As someone who grew up in a region that strongly supported the right of the people to keep and bear arms I’m probably a bit biased when it comes to interpreting the 2nd Amendment to the U.S. Constitution. I’ll be blunt – I think it allows citizen’s to own guns. Not just a militia, not just a police force – any ordinary person has the right to purchase and keep a firearm. That said – I don’t hear anyone advocating that it allows citizens to own and keep bazookas – so there are limits on what rights are enshrined in the constitution.
But the whole idea of a constitutional right is to grant it to the extent that maximizes its effect without infringing on other rights or other people’s exercise of those rights. You should not set out to limit a right – the goal should always be to expand it to its reasonable limit. So, with this in mind I believe that any measures taken to cut down on gun violence should only be done in a manner that preserves the gun ownership rights of the American populace.
Then again, I’m also against loonies shooting children. Always have been. Never once have I, or any of the people I know who support the 2nd amendment come out and said “Ya know, there aren’t enough kids being shot recently”. Neither has anyone gone “Dammit, it’s been a while since someone who thought he was The Joker managed to arm himself to the teeth and take out a cinema complex”. So gun control advocates need to get real when caricaturing the typical gun owner. Not one supports this and, while a particularly offensive lobbying group has been laying the groundwork for a major backlash against gun owners (looking at you NRA), I think that a majority of gun owners would, if approached rationally, support equally rational attempts to limit gun violence.
And, from this point on, I’m going to get in trouble with my gun owning friends because I’m going to talk about changes to the law that will limit, not gun ownership, but gun operation. I understand this response but would urge gun owners to avoid falling prey to the NRA’s scorched earth strategy and approach what I’m saying here with an open mind.
When the shootings in Newtown Connecticut took place it quickly became known that the perpetrator had used his mother’s guns to carry out both her murder and the massacre in the elementary school. In other words – he wasn’t the owner of the guns involved – they were someone else’s but, let’s face it, a gun doesn’t know whether it is being wielded by the rightful owner or a passerby. My proposal would be to take a limited first step towards enhancing gun safety by making it possible for guns to “know” this information from henceforth.
When you sat down at your computer to read this blog you may have signed in using a PIN number. You certainly use such an ID code when you access your ATM account. We have, or could have, the technology to make such a personal code attachable to every gun manufactured and sold in the United States within a very short period of time. A device could be fitted to guns that would require a three or four digit code to be implemented before a trigger guard would be released rendering the gun active. If such a code had been in place, and Nancy Lanza had kept it to herself, it is quite possible neither she nor any school children or staff would have been shot by her nutjob son, Adam.
There will be a knee jerk response against this proposal from the NRA and some gun owners but, remembering that I support ownership rights, please keep in mind that this proposal would not prevent a single person who is lawfully authorised from buying, owning or operating a gun. All it does is make a gun a more personally responsible item. This is what I believe gun owners have always been taught anyway. When you buy a gun – it is your gun. It belongs to you. If you treat it well, it will treat you well. If you serve its needs responsibly it will serve you responsibly. If you are negligent, unthinking or foolish then those are the characteristics that your gun will reflect. The use of this enhanced technology will simply make these statements truer, will simply make your gun more definitively yours.
But, you may be saying, there are lots of guns out there already and, if you’re like me, you’re not too keen on passing laws that force people to do things – that’s government interference in an area that, for the most part, government should stay out of. I understand both the worry about existing guns and new legislation. I think I have a reasonable way to deal with both, but it’s going to require me to get a bit “legal” on you.
First, a bit of explanation on where I live. I’m currently located in Dublin, Ireland and work as a lawyer here (after having been originally trained in the States). I am constantly bombarded with European lawyers who criticize the U.S. as being too litigious. “Everyone sues everyone over there”, I hear, “how do you ever get anything done?”. At first I agreed with this ongoing barrage. Then I got bored with it. Finally, while I don’t support all aspects of the U.S. approach, I have come around to believing that America has a better system than the Euroweenies, and here is why.
After having lived here for years I began to understand that the reason Europeans have no asbestos in their buildings, have seatbelts and airbags in their cars, have knowledge about the dangers of smoking or the hazards of the workplace is because those dangers were first made apparent in the crucible of American litigation. We do all the work, they sit back and get all the benefits. Europeans wander like sheep waiting for Americans to battle about what standards of behavior should apply and then passively bleat “baa, baa” while their governments legislate the rules Americans hammered out in the marketplace of ideas. I’m speaking in an exaggerated manner but my fundamental point is that over here change comes about passively (and late) while in the States change is usually more dynamic and proactive.
Let’s use that dynamism to incent changes in gun behaviour rather than wait for laws to be passed requiring it. First, let’s simply tweak the rules surrounding litigation to institute “presumed strict liability” for a gun manufacturer who sells a weapon built after 2014 in the market without personal trigger guards when that weapon is used by someone to commit a crime, or wrongfully injure another. They can rebut this presumption only by showing the weapon is older than 2014 or that they didn’t manufacture it. Otherwise, build and sell an unprotected gun like this in the U.S. and pay when it is used criminally or negligently. That payment won’t come in the form of a government imposed fine – it will come by way of a lawsuit directly instituted by the injured party or their surviving family. Want to change manufacturers' behaviour? Make them understand that if they don’t follow this best practice when making their product they’re going to have every law firm in the land lining up to sue them.
The second solution (on what to do about guns manufactured pre-2014) is a bit tougher but I think it should run in a somewhat similar way. If you own or sell a gun post 2014 (regardless of year of manufacture), and said gun doesn’t have a personal trigger deactivation device – you will face a presumption of strict liability when someone else uses that gun and causes injury, death or damage. So let’s say Nancy Lanza wasn’t shot by her son in 2012 – instead crazy Adam was around in 2015 and tries to pull the same stunt. If he took those guns from his mother (or a neighbour, or a shop) and they were not protectively equipped that owner would face the presumption of negligence in allowing an injury, damage or death to occur. As a result they would be strictly liable for resulting damages and would face the threat of loss of their house, business or bank accounts. This debt would, like a personal injury claim, be non-dischargeable in bankruptcy. It wouldn't matter if they said "I thought it was locked away safely" or "my house was broken into and it was stolen" - no coded device, no defense. This is a strong incentive to make your weapon truly your weapon and people will flock to the shops to have their guns fitted with the device.
I want to be sure I differentiate what I am talking about from what is currently on a gun. All (or most) guns have safeties. But a safety is there to prevent the holder from inadvertently discharging the firearm. A personal trigger deactivation device is designed to prevent anyone other than the owner (or the person they entrust with the code) from firing the gun. It is designed to keep guns from being fired without the owner’s permission – not to keep the gun from being fired by mistake. The technology required to build this device exists, is relatively inexpensive and does provide a means of enhancing gun safety without limiting the right to own a gun. It won’t solve all problems, prevent all crimes or make everyone happy. But in an environment where people are asking that something be done – this is something, and it is real, not imaginary. It requires compromise on the part of gun owners. It also will require them to ignore the industry driven objections of the NRA – a tasteless advocacy group that is increasingly reflective of the needs of greedy business interests and not its individual members. For anti-gun groups it will require you to at last face up and admit the reality of what the second amendment means – a U.S. citizen has, and should have, the right to own a gun.
But it will be a gun that is truly theirs – their protection and their responsibility.
