Hard Cases Still Make Bad Law

It has oft been said, by armchair philosophers and professional politicians alike, that “hard cases make bad law”… meaning that one is better off depending on the other old saw, “it’s the exception that proves the rule.” There are few examples that prove this so clearly as the aftermath of an American massacre.

We haven’t had many. For a nation of 300 million free people of every background, age and circumstance, we have relatively few problems. Compared with other civilizations in history, even other good ones, it should be awe-inspiring, how many Americans live safe and happy lives, all over our land.

But perhaps because of that – because of how safe and wonderful most of our lives are in these United States – we are shocked, more shocked than we should be, when a crisis event happens, like the nightmarish mass murder at an Aurora, Colorado movie theater in July of 2012.

This should not be an important distinction, but it is more than just semantics. Since ancient times, tragedy has been a tale of sad ends caused by a mistake, by the wrong choice, often well-intentioned, but doomed by “the Fates”, by “The gods”, by “bad luck.” Whatever you call the cause, in tragedy, it’s out of human hands.

A tragedy is a dramatist’s way of explaining the sadness of the world, of telling the theater-going public “it’s not your fault; the world just isn’t a fair place, and sometimes bad things happen to good people.” Tragedy is a dramatic tool to soften or shift the blame away from human beings, to explain heart-wrenching endings as unavoidable misfortunes.

A mass murder, rather, is a conscious and evil act, intentionally committed by a cold-blooded killer. The villain of Aurora is no otherworldly and mythical Fate, controlling events on earth by steering humans like puppets from afar. He is a first-degree murderer, right here amongst us, a man who methodically planned a massacre for weeks, then calmly and deliberately carried it out.

We could leave such a matter of semantics aside – we might very much like to do so – but we cannot. The popular culture of today doesn’t want to blame human beings for anything; it wants to blame inanimate objects – circumstances – processes. So in the aftermath of the massacre, the press reported on which guns were used and how many… on whether there should be better security at our cinemas… on whether the killer had a bad childhood, or the university was too rough on him, or the movie was too violent. If society made him snap, the popular culture asks, then how can we change society so that it won’t make people snap as often?

The popular culture is wrong. When killers kill, we must blame the killers. Don’t deflect, don’t distribute the blame over a hundred societal factors. The operative emotion should be precisely-directed anger at the monster who committed the crime, not sadness at some elusive societal stew of psychological causes.

There is evil in the world; it doesn’t need an outside catalyst to act. Hunting for that elusive catalyst can do far more damage than good.

Americans own guns for a multitude of reasons. Target practice is a great hobby and sport; hunting is both a service to the environment and a boon to a family’s economy. Firearms in the home thwart burglars and rapists; firearms in public deter crime and catch criminals. Having suffered through the challenges of training green recruits in the War of Independence, our Founding Fathers wanted civilians to be comfortable around firearms in peacetime, in advance of any war. And they had learned from history that the rights of an unarmed populace are more easily violated than the rights of an armed citizenry.

All these are good reasons for the Second Amendment, which guarantees the right of law-abiding citizens to own weapons. In this nation of 300 million people and 3.8 million square miles, almost everyone is at least several minutes away from the nearest of our half-million police officers. The best intentions in the world can’t get a squad car two or three miles when the crime is already over, and the criminal gone, by the end of the 911 call. It is the knowledge that most homes just might have a firearm or two that keeps many neighborhoods safe.

And yet, the modern American left has been trying to remove guns from the American people for a century. Despite both the moral right of a free people to be armed, and the statistical proof that such arming is in every way a societal good (cf. “More Guns, Less Crime” by John R. Lott, Jr.), the statists of American politics hungrily leap on the headlines of every vicious killing, to cast the blame on firearms instead of on the villain who pulls the trigger.

Well-publicized gun ownership reduces crime in a neighborhood; Concealed Carry laws reduce crime in public. But the left has successfully banned the law-abiding from being armed in colleges, in malls, in theaters, in stadiums – the very places where a well-armed public would be most useful. So when a criminal shows up armed to the teeth, and begins shooting innocents at random, there is no one among the hundreds of victims who can compete with the killer on a level playing field.

Over the past half century, the real accomplishment of the left has been to ensure that the tiny number of psychopathic killers, when they decide to commit their horrific crimes, are sure to hold all the cards. In that Aurora cinema on Thursday night, there were hundreds of people in the theater, but only three guns. And all three guns were in the hands of the killer. Why?

How many lives might have been saved if just ten percent of the law-abiding audience members – or even just five percent – had been armed themselves, and could have put an end to the killing spree after the first few shots rang out?

There are villains in the world… evil individuals who injure, rape, and even kill people when they have the chance. It is terrible, but it is true; some people will do evil when they can.

We have a criminal justice system designed to catch, prosecute, convict, and lock up such villains, hopefully after their first or second offense. A century ago, the American system usually succeeded in this effort. Those who might have killed many more were locked up to deny them the opportunity.

While that system could never have stopped the criminals before their first crime, it stopped them from repetition. Many of the killers we know today from similar headlines were in fact caught and released in tepid response to past transgressions, months or years before the events that made them infamous. Such information is rarely available in the news coverage of the attacks, but only shows up in follow-up reports a week or two later. Only afterward do we discover that the person had been released after an attempted homicide, or after violent assaults, or after having been named in restraining orders and similar complaints. On the day of the events, the press doesn’t have it to share; by the time they do, the news cycle has moved on.

But we must learn from these events that past crimes usually are predictors of future behavior, and that convictions for violent crimes should be matched with sentences, not commensurate with the result of that crime itself, but commensurate with the danger to society the person has been thus proven to be.

The goal of utterly preventing criminals from developing in a population is a fool’s errand. As long as there are laws, there will be lawbreakers. The goal of a criminal justice system must be to catch them when they act, and then remove them from society thereafter. And the goal of society should be to enable the law-abiding citizenry to dissuade such crimes through their own numbers and power.

A moral society will still be infected by the odd villain; a moral society does not claim virtue in leaving itself defenseless in that villain’s clutches.

The modern American left points to the occasional mass killing and sees it not as an aberration, but as the natural conclusion of Second Amendment rights. The left dismisses the thousands of crimes thwarted by weapons in the hands of the law-abiding, and counts only the mass murders of people who, without guns, might instead have killed as many or even more at the same venue with homemade bombs or arson.

The left witnesses murder in a free country, and assumes that freedom should bear the blame, not the murderer. The left sees only what it chooses to see, not the preponderance of evidence on the other side of the argument.

But consider this: In America, such psychopaths do not fit in. In many other societies throughout history, such evil was rewarded by the government. Soviet communists had their Cheka, then NKVD, then KGB. The Nazis had their Gestapo. The East Germany Communists had the Stasi; Pol Pot had his Khmer Rouge.

Statist governments seek out the criminally insane, the child tormenting an animal or the thug bullying a child, and recruit them to join or lead their enforcement brigades. Statists maintain discipline among the citizenry by bloody displays of violence committed by those in power. Americans instead champion freedom; we incarcerate the kind of villains whom a statist regime would promote to titles of Captain or Major, or even elect as their Duce or Fuhrer.

The left points to the dozens of deaths at the hands of mass murderers as an indictment of America, but they forget that the Khmer Rouge alone murdered between one and three million of their own people… that the Nazis murdered between five and six million… that the Soviets murdered some seventy million in the seventy years of their horrific reign.

This is not, in any way, meant to diminish the wickedness of the murderer in Aurora, Colorado, who took at least a dozen lives and injured dozens more, on a single bloody night.

But it is meant to provide some context, in the face of an American left whose efforts to eliminate such crimes might well create the circumstances of the far worse crimes that infested so many governments in the Twentieth Century.

When the proposed solution is an empowered state and a disarmed populace… when the proposed solution is a world of commissars and bureaucrats… the result is at least as likely to progress into the far worse world of boxcars and gas chambers, of gulags and Siberias.

We should all pray for the families who lost their loved ones on that awful night, but pray also that our politicians are not swayed by emotional appeals and irrational fears. On this earth, man is imperfect, and there will always be a criminal element. We must learn the right lessons from such horrible events – for example, that it is a crime to leave the law-abiding utterly defenseless. We must not fall victim to the effort to use a statistically small chance of awful but localized evil to scare us out of living in a free society.

And we should be relieved – as dreadful as these nightmares are – that here in America, mass murderers are prosecuted by the government, not hired and issued a uniform and a badge… as has occurred in nations from Cuba to Cambodia, from Russia to Iraq to Zimbabwe… whenever and wherever the public has unwisely allowed the statist parties to take control, only to regret it when it was too late.

John F. Di Leo is a Customs broker and international trade compliance lecturer. His columns appear regularly in Illinois Review.

Permission is hereby granted to forward freely, provided it is uncut and the IR URL and byline are included. Follow me on LinkedIn and Facebook.

And the left gets away with this because the right does not make the argument one about the death penalty, which should be swift and sure in such cases. There is absolutely no excuse that a convicted murderer should have his sentence delayed by more than a year or two. 10 or 20 years is unconscionable.

Congress determines the authority and jurisdiction of all federal courts. Therefore, after an event like this, conservatives should demand that congress reform the federal bench so that with a conviction there are far fewer delays over niggling details.

Right now federal judges argue over whether one drug, two drugs or more are the only proper way to administer lethal injection. They should not be doing this, as it is not their decision to make. But they involve their own personal opinion, not the law, to make it so.

For a federal judge to come out in opposition to the death penalty should mean that he is automatically recused from such cases, as he has effectively stated his prejudice.

If a state wants to use any accepted means to execute, be it by hanging, electrocution, gas chamber, firing squad, or lethal injection, that should be their prerogative.

It should not matter one whit that more black murderers are executed per capita than white murderers. And it should not matter that the condemned is opposed to, or in favor of his own execution.

But if conservatives do not advance these arguments, instead the issue becomes that of gun control, by default.

the Soviets murdered some seventy million in the seventy years of their horrific reign.

Nobody is less a fan of the commies than I am.

However, I've seen this number tossed around and it seems somewhat high to me. The population of Russia when they took over was around 165M, and this number of murders doesn't seem to line up well with a population of almost 300M when the USSR fell.

I wouldn't be terribly surprised if you could get to 70M, but only if you include all the roughly 30M killed in WWII. Some of this number is legitimately ascribed to the regime as murder, but not most of them.

This equates to a population in USA in 1920 of 125M and in 1990 of 259M. This is, of course with the USA having essentially no government murders and under 500k killed in war. Not to mention lots of immigration into USA and none into USSR.

True. However, the Nazis had only 12 years total and almost all of their killing took place in a period of three or four years. The Soviets had about 10x that to work with, since their kill rate tailed off dramatically towards the end.

The all-time champions for percentage of population killed in the shortest time remain the Khmer Rouge.

Fascinating website with lots of stats on “democide,” or murder by government.

http://www.hawaii.edu/powerkills/PERSONAL.HTM

I don’t agree with all of his claims, but it’s still very interesting.

John,

Outstanding....some of the best prose and original advancements of the common truths I have seen in decades.

My favorite part....

The left witnesses murder in a free country, and assumes that freedom should bear the blame, not the murderer.....

........In America, such psychopaths do not fit in. In many other societies throughout history, such evil was rewarded by the government........recruit them to join or lead their enforcement brigades. Statists maintain discipline among the citizenry by bloody displays of violence committed by those in power. Americans instead champion freedom; we incarcerate the kind of villains whom a statist regime would promote to titles of Captain or Major, or even elect as their Duce or Fuhrer.

You might break this into several briefer articles and the Congress Critters. I will certainly do so with my own.

Keep this up. Great work.

Far from it. Federal judges still permit states to determine the overall means of execution.

35 states + U.S. Military and U.S. Gov’t use lethal injection; though lethal injection is their primary means, 9 states also permit electrocution, 4 states the gas chamber, 2 states, hanging; with only 1 state now offering the firing squad, but only under special circumstances.

The devil, however, is in the details.

Federal judges hear all sorts of arguments that they use to preclude execution, such as mental incapacity, former parental abuse, racial statistics, and speculative unfairness by juries, prosecutors or judges. Many of the arguments are *subjective*, which gives federal judges ample opportunity to overturn based solely on their personal opposition to the death penalty.

The worst part is that appeals are usually not limited or consolidated, so defense attorneys will use an appeal over a single issue to get a two year delay, then when it is rejected, bring up another single issue for another two years or so.

They are so successful with such delays that in many states, the primary cause of death of death row inmates is either disease or natural causes.

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