Spartacus

A modest proposal for common sense gun control that respects the Second Amendment

Everyone is appalled at the recent mass shooting incidents. The reaction has been predictable and polarizing.  One side advocates more restrictive gun regulations or an Australia-style gun roundup.  The other side retreats behind the protection of the Second Amendment and rejects any roll-back of the individual right to bear arms.  We've seen this repeatedly, and it gets us nowhere.  Here is a different approach.

1:  Implement useful policies that already enjoy broad support

Most Americans, even Republicans and many NRA members, agree that felons, non-citizens and crazy people should not be allowed firearms.  The corollary of this is that we can probably all agree that there should be fast, inexpensive but universal background checks before guns can be purchased.

However, many (most?) of the recent rampage killers either legally acquired their weapons after undergoing background checks or would not have been thwarted had universal background check laws been in place.  (The NYT, hardly a Second Amendment enthusiast, found that 8 of the 14 recent mass shooters would not have been stopped had universal checks been required.)

This brings us to second area of potential common ground: our mental health "system" (to the extent we can call it that) is a mess. Virtually all of the recent mass killers exhibited symptoms of serious mental illness.  Many were receiving (or had received) various levels of psychological and psychiatric care. But as we have seen, having access to some level of mental health care is not enough to avert potential tragedy. We need to put in place the policies – and appropriations – to fix this mess, and pronto.

2:  Create a “psychological hold” system to strengthen background checks

The current National Instant Criminal Background Check System (“NICS”) is fairly simple. When a background check is required (which is not always due to the gun show loophole), the seller submits information on the buyer to FBI (or a state agency, in some cases) which then searches several databases for serious criminal offenses, orders of protection and involuntary commitment to a mental institution. Unfortunately, this doesn’t always work and more is needed.

Few of the recent mass killers would have been stopped by our current background check system.  I propose creating a new, Federal database that would collect reports of mental instability in individuals.

• Reports could be filed by anyone at a local police station.  Teachers, mental health workers, social workers, police officers, neighbors, relatives, etc. would be encouraged to identify people that they have reason to be believe should not be allowed access to firearms.
• The bar to reporting should be low; signing a sworn statement detailing the reasons for their concern should be sufficient. 
• If the police agency taking the report believes the information to be well founded, the report would be passed to the NICS and would bar approval of firearm purchases by that subject.
• The existing (or an enhanced) FBI appeals process could address unfounded or erroneous reports blocking gun purchasers.
• Ultimately, denied purchasers could appeal to a judge to rule on their fitness to obtain firearms.
• The identity of the informant should be kept confidential from the subject of the report unless a court appeal is needed. 

Of course, this system would be susceptible to abuse as personal enemies, jilted lovers, etc. could file false reports.  Ideally, abusive reports would be rejected by the police agency receiving the report.  In some cases, however, a formal appeal would be needed to clear a person. In any case, an unfounded report would not be sufficient to bar gun purchase approval.

3:  Stop motivating copy-cat killers

Beginning in the 1970s, states began enacting “rape shield” laws to make it less traumatic for rape victims to report their assaults to the police.  In 1994, the Violence Against Women Act was signed into law giving similar protections to women under Federal law. While courts have ruled that these laws cannot be used to prevent media outlets from disclosing the identity of rape victims, virtually all major media outlets have voluntarily adopted this policy in the public interest.

Criminologists and psychologists who have studied the motivations of rampage killers have found that unlike serial killers, who have long histories of escalating acts of violence, most mass murderers have no prior record of violent behavior. Instead, in the words of James L. Knoll IV, director of forensic psychiatry at the State University of New York's Upstate Medical University writing in a 2010 article: they become “'collectors of injustice' who nurture their wounded narcissism." To preserve their egos, they exaggerate past humiliations and externalize their anger, blaming others for their frustrations. They develop violent fantasies of heroic revenge against an uncaring world.  This is brilliantly summed up in a 2013 WSJ OpEd by Ari N. Shulman:

“Part of this calculus of evil is competition. Dr. Mullen spoke to a perpetrator who "gleefully admitted that he was 'going for the record.'" Investigators found that the Newtown shooter kept a "score sheet" of previous mass shootings. He may have deliberately calculated how to maximize the grotesqueness of his act.

Many other perpetrators pay obsessive attention to previous massacres. There is evidence for a direct line of influence running through some of the most notorious shooters—from Columbine in 1999 to Virginia Tech in 2007 to Newtown in 2012—including their explicit references to previous massacres and calls to inspire future anti-heroes.

Aside from the wealth of qualitative evidence for imitation in massacre killings, there are also some hard numbers. A 1999 study by Dr. Mullen and others in the Archives of Suicide Research suggested that a 10-year outbreak of mass homicides had occurred in clusters rather than randomly. This effect was also found in a 2002 study by a group of German psychiatrists who examined 132 attempted rampage killings world-wide.”

While it is probably not Constitutional to prohibit journalists from writing about rampage killers, Shulman has several suggestions that may help prevent copy-cats:

• Never publish a shooter's propaganda
• Hide their names and faces
• Don't report on biography or speculate on motive
• Minimize specifics and gory details
• No photos or videos of the event
• Talk about the victims but minimize images of grieving families
• Decrease the saturation
• Tell a different story. (There is a damping effect on suicide from reports about people who considered it but found help instead.)

Constitutionally sound laws can probably be crafted to prevent release of these details by police and other government agencies.  Formal declarations of the public interest in suppressing this type of information might help encourage media outlets to exercise greater restraint, even in this internet age.

*                 *                  *

There is no silver bullet that can prevent these tragedies.  But adopting policies that have strong, bi-partisan public support – and can reasonably be expected to help reduce mass shootings – may help make them less likely.

Boycott United Internet AG and 1&1 Hosting

Respected LA blogger and lawyer Patterico has had his domain name stolen by his hosting service "1&1". 1&1 are a subsidiary of the German internet firm United Internet AG, who coincidentally just happen to own sedo who is auctioning off the domain name.

Pretty despicable, if you ask me.

The Healing Power of the Law

The threat of incarceration miraculously heals a California woman's paralysis. Perhaps "the Sheriff" of California disability law, Jarek Molski, can represent her. For more on the troubled (but fascinating) Mr. Molski, read this piece by Abraham Hyatt in the San Luis Obispo County New Times.

Technorati Tags: Jarek Molski, Laura Lee Medley

More Pirates in the News

Here is what those caring folks at the RIAA told an MIT undergrad who balked at paying them $3,750 to drop a lawsuit over illegal music downloads:

. . . the RIAA has been known to suggest that students drop out of college or go to community college in order to be able to afford settlements.

No word yet on the RIAA's policy regarding limbs, first born children, etc.

(Hat tip to Good Morning Silicon Valley.)

Zero Tolerance Watch

In an effort to reverse an increase in street crimes, including purse snatching from the back of motorbikes, Guangzhou province announced that bag snatching would be punishable by a minimum sentence of three years in jail and a maximum sentence of execution. There was no word about whether the quaint custom of billing the deceased criminal's family for the cost of the execution bullet would apply.

Preserving Slums, One Building At A Time

Today's NY Sun has an interesting feature by David Lombino about two couples trying to renovate a dilapidated tenement in Harlem. Basically, the story explains (in part) why apartments are so hard to find in this town: the city government makes it nearly impossible for people to cut through the red tape to get anything done. For example, even though they planned to gut the building and essentially rebuild it from scratch, the city's Department of Housing Preservation and Development required them to first remove all of the building's code violations. In other words, they had to fix it up before they could tear it down. (For pictures and detailed time line of the project, click here.)

As absurd as this sounds, based upon my own experience as board president in a loft cooperative building here in Manhattan, it is entirely typical.

A Company Town Where the Town is the Company

Imagine a town that had only 93 legal residents but enough businesses to employ an estimated 44,000 workers. And not only did these businesses pay taxes, but also bought gas & electricity from the city owned utility. Nearly all of the town's residents are on the city payroll, and the only residential housing in the city is municipally owned, with heavily subsidized rents. Pretty cozy, eh?

Well, this town exists, and consists of 5.2 square miles located in the middle of Los Angeles County. Today's LAT has a great feature by Hector Becerra about a group of outsiders who tried to move into town and shake up the town's government by running for City Council. (The elections would have been the town's first contested election since 1980... And the current Mayor has been in office for 50 years.)

The city fathers succeeded in running the interlopers out of town. (Literally having them evicted and rejecting their voter registrations as invalid.) But the legality of these moves is being questioned. It is an amazing story, and a very bizarre abuse of the democratic process that allows a small group of people to take over the government of an entire town and run it for their benefit.

On the Roe'd to Perdition

I haven't seen as much of the Alito hearings as I would have liked, but it certainly appears that the Democrats have been unable to lay a glove on him. Though I suppose this should not be surprising since Alito has been a respected federal Appeals Court judge for 15 years, and appears to have broad, bi-partisan support within the legal community.

What is painfully obvious, however, is the extent to which the USSC's terrible decision in Roe v. Wade more than 30 years ago continues to dog our legal and political systems. While I think that the substantive policy position reflected in Roe is reasonable (no restrictions on abortion during the first trimester, etc.), the sad fact remains that court overreached in divining a constitutional right to abortion from "the penumbra" of privacy rights discerned in a text that remained silent on the issue. By getting ahead of popular opinion on this controversial issue and removing it from the political realm of state legislatures (approximately one third of states had already legalized abortion to varying degrees at the time Roe was decided), the USSC precipitated thirty years of increasing political polarization and controversy, and lessened support for the rule of law and the sanctity of precedent.

What I find appealing about judges like Chief Justice Roberts and Judge Alito, is that they are humble about the role of the judiciary in determining public policy. I believe that this humility is a good thing for many reasons, not least of which is that policy making is by necessity a trial and error process, where government must learn from what works (and what doesn't) and adjust policies accordingly. This pragmatic and empirical approach is incompatible with the concept of precedent, where what has been decided must stand. And without precedent, the stability and predictability of our legal system would necessarily suffer.

The most important manifestation of this humility is judicial restraint: resisting the temptation to serve one's own sense of natural justice in controversies where the law (and precedent) don't provide clear guidance for a decision.

It perhaps seems odd to be celebrating judges for suppressing their sense of natural justice, but this is an important requirement for a society that wishes to be ruled by laws and not by men. After all, an absolute monarchy is perhaps the purest form of rule based upon an individual's determination of natural justice: whatever the king (or queen) decides on a given day is the law. And a monarchy by committee, with nine members appointed for life and answerable only to their sense of what is just in any given case, would be no different. Of course, we might welcome the wisdom of some of their decisions. Perhaps a system of government where nine wise men (and women) decide the law as they go along would produce a better and more just society, though I am not aware of where it has worked in practice (politburo anyone?). But such a system would certainly not be democratic and the protections afforded the rights of individuals would certainly be less secure than they are under our current approach with divided powers, a written constitution, and legal rights determined by legislation, rather than judicial fiat.

Judicial restraint has become increasingly rare in our litigious society, where the legal culture rewards lawyers and jurists who develop novel theories of the law. Restraint also violates one of the basic rules of human nature: that bright, ambitious, and successful people generally seek positions of power and authority, and what use is power if you don't use it? The temptation to use the power of the bench to advance one's own views of what is right and just must be tremendous. And where is the glory in declining to decide a controversially issue?

The beauty of Judges like Roberts and Alito is that they are smart and ambitious, but they have the self discipline needed to resist the temptation of power. They are like that rarest of beasts, surgeons who advises their patients against surgery. Because precedents, like operations, once made are very, very difficult to undo.

The American Disease is Spreading

This is from today's UK Guardian:

A man who tried to sue a local council after he soiled his trousers tops a list of spurious public liability claims which cost local government and insurance companies an estimated £250m each year.

The man blamed the incident on the council's decision to close a public lavatory at the bus station and argued he was owed the cost of a new pair of trousers.

Compiling the list, the public sector insurer Zurich Municipal said exaggerated and dubious claims were an increasing problem. They include a man who claimed to have injured his arm after slipping on steps owned by a housing association. He had jumped out of his window to avoid being caught with another woman when his girlfriend returned home unexpectedly.

The list also features a bin man who made a claim against his council after being "startled" by a dead badger which fell out of a bag, a shoplifter who sued because she fell down stairs while running from the scene of a crime, and a motorist who claimed he did not see a traffic roundabout in daylight - despite there being a large tree in the middle.

You've got to admire someone who would think of suing over being startled by a dead badger...

Yoga Boy Going Down

Paul Cortez was arraigned yesterday for sexual assault charges unrelated to Catherine Woods' murder. However, according to the ADA handling the case, he would have been indicted for killing Woods if the transit strike had not prevented the grand jury from meeting. Reportedly, a bloody fingerprint belonging to Cortez was found at the murder scene.

• NY Post: Stripper-Slay Charges Due
  
  
• NY Daily News: Busted in beauty's slay: Yoga beau's bloody print at the scene

I received an interesting comment a couple of weeks ago from someone claiming to be a friend and former karate instructor of Paul's:

I have known paul for sometime now and I have to say I was really shocked to hear that he is accused of harming anyone, let alone a lover. I trained Paul in karate for sometime and have been a close from till I left the country for Japan. I have been in Japan for sometime now (a year to date) so I just got an email from a friend say that this was happening.

Paul loves himself too much to even consider harming anyone and for Christ sake no one seems to be looking at the boyfriend or any other possible lovers. The girl was a dancer, God knows what other men out there was into her, so to try and pin this on Paul cause he called her a few times a day is down right foolishness.

My families heart and love goes out to Paul and I will prey for him everyday. Yes, he is a lady lover, look at him he's very handsome and has his life going in the right direction. Where a lot of people can't seem to get started on their chosen paths.

Jason Ieda-Clarke

Somehow, the argument that "Paul loves himself too much to even consider harming anyone" seems pretty lame for a guy who is accused of becoming irrationally angry and obsessive in the face of personal rejection. Mr. Ieda-Clarke (if, indeed, it is him) himself appears to be quite a colorful character.

Narcissistic personality disorder, anyone?

Update

I forgot a couple of other interesting Cortez-related links:

• "The Brainerd" went to Poly Prep with him.
  
  
• Someone calling themselves Paul Everhard has the hots for his misogynist ass.
  
  
• Here is a link to Cortez' old band, Stillwater, including some pictures and audio files.
  
  
• Finally, read this excellent profile of Cortez' victim, Catherine Woods, from last weeks's NYT. Jennifer Bleyer did a really nice job capturing the tragedy of this senseless murder of young, ambitious woman.

Technorati Tags: Paul Cortez, Catherine Woods