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Soto v. Bushmaster
On December 14th 2012, a lone gunman killed 26 people at Sandy Hook Elementary School. Of those, 20 were first graders and six were adults. Nearly two years later, the families of the slain filed civil suit against Bushmaster Firearms International, the manufacturer of the firearm used in those murders. In their suit, the plaintiffs claim multiple counts of wrongful death and loss of consortium. Although no one questions the tragedy of these deaths or pain suffered by the families, is the firearm manufacturer the proper party to seek redress? In this episode of Lawyer 2 Lawyer, host Bob Ambrogi interviews Elliot Fineman from the National Gun Victims Action Council, Charles Heller from Jews for the Preservation of Firearms Ownership, and Professor Nicholas Johnson from Fordham University School of Law. Together they discuss the merits of this case, the Second Amendment, and the Protection of Lawful Commerce in Arms Act. Tune in to hear outcome predictions as well as debates regarding self-defense and gun control. Where do you stand on the ownership of firearms and how responsible should companies be for the actions of others?
Elliot Fineman’s son was murdered in 2006 when a paranoid schizophrenic murdered his son with a legally obtained firearm. Since that time, he founded National Gun Victims Action Council and has become a leading voice for a network of gun victims, survivors, and the faith community seeking to change America’s gun laws. Among many other appearances, Mr. Fineman has been on CNBC, CNN, and Fox News. He has been quoted by top media outlets including USA Today, National Public Radio, and the Chicago Sun-Times and has hosted a bi-monthly radio program called “It’s The Guns, Stupid” on 1480 WPWC in Washington DC.
Charles Heller is the former Executive Director of Jews for the Preservation of Firearms Ownership (now their Communication Coordinator). Mr. Heller is a talk show host for shows like Swap Shop, Liberty Watch, and America Armed and Free on 1030 KVOI in Tucson, Arizona. He has been a state-certified concealed-weapons instructor since 1994 and lists his political affiliation as a “Freedomist”.
Nicholas Johnson is a Professor of Law from Fordham University School of Law where his principal subjects are Contracts, Environmental Law, Gun Control, and Gun Rights. He’s published many articles on the 2nd Amendment and Gun Control including a recent article about the Soto v. Bushmaster case titled “Newtown Suit Proceeds Under False Pretenses”.
Special thanks to our sponsor, Clio.
Lawyer 2 Lawyer: Soto v. Bushmaster – 1/21/2015
Advertiser: When you’re making something that is clearly dangerous, and clearly can deliver harm, pain, death, there is a responsibility to care about how you’ve done in sole. We do have some insane, gun laws, and firearms are among the most regulated things in the United States. You can never, ever achieve anything in society by punishing the innocent for the absolute guilty.
Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
Bob Ambrogi: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from just outside of Boston, Massachusetts, where I practice law and I also write a blog called LawSites and another blog called Media Law. My co-host, Craig Williams, is not able to be with us today. Before we introduce today’s topic, I’d like to just take a moment to thank our sponsor, Clio. Clio is an online management system for our lawyers. You could find out more about Clio at www.GoClio.com. On December 14th, 2012, a lone gunman killed 26 people at Sandy Hook elementary school in Connecticut. Of those, 20 were first graders, six were adults. Some two years after that tragedy, the families of the victims have filed a civil suit against Bushmaster Firearms International, the manufacturer of the firearm used in those murders. Today we’re going to talk about that case and about the laws at play here and some of the policy and legal issues and social issues surrounding that lawsuit in those shootings. To help us do that today we have 3 guests. let me first begin by welcoming to the show, Elliot Fineman. In 2006, a paranoid schizophrenic murdered Mr. Fineman’s son with a legally obtained firearm. Since that time, he has gone on to found the National Gun Victims Action Council. He is the president and CEO of that organization and he’s become a leading voice for a network of gun victim survivors and the faith community all seeking to promote what they call saner gun laws in America. Among many other appearances, Mr. Fineman has been on CNBC, CNN, Fox News, he’s been quoted by top media outlets, including USA Today, National Public Radio, Chicago Sun Times, and he’s hosted a bi-monthly radio program of his own called, It’s the Gun, Stupid on 1480 WPWC in Washington, D.C. Welcome to Lawyer 2 Lawyer, Mr. Fineman.
Elliot Fineman: Thank you, Bob, very happy to be here today.
Bob Ambrogi: Well we’re happy to have you. Next let me welcome to the program Charles Heller. Charles is the former executive director of Jews for the Preservation of Firearms Ownership and he’s now their communications coordinator. He also is a talk show host for shows, Swap Shop, Liberty Watch, and America Armed and Free on radio 1030 KVOI in Tucson, Arizona. He’s been a state-certified concealed weapons instructor since 1994 and lists his political affiliation as freedomist. Welcome to the show, Charles Heller.
Charles Heller: Thank you for the opportunity.
Bob Ambrogi: And last but not least, let me welcome to the show Nicholas Johnson. Nicholas Johnson is a professor of law at Fordham University School of Law where his principal subjects are contracts, environmental law, gun control, gun rights. He is the author of the book, Negroes and the Gun: The Black Tradition of Arms, and is the lead editor of the book, Firearms Law & the Second Amendment; Cases and Materials, published by Aspen Press in 2012. He’s also published many articles on the second amendment and gun control, including a recent article on the Soto Vs. Bushmaster case titled, “Newtown Suit Proceeds Under False Pretences. So welcome to Lawyer 2 lawyer, Nicholas Johnson.
Professor Nicholas Johnson: Thank you.
Bob Ambrogi: I’d like to just start by going around and getting your reaction to this lawsuit from all of you. Obviously from the descriptions that I just gave of each of you, you’re going to have different reactions to this, but I’m curious to just get your short take on what you thought when you heard about this lawsuit being filed, and Mr. Fineman, let’s start with you.
Elliot Fineman: Well, I certainly understand the reasons why the lawsuit was filed. I worked very closely with the people in Newtown since the tragedy; while I lived in Chicago I spent many trips in Newtown and worked with a group called the Newtown Victims and Clergy for Corporate Responsibility. That said, I don’t think the suit will be successful. I am sorry that it won’t be, but that’s because of what I call the insanity of our gun laws. Guns are the only consumer product that are not regulated; it used to be tobacco and guns, now it’s just gun. And because the immunity that the gun industry enjoys, and because of the way it’s structured, I don’t believe the suit will be successful. I think it’s worth while to have filed in terms of the human feeling that the Newtown parents who’ve lost children and also lost sisters and teachers, you know, the adults. And also to raise – I think it’ll be a high profile case – and I think it would raise for the public some of the insanities of our gun laws.
Bob Ambrogi: Charles Heller, I’m guessing you’d agree that, in your opinion, this lawsuit might not be successful, but I suspect you have different reasons for thinking that.
Charles Heller: It’s flawed on its face that the military doesn’t use the AR-15 and that’s what the case hinges on and it simply does not, it’s just factually correct. But we do have some insane gun laws, and firearms are among the most regulated things in the United States. We produced a documentary about it called The Gang, and it shows some of the just plain evil ways that the BATFE – that some people call Bureau of Alcohol Tobacco and Firearms; we refer to as the Brutal and Tyrannical Fascist Extraordinaire – Miss Enforced some of those terrible, overregulated laws.
Bob Ambrogi: And Nicholas Johnson, you’ve made the point in your article, that I mentioned at the opening of the show, that this lawsuit appears to run contrary to the protection to the Lawful Commerce of Arms Act in 2005 law that provides pretty broad immunity to firearms manufacturers.
Professor Nicholas Johnson: Yeah, my comment was running out just the critique of the complaint based on that law. The law actually allows traditional for negligence, it allows lawsuits against firearms manufacturers if they violate laws that legislators have put in place to govern the purchase and sale and distribution of the firearms. But it does not allow and does prevent the suits based on a variety of different tort theories. And that’s a consequence of an earlier state of lawsuits that were based on a variety of different creative approaches. One was over supply of firearms, and this one seems to be negligence and entrustment. And the theory is not compatible with the existing scheme of firearms regulation, so the AR-15 is allowed under the 1958 gun control act. Other similar source of laws also were impacted or have an impact of assessment here, the National Firearms Act of 1934. And even the Civilian Marksmanship Program, which for a very long time, has been the mechanism through which the United States government has provided semi-automatic firearms to individuals under the CMP.
Bob Ambrogi: I just want to jump back to Charles Heller, you made the point that the weapons and use in the issue and this case was not a military weapon. Help me understand that, my understanding was that this was actually originally designed as a military weapon and then it evolved into other forms of weapons. And I’m not gun expert at all, but Charles can you explain that to me?
Charles Heller: Well the original design by Eugene Stoner was what became the AR-10 which is a much more powerful gun. It’s a 308 Caliber weapon. A 223 is very low-powered as weapons go. It’s okay for hunting small deer and good for competition, but the cartridge is not that powerful, number one, the 223 that the military uses. And number two is that the rifle was adapted, a civilian version of it was made, but it’s really not the same gun, it’s not fully automatic. The military uses almost exclusively full-auto and burst fire, where the civilian version is semi-auto and just like a revolver, for each pull of the trigger you get one round out of the chamber. I happen to have one in my lap at the moment, and it’s not a particularly fearsome or awesome weapon, it’s American’s rifle; there’s been over 35 million of them made in the last 51 years. And it’s Americans sport utility rifle. After the Ruger 10/22 it’s probably the most owned rifle in America. Very common and ordinary, it’s garden variety.
Bob Ambrogi: Nicholas Johnson, you had talked about this a little bit in your article. Does the lawsuit get it right in its description of this weapon or its understanding of this weapon?
Professor Nicholas Johnson: No, it really doesn’t, and so it hinges on an attempt to make an exception, or to create an exception, to the Protection of Lawful Commerce in Arms Act and what it says is that the U.S. government and the military have taken special effort to keep the AR-15 out of the hands of civilians. And that’s just faults. So what I talked about in the blog post was, this is for long history through which we have seen public policy makers for closing in on a hundred years, making distinction between semi-automatic and fully automatic. And civilians in the U.S. have had access to semi-automatic firearms since the inception. So you look at guns like the 1907 Winchester, which is nearly 100 years old in design and availability, whose controls was describing basically accurate. So the National Firearms Act of 1934 made again, the distinction between the regulation of fully automatic and semiautomatic firearms. And access to semi-automatics is fairly wide. one study from a group in Harvard a couple of years ago, concluded that 60% of American gun owners owned some sort of semi-automatic firearm. So I think substantially that the complaint rests on this attempt to make a distinction between the AR-15 or other types of firearms or other types of semiautomatic firearms. And I don’t see a way factually for the players to hold in it.
Bob Ambrogi: Elliot, your organization is pushing for sane gun laws. Does your organization see a distinction, see that there should be a legal distinction, among these types of guns between semiautomatic, fully automatic guns?
Elliot Fineman: Well we take a different position. The gun side likes to get lost in the details, in the structure, the manufacturing, the size, et cetera, et cetera, of the guns. It’s because of that when we had the ban on automatic, semiautomatic weapons, that it was effectively no ban, because it just took the gun manufacturers a little adjustment of the way they made their guns to completely get around it. What we focus on is bullets per minute that can be fired, or bullets that can be fired before reloading. And there’s absolutely no defensive reason for having a gun that shoots more than 5 to 10 bullets at a time before needing to be reloaded or per minute. And so, it’s just ingenuous to say that this is a garden variety tool that we can just use for the pleasure of hunting. It’ a strictly offensive weapon, it is not a defensive weapon. And it’s a weapon that civilians shouldn’t have. You never read about somebody having used their semiautomatic weapon to defend themselves or to get out of a difficult situation. What you do read about, of course, is how the semiautomatics are used or fully automatics are used to commit mass murders. So it’s a completely inappropriate gun to be in public hands and we don’t define it in any kind of technical term other than the obvious, which is bullets per minute that can be fired, and or, bullets that can be fired before reloading.
Charles Heller: Can I add something to that? It’s an important point that the other speaker just made, and it’s one of the things that I tried to talk about in the blog post and also talked about in Senate testimony. So a couple of things here. One is that if one compares the AR-15, for example, in terms of low life stability which was the last comment, to a variety of other common firearms; not only is it not exceptional but just as a matter of measurement, it’s actually inferior to another very common firearm and I cite to this in the blog post. What I talk about is the common shotgun, which is a multi-projectile kind of technology and I think that if people look at this just from the perspective of the arguments and then why there’s objection on one side or the other when people are making these arguments. The worry, I believe, by people who have a concern about claims that are made about the AR-15, is that there are a variety of other common guns that exceed the AR-15 in terms of multi shot capability. And that includes most common, repeating shotguns loaded with buckshot. And this is not just my assessment, so one of the things that I cite in the blog post is that the army combat shotgun assessment, that talks about the effectiveness, relative legality of the AR-15 versus the common repeating shotgun, and then finds that the shotgun is superior. So the details actually do matter here, and for people who just stand in a neutral way trying to understand why the different sides take the positions that they do. I think you actually do have to pay attention to the technology, to the distinctions that the pieces of legislation are trying to make.
Bob Ambrogi: I want to come back to this point in just a second, I need to take a very short break and we will be right back and pick up from this point. So let me just take a moment to hear a word from our sponsor.
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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer, this is Bob Ambrogi and joining me today are Elliot Fineman from the National Gun Victims Council, Charles Heller from Jews for the Preservation of Firearms Ownership, and Professor nicholas Johnson from Fordham University School of Law. And we’re just talking about the different capabilities of some of these weapons. Elliot Fineman, earlier you made the point that you see no good reason for guns that shoot anything more than 5 to 10 bullets. Professor Johnson was just making the point that the weapon issue in this lawsuit of the AR-15 is perhaps not exceptional in that regard. I want to just go back to Nicholas Johnson quickly to just ask about Elliot Fineman’s point. Even if the gun is not exceptional as compared to other guns, what is the need for common citizens, for non-military people, to have any kind of a gun that can shoot greater than, as Elliot Fineman said, 5 to 10 bullets?
Professor Nicholas Johnson: When we push in this direction, just understand that what we’re talking about is the rationale for limiting existing firearms that are in the inventory. And I believe – and I can’t speak for everyone in this debate – but I believe that people who object to limitations on the AR-15 look at a variety of other firearms and say, well if the logic for banning the AR-15 prevails, then it’s a short step, in fact a very easy step to a restriction on a variety of other firearms and that’s the reason that I gave the comparison to the common shotgun. So a standard buckshot load produces with a single trigger pull, between 9 and 15 projectiles that spread down range. It’s designed in a way that is similar to – when you look at the descriptions of the GAU 2 A or AR-15 – is objectionable. And then you look at descriptions of how the common shotgun loaded with buckshot operates. Those objections could raise about the AR-15 are actually more after the context of the common shotgun of which there are tens of millions. So the thing that I think people lose sight of is that this is a broader, longer debate; and I’m just trying as an observer to understand both sides of it and I understand Mr. Fineman’s point, but I think that people who are on the other side of the debate are thinking, well the claims about the AR-15 are false. They are technically inaccurate and there are a variety of other guns that people using the same logic might then attack. And this has always been the character of the gun debate, that is that it’s a sacramentalist exercise, and people will disagree about that, but I just want to put it into perspective for people who are looking at it from the outside.
Charles Heller: I’d like to respond to what Mr. Fineman has said about semiautomatics, he’s not aware of semiautomatics being used in self defense. I’m sorry that he’s unaware of fact, but if you read the defensive gun uses that are published in the American rifle manual, you’ll find that well more than half of them are done with semiautomatics. And as far as the rifle not being defensive, where is it written in the Constitution that arms can only be defensive in their nature? We’re talking here about a basic individual like no different than speech. Read the Heller decision – I’m not related to him – it is a basic, fundamental, individual right. And we’re talking here about a constitutional right. We’re coming at it from the position of why should they be allowed? Sir, government doesn’t allow anything. Government isn’t in a position to allow anything, the citizens are the ones that are in charge. We allow government to make some regulations. Government doesn’t allow us our freedom. Freedom doesn’t originate with government, you’re born with it. Article II, Section II of Arizona’s constitution and almost every single state constitution has a provision in it that says that the power’s inherent in the people. And the that the purpose of the government is to ensure the rights of the people.
Elliot Fineman: Well all of that is charming, and the typical rhetoric that your side always puts out. The reality, of course, is that the issue here is the defensive use of guns and all of these reports in the riflemen, all of these reports by the fantastic John Lott, who deals in fantasy, about defensive gun uses to me, are utterly flawed. And what reveals the flawed nature of them is that none of thee people report – none, virtually none – report to the police the incident. They all wind up letting the perpetrator claim to have defended themselves with their gun walk away. As law abiding citizens, they let the people who supposedly they defended themselves against walk away free to attack other law abiding citizens or maybe even come back a second time.
Charles Heller: If I may, I’m a defense instructor, and that’s all you legally can do, Mr. Fineman. And if you don’t know that, then it’s a lack of understanding on your part, not a failure on the part of the gunman.
Elliot Fineman: Are you saying you can’t report that somebody attacked you when you had to use your gun to defend yourself? Is that what you’re saying?
Charles Heller: No, sir, I’m saying that you cannot legally use more force on a person once they’ve stopped attacking you.
Elliot Fineman: l’m not talking about force, I’m talking about reporting that somebody broke into your home or your store, or accosted you on the street and you got them in a position where they were vulnerable and couldn’t continue their attack and you just let them walk away. You’re saying you can’t report that?
Charles Heller: That’s all you can do legally-
Elliot Fineman: You can legally report them.
Charles Heller: -number one, and number two those incidents-
Professor Nicholas Johnson: Can I interrupt you gentlemen? So one of the things that happens here, I think that the debate here is about the survey results of the work of Gary Kleck but also fourteen other researchers including researchers who were also expressing doubt about Gary kleck’s original numbers determining defensive gun issues. But the methodologies that occur there are quite common. The one thing I would add to this is now in the internet age, we have the benefit of actual reporting. We don’t get much of this, in fact we get virtually none of this from national reporting, but on local news stations all over the country, we find precisely the sort of reporting of defensive gun uses that we’re describing here; and I recently had a couple of my students go through a variety of YouTube reports, and they got a link called Armed Self Defense, on YouTube, that includes literally hundreds of episodes where people are actually reporting to the police – and it ends up on the local news – that someone broke into my house, fired my gun. And in a couple of these instances, people had security cameras. There’s a very big incident of a woman in Detroit who actually used a semiautomatic rifle to protect herself and her kids as 3 or 4 young thugs were attempting to kick in their back door. They were armed, she fired at them and they ran off, and they were later apprehended. And we’re finding in, I believe the police chief of Milwaukee and another statement from the police chief in Detroit, indicating that they think that this is too good, that people armed and defend themself against attacks that police in just a matter of physics, don’t have an opportunity to respond to in time. So there’s dispute about the empirical data, but in terms of the anecdotal material, it’s true that when there’s one of these horrible events, then the national media puts it on this continuous loop and it looks like it’s the only thing out there. But it is accurate to say that there are countervailing stories and we see vividly the evidence of this in local and regional news.
Bob Ambrogi: Of course the issue in this lawsuit is not self defense obviously, the issue in this lawsuit is the question of whether the manufacturer should ever bear responsibility or liability for how these weapons are used. And I just want to hear from all of you, I know that there’s a law out there; there’s a statute out there that addresses this, but as a matter of policy, should gun manufacturers bear responsibility when something like this that happened in Sandy Hook occurs. Elliot Fineman, what’s your position on it?
Elliot Fineman: I have a very strong position on it. And my position is that of course they should, just like a manufacturer like the General Motors or Toyota bears responsibility when one of their cars are defective. There has to be some responsibility, The gun manufacturers have said very clearly and plainly, that they have no responsibility or really no interest about who gets their gun once they make it; that their job is to just make it and that however it gets out to the public, law abidings or not law abidings, that’s not their issue. But when you’re making something that is clearly dangerous, and clearly can deliver, as it does, tremendous harm, pain, death, tragedy, et cetera et cetera, there is a responsibility to care about how your gun is sold. It would be like car manufacturers making cars and not caring how their dealers sold them. In other words not requiring for the dealer, for example, require that anybody purchasing a car have proof of insurance, or have proof of a driver’s license. So that there is a responsibility and it’s a blatant disregard of safety and I would contrast that to one other thing. In the fight to get sane drinking laws, in terms of DUI laws passed, what the manufacturers did was they formed a group called the Century Council, that was even more responsible for getting the DUI laws that we have than met. The Century Council said yep, we make a great product, we want to sell a lot of them, but we don’t want the product being used to cause deaths of innocent people; a completely opposite view than the gun manufacturers have.
Charles Heller: I’d like to respond to Mr. Fineman, first of all once again, he doesn’t know what he doesn’t know. What he talks about, a council of manufacturers was exactly what happened in the early part of the 20th century when the SAAMI sporting arms manufacturers institute was formed. And they all conformed to extremely exacting safety standards. Furthermore, they meticulously follow federal law as to how guns must be distributed, that they could only go through distributors, that the transfers be made – except at the end user – only be made through distributors and not through individuals and so to cross state lines. They go through tremendous, rigorous, they go through audits, at the risk of their business from the Bureau of Alcohol, Tobacco, Firearms and Explosives; they are exceedingly cautious about the way that they do business. And the idea that they don’t, if he doesn’t know that, then he’s not well informed. If he doesn’t know it and he isn’t saying it, then he’s doing something else.
Elliot Fineman: Well I happen to live in the 21st century, I’m not living in the early part of the 20th century and things have completely changed. And to suggest that we have controls about how guns are sold that are appropriate and rigorous, belies the reality that 40% of the guns that are sold don’t even go through a background check-
Charles Heller: Yeah, it’s called freedom.
Elliot Fineman: -It also denies our freedom; you talk about your second amendment right freedom too, and it’s to regulate guns. That one gets-
Charles Heller: No you don’t, Mr. Fineman-
Elliot Fineman: Oh yes I do.
Charles Heller: -I’d like to respond. There was a time in this country when people voted on other people’s rights; that was called Jim Crow. If you like Jim Crow, you’d love gun control.
Elliot Fineman: I like gun safety and I like protecting the public safety and your analogy is absurd, but we don’t have time to respond to that.
Bob Ambrogi: Yeah, we don’t have time, let me hear from Nicholas Johnson on this.
Professor Nicholas Johnson: So I just want to sharpen the analogy; it is accurate to say that gun manufacturers go through a variety of regulatory steps based on the 1968 Gun Control Act. And the thing that I think, Mr. Fineman, is urging; if you took that argument and did extend it to other products, the argument would be that if someone in the state of intoxication drives a car and runs into someone and kills them, that the liquor manufacturer and the automobile manufacturer should be responsible for the criminal act. That’s the scenario that we’re facing in the context in criminal use of firearms. And it turns out to be, in fact, that no manufacturer in that context is liable for the criminal misuse of products that are both useful and dangerous. So useful and dangerous things include automobiles, they include alcohol, they include a variety of things where manufacturers are regulated. And if they behave negligently in the manufacturing and the distribution – meaning if they violate the law that governs the manufacture and distribution of those products, then they can be sued and properly so. It’s an extension beyond that, and what the earlier suits – before the current federal law was in place – what those suits tried to say that criminal use of a lawful product should also resolve in the manufacturer being liable. And what we’re really talking about here is just a fundamental disagreement in our society about how much risk and how much utility firearms present. And that is a fair disagreement. If I were in the position of Mr. Fineman, I probably would be making the arguments that he is making about risking utility because the risk of firearms have fallen particularly heavy on him, has fallen particularly heavy on the survivors of the family and victims in Newtown. And there are, on the other side of the ledger, though, other people who have defended themselves with firearms, who got a longer history of distrust of local and state government, and it’s a complicated issue. It’s sort of discouraging for me to hear folks angry at one another over this issue. We’ve got fair disagreement on the risk and utility of firearms. What the Prevention of Lawful Commerce in Arms Act does, though, is to say that manufacturers are not going to be responsible for criminal uses of firearms if they have followed the law in terms of manufacturing and distribution.
Bob Ambrogi: We are pretty much near the end of our time; I do want to give each of you an opportunity to go around one more time and give me your closing thoughts on this issue. I also invite you at that point to let our listeners know how they can find out more about the work that you’re doing and follow up with you if they care to do that. So let me start, Elliot Fineman, with you. Your final thoughts today?
Elliot Fineman: First of all, to reach us, please just go to our website, www.gunvictimsaction.org. And you can find out all of the things that we’re doing and even join in and participate in a number of things we’re doing. The reality here – there are two realities here that really drive a lot of this situation. one is the position of the other side that any sane gun law is an attack on their freedoms, and is going to lead to confiscation. If you hold that position, as they do, as I’m sure Mr. Heller does, that means you can’t have any gun laws. Because any gun law leads to confiscation, which of course, one of the things that’s so striking is that the other side doesn’t realize that the government doesn’t have to know who has a single gun. They’re opposed to registration and licensing on the basis of if the government knows who has a gun, they’ll take them away. The government doesn’t have to know who has a single gun to take them all away. But the government has never taken all the guns away. The only people who talks about taking guns away, of course, are the pro-gunners, the NRA Gun law, the et cetera. The other point here is that guns do not offer self protection; carrying a gun does not offer you self protection. The element of surprise always defeats the gun carrier. If carrying guns offered protection, carrying them, no police officers would get killed, president Reagan wouldn’t have gotten shot. The reality is that it doesn’t; and we’re doing a study now that will be coming out in the Spring that will definitively show that carrying a gun either concealed in public – other concealed or openly – provides no self defense. So we’re stuck with fantasies. It was interesting that just two weeks ago, there was a group in Texas, The Truth About Guns, that recreated the Charlie Hebdo attack; and they had people armed with guns, being the people in Charlie Hebdo that would be attacked. And then when they were attacked, not one single person survived. Not one, the only one who actually survived was one woman who was attacked in this simulation, and it was because she ran away. Everyone else who tried to defend themselves or tried to intervene, were killed in this simulation. There have been other simulations to show the paucity of this idea that guns provide self defense. They’re offensive weapons, and they certainly can be used and should be used for people to hunt and for marksmanship, but we don’t need people walking around and carrying guns.
Bob Ambrogi: Thanks a lot, Elliot Fineman. Charles Heller, detective, former executive director of the Jews for the Preservation of Firearms Ownership, let’s hear your final thoughts.
Charles Heller: I’m certified by my state to teach people to carry guns because the state of Arizona knows the value of walking around with one. And all the other states currently have methods of making sure the people have the proper training so that they can be safe and effective walking around with guns. And I don’t carry one, I carry two; so much for his theory. I’ve had four dgu’s (defensive gun uses) in my life. Thankfully I never ended up having to pull the trigger. As far as getting in touch with us, you can reach us through our website at JPFO.org, that’s Jews for the Preservation of Firearms Ownership. If you want to reach me, Charles Heller@jpfo.org. And in closing, I’d like to say, you can never ever achieve anything in society by punishing the innocent for the acts of the guilty. And as far as not wanting gun laws, of course there’s moral gun laws. There’s five of them and rarely can anybody ever name the five moral gun laws. One, you’re responsible for every shot you fire. Two, if you’re under 18, your rights comes to your parents. Three, if you criminally misuse a gun the court can sever your rights. Four, if you are declared a danger to yourself, the court can sever your rights. And five, anyone, who for any reason, attempts to take any gun from you, under any but the first four circumstances, should immediately be arrested, heavily fined, imprisoned and banned from government service.
Bob Ambrogi: Thanks a lot, and Nicholas Johnson, you get the last word today.
Professor Nicholas Johnson: Well I’ll just give a pitch to some of the work that I’ve done in the past. The question about supply controls and incremental bans in this sort of political debate between the basically left and right on this issue I wrote about several years ago in an article in the Wake Forest Law Review just testing the question of supply controls. And what I showed there was that given the number of guns that we start with, the issue of supply controls and the liability of supply controls is something that people, regardless of what they think about the utility of firearms, should be quite skeptical about just in terms of its potential consequences. So I’ll pitch that and people can get a citation to it on my website at Fordham Law School’s web page. Another thing that i’ll emphasize is that there’s a serious debate about the deterrent impact of armed citizens. There have been a variety of studies, Richard Wright did a couple of books several years ago dealing with this issue. I’ve got citations to that on my webpage. Also, I would urge people to look just at, unfortunately, the anecdotal evidence – seems to be more powerful than lots of the careful, empirical work. Go to the “Arms Self Defense” channel on YouTube and what you will see are a variety of public reports that defy the common, national reporting suggesting that they’re only cost-associated with firearms. And of course, people had to make up their own minds about the balance, but we’re not doing ourselves a favor by suggesting that the firearms only present risks and only have costs, they also have been self-defense weapons. People have made up their own minds about how to balance that for their own situations.
Bob Ambrogi: Well thanks to all of you for sharing your thoughts and insights on this topic. Our guests today have been Elliot Fineman, president and CEO of the National Gun Victims Action Council. Charles Heller, radio host and the former executive director – now communications director of Jews for the Preservation of Firearms Ownership. And Nicholas Johnson, professor of law at Fordham University School of Law, and author of the texbook, Second Amendment: Cases and Materials published by Aspen Press in 2012. That does it for today’s episode. Hope you’ll join us next time for another episode of Lawyer 2 Lawyer. Remember when you want legal, think Lawyer 2 Lawyer.
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