Healthy Guns

A.D. Freudenheim, The Editor

In September, a Federal court in New Mexico ruled that the police search of a man carrying an unconcealed (holstered) gun into a movie theater was illegal, a violation of his Fourth Amendment rights under the Constitution. The police search was apparently predicated on a call by the owner of the theater, after seeing the man enter; the police searched and then released him, though they made him leave his gun in his car.

I heard about this case through a posting on Reason’s blog (here), which also quoted a news item in the Wisconsin Gun Rights Examiner (here) that said: “The court also found that merely being armed does not automatically make a person armed and dangerous, which would be necessary to justify a limited protective search (Terry stop) that justify officers disarming an individual.”

A few weeks after I saw that item, there was a big story in the New York Times (here) about a young boy—a first-grader—who was suing to overturn his suspension from school for having brought his Boy Scout-approved camping utensil (combination fork, spoon, and knife) to school. The boy violated a school district rule that prohibits dangerous weapons, for which the knife portion of the tool apparently qualifies.

In the latter case, the school administrator in the case had been steadfast in saying he is only applying the rules, equally and without discrimination. In the former case, the man in New Mexico was free to carry his gun because there is no state law prohibiting the carrying of an unconcealed firearm nor, it seems, did this particular theater have its own sign prohibiting guns.

Then there are the people who brought guns to various events with President Barack Obama over the summer, from handguns to assault weapons. Also armed but presumed not dangerous, despite the fact that their very appearance at Obama’s rallies was anger-induced. Of course, what might be anger-inducing here is the heavy irony of the Obama administration permitting gun-toting protesters … following eight years of a Bush administration that sought to squash and make invisible all protesting. Never mind the inconceivability of the Bush-era Secret Service ever having allowed gun-toting citizens within a mile of a rally for the president or his vice president!

And here is where it once again all converges for me: as a nation and a society we have completely failed to sort through and address what you might call “first principles” on the issue of whether anyone can be legally “armed,” and if so, with what weapons and for what purpose.

Yes, we have the Second Amendment to the United States Constitution, adopted in 1789, and which proposes to give citizens the rights to “bear arms.” Even accepting the traditional, NRA-style interpretation of that Amendment, we must acknowledge that it dates to 1789. And we must therefore remind ourselves of the many other elements of the Constitution that have changed or been reinterpreted in the two centuries since, to adapt to new situations and understandings, as the world has changed. The idea that the Second Amendment is sacrosanct, untouchable, and not open to (re)interpretation is absurd.

While people are (in some states) allowed to bring their guns wherever they go, without significant oversight, weapons training, or lessons in good citizenship … other states, and often the same ones, have absurdist rules religiously obeyed that would suspend a kid from school for an “offense” that is itself so offensive as to be lacking in logic. He’s a 6 year old: why not have the teacher take the pen knife away for a day and give it back to him when he goes home? Heck, it is probably a lot easier to disarm a 6 year old than it is an adult with a strong psycho-emotional attachment to his hip-holstered Glock.

All of these things just remind me of the grander failure of our political and legal structures in the face of broad societal changes. At every level, our politicians—our new, Messianic president included—are too much in the thrall of people whose bought-and-paid-for views take precedence over a more fundamental understanding of the value of their citizenship, or the needs and rights of the rest of us, as individuals and members of different communities.

Back in March, I wrote about another tragic gun violence situation as representative of the degree to which our society’s approach to this and related problems is out of whack. The premise, and the problem, remains the same: our police and other law enforcement officers can only address the symptoms of such illnesses. They do not have the right to address the underlying causes. That responsibility belongs to us, the citizenry.

What we need is, in effect, another Constitutional convention. We need an opportunity to evaluate and address some of the broad thematic changes in our society over the last few centuries, and then develop a new set of principles—carefully evolved from our current Constitution—that help shape the direction of this country for another 220 years. From guns to nationwide healthcare to “net neutrality,” our communities and our country look radically different than they did several centuries ago. Attempting to “fix” many of our problems without first agreeing to the principles that should guide us will, instead, only lead us further astray. Don’t believe me? Just ask yourself whether you think a “public option” in health insurance is a good idea or not, then check with your neighbor, and then read the news.

We are boxed in, trapped, for a cage match we didn’t anticipate or ask for—and a good portion of the population will be coming to this fight armed and, quite possibly, dangerous. Be sure to bring your combination camping utensil.

Shotgun Wedding

A.D. Freudenheim, The Editor

Two weeks ago, I wrote about the terrible problem of gun violence in the United States (“Where’s My Gun”), and the failure of our country and our culture to address the subject rationally—never mind actually come to any practical conclusions. In the days since, two other very public shooting “rampages” have occurred, one in Binghamton, New York and the other in Pittsburgh, Pennsylvania. In both cases, there is evidence to suggest that shooters Jiverly Wong and Richard Poplawski acquired guns under questionable circumstances. Those are presumably the circumstances to which the National Rifle Association (NRA) refers when it says our government should be enforcing the gun laws that already exist, even as it continues to foment fear of “liberals” taking away the guns of good Americans.

Meanwhile, last week the Iowa state Supreme Court ruled that “gay” marriage is legal, under an equal protection clause that prohibits discrimination without a meaningful government interest in a specific outcome. Days later, the Vermont state legislature overrode Governor Jim Douglas’ veto of a bill that legalized gay marriage, making Vermont the first state to pursue this course of action through its legislature.

These subjects are connected, because they reflect important underlying, unresolved tensions in our society, around a set of problems and failures by people on every side of both issues. Even if married homosexual couples have no express or explicit interest in firearms—or gun owners have no homosexual attractions, let alone the desire for marriage—both groups should be united around a common set of legal principles that would permit them to act responsibly around their own interests. There are two Constitutional principles at stake here, and neither involve the Second Amendment. At issue are the Ninth and Tenth Amendments, which read, respectively:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Constitution says nothing at all about gay marriage. One can imagine this is because such marriages were not even a consideration at the time the document was authored, which might very well be true. But a careful reading of the Constitution will remind any reader that many things go unmentioned; indeed, it says nothing about marriage of any kind. The purpose of the Ninth Amendment was in part to ensure that the exclusion of a particular point from the text of the Constitution should not be taken to imply a prohibition on that issue. Accepting the NRA’s particular interpretation of the Second Amendment might be seen to offer gun owners an official leg-up—but the mention of bearing arms does not implicitly receive greater legal resilience just because it is explicitly stated. The power of the Ninth Amendment should be respected, as should the subsequently enumerated right for the states to make decisions about issues not mentioned in the Constitution.

Theoretically, a rejectionist response to gay marriage could point not to the Constitution, but to the Bible—except that as presently constructed in the United States, this is not a religious issue but a legal one. While religion may have informed the creation of the Constitution of these United States, religion is also explicitly not the framework under which legal decisions are made. The Constitution respects the right of the people to practice their religion, and also distinguishes between religious practice and state-held legal authority. (Never mind that the Bible does not say anything about a range of issues mentioned in the Constitution, including a specific right to own guns, as well as those of copyrighting and patent-holding.)

Supporting the fullest and widest interpretation of both Constitutional amendments should unify these seemingly-disparate groups, and remind us that we do not have to like or approve of every decision made by our neighbors or fellow citizens—but we do need to respect them. If supporters of gun rights also argued for the preservation of other fundamental, Constitutional rights, and if (conversely) gay rights advocates supported the right to bear arms as part of a similar interpretation of the Constitution, we might have more than just a new political coalition. We might have a more vibrant Constitutional democracy.

***

Asides of one kind or another:

• Mark Guarino, correspondent for The Christian Science Monitor, had a thoughtful article from 6 April about how Iowans are reacting to their state Supreme Court’s decision regarding gay marriage.

• National Public Radio’s Michele Norris had an amazing interview with gun store owner Johnny Dury a few days ago; NPR’s web site has an abbreviated text version of the story posted, but the full audio version (linked from that page) is worth a listen, no matter where you are in the United States or what you believe about this situation.

• Back in 2004, I wrote a piece about gay marriage (“Union vs. Confederacy?”) arguing that “marriage” should be left to religious institutions, while the state should be responsible for civil unions. This would ease the tension over “gay marriage” by allowing for appropriate discrimination based on religious beliefs, while reinforcing equal protection under the law. In an opinion piece from The New York Times, “A Reconciliation on Gay Marriage,” by David Blankenhorn and Jonathan Rauch, published 22 February 2009, a similar approach is articulated.

Where's My Gun?

A.D. Freudenheim, The Editor

The gun violence in America is seemingly endless. Just this afternoon, as I sat down to write about this issue after two weeks of rumination, the news flashed yet another story of more of the same: “Police: NC nursing home shooting kills 6, hurts 3,” reports the Associated Press. I find nursing homes aggravating and dispiriting, too, but I have no plans to shoot them up.

Here is what is on my mind about this whole subject, prompted by the shooting spree in the towns of Samson and Geneva, Alabama on 11 March 2009: if the National Rifle Association (NRA) claim that an armed populace helps stop crime is so true, how did Michael McLendon manage to kill 10 people before being stopped by the police? That’s the question, and it’s just that simple. And here is some context to help consider this issue.

According to the Violence Policy Center (VPC) of the Centers for Disease Control and Prevention (CDC), in 2005 the “Household Gun Ownership” rate in Alabama was 57.2%, while the “Gun Death Rate” was 16.18 per 100,000. Alabama ranks 5th in the VPC’s rankings of per capita gun-related deaths (behind, in descending order, Louisiana, Alaska, Montana, and Tennessee). The VPC’s argument is simply stated: “States in the South and West with weak gun laws and high rates of gun ownership lead the nation in overall firearm death rates,” and the statistics seem to back this up.

At the same time, according to the Alabama Policy Institute's web site, “Firearms are used far more often to stop crimes than to commit them. In spite of this, anti-firearm activists insist that keeping a firearm in the home puts family members at risk, often claiming that a gun in the home is 43 times more likely to be used to kill a family member than an intruder.” Of course, to be fair to the Alabama Policy Institute (which thanks visitors to its web site for their “commitment to Alabama's families and Alabama's future”) they are not being super-thoughtful about their gun policy perspectives, and are instead just quoting from “Fables, Myths, and Other Tall Fairy Tales about Gun Laws, Crime, and Constitutional Rights,” by the National Rifle Association, as noted at the bottom of their page on “Gun Control Myths.” Surely the NRA would not lie. Right?

So, again: where were the guns during the Alabama shooting spree, aside from the ones being used by the murderer and, eventually, the police? If 57% of Alabama households have guns, and guns are used more often to stop crimes than to commit them, did Michael McLendon just happen to pick targets within the 43% of non-gun-owning households in Alabama? It was not like he was particularly stealthy or selective: the Reuters article reports that he was “firing at random” as he drove through town, including during an apparent stop at a service station. No one at the service station had a gun? Perhaps they just couldn’t get to it fast enough, or maybe they were too afraid, given that McLendon seemed to be shooting randomly. (That’s not blame: I know that in all likelihood I would be searching for safety in a situation like this.)

I am not blaming the victims of this terrible, terrible tragedy. They didn’t ask to be shot and killed. Among them was the wife and child of a deputy sheriff there, and that too raises further interesting questions, worthy of pursuit and pondering: what is this sheriff’s take on gun control issues? And the rest of the police in Alabama, too: do they also subscribe to the “if guns are outlawed, only outlaws will have guns” perspective?

***

In accepting my own contradictions, I’m comfortable calling myself a solid libertarian who nonetheless finds some intellectual appeal in the Thaler / Sunstein approach to laws and decision-making. What does that mean in plain English? Here goes—in four parts.

Part 1. The libertarian in me supports the fundamental Second Amendment right to own guns. This is less because of the United State’s Constitution’s Second Amendment per se, and more because (as a libertarian) I do not like unnecessarily restricting people’s freedoms or blaming an object for its misuse by human idiots. (It is, to my mind, largely true that “guns don’t kill people, people kill people,” and people have been killing each other aggressively since long before the invention of guns.) From cars to cigarettes to people who mix household cleaners containing chlorine and ammonia, we live in a dangerous world. But it’s not the fault of chlorine and ammonia that someone dumped them together.

Part 2. At the same time, the positions of the NRA are generally unsustainable; it is too simplistic by far to say there should be no restrictions on gun ownership at all, period. We agree, as a society, to regulate a broad swathe of things for the common good—from automobiles to zoos—so the idea that guns alone should be exempt from such a regulatory process is absurd.

Part 3. Part of what American society needs is a more honest and open debate about the cost to our society of gun regulation or deregulation. We have never really had a genuine national assessment of the issue—the “issue” here being the cost to our society in human life, not the regulation of guns. I don’t hold out much hope for this, just as I am not holding my breath for health care “reform” or that the Obama administration will push back on AIPAC, but it’s still a worthy goal.

Part 4. In the Thaler / Sunstein mold, we should consider moving away just from broad attempts at regulation or deregulation of guns, and towards a system that incentivizes responsible ownership and citizenship across the board—while imposing harsh penalties for those who abuse their rights.

We cannot simply eliminate guns from our society and our country; to think that we can is as simplistic as the views of the NRA. We can do a better job of trying to learn from tragedies like the one in Alabama, and do a better job of having real discussions about the impact of our choices—while pushing back on the fuzzy-headed thinking about this issue that comes from the extreme right and extreme left of our political spectrum.