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.