Thanks To The 9Th Circuit, Sunnyvale Continues To Be A Hi-Cap Mag-Free Town.

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This week’s decision by the Ninth Circuit upholding the ban on high-capacity magazines in Sunnyvale, CA, is another post-Heller indication of the way in which most Courts will decide 2nd Amendment cases going forward.  Because on the one hand the notion that Americans have the right to defend themselves with guns now appears to be a cornerstone of jurisprudence about gun ownership.  On the other hand, there is yet to be a decision which questions the ability of governments at the state and local level to regulate both the determination as to the fitness of individuals to own guns, as well as regulating the types of weapons that can be used.

The Sunnyvale case is different from other magazine-capacity laws recently passed in Connecticut and New York, for example, because it not only bans the sale or transfer of magazine with capacities in excess of 10 rounds, but also requires residents who own such magazines to get rid of them altogether, either by removing them beyond the city’s limits, turning them into the police or transferring them to a gunsmith.  In other words, this law, known as Measure C, effectively makes Sunnyvale a hi-capacity magazine-free town.  And similar ordinances appear to be going forward in other California jurisdictions, including Los Angeles.

mags                These laws are anathema to the NRA and the pro-gun community for two reasons.  First, they represent a growing trend to move the issue of gun control away from Washington, DC and focus gun-control activism at the state and local levels.  And while the NRA has no equal at the national lobbying level, gun ownership becomes a vulnerable status in states where a majority of residents don’t own guns.  This was clearly demonstrated in last year’s re-election of Connecticut’s Governor, Dannell Malloy, whose support of a restrictive, post-Sandy Hook gun law may have given his campaign a boost in the polls. The gun law pushed through the state legislature by Andy Cuomo also proved to be a non-issue in his re-election last year.

The other problem facing the pro-gun crowd has to do not with the specific rulings per se, but rather the degree of scrutiny that appears to be applied in just about every gun case that reaches the appellate level.  Increasingly, Circuit courts are basing their review of lower-court decisions using ‘intermediate’ scrutiny, rather than the ‘strict’ scrutiny that the gun-owning community would prefer.  And what is important about this trend is that it is based on the notion, explicitly stated in the Sunnyvale decision, that the law being reviewed reflect “government’s stated objective to be significant, substantial, or important,” which Sunnyvale was able to prove based on its responsibilities to promote public safety.

The problem for the gun folks in this respect is that this approach completely undercuts one of the most cherished notions of current pro-gun arguments, namely, that ownership of a gun is the surest way to make us safe.  This has been the mantra of the gun industry ever since the decline in hunting required a new rationale for buying guns, and it is now believed by a majority of Americans whether they own guns or not. But the good news about the American judicial system is that, by and large, jurists don’t usually base their decisions on public-opinion polls.  And to the extent that one of government’s fundamental responsibilities remains securing law and order, the primacy of individual citizens to protect themselves, pace the 2nd Amendment, cannot be sustained.

The 9th Circuit ventured directly into this issue by noting that the NRA indicated that most defensive shootings required the crime-stopping shooter to bang off only one or two rounds.  I can’t find the link to this report but if it was quoted accurately, it’s a great irony that the NRA finds itself unable to justify the ownership of hi-cap magazines based on its own research into the use of guns for self-defense.  Maybe localities considering banning hi-cap mags should also bring in the NRA to testify on their behalf.

Why Not Stand In Front Of Kroger’s And Have An Argument About Guns?

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When Shannon Watts and her Moms first started campaigning to turn popular retail destinations into gun-free zones, the pro-gun noisemakers went ballistic, accusing her (and the eminence grise behind her) of all sorts of nefarious schemes to leave Ma and Pa Shopper unprotected from  thugs, criminals, ISIS-wannabes and God knows who else might be trying to kill or maim the American family as it fulfills its self-appointed destiny to shop until we drop. And it didn’t take long for some of the pro-gun bloggers to dig up the usual stories about how several shoppers were held up outside of Target stores which was no doubt caused by Target’s decision to ask customers to leave their guns at home.

Now the gun internet is agog at the most recent efforts by Shannon and her ladies to push yet another retailer – Kroger – into taking a no-gun stance. But this time around they are celebrating the fact that, until now, the supermarket chain has refused to give in. To show you how loony the gun debate can sometimes become, Breitbart pitched in with its usual anti-gun screed by announcing that Kroger’s reported third-quarter profit increase was no doubt due to its refusal to buy into the Mom’s demand that shoppers leave their guns at home.

gun free                I happen to believe that the campaign to create gun-free retail zones is the most creative and positive step ever made by the gun-sense crowd.  What it does, for the very first time, is challenge the most sacred and stupid rationale for gun ownership in this country, namely, the idea that guns protect us from crime.  This idea has been assiduously and constantly promoted by the gun industry for the past twenty years, and it is nothing more than whole cloth.  There is not one, single, credible study that proves any connection between crime rates and access to guns. Period.

Now before all my usual critics send out their comments about how I have finally revealed myself to be against the 2nd Amendment in every shape and form, let me make one thing very clear.  Note in the previous paragraph that I did not say that guns don’t protect us from crime.  What I said is that there’s no evidence to support the argument either way.  In case you didn’t know it, that’s what the word ‘any’ really means.

I can’t blame the gun industry for wanting to make Americans believe that guns are a good way to keep us from getting assaulted, robbed or worse.  After all, once Americans began living in suburbs and getting off the farm, the whole nature of gun ownership began to change.  What are you going to do?  Tell Mr. and Mrs. Suburbanite they still need the shotgun wedged behind the front door to go out and shoot the wolf or coyote that’s hungrily eyeing their cows or sheep?  There ain’t no cows or sheep.

The funny thing is that the gun industry has done a pretty good job of convincing gun owners that there’s still a need to own a gun.  Not only do the polls show that a clear majority of the gun-owning population not only believes they need guns for self-defense, but this is a complete reversal from the results of the same polls conducted twenty years ago which showed that a clear majority of gun owners owned guns for hunting and sport.  The fact that there’s nothing behind this attitudinal shift except incessant, pro-gun hot air is beside the point. People believe what they want to believe.

Which is why I am so impressed with the Mom’s strategy to put feet on the ground and make people think and talk about this issue as they enter retail stores.  Because what better place to meet the ‘average’ American than in front of a supermarket, a mall or a discount chain?  And what better way to challenge the assumptions and marketing riffs of the gun industry than with a direct, face-to-face talk?  You never know.  Maybe both sides will learn what the other side really wants.


Will Banning The Ammo Ban The Guns? Rush Thinks So.

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You know that something’s up in the gun business when Rush Limbaugh starts talking about gun control.  And what he was talking about today was the decision by the ATF to create a new standard for exempting certain kinds of so-called ‘armor-piercing’ bullets from the ban that Congress placed on such ammo in 1986.  The law was designed to prevent civilians from buying or carrying ammo whose bullets could penetrate body armor worn by police, but manufacturing exemptions were routinely granted if the ATF determined that the ammo was going to be used for ‘sporting purposes,’ which usually meant that it would be used in rifles, as opposed to handguns whose use usually served no hunting or sporting purposes at all.

The announcement by the ATF was picked up by Rush not because he cares a wit about guns, but because he could then go into a riff about how the ‘regime’ was once again using Executive actions to promote liberal policies which Congress would never pass.  By the time I turned off Rush off turned on my computer, the web was crawling with denunciations of the latest threat to 2nd Amendment rights, with the NRA calling the plan a “disaster” and the blogs following suit.  Because what the ATF is proposing is a ban on the manufacture of the 5.56×45 round, which just happens to be a cartridge designed for the AR-15.  Get rid of the ammo, get rid of the gun, right?

assault                The ATF might have left this whole issue alone were it not for the decision by gun makers to begin manufacturing handguns chambered for 5.56×45.  And this decision was based on the fact that AR-15 rifles, which had been a major part of the upswing in gun sales after the election of the Kenyan in 2008, can be turned into handguns by simply substituting a barrel of shorter length.  And since the determination of what constitutes a ‘sporting’ cartridge is based on whether it is designed primarily for rifle as opposed to handgun use, now that civilians can start walking around with AR-15 handguns, the exemptions for sporting use of the ammunition no longer hold.

What the ATF is now proposing are exemptions for this ammunition based on a much narrower definition of the kinds of guns for which such ammo would be used.  Basically, ammo manufacturers will be able to make and sell this cartridge only if it is loaded in a rimfire round (which is much less dangerous) or used in a single-shot handgun which, by definition, is rarely found in the hands of the bad guys committing all those crimes with guns.  Which doesn’t mean that AR-15 shooters won’t have anything to load into their guns, ipso facto they might as well throw the guns away.  What it does mean, however, is that the gun industry will finally have to fess up to the fact that AR-15 rifles, marketing campaigns notwithstanding, aren’t really sporting guns at all.

The AR-15 sold in the United States can actually take two rounds:  the 5.56×45 NATO cartridge with a 62-grain bullet, and the .223 Remington cartridge, normally loaded with a 55-grain shell. The difference, as you might suspect, is that the 5.56×45 penetrates more deeply, is significantly more lethal, and when loaded into a 5.56×45 chamber, tends to be a bit more accurate than the 223. The 5.56×45 was adopted by the military because of its lethality, and it’s a stretch to think of it as a ‘sporting’ round.

The gun industry is challenging the ATF ruling not because it will mean the end of ‘black’ guns, but because they want to have it both ways.  On the one hand they want to promote AR-15s as the newest style of sporting guns for hunting or just plain fun.  On the other hand, they also want to promote these weapons as the latest and greatest ‘tools’ for personal defense.  Either way, I guarantee you that the net result of Limbaugh’s rant will be a disappearance of all AR-15 ammo within the next couple of days.



What Can Doctors Do To Reduce Gun Violence? Tell Us What Only They Know.

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Next week’s issue of the New England Journal of Medicine will contain an editorial, “Guns, Society and Medicine,” written by the Journal’s former editor, Jerome Kassirer.  This editorial follows hard on the heels of another editorial, “Preventing Firearm Injury and Death” which just appeared in the Annals of Internal Medicine.  The good news about these statements is that they appear to reflect a growing consensus in the medical community that physicians should play a more active role in the debate about guns.  The bad news, it seems to me, is that the manner in which physicians appear to be lining up to engage in the debate may actually diminish the value of what they have to say.

The statement in the Annals, signed off by eight medical professional organizations (AAP, ACEP, ACP, etc.) calls for vigorous support of the following measures: universal background checks, elimination of physician “gag” laws, restrictions on the sale of assault rifles and high-capacity feeding devices, additional research, improved mental health services and avoidance of stigmatization through non-specific reporting laws.  These measures were adopted by the eight medical societies after the American Bar Association confirmed that they did not conflict with 2nd-Amendment rights.

conference program pic                In his NEJM editorial, Jerome Kassirer voices his support for these same measures but notes that gun-safety advocates appear to be losing the battle due primarily to the “reality that gun-control advocates are ’outgunned’  by the NRA.”  It should be noted, inter alia, that in the twelve months following Sandy Hook, dues received by the NRA jumped more than 60% from $108 million in 2012 to $175 million in 2013, an increase due to the ability of the organization to sell the idea that the public outcry over what happened in Newtown would result in all guns being taken away.

I have been listening to gun-safety advocates bemoan the political power and financial muscle of the NRA for more than twenty years while, at the same time, researchers continue to publish articles which rightly demonstrate that the losses from gun ownership outweigh the gains.  There simply is no question that scholars like Hemenway, Cook, Webster and so many others have produced a body of literature about gun risk that cannot be honestly challenged by the other side.  But the other side isn’t interested in participating in a scholarly debate.  The other side is interested in selling guns.  And as long as guns are legal commerce, why shouldn’t it be up to the individual consumer to decide whether gun ownership represents a risk?

The answer to that question, and the role that I believe physicians should play in the gun debate can be found in a substantive piece of research that was also published this week in the Annals.  This work covered the medical histories of everyone discharged in 2006-2007 from an ER in Washington State and found that the patients who were admitted for a gun injury, particularly if they had a previous gun or violence-related arrest, had a significantly higher chance of coming either back to the ER with another injury or winding up in the morgue.  The research plan focused primarily on more than 9,000 patients who were treated for violent injuries, of whom 680 were in the ER because they were injured with guns.

What seems to be missing from the recommendations to reduce gun violence proposed by the medical associations and echoed by Dr. Kassirer is the fact that in the Seattle study, each of those 680 patients represented at least one direct, face-to-face contact with a clinician who had to deal with the medical risk of guns.  Thanks to data mining, we know a lot about the demographic profiles of these patients, but only the physician who treated them was in a position to ask and possibly learn what happened, why it happened, and whether it would happen again.  The answers to those questions and how those answers could shape policy, is a contribution to the gun debate that only doctors can make.

Is Gun Violence A Recurring Disease? A New Study Says ‘Yes.’

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What are the odds that someone who is discharged from a hospital after treatment for a gunshot injury will return to the hospital with another serious injury or will be arrested for committing a serious crime?  For the first time a study attempts to answer that question based on enough data to discuss how the medical community should respond to people who seek medical help after being assaulted with a gun.  The Annals of Internal Medicine contains a study of more than 9,000 patients who were admitted to hospitals in Washington State with violent injuries in 2006-2007 and were then followed through December, 2011 or to their next subsequent hospitalization, arrest, or death, or whichever came first.  The findings about this group were then compared to 68,000 patients who were discharged during the same two-year period but had been treated for non-violent injury, along with a comparison to 180,000 patients comprising the general population.

conference program pic                Before we compare the long-term experiences of all three groups, let’s look at the composition of the violent injury group itself.  Of all patients treated between 2006 and 2007 for violent injury, roughly 7.5% were admitted for injuries involving guns, or what the researchers refer to as firearm-related hospitalizations or FRH.  But the FRH number was actually 21% of all assaults, since 65% of all serious injuries were self-inflicted (accidents and the like.)  The ratio of one out of five assaults in which a gun was used is no different from what the FBI reports across the nation as a whole.

Patients admitted in 2006-2007 for gun injuries were also typical of this population in general, with nearly 75% being less than 40 years old, and 85% being male.  Racial data was not available for this study, but interestingly, one-third of all victims of gun violence in Washington State paid their hospital bills with private insurance, whereas the Urban Institute recently calculated that less than 5% of all hospital admissions for gun-related violence were covered by private plans.

Here’s the bottom line.  A patient who was treated and discharged for a gun injury in 2006 and 2007 had a significantly higher chance of then being killed with a gun or being arrested for some kind of violent assault.  A history of criminality prior to the hospitalization increased the likelihood of post-discharge victimization or criminal behavior even further.  The point is that a medical encounter for the treatment of gun violence does not just represent a challenge to respond to the injuries caused by the specific gun-related event.  It is also a harbinger of further medical challenges to come and should be understood and responded to in the context of an ongoing and continuous medical risk.

Other studies have also shown that violent injury is a recurring disease.  Earlier this year JAMA Pediatrics published an article which showed a clear division between two youthful populations, ages 14-24, who were treated by Emergency Departments in Flint, MI.  The groups were divided between those patients whose first visit to the ER was for violent injury, the other group came to the ER for something else.  What then happened was that a significant number of the patients who first sought medical care for injury returned to seek care for the same problem again. Not a single member of the latter population that came to the ER for something other than violent injury ever sought medical care for any kind of serious assault.

The Annals issue containing the study on violent recidivism also held an editorial in which eight of the major medical associations (ACP, AECP, AAP, ACS, etc.,) called for stronger physician commitment and endorsed a list of public health initiatives to deal with the medical risks of guns.  But I think that physicians need to do more than just support public health strategies in this regard.  What they really should do is develop effective medical strategies based on research like the articles cited above.  After all, it’s ultimately what the doctor tells the patient which makes any difference at all.

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You Can Carry A Concealed Gun In Florida But It Better Be Concealed.

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The movement to establish open carry of guns as a constitutional right, an offshoot of the Constitutional Carry movement and particularly active in Texas, took a big hit this past week in the gunshine state when the Florida 4th District Court of Appeals took up the case of Norman vs. Florida and ruled against the petitioner’s claim that denying him open carry was an abridgement of his 2nd Amendment right.  What basically happened was that a Florida resident named Dale Norman was arrested in 2013 because his handgun was seen and reported to the police as he was walking down a Fort Pierce street.  He was convicted of violating a Florida statute that prohibits open carry of handguns, his appeal was then handled by a group called Florida Carry, which appears to be a group of military veterans who evidently like to parade around showing off their guns.

In its unanimous opinion, the Court first noted that it was embarking on a voyage into the vast terra incognita of laws covering carrying guns outside the home, which was first acknowledged to exist in the 2008 Heller decision that recognized the Constitutional right of citizens to keep a gun only inside the home.  But since the SCOTUS also recognized that the 2nd-Amendment right to private gun ownership was based primarily on the use of a gun for self-defense, it wasn’t long until the issue of whether the self-defense boundaries would be extended beyond the home also came under judicial review.

open                Where jurisprudence seems to be moving is towards the recognition that concealed-carry is, indeed, a Constitutional right, but that the government can also restrict or at least regulate the issuance of CCW as long as the regulations are “reasonable and do not effectively destroy the right in practice by imposing a substantial limitation” on carrying guns outside the home.  And here is where the pedal meets the metal, so to speak, because what irks the pro-gun movement most of all, is the idea that government should be able to impose limitations of any kind on the ownership or use of guns by law-abiding folks.

Be that as it may, there doesn’t seem to be a judge anywhere in the United States who is willing to depart from the standard rationale for government regulation of firearms, namely (to quote the Florida 4th District) that “that the government has a substantial interest in regulating firearms as a matter of public safety.”  And this ‘substantial interest’ takes the form of a near-unanimous agreement by courts to apply intermediate, rather than strict scrutiny to deciding the constitutionality of laws covering ownership and use of guns.

If the pro-gun push for fewer restrictions on guns were ever to convince the country’s jurists that gun laws should be adjudicated only through the application of strict scrutiny review, then the gun-sense movement might as well pack it up and go home.  Because what strict scrutiny means is that a law can only be considered constitutional if it is narrowly tailored to achieve its result, whereas intermediate scrutiny means that the law only needs to serve accepted, general ends.  If regulating gun ownership was no longer accepted as a compelling government interest unless the government could prove that every gun law achieved some specific safety result, you could kiss gun regulations goodbye.

Which is exactly what Dale Norman and his attorneys and his supporters were hoping would happen in the 4th Florida District Court of Appeals in West Palm Beach. But it didn’t turn out that way at all.  And the reason the District Court upheld his conviction was because it found that, given Florida’s liberal issuance of concealed-carry permits, one simply couldn’t sustain the argument that Florida was in any way preventing its residents from using guns outside their homes for self-defense.  Believing that you are safer because you carry a gun is one thing, waving it around in public to scare off the bad guys is something else.

If Doctors Can Go On The Offense About Vaccinations, They Can Go On The Offense About Guns.


Sean Palfrey is a Boston-based pediatrician who has been a long-time advocate for improving children’s welfare through aggressive public health strategies, including the use of vaccinations to protect kids from all sorts of disease.  His latest comment in this regard appeared last week in Huffington, and while you might wonder what this has to do with guns, indulge me for a few paragraphs and let me explain.

shot                The recent public spat over the efficacy of vaccinating children erupted after a measles outbreak was traced to an amusement park in Southern California, which then prompted the Republicans to try and score a few anti-immigration points by forecasting a potential catastrophe due to infections spread by unvaccinated illegal immigrants, which then led to the usual Republican pandering about why government should be getting into the vaccination game at all.  And that a physician turned Presidential  candidate used to be against vaccinations but now isn’t sure what he’s for or against, has just muddied the waters a little more.

For a moment, let’s put all that nonsense behind us and focus on what Sean Palfrey really says.  The point he’s making about vaccinations is they protect the human species against diseases for which there is no cure once the infection occurs.  In this respect, vaccines become the cure for certain diseases through prevention, whereas we usually think of being cured as what doctors do to us after we get sick. We wouldn’t need government-mandated vaccinations if everyone shared Sean Palfrey’s belief about the positive effects of this proactive response to medical risk. But prevention of disease is simply too important to be left to everybody’s individual choice.

One disease which continues to escape government-mandated controls is something called gun violence, which kills more than 30,000 Americans each year.  And if the NRA and other pro-gun folks want to continue to debase this discussion by claiming that these deaths have nothing to do with guns, that’s fine.  But notice that I’m not casting blame on anyone for these gun deaths; I’m not saying that people with guns are good or bad.  I’m simply saying that, at the end of the day, if someone puts a loaded gun to their own head or to someone else’s head and pulls the trigger, I guarantee you that someone will be dead.  And death from anything other than natural causes is a medical issue and if it is not brought under control, it constitutes a medical risk.

A recent study confirms what I have long suspected, namely, that most people who visit doctors really don’t care, nor are they insulted or angered when the physician asks them whether they own guns.  And while the study was based on a small sample of patients, it was conducted in Texas, where opposition to more restrictive gun laws ranges from fierce to worse. The fact is that nobody ever committed an act of gun violence, no matter how it’s defined, without first getting hold of a gun.  And since, by definition, none of the 31,000 Americans who will die from gunshots this year will die a natural death, physicians need to adopt, in the words of Sean Palfrey, the strongest possible defense in order to go on the offense regarding the medical risks of guns.

If a gun-owning patient believes that anything said by a doctor about guns is out of bounds, he’s not required to accept the doctor’s advice.  And God knows there are plenty of us walking around, sicut me, refusing to follow medical advice about our smoking, our drinking, our guns  or our weight.  But the government’s inability to go on the offense about gun violence has absolutely nothing to do with any evidence-based knowledge that having guns around reduces medical risk.  And until a credible, evidence-based argument proving that guns reduce harm is produced by the pro-gun side, physicians should continue to ask patients to immunize themselves against gun violence by getting rid of the guns.



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