Sir James George Frazier, author of “The Golden Bough,” an
examination of pre-literate, pre-Christian social mores among primitives, tells
the story of a ritualistic punishment involving a murder. The foul deed was
done with a knife. The village elders gather together in a hut and call
witnesses to give testimony. First the presumed murderer is closely
interrogated, then the family of the victim. Last of all, the knife is called
to testify. Closely examined, it is pronounced guilty and suitably punished by
the elders, who execute the weapon by throwing it in the river. Scapegoats are
sometimes used for the same purpose; they are guilt receptacles that receive
blood-guilt and are afterwards destroyed.
The solution to murders involving guns proposed by
Connecticut U.S. Senators Dick Blumenthal and Chris Murphy appears to be, on
the face of it, pre-Constitutional – indeed, pre-legal -- and primitive. When innocent
school children and some staff members of Sandy Hook Elementary School in
Newtown are murdered by a 21 year old recluse who has a passion for violent
internet games – and then the murderer commits suicide, precluding the usual
trial process -- justice requires the production of a scapegoat, say the
National Rifle Association (NRA),
upon which guilt may be heaped, usually for political purposes.
The senators gather
together in their political huts, make inquiries, identify and question
victims, after which the assault weapon is brought forward. The murder weapon,
say an AR15, is suitably charged, pronounced guilty and disposed of. The
village elders are praised, retire to applause, go home and sleep the sleep of
the just, hoping that no one else in the village may be murdered with assault
weapons they have not yet pronounced guilty.
In the modern
parable, the family members of victims, their lawyers, their supporters in
Congress and in the media, have accused not only the weapon used to wrest from
them their innocent sons and daughters, but the maker of the weapon as well;
not even the pre-literate, primitive villagers in Frazier’s account were so
bold as to hold accountable the maker of the knife they pronounced guilty of
murder. But then, there were no 21st century lawyers among them, and
no modern politicians hanging their elections on sympathy hooks.
Modern law is coldly
just, not persuaded, usually, by convincing displays of emotion. When a murder
occurs, blind justice insists, usually, that the murderer be held responsible
for his actions, and not the implement he uses to commit his crime – still less
the maker of the instrument of destruction. There is no rule on earth to which
there is not at least one exception, Cardinal John Henry Newman tells us. And
so in this case, there are exceptions.
A thief steals a
car. In it is a small baby. In his haste to get away, the thief runs the car
into a tree and the baby dies. Thieves are notoriously poor, but can monitory
retribution legally be sought from the far wealthier car maker in this case?
The answer, generally, is no – unless the accident had been caused by a defect
for which the car maker may be held responsible.
In the Sandy Hook
slaughter, the gun used by the shooter, an AR15, was lawfully purchased by the
killer’s mother, murdered by her son with a different weapon, a .22 rifle. The
use of the AR15 in the commission of the crime obviously had not been
authorized by the purchaser; apart from psychological defects, this may be the
reason the murderer committed matricide. It is obvious also that the weapon was not
defective. The question arises: Is the connection between the manufacturer of
the AR15 and the shooter so attenuated in this case that a suit should be
denied? Superior Court Judge Barbara Bellis already has answered that question
affirmatively; her ruling has been
appealed to the Connecticut Supreme Court, which has agreed to hear the case.
This columnist will
not try the case here or venture to guess how the court will decide the issues
before it.
The purpose of this
column is to suggest gently that one of the justices sitting on this case should
have recused himself; Associate Justice
Andrew McDonald has, as past co-chair of the General Assembly’s Judiciary Committee,
fervently asserted a firm position on gun control. The case before him, heard
by the Supreme Court on November 14, indisputably involved gun control by suit.
Permitted to sue gun manufacturers because third parties misuse their product,
anti-gun proponents – in Connecticut, they are legion -- will be able to drive
manufacturers out of business through costly litigation, which is why there is a
federal law preventing such suits.
Courts, strict
constructionists sometimes point out, should not become mini-legislatures in
their judgements; modest appellate courts will fervently observe the doctrine
of the division of powers the Constitution assigns to the three branches of
government. But the converse is also true. Legislators appointed to Appellate
and Supreme Courts should not be permitted to import their legislative
preferences into judgements they may make, and in McDonald’s case the
importation would seem to be irresistible.
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