Braille Monitor January 2014

The Gun Debate, Why It Matters for the Blind

by Greg Trapp

From the Editor: From time to time someone in the press does a story on blind people who own or use guns. Regardless of how the story is slanted, it always provokes debate. No matter how one feels about the interpretation of the Second Amendment, in the debate concerning the blind the issue is always whether we can safely use a gun or benefit from having one. It isn't just the judgment of blind people that is called into question but whether we have the physical senses and the experience to use them in safely aiming a weapon.

I think most of us who are blind proved to our friends and enemies alike that we have the skills in early childhood when we experimented with the water gun, the rubber band shooter, or the paper wad propelled by the rubber band. I remember getting stung by those paper wads and finally deciding that I would no longer be passive about the matter. I learned to roll the paper tightly, got myself a stash of rubber bands, and, after having been shot during the course of a high school history lecture, I aimed my paper wad and prepared to shoot. Blindness posed no problem with my aim, but it did make it harder for me to observe the teacher who, when he was talking, had his back to me, but who had turned around while I was aiming and said, "Gary, if you want that shot to do any good, aim a bit lower. Hitting him in the back of the head is a waste of paper; hitting him on the back of his neck just above the shirt collar may get his attention."

Greg Trapp is the executive director of the New Mexico Commission for the Blind, a position he has held since 1999. Prior to becoming commission director, he was a senior staff attorney with Disability Rights New Mexico. He has taught disability law as an adjunct professor, and he is a past president of the National Council of State Agencies for the Blind (NCSAB). He currently serves on the NCSAB Executive Committee and is vice president of the New Mexico Navy League Council. He is also a longtime member of the National Federation of the Blind. Here are his personal thoughts about the issue of blind people and guns:

The issue of guns is one of the most divisive topics in modern American politics. Some see gun ownership as a cherished right and tradition that should be protected and expanded, while others see it as a risk to public safety that should be more tightly controlled and regulated. The issue of blind people owning and using guns has recently factored into the contentious debate. After the tragic school shooting in Newtown, Stevie Wonder called for additional gun control, saying that current gun laws were “ridiculous." Seeking to underscore his point, he said, “Imagine me with a gun. It’s just crazy.” In New Jersey a blind person was recently arrested for carrying ammunition on an airplane and for having an undeclared handgun in his luggage. New Jersey has also been the location of the long-running case of Steve Hopler, in which the state sought to take away Hopler’s guns. Most recently it was Iowa, where National Federation of the Blind state president Mike Barber garnered international attention when he spoke out on the rights of the blind to buy a gun or obtain a permit to carry a concealed handgun. Regardless of one’s position on the overarching issue of guns and gun control, the outcome of this debate has the potential either to constrict or to expand the rights and opportunities available to the blind, and it is a matter that should concern us all.

Responding to the recent spate of stories regarding blind people and guns, on September 12, 2013, the National Federation of the Blind issued the following statement on gun ownership by blind individuals:

In recent days there has been much discussion about whether blind individuals should be permitted to own and/or carry firearms. The National Federation of the Blind, the oldest and largest nationwide organization of blind Americans, understands that guns are dangerous weapons and that anyone who owns, carries, or uses them must therefore exercise great care and sound judgment in doing so. Blindness has no adverse impact on a person’s ability to exercise due care and good judgment. State firearms laws must be applied in a nondiscriminatory manner to blind individuals. Recognizing that laws and regulations regarding the granting of permits to own and/or carry firearms vary throughout our country, our single position on firearms regulation is that a permit to own and/or carry a gun should not be denied to any individual solely on the basis of blindness.

It is indeed true that “blindness has no adverse impact on a person’s ability to exercise due care and good judgment.” Those who reflexively say that blind people should not possess guns are likely doing so under the mistaken belief that blind people are intrinsically unable to exercise good judgment or due care when deciding whether to own or discharge a firearm. That belief assumes that a blind person is incapable of being anything other than careless and that a blind person will haphazardly fire without any awareness or regard where the bullet may strike. Such a belief is based on a lack of understanding of blindness and of the capabilities of people who are blind. It assumes that blind people lack the ability to reason and exercise common sense.

Those who contend that a blind person should not be allowed to possess a gun would add us to the list of people who are prohibited by federal law from purchasing or owning a firearm. The prohibited list includes felons, fugitives, people convicted of misdemeanors involving domestic violence, people subject to a domestic abuse restraining order, people who are unlawfully using or addicted to controlled substances, people dishonorably discharged from the US armed forces, people adjudicated to be “mental defectives,” and people “committed to mental institutions.” Proponents of stricter gun control laws contend that the list should be expanded to include people that have been shown by studies to be at higher risk of gun-related crimes, such as people convicted of certain misdemeanors or who are “dangerously mentally ill.” Some states have adopted laws to restrict gun ownership on the basis of such studies. What is lacking from the current debate is any comparable study showing that there is a problem with blind people owning guns or, even more implausibly, that blind people are somehow more likely to commit gun-related crimes. Instead, people who are blind are simply assumed to lack capacity or constitute a danger. In the language of the Gun Control Act of 1968, those who want to exclude the blind from being able to purchase a gun are placing the blind in the same status as those people adjudicated to be mentally “defective” or “committed to mental institutions.”

In reality blind people are far from unique in terms of being unable to see the target. There are countless circumstances when a sighted person cannot see what he or she might shoot. For instance a .30-06 hunting rifle has a maximum range of over three miles and can easily fire through multiple walls. A 9mm pistol is also capable of firing through more than one wall and has a maximum range of over a mile. Even the diminutive .22 rimfire can penetrate walls and fire out to a range of more than a mile. Because a bullet can be fired over great distances and through objects, a sighted shooter’s view of where a bullet could impact will potentially be blocked by walls, floors, ceilings, fences, buildings, signs, hills, bushes, trees, and a myriad of other items. A gun can also be fired in the pitch black of night, in a darkened room, in thick smoke, or in a dense fog. Bullets can also ricochet in unpredictable directions. In other words a sighted gun owner has the potential to shoot people he cannot see. This is exactly the same argument made against people who are blind. The only difference is that a blind person is presumed to be inherently incapable of exercising good judgment, whereas a sighted person is presumed to be capable of using good judgment. Conversely, the presence of sight does not bestow good judgment or infallible decision-making. Even highly trained law enforcement officers with perfect vision can misinterpret what they see and make a tragic error, such as the case of a child with a toy gun being mistaken for a criminal with a real firearm.

The issue of blind people firing guns is far from new. One of the most famous incidents took place during the World War II battle of Guadalcanal. On August 21, 1942, the First Marine Division was positioned to defend against Japanese attacks at the Ilu River. Private Al Schmid, Private John Rivers, and Corporal Leroy Diamond were deployed on the west bank of the river. The three Marines were manning an M1917 .30 caliber machine gun. The Japanese attack began at 3:00 AM. Schmid, Rivers, and Diamond responded by firing their machine gun against the attacking Japanese troops, who were yelling and shouting at the American forces. Schmid took over the machine gun after Rivers was killed and Diamond was wounded in the arm. “Tell me which way they’re coming from and I’ll get them,” Schmid told Diamond. Diamond spotted targets in the dark, and pointed in the direction Schmid was to fire. After battling this way for several hours, Schmid was seriously wounded in the face and arm by an exploding hand grenade. “They got me in the eyes,” Schmid told Diamond. Schmid reached for his .45 automatic pistol, and Diamond said, “Don’t do it, Schmitty, don’t shoot yourself.” Schmid replied, “I’m going to get the first Jap that tries to come in here.” “But you can’t see,” Diamond told him. “Just tell me which way he’s coming from and I’ll get him,” Schmid said. At this point it was beginning to get light, and their position was starting to come under more accurate and intense enemy fire. Although seriously wounded and blinded, Schmid reassumed his position at the machine gun and began firing with Diamond yelling directions. When the battle was over and the Japanese forces were defeated, Schmid was credited with killing over 200 Japanese soldiers. Schmid, Rivers, and Diamond were each awarded the Navy Cross for their extraordinary heroism and conspicuous devotion to duty, with Rivers’ medal being awarded posthumously. The story of Schmid’s combat action and subsequent life as a blinded veteran was the basis of the movie, Pride of the Marines.

There are several lessens that can be derived from the heroic story of Al Schmid. Most of the battle took place at night and at a time when Schmid was unable to see the target at which he was shooting. The Japanese forces were yelling taunts at their American opponents, and Schmid was using the noise of their taunts to adjust his aim. Diamond was also directing Schmid’s fire, a technique that is commonly employed by blind shooters. While it is normal for the members of a machine gun team to help spot targets, Diamond was probably also spotting because Schmid was directly behind the machine gun, and the bright muzzle flash would have hindered his vision of the target. Once Schmid was blinded, and even though it was starting to get light, Diamond still continued to spot for Schmid. For his actions, Schmid was awarded the Navy’s second highest honor. The only higher award Schmid could have received would have been the Congressional Medal of Honor. In essence the Navy recognized that Schmid was exercising “good judgment” as well as valor in his decision to fire his machine gun against enemy forces and to ready his .45 pistol to defend his position.

The concept of a person handling a gun without seeing the target would have been very familiar to the United States Navy. For instance, the crews that fired the massive guns on American battleships relied on spotters and fire control systems to direct the guns, the largest of which could fire more than 23 miles. The military even taught its servicemen to assemble and disassemble their weapons while blindfolded. Al Schmid was newly blinded, but despite his serious injuries and the intense stress of combat, his Marine training helped him to know that he possessed the ability to exercise good judgment in either the use of his .45 pistol or in his .30 caliber machine gun.

A blind person is of course capable of exercising poor judgment, just like any other man or woman. However, a blind person who exercises poor judgment should be treated like any other individual in the same circumstances and not be held to a different standard merely on account of blindness. The long-running New Jersey case of Steve Hopler illustrates this point. Hopler lost his vision due to diabetes in 1991. Three years after he lost his vision, the police learned of Hopler’s blindness and revoked his permit to purchase guns, relying on a state law that said a gun permit should be denied to "any person who suffers from a physical defect or a disease which would make the owner unsafe to handle firearms." Hopler challenged the decision in court and won a ruling that allowed him to retain his permit and fire his guns in the presence of an adult trained in the use of firearms. In 2004 the police sought to revoke Hopler’s handgun permit because Hopler had been arrested for being drunk and unruly the year before. Hopler again challenged the decision and again prevailed. Had Hopler been convicted of a felony or of a disqualifying misdemeanor, he would have lost his right to own a firearm. Four years later Hopler accidentally shot himself in the leg while cleaning his .357 magnum handgun. While he recovered in the hospital, twelve of Hopler’s guns were stolen from his apartment, one of which was later used in a suicide. The investigating police found several more firearms in Hopler’s apartment. One of the guns was loaded and hidden in an oven mitt, and another loaded gun was hidden under a sofa. The police again decided to seek the forfeiture of Hopler’s guns. The same person who stole Hopler’s guns testified that Hopler drank alcohol to excess. Relying on this questionable testimony, the Morris County Prosecutor revoked Hopler’s gun permit and seized the rest of Hopler’s guns. In 2012 Hopler again won the right to have his guns returned after a ruling by a Morris County Superior Court that said his disability should not take away his Constitutional right to bear arms.

Another high-profile example of a blind gun owner who has received extensive media attention is Carey McWilliams. In contrast to Steve Hopler, McWilliams emphasizes his extensive firearms training and marksmanship skills. He has even written a book titled Guide Dogs and Guns: America's First Blind Marksman Fires Back. McWilliams obtained widespread media coverage in 2001 when he obtained a permit as the first totally blind person authorized to carry a concealed handgun. In 2007 he obtained a second concealed carry permit from Utah. Because of reciprocity agreements, McWilliams is allowed to carry a concealed handgun in more than half of the nation’s states. McWilliams has been called the “single largest threat to the Second Amendment,” has been the target of jokes in a segment of the Colbert Report, was interviewed on The Early Show with Bryant Gumbel, and was shown in the documentary Bowling for Columbine. He has promoted himself as an active hunter, using a variety of guns to bag game that has included an antelope, a bear, and an alligator. He has even downed ducks and pheasants in flight. According to McWilliams, “brains are more important than sight for safe carrying.”

There are certainly many Americans who sincerely and strongly believe that gun laws need to be reformed and that tighter gun controls need to be put in place. Stevie Wonder doubtless falls into the category of people who seek additional gun control. However, the debate over gun control is a matter of overarching public policy and should be distinct from the issue of whether blind people ought to be allowed to own or purchase guns.

There are also many Americans who sincerely and strongly believe that gun ownership is a right that needs to be protected and expanded. It is likely that at least some of these Second Amendment supporters might be uncomfortable with the thought that blind people are able to own or purchase firearms. However, they may be even more uncomfortable with the potential consequences of prohibiting gun ownership on the basis of blindness, which is why Carey McWilliams has been labeled the “single largest threat to the Second Amendment.” What makes McWilliams a threat to the Second Amendment is that expanding the prohibited list to include blindness might create a slippery slope leading to other medical or disability-related restrictions. For instance, if gun ownership could be prohibited on the basis of blindness, it might be argued with equal reason that a deaf or hard of hearing person might not hear a range master’s instruction to cease shooting, hear a family member identify himself in the dark, hear an undercover police officer identify herself as a law enforcement official, or hear a business manager say that concealed handguns are not allowed on the premises. Similar arguments might be applied to people who have other disabilities or medical conditions, including people who have depression or who take any kind of psychotropic medication; people with dementia and seniors at risk of dementia; people who might suffer a loss or alteration of consciousness due to conditions such as diabetes or seizure disorders; and even any people who have night blindness or who have less than perfect vision.

When Congress drafted the Americans with Disabilities Act of 1990 (ADA), it recognized that irrational fear of harm or injury had long been used to justify discrimination against people with disabilities. Accordingly, Congress imposed very strict limitations on the ability of covered entities to exclude people with disabilities on the basis of an alleged threat to health or safety. Under the ADA people can be excluded only if they present a “direct threat” of a “significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services.” The risk also cannot be “speculative” or “remote.” These provisions enable people who are blind to engage in activities that range from the mundane to the exotic. Without the protections that allow blind people to own or purchase a firearm, they might be prohibited from engaging in a wide variety of other pursuits on the pretext that some element of risk is involved. In other words, blind people could be excluded not only from more adventuresome activities such as horseback riding, whitewater rafting, mountain climbing, and skydiving, but even from such routine activities as taking a cooking class, exercising at the local gym, going on an amusement park ride, or enjoying a vacation on a cruise ship.

The rights of all Americans, including rights protected by the Americans with Disabilities Act, are frequently preserved in ways that create the greatest societal discomfort. One of the most poignant examples of this is the 1977 case of National Socialist Party of America v. Village of Skokie. The case involved the request of a group of neo-Nazis to march through the Illinois community of Skokie and to wear Nazi uniforms and display swastikas. The request was calculated to create outrage because a majority of the 70,000 residents of Skokie were Jewish, and about 5,000 were actually survivors of the Holocaust. The unpopular cause of the marchers was taken up by the American Civil Liberties Union, which argued that restrictions on the marchers violated the First Amendment’s free speech protections. The United States Supreme Court upheld the right of the marchers, affirming the importance of the First Amendment and the right to free speech. Although very few Americans would consider the opinions of the neo-Nazis to be anything other than reprehensible, to have denied them the right to express their opinions would have greatly restricted the free speech rights of all Americans. Although a large portion of the public, including some who are blind, may also be uncomfortable with the concept of blind people purchasing or owning guns, to restrict them solely on the basis of blindness would diminish the rights of people who are blind and ultimately of all Americans.