Now is the Time.

Before beginning this opinion piece about assault rifles, permit me to say that I own sporting guns, have been a lifelong hunter, shoot recreationally, have been an NRA member, have probably shot more game and fired more rounds of ammunition than 99.9% of the population, and support shooting and hunting in general. I was a big city prosecutor who convicted countless defendants of crimes involving gun violence and later, as a criminal defense lawyer, represented those charged with murder and gun-related crimes. None of this makes me an expert, but my opinion is not that of a person who has no experience with guns, who opposes all guns and all hunting, who has no personal stake in the debate, and who has no background that would enable them to understand the gun owners’ point of view. My opinion, like that of many sportsmen, has evolved over time and it is with a degree of sadness and resignation that I feel now is the time to speak out. As I watch high school kids march all over the country, it is the least I can do.

The AR-15 assault rifle was designed for warfare. No one who knows the history of its development can say otherwise. It was intended to provide a soldier in battle with dependable, lightweight, lethal, high capacity firepower. It can be made even more deadly with high capacity magazines, simple conversion kits that make the gun fully automatic, “bump stocks” that make the gun simulate automatic fire, silencers, night vision scopes and probably much more. It is rivaled as a weapon of war by only the AK-47. It was never intended as a sporting weapon for hunting or recreation or as a gun for self defense, unless your idea of self defense is an armed resistance to invasion by a foreign power or, as some suggest, armed resistance against our own government. While it is true that the assault rifle can be adapted to hunting and can be shot recreationally, those activities were never its intended purpose and those pursuits are better served by other weapons. Sometimes we overlook the obvious. The AR-15 is called an “assault rifle” for a reason. And, remember, assault rifles were banned by law from 1994 until 2004.

Since the massacre of elementary school children at Sandy Hook, there have been 239 school shootings. 438 people have been injured. 138 people, mostly children, have died. These figures don’t include the many other infamous mass murders of nonstudents in Las Vegas, California, South Carolina, Colorado, Florida, Texas and elsewhere.

It is unfortunately true that frequent repetition of even the most unspeakable, gruesome violence has a numbing effect, much like our reaction to war, genocide and famine. Psychologists tell us that it is human nature, a cognitive bias, for us to want to distance ourselves, to protect ourselves, from the fear that a negative event that happened to someone else could happen to us. We psychologically distance ourselves by focusing on those things that differentiate ourselves and our circumstances from that of the victim. This is called Defensive Attribution Error and it is very powerful.

Texas Monthly published a lengthy article not long ago commemorating the 50th anniversary of the mass murder at the University of Texas. I remember it well because it was the first of its kind and it was so shocking. I recall listening to the radio as the events unfolded. It is not an exaggeration to say that it was so unthinkable that many of us wondered if it was actually happening. Few of us alive at that time would have believed then that such a horrendous thing could or would happen again. We comforted ourselves by believing that this lethal combination of evil or insanity, place (a commanding tower) and means (high-powered, scoped hunting rifle and many other guns) would not occur again. This is an example of the Defensive Attribution Error at work. We were dead wrong. It was nothing more than the first of many to come. The Las Vegas shooting is its direct descendant. The fact of the matter is that this can happen to us and it will happen again and again if we don’t act.

After every new mass murder, the entire cast of characters say and do exactly the same things. It is as if all of them have been cast in a bad play and given a script.  I suspect that one day we will learn that the NRA has a playbook for what to say and do when a mass shooting occurs. The crisis management plan is always the same: thoughts and prayers; say now is not the time to talk about gun control; talk about bad guys with guns; promise to do something about mental health; criticize law enforcement for not enforcing the laws we have; say you believe in closing background check loopholes; more thoughts and prayers; let the news cycle play itself out; rinse and repeat. When your goal is to maintain the status quo, it is imperative to survive the initial wave of outrage. Time and politics will ultimately handle the problem B until the next time.

Surprisingly, it is usually true that gun and ammunition sales increase after a mass shooting. I suspect this is due to a belief that the government will finally do something and that people believe they need to buy before it’s too late. One gun dealer even said that the best way to sell an American something is to tell them they can’t have it. This theory is anecdotally supported by the fact gun sales dropped after Trump’s election. Gun dealers are calling it the “Trump Slump”.

The politics of guns is really quite simple. The NRA has convinced millions of its members that any attempt to regulate guns, even assault rifles, will ultimately result in all guns being taken away. Even though 2/3 of the public favor some form of gun control, politicians wholeheartedly believe the NRA is so powerful they will lose an election if they don’t completely embrace all of the NRA’s positions and do as they are told.

Is fear of the NRA justified? Probably so. For a frightening look at the NRA’s tactics and power, read the March 5th, 2018 article by Mike Spies in The New Yorker. Through campaign funding, member mobilization and fear mongering, the NRA can make things very difficult for a politician in some states.  That is why campaigning politicians routinely pledge their fealty to the NRA, talk about their love of the 2nd Amendment, have their picture taken holding a gun, and covet an A+ rating from the NRA.

Perhaps it is now a better question to ask if we should fear politicians who fear the NRA? Or, said a different way, do we actually want to elect someone to office who is controlled by a special interest group or who is so enthralled by the power of office that he or she is willing to sacrifice public safety on the altar of gun rights?

It has become fashionable to say such things as: “Guns aren’t the problem, bad guys with guns are the problem”; “The only solution to a bad guy with a gun is a good guy with a gun”; “We need to improve the mental health system”; “We need common sense gun control”; “We need better school security”; “We need to better train our teachers and school administrators”; “We need to arm our teachers.” All of these may make sense to a specific audience, but they ignore the unquestionable truth that high capacity assault rifles are the common denominator in mass murders, and they are a problem which we can, to some extent, control. We can’t control who has access to public gathering places or high vantage points. We can’t predict with a reliable degree of certainty who will become insane, violent or a terrorist. We can’t control those who ignore warning signs of impending violent behavior.  We can’t predict how armed teachers or, for that matter, how armed law enforcement officers, will react in a combat situation. In short, we can’t predict and control most of the variables which are involved in mass shootings. But, we can become willing to discuss access to the means used to commit mass murder.

Wayne LaPierre, chief executive of the NRA, spoke on Thursday, February 22nd,  2018, about the Florida school massacre. As usual, LaPierre was defiant and angry. He made it abundantly clear that guns, even assault rifles, aren’t the problem and that the NRA will make no compromises of any sort. He then talked about mental health, arming teachers, hardening soft targets and, of course, thoughts and prayers. The NRA also debuted a new PR person. She is very attractive and I’m sure the intent was to soften the NRA’s image and combat the idea the NRA is only for angry white men with guns. But, her message is the same – no compromise. Think Charlton Heston in a skirt. Florida politicians were shamed into passing an almost meaningless bill which included upping the minimum age to purchase an assault rifle from 18 to 21. At the bill signing, which was shown on television, 2 legislators gently patted the Governor (who has aspirations of higher political office) after he signed the law in the same way you would console someone at a funeral,  probably because they all understood the political repercussions of what they had done. The NRA filed suit the same day to overturn the law. When they say “no compromise”, they mean no compromise.

If you are aware of the psychology of Confirmation Bias and Fundamental Attribution Error, it is easy to see that everything the NRA says is intended to bolster those who already share the NRA’s belief system: that it’s not a gun problem and that the NRA will fight for them to the death. It is reasonable to conclude that the NRA will never be a partner in solving any gun related problem and that it will continue to do everything within its considerable power to stand in the way.

After a few days, President Trump settled on his strategy: thoughts and prayers; arm teachers and administrators that will kill attackers because they love the children; castigate the deputies that didn’t enter the school as despicable cowards; talk about background checks; talk about mental health, blame violent video games, blame Obama, appoint a commission, and, tell people he can handle the NRA. After a heart-to-heart with the NRA behind closed doors, he changed his tune altogether.

LaPierre and Trump should talk to Joel Myrick, a former assistant principal in a Mississippi high school. Mr. Myrick was armed and came face to face with a 16 year old student that appeared on campus with a 30-30 lever action rifle and began shooting his fellow students. 2 students, including his former girlfriend, were killed and 7 others were wounded. Mr. Myrick was interviewed by the New York Times for an article appearing on February 22nd, 2018. Mr. Myrick was able to scare the gunman into leaving the campus, which undoubtedly saved lives even though he did not fire for fear of injuring others in the background. But, Mr. Myrick does not favor arming teachers. According to Mr. Myrick, “Teachers have to teach, and that’s what they should be doing. It doesn’t matter what a pistolero you are, or think you are. You don’t need to be in school in charge of protecting children.” Mr. Myrick considered the question of the damage that could have been done if the gunman had an assault rifle. Mr. Myrick had this to say: “If Luke Woodham had an AR-15 he probably would have killed 20 people instead of 2. There’s not a soul on the planet who needs an AR-15 except military.” This is from a man who has actually been in the very situation we are considering.

Mr. Myrick does favor more security at schools. “We protect our banks that way,” he said. “We protect things we love. America protects things it loves. We don’t care if it’s expensive.” How can it be said any better?

What else can we do?

When a mass shooting occurs, our immediate reaction is that the shooter must be crazy or a terrorist. Why else would someone do such a horrible thing? However, very few of the shooters are “insane” as that term is defined by criminal law. By this I mean that most of them do know the difference between right and wrong; they do know the nature and quality of their acts; they are capable of conforming their conduct to the law; they are capable of understanding the charges against them; and, they do have the mental capacity to assist their counsel in defending them. This is not to say they are not deranged, but they typically don’t qualify to be found not guilty by reason of insanity and they are capable of standing trial. In other words, if a killer’s mental state is a factor, we are usually talking about mental conditions which are of a nature and severity that they may have warranted involuntary civil commitment to a mental institution prior to the commission of a crime. But, it’s not easy to prove a person is an imminent danger to himself or others.

The process for having a person involuntarily committed to a mental institution prior to the commission of a crime is complex, time consuming, and expensive. This is due, in part, to a Constitutional legal obligation to protect the rights of the person to be committed. It is further complicated by the fact we don’t have sufficient mental health treatment centers nor do we have the legal infrastructure, personnel or funding necessary to meet the need. This is why our jails, prisons, hospitals and streets are full of people with untreated mental disorders. There is just no other place to put them; no way to hold them; no way to force them to accept long term treatment; and no way to indefinitely house, clothe and feed them. It is often a revolving door – an endless cycle.

From the perspective of families, friends, peace offices, healthcare and mental healthcare professionals, finding an effective way to deal with a mentally ill person before they commit violence can be daunting. It is easy to second guess people after an atrocity is committed, it is another to walk in their shoes along the path that leads to that horrible day.

Yes, we should do something to improve access to mental healthcare, but don’t believe for a moment that this will be easy, fast or cheap, and it will have to be done on a state by state basis with federal financial aid. The $500 million over 10 years approved by the House of Representatives on March 14, 2018 for school safety is a drop in the bucket.

We can insist that our politicians ban military-style assault weapons, “bump stocks”, high capacity magazines, and conversion of semi-automatic weapons to fully automatic weapons.

We can insist politicians act to require and enforce universal background checks and ensure that mental health issues and domestic abuse are reported to the database.

It is my understanding that 2 out of 3 assault rifles are purchased from individuals and not stores. We can require that buyers of guns from unlicensed individuals go through a background check and we can make it a crime and impose civil liability to sell or purchase an assault rifle without a background check.

We can unchain the Bureau of Alcohol, Tobacco and Firearms (“ATF”). Did you realize that the ATF is not permitted, thanks to the NRA, to trace guns using computers? How insane is that? The ATF is also prohibited from keeping and analyzing all sorts of firearm data.  This is just an example of how this agency has been hamstrung by the NRA.

We can look ahead. By this I mean that it is highly doubtful our Founding Fathers foresaw the development of an assault rifle considering the state of the art weapon of their day was a single shot musket that was inaccurate at more than 50 yards. We already know non-metallic guns made with a 3D printer are being developed. What’s next? Will we be ready?

Above all, we can elect politicians who are willing to stand up to the NRA and discuss control of assault weapons.

Denial and delay, thoughts and prayers, ducking and dodging the obvious answers will no longer suffice. In the name of public safety, compromises have to be made.

Please remember those days before September 11, 2001 (“9/11”). Airport security was lax. Since 9/11 we have had to adjust the way we travel. At first it was irritating and seemed unduly intrusive. But, in the name of public safety, we compromised and adjusted. I don’t think it is too extreme to say that most of us would now be afraid to get on an airplane if we knew that baggage, carry-ons and passengers hadn’t been inspected.

After 9/11, we tolerated enactment of the Patriot Act. It is invasive of our right of privacy. But again, in the name of public safety and combating terrorism, we compromised and adjusted.

We have compromised and changed our behaviors in countless ways for the sake of public safety. Why should assault rifles be any different?

I have read that many owners of assault rifles believe that ownership of an assault rifle is an important part of their group identity, their culture, and that they feel they are defending a way of life that is under attack. If this is so, then I have reluctantly come to believe those persons need to reexamine their values. Is the freedom of the general public to buy and sell an assault weapon more important than the lives of school children or other innocent victims? Isn’t there some other way to affirm the same values without endangering innocent people? Is mass murder the price we have to pay so that an owner of an assault rifle can feel comfortable, safe, secure, entertained  and happy in the world?

Nothing can be more cruel for a parent than to believe that their child’s short life and untimely, horrific death are meaningless. I fear that we have so overused the phrase, “Our thoughts and prayers are with you,” that we might as well say, “Sorry about your tough luck.” If we say, “Our thoughts and prayers are with you,” we should mean we intend to give the manner and means of that child’s senseless death our most serious consideration and that we will pray for the courage to do something about it.

As Mr. Myrick said, “We protect the things we love.” It is time to decide what you love.