Gun Rights and Wrongs (Part 4)

Surveillance cameras and cell-phone cameras are ubiquitous. They have documented some cases of unjustified police killings of Black men.  I think this additional scrutiny is good!

      Part 4 - Aggressive Police Tactics

"Stop, Question (and Optionally Frisk)" has a disproportionate effect on Blacks, but it has been shown to save proportionately more Black than White lives.

SURVEILLANCE CAMERAS AND CELL-PHONE CAMERAS ARE EVERYWHERE

We are in the midst of a technological revolution that will only accelerate, whether we like it or not. I happen to like it (mostly) but it does not matter what you or I think, it is happening and will continue to accelerate.

As a result, surveillance cameras and cell-phone cameras are ubiquitous. Hardly any event can happen in a public place without being captured by photos and videos.  

The graphic above depicts some of the locations under surveillance. 

THE CHICAGO SHOOTING COVER-UP

The box with the red outline is a screen grab from an October 20, 2014, 9:57:33 PM Chicago police car dash cam. This video, which did not come to light for over a year (apparently due to political influence related to the re-election of Chicago Democratic Mayor Rahm Emanuel) shows a young Black man, apparently under the influence of some substance, walking down the middle of a two-lane roadway. 

He is blatantly ignoring requests from multiple police officers to give himself up. However, he is nearly a full lane from the nearest police officer or vehicle, and is walking straight down the roadway, neither towards nor away from the officers. There is no evidence that he threatened the officers with any weapon.

Then we see one of the officers riddle him with a barrage of bullets, resulting in his death. 

While I am sympathetic with the police officers, who apparently had been pursuing him for some time and were frustrated by his actions and attitude, there is no proper legal excuse for shooting him. (Even if it may be true that "the world will be better off without this kind of rebellious kid" the police must not take the law into their own hands. Even if you believe they should in some cases, the possibility of a video being taken and publicized and causing irreparable damage to the reputation of police and used as an excuse for riot and pillage, is why police caught doing so must be severely punished.)

THE SHOOTING OF YOUNG BLACK MEN BY POLICE

Prior to the above incident, the media reported a series of fatal shootings of unarmed Black men, perhaps starting with wall-to-wall coverage of the shooting of Michael Brown in Ferguson, MO, on August 9, 2014.

Fairly early in the reporting, a convenience store surveillance video was released showing that, prior to the police encounter that resulted in his death, Brown had stolen several packages of cigarillos and that he was a large man who shoved a relatively small store clerk who had tried to stop him from leaving the store. 

Unfortunately, there are no videos of Brown's encounter with Ferguson Police Officer Darren Wilson. The best evidence, based on conflicting eyewitness reports, is that Officer Wilson used his police cruiser to block Brown and his friend, who were walking down the middle of the roadway. Brown then reached into the cruiser and struggled with Wilson, resulting in the discharge of Wilson's gun, with no one injured.  Brown fled, with Wilson in pursuit. During the pursuit, Brown stopped, turned towards Wilson, moved towards the officer, and was fatally shot.

The media reported conflicting accounts that Brown was shot while running away (false) or that he was facing Wilson and had his hands up and cried "don't shoot" just before he was shot (also false).

On March 4, 2015, the U.S. Department of Justice reported the conclusion of its own investigation and cleared Wilson of civil rights violations in the shooting. It found that witnesses who corroborated the officer's account were credible, and it was also supported by forensic evidence. Witnesses who had incriminated him were not credible, including some who admitted they had not directly seen the events. According to the evidence, Wilson shot Michael Brown in self-defense. [From Wikipedia]

The "Hands Up, Don't Shoot" narrative was selected as one of the most blatant "Four-Pinnochios" of 2015 by the  Washington Post.

THE SHOOTING OF YOUNG BLACK MEN (MOSTLY) BY YOUNG BLACK MEN

As the above graphic indicates, the statistics are quite disturbing. Young (20-24 years old) Black men are nearly five times more likely to die in a gun homicide than a White man in the same age range! Over 90% of Black homicide victims were done in by Blacks (the figure for Whites killing Whites is over 80%). At its peak around 1993, about 180 young Black men per 100,000 died in gun homicides, while the figure for all young men was around 40, a ratio of 4.5. By 2011 gun death rates for young Black men had declined to 40 and for all young men to about 20, a ratio of 4. 

Another startling difference is that, while only about 34% of all gun deaths are ruled homicides, 82% of Black gun deaths are so ruled. That means only 18% of Black gun deaths are due to accident or suicide, while 66% of all gun deaths are so ruled. Either that, or officials are more likely to attribute Black deaths to homicide.

These statistics cry out that, if "Black lives matter" (which they certainly do, along with all human lives), the best way to save Black lives would be to reduce gun homicides. How to reduce gun homicides?

"STOP, QUESTION, AND OPTIONALLY FRISK"

Starting in the 1990's in New York City, a "zero tolerance" policy was adopted and the controversial "stop, question, and optionally frisk" tactic was imposed in high crime areas. Police officers who suspected individuals walking or loitering in these areas were up to no good, were given the authority to stop and question them, and, if the questioning caused them to suspect a weapon, to frisk the suspect. 

These stops peaked at nearly 700,000 in 2011. Statistics from 2008 reveal that 53% of those stopped were Black, even though Blacks constitute only about 25% of the New York City demographic. Thus, Blacks were over twice as likely to be stopped as Whites. 

Opponents of the program were concerned by the racial disparity, and they were outraged when the statistics showed that less than 3% of the stops found contraband or weapons, and only 0.15% found guns. Does it make sense to target and inconvenience 500,000 people a year, nearly all of whom are totally innocent, to find just 750 guns? 

Proponents of "Stop, Question, and Optionally Frisk" point out that the racial disparity is due to the fact that Blacks are more likely to live in high crime areas. Furthermore, the low yield of guns, knives and other contraband is beside the point, because the purpose of the stops is not to seize guns or contraband, but to discourage criminals from illegally carrying these dangerous items. Furthermore, getting 750 illegal guns, along with 7,000 knives and 8,500 items of contraband off the streets of high crime areas is a valuable result.

I liken the stop program to the inconvenience those of us who fly have to put up with at airport security.  Millions are searched, and if no guns are found, that counts as success, because the purpose of airport security is not to seize guns, but to keep travelers from trying to bring them onto airplanes in the first place.

CURTAILING "STOPS" AND THE "FERGUSON EFFECT"

The so-called "Ferguson Effect", a reaction to well-publicized killings of unarmed Black men, has caused officials and individual police officers to become less aggressive in enforcing the law. Ironically, this has resulted in proportionately more Black deaths.

In 2013 a U. S. District Court Judge ruled the New York City "stop, question, and optionally frisk" tactic unconstitutional, and, in 2014, the newly-elected uber-Liberal Mayor curtailed the stops. 

In 2014, due to the furor over the death of Michael Brown in Ferguson, MO, and the deaths of other unarmed Black men at the hands of police, a phenomenon that has come to be called the "Ferguson Effect" occurred. Police officers, concerned about getting caught on video, became less aggressive. The results were tragic and predictable!

The above graphic reproduces a New York Daily News headline from June 2015 and a New York Times headline from December 2015. 

New York Daily News - As the number of stops fell in New York City, murders spiked 19.5%, and the number of shooting incidents went up 9%. I don't have the racial breakdown for the additional crime victims, but, sadly, we can be sure they are disproportionately Black.

New York Times - Nationally, according to FBI Director Comey, the additional scrutiny and criticism of police officers has led to an increase in violent crime. Not said, but certainly true, the victims are disproportionately Black.

Ira Glickstein

Back to MAIN MENU 

Part 1 - The Problem. Is it too many restrictive gun LAWS, too many GUNS, or too many gun HOMICIDES?

Part 2 - New Technology. Might "UltraSmart" gun technology, that allows only Authorized Users to fire the gun, help address part of the problem?

Part 3 - Absolute Liability. Within the context of the Constitutional Second Amendment "right to bear arms", could gun owners, over time, voluntarily adopt "UltraSmart" guns, to mitigate the financial liability risks of owning conventional guns?

Part 4 - Aggressive Police Tactics. "Stop, Question (and Optionally Frisk)" has a disproportionate effect on Blacks, but it has been shown to save proportionately more Black than White lives.

Gun Rights and Wrongs (Part 3)

      Part 3 - Absolute Liability

Within the context of the Constitutional Second Amendment "right to bear arms", could gun owners, over time, voluntarily adopt "UltraSmart" guns, to mitigate the financial liability risks of owning conventional guns?

I am encouraged that, while the NRA does not think any current "smart" gun has acceptable reliability and performance, the NRA stated in a November 2015 editorial that: 

"In truth, NRA has never opposed smart guns, believing the marketplace should decide their future. Rather, NRA opposes government mandates of expensive, unproven technology, and smart guns are a prime example of that." 

Thus, there is a possibility that if, at some time in the (hopefully near) future, a reliable and safe "UltraSmart" gun is developed and is proven to have good performance in fair, independent testing, the NRA will not oppose it on principle, so long as its acceptance or rejection is based on the free marketplace.

This posting is intended to set forth a conceptual framework for an approach to "UltraSmart" gun regulations that might succeed in the free marketplace and receive the NRA's approval.

ARGUMENT FOR ABSOLUTE LIABILITY

(TO ENCOURAGE GUN OWNERS TO SWITCH TO "ULTRASMART" GUNS)

In addition to being un-Constitutional, it would be impossible to confiscate any significant percentage of the estimated 300 million guns in the US. And, even if we could match the 1996 Australian 20 to 30% confiscatory buyback, that would not disarm the criminals, gangs, and drug dealers who use handguns responsible for over 75% of homicides. 

Recognizing that the major problem is handguns, let us, for now at least, not change how we regulate non-automatic (bolt- or pump-action) and semi-automatic rifles and shotguns. ("Assault-style" semi-automatic guns were banned from 1994 to 2004, and I would like to see that ban renewed. Fully-automatic guns are currently banned for private ownership.)

Most handguns are kept at home for self-protection, which is fully within the context of the Second Amendment "right to bear arms". So long as they are securely stored at home, they do not cause too many problems. However, if these guns are not securely stored at home, and are lost, stolen or found by children, and are subsequently involved in a crime or accident, it seems to me that the careless owners should be absolutely liable.

Proposed Regulation

Absolute Liability for Non-”Smart” Guns

•Existing Handguns, Semi-Automatic Rifles and Shotguns

–May be kept at home for protection. (Rifles and Shotguns may also be transported and used for hunting and target practice in appropriate locations.)

–If stolen, lost, or given away, and subsequently used in a crime or accident, the original owner is strictly and absolutely liable.

–Current owner may sell or give away the gun, or have the barrel welded to permanently disable the gun, but only via a registered dealer.

–Dealers may sell old or new non-’Smart’ guns to qualified buyers for at least ten years, but only with a biometric trigger lock. A waiting period for background check applies.

–Owners with current carry permits may continue to use their handguns for at least ten years. However, they assume absolute liability if gun is stolen or otherwise not safely disposed of and is subsequently involved in a gun accident or felony.

The above proposed "Absolute Liability" regulation is intended to encourage gun owners to improve the security of their guns, for example, by using a biometric trigger lock that opens only with the owner's fingerprint. I hope that, within some number of years of Absolute Liability, enforced against gun owners who fail to secure their guns, many gun owners will reduce their financial risk by safely disposing of their "non-Smart" guns, and purchasing an "UltraSmart" gun that has more limited liability and therefore reduced financial risk.

ARGUMENT FOR LIMITED LIABILITY FOR "ULTRASMART" GUNS

Proposed Regulation

Limited Liability for ”UltraSmart” Guns

•“UltraSmart” Handguns, Rifles and Shotguns that Meet Industry Standards:

–May be sold to qualified buyers by registered dealers (waiting period for background check).

–May be coded for a limited number of Authorized Users by registered dealers (background check).

•Ammunition for “UltraSmart” Guns

–May be purchased only by Authorized User for a particular gun. Individual shells are marked with a code that will be recorded by the gun when they are fired. (Non-marked ammunition will not fire.)

•Must report if an “UltraSmart” gun is stolen or lost.

–If that gun is subsequently involved in a crime, owner’s liability is limited (if properly reported).

Note that I have proposed "Industry Standards" for "UltraSmart" guns, not federal government responsibility. For over 100 years, Underwriters Laboratories has certified electrical equipment. UL is funded by certification fees collected from corporations in the electrical industry, with minimal government involvement. This is a model that I think the firearms industry, working with the insurance industry, might well follow to set up safety and reliability standards for "UltraSmart" guns.

Ira Glickstein

Back to MAIN MENU           CONTINUE TO - Part 4 - Aggressive Police Tactics.

Part 1 - The Problem. Is it too many restrictive gun LAWS, too many GUNS, or too many gun HOMICIDES?

Part 2 - New Technology. Might "UltraSmart" gun technology, that allows only Authorized Users to fire the gun, help address part of the problem?

Part 3 - Absolute Liability. Within the context of the Constitutional Second Amendment "right to bear arms", could gun owners, over time, voluntarily adopt "UltraSmart" guns, to mitigate the financial liability risks of owning conventional guns?

Part 4 - Aggressive Police Tactics. "Stop, Question (and Optionally Frisk)" has a disproportionate effect on Blacks, but it has been shown to save proportionately more Black than White lives.

Law, Jurisprudence, and Revolution in Islam

[From Mark Welton, based on his excellent presentation to The Villages Philosophy Club, Florida, 08 May 2015, Powerpoint available HERE. Photo above, Jameh Mosque, Yadz, Iran]

Often heard today is that the Quran contains many verses authorizing, or justifying, violence, and therefore Islam is an inherently violent religion.  This is both simplistic and wrong.

First, a hypothetical case often used in jurisprudence courses (including my own at West Point).  President Reagan said that the one law everyone needs to follow is the Ten Commandments (he did say this).  One declares “Thou shalt not commit adultery.”  Mr. Jones, a businessman, offered $10,000 to any of his married employees who obeyed this law for at least ten years.  After ten years, three couples came to Mr. Jones to claim their reward.

The first couple told Mr. Jones that the wife had never had relations with any other man after marriage, but the husband had had numerous affairs.  Nevertheless, the husband stated that when this commandment was given to Moses, Talmudic law (indeed all law throughout the Near East) held that adultery could only be committed by wives.  Married men could have as many partners as they desired without committing adultery [this is in fact correct].  Thus this commandment should be interpreted as it was understood by everyone at the time it was revealed, and the couple should receive the money since no adultery had been committed.

Should they?  (hint:  US Supreme Court Justice Scalia might say yes; laws are to be interpreted as they were understood when issued, and if people don’t like the results, the laws should be changed through democratic means, not by judicial interpretation.  But Justice Breyer would probably say no, laws are to be interpreted as they are understood by contemporary society).

The second couple told Mr. Jones that they both had many affairs after their marriage, but it was an open marriage, there was no deceit, and they loved each other and their children as much now as when they got married.  Since the purpose of the law against adultery is to preserve and strengthen the family, this purpose was met, and they should receive the money.

Should they?  (hint:  some judges today do not convict people for shoplifting if they exit a store without paying if they can demonstrate that they honestly forgot that they had the item, since the purpose of the law is to deter intentional theft, not punish innocent carelessness).

The final couple told Mr. Jones that neither of them had had any partners other than their spouses since they married.  The husband admitted, however, that he had occasionally looked at other women and felt desire, though he had never acted on that feeling.

Should they receive the money?  (hint:  the Gospel of Matthew, Pope John Paul, and Jimmy Carter have all stated that anyone who looks with lust on another person has committed adultery in their heart).

Regardless of your own opinion in these cases,  it should be evident that no law, however “clear,” has only one single possible interpretation or “plain meaning.”  Laws, like religious texts, need authorities to interpret and apply them in various situations (e.g., judges and Supreme Court Justices for U.S .law and the Constitution, the Pope for Roman Catholic doctrine, and rabbis for Talmudic law).  These authorities apply many different methodologies to interpret texts.  They also often change their interpretations over time, and they often disagree among themselves.  The process of interpreting texts (exegesis, or more broadly hermeneutics) is complex and always evolving, but never simple.

This is no different when interpreting the Quran.  The difficulty in Islam (more so for Sunnis than for Shiites) is that there is no single person or group like a Pope or a Supreme Court with authority to say what the current best interpretation of a passage in the Quran or other text should be.  Thus some “cherry pick” verses; that is, they pluck them out of the text and apply their own interpretations to justify their personal or political aims, disregarding the entire corpus of hermeneutics that has developed around them (this is called proof texting).

However, the majority of Muslims, both scholars and others, seek a more authentic contextual interpretation of the Quran and other texts so as to make them meaningful to their lives.

For example, the so-called “sword verse” (“so when the sacred months have passed away, slay the idolaters wherever you find them”) is sometimes cited to demonstrate that the Quran advocates violence.  But according to virtually all scholarly accounts, this verse was revealed late in the Prophet’s life when the small community of Muslims at Medina was under attack by the Meccans (who worshipped the many idols in the Kaaba, and were hence “idolaters”).  In the view of many who apply historical context and various other interpretive methods to this passage, when that threat ended with the surrender of the Meccans and other polytheists in the region, the non-historically constrained principles of the Quran that command respect for the other monotheistic faiths, and the exhortation that peace is better than fighting except in self-defense, take precedence over this historically conditioned verse.

This is just one illustration of the obvious point that passages extracted from the foundational texts of any legal system or religion can never be understood as having a single “plain meaning.”  Grammar, semantics, pragmatics, historicity, and other linguistic and related considerations and approaches are all necessary in interpreting the Quran, or for that matter any other foundational text.  The Quran and other textual sources of Islam have undergone centuries of study and interpretation by scholars (ulama) who sometimes, like the US Supreme Court, disagree among themselves, and who have evolved different understandings over time about the meaning of a given text.*  It was this process that created the religious/legal foundation of Muslim societies until relatively recently.

That foundation has now ruptured, with conflict, violence and extremism in some parts of the Islamic world, with many historical, social, political, and economic causes.  But to assert that Islam is an inherently violent religion because the Quran or the Sunnah clearly (or “plainly”) state such and such about fighting and violence (or any other matter) is inaccurate.

*To extract from the Quran and other texts principles and rules of Islam and Islamic law, scholars have traditionally applied numerous interpretive techniques, including al-dalalat (textual implications), naskh (abrogation), ijma (consensus), qiyas (analogical reasoning), istihsan (equity), istishab (presumption of continuity), sadd al-dhara’i (blocking the means), maslahaha (public interest), and many others.  There is nothing simple or obvious about this process.

If Islam is not intrinsically violent (see above discussion on interpreting the Quran), why is there now so much conflict in the Middle East (and in some other Islamic areas and communities)?  Obviously there is no single answer, as history, politics, economics, and religion all play a role.  But an important factor, a broader context in which these events are unfolding, is the current Islamic revolution.

In his two volume “Law and Revolution,” Harold Berman described the modern West as the product of six great revolutions: the Papal Revolution (1075-1122), the German Revolution(1517-1555) (also called the Reformation), the English Revolution (1640-1685), the French and American Revolutions of the late 18^th century, and the (only partly successful) Russian Revolution of the early 20^th century.  These were true revolutions in that each ultimately affected every aspect of society (economically, politically, legally, religiously, and culturally).  Like the process of scientific revolutions described by Thomas Kuhn in “The Structure of Scientific Revolutions,” they erupted when existing societies could no longer assimilate or constrain new economic, political, legal, religious and cultural ideas and forces.  They were total revolutions as they created new forms of government, new structures of economic, social, legal and state-church relations, new perspectives on history and new sets of values and beliefs.  Importantly for this discussion, each revolution was marked by violence and war; each sought legitimacy in a remote past; each took more than one generation to take root; and each eventually reverted in part to its pre-revolutionary past but also evolved in new ways thereafter.  The modern West is a product of these revolutions.

The Muslim world has undergone two such revolutions.  The first was in the 7^th century ce, when the Prophet Muhammad turned the Arab world upside down.  Islam required equality instead of privilege, community instead of tribalism, monotheism instead of polytheism, law instead of private vengeance.  Like the western revolutions, this period was marked by war and violence (during the Prophet’s lifetime and in the subsequent Riddah wars), grounded itself on continuity with the past monotheistic prophetic tradition of the Near East (Judaism and Christianity), took several generations (roughly three centuries) to take root, and reverted in part to pre-Islamic patterns of tribalism, kingship, privilege and local customs, all of which were nevertheless transformed thereafter by the revolutionary ideas of Islam.

Most important, the religious/legal scholars (ulama), not the rulers, gained control of the formulation and interpretation of Islamic law, which to a remarkable degree (for the times) protected the people against the excesses of kings, sultans, and other rulers, and forced those rulers, whose task was to enforce rather than create the core religious law, to abide by that law and to restrain their arbitrary power (or they would lose legitimacy and thus the source of their power).  The “golden age” of Islam in science, literature, arts and commerce was made possible in large part by this basic “rule of law.”  

In the 19^th and 20^th centuries this system collapsed.  (Why the Muslim world, unlike the West, did not experience other revolutions after the era of the Prophet has many reasons; see Bernard Lewis’ “What Went Wrong” and Timur Kuran’s “The Long Divergence” for some of these reasons).  Beginning around 1800, nearly all of the Islamic world was colonized by European powers, especially by the British, French, and Dutch.  The Islamic law and its morality was almost completely replaced by western law and colonial government, partly because European colonialists desired a political and legal system more favorable to their economic and imperial interests, and partly because many Muslim reformers believed that European law was necessary for modernization.  The authority of the ulama and Islamic law disappeared, save in a few areas such as family matters, and was replaced by western legal codes and procedures, with rulers chosen or approved by the colonial powers.

The era of overt colonialism ended in the 20^th century, especially after World War II.  As the Europeans left, the void was filled by various political movements: national socialists (e.g., Nasser in Egypt, the Ba’athists in Iraq and Syria), modernists (e.g., Ataturk in Turkey and Reza Shah in Iran), and others.  These were authoritarian and dictatorial, but unlike the classical era (and even under the Ottomans) there was no longer the ulama with their religious/legal authority to restrain them.  The rulers themselves now “owned” the law, had almost absolute power, but with some exceptions failed to deliver the kinds of societies most people expected.

The collapse of the old order, the effects of colonialism, the failures of political leadership, and the imposition of modernity on traditional societies led to societal pressures and fissures that, like each of the western revolutions, finally erupted in the second Islamic Revolution, beginning in 1979 in Iran and continuing throughout much of the Middle East and North Africa today.  Like the western revolutions (especially the German one, leading many commentators like Robin Wright and Reza Aslan to term the current revolution an “Islamic Reformation”), it is accompanied by violence, and a search by some for a return to the remote founding era of the Prophet (e.g., by the Salafists), or at least by many others to the “traditional” mores and values of Islam (e.g., in dress and religious observance).

Like the German and English Revolutions, when translations and dissemination of the Bible broke the exclusive power of the Church to interpret and proclaim its meaning, translations of the Quran and other Islamic texts from the old Arabic which few could read (especially the vast majority of Muslims who are not Arabs) into modern languages, and their spread through modern media like the internet and TV, have enabled everyone to read, interpret, and sometimes proclaim their own views of those texts.  New figures have emerged to engage ordinary Muslims with their faith in the modern world (such as popular Muslim “televangelists” like Moez Masoud and Amr Khaled), or to claim leadership of the revolution, ranging from modernists like the Gülen movement to radical “puritans” like Osama bin Laden.

History does not repeat itself, nor is it a predictor of future events or outcomes.  But like the great western revolutions it is likely that the current Islamic revolution, already characterized by violence and a reference to its remote past, will take more than one generation to play out and take root, and will absorb existing traditions and patterns, but will imprint those traditions and patterns with revolutionary ideas.  The results will take different forms in different places, but the process will transform the Islamic world in every respect.

Dr. Mark David Welton

Professor Emeritus

United States Military Academy, West Point

Aside from the books and authors mentioned above, all of whom are well worth reading, an excellent and relatively short book on this subject is Noah Feldman’s “The Fall and Rise of the Islamic State.”