Editor's note: This op-ed is by Edward Jaffe, a serial entrepreneur and the founder of a number of technology companies and a Vermont Registered Investment Advisor entity. He has addressed the Vermont House Ways and Means Committee on economic metrics, monetary theory and various economic observations. He lives in Bennington.
... before it becomes like the “War on Drugs."
America's brutality is not its gun violence -- it is its incarceration madness. The incarceration rate in the United States of America is the highest in the world. The typical mandatory sentence for a first-time drug offense in federal court is five or 10 years, compared to other developed countries around the world where a first-time offense would warrant at most six months in jail. (Wikipedia).
In a civilized society, a felony conviction and a harsh sentence would require criminal intent. In criminal law the concept of criminal intent has been called mens rea, which refers to a criminal or wrongful purpose. If a person innocently causes harm, then she or he lacks mens rea and, under this concept, should not be criminally prosecuted. (Legal Dictionary).
When laws revolve around simple possession of Item X then the simple existence of Item X in your home or car is complete proof of guilt – and there is no effective defense that revolves around Item X not belonging to you – or Item X being legal for 200 years, or your lack of criminal intent, or the vagueness of the arcane law you violated.
Additionally, mandatory minimums destroy the ability of innocent people to request a trial by jury – because losing could mean 10 times the mandatory minimum – and you can't count on “telling your story” to the jury – because it is not relevant to the issue of possession. The judge (co-prosecutor) will tell the jury, “If the defendant has Item X in his home – you must find him guilty.” The jury does not understand that they can send you home for any reason they wish – unless they are members of the Fully Informed Jury Association. (fija.org).
The evolving War on Guns is being built on the War on Drugs chassis, running gear and steering components. Offenses are primarily felonies carrying mandatory minimum jail sentences – and simple possession being the basic context-dropping framework for being charged and convicted.
How can anyone negotiate or compromise about “reasonable” gun laws with people who want to apply firearms legislation to BB guns?
Like the War on Drugs, new gun laws are not aimed at criminals; they are brutal attempts to change the longstanding behaviors of currently law-abiding or otherwise law-abiding citizens. Soon people will be in deep trouble with the law, because they did not register a perfectly ordinary rifle that had a threaded barrel or a thumb-hole stock. New York insisted on seven-round magazines for pistols – even though there is no such thing – and then decided to make anyone who puts 10 rounds in a 10 round (legal) magazine a criminal.
A new law being drafted in Rhode Island has a definition of “firearms” that includes air rifles and BB guns! Toy guns! How can anyone negotiate or compromise about “reasonable” gun laws with people who want to apply firearms legislation to BB guns? Not surprisingly, some of the weapons violations in Rhode Island S.0859 have 10-year minimum sentences – without any violent crime taking place – nor even possessing a complete gun.
“Assault rifle” is a political invention – you can tell by the tortured language. Once defined by many simultaneous features, we are down to perhaps only one or two. One could register all their “assault rifles” (and toy guns) – and now they are on a list. What do authorities think of the people on this list? If the police or FBI can consider peace activists and Quakers as worth watching as possible “terrorists,” what about the guy who registers 10 “assault rifles”? Guess you'll find out at the airport.
Let's make an analogy to a very successful public health initiative: auto safety. Tens of thousands of people were being killed every year in car accidents. The government implemented regulation – not criminal law – and changed what features automobiles had, such as seat belts, safety glass, etc.
Oddly, older cars that did not meet these regulations were not confiscated, registered or forcibly retrofitted. All told, not one person spent one day in jail making the automobile safer. If in fact some sort of firearm should be banned – why not just stop manufacture and importation? Why try to grab all the ones that are already released into the atmosphere?
The most uncomfortable question of all is why would your publicly elected reps produce such draconian legislation? Why would a representative from a small New England state want to see a state resident serve years in prison for not understanding a complex, vague, bizarre law? Where does that viciousness come from? I guess the culture wars have gone kinetic.
People can argue over the Second Amendment of the U.S. Constitution, but here in Vermont, we are heirs to the first constitution in the new world (1777) to outlaw slavery (New York 50 years later) and we still have the following (current Vermont Constitution):
Article 16 -- That the people have a right to bear arms for the defense of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.