Suspicion Nation Read online

  The cost, mostly to taxpayers, of medical treatment, criminal justice proceedings, security precautions, and reductions in quality of life due to sky-high American gun violence has been estimated at $100 billion annually.213

  Is there hope for tightening America’s gun laws? After twenty first graders and six female staffers were executed at Sandy Hook Elementary School in December 2012 by a mentally ill young man armed with a semiautomatic weapon, the popular AR-15 Bushmaster rifle, a public outcry pushed for more gun regulation. President Obama advocated expanded background checks for gun buyers, reinstating the assault weapons ban that had expired in 2004, bans on high-capacity magazines, and funding for research into gun violence. Congress briefly considered and then rejected all of these reforms. To many who view America’s gun violence problem as out of control, this was cause for despair.

  With three hundred million guns in America, and sales surging, it’s unrealistic to expect America to ban guns outright, like Japan, which has only about ten gun homicides per year to our 12,000. Neither President Obama nor any other serious advocate has proposed a ban. But there remain positive signs that sensible gun reforms restricting ownership to law-abiding adults of sound mind, and tightening up the safety, handling, and licensing requirements, can save lives and prevent injury. To get there, let’s dispel some commonly held myths about America and guns.

  GUN MYTH #1: THE SECOND AMENDMENT PROHIBITS ANY RESTRICTIONS ON GUN RIGHTS.

  WHAT ABOUT THE Second Amendment to the U.S. Constitution? Does it prevent the state or federal government from enacting gun laws? Don’t Americans have the right to “bear arms”?

  Short answer: Don’t fall for the hype about the Second Amendment. The landmark 2008 U.S. Supreme Court decision, Heller v. District of Columbia, did uphold the Second Amendment right of Americans to own guns in our homes but the Supreme Court also took pains to carve out many exceptions allowing for reasonable restrictions on that right. This is true of our constitutional rights generally—they are not absolute. We must all be reasonable. Just as we have the First Amendment right of free speech, one may not yell fire in a crowded theater, nor threaten anyone, nor disturb the peace, nor protest in a prohibited area, nor violate a copyright, nor defame nor sexually harass a coworker—many restrictions on speech are legally recognized. Similarly, in the over eight hundred Second Amendment cases challenging gun laws in the United States since the Heller case was decided, 96 percent of the firearm regulations were left standing. Laws that have been upheld include prohibiting felons and those committing domestic violence misdemeanors from owning guns—for life; restrictions on machine guns and assault weapons; laws requiring gun registration; laws forbidding guns in national parks and publicly owned places; and laws banning firearm possession by parents delinquent in child support payments.214

  To be clear: it’s not the courts, nor the Second Amendment, that keep us from reforming the law to minimize gun violence. “We made it clear in Heller that our holding did not cast doubt” on many forms of gun control, the Supreme Court said in a follow-up 2010 gun case. “We repeat those assurances here.”215 A generation ago, conservative Supreme Court Chief Justice Warren Burger put it more strongly: “The Second Amendment has been the subject of one of the greatest pieces of fraud, repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

  GUN MYTH #2: THE GUN LOBBY IS ALL POWERFUL.

  SECOND, WHILE MANY view the nation’s leading gun lobby, the National Rifle Association, as invincible, this is far from the truth. The NRA has had many successes, but the perception of its strength is overblown. A Sunlight Foundation report reveals that the NRA had the worst return on investment of all major political contributors in the 2012 election. Its clout is nowhere near the public perception of it as an all-powerful force in American politics. Thousands of gun regulations have been passed in cities, states, and the nation over the objections of the gun lobby, and they continue to be passed. And all those court challenges to firearms restrictions since Heller? They were overwhelmingly lost by the gun rights side of the cases, many of which were funded by the gun lobby.

  GUN MYTH #3: AMERICANS OPPOSE ANY GUN REGULATIONS.

  IT IS TRUE that the United States is not going to eliminate firearms, like Japan or England, but it is equally true that the public supports laws requiring gun owners to be responsible with their weapons, and this is fertile ground for tightening up our gun laws. A large well of support exists for the idea that law-abiding people can own handguns and rifles, but subject to licensing, registration, and periodic safety training. For example, nine out of ten Americans say yes to universal background checks, including three of four NRA members. Currently only those buying from licensed dealers—60 percent—undergo the check, leaving a huge loophole for criminals to buy guns. Gang members, who are major weapons users in the United States, go to unregulated gun shows, buy a bunch of guns, and hand them out to their members. Requiring background checks across the board would make this more difficult. Other reasonable measures that would save lives is a loophole-free assault weapon ban and prohibition on large ammunition clips that would prevent troubled young men like the Sandy Hook Elementary School shooter from taking twenty-six lives so swiftly. Tucson, Arizona, shooter Jared Loughner, who injured Congresswoman Gabby Giffords and killed six others, was stopped by a sixty-one-year-old woman who pounced on him and grabbed the magazine of his Glock as he paused to reload. This ended the carnage. Bullets built to shatter in the body for maximum damage should be prohibited. And requiring a real waiting period before gun purchases would reduce spur-of-the-moment, hot-tempered killings and suicides because studies show that when people have to wait at least a week, many change their minds and commit no acts of violence.

  At a minimum, gun owners should be required to demonstrate proficient safety skills on a recurring basis in order to continue to own these dangerous, lethal devices. We must undergo training and testing, updated every few years, to gain a license to drive a car. Operate a vehicle irresponsibly, and that license is revoked because we want to reduce vehicular homicides. The same should be true for gun ownership. And unlike firearms, cars have a benevolent primary use: transportation. Use a car as intended and you get to work smoothly. Use a gun as intended and you take a life.

  Gun rights advocates such as NRA Executive Vice President Wayne LaPierre point to countries like Switzerland and Israel as models for the proposition that high levels of gun ownership can coexist with low homicide rates. First, those countries have a lot of guns compared only to other first-world countries, not compared to the United States. Israel has one-thirteenth the gun possession rate of America, a tiny fraction. Even fewer Israelis would own guns were it not for the hundreds of thousands possessing firearms as part of their mandatory military service. Forty percent of gun applicants are rejected in Israel, the highest rejection rate in the Western world. Though Israel is marked by frequent acts of terrorism against it, for the most part Israelis leave defense to the security professionals.

  But Switzerland and Israel do allow more gun ownership than other Western nations (outside the United States), and they have little gun violence. How do they do it? They require licensing, training, and permits for those who want to keep firearms, and annual (or even more frequent) permit renewals to be sure that the reasons for gun ownership remain valid. Safety training, permits, and licensing will not reduce gun deaths to zero, but they do make a difference.

  No single measure will stop all the heartbreaking gun deaths in America. But with our high number of gunfire victims and lax gun laws, we can save many lives by requiring gun owners to behave like grownups with their deadly weapons. If we reduced American gun violence by just one homicide per day, we’d save the equivalent number of lives as were lost in the Sandy Hook Elementary School slaughter every month.

  A generation ago, antismoking activists were told they could never prevail against Big Tobacco, one of the wealthiest industries
in the world, which had used its power to beat back many proposals to limit cigarette smoking in public places. But Americans sick of cancer deaths persevered and now have largely prevailed in that fight, passing nationwide antismoking ordinances, levying hefty taxes on cigarettes, and forcing the industry to pay for antismoking educational campaigns. Cigarettes remain legal but carefully regulated, and as a result, millions of lives have been saved and improved. Just as decreasing smoking decreases cancer deaths, reducing guns reduces gun violence. Sure, cancer from other sources remains, and some killers will find other ways to kill. But cutting down on the use of the most efficient death delivery systems necessarily means fewer devastated crime-victim families, fewer people caged in our overcrowded prisons, and reduced costs to taxpayers for police, the criminal justice system, hospital emergency rooms, and medical care.

  While some states and municipalities regulate guns, nationwide our gun laws are more accurately a state of lawlessness. After many horrific school shootings—twenty-six more in the year after Sandy Hook—we learned that the shooters obtained their firearms legally. Our inaction, our failure to fill the legal void by restricting even high-powered automatic weapons, enables the next madman to arm himself and prevents law enforcement from stopping him until after he has killed.

  Our gun laws have veered back and forth over our nation’s short history. Concealed carry, for example, was reviled in the nineteenth century. As Adam Winkler points out in his book Gunfight,216 an Alabama court once called the secret carrying of weapons an “evil practice,” and a Louisiana court wrote that concealed carry created a “tendency to secret advantages and unmanly associations.” By 1907, nearly all states had laws prohibiting the carrying of concealed weapons. In the first decade of the twenty-first century, concealed carry is permitted in all fifty states.

  Our gun laws can be rewritten as often as we like until we get it right. Where there is lawlessness, order can be imposed. Sybrina Fulton implored us to use her family’s tragedy to take action to prevent others from becoming grieving mothers, as do many mothers of American children dead from gun violence. We don’t have to guess or even debate whether gun restrictions would save lives: the records in dozens of other advanced countries spanning decades proves they do. Our tears and condolences in response to the daily gunfire and the periodic incidents of mass carnage in schools, malls, and workplaces are not enough when we know what needs to be done and fail to comport ourselves like other civilized nations.

  ELEVEN

  Bring It On, Make My Day, Stand Your Ground

  WHEN EXACTLY DID we stop prioritizing saving human lives? I’m pegging it to 2005.

  Before that year, the number of guns and gun deaths in America was high, to be sure. But penalties for gun violence were also high, placing an elevated level of personal responsibility on firearms owners. It was almost a setup: guns were easily available, but one misstep—a negligent shooting, even simply brandishing a gun or firing a warning shot in the air—could have dire consequences. In most states a crime committed with a firearm warranted a “gun enhancement,” meaning the perpetrator got extra years tacked onto his sentence for introducing a gun in the course of a crime. California’s “10-20-life” law, for example, adds ten years to the underlying felony sentence when a gun is used in the crime; twenty years if the gun was fired; and twenty-five years to life if a gun user kills or seriously injures his or her victim with that gun. These sentences are on top of the sentence required for the underlying crime, such as robbery. “Use a Gun and You’re Done,”217 as the law is nicknamed, is intended to deter criminals from bringing deadly weapons to their encounters in the first place. The idea behind gun enhancements is to allow law-abiding Americans to own guns while at the same time dealing harshly with those who commit crimes with them. Because carrying guns into volatile situations increases the likelihood of carnage, we hope (though evidence for it is scant) that catchy phrases and long prison sentences will motivate criminals to leave their firearms at home. Why? Because we want to save the lives of our citizens. Because human life is paramount.

  Prior to 2005, a standard element of selfdefense law also was intended to save lives: the requirement of retreat. I learned this as a skill in Krav Maga, a no-nonsense, practical martial arts class, years ago. The first rule of selfdefense, the hulking, testosterone-charged Israeli commando taught us, was the “Nike defense.” If an attacker came at us, our first move, drilled into us in training exercises, was to quickly scan the area for an escape route. If one was available, we were to run like hell. Only if confined, or restrained, or locked in a room, were we to fight back. We learned the effective, even brutal fighting techniques that could neutralize or kill an assailant, but the most important lesson was restraint, the learned reflex to look for a way out first before doing any harm. Training fighters to run away from a threat may be unsatisfying to macho impulses, but more people wake up breathing the next day. Also, conveniently, this lesson dovetailed with the law at the time, which permitted the use of force in selfdefense only where withdrawal from the altercation was not possible. In short, the law, and sensible selfdefense training, required de-escalation. Flight, not fight.

  To be honest, over the years Americans have never been entirely comfortable with the requirement of retreat, nor was it mandatory in every situation even prior to 2005. The Castle Doctrine, in effect in most states nationwide since the beginning of our republic, allows inhabitants of a residence to shoot to kill intruders in their home when a threat is perceived, even if withdrawal is possible. When the sanctity of our home is violated, we are not required to run out the back door, hop a fence, and scurry off, even if that would save more human lives. A line was drawn around the perimeter of our property. “A man’s home is his castle,” (as is a woman’s) and Judge Benjamin N. Cardozo218 said of it a century ago:

  If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home … Flight is for sanctuary and shelter, and shelter if not sanctuary, is in the home.

  A home is where one runs to, not from. Being a fugitive, taking to the fields and highways, tail between one’s trembling legs—the image is unseemly, undignified. Most of us would probably embrace the Castle Doctrine because the idea of forcing a homeowner to run away, or stand by and not defend her own home, just feels alien and wrong.

  That is, until you consider the real-life consequences of allowing citizens the unrestricted right to shoot someone on their property.

  Yoshihiro Hattori219 was a sixteen-year-old Japanese exchange student staying with a family in Baton Rouge, Louisiana, in 1992. He loved American culture, jazz, and dancing. One night in October he was off to a Halloween party with his homestay teenaged “brother,” Webb Haymaker. Yoshi, as his family called him, was dressed for the Halloween party in a white tuxedo and gaudy jewelry as the John Travolta character from the movie Saturday Night Fever. Webb confused the address, and they wound up at the wrong house, though it had Halloween decorations and lights on inside. The boys rang the doorbell and announced that they were there for the party. When there was no answer, they headed back to their car. Inside the home, meanwhile, Bonnie Peairs had looked through the window, seen the boys, and screamed for her husband to get his gun. Rodney Peairs quickly emerged from his home with his .44-caliber Magnum revolver and yelled “freeze.”

  Hailing from a country with strict gun control laws, Yoshi had no familiarity with firearms whatsoever. “Freeze” was a word that Yoshi, with very limited English skills, probably did not understand. He may have thought the gun was a Halloween prop. When he continued to move and wave his arms, perhaps mimicking Travolta’s famous disco dancing moves, Rodney Peairs pulled the trigger, killing him.

  The jury deliberated just three hours. Peairs was acquitted under Louisiana’s version of the Castle Doctrine, called the “shoot the burglar” law there. The defense depicted Peairs as a down-home, regular guy who enjoyed “sugar on his gri
ts,” just as they did. His fears were their fears. “In your house, if you want to do it, you have the legal right to answer everybody that comes to your door with a gun,” the defense attorney had argued in closing argument, a correct statement of the law. “A man’s home is his castle,” one dismissed potential juror had said, questioning why the case had even gone to trial.220

  Yoshi was not a burglar. He never entered the Peairs home. He had no criminal intent whatsoever. There was nothing reasonable about the Peairs’ fear. Nevertheless, the Castle Doctrine protected Rodney Peairs, to the great shock of Yoshi’s family, which has spent the last two decades fighting unsuccessfully for stricter American gun control laws. In Yoshi’s name, they’ve established a peace park and a foundation221 that brings American students abroad to experience virtually gun-free Japan.

  While the concept of protecting one’s own home seems sensible, the death of young Yoshi is a reminder that answering the door with a loaded firearm increases the chance of accidental shootings based on mistaken identity, misunderstandings, or wrongheaded suspicions. And even inside one’s home, tragic mistakes can occur from gunfire at intruders. In Florida, a ten-year-old and a fourteen-year-old boy trespassed onto a property with several trailer homes, attracted by piles of junk and old parade floats as their father worked at a nearby warehouse. Discovering some piles of wood, they knocked on the doors of the trailers to ask permission to take the wood to build a fort in a nearby forest. Finding the door to one home slightly ajar, they entered. Within seconds, the elderly homeowner, seated inside, picked up his gun and shot and killed fourteen-year-old Eric Brooks. A Florida appellate court said that the resident’s fear that the boys were burglars was enough for him to shoot to kill in his own home, and reversed his conviction.222 Both boys were unarmed.