Shoot!

Antiq Hennis was shot to death last month in Brooklyn. He didn’t do anything wrong. He was not a gang member or a drug dealer. He wasn’t involved in a drunken argument over which New York football team is worse. He was not the victim of mistaken identity or a tragic hunting accident. He was sitting outside his apartment complex on a warm September afternoon watching a neighbor’s dog. And, the bullet hit him in the face. He died instantly.
He was 16 months old.
My first thought, after seeing the story buried 20 minutes into the nightly news, was to grab the remote and rewind the DVR. I couldn’t believe my eyes. “I know that prosecutor!” I told my wife, excitedly. I then launched into a memory from my days as an Assistant District Attorney. She quickly fell asleep. Neither of us offered Antiq a second thought.
We are now a society where one dead child is insufficient to muster more than a disinterested shrug. Hell, 20 dead kindergartners only boils our blood for a few weeks. Then, we move on the much more important matters. Like the latest iPhone. We can expect approximately one mass killing per year. Then, we can check them off like a shopping list. Virginia Tech. Sandy Hook, Killeen, Aurora, Columbine, Foot Hood, Red Lake, and on and on. It is much easier to remember the venue than the victims. And, when the dust settles, what do we do to avoid the next chapter? Exactly nothing.
Why? Because 10,000 gun murders each year is merely collateral damage to our freedom and liberty. We have an inalienable constitutional right to bear arms. But, here is the unspoken truth: we are literally the stupidest society in history. Is there another culture that would defend its miserable failure to protect our children from violence because of an imaginary right to carry weapons? 20 children died in Sandy Hook. 80% of Americans supported a complete overhaul of gun laws. Nothing was done. Nothing changed.
So, let me set the record straight. We have the right to free speech and assembly. The Bill of Rights offered no limitation on those fundamental manifestations of freedom. But, even those unambiguous rights were circumscribed by the Courts to ensure the safety of its citizens. You know why you cannot yell “fire” in a movie theater? Because someone might get hurt. If any idiot dared demand the right to yell “fire” in a movie theater, you would lock him up, because this is someone who presents a clear and present danger to the rest of us. In our upside down conscious, a man in a crowded dark movie theater is more dangerous with his words (unconstitutional) then the guy carrying an assault rifle into that same theater (constitutional).
And, yet, our founding fathers did not offer the same blanket endorsement of guns. Unlike any other fundamental right, the right to bear arms has a restriction that seems to have been omitted from the NRA charter. Here is what the Bill of Rights says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” No right to assault weapons. No right to hunt. Nothing about defending your home or women. The right to bear arms is specifically limited to the formation of a militia necessary to the security of the State. That’s it. Ironically, if you tried to form an armed militia, you would be promptly arrested and prosecuted – - and, yet, that is the limit of the constitutional right to bear arms. It is the one thing the constitution permits, and it is probably the only thing our current law prohibits.
Does anyone really think that Thomas Jefferson intended to guarantee every American (white, male), the inalienable right to carry an AK-47, but not the right to food, water, or medicine? You do not have any constitutional right to eat or receive medical attention. You have no right to work or have children. But, you definitely have the right to walk around with a rifle in your jacket.
Therein lies the fundamental mistake (or fraud) perpetrated by the gun lobby. The right to bear arms is not a personal right. It was a communal measure designed to protect society as a whole.
200 years ago, guns were single shot muskets and blacks were considered 3/5ths of their white neighbors. Subsequent leaders and judges recognized that the ancient wisdom relating to blacks was misguided, unfair, and dangerous. And, they changed it for the betterment of our society. We did that even though blacks had not actually changed at all. It was our perspective and wisdom that expanded. Any argument that the constitution is unassailable – - even in the face of 200 years of improvements in weapons, and the mass murder they cause – is not being intellectually honest.
Don’t tell me guns save lives. That’s another lie. The United States, with our right to bear arms, suffers 2.97 gun murders per population of 100,000. Japan, where guns are illegal, sees .01 gun death per 100,000 citizens. France, .06. England, .07. We have 42 times more gun deaths than England – - where guns are illegal. We have has many gun death per capita as the Gaza Strip – - where everyone has a gun. Take a look at the statistics: Countries with the least gun control suffer the highest rates of gun violence.
But, the NRA will assure us that the only defense to a bad man with a gun is a good man with a gun. You know who they are talking about? George Zimmerman. They will never admit it, but a guy patrolling the neighborhood armed with a firearm, seeking out ne’er do wells, is a “good guy with a gun.” Yet, since killing an unarmed black teenager, George Zimmerman has been arrested three times for threatening someone with his gun. When he finally kills an innocent man, no one will be particularly surprised. Because he is a good guy with a gun. And, anyone with a gun is bound to shoot it. And, when a gun gets shot, someone might get killed. This is not what our racist, elitist founding fathers wanted to protect, along with life and liberty. It has no basis in the bible or the Hammurabi code. No person in history was granted the unfettered right to carry a weapon with no purpose other than to injure other living things.
We are victims of a fraud. People like to carry guns. People like to shoot guns. They will rely upon any justification they can find. But it is a canard. It has no basis in the constitution. It is a right that serves no one but the nuts with small guns who feel that carrying a weapon somehow makes them a man. This will never change. It is too controversial, too misunderstood to justify a change. Meanwhile, thousands of children will be killed in the cross fire. It is a huge price to pay and should be rejected by all civilized persons who understand that we are defending the very existence of our society.
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About aweisbrot

Ari is a partner in the Litigation Department of an historic and renowned law firm located in New York. He has been featured on CBS Radio’s Wall Street Journal Report, quoted in legal and non-legal periodicals, and has been recognized as a “SuperLawyer” in New Jersey and a "Top Ten Lawyer to Watch" in New York. Mr. Weisbrot is a true “client’s lawyer,” representing a diverse range of clients from among the largest retailers in the United States to smaller local businesses to religious and charitable organizations. Ari was appointed by Supreme Court of the State of New Jersey to a three-year term of service on the Committee on Character. The Committee determines the fitness to practice law of each candidate for admission to the Bar of the State. Mr. Weisbrot also continues to serve on the District Ethics Committee (IIB - Bergen County), which operates under the auspices of the New Jersey State Office of Attorney Ethics. Mr. Weisbrot has been awarded an 'AV' rating for his professionalism and the quality of his legal work from Martindale-Hubbell, the premier directory of legal professionals, and has been selected by his peers as a Super Lawyer. In addition, Mr. Weisbrot has written several articles on commercial litigation, which have been published in the New Jersey Law Journal and the Metropolitan Corporate Counsel. A Former New York City prosecutor, Mr. Weisbrot is a graduate of Fordham University School of Law, where he was a member of the Urban Law Journal and a featured columnist in the Law School newspaper
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8 Responses to Shoot!

  1. Jeff Rosner says:

    Well written however your essay is entirely emotional and wrong on so many issues. 1st issue: if the 2nd Amendment to the Constitution was only for single shot muskets, then the 1st amendment is only for printed newspapers, handbills and public assembly and does not extend to TV, Radio, Internet. 2nd Issue: The individual right has been affirmed by US Supreme Court 3rd Issue: You are emotionally blaming the gun not the bad people. 4th The Torah gives us the right to self defense. (see Mishpatim and Gemare) How can you defend yourself without modern weapons. 5th Full auto (AK-47) have been illegal since 1934.

    • aweisbrot says:

      These are good points. If not entirely accurate. First, the freedom of press and speech are unconditional in the bill of rights. The rigfht to bear arms is specificially circumscribed to the foudnation of a milita. Second, the supreme court is not always right. when they are filled with gun-supporters, they will find a personal right. Third, I am blaming bad people. But, less guns mean less accidental murders.

  2. Yet, the murder of Antiq Hennis occurred in New York City, which has the the strictest gun laws in the nation. And D.C. v. Heller addresses the Second Amendment: “Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.”

  3. Jeff Rosner says:

    The first 10 Amendments are known as Civil Rights for all the people. However under your definition and the ACLU’s the 2nd Amendment is excluded. Yet the Supreme Court upholds the word Militia as “all the people” in case law. This is the original intent of the Founding Fathers and authors of the Constitution. The word absolute is not in the 1st Amendment nor has case law upheld absolute. Your essay is nothing but an emotional rant without fact. I take my leave asking you to study the Second Amendment and also what the Torah and Gemara have to say about self defense.

  4. Paul Malek says:

    Ari — there is so much disinformation in your piece that its difficult to respond.

    I guess one could start with your utter disregard of Supreme Court precedent in Heller and McDonald and the Court’s interpretation of the Second Amendment. The meaning of the “well regulated militia” prefatory clause was addressed convincingly and at length by Justice Scalia. It is not a limitation on the individual right( and yes, the “the right of the people…” conveys an individual right, not a collective right). Rather, it sets the framework and explains why the right is important. You essentially read the prefatory clause to mean: “a tightly controlled [well regulated] national guard [militia] being necessary to the security of a free state…” The Court correctly understood it to mean (to paraphrase) “a prepared and functioning (the meaning of the word “regulated” at the time) body of free people (the meaning of “militia” at the time), being necessary to the security of a free state (to preserve and defend the liberties set forth in the rest of the bill of rights), the right of individuals to keep and bear arms shall not be infringed..” You are obviously free to disagree with the Court’s (binding) interpretation, but to summarily dismiss it with your statement “the right to keep and bear arms is not a personal right” is intellectually dishonest, particularly from an officer of the court such as yourself.

    As for your regurgitation of Brady Center talking points on “assault weapons”, relative murder rates, George Zimmerman, etc., it would be nice if you conducted a more thoughtful cost/benefit analysis. Are there societal costs to widespread gun ownership? Absolutely. But let’s at least consider those costs honestly and in context. Take the UK, gun control advocates’ favorite example of gun control nirvana. The gun murder rate there is 20x higher than the us, but the overall murder rate is 4x higher. Still not great, but not nearly as dire. Then consider that the UK has significantly higher rates of robbery, assault and burglary than the US (check the UN crime statistics if you don’t believe me). Which society is truly “safer” for the average person? Then consider that the sad reality is that in the US a hugely disproportionate number of gun murders are committed by young African Americans against other young African Americans. Gun violence in the US is to a large extent a localized urban problem that is attributable to myriad social, economic, political and cultural factors. The availability of guns is a small part of that. And yes, we DO need reasonable gun regulations — laws against felons possessing guns, background checks, training requirements for concealed carry. But, as you know, those and many other laws are already in place but unfortunately often not enforced (or plea bargained away). Also consider that gun accidents are exceedingly rare –approximately 140 per year for young people ages 18 and younger, with a portion of those undoubtedly hunting accidents. (again, feel free to check the CDC statistics).

    As for the benefits, forget about the Gary Kleck study asserting 2.5million defensive gun uses a year. As the liberal Dan Baum points out in his book “Gun Guys”, even if you take the DOJ’s National Criminal Victimization Survey number if 80,000, that is still a substantial societal benefit.

    Even given the natural emotional reaction to tragedies involving gun accidents or violence, it is difficult to understand why people like you are unwilling to accept the fact that ordinary people are capable and regularly do defend themselves and their families using firearms (in addition to the numerous other lawful reasons people have for owning firearms). Your gross inflation of societal costs and minimization of the benefits of gun ownership can only be seen as an emotional but not a rational response to what should be an issue on which people of goodwill share common ground.

    • aweisbrot says:

      But you think that being able to carry around a weapon is a fundamental right, like life and liberty?

      • Paul Malek says:

        Yes, I think the right to possess the means to protect oneself and one family and to oppose tyranny if need be is a fundamental right. That doesn’t mean the right to own — and carry — a firearm is limitless. Training and qualification requirements for carry, for example, make perfect sense. Why is this notion strange? The founding fathers memorialized and formalized certain fundamental, individual rights in the Bill of Rights. Free speech, freedom of assembly, freedom of religion, due process, etc. They created a constitutional system of checks and balances that has worked amazingly well. But no system is perfect, and the founding fathers recognized that. They recognized that, ultimately, having all the instruments of power — the right to keep and bear arms — in the hands of the state is a bad idea. That’s something someone inured to living in nanny states like NY and NJ find that difficult to accept.

        I don’t think anyone put it better than Judge Koznski of the 9th circuit in his dissenting opinion in Silveira v Lockyer: “The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”

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