Gunshots are the soundtrack of America

A shooting range features at Elvis's Graceland.
Adam Fagen via Flickr CC BY-NC-SA 2.0

'Tis the season for gunshots and sirens.

The last weekend in October, I spent the night at a Memphis hotel near the airport to catch a 5 a.m. flight homeward. I pulled up to the hotel on Elvis Presley Boulevard in the Whitehaven neighborhood to see people running and chaos at the restaurant across the street, Tha Table. Before long, police came streaming in, sirens blaring. A fire engine and an ambulance followed.

Two men were shot and killed. One was the owner of Tha Table; it looks like he came out into the parking lot to confront would-be car thieves, one of whom shot him with an automatic weapon. The other person killed was a bystander "in the wrong place at the wrong time," Fox 13 Memphis said, merely driving by with his three young children in the car on the way to a park.

A man arrested in the shooting, police say found with weapons including an AR-15 and a Glock with switch (converting the pistol into an automatic weapon), blames his companions for firing the fatal shots, Fox 13 reported.

When I left the hotel later that night, to go to a gym in West Memphis, I had to ask police to let me drive out and back under yellow tape that had cordoned off the block.

That shooting occurred as I arrived at the Red Roof Inn at about 3:30 p.m.  Just eight minutes later, two-and-a-half miles down the same road, a 15-year-old was shot at an Exxon station. According to WREG, he was selling water at the side of the road at the time. He was transported by a private car to the hospital and reported in critical condition.

When I came back from the gym, I fueled up at that Exxon, to return my rental car full the next morning. I didn't know about the second shooting until I got back to my room and checked the news about the first shooting.

About 60 hours later, a 19-year-old sitting in his car at a gas station in West Memphis was fatally shot multiple times by another customer, KARK reported. I was long gone, but that shooting took place 500 feet from the gym I had gone to, just around a corner. I learned of that third shooting when I checked the news to see if anyone had been arrested in the earlier two.

It happens that while I was in Memphis and Arkansas, I visited an old friend and mentor I had not seen in many years. He retired in recent years from work in Memphis and told me he wants to move away. He's tired, he said, of having to worry every day about being car-jacked.

I also visited my aunt and uncle at their home in south Little Rock. They've been renovating, and their place looks great, homey. They're very happy there, my uncle said, except only for the unwelcome ring of gunshots at night. Sometimes the shots ring so close to the house that they fear they're being targeted. My uncle, a Vietnam vet, lamented of the contemporary life of youth in the Little Rock neighborhood: "I'd rather be judged by twelve than carried by six."

When I boarded my plane home from Memphis, I overheard one flight attendant telling another that she's looking for a new apartment. She was working through the calculation of finding lower rent, but having to hear gunshots at night.

As I rejoined the world that Monday, I learned about the Lewiston, Maine, shootings, and that the suspect was found dead from a self-inflicted gunshot wound. He had killed 18 people and injured 13 just before I left home for Memphis. Ensconced as I was in my business away, I had not known the details. It was a kind of blessing, I figured, that I didn't know what was happening. While the suspect was at large, I did not know to worry about my wife in Rhode Island or a friend's son at university in Vermont.

I'm not a gun control advocate. I believe the Supreme Court got it right when it said that the Second Amendment protects an individual right to bear arms. I'm informed by the Second Amendment analysis of my constitutional law professor, William Van Alstyne. I believe that the Second Amendment anticipated the possibility that revolution might one day again be necessary.

At the same time, I don't want life cut short for me, my family, or my friends just because I drove to the park at the wrong time, or a stray bullet pierced the walls of my home. The price of the Second Amendment cannot be that gunshots and sirens are the soundtrack of American life.

Sorry, if you read this far thinking I'd have the answer; I don't. 

I want to be prepared to revolt when the time comes, because I think that corrupt politicians already have aggrandized an excess of power; that they now represent corporations, not constituents; and that the federal legislature has become perhaps irretrievably dysfunctional.

I also want the people I love to be safe against meaningless violence. I don't want to live in the Wild West of the movies.

I want my tres leches and to eat it too.

I pledge not to accept NRA donations: Gun control and denial of opportunity to wound and kill

Let the record reflect that I’m an occasional NRA member and supporter of the Second Amendment—not for hunting, and not just for personal security, but mostly for the real need to be able to overthrow the government if—when—it comes to that.

 

But the NRA should be at the table talking about gun control.  The simple reality of preventing violent crime is that denying opportunity to would-be offenders is the only thing that works well.

That was my over-simplistic take-away from Tom Gash’s The Truth About Why People Do Bad Things (2016) (Amazon), which I just read coincidentally with Parkland.  It’s a fabulous book even if you do not have much interest in criminal law and policy, which I do not.  It’s an important book for anyone just to be an informed voter.  Tom Gash is a senior fellow at the Institute for Government in the U.K.  Hat tip to my uncle in London for putting me on to it. 

Gash dispels 11 myths about crime prevention.  Those chapters are well worth reading, so we don’t find ourselves recycling foolish misconceptions as we make crime policy.  Indeed, to read Gash’s account, the cycle of crime prevention policy over decades seems like an exercise in Groundhog Day.  In the big picture, there are two predominant ways of thinking about crime, and they’re both wrong.  One view says criminals are innately bad actors, so we need to create powerful disincentives, such as three-strikes laws, to make them do the right thing.  The other view says that crime is a socio-economic problem we can fix with education and jobs.  Wrong and wrong.  Not wholly wrong, but too wrong for either redressive strategy to be effective.

Needless to say, crime is more complicated than one worldview, and there is no one panacea.  However, there is one thing that works a lot of the time: denial of opportunity.  A lot of crime happens in the moment and is not wholly irrational.  A modest deterrent gives a person’s better angels a chance to be heard.  Something as simple as a bike lock makes a potential thief not become one.

So we come to guns.  As the Parkland teens and parents have said, access to “weapons of war” is just too easy.  A regulation as modest as a waiting period can mean denial of opportunity for someone who is emotionally imbalanced, whether in the moment or by pathology.

I support the Second Amendment, and I’m wary of bans on weapons we would need to overthrow a tyrannical government.  I support the First and Fourth Amendments too, but I understand parade permitting and search incident to arrest.  I would like to see the NRA, which I respect as a key protector of civil liberties, as a responsible participant in the discussion about reasonable regulation, rather than an increasingly alienated fall guy.

Error that led to Texas mass murder recalls recent tort claim against police after Massachusetts shooting

The Air Force yesterday admitted that it failed to pass on information about the violent record of the Texas church shooter that might have stopped him from having ready access to firearms (WaPo).  Good on the USAF, by the way, for coming clean quickly, however tragic and futile the admission is now for the 26 people who lost their lives.  That angle of the Texas story caused me to pull back up a Massachusetts Appeals Court decision that last week I filed away as "unremarkable." 

After an escalating argument in Somerville, Mass., in 2012, Santano Dessin shot Carlos Andrade "in the neck, shattering Andrade's spine and leaving him paralyzed from the neck down," the court recounted (Boston.com).  It turned out that Dessin possessed three firearms, including the one he used to shoot Andrade, and he should not have had them because of a prior juvenile delinquency adjudication.  The Somerville Police Department at one point had confiscated the three firearms from Dessin, but then returned them erroneously.  Despite subsequent notice to the department by public safety authorities and the Superior Court that Dessin remained disqualified from possessing firearms, police failed to re-confiscate them.  Andrade and family sued police for negligence under the Massachusetts Tort Claims Act (MTCA).

The court rejected liability under the MTCA § 10(e), which, typically of state sovereign immunity laws, disallows tort claims predicated on "any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization."  The court reasoned, "A local police department's duties to receive, store, and dispose of weapons when a person's firearms license is revoked or denied 'are central to the functions that are immunized from liability by § 10(e)'" and "'cannot be parsed from the remainder of the process'" (quoting Smith v. Registrar, 66 Mass. App. Ct. 31, 33 (2006)).

Guns and Somerville, Mass., share a revolutionary history.

However routine and appropriate a construction of statute the Mass. App. decision is, it points up a policy problem that played out with tragic consequences in Texas.  Gun control opponents including the NRA routinely contend that gun control proponents' job-one should be enforcing the laws that are already on the books, rather than lobbying for new ones.  On the enforcement question, we should all be on the same page.

The merits of our unusual cultural value in gun ownership, as expressed in the Second Amendment, and the appropriate scope of reasonable regulation, may be debated.  Nevertheless, at present, we hold gun ownership as a presumptive, fundamental right.  At the same time, declining to regulate gun ownership on the front end of the transaction means that, on the back end, we must vigorously enforce properly adjudicated deprivations of the right.  Public safety--the competing fundamental right to life--requires no less.

In the area of freedom of expression, we vigorously, presumptively, and even prophylactically protect free speech.  But after proper adjudication, we allow proscription of obscenity, criminal punishment of conspiracy, and enforcement of defamation liability.  Perhaps we ought exercise greater care with prophylactic protection of Second Amendment rights, because the potential consequences of error are grave.  But that wasn't the problem in Massachusetts or Texas, where the risk of error was real and known.

The case is Andrade v. City of Somerville, No. 16-P-1407 (Mass. App. Ct. Oct. 30, 2017).