The Great Debate: No Cow-Tipping Allowed

At Overlawyered, Walter Olson sees the curiosity of the post Newtown massacre debate much as I do.  On twitter, he coins a great word, blamestorming :

Who to blame after a freak atrocity? For many of those who’ve felt obliged to comment, the question seems rather who not to blame.

Walter then provides a laundry list of articles and posts contending why the author’s sacred cows aren’t responsible. 

My sense of awe was raised by my good pal Eugene Volokh’s 47 posts since the Newtown shooting about why guns were not the problem.  Now I understand that Eugene is a gun guy, and as such, combined with being a very sharp cookie, immediately recognized the enormous pressure that would come from the tragedy on firearms, and hence the need for both immediate and constant argument as to why taking any action with regard to weapons was fundamentally misguided.  After all, pound the table enough and everybody will eventually see your wisdom.

The point hit home when Eugene finally, finally, turned from writing posts about why any attempt at impacting gun rights would both fail and bring about the end of civilization, and instead asked the question, so what are we going to do about it?

After the Sandy Hook school shooting, as well as after other shootings, those of us who are skeptical about gun controls are often asked: So what are we suggesting should be done about the shootings? If we’re not suggesting gun controls (as opposed to proposals such as allowing teachers to be armed, increased concealed carry rights outside schools, providing school guards, and the like), the argument goes, we’re not taking gun tragedies seriously.

Now I generally don’t support the “don’t just stand there, do something” school of criminal law. When all the proposals seem likely not to work, or do more harm than good, implementing one of them for the sake of “doing something” strikes me as a mistake.

Nothing?  That’s it?  If there is no magic bullet (get it?) solution to such tragedies, we throw up out hands and walk away?

But let me offer a concrete analogy (recognizing that, as with all analogies, it’s analogous and not identical). Every day, about 30 to 35 people are killed in the U.S. in gun homicides or gun accidents (not counting gun suicides or self-inflicted accidental shootings). And every day, likely about 30 to 35 people are killed in homicides where the killer was under the influence of alcohol, or in alcohol-related drunk driving accidents…

So what are we going to do about it? When are we going to ban alcohol? When are we going to institute more common-sense alcohol control measures?

Well, we tried, and the conventional wisdom is that the cure was worse than the disease — which is why we went back to a system where alcohol is pretty freely available, despite the harm it causes.

So his solution to the murder of 20 children is to ban alcohol?  No, you dolt. Eugene is drawing an analogy to show the hypocrisy of our concern over the deaths of children and the failure of prohibition.  His solution, thus, is to not ban guns. See what he did there?

We should certainly consider proposals that aim to ameliorate the problem, and weigh their costs and benefits. But we should not presume that there’s somehow a moral imperative to Do Something. In fact, there’s a moral imperative not to do something that’s likely to make matters worse.

As one who regularly cautions against knee-jerk, simplistic responses to tragedy, I can well appreciate Eugene’s message.  But then, there is this nagging sense that the discussion has little to do with coming up with rational changes that might alleviate the potential for “freak atrocities” so that nobody messes with stuff we like to do. 

Though I’m not a gun guy, and have no interest whatsoever of packing heat as I stroll down the street, and have no desire to have others strolling down the street with their weapon strapped to their ankle just in case, the arguments proffered by those who disagree with me are not unreasonable or unsupported.  One of the most difficult point raised is that, given the Heller decision, the right to keep and bear arms is a fundamental, personal right. 

Whether I could have slept just as well at night had the Supreme Court come out the other way on Heller, I very much appreciate the fact that the right is established in law, and that I cannot rationally promote respect for only those constitutional amendments I like while advocating against those that didn’t match my personal tastes,  Hooray for the first, fourth, fifth and sixth, but screw the second?  If I took that position, I would be shooting blanks.  For those who adore the second but couldn’t care less about the others, the same it true.

Yet, none of this leads to anything remotely suggesting something worth doing. While I can understand and appreciate Eugene’s admonition not to make matters worse, I hesitate to believe that we’ve exhausted all rational thinking and have reached the point where we throw up our hands and walk away.  Sure, there are crazies making loud, stupid noises all over the place.  Plenty of gun guys are cringing at the mere mention of Wayne LaPierre, who has brought more embarrassment on gun ownership than Jim Brady.

But we’re no closer to a worthwhile discussion of things that can be done to improve safety without sacrificing rights or making things worse.  It’s not because there is no fix, no tweak, no limitation that can make things better, but that too many of the thoughtful people, like Eugene Volokh, are spending all their time and capital shifting blame away from their beloved sacred cows.

Unless and until we start to consider things that can be done, nothing will change. It’s possible that nothing should change, but we can only know that after all the screaming and blaming stops, and people start putting their efforts toward something more useful than marshalling the arguments to save their favorite things.


10 comments on “The Great Debate: No Cow-Tipping Allowed

  1. BL1Y

    Video games players are probably the crowd most likely to make a real compromise. We’ll give up Mortal Kombat, Grand Theft Auto, Bulletstorm, and the other games the NRA dude named, but in exchange we want people to stop blaming video games for violent crimes.

    I don’t think any other group would make such a generous offer.

  2. SHG

    I don’t know that it’s necessary to give up Mortal Kombat.  Maybe introducing a fundamentalist religious component would suffice, like Jesus with an AK shooting the other cheek?  Don’t give up too much too quickly. It only encourages your opponents to demand more.

  3. Michael Shapiro

    The drunk driving problem is pretty much universal, everywhere there are cars and alcohol. The gun rampage problem is pretty much confined to the good old USA, the one industrialized democracy with ready access to guns. Other than Justice Scalia, shouldn’t the rest of us take a lesson from the rest of the world. If we really want to get serious about the gun rampage problem the discussion should include the 2nd Amendment, at least the 2008 version. Just because Justice Scalia and his four Republican confrères are willing to excise “a well regulated militia” from the Founders language and blind themselves to the closing of the frontier, doesn’t mean that the rest of us who can think, are not pushing an agenda and are horrified by VT, Ft. Hood, Tucson, Aurora, Clackamas and Sandy Hook, must remain silent. Why should US have a constitutional right to the personal possession of non-hunting firearms? The rest of the world seems to get along just fine without such a right, Indeed, in the rest of the world Sandy Hooks are exceedingly rare. Maybe it is time, in 2013, some 140 years since the last attack of settlers by Native Americans and no law west of the Pecos, that we re-think the advisability of the 2008 version of the 2nd Amendment.

  4. RP

    I have a multi-part solution that will require both sides to “sacrifice” their values to some degree (isn’t shared sacrifice and “compromise” all the rage these days?):

    1. Regulate the crap out of guns, banning the worst weapons outright. Let the courts apply Heller and figure out what is reasonable regulation. This will please the left.
    2. Expand conceal-carry laws, and get rid of “gun free zones” which insane shooters don’t respect. It’s unreasonable to force a retired policeman to cower beneath a theater seat while a mass-murder is taking place, because he had to leave his handgun at home. These shooters are not going to police stations; they are going to places where they think they will face no resistance. This will please the right.
    3. Use civil commitment laws to institutionalize those at risk to commit these crimes. We already do this in sex cases — i.e., we already came to the conclusion as a society that we would do whatever it takes to stop a pedophile or rapist from committing another offense, and we commit those individuals for “treatment” indefinitely. You don’t even need a ‘real’ disorder anymore; the catch-all “antisocial personality disorder” (which most convicted criminals have) will suffice. Ever read an appellate decision from one of those cases? They are scary, and not just because of the subject matter, but because you realize — after seeing the type of hearsay and nonsense that can lead to a person’s civil committment — that we really do sacrifice the rule of law if the stakes are high enough. If the fire-starter shooter in New York the other day had been a pedophile, he would never have been released to do what he did — why was he released?
    4. Do something about the regulation of guns possessed by people with adolescents in the home. Assume that every adolescent — especially every male — is a depressive and perhaps dangerous. Stiff prison terms for parents who don’t keep the weapons out the house, perhaps? An outright ban on weapons for parents of adolescents? I’ll leave the details on that one to others.

  5. BL1Y

    “Use civil commitment laws to institutionalize those at risk to commit these crimes.”

    That might make sense, if it weren’t for the fact that for every person who goes on a shooting spree there are thousands of people with virtually identical psychological profiles who never commit violent crimes.

    “we already came to the conclusion as a society that we would do whatever it takes to stop a pedophile or rapist from committing another offense”

    That …just …so wrong.

    We came to a completely different conclusion when it comes to sex offenses, namely that you have to commit (or attempt) the crime before we punish you, not just because we think you have pervy eyes.

    And we certainly don’t do whatever it takes to stop a pedophile or rapist from committing another offense. Plenty of such people serve their time and are back on the streets, fully capable of committing another offense. In fact, the trend in child pornography cases has been towards more lenient sentences, not towards being locked up for life.

  6. Nicholas Weaver

    Uhh, not true. The US has an overall gun homicide rate that is off the charts for a first world country (almost entirely due to easily available handguns. “Assault rifles” play almost no role in this), but big rampages happen elsewhere, and are often rather unaffected by gun control laws.

    E.g. for all the wailing about rampages here during the past decade, I think Norway has up beat with a single attack. Yet to get a gun in Norway, you have to go through Significant training and show that you are actually serious about buying a gun for hunting or sports shooting. So they already are at your professed goal of “huting and sports shooting only”.

    I really really hate how this “debate” has gone, and the focus on spree killers and assault rifles (both of which are far less lethal than deer, which kill 200 people a year in the US), because the odds are that the one almost indisputably good thing: forcing all secondary sales to go through a federal dealer (like California does), is not going to happen.

    Criminals get their guns largely from straw buyers and the secondary market. Changing the law like this would make it easier to prosecute the straw buyers, as they can no longer say “well, I just changed my mind so I sold my gun to Mr Jessie Pinkman in the Wal*Mart parking lot”.

    It wouldn’t miraculously keep guns out of the hands of criminals, but it would make it possible to prosecute those who provide the criminals with guns. E.g. if the other border states had the same law that CA has, there would have been no need for “Fast and Furious”, as the ATF could have easily arrested the straw buyers and gotten them to roll up the chain.

    It wouldn’t stop spree nutjobs, but those aren’t stopped even with TOTAL gun control, as they can always just grab a knife and start stabbing children.

  7. Sharp

    The truth of the matter is that guns have been a part of America since the beginning. Almost everyone I know has a gun. There is no clear solution to the problem yet. You can’t remove the 2nd amendment because only law abiding citizens would comply. Somehow I don’t see having CHLs expanded being a solution. It seems like just pouring gasoline on the flame. I believe it was Chris Rock that suggested making bullets a thousand dollars each. Sounds like the best solution so far!

  8. John Neff

    It costs a minimum of $150,000 per year for lifetime supervision of persons that are dangerous because of mental illness, brain damage or some other type of mental malfunction.

    A rough estimate of the number of such people that we know about is between 1 in 10,000 to 1 in 20,000 people or about 15,000 to 30,000 in the US.
    The minimum cost of lifetime supervision would $2.25 Billion per year. However this does not include dangerous people we find out about when the harm other people.

    The minimum per capita cost per year for lifetime supervision of people we think are dangerous is about $10 plus whatever it costs for the ones we find out are dangerous the hard way. That is cheap insurance if you don’t mind violating peoples civil rights.

  9. Chris

    Obviously this is only my opinion, but as long as we allow the debate to be done by the nut jobs on both extremes, no meaningful conversation can occur.

    As a “gun guy” I find the NRA repulsive and always laugh when they say they represent all gun owners. The latest numbers suggest 85 mil owners and 4 mil NRA members.

    As long as one side refuses to acknowledge that gun ownership is a right while the other side claims they need to be able to own everything and anything, we are left with a quagmire of ideas with nothing getting done.

    Heller acknowledged the right of a person to own a firearm, but there has always been the belief that it was subject to reasonable regulation. I am all for every sale having to go through a federal dealer as well as mandatory waiting periods (I prefer 30 days).

    I also think all guns should be registered, no exceptions. But in order for that to occur, there has to be a commitment to the right of ownership so that people will not fear losing them to overzealous politicians.

    Right now our hodgepodge of gun control laws are atrocious and ineffective.

    As an aside, in response to RP’s idea of banning guns from homes with adolescents, I have had more friends impacted by the alcohol their parents leave around then by guns. Good gun owners have never been the worry, its the illegal owners, straw buyers and other idiots that are. My fire arms are in a 1000 lb safe unless I am cleaning them, transporting them or actually using them (hunting/shooting). To say I should have to give up my guns when my kids become teens is simply counterproductive to reasonable debate.

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