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]