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. . . unfortunately there are no data for the Very Beginning. . . . Only God knows what happened at the Very Beginning (and so far She hasn't let on).
-Leon Lederman

The Torah and Tachlis of Violence with Firearms: Ethics and Evidence

Sunday, November 12, 2017 @ 02:11 PM
posted by Roger Price
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WARNING: This is serious stuff. Human life is at stake. If you are looking for confirmation of preconceived narratives, stop. You probably will not find that here. If you are looking for solutions in slogan form or less than 750 words, stop. You surely will not find that here. We will go ten times farther than that. And this is not a discussion about some utopian ideal. It concerns the world in which we actually live, with the government and law we have and human nature as it is. If you will not deal with reality or ambiguity, stop. You will be annoyed here. If you are not interested in facts that define a problem or evidence that may offer a solution, again, please stop. Otherwise you will be disappointed and unhappy. If anyone is left, thanks in advance for considering this essay. 

 

These days in the United States we see and hear much violence associated with firearms. Sometime it erupts in a mass shooting at a college or an elementary school, a church or a Jewish Community Center, a nightclub or, as it did most recently, an outdoor concert.  Sometimes it comes with the steady staccato of an attack by one gang banger attempting to snuff out another. Sometimes it comes by way of a single bullet, the shooter and the shot being the same person. However it manifests itself, the sadness that follows is palpable.  Our hearts are broken at the loss of life, of what might have been, of possibilities foreclosed permanently. And we are angry, too – angry at the perpetrator and angry about the conditions that permitted if not caused a person to become so hateful or so self-righteous or so desirous of notoriety or so callous or so full of despair that s/he acted to take a human life.

When such violence strikes, to the extent its senses and sensibilities have not been numbed, the Jewish community here has not been shy.  With sermons and articles and resolutions and more, it has spoken — loudly, passionately and repeatedly. But it has not spoken uniformly, much less always wisely.  There is in the Jewish community, as there is in the nation as a whole, a variety of viewpoints. The question before us is whether our tradition can offer both Torah and tachlis, that is both instruction grounded in Jewish values and ideas that are also practical and productive.

To answer that question, we first need to understand the nature and extent of violence involving firearms in America today. That is, before moving forward, we need to take a step back. We need some perspective. We need context. We need to look at the grim statistics and break them down. And in the course of the inquiry, we need to be mindful that there are statistics and then there are statistics. We will try to keep cherry-picking to a minimum. After that, we can consider the spectrum of Jewish ethical values and see how, if at all, they could inform a productive approach to the challenges presented by violence with firearms.

 The Nature and Extent of Violence Involving Firearms in the United States

We begin with some basic numbers. In recent years in the United States, the annual number of deaths associated with firearms, whether guns, rifles or other such devices, has approximated 33,000. That averages to more than 90 a day. The human toll more than doubles if one includes the physically wounded. And related adverse psychological effects further exacerbate the problem.

But there is always a danger when one looks at large amounts of data like these numbers. They both reveal and conceal important information. How can we understand these numbers?

According to the Centers for Disease Control and Prevention, in 2015 just over 2,700,000 resident individuals died in the United States. By far, the leading causes of death were heart disease and malignant neoplasms (cancerous tumors), followed by chronic lower respiratory diseases. Those three natural causes accounted for just over half of the reported deaths. Of the top ten causes of death, two were not diseases. Unintentional injuries (accidents) and self-inflicted harm (suicide) ranked respectively as the fourth and tenth leading cause of death that year. Almost half of all suicides involved firearms.

Even including suicides, though, death involving firearms would not be ranked in the top ten or even top fifteen causes of death in America.  For instance, in 2015 there were fewer deaths involving firearms than deaths attributed to kidney disease, septicemia and pneumonitis, but deaths by those causes rarely get the headlines that firearm deaths do. Deaths involving motor vehicles, averaging 103 per day in 2015, are about three times more common than firearm related homicides, yet do not generate similar national or even local pressure for additional regulation.

There is a plausible explanation, of course. In the normal course, one expects to die of something, which, if not an accident, most likely will be one of the dozen or so diseases which are the leading causes of death. These diseases, in turn, can and often are diagnosed and managed, so preparations can be made. In the normal course, one does not expect to shot. And we cannot really prepare for such an event. It tends to come suddenly, literally explosively. We are saddened by Alzheimer’s disease, now the sixth leading cause of death. We are shocked by violence coming out of a barrel of a gun or rifle.

When we focus solely on deaths associated with firearms, now looking at final numbers for 2014, we see that more than three out of five such deaths (21,386) were due to suicide, that is, they were intentional and self-inflicted. About one-third of firearm related deaths that year (11,008) were the result of homicides, either murder or manslaughter. As bad as that was, it was also much lower than in 1993 when firearm related homicides peaked at 17,075.

Some types of activities are more likely than others to involve firearm related deaths: gang activity, commission of a felony and domestic disputes, including arguments and romantic triangles.  Aside from these categories, some homicides involving firearms in 2014 were the result of legal intervention (464), others were unintentional (461) and a smaller number were undetermined (275).  (See Deaths: Final Data for 2014 (at 12/122).) For the period 2001-2013, the number of individuals killed or wounded in mass shooting incidents has typically been less than 20 per year, with several notable exceptions, but, of course, that could change.  Whether recent events indicate a new trend remains to be seen.

Further, while mass shootings and high-powered rifles garner the attention of the press, the public and the politicians, in those homicides for which the Federal Bureau of Investigation (“FBI”) has received weapons data, the weapon involved two-thirds of all homicides was a handgun.  (See FBI 2015 Expanded Homicide Data Table 15.) Moreover, in the half of cases where the relationship offender and victim was known, about 60% of the time the offender was killed by a friend or acquaintance and 26% of the time the killer was a family member. (See FBI 2015 Expanded Homicide Table 10.)

The nature of the incidents involving firearm deaths and those involved may help us focus on possible approaches to reducing them, but, again, we still we need to be careful about the numbers we have. For instance, restricting the analysis to homicides involving firearms, the numbers translated to about 33 per day, every day, in the United States in 2014. This average daily number of deaths is horrific. It is also quite misleading. The frequency and distribution of such incidents varies widely depending on a few key factors like location, gender, age, and race. Even the time of year or the day of the week can be important.

Where does violence with firearms occur?

No geographic area is immune from the scourge of homicides, but the death rate in 2014 attributable to firearms was highest in the states of Alaska and Louisiana and the lowest in the nation in Hawaii and Rhode Island. It was slightly better than average in Illinois and Maryland, but tell that to the citizens of Chicago and Baltimore.

We can narrow our focus to large urban areas, like Chicago, but the complexity of the problem does not diminish. In the last few years, Chicago has sustained more firearm related deaths than any other community in the country: 415 in 2014, 473 in 2015 and 762 in 2016. The last number was greater than the number of homicides in New York City and Los Angeles combined. On average this means that the evening news in Chicago reported no less than a homicide a day, every day, and sometimes more, but summers are typically worse than winters, and weekends and holidays are generally worse than mid-week. During the July 4, 2017 extended holiday weekend, 102 individuals were shot and 15 died.

These numbers, though, mask the potentially crucial fact that the homicide rate in some neighborhoods in Chicago is drastically different than that in other neighborhoods. Many areas are free of firearm related violent crime, but others approach and may even exceed the homicide rate in third-world countries. (See here.) And Chicago is not unique. Mass shootings aside, homicides with guns tend to be spatially clustered to a limited number of “hot spots.”  (See here.)

Similarly, while the body count is high, Chicago does not have the worst homicide rate in the United States when deaths per 100,000 citizens are calculated. In fact, in 2016, it ranked no higher than eighth on one dishonorable list of community dysfunction.  Taking a slightly longer term view over a five year period, Chicago ranks twelfth, behind Detroit, St. Louis, New Orleans and Baltimore and others. The homicide rates in those four named cities are twice that of Chicago over the five year period. (See here.)

By contrast, Newtown, Connecticut is a small, picturesque, financially comfortable New England town. But for one incident, neither its firearm homicide numbers nor its rate or ranking would be noticeable. Yet, on December 14, 2012 in less than five minutes, one individual armed with a Bushmaster .223 caliber model  XM15 semi-automatic rifle loaded with exploding hollow point rounds shot 154 bullets into Sandy Hook Elementary School, killing six adults and twenty children and physically wounding and psychologically scarring untold others.

Who resorts to violence with firearms?

When considering who resorts to homicide with firearms, geography matters, but so does gender, race and age. According to FBI  statistics for 2015, where the gender of the offender was known, nine out of ten times the killer was a male. Where race was known, about 53% of the offenders were Black or African American and 44% White.  (See FBI 2015 Expanded Homicide Data Table 3.) Where age was known, the greatest number of offenders was found in the 20-24 year old cohort, followed by the 25-29 year old bracket.  (Ibid.)

Who are the victims of the use of firearms?

Not surprisingly, the composition of the victims of homicidal violence tends to parallel that of the perpetrators. That is, according to the FBI, the victims are overwhelmingly male, they are young, and there are more likely to be Black than White. (See here.) Where the relationship between offender and victim is known, as noted above, the data is clear: offenders are more likely to kill friends, acquaintances and family members than strangers. (See here.) In other words, they tend to kill victims who resemble themselves.

A report in the July, 2017 issue of Pediatrics, the journal of the American Academy of Pediatrics (the “Pediatrics Report”) confirms that the pattern observed by the FBI reaches deep down to affect our nation’s children. There is an enormous gap between boys and girls as victims. Whether the issue is death or injury, boys are involved in just over four of five incidents and girls in just under one in five.     Similarly, there are significant differences in the rates of mortality between racial or ethnic groups. With respect to homicides involving firearms, the annual mortality rate for African American children was twice that of American Indian children, four times the rate for Hispanic children and about ten times the rate for White and Asian American children. Interestingly enough, the situation is different with respect to suicides. White and American Indian children have the highest rates of suicide involving firearms, rates four times higher than that of African American children and Hispanic children, and five times the rate for Asian American children.  (See generally, Pediatrics Report, at 4/14.)

The economic cost of violence with firearms

Researchers at John Hopkins University have estimated the cost of emergency department care for such violence at $2.8 billion dollars annually. If you think that number sounds high, consider another estimate from an investigator at the Pacific Institute for Research and Evaluation: $8 billion dollars in direct costs and another $221 billion in indirect costs. Putting issues of definitions and methodology aside, needless to say, the economic cost of firearm violence is substantial.

How many guns are there in the United States?

While violence involving firearms has a disparate impact in different neighborhoods and among different groups of people, the fact remains that a common denominator in all of this carnage is a firearm. Given the clear and devastating consequences of violence associated with firearms, some would like to ban or restrict their use, either by regulating the weapons themselves or the ammunition used. The National Rifle Association (NRA”), the largest promoter of firearms in the nation, opposes virtually all such regulation, with the succinct slogan “Guns don’t kill people, people kill people.”

Though gun control advocates don’t like to acknowledge it, the NRA’s argument is largely true, but it is also incomplete and somewhat irrelevant (except in a not-to-be-underestimated political context). That is, the argument is accurate to the extent that firearms, by themselves and unloaded, are inert objects which cannot cause any more harm than any other solid object like a hammer. If you want to be serious about addressing violence with firearms, you have to recognize the reality that relatively few firearms are ever used to commit violence.

The point is underscored by looking at the number of firearms and firearm owners in the United States. We don’t have precise figures, but we have what appear to be good estimates of both. The population of the United States is now around 325 million people. According to a 2015 report by NORC, a nonpartisan research organization at the University of Chicago, while household gun ownership has declined in recent decades, almost one-third of all households report owning one or more weapons. This is consistent with numbers provided by the also nonpartisan Pew Research Center (“Pew”) in its 2017 study, America’s Complex Relationship with Guns. If there are individuals who would not self-report possession of a firearm, the fraction of homes with weapons may approach or even exceed two-fifths.

Whatever the actual number of households with firearms, and wherever they are located, on average each such household appears to possess more than one firearm. After all, there are firearms and then there are firearms. Someone may use a small pistol for target practice, a rifle for small game, another weapon for home defense. Unfortunately, there is no precise record of the number of firearms held by civilians in the United States, but data from the number of firearms manufactured, imported and exported suggest that the number of civilian guns in the United States passed the population of the country back in 2008. And the number of firearms manufactured in the United States, including guns, rifles, shotguns and other weapons, has exceeded 8,000,000 in recent years. (See ATF Annual Firearms Manufacturers and Export Report.) Even eliminating the highest estimates, there are probably in excess of 350,000,000 firearms in civilian hands in the United States today.

Who owns and possesses all of these firearms?

As one might expect, there are demographic differences in household firearms ownership. NORC found household firearms ownership was greatest in the East South Central region and smallest in the Pacific region and Northeast regions. Ownership was concentrated in rural areas and highest in counties with no town over 10,000. It was also more than twice as likely among households with income over $90,000 than with income below $25,000. More than twice as many white respondents acknowledged owning firearms than did African-American respondents or Hispanics.

To a degree then, the data we have on firearms possessed by resident of the United States can be read to support a key contention of the NRA. If we compare the number of deaths associated with firearms with the number of available firearms, the result is an exceedingly small percentage, less than two-tenths of one percent. This will be of absolutely no comfort to anyone who has lost a family member or friend due to violence, but it demonstrates the difficulty of dealing with the violence problem as a gun problem because it suggests strongly that 99.98% of all firearms in the United States are not being used irresponsibly.

The NRA’s argument is incomplete and somewhat irrelevant, though, because, when loaded, and when used intentionally for one of the purposes for which they were manufactured and sold, or used recklessly or simply used negligently, firearms can pack not just a powerful punch, but a lethal one. And that punch literally can extend well beyond the natural reach of the individual trying to harm another person. So, a firearm is different qualitatively than a knife or some other kind of weapon. And the difference in the nature of the device is why we don’t see drive-by knife attacks or mass murders committed with a bow and arrows. Even with respect to suicides, where suffocation or poison is often used, the method of choice seems to be a firearm.

Why have a firearm?

The reason people want to have guns and rifles is, according to Pew, multifaceted. Many, especially those who live in comfortable urban and suburban surroundings, do not understand a perceived need for, much less the attraction of, guns and rifles. But others do. The primary reason offered is usually for protection. For example, from 2014 to 2017, the greatest increase in applications for concealed-carry gun permits in Chicago came from Black women, often living in the more dangerous parts of the city. Whether their decision is wise may well be disputed, but none of the studies that contend that guns offer no protection or do not deter crime are, for obvious reasons, classic double blind or repeatable experiments, and the evidence that is presented is more suggestive than definitive. Academicians can correlate all they want, but does anyone not understand what motivates these women? Similarly, rural residents, living in isolated areas, may also look to firearms for protection.

Then there are those who just like to hunt and eat game animals or shoot at targets or just collect firearms or have a keepsake inherited from an ancestor. Still others want to have firearms because they can. That is, they have a legal right and want to exercise it. For them, firearms are a matter of freedom and independence. One man explained his collection of guns by analogizing them to shoes. Apparently he could not have enough of either.  Who knew?

Jewish Ethical Considerations

In response to the carnage associated with firearms, the Jewish community has done what it always has done when faced with a social issue – it has reached back for instruction, primarily to its foundational texts. The concern is clear, but can lessons forged in ancient hills of Judah and refined in living rooms in Babylon and, later, small communities in Europe have any applicability to the vastly different American society of the present? Let’s look at some of approaches that have been advanced.

The sanctity of life argument

Respect for life has many and deep roots in the Jewish tradition. The argument begins with two propositions asserted in the Torah and a third from the Talmud. The first, part of the Eden story found in Genesis, is that each person is made b’tzelem Elohim, in God’s image. (Gen. 1:27.)The second, from the Ten Commandments, is the injunction “You shall not murder.” (Ex. 20:13.) The sages recorded in the Talmud add the third, saying, with a bit of poetic hyperbole: “Anyone who takes a life it is as though he has destroyed the universe and anyone who saves a life it is as though he has saved the universe.” (Mishnah Sanhedrin 4:5.)

Based largely on these propositions, as far back as 1975, the Reform movement called for the elimination of “the manufacture, importation, advertising, sale, transfer and possession of handguns, except in limited instances.” And, over the intervening years, the movement, through one or more of its arms, including the Religious Action Center (“RAC”), has been a consistent supporter of a wide variety of gun control measures.

As its name suggests, though, RAC is biased in favor of action and somewhat less focused on considered analysis or persuasion. For example, in a gun control statement which (as of  this writing)appears on its website, RAC notes the Jewish tradition favoring life and adds references to the prophet Isaiah’s dream that we should beat our swords into plowshares and our spears into pruning hooks (Is. 2:4) and reflections in the Talmud about a flaming sword held by Cherubim at the east of the Garden of Eden where Gehenna was created.

Unfortunately, these sentiments do not seriously address the problem. In fact, RAC simultaneously fails to present an honest and comprehensive view of the Jewish approach to violence and weapons, thereby leaving its credibility open to challenge, and resorts to language that is tone deaf and quite unlikely to have any effect on people who actually own, possess and utilize firearms.

For instance, RAC fails to address the numerous places in the Torah, and later in the Tanakh, the Hebrew Bible, where life was disrespected and the murder of individuals, groups and nations was either required or rewarded. Cain, having committed the first murder (that of his brother!), was physically marked, but founded a city and begat many descendants. (See Gen. 4:8, 15, 17-22.) Pinchas slew an Israelite man and his Midianite woman, but later was elevated to the position of High Priest. (See Num. 25:8, Judges 2:28.) Though hitting a rock twice was enough to keep Moses himself out of the Promised Land, striking an Egyptian overlord until he died resulted in no punishment at all. (See Ex. 2:11, Num. 20:8-12.)

Moreover, RAC apparently fails to recognize that we are neither in a mythical Garden of Eden nor at the end of days about of which Isaiah was speaking.  Does RAC seriously think that a member of the notorious MS-13, Bloods or Mongols gangs or even a peaceful rural citizen in the Bible Belt, many of whom possess and use firearms, cares one whit about what some rabbi said two thousand years ago about winged beings near a valley where children were sacrificed or even a prophet’s messianic musings?

Another Jewish anti-firearm group takes a similar tack. It calls itself Rabbis Against Gun Violence, as if there are any rabbis for gun violence. This organization begins and essentially ends the Jewish underpinnings of its position with the famous phrase found at the end of Deuteronomy and read on the holiest of holy days, Yom Kippur: “Choose life.” (Deut. 30:19.) The problem here is that the phrase is taken out of context and is an incomplete, simplistic and, therefore, misleading invocation.

The authors of Deuteronomy were not talking about life in its physical sense, that is, the beating of a heart, the inhaling and exhaling of breath or the firing of synapses. They were talking about a large collection of rules and regulations which would if followed, they said, bring the blessing of a worthwhile life to each and all on land deemed promised by their god. (See Deut.  26:16-28:69.) They were making a political plea, not a medical or even an ethical one.

The shame of weapons argument

Orthodox Rabbi Ari Hart has offered a more creative approach. He notes that there is a view in the Talmud that sees weapons carried on Shabbat as shameful. (Shabbat 6:4.) He uses this concept as a basis for building a case for gun control. Rabbi Hart is correct in his reference, but looking at the discussion as a whole, the rabbis involved seem more concerned with the sanctity of the Sabbath than any particular device used in violating that sanctity.

In any event, the noted 13th century Spanish commentator Nachmanides had a sharply different view. He wrote about Lamech, who is mentioned in early in the Torah as a great-great-great grandson of the murderer Cain.  (Gen. 4:18; see here at 6/7.) In Nachmanides’ telling, Lamech taught his son Tubal-Cain the art of metal working. Nachmanides then imagines Lamech’s wives being worried that he, Lamech, would be punished by God for helping produce swords and, thus, facilitating murder. Anticipating a now familiar argument, Nachmanides tells us that Lamech comforted his wives by observing that the sword would not be the agent of death, rather the person who chose to wield the weapon would be. Apparently Nachmanides was a card carrying member of the Local Sword Association, the motto of which was “Swords don’t kill people, people kill people.”

The right of self-defense argument

There is yet one more argument that RAC and others who seek to ban or heavily regulate firearms tend to ignore. The Torah expressly exonerates a person who kills a pursuer who had an intent to kill him. (Ex. 22.1.) In twelfth century Spain, Maimonides, perhaps the greatest pre-modern Jewish philosopher, went further and argued that if a pursuer is warned not to proceed and continues his pursuit there is an obligation to kill the pursuer.  (See Hilkhot Rotze’ah U’shmirat Nefesh, 1:6-7.) That is, he acknowledged a right of self-defense and self-preservation. And, to his credit, so does Rabbi Hart.

There is even a passage in the Talmud that goes further still. Threatened by a whistleblower who was about to disclose that a rabbi had slandered a local official, the rabbi characterized the man as a pursuer and killed him first. (See B’rakhot 58a; see also Sanhedrin 72a-b.)

The danger of disarmament argument

Where might the thinking of Maimonides and Nachmanides lead? You can find out on a website called Jews for the Preservation of Firearms Ownership (“JPFO”). JPFO was founded almost 30 years ago with the stated purpose of educating Jewish Americans about what it says are the “historical evils that Jews have suffered when they have been disarmed.”

JPFO is not the most coherent website online. But if you can manage to wade through it, you can find at least two rationales for its mission. First, highlighting biblical episodes RAC and others fail to address, JPFO notes incidents, including one set at the time of the Judge and Prophet Deborah and one at the time of King Saul. In both cases, the people of Israel were facing disaster at least in part because they were unarmed.  (See Judges 5:7-8, Sam. 13:19.) In both cases, and with identical language, the Hebrew Bible stresses that there was neither a sword nor a spear among the entire population. And JPFO argues that today, in contrast to biblical times, the Jewish people cannot rely on a miracle to defend themselves.

Second, JPFO offers a list of situations, mostly in the twentieth century, in which a variety of nations have enacted strict gun control laws of various kinds and then targeted for elimination disfavored groups such as political opponents and ethnic minorities. Think Ottoman Turkey and Armenians, Nazi Germany and Jews and gypsies, Uganda and Christians, Rwanda and Tutsis.

Now, you may believe that such consequences could not happen here and that JPFO is paranoid, and you may be right. The narrative that Jews with firearms could have stopped the Third Reich, when better armed people from France to Russia could not, has been debunked by those with at least as strong a sense of history (and armaments) as JPFO, including Jewish defense organizations. The Anti-Defamation League (“ADL”), for instance, even argues that the Holocaust has no place in the domestic gun debate. Still, based on the ADL’s own analysis, anyone who in the last year has not observed an increase in hateful incidents in the United States, including Anti-Semitic ones, and a darker, more brazen tone to them as well, has either not been paying attention or is in denial.

None of this is intended to suggest an equivalency between RAC and JPFO as organizations, much less between a maximalist and minimalist orientation toward the control of firearms. Rather, it is to recognize that with respect to weapons of violence, and over more than 2,500 years, Jewish communities have generated a considerable variety of views and precedents regarding the sanctity of life and the propriety or obligation of self-defense. To deny that truth is neither intellectually honest, nor likely to be productive in resolving the similar tensions in the broader American discussion.

The concern for the safety of persons, places and things argument

And the Jewish ethical tradition has even more to say, especially about safety. Here are just two examples.

First, the Torah contains three closely related commandments. One, found in the Holiness Code, prohibits placing a “stumbling block” in front of the blind. (Lev. 19:14.) Another affirmatively requires building a parapet around the roof of a house lest someone fall and spill blood. (Deut. 22:8.) A third says summarily, “You shall guard and protect your lives.” (Deut. 4:9.) Each maxim seeks to keep a person from harm either because he or she cannot see or anticipate a dangerous condition or because the circumstances are inherently dangerous.

Note, though, how these principles can support both opponents as well as proponents of gun control laws. For instance, some would argue that readily accessible guns constitute a stumbling block, while others would suggest that restricting access to weapons impedes their ability to protect themselves. Some would argue that guarding yourself requires possession of a weapon, while others would contend that it means eliminating or securing them.

Similarly, the Talmud reports an argument about a dangerous dog. The majority view sought to prohibit the ownership of a mean or dangerous dog or at least require that anyone who had such a dog remove the risk of danger. (See Bava Kamma 15b, 46a.) Jewish gun control advocates naturally view this as a precedent for banning possession of a firearm or, minimally, requiring that weapons be securely locked and stored. As you may have guessed by now, the rabbis involved in this discussion also recognized exceptions to the general rule.  For example, they allowed those living in dangerous towns to unchain their dogs at night for protection. In sum, and continuing with a weapons metaphor, general safety principles can be used both as a sword and a shield.

Applying Jewish Ethical Guidelines to Today’s Reality

Applying the Jewish ethical principles honestly and productively to the dilemma of violence associated with firearms in the United States is both difficult and frustrating. First, as we have seen, an authentic Jewish ethical approach to the ownership, possession and use of weapons is neither simple nor uniform. Instead, it is complex and nuanced. As Chabad Rabbi Shlomo Yaffe has noted, correctly and wisely, the Torah merely required the placement of parapets around the roof of a house. It did not prohibit flat roofs. Second, the violence that is sought to be quelled manifests itself in so many ways that a plausible solution for one aspect would do nothing to alleviate the harm that arises in another setting. There will have to be many solutions for the varieties of violence we face. For both these reasons, those who insist on applying Biblical bumper stickers instead of urging reason and responsibility are not being as helpful as they could be.  We need fewer references to myths and messianism, and more emphasis on reality based ethics and evidence based solutions.

The discussion is also complicated by two other factors, one legal and the other practical. First, any effort to address violence associated with firearms in America must do so within the context of the Second Amendment to the United States Constitution. In District of Columbia v. Heller, 554 U.S. 570 (2008), the United States Supreme Court ruled that individuals have a right under the Second Amendment to possess guns in their home for traditionally lawful purposes, such as self-defense. Consequently, it held D.C.’s ban on handguns and certain restrictions on the possession of rifles to be unconstitutional. Subsequently, the ruling in Heller was made applicable to state and local governments in McDonald v. City of Chicago, 561 U.S. 742 (2010).

At the same time, writing for the majority in Heller, the late Justice Antonin Scalia, said that the Second Amendment right, like other constitutional rights, was “not unlimited.” More precisely, he acknowledged that the right historically was limited to those weapons “’in common use at the time,’” and consistent with “prohibiting the carrying of ‘dangerous and unusual weapons.’”  It was not, therefore, “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (554 U.S. at 626.)  Justice Scalia then identified, without limitation, individuals such as felons and the mentally ill and “sensitive places” such as schools and government building as being proper subjects of restrictions. Similarly, he recognized that there might be appropriate laws “imposing conditions and qualifications on the commercial sale of arms” and on “the storage of firearms to prevent accidents.”  (See generally, 554 U.S. at 626-32.)

Invoking some of the language discussed above, RAC, among other organizations predictably condemned Heller as “misguided,” but taken as a whole, Heller was not (and is not) inconsistent with the traditional Jewish view, also seen in its entirety. The principle of self-defense was affirmed, and reasonable restrictions on one or more points of the trajectory of violence associated with firearms were declared to be presumptively valid. Moreover, recent history suggests that concerns over Heller were misplaced. According to the Giffords Law Center to Prevent Gun Violence, over a thousand cases involving restrictions on firearms have been decided since Heller and the restrictions have been upheld in over 90% of them. The permissibility of placing reasonable parapets is, therefore, established.

The second complicating factor is more daunting. It requires determining what kind of regulation might be effective in reducing the likelihood or incidence of violence involving firearms. From the design and manufacture of the weapon itself, to its sale and distribution, to its ownership, possession and use, what works? And does what works in one setting work in others?

A recent case illustrates the problem, and gives reason for concern. Not long before the recent mass shooting in Las Vegas which generated deserved outrage and, also, predictable cries for gun control, in the case Duncan v. Becerra, U. S. District Court Judge Roger Benitez (S.D. Cal.) considered the constitutionality of a new California law which barred the possession by gun owners of high-capacity ammunition magazines, i.e., those holding more than ten rounds. According to the law’s proponents these magazines were not needed by civilians for defense or hunters for sport, but were used in mass shootings. Nevertheless, Judge Benitez issued an injunction against enforcement of the new law. The standards applied by Judge Benitez, and his legal reasoning, may or may not make sense to higher courts or legal scholars. (Compare, e.g., Kolbe v. Hogan, –F.3d – (4th Cir. 2017) (En banc, 10-4; petition for certiorari pending.) But his findings of fact offer instruction for everyone.

In the course of his 66 page opinion, Judge Benitez reviewed the facts of 92 mass shootings in the United States and the testimony of numerous proffered experts to try to determine if the new law would have made any real difference in the outcomes of those situations. He found that it would not have made any or any substantial difference because magazines with over ten rounds were used in only 6 of the 92 cases considered, and half of those six involved already illegal acquisitions. Moreover, none of the state’s four experts provided persuasive, science based studies that showed the effectiveness of any ban on such magazines. One conceded that “robust supporting data is missing” and that “’available data and statistical models are unable to discern (any) effect.’” (Opinion, at 43/66.)

For those concerned with evidence as well as ethics, the absence of reliable research is a real problem and it extends beyond Judge Benitez’s courtroom. Last month, Leah Libresco, a former statistician and writer for FiveThirtyEight, created a social media stir when she wrote a short opinion piece for the Washington Post to the effect that research persuaded her that gun control was not the answer to the problem of violence with firearms.  More precisely, she said that certain popular proposals, including banning assault weapons, restricting silencers and reducing the size of magazines, are not likely to reduce violence where it frequently appears, with young gang members, abused partners and suicide victims.

The reaction to Libresco’s essay was swift. One headline on Vox blared: “The research is clear: gun control saves lives.” Yet, proving once again that text does not always follow where a headline leads, the author, German Lopez, concludes limply saying that “gun control does, at least to some extent, reduce gun deaths.” (At 8/12.) And that underwhelming conclusion was based on the results following a gun buyback program in Australia, not the United States. He then concedes that gun control cannot stop all violence, that other factors like poverty, urbanization and alcohol consumption play a role and that “we could always use more research into gun policy . . . .” (At 8-9/10.) Indeed.

Consider the individuals who are the source of much of the violence with firearms. Given the enormous gender disparity among homicide offenders who use firearms, “(a)ny account of gun violence in the United States, must,” as the American Psychological Association recognizes, “be able to explain both why males are the perpetrators of the vast majority of gun violence and why the vast majority of males never perpetrate gun violence.”   The APA calls for the development of programs and settings “that aim to change gendered expectations for males that emphasize self-sufficiency, toughness, and violence, including gun violence.” That is, it wants more research. And if we are to be serious about addressing violence with firearms used by street gangs or directed toward female partners and friends, such research seems vital.

Similarly, more research concerning the intersection of mental illness and weapons with respect to both homicides and suicides seems necessary. Today, many assume that mental illness, however defined, is causally connected to or at least correlated with violence involving firearms, especially mass shootings. But, according to the APA, “most people suffering from a mental illness are not dangerous.” (Id.) Studies suggest that even people with diagnosable serious psychiatric disorders do not, absent a substance abuse disorder, present a likely risk of violent disorder. (See generally, “Mental illness and reduction of gun violence and suicide: bringing epidemiologic research to policy.” (At 10/20.) But perhaps more importantly, predicting who might engage in a violent act is “a very inexact science.” (Id. at 9/20.)

At the same time, federal and state laws respecting individuals who have been reported or adjudicated to have a mental illness are not consistent, comprehensive, coordinated or even well enforced. Consequently, more research is necessary to fill the gaps in our knowledge about the effectiveness of regulations which can reduce risks of harm to self and others, but neither reinforce stigmas about mental illness nor deter those who need it from seeking help. (See Id. at 13-14/20.)

Because Jewish tradition is pragmatic, it does not require us to research the best parapet when people are at risk of falling off a roof. Nor does it require us to save every life that is at risk. The oft quoted teaching of Rabbi Tarfon may well be applicable here: While you are not required to complete the task, neither may you desist from it. (Pirke Avot, 2:16.)

So, let’s recognize both the legal, but not absolute, right of citizens to keep and bear certain arms as established in Heller and its progeny and also the inherent and inalienable right of individuals and the public to life and the pursuit of happiness, marked at least by safety in their homes and in their normal movement in an open society, if not a risk free environment. Let’s also accept (1) that guns don’t kill, people do, (2) that when a person has access to a firearm the damage s/he can do with it can be lethal, and (3) when people kill with firearms, they do so sometimes maliciously, sometimes recklessly, sometimes negligently, sometimes under the influence of chemicals and sometimes due to internal disorders we may not fully understand. Let’s focus on human behavior and some potential means for increasing safety and reducing risk in those more common situations where acts of violence cluster. And, finally, let’s draw on the wisdom of a variety of social scientists, including among others, criminologists, behavioral economists, psychologists, psychiatrists, sociologists and epidemiologists, that is published in evidenced based studies at respectable institutions like the Johns Hopkins Center for Gun Research and Policy, the Joyce Foundation Gun Violence Prevention Program and elsewhere as noted above.

When we do this, we might be able to develop a non-exhaustive list, like the one that follows, of reasonable parapets worth further discussion:

  1. Each state should establish a firearms safety program designed to teach individuals how to use and store firearms in a safe and secure manner. The states should license those who successfully pass their safety exam for a limited period of time, subject to renewal.
  2. No person should be able to purchase a firearm, or possess or use one, without having passed the established safety standard in his or her state.
  3. No person under the age of sixteen should possess or use a firearm, except in the presence of an adult who would be responsible for the conduct of the minor.
  4. Police and community intervention initiatives that provide positive and immediate alternatives to violence, and that “strengthen . . . impulse control, personal responsibility, and capacity for conflict resolution” should be instituted and expanded. (See, e.g., Combating Gun Violence in Illinois: Evidence-Based Solutions” and Boston TenPoint Coalition.)
  5. No person who commits a felony, while in possession of a firearm, should be entitled to own, possess or use any firearm for a limited period of time subsequent to the completion of his/her sentence for such felony, and should be required to turn over temporarily to local authorities any firearm in his/her possession.
  6. No person convicted of more than one offense within a five year period of using a controlled substance or driving under the influence of alcohol or drugs should, for a limited period of time, be entitled to own, possess or use a firearm, and should be required to turn over temporarily to local authorities any firearm in his/her possession.
  7. No person convicted of abuse or stalking, whether with respect to a spouse, dating partner, friend or otherwise, nor any person subject to a restraining order prohibiting harassment, threats or abuse, should, for a limited period of time, be entitled to own, possess or use a firearm, and should be required to turn over temporarily to local authorities any firearm in his/her possession.
  8. Family members and intimate partners should be entitled to seek civil relief authorizing the temporary removal of firearms from a household based on a credible risk of harm to any person in that household.
  9. Firearm owners should be required to report lost or stolen firearms. If any such person fails to do so and those firearms are used in crime, s/he should be held responsible.
  10. Courts, agencies and other governmental bodies that may have information relevant to whether a person may be prohibited under federal law from purchasing a firearm should be provided such funds and personnel as are necessary and appropriate to transmit relevant records to the FBI’s National Instant Criminal Background Check System (“NICS”).
  11. Background checks should be required of every potential purchaser of a firearm prior to the sale of any firearm to that person, whether the sale is by a licensed dealer or private seller, and that information should be reported to a database in the state where the sale is contemplated and then transmitted to NICS or such other database as may be established.

 A Few Final Words

Language drives a discussion in complex ways. When there is a multi-vehicle incident which results in deaths and injuries, we do not characterize the event as “car violence” and we do not talk about “car control.” So why do we call violence with firearms “gun violence” and instinctively seek “gun control”? And more importantly, do those characterizations cause us to focus attention on an object instead of the behavior that activates the object or, further, the root causes of that behavior? Do they also and unnecessarily antagonize many individuals who might otherwise be willing to work to reduce violence associated with firearms?

The Jewish tradition, developed over an extended period of time in many settings, is fundamentally rooted in the reality of human nature and experience.  It is, consequently, sensitive to core desires for both safety and security. And, so, its insights, including its recognition of the tensions inherent in communal life, can be helpful in our deliberations. Significantly, when addressing relationships between individuals or between one individual and the larger society, Judaism does not call on us to act self-righteously or make a show of utopian virtue. Rather, it seeks practical solutions to often complex problems. Why don’t we all try that? Less preaching, less posturing. More listening, more learning. Less demonizing, more dialog. Who knows, maybe together we can act constructively and productively to make the world a little better tomorrow than we have it today.

 

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