Constitutional Education Opportunity – Kavanaugh Confirmation

The impending confirmation hearings for Brett Kavanaugh’s nomination to the U.S. Supreme Court promise once again to be an education bonanza for the American people – as long as Senators do not muck it up with too much partisan bickering.

The Supreme Court history can be broken down, according to Cass R. Sunstein’s “Unanimity and Disagreement on the Supreme Court” into two periods: 1800-1941 and 1941 to present.  The earlier period was one of great harmony with a very high rate of unanimous decisions and almost no dissenting opinions.  After 1941 there was a major shift to a Court that was less based on consensus and more like “nine separate law offices.”  Consenting opinions, dissents, and 5-4 decisions were far more common.

Post Parkland (and now Santa Fe) - Call to action

Immediately following the Parkland mass public shooting, I asked readers of the Liberty Takes Effort blog to ACT by contacting their governors and state legislators to demand immediate passage of Extreme Risk Protection Order (ERPO) laws within their states.

  

If you acted - great.  I am going to ask you to do more to protect children in our schools.   If you did not – you can jump on board now.

The fatal shooting of 10 and wounding of 14 at Santa Fe High School in Texas last week is just one more warning that this can happen anywhere.

Florida passed an ERPO law within weeks of the Parkland mass public shooting.  Reasonable people demanded reasonable action and reasonable elected officials acted.   Florida’s new law has been used several times already to intervene and separate a person at the intersection of dangerousness and fire arm access. 

Vermont and Rhode Island recently passed ERPO laws and 20 additional states are considering them (AK, AL, AZ, HI, IA, IL, MA [legislature voting very soon], ME, MI, MN, MS, NJ, NV, NY, OR, PA, TN, TX, VA, WY.)  Is your state listed?   Is it not?  Have you expressed your opinion to your state legislator and governor?  Have you encouraged your family and friends to take action?  Waiting for the next election is not the answer!

Post Parkland – dangerousness and fire arm access

Dangerous people should not have access to fire arms.  On this subject there seems to be near universal agreement.  Laws, regulations, and enforcement are required to intervene and prevent people who are dangerous from purchasing or possessing fire arms.

Controversy arises largely in the defining of dangerousness.  Mental health professionals fear the mentally ill generally will be further stigmatized and isolated.  Civil rights defenders fear abuse of civil rights without clear definitions and strict adherence to due process.  These are legitimate concerns that must be addressed in the development of policies.

There are existing federal and state laws that prohibit specific categories of dangerous people from purchasing fire arms. For example, people involuntarily committed to a mental institution, or found not guilty by reason of insanity, or who committed a violent act towards others and are the subject of a domestic violence restraining order, or have been convicted of a felony, or have been convicted of a domestic violence misdemeanor.

Post Parkland: Fire Arms – Inventories, statistics, and definitions

How many households have fire arms?

There are approximately 327 million people usually resident in the United States (the population).   Of those, about 77% or 252 million are over the age of 18 (adults).  Of those adults about 100 million (40% of adult population) live in a household with a fire arm.

By comparison, in 1972 the U.S. population was 209 million.   Of those, about 65% or 136 million were over the age of 18 (adults).   The population has aged significantly since 1972 from 65% to 77% adults.  Of those adults, about 70 million (51%) lived in a household with a fire arm. 

How many fire arms are there?

There are an estimated 350 million fire arms in circulation in the US.   Though there are only 100 million households with fire arms owners may have multiple firearms.  Over 65% of fire arm owners report having more than one fire arm and about 30% have more than five.   The average household with fire arms has 3.5 weapons present.

No statistics were found indicating how many fire arms were in circulation in 1972.  However, if the 3.5 average of the present were applied to that time it would be about 245 million.

The adult population has grown 85% in 45 years.  The fire arm inventory has grown about 44%.  Though the total number of fire arms in circulation has grown from 245 million to 350 million the adult per capita number of fire arms has decreased from 1.8 fire arms per adult to 1.4.

Post Parkland – Constitutional constraints to action

In 2008, Associate Justice Antonin Scalia, writing for the majority of the Supreme Court in the DISTRICT OF COLUMBIA ET AL. v. HELLER case said after acknowledging the Court has full awareness of fire arm deaths in the country, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

Any proposed action in response to the mass public shooting at the Marjory Stoneman Douglas High School in Parkland, Florida must be lawful.   Fire arm regulation must not violate 2nd Amendment rights to keep and bear arms.   Seizure of weapons from dangerous persons and involuntary confinement of the mentally ill must not violate the 4th Amendment right to due process.   Reporting of dangerousness by health and school officials must not violate due process and 5th Amendment privacy rights.

Post Parkland - what is the goal?

Tens of thousands of students yesterday commemorated the deaths of their fellow students at Marjory Stoneman Douglas High School in Parkland, Florida.  The students expressed a range of emotion and opinion.   Some expressed in signs and words their sympathy for Parkland, while others said simply, “I don’t feel safe.”  Some called generally for action.  Some called for specific action such as banning “assault rifles.”  Others said they planned to focus on what they can do within their control by making their own student bodies more welcoming.

Watching videos of students making statements at protests one feels that adults have let these children down in any number of ways.  Six-year-old children are participating in active shooter drills in their schools.  Think about that.  Many, if not most, of the children participating in yesterday’s protests have practiced those drills their entire childhood.

  

Children should be allowed innocence.   Adults have failed them.

The students’ actions yesterday may raise media attention briefly.  But students (children) are not going to make necessary changes.  Adults should not be relying on children to do what adults should do.

The sorrow and anger that follows events like Parkland is often seen as a catalyst for change.  But that strong emotion subsides for those not directly impacted.  The nation’s attention span is short.  The media has moved on to team coverage of winter storms, Hollywood giving itself yet another award, porn star recollections, and March Madness.

We tend to be a nation that seeks fast and simple solutions.  We seek the silver bullet answer.  We eat prepared and fast food.  We want a drug or surgery to take care of our ailments when we know discipline and hard work offer a cure.   We can approve a $45 million school capital project with the snap of a finger, but God forbid we approve an additional custodian to maintain that school in the operational budget.

We tend to call out for legislation, particularly federal legislation, when something goes wrong.  When we are outraged that a federal employee paid $600 for a toilet seat we do not demand accountability within the federal workforce. Instead, we pass a federal law that puts $1 billion dollars of bureaucracy in place to prevent anyone from buying a $600 toilet again. 

 

The slog; the long term continuing process; the heavy lifting - we don’t like it and we are not good at it.   But that is what is necessary if the probability of more mass public shootings in schools is to be lowered.

Since Parkland’s mass public shooting there were several instances of threats against schools.  In the most disturbing of these two students had the real potential of executing another Parkland:

A thirteen-year-old boy committed suicide in a school bathroom in Ohio with a rifle.  Police found on his phone that he admired the Columbine murderers and he wrote a detailed attack plan for his school.  Why he changed his mind at the last minute and took only his own life may never be known.  What if he had carried out the plan?

In Vermont, an 18-year-old former student of a Rutland high school planned for two years to attack the school.  He bought a shotgun and four boxes of ammunition.  His mistake was to tell a young woman of his plan.  She called police.   He too praised the Columbine attack and thought he might carry out the attack on the anniversary of Columbine (April 20). 

  

[Aside:  Ask your children’s school if they have plans for heightened awareness on April 20.]

There is clearly a real and enduring danger of further mass public shootings at schools.

 

On February 18, my Liberty Takes Effort blog called for specific action – passage of an Extreme Risk Protection Order (ERPO) law in Florida and passage of federal law to assist all states in implementing ERPO.   Blog readers were given specific contact information to lobby legislators.

 

Florida enacted the "Marjory Stoneman Douglas High School Public Safety Act."   In a short three weeks the state came together to act in response to the horrendous mass public shooting against innocent people.   The families, legislators, and the Governor are to be applauded.  The federal government is moving toward legislation to support states implementing similar laws.

Great! But … legislation is not a silver bullet.  Passage of a single piece of legislation is not going to solve the problem.  The problem is complex and multifaceted.   Legislation is not the goal. It is only a means to an end.  It will take a lot of hard work to implement the legislation effectively and the nation’s track record in this regard is left wanting.  There are also additional actions that can be taken that might have further positive effect.

Much of the reaction to Parkland and the commentary over the past month revealed a lack of understanding about the complexity of the issue.  Without a common stated goal and common accepted facts it will be difficult to bring about further effective change.

  

The Liberty Takes Effort Blog will in the coming weeks offer four or five posts intended to create greater understanding to underpin concerted action that is both effective and achievable.

Required first is a stated and accepted common GOAL to focus research and action.

  

The GOAL

To be effective, one must focus like a laser beam on a specific goal and not be distracted.   A well defined and achievable goal is:

REDUCE THE PROBABILITY THAT A MASS PUBLIC SHOOTING WILL OCCUR IN A SCHOOL THROUGH PREVENTION, INTERVENTION, AND DETERRENCE and MITIGATE THE EFFECTS OF AN ACTIVE SHOOTER SHOULD PREVENTION, INTERVENTION, AND DETERRENCE FAIL.

Achievable action for Parkland

Another school shooting.  17 innocent people die.  This time in Parkland, FL.   Emotions are expressed in prayers, sad faces, candle light vigils, and protests.  Families hold funerals.

Details trickle out of opportunities lost to stop the murderer.   This particular case is egregious as multiple opportunities to stop it failed miserably: the FBI received two warnings (one very specific) that were not followed up; dozens of visits to the murderer’s home by police; expelled from school; Florida’s child welfare agency was called to investigate self-harming videos the murderer put online and concluded he was stable; mental health treatment likely with psychiatric medication; neighbors reported killing of animals; a friend’s parents allowed the murderer to bring a semi-automatic rifle into their home without knowing him well.