Sunday, January 20, 2013

Getting More Specific about Gun Laws

Rep. Miguel Garcia (D-Alb.) plans to introduce a measure designed to keep criminals and the insane from purchasing firearms undetected in New Mexico.

I have some suggestions.

The bill should also require secure storage of guns, particularly in homes where minors live, and impose serious civil and criminal liability for damage resulting from insecure storage.  The law should also proscribe giving minors unsupervised access to firearms.

Just as we are liable for damage when our kids or friends drive our vehicles, we should be liable for damage caused by careless or malicious use of our guns.

Arguably, failure to store firearms securely constitutes negligence under U.S. tort law. Negligence is conduct that creates an “unreasonable risk” of harm.  Examples include driving a car too fast for conditions, firing a gun in the air in a crowded area, or failing to meet accepted standards in practicing law or medicine.   Even the NRA warns gun owners to “store guns so that they are inaccessible to children and other unauthorized users.”

So why bother to include this?

Laws that set specific standards make it much easier to recover damages for harm caused by negligence.  Assume someone drives at 55 mph through a neighborhood where kids are playing and accidentally hits someone.  That’s probably negligence.  If there’s a posted speed-limit of 20, it’s negligence per se.  That makes things much clearer for a jury.  It’s particularly helpful if the car was going 35 instead of 55.  S/he’s clearly on notice that the conduct is illegal, and s/he’s liable if it harms someone.

New Mexico should require that gun owners store their weapons locked and unloaded, or locked with an essential part of the gun stored separately from the locked weapon.

Do I think everyone will immediately start storing guns safely?  No.  A few will.

If folks whose kids get hold of their guns (or folks whose unsafely stored guns are taken and used to harm others) pay some high-dollar judgments for their negligence, more gun owners will get the idea.

These are not radical ideas. Three-quarters of the states have laws against unsecured storage of guns around minors and/or letting kids have access to guns.  Arizona and California make parents liable for civil damages from a minor’s use of a firearm under certain circumstances.   In California a person is criminally liable for keeping a loaded firearm where s/he reasonably should know a minor could gain access to it – but only if someone is injured or the child brandishes the gun in a public place.  S/he’s also liable for damages.  Colorado imposes criminal liability for providing a gun to someone under 18, or even knowing a juvenile has a gun and failing to make reasonable efforts to prevent the juvenile’s conduct.

In New Hampshire “negligent storing of firearms” is a criminal offense, if the firearm is used in a reckless or threatening manner or in commission of a crime.  In North Carolina you’re criminally liable if a minor misuses a firearm you’ve stored “in a condition in which it can be discharged” where you should have known the minor might gain access to it.   Even Texas makes you criminally liable (with reasonable exceptions) if you leave a dischargeable firearm where a kid under 17 could gain access to it and s/he does.

Are weak gun laws and gun violence related?  You betcha!

One group grades states A through F for the strength of their gun laws.  Nine of the ten states with the highest rates of gun deaths are graded F for their weak laws, while the tenth gets a D.  On the other hand, the ten states where gun rate deaths are lowest include two grades of A- (California and Connecticut), three B’s, three C/C+’s, a D, and an F (Maine).  When you list the states with the strongest gun laws and the states with the lowest gun death rates, seven states appear on both lists.  That ain’t coincidence.

The group ranks New Mexico’s laws 40th among the 50th states, giving us an F.  New Mexico ranks 9th in gun deaths per capita.  (In 2009, 289 people died from firearm-related injuries in New Mexico.)  My blog post today will include the URL for a site summarizing all 50 states’ laws on secure gun-storage and kids.

Other provisions that make sense (and are constitutional) include: licensing, regulation, and inspection of firearms dealers; banning assault weapons; and licensing handguns.  A recent poll shows that a big majority of gun owners support universal background checks (86%), while there’s almost an even split among gun owners on banning assault weapons.

I have good friends who own and use guns.  Some also have children.  New Mexico has vast ranches and unpopulated areas where hunting and target-shooting are popular.  I’m not suggesting that New Mexico enact an overly broad statute that would preclude responsible use of guns or the teaching of kids to use guns responsibly, or would destroy anyone’s right to self-defense.  The law would impose liability where damage was caused, negligently – not authorize anti-gun brigades to inspect people’s storage methods or keep them from taking their sons out hunting.

In New Mexico, we ought to have the wit to write a law that’s appropriate for our wonderful state and enhances everyone’s safety without infringing on legitimate activities.

[The column above appeared in the Las Cruces Sun-News today, Sunday, 20 January.]

Below are a couple of URL's I promised in the body of the column; but in this morning's paper I also saw a letter making the obvious analogy to Prohibition -- constitutional and legislative prohibition of all alcohol in the U.S. -- and using that as a basis to suggest that strengthening gun-control laws would be equally disastrous.  Since I happen to have read at least three books on prohibition recently, I should address that, because it's sensible-sounding nonsense.

First of all, no one is or reasonably could be talking complete prohibition of guns.  Wouldn't be wise or practical.  Legally, would require either a constitutional amendment (which ain't gonna happen) or the sudden death of nine supreme court justices and their replacement with people dedicated solely to rooting out all guns, even at the cost of ignoring all legal precedent.  Also ain't gonna happen.  Couldn't.

Secondly, National Prohibition was enacted despite the fact that Maine and other states, going back to about 1849, had enacted and undone alcohol prohibition laws that were disastrous.  That is, in the national frenzy to outlaw booze, legislators and voters ignored a long list of state experiences warning that prohibition would be disastrous, in pretty much the ways it ultimately was.  Here, stronger gun laws would be enacted in the context of state experience showing, as noted in the column, that stronger gun laws do have a strong relationship to decreased per capita gun fatalities.  There are questions one could reasonably raise about those statistics (or about possible side-effects of the stronger gun laws) but no one could reasonably just ignore them.

Finally, an assault weapon doesn't fit in a hip flask.  Using one isn't near as quiet as sipping a drink from that hip flask while watching a football game or driving to a club, nor would there be many indoor speakeasies in big cities in which to go shoot 'em.  Further, while most folks in the 1920's laughed or cheered or looked the other way when they saw someone drinking in public, a significant majority of the populace doesn't think people should be carrying assault weapons around in public.

Meanwhile, the NRA seems to be getting desperate -- and embarrassing the gun-owners who could and would make reasonable arguments against or suggest reasonable amendments to proposed statutes.

The NRA reached a new level of tastelessness this week with its commercial calling President Obama a hypocrite for accepting secret-service protection for his kids while opposing the NRA call for more guns in schools.

The NRA must really suppose people are stupid.

First of all, Secret Service protection for the President’s immediate family is a legal requirement enacted well before Obama ever thought of running for the office.   He didn’t choose it, and perhaps could not legally refuse it.

Secondly, any fool can see that he and his kids are targets for madmen in a way that you and I are not.

In fact, in answer to the NRA’s rhetorical question “Are his kids more important than yours?” the  nation’s answer, given long before 2008, is that, well, yes, the government should spend a bunch of money protecting Chelsea Clinton or Bush’s daughters or Obama’s daughters that it doesn’t spend protecting the average kid.  Not because those kids are inherently of more value and not because Obama is selfish, but because the nation does not wish to have its leader vulnerable to the pressure of a kidnaper’s demand to free a terrorist in return for return of the President’s daughter.  Kind of makes sense.

I notice that others, including New Jersey governor Christie, have been equally sickened and disgusted by the NRA ad.  Sadly, this sort of thing represents the NRA's contributions to what should be a meaningful national discussion.  Gun owners have a reasonable point of view, often some knowledge the rest of us lack, in that they like guns, know guns, and try to protect their kids from gun abuse by teaching those kids respect for firearms.  They have some useful points to make.  The NRA, which apparently doesn't, undermines their credibility.

A week ago I ran into a friend who complimented my initial column on gun issues and said that although he was an NRA member who owned several guns, he was so disgusted with the NRA that he wanted to resign.  When I asked why he hadn't (perhaps sending the local paper an explanation of his reasons), he shrugged and said that he did so many other things with the NRA (such as getting his insurance through it) that quitting would be inconvenient, so he was procrastinating.

Meanwhile, in the column I promised links to a couple of sources:

The Law Center to Prevent Gun Violence has a list and summary of State Child Gun Access Prevention Statutes.

I wrote that there was a relationship between strong gun laws and minimizing per capita firearm deaths -- and between lax gun laws and higher death rates.  Check out: Gun Laws Matter.   There’s an interesting map in which it’s easy to note that:nine of the top ten states with highest gun rate deaths are graded F for their weak laws, and the tenth gets a D; the ten states where gun rate deaths are lowest include two grades of A- (California and Connecticut) for strong gun laws, three B’s, three C’s or C+’s, a D, and an F (Maine); and when you list the states with the strongest gun laws and the states with the fewest gun death rates, seven states appear on both lists.

A couple of days after writing the column I noticed the New York Times citing the same study.

I don't think that study should be ignored in the discussion of what New Mexico should do.  There may be reasonable questions about how much the study means, and people should ask them; but we shouldn't ignore the extensive experience of other states.

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