, select a password.
Vote here: http://www.abajournal.com/blawg100
It may not bring peace in our time, but it will give us another natty award to post on the sidebar! Help beautify your favorite law blog! Vote today!
Gene,
Who is Betty? 😉
Blouise, so interesting that anyone who tries to talk about gun restrictions that are not as severe as the one Wyatt Earp put in place in his town immediately goes to “all the guns gonna be taken away”.
Blouise,
It is already on the the broader platform of natural rights. Just like free speech, free exercise/establishment, association, etc. It was such an important natural right that – like the others – the Founders protected it by specific inclusion for Constitutional protection. I’ll grant that the 2nd is clumsily worded, but it protects a valid governmental interest by protecting an individual natural right every bit as much as free exercise/establishment protects a valid governmental interest – secular operation – by protecting individual natural rights. Just because a right is protected does not change the essence of the right itself.
Gene,
Repealing the Second is not the answer and was never suggested as such. Removing the issue from the confines of the Second and placing it on the broader platform of natural rights where it can then be looked at from the prospective of all other individual rights is the better position for debate.
I share everyone’s feelings of sorrow and despair. However, I think focusing on gun control looks to a symptom, not the cause and is a very bad distraction. In this case, the guns were purchased legally, no amount of gun control under discussion would have changed this.
I think a much better question is “Why is it even possible that someone could do this.” This is not just happening in America, it happens in Countries where gun control is very strong – Canada, Scotland and China (mass stabbing not shooting) are three places which have had similar events at schools. Much better to ask “How is it possible” — not how to we restrict the tools — because if they can’t find one tool they will find another.
I very strongly believe that it is the constant exposure, from childhood, to horrific acts of violence in our TV, movies, and games that desensitize people to violence. We have a three year old. I am shocked by the level of violence in cartoons – Batman, Spiderman, Lego — you name it — they are deeply dark and filled with violence.
Very different from the cartoons when I was growing up. Then you move into movies and TV — my wife and I, no longer watch any TV with the exception of sitcoms and the Oprah channel. Nearly everything else, everything that is on, contains the most horrific violence. I believe that is what is changing our society and making horrific events like this possible.
When asked once about violence in our society today, my guru said “You people watch graphic horrific violence for your entertainment – from morning to night, from childhood to adulthood. How can you expect anything different?” That was several years ago and, it dramatically changed our media consumption.
Interestingly, at first we “refrained” from watching this type of entertainment (much like a diet – you know you shouldn’t but you want to. You are restraining yourself.) Now, several years later, if we try to watch a contemporary adult action show for some reason (usually because we have heard it was great), we are quickly horrified and turn it off.
This would not have bothered me before as I watched all of those shows and movies (Scarface, Godfather, Fargo — loved them all). However, after several years of avoiding this type of “entertainment” I have definitely become much more sensitive to seeing acts of violence, cruelty, and sadness. By deduction, I must have been more insensitive before and, I think media had a great deal to do with that. When you see people committing horrible acts on your TV every night, how can you not become less sensitive to it?
Mike S., thanks for the link. Says a lot.
An awful lot of gun talk of the fetishist sort, maybe, on this thread. Might be unseemly. Maybe the ban that is needed is on such talk 😉
Same issue of prescriptive attribution and accusation of wanting to abrogate the 2nd rather than sensibly curtail specific weaponry hawked to the public pursuant to an inflated sense of fear and potency.
Same defense of the 2nd by deflection and distortion of actual and legitimate proposals — demonising sensible regulation at least as much as fetishists accuse those who criticize any weaponry of demonizing all weaponry, and the Constitution.
I don’t know how anyone can joke about head shots, regardless of the target, in the same thread that reprises the slaughter in Newton.