Yes, my proposal included planes, trains, automobiles, Samurai swords and explosives as well as firearms. Well, and toxic and dangerous biologicals, nuclear weapons, and the like. If you own and control them, secure them from people who know are not competent to handle them without risking others' lives. People whose severe mental illness is dangerous and untreated. The animus is taking personal respomsibility for the way you exercise your rights. A right to keep dangerous weapons should carry with it an obligation not to put others' at risk of death and mayhem by not securing them responsibly.
If you fail and the risk to others materializes, you go to prison.
Not all that complex, and not that much to ask of people. Responsible gun owners already claim to do all these things and so long as they are vigilant they should not fear criminal liability.
You also don't give a drunk the keys to your car at a bar late at night.
It is just about being a responsible human being and considering the impact of your behavior on others' safety and welfare.
________________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] on behalf of Henry Lowenstein [[log in to unmask]]
Sent: Thursday, December 20, 2012 2:31 PM
To: [log in to unmask]
Subject: Re: Newtown solutions?
I have followed the conversation with interest over the past days as I traveled the mountains and valleys of Idaho (wife's family) and now have a moment to weigh in with these thoughts. Suppose the tragedy at Newtown occurred by a mentally disturbed person using an automobile to run over 20+ children on a playground (that's happened in history). The horrible outcome would be the same, only the modality of homicide used different. Would we be now sounding the call to limit who has or drives automobiles?
Perhaps we should.
Consider this, every year in the U.S. auto fatalities run 35,000-40,000 in the U.S. (2011 was considered a "safe year", only 36,000 or so died.) Many, many years ago I was a researcher on traffic enforcement and helped train traffic police in Illinois. I recall a study (I believe partly underwritten by General Motors and the government) that estimated 10% of all auto deaths were from use of the vehicle to commit a murder or suicide. Let's take that figure arguendo, meaning the motor vehicle is used as a "homicide" weapon in 3,500 to 4,000 deaths a year.
Perhaps if the states applied the same standards to driver's licenses that the FAA applies to pilots (which includes mental health assessment, skill assessments, refresher training mandates, etc.), these numbers could be reduced substantially. Of course, at the same time, the number of drivers on the road would also likely to be reduced. Society would probably not tolerate that despite the lives that might be saved.
I use this analogy to make no position one way or the other on the gun subject, but to attempt to take the emotion out of the argument. We all know all ordered liberties are not 100% absolute. The First Amendment does not give one the right to yell fire in a crowed theater or engage in child pornography. The Second does not give one the right to own a machine gun or a bazooka. There are certainly thoughtful restrictions that can be crafted that meet Constitutional muster that may help but not eliminate the underlying problems.
Perhaps even with the First. Would it pass strict scrutiny to ban the sale and possession of video games that depict the killing or maiming of a human being (exceptions for police and military training noted)? That might be a step in ending the mental desensitizing of teenagers who seem to be most at risk and act out these horrid delusions in reality. Here in South Carolina, despite all the outcry, just this week we had one 17 year old show up at school with a .22 handgun and 200 rounds of ammo in his trunk along with knives and the like. Two others are under arrest for bomb threats at their high schools; all with similar adolescent mental disturbance found elsewhere nationally.
Gun bans in Europe did not stop the Norway or Belgium killings. In Rwanda there were mass murders with machetes. Just as with the automobile, the underlying problem is less the modality than the behavior behind it. And, the research that comes of this will surely find multiple contributing factors from society to technology, to government policy. For sure, a renewed look and priority on mental health is warranted. And, for sure, society has a bigger problem at work here than just the gun control matter.
Happy Holidays to you all.
Best,
Henry
Henry Lowenstein, PhD
Professor of Management and Law
E. Craig Wall Sr. College of Business Administration
Coastal Carolina University
P.O. Box 261954
Conway, SC 29528-6054 USA
(843) 349-2827 Office
(843) 349-2455 Fax
[log in to unmask]
www.coastal.edu
________________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] On Behalf Of Kurt Schulzke [[log in to unmask]]
Sent: Thursday, December 20, 2012 1:45 PM
To: [log in to unmask]
Subject: Re: Newtown solutions?
Keith,
Thanks for your note. Apology accepted. Grading bad student papers can be traumatic.
I appreciate endorsements by you, John, and Ginny of my most recent analysis, though I would extend your "considered, reasoned and reasonable" characterization to all of my messages on this topic, taken as a collection. With regard to tone, I have tried to steer clear of condescension and ad hominems. It seems, however, that the raw, emotional nature of the subject matter predisposed some to read offense where none was intended. If I missed the mark from time to time, I apologize.
That said, I agree that the prevention of "police brutality," even broadly defined, was not the only motivation for the 2nd Amendment. To economize here, on this topic, I endorse the views expressed by Don B. Kates, A Modern Historiography of the Second Amendment, 56 UCLA L. Rev. 1211 (2009). I don't want to cherry-pick Kates. His article deserves a thorough read from start to finish.
Ginny's proposal to attach civil and criminal liability to the act of placing deadly weapons at the disposal of mentally ill persons not under treatment is worth a close look, though I believe that in some jurisdictions it is already effectively the law. I wonder, however, about what level of scienter should be required for the imposition of criminal penalties.
In this connection, yesterday's announcement that the Army will seek the death penalty for "rogue" soldier Robert Bales (see http://www.huffingtonpost.co.uk/2012/12/19/us-army-to-seek-death-penalty-afghanistan-_n_2331583.html?utm_hp_ref=uk) raises an interesting question. Where a soldier massacres innocents after being deployed for a fourth tour of combat duty, should criminal liability for the massacre attach to the commander who deployed the soldier?
As to why people commit these crimes, I agree that, generally, in the timeline of each of these sad tales, there comes a point at which negotiation and persuasion are pointless. My SWAT team friend concurs. But that point varies from one shooter to the next. For some, there may never be a point in time when negotiation pays, because the wannabe shooter is so mentally ill. However, I continue to believe that, in most cases, there is a point of no return before which it is possible to reverse the destructive process through psychiatric treatment or simple human kindness. We have much yet to learn about Adam Lanza, but I am seeing persuasive reportage, e.g., http://www.nydailynews.com/news/national/exclusive-mind-newtown-killer-article-1.1223612, that suggest Adam's turn to violence was hastened and hardened by his parents' separation and his isolation from others. Timely intervention by someone may have saved lives.
As to the role and culpability of Adam's mother, Nancy Lanza, I respectfully object to Ginny's assumption of facts not in evidence. My view is that we are a long way from knowing what we need to know in order to say definitively that the price paid by Nancy was a fair one for her behavior. Sadly, we may never be able to evaluate her state of mind and culpability. I think, however, it is safe to say that other Adams and Nancys are among us. It may sound trite, but at this holiday season, I hope we will all make an extra individual effort to reach out, with whatever kindness we can, to help those on the margin feel more included.
Happy holidays!
Kurt S. Schulzke, JD, CPA, CFE
Associate Professor of Accounting & Business Law
Director - Law, Ethics & Regulation
Corporate Governance Center
Kennesaw State University
+ 1770-423-6379 (O)
+ 1404-861-5729 (C)
http://coles.kennesaw.edu/centers/corporate-governance/
My research: http://ssrn.com/author=804023
----- Original Message -----
From: "Keith A Maxwell" <[log in to unmask]>
To: [log in to unmask]
Sent: Wednesday, December 19, 2012 8:21:09 PM
Subject: Re: Newtown - vocabulary & solutions?
Kurt,
I want to apologize for annotating your subject heading with all those hash marks , etc. It was the end of a long day of grading some not-too-good final papers...
I appreciate very much your latest analysis. It takes what I think is the right approach--considered and reasoned and reasonable, and much of it I agree with (though I'm not sure the Second Amendment was a result of police brutality as you state--I'll have to reread Heller to see if Scalia "enlightened" us on that point ;-).
Thank you for your thoughtful response.
Keith A. Maxwell, J.D.
Professor Emeritus of Legal Studies and Ethics in Business
Nat S. and Marian W. Rogers Professor (Emeritus)
University of Puget Sound
Tacoma, WA
http://www2.ups.edu/faculty/maxwell/home.htm (archived)
Adjunct Professor of Business Law
Dixie State College
Saint George, UT
https://www.dixie.edu/business/maxwell.php
________________________________________
From: Academy of Legal Studies in Business (ALSB ) Talk [[log in to unmask] ] On Behalf Of John Allison [[log in to unmask] ]
Sent: Wednesday, December 19, 2012 12:03 PM
To: [log in to unmask]
Subject: Re: Newtown - vocabulary & solutions?
I agree. Kurt's last post was very good.
John
John R. Allison
The Spence Centennial Professor of Business, and
Professor of Intellectual Property
McCombs School of Business
University of Texas at Austin
[log in to unmask]
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB ) Talk [mailto:[log in to unmask] ] On Behalf Of Maurer,Virginia G
Sent: Wednesday, December 19, 2012 12:40 PM
To: [log in to unmask]
Subject: Re: Newtown - vocabulary & solutions?
Kurt, your last post is a thoughtful analysis, IMHO.
My Garden and Gun magazine subscription came due today. It is an absurd Southern thing, to southern culture as California Living is to west coast culture, but I read it for the gardening ideas, the useful ads for southern food products, and -- and this is strange -- I like the feel and the quality of the paper used and other aspects of its excellent production. I did resubscribe but gave pause and observed this evidence of guns and culture, We grow beautiful things. Oh, and we kill them.
In today's WSJ, J. Fuller Torrey wrote an op-ed piece reciting the appalling relationship between untreated serious mental illness and violence of all sorts, even going back to Charles Whitman, the UT tower sniper-killer who, on autopsy was found to have a tumor in the area of the brain controlling aggression. Torrey maintains that treated mentally ill people pose no more risk of violence than do mentally healthy people, but untreated mental illness is a major causal factor in violence, not only with guns but with knives, explosives, and automobiles. About 7.5 million Americans have diagnoses of schizophrenia, schizoaffective disorder, or bipolar disorder, and about 3.5 million of them are untreated, of which about 10% become problems in society. This is a number we could reduce at significant public expense if we had the political will to do so.
The nexus between the mentally ill violent person and the murders is the weapon. Without a weapon (planes, trains and automobiles as well as knives, guns, and explosives), the violent person cannot commit a crime of mass murder. It should be a crime to fail to secure a dangerous weapon which you control from a known incompetent, and criminal and civil liability should follow acts of violence that result from doing so. SO you don't make guns, knives, automobiles available to people with serious mental diagnoses whom you known are not under treatment. That is so irresponsible and antisocial that it should be a crime.
If people are going to insist that they have a right to firearms, then they should accept responsibility for the decisions they make about the use of their firearms.
This is not to negate the need for public policy on just exactly what kinds of weapons we are going to permit, within the boundaries of the 2nd amendment, but, as Kurt and others have suggested, the matter is complex.
Where I part with Kurt is the notion that one would start by figuring out why people decide to commit these crimes. The population Fuller describes does not decide in any sense in which we normally use the term. They are driven and compelled by voices in their heads or by auditory hallucinations that they hear coming from outside their heads, or other illusions of realities unknown to, and unseen by, us. Such hallucinations are scary (I am told) and produce wild anxieties. Responsibility cannot start with that person, who by definition may be incapable of responsibility. The responsibility has to start with the competent person whose gross negligence made the weapon available.
Mrs. Lanza , says CNN, kept her weapons locked in the basement. On the surface this would seem like responsible behavior. She took her 20 year old mentally ill son to the shooting range and taught him how to "responsibly" use guns. He even went on his own and made a hobby of it. and apparently he did not take the gun from his mother but got the gun out of the basement (any determined adult can get through a lock) and shot her four times in the head, perhaps while he was asleep. In that context, the risk she took in maintaining serious weapons in the home of a schizophrenic adult was outrageous. She could have had a locker off sight, perhaps at the gun range, for the gun locked up in the basement would not help much in the face of a home invasion anyway.
She, of course, is dead, so she paid dearly for her behavior but so did those 20 children and the teachers and principal and school psychologist. She has to have had a duty to protect them from the foreseeable harm that could flow from keeping those weapons under those circumstances. And prospectively, people who do the same and happen to have survived it should serve prison time as a deterrence to others tempted to be cavalier in their behavior. Deterrence works better with the sane, rational people who should be the ones getting gun permits.
Ginny
________________________________________
From: Academy of Legal Studies in Business (ALSB ) Talk [[log in to unmask] ] on behalf of Kurt Schulzke [[log in to unmask] ]
Sent: Wednesday, December 19, 2012 11:20 AM
To: [log in to unmask]
Subject: Re: Newtown - vocabulary & solutions?
Keith,
The point is not that we should "do nothing" -- do something we must -- but that we should carefully diagnose the disease behind the symptoms before prescribing treatment. As Oklahoma City attests, gun control, even if it were effective, would not stop the killing now rampant across America. Killing, by whatever means, is the most visible symptom of the real American Disease. Do we have what it takes to candidly examine the evidence and confront our disease?
The Newtown massacre, as many on this list have hinted, was the culminating act in a multifaceted tragedy driven by multiple factors. The killing was one horrific tragedy. The killer's access to guns was one factor. But if Lanza could not get guns, it seems likely that he would have found another perhaps even more destructive weapon. The same can fairly be said of every other mass shooter here, in Norway, Switzerland, Russia, wherever. Should we not be asking why they kill and what can be done to persuade them not to, beyond "If you even try to buy a gun, I'll put a gun in your face?" Sure, there may be some few who are beyond reason. But isn't it possible that most of these mass killings could be prevented through early personal, non-government intervention? Is each of us really doing all we can?
We don't yet know all of the factors that produced the Newtown killing. Diagnosis is in process. Meanwhile, we should consider the possibility that none of the factors will be solved by handing yet more laws to yet more gun-toting police so that they can legally brutalize, kill or incarcerate yet more of their fellow citizens. Police brutality produced the 2nd Amendment, in the first place, and is why the 2nd Amendment continues to be popular among African Americans. See, e.g., http://www.nydailynews.com/opinion/strict-gun-laws-bad-blacks-african-americans-amendment-protections-article-1.456730. That it continues to be a necessary counterbalance against unbridled state power seems obvious, especially given post-9-11 legislative developments like the Patriot Act and the 2012 NDAA (see http://www.aclu.org/blog/tag/ndaa). The fear of more such legislation may itself provoke more violence on a far broader and sinister scale.
American culture glorifies violence and those who perpetrate it. Surely, this is a disease of the mind and heart. Video games encouraging rape and murder, football, "professional" wrestling, boxing, cinema (think Hunger Games, as a relatively mild example), innumerable graphically violent TV series . . . the list goes on and on. Why did Cleveland police, on November 29, even consider shooting this young couple after a high-speed chase: http://www.thedailybeast.com/articles/2012/12/06/police-shoot-137-times-into-car-after-chase-killing-unarmed-couple.html? Why was gunfire even an option for these "officers of the law"? Could it be that they were so immersed in our culture of state-sanctioned violence that, for them, it was a no-brainer? What does this say about America? Can this disease be cured through more regulation?
Historians and sociologists 500 years on may well name another American disease "chronic delusional legislative syndrome," which manifests as the knee-jerk production of new laws and regulations for every (misdiagnosed) societal symptom. A related sociological disease is the compulsion on the part of some people to "control" others by force. My hope is that our society will take a closer look at what really ails us and dig deep, on a personal level, to bring about real, lasting change. This is a far cry from "do nothing".
Kind regards,
Kurt S. Schulzke , JD, CPA, CFE
Associate Professor of Accounting & Business Law Director - Law, Ethics & Regulation Corporate Governance Center Kennesaw State University
+ 1770-423-6379 (O)
+ 1404-861-5729 (C)
http://coles.kennesaw.edu/centers/corporate-governance/
My research: http://ssrn.com/author=804023
----- Original Message -----
From: "Keith A Maxwell" <[log in to unmask] >
To: [log in to unmask]
Sent: Wednesday, December 19, 2012 1:31:15 AM
Subject: Re: Newtown - vocabulary & solutions? (#!%%##!&**###)
Regarding the post below:
I respect the poster's right to his opinion (despite--to my ears--its condescending tone), but it sounds too much like an argument that the NRA's Wayne Lapierre will be making as the congressional debates begin on this issue--trivial, self-serving, and beside the point. To my mind, this is not a time (in the words of the poster) for "lawyers (or former lawyers)" to be analyzing and parsing definitions; rather it is a time for a considered and reasonable policy discussion. (We lawyers--even us former ones--have our place, but I have found not to be all that helpful when formulating critical policy.)
Do we really need to question whether a Bushmaster .223 meets the definition of an assault weapon (as argued by one congressman from Kentucky today) to know that it is something the Second Amendment--even ala Scalia in Heller --should not protect, and something that should not have a place in modern society? If the Second Amendment protects a Bushmaster .223, then, in my view, that amendment has no place in modern society--maybe it should go the way of the Eighteenth. (In fact, there is currently a movement afoot.)
So all I can say to my colleague is, do nothing if that is your preference. But some of us will do our best to take a (small?) step toward a cure for "America's Disease."
Respectfully,
Keith A. Maxwell, J.D.
Professor Emeritus of Legal Studies and Ethics in Business Nat S. and Marian W. Rogers Professor (Emeritus) University of Puget Sound Tacoma, WA http://www2.ups.edu/faculty/maxwell/home.htm (archived)
Adjunct Professor of Business Law
Dixie State College
Saint George, UT
https://www.dixie.edu/business/maxwell.php
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Thomas Cavenaugh's much appreciated effort to "clarify terms that mean something specific and significant in this area" could be extended to many recent Newton-related ALSB Talk posts.
For example, one proposed to ban "guns that are automatic and that have bullet cartridges." As this list is populated by lawyers (or former lawyers) known, as a group, for haggling over the meaning of words like "is," it can hardly be said "nit-picking" to observe that guns without bullet cartridges are an oxymoron. What is popularly called the "bullet" is the business end of a "cartridge." Even muzzleloaders use cartridges. In an automatic or semi-automatic firearm, cartridges are stored in a magazine prior to being "chambered" on the way to firing. Unless the author of the post wishes to ban all guns, I would guess she misused the word "cartridge" in place of "magazine." For more on this and similar distinctions, a helpful webpage is this: http://www.americanrifleman.org/blogs/bullets-and-cartridges/.
In a similar vein, a highly educational, quick read on the subject of gun "control" in the Newtown context is Megan McArdle's Dec. 17 article, There's Little We Can Do to Prevent Another Massacre, http://www.thedailybeast.com/articles/2012/12/17/there-s-little-we-can-do-to-prevent-another-massacre.html. Short of a book or law review article, I have not seen a better primer for those wishing to engage in the debate. I close with this key excerpt:
* * *
The sort of people who can qualify for a legal handgun are the sort of people who are vanishingly unlikely to commit a crime with it. And the people who can't qualify, but own guns anyway . . . well, we've got this huge border with Mexico. We can't even keep whole people from being smuggled across it. How are we going to make sure that they don't bring guns with them?
There's a terrible syllogism that tends to follow on tragedies like this:
1. Something must be done
2. This is something
3. Therefore this must be done.
. . . and hello, Gulf War II.
It would certainly be more comfortable for me to endorse doing something symbolic--bring back the "assault weapons ban"--in order to signal that I care. But I would rather do nothing than do something stupid because it makes us feel better.
* * *
Best regards,
Kurt S. Schulzke , JD, CPA, CFE
Associate Professor of Accounting & Business Law Director - Law, Ethics & Regulation Corporate Governance Center Kennesaw State University
+ 1770-423-6379 (O)
+ 1404-861-5729 (C)
http://coles.kennesaw.edu/centers/corporate-governance/
My research: http://ssrn.com/author=804023
----- Original Message -----
From: "Carol J Miller" <[log in to unmask] >
To: [log in to unmask]
Sent: Tuesday, December 18, 2012 1:51:29 AM
Subject: Newtown
I really don't know what the solution is. Attitudes are soooo hard to change. A few people who care nothing for the rights of other people can cause so much harm.
Banning the sale of such weapons may slow the increase, but there are already plenty of weapons in the hands of individuals with short tempers, mental instability or revolutionary attitudes. There was a disturbing story on MSNBC about home manufacturing of cartridges and gun parts, with downloadable instructions on the Internet. They may not have to buy the key parts of the weapon as that technology becomes more perfected.
-Counseling at a young age if/when characteristics can be indentified may help. But there needs to be funding and destigmitization of counseling. Others may try to prevent counseling because of peer and career impressions. Remember how Senator Eagleton had to resign as a VP candidate because he had had counseling.
Carol
From: Academy of Legal Studies in Business (ALSB ) Talk [[log in to unmask] ] On Behalf Of Marsha Hass [[log in to unmask] ]
Sent: Monday, December 17, 2012 2:35 PM
To: [log in to unmask]
Subject: nothing profound
Just stop selling guns that are automatic and that have bullet cartridges. JMHO
Marsha E. Hass
Distinguished Professor Emeritus of Legal Studies
College of Charleston
Charleston, SC
[log in to unmask]
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