Tag: gun control

Tip Your Hat to Government

This is not a story from The Onion

The Associated Press reports that a school in Rhode Island prohibited eight-year-old David Morales from wearing a hat that he decorated with toy soldiers that…gasp…had tiny little plastic weapons. According to school administrators, the hat violates a “no weapons” policy.

Here’s the relevant section of the report:

Christan Morales said her son just wanted to honor American troops when he wore a hat to school decorated with an American flag and small plastic Army figures. But the school banned the hat because it ran afoul of the district’s zero-tolerance weapons policy. Why? The toy soldiers were carrying tiny guns. “His teacher called and said it wasn’t appropriate,” Morales said. Morales’ 8-year-old son, David, had been assigned to make a hat for the day when his second-grade class would meet their pen pals from another school. She and her son came up with an idea to add patriotic decorations to a camouflage hat. Earlier this week, after the hat was banned, the principal at the Tiogue School in Coventry told the family that the hat would be fine if David replaced the Army men holding weapons with ones that didn’t have any, according to Superintendent Kenneth R. Di Pietro.

I’m not sure what to say about this, other than to link to Neal’s PA.

Open Carry Victory

As I previously noted, one of the areas where enforcement of the right to keep and bear arms will impact states and localities is in the carrying of handguns, either open or concealed. Until then, handgun carry proponents will be forced to comply with state laws that mandate open carry where concealed handgun permits are not issued or are only issued to those who happen to have fame, money, or political connections.

Wisconsin is one of two states with no provision for concealed carry (Illinois is the other). Frank Hannon-Rock, a member of Wisconsin Carry, a pro-gun rights organization, was arrested for open carrying on his front porch. He filed suit and was recently awarded $10,000 by a federal district court.

This parallels (but does not equal) the experience of Danladi Moore, an open carry advocate in Virginia who has been harassed repeatedly by Norfolk police. Moore’s case is worse; he is black, and police behavior took a predictable turn:

Danladi Moore – whom the city paid $10,000 in July to avoid litigation after being stopped by police for suspected weapons violations – was charged with trespassing at the downtown entertainment complex Tuesday night…

Moore said a friend who was with him at Waterside also was carrying a gun and also had challenged police when asked to leave. He said his friend, who is white, was not charged.

Given the racist origins of gun control and the positive role that firearms played in the civil rights movement, you would think that this sort of thing would be frowned upon.

Gun Control After McDonald

I recently appeared on the Patt Morrison Show in southern California opposite Paul Helmke of the Brady Campaign to Prevent Gun Violence in a segment that begs the question of what gun control laws will look like if the Supreme Court incorporates the Second Amendment with the McDonald v. Chicago case. The audio of the program is here, but the issue merits a more detailed discussion than I could get into on the radio.

The litigation over the boundaries of the Second Amendment in the District of Columbia previews the kinds of gun laws that will face court scrutiny.

First, certain restrictions on the purchase of firearms will likely be overturned. California maintains a “safe gun roster” of handguns that manufacturers have successfully submitted for safety testing. Following the Heller decision, the District adopted California’s roster. The roster is very specific, and handgun models are certified “safe” right down to the color. The District rejected applications to register two-tone guns, discontinued models, and guns not on the California roster. Three plaintiffs filed suit, alleging that this policy violated constitutional protections against irrational administrative regulations. The District relented, expanding its roster to include the “safe handguns” listings for Maryland and Massachusetts.

California courts are likely to reach similar conclusions. The Calguns Foundation has a plaintiff who wants to register a Glock handgun. The state has certified the right-handed but not the ambidextrous version, and the Calguns plaintiff was born without a right arm below the elbow. This compelling case, along with others parallel to the DC plaintiffs, will force California to open up its roster.

Second, jurisdictions will be forced to allow some form of handgun carry, either open or concealed. Outright bans on concealed carry cited in cases from the mid-1800’s come from a time when it was assumed that only brigands carried handguns concealed, and it was an unquestioned right of the people to carry arms openly wherever they went. States and localities will not be able to delete the right to bear arms from the right to keep and bear arms.

My colleague Tom Palmer is currently litigating this issue in the District of Columbia (complaint here), and states will have to confront the plain text of the Second Amendment and clear historical recognition of a right to be armed outside the home.

California allows open carry as long as the handgun is unloaded, but Los Angeles and other jurisdictions in the state refuse to issue concealed handgun permits. California will probably opt for concealed carry when push comes to shove. Public views have shifted to an “out of sight, out of mind” mentality, and concealed carry is the rule in most states. A California police officer recently put a comment up on Facebook that proposes intimidating open carriers with violence. “Haha, we had one guy last week try to do it! He got proned out and reminded where he was at and that turds will jack him for his gun in a heartbeat!” Turds indeed.

This brings us back to the Starbucks controversy that prompted the radio segment. Gun control proponents asked Starbucks to ban firearms from their coffee shops, and gun rights activists asked that they continue their current policy of following the law of the jurisdiction where each franchise is located.

The call-ins to the radio show expressed a willingness to boycott Starbucks if it keeps its “follow the law” policy, but that’s a rationale to boycott gas stations, grocery stores, and restaurants across the nation. If self-defense scares you that much, the best advice is to stay home. Or venture out and be a good victim.

Callers also expressed concerns about off-duty cops brandishing guns while intoxicated, and this is something we should take seriously. As I’ve said before, no magical powers accrue to a sworn officer. That’s a great case for barring everyone from carrying and drinking in public, law enforcement officers included. Federal law does this – the Law Enforcement Officers Safety Act allows current and retired law enforcement officers to carry concealed nationwide but requires that they not be under the influence while doing so. The same can’t be said for some state laws that make law enforcement officers a higher class of citizens than everyone else. Virginia allows retired law enforcement officers from any jurisdiction to imbibe while armed, but citizens with concealed handgun permits must transition from concealed carry to open carry when entering an establishment that serves alcohol for on-premises consumption. Better to treat permit holders and officers alike, and allow carry in restaurants but bar alcohol consumption while armed.

It’s unclear what the patchwork of gun laws across the nation will look like in ten years, but Eugene Volokh gives a framework for analysis in this article. Cato held an event the day before oral argument of the McDonald case, and our brief is available here. Ilya Shapiro and Josh Blackman discussed the application of the Privileges or Immunities Clause in this excellent article, and provided some post-argument commentary.

The John Yoo Theory of Gun Control

A modest proposal: Suppose that we decide to streamline our inefficient criminal justice system by treating people under suspicion of involvement with violent crime—whether or not they’ve been arrested, charged, or even informed of this suspicion—as equivalent to convicted felons.  Suppose, then, that we permit them to be stripped of certain constitutionally protected rights at the discretion of the executive branch.

Outrageous?  Some depraved brainchild of the Bush administration’s Office of Legal Counsel?  Actually, it’s the editorial position of The New York Times:

Under federal law, people who pose a heightened risk of violence cannot buy or own firearms, including convicted felons, domestic abusers, the seriously mentally ill and several other categories. Suspected terrorist is not one them.

Individuals on the government’s terrorist watch list can be barred from boarding airplanes, but not from purchasing high-powered guns or explosives. Bipartisan legislation in both houses of Congress would end this ridiculous loophole, commonly known as the “terror gap.

The Times does note, before dismissing the fact with the wave of a hand, that “thousands” of people have been found to be on the list improperly.  But let’s linger a bit longer over this.  The terrorist watch list, at last count, boasted about a million entries.  When you eliminate variant spellings and duplicate entries—and rest assured that this would be another enormous source of problems—there are about 400,000 unique individuals on the list, of whom some 20,000 are Americans. Thousands more are nominated for inclusion on the list each week.

Employ, for a moment, some common sense and arithmetic. The 9/11 attacks were carried out by 19 people. (I should add: 19 people armed with box cutters.) If even one percent of those 20,000 were truly intent on staging violent domestic attacks, doesn’t it seem likely we would have noticed? To be sure, some small subset of them really are serious threats. They are probably the very people the government is actively investigating, and would prefer not to tip off by, say, having their attempted gun purchases denied.

There’s also, of course, an almost heartwarming faith in formal process here.  I can imagine circumstances where blocking someone at a point of sale might prevent bloodshed—some guy in the heat of passion or the haze of liquor acting on impulse to settle a score. But trained and fanatically committed terrorists, backed by the resources of an international network, who typically spend months or even years plotting significant operations? Are they serious? How does that conversation go? “No, no, I’m sorry Osama.  Yes, the Wal-Mart clerk, she would not sell us a pistol! I know, and after Ayman went to all that trouble making our fake passports by hand. I was disappointed too.  But I guess we’d better scrap the plan and head back to Yemen.”

What the other categories of “risky” people the Times lists have in common is  that they’ve been determined to be dangerous by a court, which is normally the process by which we go about depriving people of their rights. It seems perverse to depart from that principle precisely for the category of suspects least likely to be hampered by these sorts of limitations.

Chapman on Chicago Pols and Guns

Steve Chapman has another terrific column – this one about gun regulations and the tendency of politicians to exempt themselves from such regulations – for the public good, of course.  Here’s an excerpt:

Roland Burris, another Chicagoan, has endorsed a nationwide ban on handguns and, in 1993, organized Chicago’s first Gun Turn-in Day. But the following year, while running unsuccessfully for governor, he admitted he owned a handgun – “for protection,” he explained – and hadn’t seen fit to turn it in along with those other firearms. Lesser mortals apparently can protect themselves with forks and spoons.

The Supreme Court will soon be hearing an important case about Chicago’s firearm regulations and the right to keep and bear arms.  Cato just filed an amicus brief (pdf) in that case.

Also, persons interested in this subject should know that Cato associate policy analyst David Kopel has a new book just out.

For additional Cato work, go here.

Beyond Parody

A former soldier in England has been arrested and convicted (and may even go to jail for five years) because he found a gun in his yard and he turned it over to the police. I presume this is in part a reflection of the anti-gun ideology embedded in UK law, but don’t prosecutors and judges have even a shred of discretion to avoid foolish prosecutions and/or protect innocent people from absurd charges? Here is the news report:

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for “doing his duty”. Paul Clarke, 27, was found guilty of possessing a firearm at Guildford Crown Court on Tuesday – after finding the gun and handing it personally to police officers on March 20 this year. The jury took 20 minutes to make its conviction, and Mr Clarke now faces a minimum of five year’s imprisonment for handing in the weapon. In a statement read out in court, Mr Clarke said: “I didn’t think for one moment I would be arrested.”

… The court heard how Mr Clarke was on the balcony of his home in Nailsworth Crescent, Merstham, when he spotted a black bin liner at the bottom of his garden. In his statement, he said: “I took it indoors and inside found a shorn-off shotgun and two cartridges. “I didn’t know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him. “At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall.” Mr Clarke was then arrested immediately for possession of a firearm at Reigate police station, and taken to the cells.

… Prosecuting, Brian Stalk, explained to the jury that possession of a firearm was a “strict liability” charge – therefore Mr Clarke’s allegedly honest intent was irrelevant. Just by having the gun in his possession he was guilty of the charge, and has no defence in law against it, he added.

… Judge Christopher Critchlow said: “This is an unusual case, but in law there is no dispute that Mr Clarke has no defence to this charge. “The intention of anybody possessing a firearm is irrelevant.”

The Search for Answers in Fort Hood

The country is unpacking the recent shooting at Fort Hood and analyzing the perpetrator intensely. Along with natural shock and curiosity, a principle reason for doing so is to discover what can prevent incidents like this in the future.

When faced with any risk, including rampaging gunmen, there are four options:

  • Prevention—the alteration of the target or its circumstances to diminish the risk of the bad thing happening.
  • Interdiction—any confrontation with, or influence exerted on, an attacker to eliminate or limit its movement toward causing harm.
  • Mitigation—preparation so that, in the event of the bad thing happening, its consequences are reduced.
  • Acceptance—a rational alternative often chosen when the threat has low probability, low consequence, or both.

(There is much more to risk management, of course. This handy simplification is taken from the DHS Privacy Committee’s “framework” document.)

Taking the facts as they appear now, what lessons can we take from Fort Hood that will help protect military forces and facilities, and the country in general? Let’s go through some of them option-by-option:

Prevention: What circumstances at Fort Hood and elsewhere could be altered to prevent this ever happening again? An obvious one is gun control—if there were no guns, there could be no shooting. But this prescription is complicated by the intrusions on individual rights required to implement it. Depriving citizens of arms directly violates the Second Amendment, and effectively enforcing a gun control regime would almost certainly violate the Fourth.

Removing guns from specific locations might be more palatable and achievable, but gun rampages do not restrict themselves to restricted areas, and widespread possession of guns by law-abiding citizens is an important form of interdiction. Indeed, appropriate gun violence was the interdiction that ultimately stopped further bloodshed.

Interdiction: What steps can be taken against attackers to limit their progress toward causing harm? This is a confounding option because learning what this attack looked like as an embryo won’t tell us what the next one will look like.

Thousands of people are like Nidal Hasan in one respect or another, but they will never commit any attack. There are thousands of people with turmoil or mental illness similar to his, for example. There are thousands of military servicemembers with doubts about U.S. policies. There are thousands of Muslims in the military (whose contributions are highly valuable). There are thousands of people who have investigated or sought contact with Al Qaeda.

If the conclusion from Fort Hood were that all people who share certain traits should be investigated/interdicted, this would violate fundamental rights and values while it wasted investigators’ time: Who is troubled enough in their minds, doubtful enough of U.S. foreign policy, etc. Whose contacts with Al Qaeda or jihadi Web sites indicate a desire to perpetrate bad acts and not curiosity or enmity?

Sending investigators into this quagmire would only work as a salve until some future rampage arose from another unique set of circumstances. We would be no safer for having investigated all who were “like” Nidal Hasan in the ways we decide are material.

Mitigation: I have seen no indication that the facilities and staff of Fort Hood were ill-equipped to deal with the results of this violence. There may be marginal ways they could improve—there always are—but medical services can’t be available everywhere always. There is little prescription for change here.

Acceptance: With the confounding difficulty of prevention and interdiction before us, this option rises a little bit in currency. Television news and commentary may make it feel differently to many people, but there is a very low probability of shootings like this happening. The costs of preventing and interdicting such violence is very high. This is a candidate for “acceptance.”

Acceptance is the least “acceptable” option, of course. Nobody thinks it is ‘ok’ for this kind of thing to happen. But like so many tragedies—indeed, part and parcel of tragedy—it is the loss of innocent life for no good reason.

Fort Hood presents the country with a choice: Invest extraordinary efforts in measures that cost a great deal, that invade prized rights, and that don’t work? Or show our sorrow to the families and community of Fort Hood and make peace with the grief and tragedy of this incident.