Stephen E. Smith II

Through the end of May there were 23 school shootings this year resulting in either death or injury. Only 21 weeks had elapsed that far into 2018. There was, therefore, more than one school shooting a week during that period.

It is now apparent that our elected representatives, for whatever reason, are not going to tackle our plague of mass school shootings, accidents involving firearms, and the resolution of disagreements by violence. There have been many suggested avenues open to them: licensing; nationwide databanks of purchases and sales of firearms; background checks; restriction of various fire arm accessories; more in-school personnel protections; and early detection of likely troubled minds. But they gag when asked if the scourge might have something to do with firearms, and instead, have been known to argue that the reason for so many gun accidents and massacres is a function of our nation’s abortion policy; or of too much pornography; or of various mental health issues – and then cut the budget for mental health care.

Current interpretation is very recent

Moreover, it is clear that the current interpretation of the Second Amendment to our U.S. Constitution, which has been in vogue for only the last 10 years — an interpretation that is contrary to our interpretation of it for the preceding 200 years — frustrates any common-sense remedies to our current plague. I agree with former U.S. Supreme Court Justice John Paul Stevens, who wrote in March 2018:

Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that “a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.” During the years when Warren Burger was our Chief Justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. In 2008, the Supreme Court overturned Chief Justice Burger’s and others’ long-settled understanding of the Second Amendment’s limited reach by ruling, in District of Columbia v. Heller, that there was an individual right to bear arms. I was among the four dissenters. That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power.

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A focus on ‘bear arms’

According to Dennis Baron, a professor of English and linguistics at the University of Illinois, Justice Scalia, being a strict constructionist and writing the opinion, focused on the words, “bear arms,” and concluded that the right to “bear arms” would not have been spoken in a military context in the 18th century. He thought that the meaning of “bear arms” simply referred to carrying a weapon and had nothing to do with armies. Justice Scalia wrote:

Although [“bear arms”] implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. From our review of founding-era sources … [i]n numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia.

But Baron says that Justice Scalia was wrong — that databases of English writing from the founding era confirm that “bear arms” is a military term, and that uses of that phrase in the non-military sense are almost nonexistent. He says there are 1,500 separate occurrences of “bear arms” in 17th- and 18th-century writings and only a handful don’t refer to war, soldiering or organized, armed action.

Baron points out that in 1995 historian Garry Wills put it succinctly:

One does not bear arms against a rabbit.

And that about 150 years earlier, Tennessee Supreme Court Judge Nathan Green wrote:

A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and yet, it would never be said of him, that he had borne arms. …

Despite the flawed reasoning in Heller, its reasoning and its decision is still binding. And while I adhere to the thought processes of Justice Stevens and professor Baron, and the interpretation of the Warren and preceding courts, it is nonetheless probable that, even if the 2nd Amendment were correctly interpreted and all of the above mentioned regulatory avenues were enacted, somehow, somewhere, someone would slip through the cracks and there would occur another mass shooting, another toddler accidentally killing another, or worse.

Policymakers’ tools

Policymakers have two broad types of instruments available for changing the various habits and activities in society. They can use traditional regulatory approaches that set specific standards and expectations, or they can use economic incentives or market-based policies that rely on market forces to correct or modify societal behavior. Throughout the history of the United States, most activities that as a society we would like to encourage or discourage are implemented through the use of “sticks,” or regulation; or through the use of “carrots,” or incentives. To enhance charitable giving, we make the giving a tax deduction. To prevent excess cultivation, we reduce real estate taxes via a “green acres” program. To encourage people to “go green,” there are all kinds of incentives, including tax credits, low-interest loans, property-tax abatements, and others. And to encourage people to understand right from wrong, and to make the right choice as opposed to the wrong choice there are disincentives. Those disincentives are normally couched in terms of loss of money or loss of freedom.

When the legislative “stick” has failed — as it has in the case of gun legislation, because policy makers are at loggerheads, flummoxed, addicted to the money of arms manufacturers, or otherwise lack the courage to act — perhaps in this instance the desired action must be accomplished via the “carrots” of incentives and disincentives.

So to maybe make some positive headway against our current plague, I introduce the concept of “strict liability.” Strict liability, sometimes referred to as “absolute liability,” exists in both civil and criminal law, and refers to holding an individual liable for damages or losses without having to prove fault or negligence. Generally, in tort law, an aggrieved person has to prove that his grief was sustained on account of someone’s fault, whether by negligence or intent. The law, however, recognizes that there are certain circumstances that are so inherently dangerous or hazardous that there is no need for the aggrieved to prove direct fault or negligence. Instead there is strict liability.

At one point I was breeding and raising Morgan Horses and exhibiting them throughout the Midwest. I kept a stallion on my property. I had read that if my stallion should get out and kick or bite someone, which stallions are noted for, I would be strictly liable for resulting damages. I consequently built a corral that was enclosed by a 6-foot high fence made out of sturdy 2-inch thick oak planking, and supported by posts almost a foot in diameter. I did this for self -protection as I knew I would be strictly liable if that stud horse got out. My lack of negligence or malfeasance would have been irrelevant. Other examples include product liability, the harboring of wild animals by zoos or others privately, the disposal of hazardous chemical wastes, and the storage of explosives.

In 2012, Adam Lanza used weapons, apparently legally owned by his mother, to kill 26 children and adults at Sandy Hook Elementary School in Newtown, Connecticut. Just recently a 17-year-old loner slaughtered 10 at a high school in Santa Fe, Texas, using a pistol and a shotgun legally owned by his father. I don’t know where Nikolas Cruz got his weaponry to terrorize the high school in Parkland, Florida, or where James Holmes got his to terrorize Aurora, Colorado, or where Devin Kelley or Stephen Paddock got theirs to kill people in Sutherland Springs, Texas, or Las Vegas, Nevada, respectively; but somebody owned them, probably legally. Additionally, there are many, many incidents of children being killed by other children playing with guns — and in May a man in Iowa was shot by his own dog while they were playing on a couch. Incidents such as these prompt the question of whether there is simply too much carelessness about the storage and protection of firearms, an activity for which there should be disincentives.

A ‘disincentive’ approach

I am suggesting that the courts, and legislators, could extend the concept of strict liability to the housing of firearms, just as in the case of the keeping of stallions, wild animals or explosives. I am suggesting that legislators might more easily focus on the back-end of the issue with a “disincentive” approach to our current plague, as opposed to the front-end “regulatory” approach that has them so flummoxed. If a person feels a need to own firearms, and if those firearms “get loose” and cause harm, perhaps the owner should be strictly liable, at least civilly, without any burden thrust upon the aggrieved to prove negligence.

Placing that burden on such an owner may be considered onerous, but it certainly is not more onerous than was my effort to build a corral that would have probably restrained an elephant and even a rhinoceros or two.

Stephen E. Smith II, JD, is an attorney who practiced law in the Minneapolis-St. Paul metropolitan area from 1967 until 2011 with a focus on the representation of entrepreneurs and their start-up, development stage and emerging businesses.

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