Returning to the State of Nature, One Newtown at a Time

Enough, finally, is enough. Your right to bear arms does not yield the right to kill at random. Doesn’t last week’s killing spree at the Sandy Hook Elementary School in Newtown give you even a moment’s hesitation? Or are you still going to hide behind the facile quip that guns don’t kill people, people do? Even the tobacco lobby was not that cynical; it just lied about causation, trying to hide the consequences of smoking. You cannot hide the 20 children killed by gunfire.

Twenty little coffins will carry the bodies of the elementary school children killed by a lone gunman, children ages 5, 6 and 7 years old, murdered in cold blood. The children were killed with a .233 M4 carbine, believed to be manufactured by Bushmaster Firearms International, with headquarters in Madison, N.C. The gunman also carried Sig Sauer and Glock handguns, two automatic weapons with magazines capable of holding many rounds. The killer, reported to be 20-year-old Adam Lanza, carried at least two guns reported to be legally registered to his mother, yet another victim of the shooting spree.

Oh, yes, we need those guns in each of our homes and hands, don’t we? That’s our Constitutional right, guaranteed by none other than the founders of this republic, propertied and monied men, some slaveholders. But at least our forebears had the historical justification of needing a militia. They won their independence at gun point from Great Britain, and feared new invasions. State militias were necessary for national security from foreign powers in that bygone era.

No one relies on a militia for national security today. Don’t even suggest that: the notion is a stupid, historic anachronism. Play Tea Party all you like. Wear knickers. Wear powdered wigs. Pretend we live in an 18th century world with weapons far less lethal than those marketed to just about anyone who wants a gun. Proudly carry your gun in public, flash your metal and laugh when law enforcement confronts you, as the president of the New Haven County Bar Association did at a theater one night not long ago, when police tried to find out whether he had a license to carry the gun in public.

And don’t pretend we individuals need the right to bear arms to keep government on its toes. Since 9/11, we’ve happily traded the illusion of security for our liberties. The Bill of Rights, once a bastion in defense of liberty, is happily eviscerated by our courts. A warrant to search your home? A creative cop will find an exception. Firepower is rarely used against the government in defense of liberty. We just don’t do it. We no longer believe in what John Locke called the “appeal to heaven,” the right to rebel and revolt against government. We engage in all manner of trash-talking rhetoric on cable television, but accomplish nothing. No one bears arms to resist tyranny.

Our politics have become a sick, and ineffective, joke.

No, we celebrate our individual right to keep and bear arms as a way of protecting ourselves from one another.

The bodies were still being counted in Newtown, when one pro-gun rights spokesman took to the airwaves to say we need more, not fewer, guns. What next? Arming kindergartners?

Should we just blame all the killing on the insane? Every mass killing is followed by reports about the eccentricity, oddness and outright madness of the shooter. But the mass killings are merely the most public face of gun violence. Guns have become the equivalent of a domestic appliance. Kids kill kids over a trifle.

We celebrate the right of all to go their own way, turning our back on the eccentric and the ill because, after all, we each have the right to be let alone. This is less robust individualism than a form of social irresponsibility. Not my brother’s keeper? How quickly we must arm ourselves against the consequences.

Perhaps it’s time to drop the pretense and call the United States the most sophisticated of failed states. We cannot pass budgets that fairly distribute the cost of the services we demand. The gap between rich and poor grows. We imprison more people per capita than any other nation on Earth. Society frays, but, oh, how we love our guns. Possessing them is our individual right.

Political ideas are not eternal. They change, meeting the needs of the people who use them. Centuries ago, we developed powerful ideas about individual liberty. In the seventeenth century, such political philosophers of Thomas Hobbes and John Locke, wrote about the state of nature, a place without states and the rule of law. As Hobbes famously put it, life in the state of nature was “solitary, poor, nasty, brutish and short.”

Individuals left the state of nature, sacrificing natural liberty for the security civil society and the state provided. But individuals retained so-called natural rights, rights no group could take or impair, whether society or state. Our political heritage in the United States is rooted in this powerful individualism. Ideologues rail against any sacrifice of individual rights, calling it socialism, even communism. The right to bear arms is regarded by many as part and parcel of the rights retained by the people, a right so sacrosanct it has been written into the Constitution.

But the Constitution is not a suicide pact. The right to bear arms is transforming our society into a regulated state of nature, the very sort of chaos life together was supposed to protect against. Could it be that individualism has run its course? Have we pressed our ideas to an extreme breaking point? Can we live together in a community when each is so afraid of the other that we will fight to the death to destroy one another at will?

It’s time to restrike the social compact. You may want a right to bear arms. But I am less fearful of the state than I am of an unhinged or angry man shooting at random just because he can. At a minimum, it’s time to treat gun manufacturers like tobacco producers. Guns make it too easy for people to kill people. It’s time not for communism, but for communalism — there are limits on what individuals living in a group should be able to do.

Reprinted courtesy of the Journal Register company.



Double Standards at the Courthouse Door

There’s a new security regime in the Connecticut federal courts, so let me gripe about it a bit: You see, lawyers are now required not just to pass through metal detectors, place their briefcases on conveyor belts scanning for bombs and some such, remove their computers from briefcases, and empty their pockets. All that was standard fare. Now lawyers are required to take off their belts as well.

“What’s up with the new security requirements?” I asked a court security officer as I pulled the belt from pants.

“New orders from up top.”

I grumbled.

“Turns out someone complained that the lawyers we’re being searched the same as everyone else.”

A vision of the complainant formed in my mind’s eye: No doubt someone summoned to court for jury service, or as a witness. They’re not used to standing in line to enter a building. They empty their pockets. Perhaps they place a bag on the conveyor belt. Their cell phone is confiscated. They pass through the metal detector, and it beeps. A security officer requires them to go through the metal detector all over again. Now they’re told to remove their belt.

The visitor is fuming at the injustice of it all. He sees another person go through without as much fuss. When he complains about the double standard, he is told the other person is a lawyer.

Damn, lawyers, the man fumes. Why do they get special privileges? The man writes a letter to complain to the chief clerk about double standards. So the clerk acts. No more privileges for lawyers. Treat everyone the same.

Except the rule is not applied in an even-handed manner. Cops are still waved through security with a wink and a nod. Why? They are law enforcement, and, I suppose, therefore regarded as trustworthy. It turns out prosecutors are also given dispensation. The day I learned of the new security regime, I asked a federal prosecutor whether he’d been put through his paces. “No,” he blushed.

Here’s a newsflash to the pencil-pushing bureaucrat who decided to crack down on defense lawyers, but to leave prosecutors and cops alone: Criminal defense lawyers are law enforcement officers, too. In fact, assuring that the law is obeyed in some of life’s most difficult situations is a criminal defense lawyer’s job: We hold the Government to its requirement to obey the law. So why are criminal defense lawyers treated differently than prosecutors and cops at courthouse security checkpoints?

There is really no good reason at all.

I’ve long since gotten used to security checks at courthouses. Frankly, I don’t mind them at all. The sorts of passions that bring people to court can be deadly. I am glad the court has folks watching the doors, and, therefore, my back. Going through these security checks everyday has made be a compliant flyer, too. Going to court is sort of like going to the airport, with this difference: You don’t yet have to remove your shoes to enter a courthouse. Not yet, anyhow.

I do mind living with the consequences of stupid decisions by pettifogging bureaucrats. Whoever cooked up the new security requirements has the twisted genius of a circus public relations man: Anything to please the folks purchasing the peanuts being tossed into the ring. Anything -- no matter how stupid. 

So here’s a memo to the geniuses running the federal courts: How about one standard for all the professionals entering the courts? There are crooked cops and crazy prosecutors out there, too, you know. And a criminal defense lawyer representing the accused is not guilty by association. 

Put this memo right there in the same file as the note from the cranky citizen complaining about double standards. And do something about it. Or would you rather just cozy up to cops and prosecutors and treat criminal defense lawyers like criminals?  And you private lawyers out there: Give a copy of the column to the folks at the door every time you enter the building -- but take your belt off first.

Reprinted courtesy of the Connecticut Law Tribune.



About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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