Our National Gun Violence Epidemic and America's Political Future, by Jordan Walsh

Gun deaths in the United States are higher per capita than any other developed, democratic nation, nearly 30 gun deaths per 1 million citizens per year in 2012. We also have the highest rate of actual guns with about 89 guns per 100 U.S. citizens. Mass shootings dominate the news at a rate so common that some don’t even garner much media attention, often due to coverage of other mass shootings. Gun deaths by suicide are also at an epidemic level in this nation. In 2013 alone, 82 children were killed in mass shootings, compared to 27 policemen and women in the line of duty. While the decrease in police on-duty deaths is laudable, few could argue that it should be more dangerous to be a child at school than a professional law enforcement officer. Other democratically governed nations, when faced with even a fraction of the gun-related disasters of the United States, have acted, and have seen results. In Australia, following a 1996 mass shooting in Tasmania, the legislative response was to ban semi automatic and automatic weapons. Gun deaths plummeted 59% and suicides by gun went down 65% in Australia over the following decade. More telling, there has not been a single mass shooting in Australia since.

Even here at home, studies show that those states with the toughest gun laws also tend to have the fewest gun-related deaths relative to their sister states. And our Constitution, even in light of the Supreme Court’s most recent holdings in Heller and McDonald, supports such laws. McDonald held only that the right to bear arms contained in the Second Amendment was to be applied to and successfully balanced against state or local laws that completely banned the ability of a citizen to keep a handgun in one’s own home. (Heller had held the same as to federal laws.) It most certainly did not state that every citizen always has an unfettered right to do so. More, McDonald did not create or guarantee a right to possess military grade automatic weapons; it did not create or guarantee a right to extended magazine clips; it did not create or guarantee the right to unlimited gun and ammo stock-piling; it did not create or guarantee the right to take possession of a gun on demand; it did not create or guarantee a right to open or concealed carry in all places outside the home; it did not create or guarantee the right for criminals to own guns. (In fact, SCOTUS has recently upheld federal gun laws banning “straw” purchases, challenged in the wake of McDonald.) And most importantly the Second Amendment—even as interpreted in McDonald—does not create the right of gun manufacturers and dealers to be one of the only industries in our nation that is free from wrongful death tort liability stemming from their own recklessness or negligence in manufacturing or marketing their product.

Congress allowed, and continues to allow, all of this to occur. And they do so because of the money and influence of one special interest group, in defiance of the wishes of almost 90% of the American people who want at least some policy shift on this issue. A whopping 50% of the gun deaths in this nation are tied to guns from a mere 10 states, arriving in our cities and schools via illegal interstate travel. America’s children are being sacrificed at the altar of the N.R.A., and Congress is holding the collection plate.

Even more telling as to the state of our national gun-death epidemic, I have yet to even mention domestic and intimate partner violence. The possession—or not—of a gun is the single most determinative factor in whether a female victim of domestic violence is likely to be murdered by her abuser, or survive. Yes: if your abuser has a gun your chances of dying at their hands increase 500% in the U.S.A. Yes, five times more likely. Thus, buying a gun for protection does not increase your chances of survival at all, it decreases them—laying waste to another canned GOP response to violence against women. For all the horror evinced stateside at the case of South African Olympian Oscar Pistorius’s murder of his girlfriend Reeva Steenkamp, outcomes in the American justice system are little better. Over 35% of American women (and 28% of men) will suffer rape, physical violence and/or stalking by an intimate partner in her (or his) lifetime. As recently as 2010, 4 in 5 sufferers of intimate partner violence were female. For all the focus on drug related or mass shootings, the most common way to kill a woman in America is by far a gun, and women in the U.S.A. are killed by men at a horrifying rate of 4 deaths per day, 33 a week.

Although many felons are technically barred from gun ownership, and domestic abuser felons are supposed to be de facto barred, many loopholes exist. One such loophole, the boyfriend loophole, allows for those who are not legally married to avoid the federal definition of “domestic abuser.” More, due to the intimidation faced by survivors and the difficulty they have in testifying, many domestic abuse cases are pled down to misdemeanors in order to get convictions—thus allowing the abuser to further circumvent the system, as those subject to misdemeanors and restraining orders are not included in most gun ownership bans. Domestic violence and violence against women are about power and control, and the link between fatal violence against women and guns is evident even in the so-called manifestos of mass shooters, particularly on school campuses. The Oregon shooter, like many mass murderers before him (the overwhelming majority of which are Caucasian males) referenced women’s refusal to date him—i.e. simple female autonomy—as a reason for his horrific crimes.

That gun control is a feminist issue is not up for debate. That the enactment of gun control legislation does not mean the de facto taking away of lawful citizens’ lawfully purchased guns should not be up for debate either, but unfortunately in 2015, the N.R.A. has used their lobbying dollars to suggest, and to fool a sizable minority into believing, precisely that paradigm—that gun control is an all or nothing proposition. Nothing could be further from the truth—balancing is an inherent part of the analysis of the scope of any Constitutional right, and it is something legislatures and courts are presumed competent to do. The Second Amendment, like all civil liberties, can be respected and protected simultaneously with the respect and protection of the most fundamental liberty of our citizenry: the right to remain alive. Gun violence (particularly when one factors in gun-related suicides, an actual “mental health” issue we should be discussing as a society) is a public health epidemic in this nation, and yet our Congress currently does not even permit federal research on the issue.

To protect American lives, our next President must be prepared to address this issue in whatever ways are available to him or her—with or without Congress.

Sadly, the Republican party as currently constituted stands wholesale against most legislation designed to protect the lives and rights of the vulnerable, and the current crop of 2016 GOP hopefuls’ stances on mitigating gun violence do not stray from the articulated party line of “more guns.” Statistics, of course, do not bear this line of reasoning out as anything more than mere propaganda. America already has by far the most guns of any comparable nation per capita; and we also have the most gun deaths. Further, the “good guy with a gun” myth is just that, myth—no armed civilian has ever successfully thwarted a school shooting in this nation. The current GOP lock-step stance with the gun lobby on policy was, of course, not always the case. Republican idol and gunshot survivor, Ronald Reagan, was a noted supporter of gun control. He would fail his own party’s N.R.A.-rating litmus test today.

The 2016 Democratic candidates’ approaches to stemming the tide of gun deaths in this nation, however, are not so uniform. Front-runner Hillary Rodham Clinton released one of the most proactive and sweeping plans to combat gun violence seen from a leading U.S. Presidential candidate. Some of her major policy points include: Executive Action to close the gun-show loophole, and tighten Internet gun sales, even if Congress doesn’t act; the repeal of the in-aptly named Protection of Lawful Commerce Act [“P.L.C.A.”] which allows gun manufacturers to avoid virtually all tort liability, and even collect attorneys’ fees from the families of gun-death victims; the closing of the “Charleston loophole”—which allows anyone to take possession of a gun if their background check is not completed in three (3) days time, and finally, truly prohibiting domestic abusers from being able to buy and possess firearms.

Contrastingly (and likely coming as a surprise to many of his “very liberal” supporters), Sen. Bernie Sanders actually voted in favor of the 2005 P.L.C.A. and, worse, has yet to disavow his support for it. The P.L.C.A. is unique in American commerce, as it completely insulates gun dealers and the gun manufacturing industry from tort lawsuits for wrongful death arising out of their own negligence or recklessness in gun marketing, sales, or product development. It was passed for the express purpose of insulating the gun industry from corporate bankruptcies. Worse, it has been the basis for surviving families of mass shooting victims owing gun manufacturers hundreds of thousands of dollars under corresponding state statutes providing attorneys’ fees to winning parties.

The P.L.C.A. is a jarring departure from other areas of American law. Tort law has long been the area of American law designed for, and capable of effectuating fairness and public safety-based changes to the dangerous, overly profit-driven business practices of our major industries. From early railroad safety, to asbestos litigation, to bad pharmaceuticals, and even as to clergy sexual abuse, civil lawsuits have served as the primary means with which the average citizenry is able to have access to justice to right the public wrongs of negligent or reckless private institutions, which enable such harms for their own benefit. Each of these industries and institutions was moved to change, and institute policies consistent with public safety because of negligence and recklessness based on third-party tort litigation. Without it, we might not even have warning labels on pharmaceuticals or seat belts and airbags in cars. We certainly would not have most of our mandatory reporter laws for child abuse or the Clery Act, which mandates reporting of on-campus sexual assaults. Tobacco products might still be able to be marketed to children, even if they couldn’t legally be sold to them. Each of these legislative progressions stemmed from the outcomes of a critical mass of tort cases. More, jury verdicts and equity-based rulings in tort cases often provide notice to legislators as to an issue to focus possible future legislative changes designed to protect public safety.

Sen. Sanders’ vote in favor of the P.L.C.A. is not an isolated one either; he voted in favor of allowing guns on Amtrak trains in the Northeast corridor, came out publicly against the Brady Act in order to win his first congressional election, and refused to distance himself from N.R.A. support in his first campaign. The Brady Act, passed in the wake of the shooting of President Reagan, mandated federal background checks and waiting periods. More worrisome, Sen. Sanders has been apt to embrace the GOP favored anecdotal straw-man of the “mentally ill” being the reason for gun violence in this nation, when in reality the mentally ill are far more likely to be victims of gun violence than perpetrators of it. Other factors such as substance abuse or a history of violence, combined with access to guns, form the deadliest combination in America, statistically speaking. One factor which has not been as strongly correlated, is depictions of violent images in the media, the curbing of which is another of Sen. Sanders’ suggested responses to gun violence. Depending on precisely what he means, that response could raise First Amendment speech concerns.

The Democratic candidate whose platform seems best aligned with an ideologically left standpoint on gun control would actually be Gov. Martin O’Malley, whose presidential campaign has yet to gain much traction. His platform would go so far as to limit gun ownership to those Americans aged 21 and older, which if ever enacted (prohibitively unlikely with the current Congress), would surely face constitutional challenges.

If he is to be qualified to be the Democratic nominee for President, Senator Sanders must face up to the wrongs of his record on guns and disavow his vote for P.L.C. A. and support more stringent measures to protect Americans from gun violence. We will need a President who not only supports reasonable gun control measures, but one who feels strongly enough that (s)he is willing to spend the political capital necessary to get something done on the issue. It should be noted that Sen. Sanders does not have a full gun control policy platform section available yet on his website, and has yet to specifically disavow any of his anti-gun control votes as a Senator. Contrastingly, after the truth about the lack of weapons of mass destruction [WMDs] in Iraq came out, Senator Rodham Clinton admitted during her 2008 campaign that in hindsight, with all information, she would change her vote, and no longer supported the war in Iraq. She has similarly disavowed many of her husband’s so-called “race-blind” criminal justice policies from the 1990s, as time and evidence have shown them to be part of the cause of our current mass incarceration epidemic. No candidate who has been in American politics for as long as Sen. Sanders and Secretary Rodham Clinton can be expected to have never gotten it wrong. But America needs a president who can admit mistakes, and adapt their policy stances to be effective going forward. If a current national policy is clearly not working, we must be willing to try something different. On correcting our abysmal national response to gun violence, so far into this Presidential campaign Sen. Bernie Sanders has not demonstrated he is the right person for that job.

 

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JordanWalsh