Vail Daily column: Reasonable restraint
June 3, 2014
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger."
Supreme Court written by Justice Oliver Wendell Holmes Jr., 1919
My older son graduated from the University of California Santa Barbara three years ago. I can't count the pleasant hours that I've spent in Isla Vista, site of the latest bloody rampage. Isla Vista ("IV" to the locals) is cheek-by-jowl to the university. Think "The Hill's" relationship to CU Boulder, add an ocean, and you've basically got it. If I close my eyes, I can pick out the IV Deli, Del Playa Drive where the sun sets in pale tints of orange over scudding clouds and the Alpha Phi Sorority from the landscape of my memory. This one, like the tragic murder of Battle Mountain grad Todd Walker, hits too close to home.
This shooting offers a glimpse into the mind of madness, the mind of a Hitler, a mind filled with recrimination, hate, grandiosity and, above all, blame. Good-looking young women and happy couples were scapegoats for the shooter's own inadequacies, much as Jews, Roma, the handicapped and homosexuals were scapegoats for The Fuhrer's ill-formed personality. The intent, though scaled, was the same — to eliminate perceived tormentors.
This, of course — yet again — raises the issue of the gun culture in this nation. How free should "free" be? Should it be free enough to do harm to others? Should it be free enough to slaughter innocents with ease? I note that four were killed by the shooter's handguns and several — all of whom will recover — were injured, but not killed, by being run down by the shooter's car. Guns are just too damn easy.
I ask, is this the kind of society that gun rights advocates want to live in? Is this the culture in which they wish to raise their children? Is this the altar upon which they wish to hoist the carnage of continued sacrifice? Is it Moloch they wish to continue to feed?
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Some might answer that had anyone in Isla Vista been armed, the shooter would have been cut off from his killing spree. Oh, nonsense. How can one predict, draw and fire in defense of an ambush? If a bullet is twisting toward you, it's simply too late.
Candidly, I have mixed feelings about guns. My father, who was Czech, lived in Prague under the Nazis. Until the day he died, he was convinced that had the citizenry been armed, the wholesale slaughter might have never happened, or at least been blunted. Think of the Warsaw Ghetto if you will. When people have everything to fight for, they will put up a heroic fight. But that was a different day with different weaponry. It is hard to imagine how even an AK-47 could resist a drone, a Stinger missile or a MAARS.
ARMING A MILITIA
I have held before that, under pressure, the Supreme Court got it wrong. The Second Amendment simply does not grant The People the right to be armed with high-powered weaponry up to their gills. Instead, what the amendment assures is only this: "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."
Dissected, this means that the right of the people to "keep and bear arms" is for the clear and express purpose of arming a militia. Plain language is, after all, plain language, and one of the most basic precepts of law is that in order to divine intent, language should be afforded its plain and ordinary meaning.
Yes, I am aware of what the Supreme Court has said on this issue. I know all about Cruikshank, Presser, Miller and Robertson v. Baldwin, each in its own way affirming the right of an individual to bear arms. Yes, I know that in 2008, in the District of Columbia v. Heller, the court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia. I respectfully disagree.
I am, however, a pragmatist. I believe there is a time and place for self-protection. In the rural backwaters where a call to law enforcement might take a half hour or more, a person should have a right to protect her home and person. But this bacchanal of senseless killing must stop.
I am proudly an American. For all its warts and blemishes and missteps, this nation has, on balance, been a greater force for good than ill. But the bloodshed within our own borders should be — must be — an embarrassment. In the freest nation on earth we have become "unfree" to go to a shopping mall or movie theater or public school without fear.
The most fundamental rights — if one counts from front to back — that the Constitution affords are the rights to free speech, freedom from and of religion, freedom of assembly and freedom to criticize the government. These are all contained in the First Amendment. As the quote at the head of this column makes clear, however, even these most fundamental freedoms can be reasonably restrained. As Justice Holmes is often famously misquoted, "One cannot yell fire in a crowded theater." Even free speech has its limits.
The same is what many sensible people advocate vis-a-vis the Second Amendment — reasonable restraint.
Sure there are those on the far fringes who would ban all private ownership of guns. That is clearly not the answer. Neither is it practical or feasible to stuff this particular genie back in the bottle. And sure — I know — this particular shooter obtained his handguns legally. It is a complex problem that will require complex solutions. But we are, if nothing else, a creative people. Law enforcement, mental health professionals, legislators, private citizens and yes, even the NRA must all come to the table in good faith and have the courage to think, and dream, and act.
Might our rights be marginally infringed? Perhaps. But ask yourself, on balance, how that compares to a 20-year-old's right to live a life.
#NotOneMore? I'm in.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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