By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli
New York, NY -(Ammoland.com)- In the wake of the Marjory Stoneman Douglas High School tragedy, the mainstream Press, echoing the sentiments of antigun activists and antigun legislators, focused the public’s attention on two subjects: guns and mental illness.
Antigun activists argue that guns and mental illness are both intractable. Mix the two like a cocktail and you have a recipe for disaster. That, as maintained by antigun activists, accurately explains the cause of the mass shooting incident at the Parkland, Florida High School. But does it?
In an editorial, appearing in The New York Times on February 24, 2018, titled, “I Can’t Stop Mass Shooters,” by Amy Barnhorst, Associate Clinical Professor of Psychiatry at the University of California, Davis, admitted the conundrum. The author writes, “Each mass shooting reignites a debate about what causes this type of violence and how it can be prevented. Those who oppose further restrictions on gun ownership often set their sights on the mental health care system. Shouldn’t psychiatrists be able to identify as dangerous someone like Nikolas Cruz. . . ? And can’t we just stop unstable young men like him from buying firearms? It’s much harder than it sounds.”
The author has no answer other than the perfunctory, putting “some distance between these young men and their guns.” But, would that prevent mass violence? Clearly, it would not even if this seems plausible to some. Signs of mental illness in a person do not automatically mean a person has violent tendencies. Conversely, those individuals who not fall within one or more listed categories in the latest version of the “Diagnostic and Statistical Manual of Mental Disorders” (“DSM-5”)—the Psychiatrist’s Bible—may have violent tendencies.
From An Empirical Standpoint, Dispossessing Civilians Of Their Guns Will Do Nothing To Circumvent Violent Crime.
“The reality is that mass shootings are very rare and that neither mental illness nor mass shootings are a significant cause of gun violence. Individuals with a serious mental illness only account for approximately 4 percent of all violent crime in the United States,the majority of which is not committed with a firearm. Furthermore, individuals having no history of mental illness committed a number of these mass shootings. With mental illness representing such a small fraction of gun violence, gun-control efforts focused solely on the mentally ill are ‘unlikely to significantly reduce overall rates of gun violence in the United States.’” “The New York Safe Act: A Thoughtful Approach To Gun Control, Or A Politically Expedient Response To The Public's Fear Of The Mentally Ill?”, 88 S. Cal. L. Rev. 16, 43-44 (2015), by Matthew Gamsin, J.D. Candidate, 2015, University of Southern California Gould School of Law.
Despite this evidence, anti-gun activists nonetheless vehemently call for general bans on the sale of semiautomatic “assault weapons” and are specifically targeting those individuals deemed to have mental illness, which may very well raise due process and equal protection issues for millions of Americans. Were these steps taken, violence would still ensue. Consider:
“On April 15, 2013, two homemade bombs detonated 12 seconds and 210 yards (190 m) apart at 2:49 p.m., near the finish line of the annual Boston Marathon, killing three people and injuring several hundred others, including 16 who lost limbs. On April 18, the Federal Bureau of Investigation (FBI) released images of two suspects, who were later identified as Kyrgyz-American brothers Dzhokhar Tsarnaev and Tamerlan Tsarnaev.”
“The Oklahoma City bombing was a domestic terrorist truck bombing on the Alfred P. Murrah Federal Building in downtown Oklahoma City, Oklahoma, United States on April 19, 1995. Perpetrated by Timothy McVeigh and Terry Nichols, the bombing killed 168 people, injured more than 680 others, and destroyed one-third of the building.”
“Eight people were killed and almost a dozen injured when a 29-year-old man in a rented pickup truck drove down a busy bicycle path near the World Trade Center Tuesday in Manhattan, New York City. The suspect was identified by two law enforcement sources familiar with the investigation as Sayfullo Habibullaevic Saipov. He's from Uzbekistan in Central Asia but had been living in the US since 2010, sources said.”
Whether these killers were mentally ill in a clinical sense or “normal,” they did not need a firearm to create havoc.
Of course, anti-gun activists and their cheerleaders in the mainstream Press and in Congress argue that civilized Countries place restrictions on civilian access to guns and that doing so would constrain a killer’s access to one lethal instrumentality. Still, anti-gun activists must contend with the legal ramifications of attempting to curtail civilian access to firearms in a Country where the citizenry's rights and liberties, codified in a Bill of Rights, cannot be so easily dismissed.
Indiscriminately Dispossessing The Civilian Population Of Their Guns Would Not Hold Up To Legal Scrutiny
The U.S. Supreme court, in the landmark second amendment Heller case, held that the right of the people to keep and bear arms, codified in the second amendment, is an individual right, not connected to service in a militia. Further, the second amendment right embodies armed self-defense. And from a pragmatic perspective, civilian defense of arms is pressing because, contrary to popular belief, the police are not legally required to safeguard the lives of individuals. That responsibility rests on each person.
Anti-gun activists retort that nothing in the Second Amendment guarantees the right of an American citizen to own and possess an “assault weapon.” But, is that true?
First, the concept of ‘assault weapon’ is a legal fiction that encompasses a wide range of weaponry. On examination it becomes clear that anti-gun proponents and activists are not merely targeting some semiautomatic weapons; they are targeting all semiautomatic weapons. The legal issue is whether semiautomatic weapons in common use—which include firearms defined as ‘assault weapons'—fall within the core of Second Amendment protection. The U.S. Supreme Court has not weighed in on this. But, that does not mean Government, State or Federal, may presume semiautomatic weapons, especially those firearms referred to as “assault weapons,” do not fall within the core of the Second Amendment.
Second, a corollary to the basic, unfettered, natural right codified in the Second Amendment is that American citizens have a right to possess a firearm for self-defense. Anti-gun activists argue that armed self-defense is unnecessary because it is the duty of the police to safeguard the lives and well-being of the citizenry. But do police departments, as government entities, really have that duty? They do not!
“No inquiry is more central to constitutional jurisprudence than the effort to delineate the duties of government. The courts' approach to this complex subject has been dominated by reliance on a simple distinction between affirmative and negative responsibilities.Government is held solely to what courts characterize as a negative obligation: to refrain from acts that deprive citizens of protected rights. Obligations that courts conceive to be affirmative—duties to act, to provide, or to protect—are not enforceable constitutional rights. “The Negative Constitution, A Critique,” 88 Mich. L. Rev. 2271 (August 1990) by Susan Bandes, Professor of Law, DePaul University College of law.
The safeguarding of one's life is then a personal responsibility, not a police responsibility. Broward County residents, especially those high school students of Marjory Stoneman Douglas, should have learned that lesson well. Many, obviously, have not as they–at the behest of their silent benefactors and choreographers of their political strategies, the anti-gun groups–act against their own best interests. They lash out at NRA, the very organization that serves them by protecting their sacred right of armed self-defense; and they call for civilian disarmament leaving them worse off. The duty of the Police is merely to safeguard, in some nebulous sense, the well-being of a community as a whole, not the lives of the individuals who live in it. But, then, since Government has no affirmative duty to provide armed protection for each citizen, Government cannot, in good faith, deny the citizen the natural right of armed defense owed to one's self.
If the public is to take away anything from the recent Parkland, Florida tragedy, it is this:
The Broward County Sheriff’s Department and the first responders from the Coral Springs Police Department did an abysmal job. By the time the Coral Springs Police SWAT team arrived, it was too late. Lives had been lost. An investigation unfolds, but it means nothing; for, whatever the outcome, police departments do not have and never did have an affirmative duty to protect individuals within a community. They are immune from suit. This is not supposition. It is law.
“Thus . . . a claim that police officers failed to protect a particular individual from injury by nongovernmental actors is generally not cognizable; a successful claim would require sufficient prior contacts between police and the individual to indicate a specific undertaking or promise by the police to provide protection and detrimental reliance by the individual. Absent such facts, there is generally no liability for failure to enforce laws and regulations intended to benefit the community as a whole, failure to provide police or fire protection, or failure to inspect.” Affirmative Duties, Systemic Harms, and the Due Process Clause, 94 Mich. L. Rev. 982, 999-1000 (February, 1996), by Barbara E. Armacost, Professor of Law, University of Virginia.
The first and last line of adequate defense both inside the home and outside it is, as it always was, as the framers of our Constitution knew full well and as they provided for: armed self-defense.
Alert: Contact Your Republican Congressional Representatives Now.
Call your U.S. Senators and U.S. Representatives. Tell them this: “if you want my support, then vote for national handgun carry reciprocity now.”
Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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