Wednesday, December 12, 2007

Gun-Free Isn't Free

MORE: here.

The recent killings in Colorado and Nebraska prompted Alan Korwin to renew his recommendation for legislation that might both deter and mitigate shootings where only the killer is armed: "If you create a gun-free zone, you're liable for any harm it causes." Korwin's proposal was mooted in the Arizona, Georgia and Illinois legislatures years ago, but never adopted.

I support the concept. There may be no perfect solution, but why not emphasize self-defense? As SayUncle details, "armed citizens have a reasonable record at stopping mass murderers." Robbers too--sometimes without firing a shot. Those backing gun-free zones in, say, churches, schools or shopping malls, Glenn Reynolds observes, believe:
they'll make people safer, when in fact they're only disarming the people who follow rules, law-abiding people who are no danger at all.

This merely ensures that the murderers have a free hand. If there were more responsible, armed people on campuses, mass murder would be harder. . .

People don't stop killers. People with guns do.
Yet, Korwin's approach isn't ideal. National solutions are probably beyond the authority of Congress. See United States v. Lopez, 514 U.S. 549 (1995) (invalidating "Gun-Free School Zones Act of 1990"). And though state or local acts would work, passage would be time consuming.

What about a judicial alternative? Normally, I'm opposed, because policy is the prerogative of legislatures, not the judiciary. But tort liability is properly the province of courts. Especially under common law, which continually evolves via precedent. Why shouldn't disastrous forced disarming be considered negligent?

So let the lawyers go forth on behalf of murder victims and sue gun-free establishments (a point Instapundit previously made). Besides, after the Presidential primaries, it's a perfect new career for ex-malpractice lawyer John Edwards.

(via Instapundit)


Stan said...

People are coming around... the latest P.O. poll on gun control suggests a trend in the right direction, and I think it was taken right after VT.

But this is the kind of thing that will be settled in the courts, either with liability suits (which make sense in the private sector) or cases like D.C. v Heller.

What I don't get is how the bearing of arms can be banned completely from state universities and public schools given the 2nd and 14th amendments, and many similar state constitutions. I'm no legal scholar, but from what I gather, most of the gun laws were made possible, or at least thought as constitutional thanks to the flimsy U.S. v. Miller decision. When I read that decision, I don't see how such bans and especially "assault" weapon bans are justified.

I hope SCOTUS doesn't chicken out and try to justify the status quo. I'm confident Heller will establish the individual right view, but fear the liberal legislative gem of "reasonable restrictions."

Carl said...


I hope you're right about the trend, especially regarding concealed carry. As you know, I'm optimistic the SCOTUS will affirm 2nd Amendment individual rights. But I'm similarly sure "reasonable restrictions" will remain Constitutional--that construction controls virtually all "Bill of Rights" liberties (e.g., warrantless border searches, prohibitions on obscenity).

The Heller case won't outlaw state gun registrations, background checks, or even required gun-safety training. Still, it should allow me to buy a Sig Sauer--perhaps the new P250. I'd call that a victory.

Stan said...

Still, it should allow me to buy a Sig Sauer--perhaps the new P250. I'd call that a victory.

Yeah, finally emancipate the D.C.ers!
Speaking of which, what do you think of statehood?

Obloodyhell said...

I think one thing which needs to be clearly pushed is that we cannot allow "gun control" and the second amendment to be about crime. The second amendment has nothing to do with crime, it is there to maintain control of the government, nothing less. Even a casual reading of Federalist Paper #46 makes this blatantly evident, that the people who voted for the Constitution did so with the express concept in mind of Machiavelli:
"Among other things, being disarmed causes you to be despised."
And the first goal of any peoples should be that their government not only respects them but fears them. A measure of crime is the price we pay to avoid despotism... and any examination of the events of the 20th century will make it very obvious that despotism can be far more deadly than a little crime.

Carl said...


Mostly I don't care if DC is a state or not. What does concern me is that we stick to the Constitution (specifically, Art. 1, Section 8, cl. 17) and change the status quo the sole lawful way--by Constitutional Amendment.


I mostly agree, but might not go as far as you. I'm unpersuaded by the argument that the Second Amendment should be interpreted as facilitating the ability of the people to overturn the Constitution by force. We need not go that far, because of the related and more "sell-able" position that the Amendment reflects the facts that neither national nor state government can promise citizens absolute protection from evil. See Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (Posner, J.) ("there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution.") Then, the danger was from Indian tribes. Later, the danger was from foreign invaders. And at all times, there was danger from criminals. The right to bear arms accordingly should be viewed as consistent with, and in support of, limited government.

Bird of Paradise said...

Lets repeal all gun free zones and declair all gun control laws and gun bns as unconstitutional and screw the liberals