An Epidemic of Gun Violence - NJ Law Journal Editorial Board

Editorial, December 21, 2012
An Epidemic of Gun Violence
by the New Jersey Law Journal Editorial Board
(c) ALM Media, LLC  All rights reserved

In Heller v. District of Columbia (2008), a Supreme Court majority held that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Unless we amend the Constitution that settles the question — the right is personal, no link to a militia required. Gun control skeptics were elated. Some — like 7th Circuit Judge Richard Posner, a sometimes maverick conservative, have gone even farther. Recently he wrote for a divided circuit panel in Moore v. Madigan (2012) that a rational basis was not enough to save an Illinois statute that prohibits carrying a gun for self-defense outside the home. Of the Second Amendment, Posner wrote:

"[O]ne doesn't have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. Suppose one lived in what was then the wild west, the Ohio Valley for example (for until the Louisiana Purchase the Mississippi River was the western boundary of the United States), where there were hostile Indians. One would need from time to time to leave one's home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one's home unarmed."

Such thinking has brought us to the current pass: Our personal arsenals are built on a legal foundation devised for a state of war, to protect settlers committed to occupy the lands of an aboriginal people. The Illinois case is not over. The Legislature has been given 180 days to save its statute. It is imperative that we turn away from this constitutionalized state of war. It has made arsenals available to the criminal and the insane who have brought assault rifles to our classrooms, movie theaters and shopping malls. The legal foundation of a new approach is the police power, its name is regulation, and public health and safety is the objective. Gun safety, not gun control, is a good way to think about it. And it has worked before.

Much of the impetus for automobile safety in the late '50s and early '60s came from public health studies detailing and publicizing the carnage on the highways. In 1959, Dr. C. Hunter Shelden wrote in the Journal of the American Medical Association: "The doors, seats, cushions, knobs, steering wheel and even the overhead structure are so poorly constructed from the safety standpoint that it is surprising anyone escapes from an automobile accident without serious injury."

Daniel Patrick Moynihan — a sociologist who had studied traffic safety — cited the study in his first published article, "Epidemic on the Highways." He combated the National Safety Council's safe-driver approach with a safer cars campaign. Ralph Nader's book, Unsafe at Any Speed, spurred popular calls for action. By focusing on safer cars rather than safer drivers, we made enormous strides in auto safety in the next decades. With legal innovations like strict products liability we spurred safer designs, legislation mandated advances like three-point seat belts, and penalties helped to change public behavior so that most people actually use them.

A strict ban on assault weapon possession other than by military forces is a good place to start a gun safety campaign. Possession does not make us safer. An until-now little noticed 2009 study by University of Pennsylvania epidemiologist Charles Branas and colleagues showed that in Philadelphia, individuals in possession of a gun were 4.46 times more likely to be shot in an assault than those not in possession. Among gun assaults where the victim had at least some chance to resist, the odds increased to 5.45. In a civil society such an evidence-based approach can help to combat the magical thinking that more guns will make us safer.

We are no longer at war at home. We reject the state of war logic of Moore v. Madigan. Weapons must be "well regulated." We should be hard at work on effective regulatory strategies to reduce gun violence and to protect the public health and welfare. The problem is nationwide and calls for both state and federal responses. One immediate response is to restore and strengthen the federal assault weapons ban, limit large capacity magazines and tighten background checks.

Board chairman Rosemary Alito recused from this editorial.

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