Arizona Legislators are pushing to pass a new gun law that would allow students and professors to carry guns on campus.  I think this is a very bad idea and I have previously listed out the pragmatic reasoning behind this decision.

  • statistics show that gun deaths per capita in AZ have risen each time the state legislature has decreased gun ownership requirements such as training, and permitting
  • people with guns have the ability to kill more people in a shorter period of time than with any other commonly available weapon (whether it is used on purpose or by accident)
  • untrained owners often do more damage than good with their guns…if you’re house is invaded and you don’t regularly practice with your weapon AND have experience with personal defense (i.e., how to break someone’s hold on your gun or gun arm), odds are it will be taken away from you and used against you.
  • high school and college age people tend to be more criminally active and more violent than any other age group
  • high school and college age people tend to be more likely to experience the onset of serious mental illnesses that often result in violent, deviant behavior against others

If you’ve read my previous posts on Gun Control (here is another post), you know that I feel very strongly about this issue.  But, there is something that needs to be said before I begin my diatribe on state efforts to push the boundaries on what is acceptable in regards to gun ownership.

I believe the Constitution is very, very clear on the right to bear arms.  I have come to this conclusion after many years of careful reading and consideration.  I believe we have the right to own guns.  On the other hand, none of our rights are so absolute that there aren’t limitations on them.  For example, we have the right to freedom of speech but we don’t have the right to yell “fire” in a crowded theater.  The limitation was put in place by the Judicial Branch (the courts, state and federal legislatures) and it is enforced by the Executive Branch (the state, local and federal police).   Likewise I believe there should be limits on gun ownership also put in place by those same actors and for the same reasons.  The reasons used by Courts rely on the “reasonable person standard” and the concept of “duty of care” within that standard (the most cited legal standard for determining a failure to exercise due care) .

Unfortunately, too many people in the U.S. believe there should be no restrictions on gun ownership whatsoever or believe that those restrictions should be minimal.  I often hear this argument from Libertarians…that we have no obligations to our fellow citizens…not even to our neighbors.  I disagree because the legal precedence of the U.S. disagrees, actual historical practices within the U.S. disagree, practical and theoretical ethics disagrees, and most major religions disagree.  That’s a whole lot of precedence against some very stubborn Libertarians.

We have some “duty of care” at a bare minimum to our neighbors if not to all other citizens of the U.S.1.  Since no restrictions whatsoever violates the perfectly reasonable expectation of  people to take “due care” when dealing with others in our society, I am not even going to entertain this notion2  If we limit other rights using this standard, we should be able to limit gun ownership rights for the same reasons as well.

Now let’s address those that argue minimal limitation is preferrable.  I actually agree that we should only allow minimal limitations on any right.  We have an entire system, our grand experiment as the Founding Fathers called it, to create those limits, test those limits, adjudicate them if they are too strict and/or don’t work properly, etc.  It’s not a perfect system but its the best system in the world (IMHO).

The problem is what we define as a society as minimal.  The country needs to ask ourselves some hard questions.  Do we let the innocent die in order to ensure the right is upheld?  We do this with other rights, do we not?  Here’s an example.  There are many people who spew hatred and bigotry against minorities in speech and in writing.  There are individuals, some criminally insane and others who are not, who are inspired by or bolstered by these words and commit violent crimes against minorities.  Does the government then stop that “freedom to speak”?  No.  The radio hosts, hate groups, anyone who can reach the public en masse are allowed to continue to speak, demonstrate with a permit, recruit and engage in any free speech and free association allowed by the Constitution so long as they ‘do nothing (no act) in furtherance’ or ‘do not encourage specific acts to someone planning or in the commission of a crime’3.  So we as a society have made this choice with freedom of speech.  A reasonable person living in our society, in this time would probably say that it IS reasonable to allow people to own guns even if the innocent are unfortunately killed but that it is also reasonable to limitations of some sort.

With that in mind, is there a “reasonable” standard that can be applied to the limitations?  In other words, what would be considered as reasonable and acceptable limitations on gun ownership?  In my research I have found studies that show there is a link between the failure to ensure training often results in an increase of accidental shootings.  If this is found to be accurate, it would reasonable to require users to receive training (and we should want to ensure that it is proper training, so certification is also reasonable to achieve that assurance). Most states do require a basic user course to be completed when a person first purchases a weapon and applies for a permit to carry.  Arizona on the other hand has reduced (and legislators are continuing to try to reduce) the requirements for owners to get trained on the use of firearms before they own them AND carry them around in our communities. Arizona, therefore, is outside the norm on this issue.

We’ve had on the books (note this is on a state by state basis and Federal law applies to federal crimes) now for quite some time a restriction on who can own a weapon in regards to criminal history.  In general someone who has committed a felony cannot afterward own a firearm.  Variations include restrictions on anyone who committed a violent crime against a law enforcement officer or was convicted of a crime of domestic violence.  Federally, felons do have the  ability to ask to have the right to own a gun restored and there may be a process in the individual states.  The reasoning behind this is that someone with a history of violence is more likely to use a gun in a violent situation in future.  Is this a reasonable assumption?  I’m not sure.  Not all felonies are violent crimes.  Someone convicted of bad check writing isn’t likely to use a gun to commit a future crime.  However, someone who has a long history of misdemeanors could be incredibly dangerous if given a weapon.  Given this kind of analysis, a reasonable person might say that anyone with a violent past, i.e., convicted of a violent felony offense or any domestic violence offense or any violent offense against a LEO) should not be allowed to own a gun.  That seems reasonable to me but would it to others?4

What about age or mental disability, i.e., the incompetent?  Currently in the U.S. a “reasonable person” would say that anyone who is not considered a “legal adult” (i.e., a person capable of understanding his/her rights and capable of exercising their rights and exercising “due care” in compliance with the law) should not be able to own a gun.  People 17 or younger are universally considered (in the U.S.) as being underage and therefore not a fully cognizant and responsible adult. That being the case, an underage person is not allowed to own a gun.  The adult who is responsible for that underage person is expected to be the one who can own a gun and supervise the “child” when using said gun.  Moreover anyone who is criminally insane (unaware that the nature and consequences of their action is wrong/illegal) should not be able to own a gun.5 This has been deemed a reasonable exclusion in most states.

In Arizona, currently the laws do exclude these individuals:  the mentally ill or mentally impaired who are a danger to themselves or others, felons, the incarcerated, those on probation, any juvenile declared delinquent who had also used a firearm within 10 years, anyone underage who is not accompanied by a guardian or certified instructor.  Children are actually allowed to buy or be given a firearm if the parent gives written consent in Arizona.6   If someone wants to shoot a gun at a store firing range, the store’s gun dealer does not have to do a background check. As a gun dealer that would make me pretty nervous, but if they are okay with it, that’s their business. I just hope no one ever walks out of a gun dealers shop after firing on the range without going through a proper background check.  And finally, in most states the ability to carry concealed was considered more serious and required a separate permit from carrying in general.  In Arizona, Senate Bill 11087 was signed into law in 2010 and allows anyone over 21 to carry a weapon concealed upon their person without a permit.8 Now this is okay if they bought their gun properly through a reputable dealer. However, if they bought their gun at a gun show, using a lovely little loophole which I explain below, then no background check is completed and now we have someone who is potentially unsuited to carry a weapon and they are carrying it concealed. The only “limitation” in the Bill was that if asked by a LEO if they were carrying a weapon, the person MUST respond truthfully. From my own experience as a LEO, by the time you ask the question, if the person being questioned intends to do you harm, it is too damn late. So that clause in the law only works with law-abiding citizens who were never going to be a problem in the first place.

Now, lets consider the problem of trying to actually weed out people who should be excluded (as described in paragraph 9 above).  How does that happen?  The practice has been to require that gun dealers be licensed by the government and that only those individuals can sell guns.  Furthermore, the gun dealers have a responsibility to sell guns to people who do not fall into any of the excluded categories (it is a crime for them to sell to any excluded person).  However, there is one big loophole in this process.  Anyone can sell a gun at a gun show–dealer or not and those unlicensed sellers do not complete background checks.9  Only six states (California, Colorado, Illinois, New York, Oregon and Rhode Island) require anyone selling a gun to do a background check regardless of whether they are a licensed gun dealer.

The process of verifying that someone doesn’t fall into those categories is also an important point in the debate.  Gun dealers perform a standard background check, which has been relatively successful.  It can take as long as 2 hours to complete one but in most cases only takes a couple of minutes (I should know–I used to do them).  Why is that so offensive to many gun nuts in this country? Is waiting two hours too much if it guarantees someone else’s safety? Is it so burdensome as to be unreasonable? I don’t think any court in the land would consider that unreasonable. Now there are waiting periods in some states..the longest seeming to be in California (10 days) and the shortest was 24 hours in Illinois.10 What’s the point of the waiting period? To give LEO’s enough time to complete a background check. In this matter, there are two ways to look at it…having been a LEO, I know it only takes a few minutes to run the computer check against state, local and federal criminal databases. But that’s the minimum someone should do. To do a FULL background check, where you check state and county hospital records (which often are not connected to LEO databases or accessible from LEO networks) and you check a person’s residence, family, neighbors, etc. it would take weeks. In reality a FULL background check is simply not possible for every weapon purchased. The cursory database check will have to do.11 So from this perspective waiting periods are not “reasonable” IMHO. However the other reason, waiting for someone to cool off to guard against “impulsive acts” makes sense. In most cases, with your average person 24 to 48 hours should be sufficient. If someone can maintain their fury for multiple days until they get a gun, one would have to think that that kind of person might find a way to commit a violent act no matter what. Again, longer than that might be capable of being overturned as  “unreasonable”. But again, I am sure that Libertarians will argue that it is not the job of the government to protect us from ourselves (i.e., helmet laws, seat belt laws, etc). My answer to that is that we have accepted the government’s role in protecting us from those “who are a danger to themselves and others” in regard to the mentally ill, why not in regards to the impulsive and foolish?

Ultimately, when I add the numbers into the equation the “reasonableness” of limitations is further strengthened. Studies have found that the percentage of guns used by juveniles that were bought through gun shows and flea markets accounts for 10% of crimes.  Another study completed in 1999 found that 26,000 violent crimes were committed in the U.S. with guns bought at gun shows and flea markets. That’s a lot of crimes…particularly if you realize that on average every year we see about 100,000 people injured or killed with guns in the U.S.12 That’s one-fourth of that total….if we can stop the injury or death of 25,000 people a year preventing illegal gun purchases isn’t that worth it? Can you say that 25,000 lives every year isn’t worth REASONABLE limitations on a Constitutional right? Furthermore, requiring education (and thus permitting) would save even more lives. Can anyone explain to me why those are considered unreasonable limitations on this right? To date, none have offered a decent argument. I suspect I will always be waiting and that it won’t make a difference in Arizona anyway. The right to bear arms is treated as practically absolute and is being established as more so every day. Even now the state GOP is trying to push through legislation that would allow guns on campuses. The motto here is let people sort it out for themselves and innocent bystanders be damned. Any discussion by reasonable people about reasonable limitations on the right to bear arms is never entertained.

Notes:

1. You can argue this point with me and I’d accept either conclusion but that we have NO “duty of care” to anyone outside our immediate family?  No, that’s absurd and completely impractical.

2. BTW, this is why I often call Libertarians, Glibertarians.  Because they are indifferent to how their actions might affect others.  From a strictly ethical standpoint, consequences matter.  And even if you don’t directly do something wrong, the consequences of things you have set in motion matter IF you could have predicted them.  This is the same argument that I have made and will continue to make against any and all Libertarian policy suggestions that will result in foreseeable and probable bad outcomes.  Here’s an example where I took on Ron Paul’s suggestions last week.

3. Do these people and groups spewing hate speech get shut down anyway?  Sometimes, but NOT by the government directly or indirectly.  Social approbation and private efforts against someone or some group has no bearing on this conversation UNLESS they too violate Constitutional standards.   And that’s as it should be.

4. Again not taking into account people who think any and all limitations are not constitutional

5. Here’s a sticky point…we often don’t know someone is full-blown psychotic or truly mentally insane until they have behaved in some fashion that brings them to our notice.  If an adult is a ward of the state (or a ward of  anyone else for that matter) due to mental illness or mental impairment they are presumed to be ‘incompetent’ and therefore should not own a gun.   However, we have fewer government-run facilities to house these individuals and have found that too many become homeless (and therefore off the grid) or are being unsuccessfully monitored and cared for by their families.  This second type of mentally incompetent adult, one who is mentally ill and being poorly cared for by the family, is the kind of situation that can lead to tragedy as was the case with the Tucson shooting of 6 innocent people, one of whom was an Arizona Congressional Representative, Gabrielle Giffords. How do we deal with this? Shouldn’t we be discussing this instead of listening to the unreasonable among us who only say “NO” to anything having to do with gun control?

6. I think this is nuts….no child should own a weapon…the parents owns it and lets the child use it with supervision. http://www.ojjdp.gov/pubs/reform/ch2_d.html  My child can’t remember to put her shoes in her room…I could just see some kid leaving their gun out for a younger sibling to find. My 8-year-old can’t control her impulses….what if she has access to that gun while unsupervised by an adult? Do we hold that adult accountable? Again, another very important conversation we should be having. In Arizona the parents are only civilly liable if their child injures someone or their property on purpose. There are also laws on the books (I believe) in Arizona that penalize the parents with misdemeanors if their supervision is negligent or improper. How many times has a child gotten a hold of a gun that was improperly stored and killed someone. Is a misdemeanor enough? Again, this is a conversation that needs to occur.

7. http://www.azcentral.com/news/election/azelections/articles/2010/04/16/20100416arizona-concealed-weapons-bill16-ON.html

8. There may be some restrictions that I haven’t mentioned…such as declaring anything over a certain length of barrel (26 in ?), assault weapons (defined as repeated firing with a single trigger action, ie, automatics),  silencers, etc.

9. http://www.csgv.org/issues-and-campaigns/gun-show-loophole/gun-show-loophole-faq

10. http://www.lcav.org/content/waiting_periods.pdf

11. Therefore the onus of improving those databases is on Law Enforcement–they need to get their sh*t together and improve data sharing–something I have advocated and actually worked on professionally, off and on, my entire working life. I also should note that libertarians that are worried about how easy it is for the Law to investigate someone….don’t really understand just how far behind the eight ball law enforcement agencies are in regards to data entry and error checking, sharing data across jurisdictions, the use of legacy technology, etc. To date, in my professional opinion, only the NSA and private industry are anywhere near to being a danger to the average citizen in their computerized information resources. Although I have to say the FBI’s use of Carnivore in surveillance against U.S. citizens since 9/11 has been worrisome to both liberals and conservatives–and it should worry us all.

12. http://www.bradycampaign.org/facts/gunviolence?s=1

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