Last year came news about the shooting death of Trayvon Martin, an unarmed black teenager, at the hands of a nervous neighborhood vigilante. More recently, a graduate student in neuroscience named James Holmes opened fire in a Colorado theater with an array of advanced weaponry, killing twelve and wounding fifty-eight. And on a cold and clear December morning in Connecticut, a former high school honors student methodically executed twenty unsuspecting schoolchildren and seven adults with “a semiautomatic rifle that is similar to weapons used by troops in Afghanistan.” These events have been described as “tragic”—and so they are, though not in the sense usually meant. The tragedy is not that something awful and terrible happened that should never have happened. The tragedy is that something awful and terrible happened that was, and is, supposed to happen. This is in keeping with the original Greek meaning; in Whitehead’s gloss, “the essence of dramatic tragedy…resides in…the remorseless working of things…[the] inevitableness of destiny.” Usually, this tragedy goes unremarked until it is too late; so in this essay I try to render it blindingly salient.
At the common law, a person is presumed to intend the natural and probable consequences of his voluntary acts. If you point a loaded gun at me and pull the trigger, you are presumed to intend me harm. Likewise, if a nation, say, the United States (with less than 5 percent of the world’s population and nearly half of the world’s firearms), maintains a regime of essentially unlimited access to dangerous firearms, it is presumed to intend the resulting terrible, but eminently predictable consequences. If the American people did not truly intend those consequences, they would presumably rise up en masse and demand state and federal laws that required gun owners to take out liability insurance, imposed steep taxes on firearms and ammunition, or made the manufacturers liable for the death and destruction these products (when used properly) are supposed to cause.
But changes of this magnitude are hardly to be expected—not in a land where a one-gun-per-month purchase limit counts as bold—even “pioneering”—legislation. (The debate over assault weapons and high-capacity magazines, after all, is not about whether people will be killed; it is about how many will be killed, and how quickly.)
In mentioning the death of Trayvon Martin, I described him as “unarmed.” That is how all the news accounts described him too. But suppose a newspaper story begins, “Today President Obama, who was unarmed, presided over a cabinet meeting devoted to health care reform.” President Obama is presumed to preside over his cabinet meetings unarmed, which is why the imagined newspaper account sounds odd. One does not explain the obvious.
The man who shot Trayvon Martin, a certain George Zimmerman, displays more than his share of grandiosity, narcissism, and racism. But he has other things on his mind too. In the United States ca. 2012, on a dark and stormy night in Florida, there is no reason to presume that Martin is unarmed. It is not obvious. In fact, the opposite presumption may be more accurate. (A 2011 Gallup Poll puts reported gun ownership in the American South at 54 percent.) That is precisely why news accounts emphasized that, in this case, the presumption was rebutted: Martin was, in fact, unarmed.
But Zimmerman does not know this yet. He worries out loud over the phone to the police dispatcher:
[T]here’s a real suspicious guy….This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around….Now he’s just staring at me….[N]ow he’s coming towards me….He’s got his hand in his waistband. And he’s a black male….Yup, he’s coming to check me out, he’s got something in his hands.
But even if Martin has a gun, so too does Zimmerman. Under Florida’s “Stand Your Ground” law, if Zimmerman feels threatened he can shoot first (which he does) and ask questions later. He is “justified in the use of deadly force and does not have a duty to retreat” in his home, in a vehicle, or indeed in “any other place where he…has a right to be.” Deadly force may be used if he “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself…or to prevent the imminent commission of a forcible felony” (emphasis added). In a society where anyone and everyone may have a gun, Zimmerman certainly doesn’t want Martin to shoot first—nor does the law require him to take that chance. With ever more guns in circulation, it becomes ever more “reasonable” to suspect (or fear) that someone else has one—and to shoot first. Here is fertile ground for miscalculation; the criminal law and the law of large numbers work together to ensure that such miscalculations are many, regular, and predictable.
With ever more guns in circulation, it becomes ever more “reasonable” to suspect (or fear) that someone else has one—and to shoot first.
Using a gun for self-defense is a bad idea because (1) reality unfolds in unforeseeably complex ways and (2) mistakes may be irreversible. One night, for example, a distraught neighbor telephones you that a masked man is prowling about her yard with something “shiny” in his hands. You investigate, handgun in hand. Unbeknownst to you, the intruder in the neighbor’s yard is actually your own fifteen-year-old son, wearing a mask (for some unknown reason). As you approach, he sees you and naturally comes toward you—his own parent. But he fails to appreciate how this looks from your perspective; and of course he does not know you have been warned about the “shiny” object he is carrying. So, in a society awash with handguns, and not knowing who the intruder really is, you shoot and kill your own son as he comes up to you, so trustingly, just as he has so many times before. (This is a true story, whose every nuance is deep and “tragic” in the sense described above.)
Given the prevalence of gun violence, a standard journalistic genre of gun-murder reportage has evolved. First, the suspect’s life history is studiously explored, as if it held clues to a solemn mystery. Thus, the Wall Street Journal provides this portentous vignette of James Holmes’s graduate school years: “According to one classmate, Mr. Holmes rarely spoke unless spoken to….‘He was very quiet, sometimes pensive, like when you spoke to him it was almost like you were interrupting his thoughts.’” To which I say: Who cares? Who (except perhaps Holmes himself) could possibly have the slightest interest in these banal details?
Dave Cullen, author of Columbine, warns us not to “jump to conclusions” about mass murderers; in the Columbine killings, for example (which he “spent ten years studying”), “Dylan Klebold was an extreme and rare case. A vast majority of depressives are a danger only to themselves….[O]f the tiny fraction of people who commit mass murder, most are not psychopaths like Eric Harris or deeply mentally ill like Seung-Hui Cho at Virginia Tech. Far more often, they are suicidal and deeply depressed.” But, again, why would anyone have the slightest interest in the life histories of either James Holmes or the Columbine killers? Their common link seems to be the unlimited availability of firearms and the desire to use them on as many people as possible. It is going to be ever so much harder to cure the world’s depressed killers than to take away their guns.
In a nation as big and diverse as the United States, with something on the order of thirty million mentally disturbed gun owners (in any given twelve-month period), there are bound to be Dylan Klebolds on every street corner. And there are bound to be George Zimmermans out there also, who worry—not unreasonably—that you might be carrying a gun too. It is thus tempting to stipulate that anyone who goes into a school with a semiautomatic rifle and kills twenty children and six adults is, “by definition, mentally ill.” Somewhere along the way (according to the standard journalistic account) “the system broke down. This kid obviously had mental problems.”
No, the system did not “break down.” Occasional gun massacres are exactly what one would expect when millions of people with mild personality disorders are liberally supplied with lethal firearms. Thus, there are at least two problems with the view that “upstanding, taxpaying, legal gun owners [are] being punished for the actions of a few madmen.”
First, prior to their notorious shooting sprees, neither James Holmes nor Adam Lanza (the Connecticut shooter) was even remotely considered a “madman”; on the contrary, they were utterly unremarkable in every way. “We need to resist the conclusion that all such instances of senseless, wanton violence are due to mental illness,” cautions Jeffrey Lieberman, professor and chair of the Department of Psychiatry at Columbia University.
Second, the broader sociological concept of “deviance” is reserved, in Kai Erikson’s usage, for “conduct which the people of a group consider so dangerous or embarrassing or irritating that they bring special sanctions to bear against the persons who exhibit it.” In the United States today, no “special sanctions” are brought to bear against millions of people who assemble arsenals of high-powered firearms and huge stockpiles of ammunition—and who just might use them. Even if gunmen of questionable mental health claim more than their share of innocent lives, the vast majority of gun violence still remains, by any definition, the province of perfectly “normal” people who simply have no better outlet for their anger, fear, frustration, or aggression. As reported in the American Journal of Psychiatry, people with severe mental illness account for only about 5 percent of violent crimes over all.
Another theme explored in gun-murder journalism is “the burning question of why,” as Cullen puts it: the quest for that elusive motive. You’ve been bombarded with “facts” and opinions about James Holmes’s motives. You have probably expressed your opinion on why he did it. You are probably wrong, says Cullen—but, more fundamentally, does the category of “motive” even make sense for a mind this troubled? It may play a limited legal role in charging and sentencing; but beyond that, further puzzling over motive seems pointless. These massacres are not carried out pursuant to anything that you or I would recognize as a “reason.”
The fixation on motive reflects what might be termed an individualist paradigm. Individualists hope to solve the “mystery” of gun violence by peering deeply into the mind of man. In this paradigm, individual choice and personal responsibility are what matter. The law shapes choices with incentives (rewards) and deterrence (punishment). If we could specify the personality traits that lead to bad behavior, or inculcate their moral opposites, we would have the keys to solving the problem of bad behavior or at least deterring the worst behavior. All of this plays out at the individual level, one person at a time. All moral agents are personally responsible for their own behavior; no one is responsible for anyone else’s behavior (with certain exceptions not applicable here). The historical future is completely undetermined, and its further development depends entirely on the free choices made by moral agents today.
This individualist paradigm has deep roots in the American psyche and culture. It originates on the frontier, that notoriously unstable boundary region separating civilization from its discontents. Thomas Dimsdale, the Oxford don who sought out nineteenth-century Montana for its bracing, therapeutic climate, found the local inhabitants equally bracing. In every frequented street, he reports, “‘difficulties’…are commonly decided on the spot, by an appeal to brute force, the stab of a knife, or the discharge of a revolver….Habits of thought rule communities more than laws, and the settled opinion of a numerous class is, that calling a man a liar, a thief, or a son of a [bitch] is provocation sufficient to justify instant slaying.” Habits of thought die hard. Though the fabled frontier is long gone, the individualist paradigm lives on—in myth, legend, and the popular imagination.
Under the opposite paradigm, which might be called the generalist paradigm, one looks for broad, statistical patterns of behavior and ignores their meaning at the individual level. We care not “why” specific murderers kill specific people; we simply take note of their means, and set out to deny them (and others similarly situated) those means. We assume that the future will, in broad outline, resemble the past. Indeed, the mechanism of the unfolding future has already been set in motion, so it is too late to change the broad outlines of what is coming. This is the worldview of insurance actuaries, the Farmers’ Almanac, and theorists of decision-making under uncertainty.
Denying these “generalist” premises, the search for motive is ultimately an attempt to make sense of the situation at the individual level—to make a seemingly senseless world fall into comforting, familiar patterns of motive and intention, cause and effect, reason and consequence. This search is understandable but no less futile—and pointless. Given the millions of mentally and emotionally disturbed gun owners, only a general, abstract perspective makes sense. We “rationalize” the individual case by abstracting from the free will that nominally could produce any number of outcomes. Ignoring those possibilities, we focus instead on the actual outcome and locate its place (as if preordained) in a larger causal yet probabilistic scheme.
The Greek vision of fate, “remorseless and indifferent,” is the vision of science. There is no “invisible hand,” no deus ex machina, no Superman to swoop in and make things right. Unlimited gun violence is, for the foreseeable future, our fate and our doom (and, in a sense, our punishment for rights-based hubris).
In this context, the constitutional “right to keep and bear arms” means the right to kill another person at any time and place—“wherever a law-abiding citizen has a legal right to be.” Thus, for example, when a college student cheerily thinks to herself, “Oops, I almost forgot to bring my handgun to calculus class,” what she means is, “Oops, I almost forgot that I may need to kill someone in calculus class today.” This is the functional significance of the constitutional right.
And this is also the clear trend in policy. James Holmes has every “right” to acquire and assemble his arsenal, in its entirety; he has a “right” to bring it with him, into the theater; he has a “right” to point his weapons in your general direction; and, if you challenge him (and he feels “reasonably” threatened), he has a “right” to shoot you on the spot. From Dimsdale’s Wild West to our cultivated suburbs of Florida and increasingly on college campuses nationwide, “‘difficulties’ [are] decided on the spot, by…the discharge of a revolver.” The American people, in their considered judgment (as expressed in their laws, or lack thereof), would not want it any other way.
Thus, even the most spectacular mass murders provide ever more evidence…against gun control. In the Holmes case, for example, if the other theatergoers had only been armed, they might have killed Holmes before he could kill so many of them (or so the argument goes). According to the 2012 Republican Party Platform, “[g]un ownership is responsible citizenship,” which means that all citizens should rightfully be armed at all times, in order to secure the full benefits of “the God-given right of self-defense.” The culmination of this vision is a sort of Orwellian future in which handguns finally assume their rightful place as part of the natural equipment of mankind. In other words, less gun violence proves that gun control is not needed; more gun violence proves that gun control is not working. In either case, the proper response remains laissez-faire.
As in First Amendment law, where the fitting remedy for “evil counsels” and “noxious doctrine” is “more speech,” here the obvious remedy for increasingly malevolent gunmen is more guns. In a kind of parallel to the “marketplace of ideas,” good guns will presumably drive out bad guns; the “marketplace of weapons,” like economic markets generally, is viewed as self-regulating. Unlimited gun violence is the natural and probable—and obvious—consequence of a deregulated regime with unlimited access to guns. In a senseless world, this is one of the very few consequences that can be worked out to a mathematical certainty. The coffins—some 30,000 per year—may safely be ordered in advance.
Unlimited gun violence is, for the foreseeable future, our fate and our doom (and, in a sense, our punishment for rights-based hubris).
Relatives of Holmes’s victims attended his preliminary hearings and “watched Mr. Holmes intently, hoping to decipher some meaning” from his posture and gaze. One of them said: “I felt anger and I felt resentment that anybody could take away someone’s life for just going to the movies….I also felt sorry for him. Here was a brilliant person that could’ve done a lot of good. What went wrong?” I am afraid the answer is, “Nothing went wrong. This is exactly what is supposed to happen. In the United States today, anybody can take away someone’s life for just going to the movies.” How could any rational person be surprised? But of course the question is also misdirected. Holmes himself is a cipher, a statistic at one extreme of a bell curve. Yet those extremes are still part of the picture, and they have a way of interrupting our reveries and our festivities at the most inopportune times. This makes their sudden intrusion seem “surprising.”
The relatives at the hearings are victims not only of Holmes himself but of a cold, political calculus that takes place far away from Colorado. The victims represent the “costs” to be weighed against such “benefits” as providing law-abiding squirrel hunters with free and unlimited access to military-grade, commando-style, semiautomatic assault rifles with hundred-round magazines (and unlimited supplies of ammunition)—all without any “federal licensing or registration of law-abiding gun owners” (as the Republican Platform insists). A prominent gun advocate justifies the use of assault rifles this way: “Guns are fun, and some of them are much more cool than others. It’s just like we have television sets that look cool, and others are much more boxy.”
With a similar sensibility, one of the major political parties (along with firearms manufacturers and the gun lobby generally) opposes any rules at all “restrict[ing] our Second Amendment rights by limiting the capacity of clips or magazines.” The idea is not merely to cultivate existing demand for guns, but also to create new demand—by suggesting, for example, that our children will not be safe unless more guns are introduced into schools. An industry with annual sales of $12 billion can hardly be expected to stand still.
Holmes may be irrational, but the people making these careful calculations certainly are not. For now, they seem satisfied that their personal probability of dying in a hail of gunfire is negligible or at least “acceptable,” so long as it is only other people’s children who are dying. Still, even they have to ask themselves, “Are you feeling lucky (or hopeful) today?” That is the intellectual basis of public policy on gun control. “Luck” reflects the legacy of the fabled frontier mentality and its associated “individualist” paradigm, as faithfully implemented by riverboat gamblers. “Hoping” that lethal weapons will be used safely, sanely, and responsibly is like “hoping” that Iran is, as it claims, enriching all that uranium for some very mysterious power plants. “Evidence” and “expertise” figure only episodically in this discussion; indeed, the opinions of pertinent legal authorities and professional experts—those would be the police chiefs, sheriffs, prosecutors, and other law enforcement officials—are hardly even considered relevant. “[T]ragic and senseless” deaths are, as Judge Carl McGowan warned some forty years ago, “a recurring byproduct of a society which [appears] paralyzed to deny easy access to guns. Cultural infantilism of this kind inevitably exacts a high price.”
The National Rifle Association likes to say that “An armed society is a polite society.” This is very strange usage. If Queen Elizabeth invites me for a visit, I will certainly be “polite”—but not because I fear she might otherwise shoot me. “Manners are good,” continues the NRA, “when one may have to back up his acts with his life.” This too is strange. In what kind of society is the penalty for “bad manners” summary execution? It appears that “an armed society” may be more like a nervous society, a very timid society, one in which people are afraid to exercise even those dwindling constitutional rights that are compatible with the unlimited “right to bear arms.” Naturally, those who wield weapons will be in the best position to express themselves freely and forcefully on such matters. The rest of us are well advised to become good listeners. (As an unarmed law professor, I certainly have no plans to challenge the views of gun-toting students in classroom discussions. Likewise, the right to assign an occasional low grade—to a distinctly displeased recipient—is probably not worth dying for.)
Will we recognize this form of terrorism for what it is, even as it arises—so chillingly familiar—in our very midst?
Charles W. Collier is a professor of law and philosophy at the University of Florida in Gainesville. The author wishes to thank Marty Collier and Richard Posner for helpful comments that led to changes. Copyright © 2013 by Charles W. Collier. All rights reserved.