A Better Balance Is Needed

Two stories from this week suggest to me that, without endorsing gun control, we need to think harder about how to balance firearm rights and responsibilities.

The first is from today's Washington Post, on the massive number of fatal shootings by police we're having right now. Most of them occur when the police encounter someone with a weapon:
The vast majority of victims — more than 80 percent — were armed with potentially lethal objects, primarily guns, but also knives, machetes, revving vehicles and, in one case, a nail gun. [The number is 221 out of 385. -Grim]

Dozens of other people also died while fleeing from police, The Post analysis shows, including a significant proportion — 20 percent — of those who were unarmed. Running is such a provocative act that police experts say there is a name for the injury officers inflict on suspects afterward: a “foot tax.”

Police are authorized to use deadly force only when they fear for their lives or the lives of others. So far, just three of the 385 fatal shootings have resulted in an officer being charged with a crime — less than 1 percent.

The low rate mirrors the findings of a Post investigation in April that found that of thousands of fatal police shootings over the past decade, only 54 had produced criminal ­charges. Typically, those cases involved layers of damning evidence challenging the officer’s account. Of the cases resolved, most officers were cleared or acquitted.
It sounds like more restrictions on shooting people who are running away might be reasonable, but the real issue appears to be how officers are trained to respond to armed citizens. Yet increasingly it is perfectly legal for citizens to be armed.

The second story was the protest outside the mosque that produced the home-grown terrorists who attacked the 'Draw Mohammed Day' in Texas. In spite of the heat this protest generated online, it seems to have gone off very well as an exercise in free speech. There was no trouble, counter-protesters showed up to support the Muslims in roughly equal numbers, but it seems as if many of the counter-protesters and the protesters may have been able to exchange views and even pray together. The police seem to have handled themselves admirably in a tense situation.

What concerns me is a discussion I had with some friends about whether it was reasonable for police to check weapons carry permits for those bringing rifles to the protest. Now, the bringing of the rifles isn't the problem from my perspective. For one thing, there was a clear free speech reason to do it: part of the message being sent to this mosque, which had been the home for the gunmen who attacked the Texas event, was that the American people will defend their free speech rights with force if necessary. That's a useful message to send to potential terrorists: that it is not merely police or soldiers you have to worry about, but a society hardened to resist attempts at imposing tyranny through terror.

The second reason the rifles don't bother me is that the last 'Draw Mohammed' event was actually attacked by body-armored, rifle-wielding terrorists. Under those circumstances, it's a reasonable precaution to have a rifle or two (indeed, sell your coat if you need money to buy one).

However, for exactly the same reason, I'd think it would be very reasonable for police to check carry permits. They also have reason to expect rifle-wielding gunmen who are planning criminal violence. It ought to be perfectly acceptable for them to ask to see the permit of anyone bringing a rifle to the event, just to make sure that individual is on the up-and-up.

Turns out that's a moot point in Arizona, where there are no such things as weapons permits. There's nothing to check. Arizona, by the way, is one of the standout leaders in lethal police shootings per capita: it and Oklahoma have such shootings at twice the rate common to other states.

So we've got a situation in which the police are trained to respond to armed citizens with lethal force, at the same time that armed citizens are being more common as right-to-carry laws spread. The middle ground, a permit that would give officers some sense that your background had recently been investigated and found clean, is not always present. Even in states where it is present, according to the argument from 4th Amendment cases, the police shouldn't be able to ask for the permit anyway:
In those 14 states (soon to be 15) where open carry requires a permit or license, the answer is not as crystal clear but is still a resounding “No!” The United States Supreme Court addressed a similar question in Delaware v. Prouse (440 U.S. 648) (1979). In that case, the issue articulated by the court was:

[W]hether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.

Now … let’s change just a few words and we have the issue before us:

[W]hether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop a person open carrying in public, for the purpose of checking the carry permit of the open carrier, where there is neither probable cause to believe nor reasonable suspicion that the firearm is being carried contrary to the laws of the state or that either the firearm or the carrier is subject to seizure or detention in connection with the violation of any other applicable law.

So how did the court answer the question in Prouse? They held that it is unreasonable under the Fourth Amendment to seize someone to check the status of a license except where there is at least reasonable suspicion that the person is unlicensed or otherwise subject to seizure for the violation of some other law.
This isn't going to work. Reiterating that the police in Arizona did a fine job at the protest, the statistics indicate that there's a problem arising from the way police are trained to deal with armed citizens combined with no-permit open carry.

Something's got to give here, and perhaps something on both sides. The police are going to have to accept more personal risk by not trying to instantly control, disarm, or take down citizens who are bearing arms. Yet I think we who are on the gun-rights side should reconsider our opposition to permits, as long as those permits are shall-issue on the finding of a background not including violent felony convictions. This seems as if it is a reasonable middle ground, one that ensures that rights are being exercised by those who are still entitled to the rights -- i.e., not felons -- and which would give police the capacity to verify that. That would increase police comfort with the idea of armed citizens, and perhaps cut down on some of these fatal shootings.


raven said...

And when the police using license plate scanners and a computerized database use the info to stop and toss any out of state vehicle linked to a firearms permit?

The State has been expanding control over every minute aspect of life as fast as it can. And remember, in the end, having to get a permit, means permission can be denied. They set the reasons, not us. Licensing liberty is just a bad idea.

The way to stop wrongful police shooting, is to prosecute them- but since the police are the enforcement arm of the prosecutors, it is unlikely to happen. Only when it becomes politically convenient does it happen.

Grim said...

I haven't heard of the police doing that.

What seems right to me is that -- when it comes to stopping terrorist violence, or for that matter lone wolf attacks of any kind -- the police and the ordinary armed citizen are on the same side. It's the same job, really, because we all have the lawful power to use force to stop such felonies and to make arrests (though citizens' arrests and peace officer arrests differ in some particulars, both are licensed to do it).

As more and more people take up this responsibility, the expectations of the police have to change. They have to stop expecting that 'He's got a gun!' means they need to field an aggressive response, and come to expect that it's not unusual and that each situation needs to be evaluated differently.

On the other hand, their lives are on the line here. Some method for allowing them to verify that you're one of the good guys doesn't seem out of line. If you don't like permits, I'm open to suggestions, but I think it'll be easier to get them to accept a more relaxed approach to armed citizens if there's some way for them to readily distinguish them from armed criminals.

raven said...


The surest way for police to know someone with a gun is not a threat is the lack of incoming. And vice versa. I don't want some officer thinking it is OK to stop and detain someone every time he sees a weapon carried in a non threatening way. That is just another way to make life difficult for the peaceable.
And any stop is just a potential legal mess- there are so many laws in this country regarding firearms minutia (and other things) that the cop has ample opportunity, given an excuse to stop, they can find anyone guilty of some infraction or another.
We desperately need to get back to Robert Peel's Principle's and view our police as Peace Officers instead of these Enforcers of Arcane Laws and Revenue Collection Officers that have no bearing on public safety. A good first start would be the dropping of laws that criminalize objects, instead of actions.
The single biggest shift I have seen regarding law enforcement, is the attitude change of the conservative middle class. 30 years ago, cops were universally thought of as the good guys, by this class of folks. Now, not so much- the spillover from the war on drugs, the demonization of firearms, the asset forfeiture horrors, the midnight SWAT raids, the evisceration of the 4th Amendment, all these and many more have resulted in a middle class that is developing the same attitude toward the police that the inner city dweller has had for decades. That attitude is- they work for people who don't give a damn about us, regard us as the enemy, and will commit crime under color of law to punish us. That is a very serious road to travel- so giving police any more power to stop and investigate is anathema to me.

Grim said...

OK. So, no permits.

Still, it does seem as if police have a kind of legitimate interest here. I mean, we're asking them to engage us with a lot less force, which means assuming extra risks in the (hopefully rare) cases where they end up dealing with a non-good-guy carrying a rifle. Should we adopt some sort of signal to indicate that we're on their side, more or less, exceptis excipiendis? Beyond not shooting at them, I mean.

MikeD said...

First off, you know I'm going to come at this from a libertarian perspective, but I am also not a 100% ideologue here. So permits, on the face of it are neither constructive, nor really Constitutional. If you require a license from the State (or government in general) for a thing then they control the means to restrict that thing by denying the license. And if they have that power, then they are abridging the right to have it. This immediately runs afoul of the 2nd Amendment. That said, we as a society have determined that it is right and good to restrict the rights of criminals and the mentally ill from purchasing firearms. Fair enough. So how do we resolve these two things? By allowing the non-criminal, non-mentally ill citizen to freely bear arms and restricting the access to said arms at the point of sale. As such if an officer sees a citizen bearing arms in public, if he has no other cause to suspect a crime is in progress (the wearing of a mask, brandishing the weapon, threatening others, etc) then he has no probable cause to stop the citizen and request verification that they are NOT guilty of some crime that prevents them from exercising their rights. In a sense, your "permit" to lawfully carry that firearm is the fact that you legally purchased it. And without a reasonable suspicion that you did NOT purchase it, there should be no reason for a police officer to investigate further. No one would ever think it reasonable for a officer to stop someone on the street and demand proof that they legally purchased their cell phone, or car, or laptop, or indeed any other possession.

And from a more realistic standpoint, if it's an issue of "officer safety" then the very act of approaching a citizen to "check their papers" induces far more risk if the person with the weapon IS a bad guy. If the person was a bad actor, then unless the officer forcibly disarms the person before asking to see the license or permit, then they are at much greater risk while engaging the armed person than if they hadn't even approached them.

The fact of the matter is, 30-40 years ago, guns were not viewed as so threatening a thing that the mere sight of them was considered a "public disturbance". I remember kids bringing their rifles to school during hunting season, and if one of the school's administration expressed any interest in the weapon at all, it was to admire a new rifle or shotgun, not to confiscate it. And the fact of the matter is that school shootings are NOT more commonplace these days, they're just more widely reported, so parents panic. I applaud the fact that open carry (once the default legal method to carry) is making a comeback. People should NOT fear their fellow citizen, even if he is armed. The fact that guns were fetishized into objects of fear shows how close to losing our fundamental rights to those who wanted to take them away.

And a final word on that. The vast majority of people who favor gun control are NOT seeking to put us into FEMA camps and have us executed for our anti-socialist stances. That's fantasy. While I am sure there are some wack jobs out there like that, the vast majority of gun control advocates are people like my own mother. She certainly doesn't want to round up citizens for re-education, but she does want guns out of the hands of criminals. Where she is wrong (and I love and honor her, but she IS wrong) is thinking that by making them illegal or more difficult to legally obtain that this will somehow keep criminals from getting them. When history has shown that the opposite is clearly true. So I oppose her because she is wrong, NOT because she is evil. And I'll have words with any who would accuse her of the latter.

raven said...

"And a final word on that. The vast majority of people who favor gun control are NOT seeking to put us into FEMA camps and have us executed for our anti-socialist stances. "

How do you know that?
First, the term "vast majority" is sort of exclusive of "your mom". Of course your mom is not evil- Why would you conclude she is the rule and not the exception? I have read what they (gun control fanatics) have written, talked with them on occasion, over about 40 years. My discussions on this matter with the gun control advocates, and their almost immediate descent into invective and hostility, and their jettisoning of any logic, gives little support to your conviction. In fact, I have usually come away with the impression that yes, they would put me in a labor camp if they thought they could get away with it- Most seem to have a firmly statist/leftist view of things, with gun control being one of the keystones of their worldview. The history of socialism is nearly synonymous with "the camps".

I would bet that although the "vast majority" may not be the ones actually loading people into the cars, that they would also not stand up to prevent it.
Read "Ordinary Men", and come back and convince me I am wrong. I would love to be wrong on this.

douglas said...

Or this. In a way, you are both correct- most people who favor gun control don't think they would want you sent to a camp, but given just the slightest reason and opportunity, would be packing you off in a heartbeat. History has proven that time and again.

Grim, a car is quite a potent potential lethal weapon, yet we have no issue that the police aren't allowed to assume your license needs to be checked just because you're driving your car past them. It should be no different with something protected by the constitution, or even less intrusive.

How do police know you are committing assault? It isn't by having hands, it's in how you use them.

Grim said...

That's all very fair. I'm just trying to work out what strikes me as an imbalance. Some of it is on the police, I agree: they can't be trained to assume that a weapon means they have to get control of the situation, disarm the citizen, assert dominance. That's how we get dead innocent people who answered a knock at their door at night with a gun, never thinking the police would kill them out of hand. Or kids playing with toy guns in a park, shot in less than two seconds without any reasonable attempt to talk with them.

But there's a militia function here too, and that part of keeping and bearing arms is properly regulated by the states. So if Georgia wants to issue a license to carry, and also defines the militia so that you're included in it (both of which they do), they've got an explicit right to determine whether the regulations governing the unorganized militia are being obeyed.

If you show up and my door and I answer it with a .45, I should be assumed to be in the right. If I'm carrying a pistol and you happen to notice it, that's not cause for panic. But if I bring a rifle to an event, the last such which resulted in an attack by men with rifles, I don't think it's unreasonable to check to see if I'm in fact licensed to carry the rifle. It would be unreasonable to seize it, or to deny me the right to carry it, if I am in fact licensed.

So what I'm hearing from you all is that we should be assumed to be right. What, then, of the guys who attacked the last event with rifles? They showed up in body armor and armed with assault rifles. (So did these protesters.) The police are obligated to do nothing but assume they are right, until and unless they open fire? What would you do if you were the one standing post at that Texas gallery, and a couple of guys with body armor and big guns started into the room?

For myself, I think calling it out on radio, and then moving as a team to intercept and determine intent is the way to go. You'd have to be prepared for hostilities (after all, it turned out these guys did mean to kill everyone), and you'd want some better assurance than their word that they weren't going to start shooting the minute you dropped your guard. You've got a duty to protect the people at the gallery, after all. Before you let these guys in, you'd want some reason to believe that they were not a threat to those people it was your duty to protect.

If that's now how you would handle it, how would you? What's the right balance?

MikeD said...

How do you know that?

Because I actually talk to them. How do you know I am not wrong about my mother? I know, because I talk to her, but you just assume I'm right?

You say it always descends into invective. Listen to their reasons, don't just wait for your turn to speak. What is the purpose for their gun control/ban desires? Is it to turn all of us into sheep to be led to the slaughter? Or is it because they believe they know better than we do how to live our lives? They don't want us dead (unlike crazies like The Weathermen who actually desired the "elimination" of those who didn't agree with them), they want us to just shut up. I'm not saying that makes them right or good, just not evil. And I think that assuming them to be so in conversation will lead you to hearing exactly what you expect to hear.

If I'm carrying a pistol and you happen to notice it, that's not cause for panic.

Likewise, if I am carrying a rifle on a shoulder sling, it is not cause for panic. If you are brandishing that pistol in public, you ARE. As is someone brandishing a rifle. If your question is "what if they show up with slung rifles", then I think the answer is, observe, but do nothing. Until there is probable cause to suspect they're not just legally carrying their weapon. I highly suspect the two would be assassins in Texas did not have their rifles slung, so immediately they looked suspicious. I'd treat any other such display similarly.

If you want an exact "these criteria must be met before a police officer can request proof that you're a law abiding citizen", I cannot, and more importantly WILL not give you such a list. Why? Because such bright lines become shackles that will get someone killed. I will actually lend quite a bit of credence to an officer who claims "something felt wrong". Instincts for trouble are actual things. And yes, I'll even grant that he may end up stopping a peaceful citizen wrongly because of it. But, any officer who shows up in multiple civil court cases for violating civil rights based on his "hunches" probably needs to be put on a shorter leash (or taken off the street altogether if his instincts are that bad). Once or twice wrong should be recorded as a warning to tighten up procedure, three or more incidents should be cause for official discipline.

But all that is predicated on "stopping an armed citizen and asking for identification", not "shooting an armed citizen cause he was scared." You get one chance to make the right call, and I'll not second guess a man who would rather be judged by twelve than carried by six... but I'll not want that man on the police force after such a mistake. And yes, I AM willing to end someone's career over it. Anyone who says they value someone's job over someone else's life needs to seriously rethink their priorities.

raven said...

Your experiences talking with gun control supporters are obviously different than mine.

Grim said...

I know lots of gun control supporters. They don't want to round you up and put you in a camp, but they do tend to believe the following:

1) The 2nd Amendment refers purely to state militias. If your state hasn't organized a militia and ordered you to bear arms as a part of it, you have no right to bear arms otherwise.

2) Also, militias are outdated and we shouldn't organize any.

3) The relative rates of gun violence in America versus other first-world countries are adequate to prove that guns should be very strictly controlled or eliminated.

4) An armed protest like the one in Phoenix is not a legitimate exercise of free speech at all. It is hate speech, which should not be covered under the 1st Amendment.

5) The people who showed up at that protest are much more dangerous to the American way of life and value system than any number of Muslims. Islam is about peace and respect. Right-wing Americans who would bear arms as a symbol in political protest are exactly analogous to the KKK.

There are some intellectual conflicts that are easy to tease out. The very long tradition of 19th and 20th century armed resistance to the American government in the service of developing trade unions, as opposed to in the service of right wing causes, is endorsed. This is loosely tenable if you accept that labor was acting according to legitimate interests being wrongfully oppressed by the state and the corporations, whereas right-wing concerns are irrational forms of tribalism that should always be opposed.

Riots in Baltimore and elsewhere are to be supported and understood as the inevitable product of a racist and destructive system, but peaceful (though armed) protest by the right is the very next thing to actual terrorism. If this violence is necessary (or even useful) in changing America to be fairer than it is, such violence by Americans (or illegal aliens) against the system is a positive good.

Also, right-wing terrorists have killed more Americans here in America than Islamic terrorists anyway. They're the real danger. (This one depends on only counting 'since 9/11,' restricting the field to at-home so as to avoid the thousands killed by Islamic radicals in Afghanistan and Iraq, and on conveniently ignoring that Muslims are ~2.4% of Americans, whereas right-wingers are about an order of magnitude greater as a percentage of Americans.)

Ultimately, it usually turns out to be not violent resistance or change produced by violence that they oppose. It does turn out to be exactly the kind of tribalism that they honestly believe is the sole motivating force of the American Right. We're to be controlled and constrained as enemies to everything they hold dear. Violence coming from their ideological allies, if it helps things along, is barely to be condemned at all. It is often praised.

Eric Blair said...

There's no such thing as hate speech. That's another Orwellian ++ungood steaming pile of newspeak whose purpose is to shut people up.

I want free speech, because then I know who the idiots are.

douglas said...

" They don't want to round you up and put you in a camp, but they do tend to believe the following:
5) The people who showed up at that protest are much more dangerous to the American way of life and value system than any number of Muslims. Islam is about peace and respect. Right-wing Americans who would bear arms as a symbol in political protest are exactly analogous to the KKK."

Well, see- they don't want to put you in a camp today, but if you're really one of those 'gun nuts' well, clearly you're "much more dangerous to the American way of life and value system than any number of Muslims". They'd pack you away to a camp just as quick as Roosevelt interred the Japanese Americans.

MikeD said...

Yes, because everyone who disagrees with us must ultimately be evil, stupid or ignorant.


This is EXACTLY what I am talking about. It's not enough for them to merely be wrong, they must have some ulterior motive that makes their wrongness founded in evil. And it's a lie. It's a comforting lie, to be sure, but that comfort it brings in the rightness of our cause does not make it an iota more true.

They do the same, don't worry. In their minds, the only reason anyone objects to abortion on demand is that they want to control women's bodies. Sure, you may talk a good game about the dignity and sanctity of human life, but that's all just cover for the fact that you want to chain women to birthing tables and force them to have babies for the patriarchy.

See how stupid that sounds? But really, that's EXACTLY what you're doing with the "but they'd throw you into a camp in a heartbeat." It's not different.

Grim brings up Baltimore. Interestingly enough because of the events in Baltimore, several of my liberal friends have spontaneously brought up "perhaps there's something to this being armed to defend yourself from tyrannical government after all". Sure, they're talking about the POLICE being the tyrannical government, but at least they're finally seeing that maybe there's something to our arguments after all, and it's not just about hunting and militias.

douglas said...

Well, I suppose that's the problem with using a general pronoun like "They". It's taken to mean "everyone" instead of 'enough people to constitute a significantly large group we will refer to as "They". I'd figure about a third of a third, so maybe 10%. I also don't think all of them are necessarily evil, at least not yet.

Many people aren't till the right circumstances set things in such a way as to overwhelm their weak virtues and leave them defenseless to their fears and the manipulations of others. Isn't that what happened in Germany in the 30s and 40s? Not all of those people were evil, but enough of them did nothing and allowed it to happen or even supported it in varying degrees, and some of the evil of the Nazi's ends up on them.

So anyway, to clarify, by they, I meant that to assume no one would do it is just wrong.