The National Highway Transportation Administration may recommend that states lower the legal limit for a DUI charge from the current level of .08 to almost half of that to .05. A few years ago, the legal limit for a DUI used to be .10 and then NHTSA moved it to the current limit of .08. Interestingly enough, most nations have a DUI limit that is .05, and that is why NHTSA may be moving in the same direction (see "U.S. May Advise Lower Limit for Drunken Driving" By MATTHEW L. WALD).
The board met to consider recommending that the states reduce the allowable blood-alcohol concentration by more than a third, to 0.05 percent from 0.08 percent, the national standard that was established a decade ago at the instigation of Congress.
The 0.05 percent standard is mostly focused on social and casual drinkers, but researchers hope it will reduce consumption among all drivers. Any recommendation made by the board would carry substantial influence.
While NHSTA cannot change state laws, if NHTSA does recommend the .05 limit, Congress can force state legislatures to change their laws to conform with NHSTA because if state do not follow NHTSA, states will lose hundreds of millions of dollars in congressional grants. And while other nations already follow the .05 limit, other countries do not have the same severe penalties for DUI convictions that the United States has. In particular, an Arizona DUI defendant can be convicted for a felony on the very first conviction and face over a year in prison. Prison sentences for DUI convictions is almost unheard of in other nations, but is common in the United States. For most other nations, the most severe penalty repeat offenders will face is loss of driving privileges.
Upon reading this article and reading the apparent fact lowering the BAC limit to .05 may save lives, a lesson NHTSA learned from other nations, I can't help but think why the same lesson would not apply to gun control laws. If other nations save lives by making access to guns more difficult, why shouldn't we heed that lesson as well?
When it comes to whether we should have stricter gun laws or even an outright ban of guns, the first, and best argument that gun rights advocates bring up is that all gun laws will do is prevent law abiding gun citizens from guns, but criminals will still have them. If in fact that argument is true, then it is a very good one, and anyone who supports a ban on guns or stricter gun laws should be able to counter it.
So is it true? If, for example, we banned all guns, obviously law abiding citizens would turn in their weapons because they are law abiding. But what about all the non-law abiding criminals? Would they turn in their guns? I don't have the conclusive answer to that question because that would require us to actually enact a gun ban and see what happens (see "Why Banning Guns Would Save Thousands of Lives").
But that doesn't mean gun control advocates should just give up on the point. One reason that immediately comes to mind is I think it is a mistake to generically say "criminals will still have them". That is because the term "criminal" is broad and the distinction between which criminals would still have guns or not have them is an important one. If we banned guns, confiscated them, banned the sale and import of guns and ammunition, then it would take quite a bit of resources for someone to get a weapon and ammunition.
By way of example, plenty of nations around the world have strict guns laws, but at least according to Hollywood movies and popular opinion, organized crime still have them. Assuming for the sake of argument that would be true here as well, doesn't that still make a gun ban a good idea? If a gun ban will keep guns out of the hands of everyone, including common street thugs but not including organized crime, wouldn't that still reduce unnecessary deaths and suffering? (see "The Difference Between a Tragic Murder...and a Massacre")
In any case, finding and using a black market requires real street smarts and lots of CASH...Requiring a potential executioner to use either a black market or slower guns/knives/butt plugs makes them less likely to act and easier to stop if they do.
Keep in mind all the victims who died from legally purchased guns (see "Add Jared Loughner's name to the list: He was a Law Abiding Gun Owner too"). My point is not that a gun ban is the perfect solution, only the best one available. We should decide what our gun laws are based on a cost-benefit analysis: what laws will feasibly reduce violence, crime, and suffering the most. If there was a magic machine that could tell us which gun owners will always be law abiding and which ones are potentially dangerous, then great, let's use that machine and not ban guns. But until that machine is made, we have to live with the options in front of us.
Does either the federal government or the individual state governments have the run to restrict or outright ban guns? And if they do, what does restrict or ban really mean? Assuming that neither the state or federal government have the right to ban or restrict possession of guns, does that mean neither has the power to restrict the sale, importation, or manufacture of guns? Does the exact same logic apply to both guns and ammunition? And is there a difference between handguns and more deadly weapons, like semi-automatic assault rifles?
One thing that most people are not aware of is the fact that the Bill of Rights to the federal Constitution did not originally mean very much at all. That was because until the passage of the Due Process clause of the 14th Amendment after the civil war, the Bill of Rights only limited the federal government. Before the 14th Amendment, any state law that violated the federal Bill of Rights was legal so long as it did not violate the particular state's constitution.
After the passage of the 14th Amendment, however, the United States Supreme Court created the "selective incorporation" doctrine. That meant the Bill of Rights would apply to limit state power on a case by case, amendment by amendment basis. If the Supreme Court held that a particular right enumerated in the federal Bill of Rights had been incorporated through the Due Process clause of the 14th Amendment, that meant any state law that violated that right was invalid, even if it did not violate that state's constitution.
But until 2010, the Supreme Court had not decided whether the Second Amendment applied to state governments. That is, until McDonald v. Chicago, there was no Supreme Court ruling that the Second Amendment of the US Constitution limited a state from restricting gun rights or enacting any gun control legislation at all. In that the case, the Court ruled that the Second Amendment was incorporated, and thus a limitation on individual state's power to enforce gun control laws, to the extent the Second Amendment is defined in another case called District of Columbia v. Heller: "We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller."
That brings up the question, what did the Supreme Court rule that Second Amendment meant in Heller? Judge Scalia wrote:
The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding... We … read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns...
That means laws prohibiting possession of some kinds of weapons were constitutional so long as it was “supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” That, of course, leaves a lot of room for both Congress and state governments to ban 'dangerous and unusual weapons' (semi automatic rifles perhaps). That reasoning is why there never was a serious NRA challenge to the assault weapons ban in effect from 1994 t 2004.
Also, the Heller decision did not address whether the Second Amendment applied outside of a gun owner's home because that decision only struck down a law banning handguns kept in the home for self-defense. In a Seventh Circuit Court of Appeals decision, Judge Posner wrote a majority decision that struck down an Illinois law that banned carrying a loaded gun in public. Judge Posner based his decision on Heller, but the exact rational he used is ambiguous to say the least. Oddly, Judge Posner claimed his review of the evidence was inconclusive whether the law would save lives. Despite that claim, he then said that evidence was irrelevant: "[a]nyway the Supreme Court made it clear in Heller that it wasn't going to make the right to bear arms depend on casualty counts". Why on Earth a federal judge would even review the evidence in the first place is beyond me. That is clearly a legislative function, not judicial.
One further issue significant issue remains: I have not seen any cases regarding the distinction between a law banning the possession of guns and another one banning the sale, manufacture, or importation of guns, even hand guns. By way of example, a law that makes it illegal to possess marijuana is not the same thing as a law that makes it illegal to manufacture, traffic, or sell marijuana. I make this point because the Court ruled the Second Amendment was the right to "keep and bear arms." Obviously, that includes the right to posses a gun. But that does also include the right to buy a new one, sell one, make one, or import guns from a foreign nation?
Until that issue is decided, it seems that at least the federal government, through its broad Commerce powers, may not have the right to take guns that already exist, but may have the power to stop the increase of new guns or resale of used guns. Thus, the way I understand current Second Amendment law is that neither the state government nor the federal government can ban personal possession of handguns, but that either may ban "dangerous and unusual weapons" like short-barreled shotguns. And there may be room to ban the commerce of all guns, including handguns. If in fact that is true, Congress could theoretically ban the sale, manufacture, and importation of ammunition, effectively achieving the same result as a total ban on guns.
For more information regarding guns and the Constitution, see the following posts this heading entitled "Guns". And I will be hosting a radio show on this topic Wednesday Dec 19 at Noon Arizona time. You can see it here "Newtown School Shooting: What can be done?".
Federal investigators planned to visit dozens of shooting ranges and gun stores across Connecticut Sunday, attempting to figure out what led smart but painfully awkward 20-year-old Adam Lanza to murder 26 children and adults at Sandy Hook Elementary School in Newtown...
Some people say lax gun laws are to blame; former Gov. Mike Huckabee said it was because we took God out of our public schools, while some others blame the lack of mental health treatment, and a "gun culture" promoted by violent movies, TV, and video games.
Considering the destructive and dysfunctional message Hollywood pimps for a cheap buck, maybe it's time Congress imposed a sin tax on Hollywood movies to make up for the cost to the rest of society. There is no reason a sin tax should just apply to gambling, alcohol, and tobacco when Hollywood trash is just as dangerous.
As far as "God" not being in public schools, that answer is downright silly. The better answer is that the modern neoliberal state has destroyed any sense of community, which organized religion used to represent, and in its place, we are now only a collection of individuals. As Margaret Thatcher wrote, "there is no society anymore, only individuals".
By encouraging us to be selfish and ultra-competitive, neo-liberalism destroys social cohesion. Other people are seen as threats and rivals, and not as potential comrades. In a neoliberal society it's much harder to make deep and lasting friendships and for families to stay together. Trust - that most essential element for building meaningful relationships - is eroded.
One of the odder things I have noticed is the convergence of Hollywood post-apocalyptic movies and Evangelical Armageddon theology. Two antagonistic groups, Evangelical Christians and Hollywood, have found common ground and are indulging in End of the World fantasy. And as a result, there are many Americans, Christians and non-believers alike, who are building an arsenal, not for basic self-defense, but for the End of the World. To them, there should be no limits whatsoever to the Second Amendment, not because they want to stop a burglar or mugger, but because they are waiting to fight the Antichrist or the next Civil War.
As governor of California, Ronald Reagan signed the Mulford Act, which prohibited the carrying of firearms on your person, in your vehicle, and in any public place or on the street, and he also signed off on a 15-day waiting period for firearm purchases. After leaving the presidency, he supported the passage of the Brady bill...
His own words:
With the right to bear arms comes a great responsibility to use caution and common sense on handgun purchases. And it's just plain common sense that there be a waiting period to allow local law-enforcement officials to conduct background checks on those who wish to purchase handguns."
Reagan and Thatcher's neoliberal ideology inevitably entails the inculcation of a widespread amorality and misanthropy among the population. With Friday's events -- and the other half-a-dozen similar incidents this year alone -- it should be no surprise (though no less of a tragedy) when psychopathy comes home to roost.
You can listen to my podcast I did on this topic here "Newtown School Shooting: What can be done?". One point that I make in my radio show is that I think the modern decline of monogamy, and rise of both polygamy and serial monogamy, combined with easy access to weapons, is the single biggest cause, or proximate cause, of recent gun rampages (see "monogamy reduces crime").
One thing I hear from a lot of gun right advocates is that because the Second Amendment reads "the right to bear arms shall not be infringed", that means Congress does not have the right to limit a person's access to guns.
As passed by the Congress:
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.
As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
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 other words, it is not an argument based on evidence or policy, but strictly one based on a literal, almost religious, reading of Constitution. It also means that citizens should have access to any weapon they desire and could afford, fully automatic rifles, machine guns, grenade launchers, tanks, etc...
Of course, this view of the Constitution is not the majority, but it is a very sizable minority. It also includes some of my very intelligent lawyer friends who are sincere believers in the Second Amendment. Having said that though, almost all, if not all, of these same Second Amendment literalists also believe that only law abiding citizens, ie, not any criminals, should have access to firearms.
But the problem with that view, unlimited weapons for law abiding citizens but none for criminals, is that distinction is no where in the Second Amendment or constitution. If in fact the right to bear arms is unrestricted and unlimited by the Second Amendment, then there is no reason why convicted felons should not have exactly the same access to weapons as law abiding citizens.
Of course, that is not the state of the law as it currently stands. If someone is a convicted felon in Arizona, or if someone has been convicted of a crime of domestic violence or under a restraining order, then that person does not have the right to own or posses a gun. Despite that fact, I have never seen the the NRA or any other gun rights advocacy group push for a repeal of that law. My question is why not?
If you are a Second Amendment literalist, but you don't believe convicted felons should not be able to own guns, tell me how you square that circle.
Jared Loughner plead guilty yesterday to murder for the Tucson shootings that killed federal judge John Roll, severely and permanently injured Gabriel Giffords, and killed three other people, including a young child (see "Jared Lee Loughner Pleads Guilty To Arizona Shooting" by Elliot Spagat and Bob Christie).
Jared Lee Loughner agreed Tuesday to spend the rest of his life in prison, accepting that he went on a deadly shooting rampage at an Arizona political gathering and avoiding the prospect of a trial that might have brought him the death penalty.
From what I understand of the story, it seems that Mr. Loughner was the textbook example of a person who would not have committed this crime if either he had received mental health treatment or if he had not been able to have guns and ammunition. If either of those conditions had not been true, 5 more people would still be alive, Mrs. Giffords would still be in Congress, and Mr. Loughner would be living his life away in anonymity and out of custody. Instead, now, many lives have been needlessly wasted, including Mr. Loughner's.
Now, sadly, we can add Mr. Loughner's name to the following list: James Holmes, Mark David Chapman, John Hinkley, Lee Harvey Oswald, Wade Michael Page, Nidal Hasan, Seung-Hui Cho, George Sodini, Eric Harris, Dylan Klebold, John Allen Muhammad, Lee Boyd Malvo, Sirhan Sirhan, James Earl Ray, Arthur Bremer, etc...
What is the common link of all these names? They all bought the guns and ammunition they used to kill law abiding Americans legally, and they were all law abiding right up until the point they killed their very first victim.
When it comes to gun control, I think too many people tend to lose sight of the obvious. The only issue should be will more guns make us safer, or is the opposite true, will fewer guns make us safer? And that question is an empirical one to be answered strictly by evidence and facts. We cannot, nor should not, try to answer the question by purely abstract and ultimately meaningless constitutional theory (see "Why Constitutional 'Originalism' is a Bad Idea" and "Logical positivism").
In other words, whether or not gun control is a good idea is a question along the lines of "what causes infectious disease"? But too many people treat it as a theoretical question along the lines of "what is justice"? Once we accept the premise that gun control is strictly an empirical question, then we must decide what evidence is most relevant.
Obviously, we cannot conduct a strict laboratory test as our nation is not subject to scrutiny along the lines of the scientific method. Nor can we test one state versus another as that would be an uncontrolled experiment. What happens in one jurisdiction will affect what happens in another. As such, my belief is the best evidence available is what has happened in other nations similar to ours that have eliminated the private ownership of guns. The two nations that come to mind immediately are the United Kingdom and Australia.
As far as I can interpret the evidence, both the gun ban in Australia and the United Kingdom prove beyond a reasonable doubt that banning guns works and has saved thousands of lives. For the particular reason why I think that's the case, listen to my Internet radio broadcast "Aurora Theater shooting and James Holmes" and also read "Australia Is a Case Study for Mass Shootings" by Ben Richmond:
[Since the ban on guns in 1996] crime—especially gun violence—has continued to drop in Australia. According to the Australian Institute of Criminality, homicides with a gun have dropped 60 percent from 1996 to 2010, while robberies with guns have dropped 35 percent. Suicides by guns dropped an astounding 74 percent.
One important point I want to make about the United Kingdom is that their overall crime rate is actually higher than the United States. But since banning guns, which the conservative "Iron Lady" Margaret Thatcher did after a terrible school shooting, the UK has never had more than 100 gun murders in a single year. As such, it's not as though the English are inherently more peaceful than Americans; it's just that their violent criminals don't have access to guns.
I've also heard some gun rights advocates mention the notion of "herd immunity", meaning that if enough people carry guns that will stop gun massacres. But even if that is true, that won't stop a suicidal shooter like Wade Michael Page. And what if Americans don't want to carry guns in sufficient numbers to enable the putative herd immunity? Should the government enact a law to force people to carry weapons against their will, sort of like a civilian militia?
Finally, I have heard a number of people say we need private ownership of guns to prevent a rogue government takeover and loss of our democracy. To me, that argument is a complete fairy tale. No military on Earth can resist the United States military, and that being the case, why should we think armed Americans civilians could accomplish what even the Red Army couldn't?
Gun violence in the United States has made us seem, to the rest of the world, as backwards and primitive. While that may not matter to some Americans, and in fact, some may actually take pride in that point, it should matter. Everyday, 8 children die by gun violence in the United States. Every year, approximately 12,000 Americans are murdered by guns. That means every year, four times the total number of Americans KIA from the entire Iraq war are murdered by guns.
In Japan, a nation of 130 million, in 2008 fewer Japanese (total of 11) were murdered by guns that entire year than the 12 Americans who died in Aurora, Colorado last Friday morning watching the latest Batman movie (see "Aurora Theater Shooting" by Allison Sherry and Sarah Simmons of The Denver Post).
And while some people self-righteously claim this is not the time to "politicize" the Aurora theater shootings, if gun advocates are sincere in their belief that more guns will save lives, then this is exactly the time to make that point. If gun advocates really believe that an armed citizen could have stopped James Holmes, then why wouldn't they make that point right now of all times? My suspicion is the reason they are not, and instead are relying on indignation, is that they don't even believe their own "more guns makes us safer" nonsense. When, in the entire history of the United States, has an armed citizen stopped a gun massacre? As far as I know, the next time it happens it will be the first time.
The reason, I believe, not one gun rampage has ever been stopped by a armed citizen is because even if a member of the public was armed, his natural instinct would be to run away and not confront an aggressive, determined shooter, particularly one like Holmes in protective body armor. Plenty of gun owners think they are Audie Murphy when they are the range shooting at paper targets or in the field shooting at unarmed moose, but in the moment of battle, I doubt very many, if any, would react quite like they think they would. It takes more than a gun to make one a hero. It takes months of training every single day to have the necessary skill, and even more importantly, the discipline to do the job. That is why so much of military training is devoted to esprit de corp, drill, and seemingly unnecessary, but absolutely vital, ceremony and ritual.
One other point I would like to make though is not about guns, but about Hollywood. From the news reports I have seen it seems Holmes was fascinated by Batman, and in particular, the villains. It is time, not only to ban private ownership of guns, just like Japan, but to examine the trash culture Hollywood pushes. It's time we examined Hollywood's money making machine glorification of anti-social, alpha male characters (I call it "alpha male-itis") like the Joker and Tony Montana. The NRA may have provided Holmes the means, but Hollywood provided the motivation.
There is a strong culture of aggression developing in America today which is pretty psychotic. You can see it when you accidentally bump into a stranger on the street, you can see it on the highway when someone explodes in road rage, you can see it in a bar when knife-fights break out over the smallest things, you can see it on the Internet when people start attacking each other in profanity-ridden tirades, you can see it on television shows that glorify mobsters and biker gangs, you can certainly see it in our political landscape, and you can even see it in 8-year-olds who exhibit large amounts of "attitude." Something is very wrong here.
Considering the destructive and dysfunctional message Hollywood pimps for a cheap buck, maybe it's time Congress imposed a sin tax on Hollywood movies to make up for the cost to the rest of society. There is no reason a sin tax should just apply to gambling, alcohol, and tobacco when Hollywood trash is just as dangerous.
