Liberty’s Last Stand

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Liberty’s Last Stand

Nikhil Chandravel, Staff Writer

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A few weeks ago, a friend of mine, Madoc Kimball, wrote a thoughtful, detailed article titled “In the Aftermath of Parkland” which tackled the hot button issue of guns. Before I continue, I must first say that I enjoyed reading his piece and I appreciate that MLWGS students are willing to delve into complicated, controversial topics and put their thoughts on paper for others to read and perhaps be persuaded to their point of view. However, I was not persuaded. I finished reading his piece with the same opinion, same frame of mind, and firm as ever in my beliefs. Therefore, I would like to give my take on the issue.

First, on the relationship between guns and violent crime and mass shootings. A major argument in Madoc’s piece is that ease of access to assault rifles has helped create these mass shootings. To be exact, mass shootings occur “for no reason other than the simple fact that Americans may easily and legally acquire military-grade weapons.” The fact is, “military-grade weapons” (which I assume are “assault rifles”) are not the weapons of choice in mass shootings. In fact, a Mother Jones report shows that rifles are not usually used for mass shootings. No, approximately 66% of mass shootings from 1982 to 2012 were carried out with semi automatic handguns. Even though they are only handguns, you might still be worried about the fact that they are semi automatic – however, this category of guns is incredibly pedestrian. Semi Automatic rifles and handguns account for the vast majority of firearm sales. Having a semiautomatic is like having a car with windows you don’t have to manually crank down. That’s how common they are, common enough that any ban on them would be immediately shut down under District of Columbia v. Heller. And they’re definitely not military grade.

Of course, you might say that, nevertheless, we should ban assault rifles like the AR-15 (which, for the record, AR stands for armalite rifle, not assault rifle). Well, would that do much? Probably not. Between 1982 and 2017, there were 108 mass shootings involving semi automatic handguns, shotguns, and/or revolvers. With rifles? 35. And some of those rifles weren’t even semiautomatic. In addition, if you look at some of the deadliest mass shootings in modern American history, there are quite a few mass shootings carried out with pistols, shotguns, revolvers, and even one involving a hammer (OK, the hammer wasn’t exactly deadly). If some deranged person is going to carry out a shooting – they will, even without AR-15s, and those incidents can be just as deadly, especially when cruelly planned out, like at Virginia Tech. In fact, discounting both Pulse and Las Vegas, where both the shooters had an immense advantage in that the victims were cornered and tightly packed, many of the deadlier mass shootings occurred without semiautomatic rifles.

Guns are also more often used defensively than offensively in violent crimes. In 2013, President Obama ordered research into gun violence, and in response, a committee at the Institute of Medicine and National Research Council reported that guns were used defensively at the very least as common as offensive used. According to the report, estimates vary from 500,000 to around 3 million. I tend to believe the higher numbers for two reasons: one, a previous survey carried out by the CDC in 1994 found that guns were used to “frighten away intruders” from Americans’ homes some 498,000 times, and because of population growth and the rise in gun ownership, I believe it is more logical that for home invasions alone, the number of defensive gun use should be higher. And two, many of the lowball estimates (especially one particularly atrocious study that stated “there were four unintentional shootings, seven criminal assaults or homicides, and 11 attempted or completed suicides” for every “every time a gun in the home was used in a self-defense or legally justifiable shooting”) do not include instances where guns are not fired but are only brandished, shown, or the aggressor has reason to believe that the victim has a gun. So, even beyond mass shootings, guns are generally advantageous for self-defense.

One potential solution for mass shootings and violent crime in general that always comes up is a complete assault weapons ban like the one in effect from 1994 to 2004. However, the effect of the ban is dubious at best. One researcher, Louis Klarevas, reignited the debate over an assault weapons ban by claiming that the ban led to a 37% decrease in mass shootings in the decade the ban was in effect (1994-2004) versus the decade prior. This statistic is one of the mainstays of the argument for another assault weapons ban. Which is unfortunate because it is complete malarkey. Klarevas uses a clever redefinition of “mass shooting” as a shooting where there are six or more victims other than the perpetrator rather than the conventional four. When his dataset is analyzed for mass shootings accounting for four victims or more – poof – the assault weapons ban had no ascertainable effect. Even when only counting mass shootings with six or more victims, the drop is almost entirely accounted for by handguns that weren’t even assault weapons. The conventional view that the assault ban did little to stop mass shootings – that is, conventional until Klarevas came around with his penchant for convenient redefinitions – turned out to be right.

Well how about an improved assault weapons ban? One improvement that has been suggested for the next hypothetical assault weapons ban is that it should close the loopholes present in the previous ban. Many of the criteria for banning the manufacture of guns were cosmetic and superficial and could easily be bypassed by buying other near-identical guns, simply without the ability to attach things like bayonet mounts or grenade launchers – and no, it does not seem likely that Feinstein had ever even handled a gun. So, to shut down these loopholes, any hypothetical future assault weapons ban would have to ban a far larger number of guns that could be customized – or a very large section of the gun market. However, there was another flaw in the assault weapons ban that would be much harder to fix: the original assault weapons ban grandfathered in weapons bought or possessed before the ban’s implementation. What this led to was a surge in purchases in assault weapons before the ban’s implementation and when all was said and done, millions of assault weapons remained in circulation. If you were to try to get semi automatic weapons banned from manufacture also out of circulation, it would best to actively buy back such firearms from the public. This is a common proposal for getting assault weapons, based on Australia or UK’s buyback program.

Also known as the programs that didn’t really work. According to Peter Reuter and Jenny Mouzos in their 2003 “Australia: A Massive Buyback of Low-Risk Guns”, in the years after various gun bans and buybacks in the UK, violent crime rates fluctuated and didn’t see a marked decrease, and neither did the percentage of homicides committed with guns. A more recent analysis of Australia’s policy effects was carried out by Simon Chapman, Philip Alpers, and Michael Jones in 2016 in their “Association Between Gun Law Reforms and Intentional Firearm Deaths in Australia, 1979-2013”. They did find firearm-related suicide and homicide rates accelerated their ongoing decline after Australia’s National Firearms Agreement (which instituted the buyback program) of 1996. However, non-firearm related suicides and homicides also decreased at a far greater rate. This observation caused the researchers to conclude that it was “not possible to determine whether the change in firearm deaths can be attributed to the gun law reforms.” For mass shootings, they found that there were 13 “mass shootings” from 1979 to 1996 and none afterwards. However, before you start rounding up guns for incineration, their definition and classification of mass shootings deserve a close inspection. First, they use the criterion that a mass shooting should have five or more victims. This is not the same as is conventional standard used in the United States (four or more). In addition, the study also includes familicides such as the Campsie murders (1981) where Fouad Daoud shot and killed five members of his immediate family, which is again, unconventional. If we lower the bar to the conventional standard of four or more victims and exclude familicides from the count, the decline in the number of mass shootings is … underwhelming.

Would a buyback program be any different in the United States? Well, policy experimentation on the state level says no. In Connecticut, legislation passed in April 2013 required owners of “military-style rifles” to register them with the state to exempt the weapons from an expanded assault weapons ban. By February of the next year, well after the deadline, only an estimated 15% of assault weapons in Connecticut had been registered. In New York, similar legislation in the SAFE Act made possibly up to 1 million law-abiding citizens criminals for choosing not to register their assault weapons. And if law-abiding citizens won’t even register their guns, will psychopaths give them up? In addition, we must also look at important distinctions between the United States and other countries like Australia and the UK that would make it harder to replicate such programs here. Both the UK and Australia are islands, so arms are harder to smuggle in, so the production and sale of guns are more easily controlled. Both countries also do not have large scale problems with integration and racial inequalities which have led to poverty and its fervent adherent, crime.

The UK presents an interesting comparison with the United States on violent crime, major differences notwithstanding. In 1997, Gary Kleck, a Florida State University criminologist determined that it was almost three times as likely for a “hot” burglary (a burglary where the home’s occupant is present, which is generally more dangerous) to occur in the UK as in the United States; when adjusted for different periods of time, the UK still had a higher rate of “hot” burglaries. One obvious explanation is that gun-ownership is lower in the UK, so burglars can break into homes with less fear of being shot. This is before the current rise in crime in the UK. Yes, it is hard to believe, but crime has been steadily rising in the UK over the past few years, especially in homicides and knife crime – which has led to the widely mocked move on the part of the London Mayor Sadiq Khan to ban knives. Now, if you go to London, be careful not to carry scissors or you’ll get a stern talking to and your weapon of mass destruction will get sent to the whammy. Only partly kidding. But, admittedly, this rise in crime may be because of the rapid downsizing in police forces across the country. Which leads me to think that perhaps, just maybe, crime rates are dependent on many factors and can’t accurately be compared across countries in order to push simplistic legislation that only ends up adding curriculum matter for law school students because of a whole sleuth of circumstantial and cultural differences between different countries. Perhaps.

But maybe a better solution in the United States would be less ambitious and rest on banning high capacity magazines. This would most probably not work. For example, the Parkland shooter only used magazines that could hold 10 rounds. And in 23 mass shootings between 1994 and 2013 where six or more people were killed/wounded and high capacity magazines were used, The Washington Post states that in only one instance was the shooter stopped while reloading and, in all incidents, the shooters had multiple guns and magazines. How about universal background checks? All gun purchasers from federally licensed gun dealers first have to undergo federal background checks. This does not include sellers who are not in the business of selling guns. For example, a father gifting a hunting rifle to his son does not need to require a background check. And gun collectors looking to get rid of some antiques do not need them either. This might seem troubling.

But looking at the kind of guns used in crimes, it is apparent that these private purchases are not the problem. In 2016, Anthony Fabio, an epidemiologist from Pittsburgh’s Graduate School of Health, studied the origins of criminal guns. He found that only 18% of guns involved in crime were legally bought and in the possession of the buyer. The other 79% were straw purchases or were stolen – increased background checks would help with neither straw purchases nor stolen guns. Note that most of these guns weren’t necessarily from much maligned private purchases but from theft and the black market. How about for mass shootings? Most perpetrators obtained them through background checks – rather flawed background checks that let in people like the shooters in Charleston, San Bernardino, Virginia Tech, Parkland, and Sutherland Springs, and expanded background checks would rarely help. And guns involved in crime are pretty much never bought in gun shows, so increasing the presence of background checks in gun shows wouldn’t help much either.

However, talk of background checks is barking up the right tree. There is existing legislation requiring background checks and other safety measures. They can be improved however, because evil people can get around flawed systems. For example, the shooter in Parkland was involved in dozens of incidents with the police and anonymous tips concerning him were sent to the FBI, yet nothing was done. And in Charleston, mishaps at the FBI allowed the shooter to get his weapons. In Fort Hood, it was inaction over obvious radicalization and communications with terrorists. In Sutherland Springs, the military failed to update federal databases with information which would have prevented the shooter from getting his guns. In San Bernardino, straw purchases of guns and possible modifications to the guns added to illegal actions committed by the terrorists and their associates. In Marysville, the shooter obtained the weapons from his father who was not supposed to have been able to buy them but was able to slip through because the background system was not updated.

Great plans for future legislation can be found in Arizona Governor Doug Ducey’s Safe Arizona Schools Action Plan. Instead of looking abroad, Governor Ducey looks to our own history and develops a plan based on facts. In his plan, he outlined the five deadliest school shootings: Virginia Tech, Sandy Hook, Marjory Stoneman Douglas, Columbine, and Umpqua, and how his proposals would have stopped these shootings. In all five incidents, the shooters showed some kind of warning signs which would have prompted action under a Severe Threat Order of Protection. In other states, these are called gun-violence restraining orders (GVROs) which can be filed by close relatives or those living with the defendant to prevent them from buying weapons. Governor Ducey also includes enhanced background checks in his plan, making sure information is promptly and properly uploaded into state and federal databases. Governor Ducey also includes school safety measures to raise police and school resource officer cooperation and training, create new state agencies and organizations aimed at making sure tips regarding school safety are properly processed and acted upon, and increase investment in mental health services. This is just a fraction of the proposals raised in Arizona which look at the facts and past experiences to develop smart policy.

In 10 states and D.C, there are laws requiring gun owners to report when their guns are stolen – this targets the aforementioned 79% of guns that were obtained through straw purchases or theft. This kind of legislation should be expanded to other states. Gun dealers that are repeatedly linked to gun crime should be investigated: according to The Washington Post, in 2000, the Bureau of Alcohol, Tobacco, and Firearms “found that in 1998, more than 85 percent of gun dealers had no guns used in crimes trace back to them. By contrast, 1 percent of dealers accounted for nearly 6 in 10 crime gun traces that year.” It would be amazing for violent crime rates if research and studies could be carried out relating to that 1%, and legal action could be taken against them, however, the Tiahrt Amendments passed in the appropriations bill of 2003 for the Department of Justice hinders this research from being carried out. A repeal of these amendments is in order.

At the federal level, meaningful action is taking place. For example, the Fix NICS Bill of 2017 implemented penalties for agencies not reporting information to the National Instant Criminal Background Check System, which will hopefully prevent another Sutherland Springs or Charleston. In the Justice Department, the much-maligned Jeff Sessions is making a difference. By issuing memoranda and directives to aggressively prosecute gun crimes, Attorney General Sessions has increased the number of prosecutions against those who lied on their background checks, people who unlawfully possess guns, and other gun crimes. These kinds of actions based on facts and reality will have meaningful outcomes than clickbait policies from abroad.

But, it must be asked, what kind of gun-rights argument do you usually hear? The argument about the 2nd Amendment. My views on the 2nd Amendment also influence my position on this topic in addition to the statistics and facts that I have mentioned.

First, what did the 2nd Amendment mean? The text reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Possibly the most contentious word in this statement is “militia”. What did it mean? Did it mean a military force organized by the state from a select group of citizens, or did it mean society as a whole? I contend the latter. George Mason, at the Convention in Virginia to ratify the constitution had a straightforward answer: “I ask, Who are the militia? They consist now of the whole people, except a few public officers.” Alexander Hamilton wrote in Federalist 29, “Little more can reasonably be aimed at with the respect to the [the discipline of the] people at large than to have them properly armed and equipped and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year” (emphasis mine). Today, training is still carried out to obtain a gun in many states, and many gun owners regularly train. But it is important to note two things: first, he is describing the people “at large”, that is, not in the organized state militias or any federal, standing army, but from the ranks of freemen; second, the low bar that he sets for training suggests again that this is not a highly regulated or disciplined militia/army, but a group of people that are first and foremost civilians, not soldiers. If there is any doubt remaining, Richard Henry Lee, another prominent Founding Father wrote in his 1788 Federal Farmer: An Additional Number of Letters to the Republican, “A militia, when properly formed, are in fact the people themselves” and “the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms.” It is made clear that the militia is not the National Guard or some organization like it but the whole body of the people. But, it is the whole body that is “organized, armed, and disciplined”, so regulations prohibiting arms from the mentally ill, criminals, or minors and the systems required to enforce them (such as background checks), as long as they do not hinder the people from being “armed”, are not only allowed, but required under Lee’s interpretation of the militia. This fits nicely with Lee’s belief later in the passage I am quoting from that the militia should be organized by the states – and for the most part today, it is, through required training, licenses, permits, and tons of paperwork. Lee’s interpretation of the militia is also in accordance with the views of other Founding Fathers like Samuel Adams, who said during the ratification debates in Massachusetts, “The Constitution shall never be construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms”. Obviously, restrictions on who can own guns is constitutional if they promote the discipline and efficiency of the militia.

If the militia is the whole body of the people, then what is its purpose? The primary purpose of protecting the right to bear arms for the whole people is self-defense, whether private or public. The militia is of course an instrument to protect the public from tyranny or foreign invasion but an oft overlooked aspect of the right of the whole body of people to bear arms is the ability to use arms for private self-defense, that is, defense of one’s property and life. Thomas Jefferson wrote in his Commonplace Book, “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man”, referring to Cesare Beccaria’s seminal work on criminology. Note that the danger that Jefferson points out of disarming the people, or the militia, is not of tyranny, but of assaults and homicides. The right to bear arms extends beyond the whole body of the people to the very individuals making it up. (For the record, the argument that criminals won’t follow laws is a concept invented not by the NRA but is a tenant of criminology from its birth.)

John Adams took a philosophical approach to the question of private self-defense. He wrote, “Resistance to sudden violence, for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps, I could not surrender if I would.” The most important thing to glean from this quote, and perhaps from this whole article is this: self-defense is an inalienable, God-given right based in natural law, our understanding of which has its foundations in the very pillars of American jurisprudence – biblical law, Greco-Roman law, and English common law. The right of self-defense was defended eloquently in Locke’s Second Treatise by pointing out that self-defense is a basic rule of the state of nature, and even when we are placed into society, we reserve that right when the law cannot help us due to exigent circumstances. The right to self-defense is not granted by the Bill of Rights but is a right granted by our Creator. It is not the invention of naïve, paranoid old white men. And it is certainly not antiquated. Never mind the Girandoni air rifle used by Lewis and Clark which could fire 22 times a minute, or the puckle gun, the precursor to the machine gun, or the Kalthoff repeater, or the Belton flintlock, or the fact the 18th Century was an age of invention and firearms and other technology were constantly being improved and the Founding Fathers were most certainly aware that future improvements would be made to firearms – the right to self-defense is eternal because it is innate to the eternal nature of man and the natural law that governs him. As long as passions for power and rule and dominion are found in the hearts of man, others will need the means to protect themselves.

We are just as fallible and given to our greed and vanity as our fathers and those of the 18th century. It is a common belief that we are somehow more moral than generations past, and that we would never give ourselves over to tyranny. It is an incredibly risky belief. I say that it is risky because I don’t buy into the common saying that power corrupts, and absolute power corrupts absolutely, but rather, I believe that we are already corrupted, and power only enables us to show our true colors with fewer repercussions – it is all that we and others can do to educate ourselves and build up our character so that when we are given power, we have the firm rectitude to resist the siren of power and pride. But we are not born that way. Humanity is always brutish at birth and must be civilized with age, and with every generation, there are those that do not learn morality. In every generation. Even in the modern age of the enlightened man. Our corrupt nature and our thirst for power and money is a parasite that has evolved with us, and therefore, our right to self-defense from assault, theft, homicide, and tyranny must never be given up for to face the unlikely threat of the greatest theft of freedom, tyranny, without the safeguard provided in the Second Amendment would be, in the words of Judge Kozinski, “a mistake a free people get to make only once.”

But let me end (I know, finally!) on a more practical note. Chief Justice Taney, in the court’s opinion on the Dred Scott decision discussed why the Southern states would have never entered the Union if blacks were also citizens based on the implications of citizenship for blacks. Among other rights, citizenship would have given blacks the right to “keep and carry arms wherever they went”. Because of course, you can’t control slaves who have guns. Even after blacks were given citizenship, white supremacists tried to control them. But with community, hard work, civil rights movements, eloquent pleas for justice by W.E.B. Dubois and others, guns were one way the oppressed fought back. Condoleezza Rice once was on The View, and she explained it this way: she had grown up in Birmingham, Alabama in the 1950s, and occasionally, the KKK would go through her neighborhood. Her father and his friends would get their guns and shoot in the air if any of the white supremacists tried to go through their part of the neighborhood to protect their property and families. My point with both of these examples is that the right to self-defense wasn’t only needed in the 1770s but in the 1950s and even today. For however long people are lustful for power, are hateful, or are greedy, we will need that right. In that context, maybe you can see why I am worried when I see signs saying, “I wish Obama had taken your guns.”

Someone once said that democracy would not die because of others but because of us. That is, through suicide. So, when I hear the rhetoric about gun control and gun rights today, I fear that we are only just picking up the pace, starting to run and soon to sprint towards that edge of the bridge from whence is no return. And when we hurl ourselves over the edge, finally (oh how dreadfully long it took because of antiquated tradition, but now free as the birds flying up to the heavens!) free from the concrete ground that held us down (but did it actually hold us up?), we will think to ourselves how clever we are, how humane we are, how much we cared for the children (but think of the children!) and we will fancy ourselves enlightened – but as we cast our eyes down to survey the watery grave that we have thrust ourselves toward, alien because we thought not to look before we leaped, our smugness will fade away, seconds before impact.

 

And who is at fault? Who should be charged? It will not be insidious foreign forces on Facebook, nor will the fault be in the stars that chart our fates, but in ourselves.

 

Where is the next-of-kin? Who is the widow? Was there a will prepared? No, but we will leave behind no one to carry the torch if the last best hope of the world is dashed to the ground.

 

Don’t be fooled. Liberty is not a cat. We only have one life to lose, one grave to gain.

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