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October 2, 2017

Anyone have any wise insights after latest and worst US mass shooting?

I am soon to go off-line to prepare and then teach my 1L Criminal Law class in which we are starting an in-depth discussion of homicide laws.  In the wake of horrific events in Las Vegas, which according to the latest reports, involved a gunman's murder of "at least 58 people" and hundreds more injured, I am eager to say something wise to my students before we get started with our regular programming.  But I am not sure I have much wisdom on this front. 

As some long-time readers may recall, after some recent past mass shooting, especially Sandy Hook, I talked up the possibility of smart gun technologies being at least a partial plausible "solution" to mass shootings and extensive gun violence.  (A bunch of those prior posts are linked below.)  But I am not sure such technology could have made any difference in this latest evil killing, and I am sure that the failure of the Obama Administration or progressive states to make any progress on the smart gun front in recent years likely signals that it would be foolish to hope or expect a technological remedy to our massive gun violence problem.

Notably, Nicholas Kristof already has this op-ed up at the New York Times headlined "Preventing Future Mass Shootings Like Las Vegas."  Here are some of his closing sentiments, which strike me as thoughtful, if not quite wise:

It’s too soon to know what, if anything, might have prevented the shooting in Las Vegas, and it may be that nothing could have prevented it. In some ways, these mass shootings are anomalies: Most gun deaths occur in ones or twos, usually with handguns (which kill far more people than assault rifles), and suicides outnumber murders.

But in every other sphere, we at least use safety regulations to try — however imperfectly — to reduce death and injury.  For example, the Occupational Safety and Health Administration has seven pages of rules about ladders, which kill 300 people a year.  Yet the federal government doesn’t make a serious effort to reduce gun deaths, with a toll more than 100 times as high.

The best example of intelligent regulation is auto safety.  By my calculations, we’ve reduced the auto fatality rate per 100 million miles driven by more than 95 percent since 1921. There was no single solution but rather many incremental efforts: seatbelts, air bags, padded dashboards, better bumpers, lighted roads, highway guardrails, graduated licenses for young people, crackdowns on drunken driving, limits on left turns, and so on.  We haven’t banned automobiles, and we haven’t eliminated auto deaths, but we have learned to make them safer — and we should do the same with guns.

The analogy between driving/cars and guns does not quite work for a variety of reasons, but there is surely a kind of wisdom in the idea that we can and should try to improve gun safety in a variety of incremental ways without the political and practical problems posed by proposals involving prohibitions.  And, perhaps ironically, Prez Donald Trump may be better positioned than any recent president to navigate the challenging gun politics that often impeded efforts to improve gun safety.  Though I have little reason to believe Prez Trump will be eager to make improving gun safety a political priority, not long ago I had little reason to believe that there would ever be a Prez Trump.  

A few recent and older related posts:

October 2, 2017 at 12:10 PM | Permalink


Any animal will become psychotic if placed under enough population pressure; humans are the only animal that will willingly do this to themselves.

Posted by: Soronel Haetir | Oct 2, 2017 12:30:56 PM

No rational argument can be made about federal gun control at this point of partisan divide, regardless of type of law ("smart gun", "assault rifle ban", "magazine limits", etc.). The Democrats/media will use this to advance their overall progressive agenda, the Republicans/NRA will do everything they can to prevent that movement.

The NRA will not budge, the anti-gun forces will not budge, etc. The only movements will most probably be done incrementally in blue state legislatures, with a corresponding rush to prevent such movements in red state legislatures.

Is Trump the wild card? Not sure. Too many establishment GOP types side with the conservative wing on this one, and their constituents are keeping a very close eye on this. Prediction: Nevada may enact a few more feel-good laws, California likewise, other blue states less so, and no movement federally. Perhaps a few lawsuits against the gun manufacturers.

Posted by: Eric Knight | Oct 2, 2017 12:51:16 PM

Prof. Berman. This case will likely indicate a mental illness to be a factor. I will address the role of the Supreme Court in these deaths, when more facts are known.

You can help this nation and thousands of future murder victims, by becoming the first Criminal Law teacher to disclose the following.

1) One must read the mental state of a murderer, when the murderer had a 50% chance of being legally drunk. The murderer may have had a memory blackout of the crime. You will be reading the mind of someone who cannot report his own state of mind;

2) the state of mind is dispositive. A hunter who shoots another thinking him a deer goes home. A hunter who shoots another because the other's wife paid him $10,000 will get the death penalty. Same act, same result. Yet, the drunken, careless hunter may be far more dangerous than the contract murderer, after hitting a school bus going the wrong way on a road;

3) this intent came, word for word, from here, the Catechism,
1857 For a sin to be mortal, three conditions must together be met: "Mortal sin is sin whose object is grave matter and which is also committed with full knowledge and deliberate consent."

A mortal sin is a violation of the Ten Commandments. To the credit of the Medieval Catholic Church, it was their faith, God would judge intent after death. It never claimed, men could judge intent. Catechism and Ten Commandments doctrines are a no-no in our our secular nation's laws;

4) because death was the sole penalty, even for minor violations, a loophole was needed in 1275 AD, but not today. Intent is not longer needed as a loophole;

5) the executive branch should investigate the background of the defendant, and sort the dangerous from the careless and not dangerous. The sentencing authority should be held accountable for mistakes that cause damage to future victims of crime, in accordance with professional standards of due care. These standards do not involve predicting the future, but counting the past behaviors;

6) the solution rate of murder is inversely proportional to the rate of murder, 60% in the US, 30% in Chicago, 0% in Honduras;

7) it is inversely proportional to the ratio of lawyers to population, Japan has 20,000 lawyers for 100 million, and close to no crime;

8) those blaming lax gun regulation must account for the low rates of murder in Israel and in Switzerland;

9) the five fold rate of murder of blacks, or an excess of 5000 a year, is the same as it took the genocidal maniac Klan to lynch over 100 years. The Klan was the terror arm of the Democratic Party. The high murder rates are mostly located in jurisdictions with elected Democratic Party officials;

10) around the world, 10% of the murders are committed by paranoid schizophrenics, as aremost rampage murders. All are preventable with forced treatment, including long term injected medication that cannot be refused by the patient. The Supreme Court ended the decision making of clinicians. It is totally responsible for 10% of the murders of the last 40 years. And, with that idea, we return to the tragedy of Vegas.

Posted by: David Behar | Oct 2, 2017 2:23:55 PM

Nra followers are pushing for passage of the silencer bill now before Congress. In light of the incredible noise erupting from the lunatic's automatics in Las Vegas as he was slaughtering the innocents, the bill's chances of passage have greatly improved.

Posted by: anon21 | Oct 2, 2017 2:55:21 PM

Speaker Paul Ryan wants us all to stand in memory of those who were killed. What does that do?
Try outlawing the manufacture, sale, and possession of magazines with more than 10 rounds.

Posted by: anon21 | Oct 2, 2017 2:58:21 PM

"I am sure that the failure of the Obama Administration or progressive states to make any progress on the smart gun front in recent years likely signals that it would be foolish to hope or expect a technological remedy to our massive gun violence problem."

The progressive states part -- one where gun control advocates theoretically control both houses (or the only house, as the case may be) of the state legislature and the governorship -- I'll give you. But do you really think it was the Obama administration standing in the way of any type of gun control reform, including technological changes, for the last 8 years? What would you have had him do? Do you think he kept the argument that was finally going to get congressional Republicans to move on the issue up his sleeve?

Posted by: anon22 | Oct 2, 2017 3:23:59 PM

Professor --

You ask whether "[a]nyone [has] any wise insights after latest and worst US mass shooting?" The answer, most assuredly, is that no one has particularly "wise" insights so soon after the horrible event and before many facts are known. Of course, lack of information won't prevent certain commenters from vomiting forth 10-point screeds.


Posted by: DRF | Oct 2, 2017 3:33:38 PM

Its a bigger failure at the federal level than the state level. Follow the lobbying money trail. All politicians should be thoroughly ashamed of themselves for their lack of action. Especially after the Newtown killings. Just disgusting dirt bags all.

Posted by: Ed | Oct 2, 2017 5:52:57 PM

DRF. I am thinking of the failure of the criminal law to protect 10's of 1000's of murder victims, yearly. It stinks because everything from 1275 AD stinks. Not only is the criminal law stinky, it violates the Establishment Clause by its super-natural doctrines. My 10 points relate to the criminal cult indoctrination that Prof.Berman is about to infect dozens of future lawyers who will one day run the criminal law. They need to be vaccinated against the sick 13th Century Catholic bullshit he is about to lay on them. It is delusional, and more psychotic crap that whatever the rampage killer was thinking.


Ed. Those who want more gun control must answer for,

1) the tight gun control of Chicago and of Baltimore. Between them, 59 dead would be considered a slow month;

2) the low murder and crime rates of Israel and of Switzerland, where being armed to the teeth is a legal requirement.

We do not need your stupid gun control. We need the control of evil people, mostly lawyers protecting, privileging, and empowering criminals like this rampage killer. In Israel or in Switzerland, the victims would have shot back at the gun flashes, into the two hotel windows. The rampage killer would have been blasted after 2 victims, not 600.

Thanks to irresponsible people like you, the police took an hour to respond. And, the killer had killed himself before they entered. They blew up the hotel room door instead of using a pass key. They did nothing of value, and damaged the hotel. Worthless, government, make work morons. They are, of course, agents of the prosecutors. All are lawyers, the stupidest people in our country.

Posted by: David Behar | Oct 2, 2017 6:21:24 PM

Hey, DRF. Had the career criminal father been executed at 14, he would not have had this son. We would have 59 people alive. We do not know how many more will die from their wounds. The executions of all super predators at the earliest age, preferably by abortion, would have an exponential benefit, saving many generations of crime victims. The crime meter starts to spin at age 3, so hundreds of children would be spared victimization, as well.

Think about that, all you pro-criminal lawyers on this blog.

Posted by: David Behar | Oct 2, 2017 6:31:36 PM

Hey dirt bag DH the U.S., with 300M+ diverse people in it, is not Israel and Switzerland. Go back to your troll hole.

Posted by: Ed | Oct 2, 2017 7:13:11 PM

One of the first, if not the first, thought should be: what anti-depressants was this man on? The known side effects of homocide and suicide from many anti-depressants frequently prescribed by doctors in America appear to be the culprit in all of these extremely unnatural shootings.

Unnatural because in most of these mass shooting incidents there is little if any motive that every comes up. As the shooter's brother has said, his brother's actions are a total mystery to all who knew him.

This statement points to some kind of sudden shift in mental attitude, and that points to the possibility he was taking anti-depressants. I hope that this theory is promptly investigated. The question is do we need more gun control or do we need more anti-depressant control?

Posted by: Stephen Douglas | Oct 2, 2017 7:57:24 PM

Hi, Ed. Israel is as diverse as the United States. Probably half of the population are immigrants from Russia to Central Africa. It even has a huge, hostile, 20%, Israeli Arab population that is not friendly to its values, but with voting rights. They do not carry weapons.

Ed, let me ask you a test question. Do you believe that 9/11 was a Mossad/CIA operation? Do you believe the out buildings were destroyed by timed detonations, as one might have in a scheduled demolition? Answer the question.

Posted by: David Behar | Oct 2, 2017 8:14:08 PM

Hi, Stephen. Cuckoo, cuckoo, cuckoo. Ding.

And, I am not referring to Stephen Paddock.

Posted by: David Behar | Oct 2, 2017 8:15:41 PM

David —

You prove my point.

Posted by: DRF | Oct 2, 2017 8:40:23 PM

DRF. Outside of personal insult, what was your point? I was first to say we need more facts.

Posted by: David Behar | Oct 2, 2017 10:25:27 PM

We are a pampered pathetic weak nation. When kids get a fever, run them to the dr and get meds. Look at all of the ads on tv telling you about new drugs. Drs need to know not us. My point is we depend on meds for this and that, not really when its necessary.

This is how we got the opiod epidemic, Meth and crack in the 80s.
When the auto industry crashed, american manufaturers cut back on accessoties and decided quality was important.

Well, look at the price of trucks, $50K and 20% off. But thats still crazy high and too many things go wrong with american vehicles. We didnt learn our lesson.

Feds had a chance to ban or remain banned military style guns, but they caved in. Men might feel feminine and go visit womens bThroom, no biggee right.

Well, America has a paper @sshole and this is how we got into this mess and 20 trillion in debt. Everyone is going to have to hurt to get out of the mess America is in.
But who has the brass to do it and the finess to get both oarties to agree on anything?

Nobody on this planet. So we are in for a rough ride and future generations are going to go down the tubes. Not very positive but its gonna happen. Korea getting away with the garbage they are pulling, Hacking into everyones data and then identity theft of us all.
Boy, how about the ozone layer, thats why we are getting Hurricanes of magnum size and often. But just keep on ignoring these items and go after ObamaCare.

Posted by: MidWestGuy | Oct 2, 2017 10:48:14 PM

“whether gun-rights advocates or gun-control advocates won lots of battles, the levels of crime and violence would be pretty much the same. So maybe we should simply turn our attention to other policies that might be more effective in fighting crime and violence: more police on the streets, ensuring that young people have better access to education and jobs, more disparagement by leading public figures of violence on television and in movies, or whatever else serious inquiry into the causes of crime and violence reveals to be somewhat effective policies."

-Out of Range: Why the Constitution Can’t End the Battle Over Guns by Mark V. Tushnet

Posted by: Charleton H | Oct 3, 2017 4:16:50 AM


Rank-and-file police officers are already rallying against President Barack Obama’s scheduled push for government purchases of smart guns.

“Police officers in general, federal officers in particular, shouldn’t be asked to be the guinea pigs in evaluating a firearm that nobody’s even seen yet,” said James Pasco, executive director of the Fraternal Order of Police. “We have some very, very serious questions,” he said, according to Politico.


Of the 330,000 officers in his union, Pasco said, “I have never heard a single member say what we need are guns that only we can fire,” noting that there might be moments in close combat when an officer would need to use a partner’s weapon or even the suspect’s.

“There’s a legitimate question right now whether smart gun technology will work for policemen” said Stephen P. Teret, a Johns Hopkins University professor who studied how airbag rules impact safety before he turned his focus to gun violence. “Some of the concerns might be overblown.”

The technology is “intriguing,” said Louis Dekmar, police chief in LaGrange, Georgia, and vice president of the International Association of Chiefs of Police. “But the jury’s still out.”

He added, “The more complicated you make the weapon, the more likely you are to have a failure.” Dekmar said he’d “certainly be open” to having his officers test the guns under limited circumstances and hailed their potential to protect officers whose guns are taken.

Posted by: Charleton H | Oct 3, 2017 4:24:05 AM


If there are 49 percent fewer homicides nowadays compared to twenty years ago, it is a bit disingenuous to imply that homicides are actually going up because the rare events knows as mass shootings are claimed to be more common. Victims of mass shootings are not more dead than other homicide victims. If the goal is to decrease homicide, we must first ask ourselves why the conditions that coincided with falling homicide rates (i.e., increasing gun ownership) should be abolished all the name of reducing one specific kind of homicide.

Moreover, it is untrue that the US is unique in the occurrence of mass shootings. The claim is so far from accurate that even Politifact rates the claim as "mostly false." One can only even begin to make the claim if one conveniently excludes mass shootings in Europe (such as the Paris attacks) as "terrorism" while defining similar acts in the US (i.e., the San Bernardino and Orlando killings) as generic "mass shootings." Similarly, it's also disingenuous to ignore other forms of mass homicide that occur when the murderers use means other than guns. The 2002 Bali bombings at a night club, for example, killed more than 200 people. But never mind that, we're told. Just focus on mass shootings. Also, ignore killings like the 1995 Ohlahoma City bombing and the Boston Marathon bombings. Although some components of fertilizer bombs are monitored, it's still perfectly legal to buy the means to carry out those killings.

Posted by: Mises | Oct 3, 2017 5:56:57 AM


Homicide Rate


1968 Gun Control Act passed.


2010--Supreme Court rules people have a constitutional civilian right to own firearms for self-defense


Posted by: Gun Owners of America | Oct 3, 2017 6:01:02 AM


In 2013, a black was six times more likely than a non­black to commit murder, and 12 times more likely to murder someone of another race than to be murdered by someone of another race.

Posted by: J. Taylor | Oct 3, 2017 6:12:57 AM

U.S. Homicide Rate by Race (2014)






Posted by: The Warrior Gene | Oct 3, 2017 6:29:08 AM

If the right to have an abortion means no waiting periods, then a right to own a gun means no waiting periods.

If the right to use the internet means ex-felons can use the internet (Packingham), then the right to own a gun means ex-felons can own guns.

Any law that you wouldn't apply to any right, don't apply to the right to own guns. If speech-control laws and abortion-control laws are morally bankrupt, then so are gun-control laws.

Posted by: gun-control is fascism | Oct 3, 2017 6:48:54 AM

The shooter would have passed his background check. He had a pilot's license (likely more difficult to pass, with physicals and drug testing), no crime record, no treatment for mental illness (so far).

The Second Amendment was really about resistance to tyranny. It still applies. And those who say we would face our modern military, they were run out of six countries by Stone Age savages with $50 weapons due to their poor leadership.

If I wanted to do even more damage than the shooterdid, I would have driven a tractor trailer, filled with fertilizer explosives into the crowd. Ban tractor trailers.

Posted by: David Behar | Oct 3, 2017 8:25:46 AM

Do not allow guns into Catholic Church.

Posted by: Liberty1st | Oct 4, 2017 11:09:22 AM

@David Behar

Consider the fact that a large percentage of firearms owners are ex-military themselves, and that an even larger part of the military would side with the rebels over the progressive leadership if the fit hit the shan. In any case, I would submit that the US Military as an entity, at this time, is the most Constitutional-following federal government organization, and has been since the progressive Democrats/Republicans have started skunking up the works since the thirties.

Posted by: Eric Knight | Oct 6, 2017 4:36:00 PM

Check or what the feds are trying to do to me? 10 years? I haven't been it trouble in over 15 years and I mess up once and they're ready to hang me!

Posted by: Lawrence Archer | Mar 21, 2018 2:23:02 AM

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