The year 2022 ended with the Grim Reaper having overseen the highest number of mass shootings and resulting carnage in lives lost and survivors maimed than ever before. The country is now averaging two mass shootings per day. No other nation comes close.
How did we get to this dark place, where the sacrifice of schoolchildren in their classrooms has been normalized and their grieving parents are even mocked and ridiculed by cruel pundits who broadcast lies questioning whether the attacks on their loved ones even happened? Thus, those in positions of power deny reality, and, worse, look the other way and refuse to take action to strike at the roots of the daily bloodshed in order to eradicate it like the cancer it is.
I have a Canadian friend who is constantly being asked why Americans won’t act to save their children and the numerous other innocent victims of such repetitive and ritualistic slaughter. She is understandably at a loss to explain. What follows are my answers, derived from years of research, and sober truth about the causes as well as the impediments to the remedies necessary to make America safer for our people.
I will begin with the makeover of the Second Amendment by the National Rifle Association and the gun industry, which has created supposed legal impediments to the government’s efforts to regulate the commercial distribution of firearms to the general public. Beginning in the 1980s the NRA began funding seminars and articles which were designed to change two centuries of jurisprudence on the interpretation of the amendment, which had consistently tethered the “right to bear arms“ to its prefatory clause — “A well regulated militia, being necessary to the security of a free State…”
The end result of this project was the novel interpretation that the amendment conferred a personal “right” on the individual to bear arms separate and untethered to a well-regulated militia. Even worse, this scholarship funded by the NRA posited that one of the purposes of the Second Amendment was to arm the citizens so they would have the means to rebel against their own government — i.e., the very constitutional government the Founders had created.
There is much mischief in this fabricated narrative, not the least of which is that it purported to “amend” the Constitution without satisfying the process required to do so. Moreover, the contributors to the project were not historians, but lawyers who received funding from the beneficiary of their conclusions — the NRA and its clients, the gun industry. As a former trial attorney and judge, I can verify that in every case wherein an expert proffers an opinion, he or she is cross-examined about the compensation received from the party benefiting from the opinion rendered. Such is relevant to whether the opinion is colored by bias.
But I am also not a historian, so I wish to refer the reader to an esteemed historian — Garry Wills — who reviewed and thoroughly discredited the findings and conclusions from this project. (“To Keep and Bear Arms,” by Garry Wills in the Sept. 21, 1995 issue of The New York Review of Books.) Please consult his scholarly piece on the subject, as it refutes point by point the distorted reformation of history reflected in the body of their work. At one point, Wills complains, “How difficult it is to track down their many ‘misrepresentations.’” This is, unfortunately, what emerges when neophytes pretend to be experts in a field in which they are unqualified.
Yet an equally unqualified Supreme Court no doubt relied in part on that fictional re-creation of history. Justice Clarence Thomas stated he was impressed with the literature supporting the conclusion that private gun ownership was protected by the Second Amendment. Thereafter, he and his colleagues in the conservative bloc on the court adopted that narrative in several decisions (e.g. Heller and New York Rifle & Pistol cases). Ironically, the court instructed lower courts to construe state gun regulations in light of the historical context of the Second Amendment.
Let’s examine more deeply the repercussions that have flowed from the faux history cited by the Supreme Court.
The idea that the Founders squirreled into the Bill of Rights a right to rebel against the very government establishing a constitutional democracy has in fact resulted in the sale of military weaponry to the general public — because how can rebels prevail in overthrowing their government without having access to equivalent arsenals? Already regulations prohibiting sales of semi-automatic high-powered assault weapons are being challenged as unconstitutional. The basis for possessing firearms has leaped from sporting, hunting and self-defense to insurrections over election results and coups by the losers who need to seize the Capitol and install their preferred form of governance by force of arms.
And what is the science to be relied upon for the history — exhuming long-dead white men who created the amendment at issue? Obviously, the weaponry of today is not the single shot muskets wielded in 1776. What would Thomas Jefferson do, pray tell? Judges, law clerks and attorneys are not schooled in history per se, and this deficiency is demonstrated in the shoddy work that has already emanated from such amateurish forays into the minds of the deceased men from centuries ago. Am I alone in my dismay over Justice Samuel Alito’s pronouncement that his search of history discovered no hint that women had any rights in the autonomy or privacy of their own bodies? Is this not a formula for chiseling ignorance in stone for perpetuity?
Putting these concerns aside for the moment, I wish to focus on another aspect of the gun industry’s expansion of the Second Amendment — the entanglement of our own armed forces with the gun industry and the distribution of modern military weaponry.
I have previously written about the Department of Defense (DOD) contracting with the SIG-Sauer gun manufacturer to supply the military with the world’s most powerful and lethal semi-automatic firearm — the MCX-Spear. This advanced firearm features ammunition with such high velocity ammunition that it penetrates the body armor of its targets as well as similarly protected infrastructure. A little-known fact is that the Army not only provided the specifications for the weapon to the manufacturer but cooperated with it to permit its technology to be used in the commercial trafficking of the Spear to the general public.
This begs the question of why the DOD failed to protect civilians from the misuse of this highly destructive war weapon by contractually or otherwise protecting its technology from disclosure and profiting through non-military commercial trafficking.
It is frightening to contemplate the carnage that can be wreaked by just a single shooter armed with such a destructive weapon. Recently, a number of power stations in North Carolina, Washington state and Oregon were targeted by terrorists who, according to law enforcement sources, utilized “high-powered” firearms to inflict millions of dollars’ worth of damage to their energy infrastructures in those areas. This is exactly the scenario which will inevitably follow the practice of permitting and facilitating the dissemination of our highly advanced military weapons to the uncontrolled market of commercial vendors. These weapons will foreseeably wind up in the hands of domestic terrorists and mass murderers.
And the reality of this partnership of our military with the gun dealers is even more troubling when you combine it with another little-known fact — in 2005, after Congress lifted a 10-year ban on the sale of assault weapons, the DOD officially lent its prestige to protecting the gun industry by recommending to Congress that it pass legislation (the Protection of Lawful Commerce in Arms Act) conferring immunity on the arms industry for liability stemming from the resumption of the sales of these very types of weapons.
Civilian casualties were an easily known and predictable consequence of these reckless actions by Congress in conjunction with the DOD, and the protection from liability was a key incentive to sales and maximum profiting by the industry. The result has already been felt by the tens of thousands of innocent victims murdered or incapacitated by those arming themselves with state of the art military firearms, and the losses have been exponentially increased by the grief of their loved ones as well as the terrible fear of what used to be safe — e.g., sending children to school, going to the theater, attending church, going to work, shopping at the mall and virtually every aspect of a normal life.
I cannot overemphasize the impact of the omnipresence of these grave consequences on our society and culture. We simply are not safe anymore, and our very lives have been discounted and demeaned in favor of enhancing the profit margins of those engaging in the commercial trafficking of such weaponry.
Our legal system protects lives and requires due process before the state may deprive anyone of life. Yet consider this contravention of that principle: The grant of immunity to the producers and sellers of these types of weapons deprives the victims and their families of any compensation much less due process in the taking of their lives. Children, parents and loved ones are left without any recourse, and there are no consequences for the profiteers. According to a recent New York Times article, gun violence is now the leading cause of death for American children.
To add insult to injury, gun industry representatives recently testified before a congressional committee that they don’t even compile statistics on the incidents in which their military grade weapons are used in mass shootings or other criminal or terrorist attacks on civilians. Their attitude is, essentially, “Why should we?” The excuse that is advanced is that the murderers are committing criminal acts, and their crimes are not intended by the sellers but are intervening events for which the sellers bear no responsibility.
This is a hollow defense which is contradicted by logic and common sense. Years ago, when I was serving on the bench, I had a case where a similar argument was advanced in an environmental case before me. An old-growth preserve, the Willamette National Forest’s Warner Creek, was severely burnt by arsonists, and the U.S. Forest Service decided to award a contract to a timber company to conduct salvage logging and replant the forest. Environmental groups filed a lawsuit contending that the Forest Service did not comply with the National Environmental Policy Act, which required the Forest Service to thoroughly consider the possibility of its decision on incentivizing future arsons in the forest. The agency had declined to study that issue because arson is a crime.
I ruled that the criminal nature of arson did not insulate it from a hard look at the issue, including whether more arsons were a foreseeable consequence of awarding the salvage logging action, e.g., creating jobs in the community. The comparison is apt — by dismissing mass shootings and other such criminal acts perpetrated by the wielders of these firearms as irrelevant, the industry chooses to be blind to the reality and choice of their repetitive use in such crimes and continues to market them regardless
Our elected representatives are another significant reason Americans continue to be victimized by the ongoing gun violence with no meaningful counter measures. The Citizens United decision by the Supreme Court ruled that corporations have a right to contribute money to the campaign coffers of politicians. The consequent impact on legislators is a formidable obstacle to effective Congressional action. Our Supreme Court’s pretext that there is no “quid pro quo” in the contributions is swallowed in the muck of dark money and lack of accountability — and everyone knows it.
This is part of why America hasn’t done what is necessary to eliminate our ongoing gun violence problem. There is a deadly combination of ignorance, falsehood, greed, concocted history, self-interest and a military-industrial connection that has brought us to the point where Americans are conditioned to accept the situation as normal. We must reject that construct, and push back with all our energy and wits.
For example, on the legal front, we must challenge the legitimacy of the ahistorical version of the Second Amendment that is the foundation of the current jurisprudence within the judiciary. To my knowledge, that jurisprudence is not the product of any trial record developed through evidence subject to sworn testimony, cross-examination, or the opportunity to present contrary testimony through qualified history experts (a Garry Wills, for example, rather than a law professor or law clerk without such a background). Our judiciary should rarely tackle such controlling and disputed issues without affording a trial and findings by either a jury or a trial court.
On the political front, America has begun to organize in a manner that counteracts the corporate money flowing into the campaign funds of lawmakers. Organizations such as Sandy Hook Promise, Moms Demand Action, Students Demand Action, Everytown for Gun Safety and March for Our Lives, among others, are urging legislators to pass gun safety laws and building a movement to reduce gun violence.
On the military’s role, we must insist that they insert in their contracts with suppliers of military weapons the agreement not to share the technology with or distribute the weapons to the general public. This can be done without congressional legislation, as the current president, the commander in chief of the Armed Forces, can issue an order to that effect. Common sense alone tells us that our own military should not be funneling its weaponry to terrorists to use against our nation’s infrastructure and our people.
There are other ideas, such as using the Environmental Protection Act as a legal tool to evaluate the health and safety risks of guns. The EPA’s Rules and Regulations that Impact Children’s Health require government actors, for example, to study the impact of proposed action on the health and safety of children and assess adverse and disproportionate risks in setting EPA standards. Mass shootings at schools typically involve implements that are developed by and for the military. These weapons are “products” which children are “exposed to.” We should push for the EPA to evaluate weapons in the public domain along with the air, water and chemical products that the EPA currently regulates.
We should also require the military to study the impact on the safety of children of releasing their weapons to the public. As I discussed previously, the criminal act inherent in the misuse of such weapons is not a reason to ignore the problem, but instead, given its frequency, a compelling reason to address it.
These are just some suggestions. I welcome others to chime in. The bottom line is that we are sacrificing the lives of our children and other victims; that is the true price, and no sane or democratic society should remain silent about this outrage. A nation that fails to protect its children is a failing state. It cannot survive.