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Sunday, April 22, 2007

VT Through a Constitutional Lens

The senseless, tragic shootings at Virginia Tech on April 16, 2007 have required all Americans to begin two tasks we are normally loath to perform separately, much less at the same time -- grieving and thinking. One week or even one year may not put enough time between us and the events to feel comfortable addressing the lessons the event should teach us about ourselves and our society. However, the consequences of the shootings make it clear comfort is not the most important principle at stake.

Individual Rights and Public Priorities

Many of the discussions after the shooting focused on the interpretation and limitations on the right to bear arms provided in the Second Amendment to the Constitution. I would argue anyone jumping to the Second Amendment to frame a review of the pattern of violence most recently repeated at Virginia Tech is bound to miss the real issues. A more appropriate start to the debate involves two famous excerpts from the key founding documents of our society. Specifically,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

I don't think it's any accident that Thomas Jefferson, arguably one of the world's greatest writers, put those words Life, Liberty and the pursuit of Happiness in the Declaration of Independence in that specific order. It is also no accident that the Preamble to the United States Constitution, written by Gouverneur Morris, consistently addresses the purpose of both our Constitution and government in the PLURAL sense. Again, note both the order of the goals cited and the pluralistic sense of each of the goals:

* to form a more perfect UNION
* establish JUSTICE
* insure TRANQUILITY (order)
* provide for our common (not individual) DEFENCE
* promote GENERAL WELFARE
* secure liberty for OURSELVES and future generations

The Constitution focused on defining the relationship BETWEEN the branches of government to provide a government with short term stability, defenses against abuse within the government and orderly methods for altering the long term direction of the government. The Bill of Rights was created to define the relationship BETWEEN the government and the people. It reflects the Founding Fathers' fortunate insight that a better collective direction will result in most situations when the rights of individuals to hold, communicate and pursue their own ideas are protected. The Bill of Rights was NOT intended to REPLACE the larger pluralistic goals of the Constitution. The scope of individual rights ends when exercising those rights interferes with the larger collective rights and goals of society, including the Life, Liberty and the pursuit of Happiness of others.

Issues Raised by the Virginia Tech Shooting

The terminology, syntax and sequence of rights and priorities referenced in the above excerpts serve as a useful set of "tie-breakers" when choosing between conflicting interpretations of individual rights and public obligations. They are particularly useful when trying to sort through the larger issues beyond the immediate grief of the Virginia Tech shootings.

Individual Privacy versus Public Safety -- As mentioned earlier, the issue of gun control itself is not the utmost philosophical or constitutional issue raised by the Virginia Tech shooting. The core issue is the conflict between privacy and public safety. Coverage of the incident has unearthed the following information:

* the assailant created and SHARED (public behavior) MULTIPLE disturbed writings which caught the attention of teachers
* the assailant had stalked (public behavior) at least two females, resulting in police contact
* the assailant was ruled by a judge to be mentally unstable and a danger to himself and others
* multiple teachers had offered to provide non-traditional instruction outside the classroom but only with supervision, indicating multiple people reviewed the same facts and came to the same conclusion

Again, those facts alone, without involving any discussion of firearms, highlight the key issue about the rights of an individual versus the rights of others to take actions to protect themselves and the larger communities they serve. This person's mental state was not even close to a judgment call. One student who shared a dorm suite with the assailant said the assailant didn't speak A SINGLE WORD to him and several others in the suite for an ENTIRE SEMESTER. Clearly, everyone has a right to communicate or not communicate with anyone they choose but can anyone argue this is even remotely normal behavior in a college environment?

The facts about the assailant's mental health and the unwillingness by Virginia Tech and state/local law enforcement to remove him from that setting point out a legal schizophrenia in the United States about privacy and the stigma of mental health issues versus public safety. We have no trouble restricting the right to engage in other public acts (driving, building a home, etc.) which involve personal freedom and expression because they also have public impacts (You are driving on public roads and can kill other people. You are building a home which could collapse or burst into flame if poorly constructed, putting others at risk.)

For something as personal as depression or other even more severe mental illnesses, each person has a right to deal with those problems as they see fit provided the impacts of their illness do not harm anyone else. Once your private demons or medical conditions have the potential to adversely affect the safety of others in a public setting, your individual rights are trumped by the rights of the larger society when those rights conflict. Do you think it's acceptable for someone diagnosed with suicidal depression to be flying a 747? Do you think it's acceptable for an airline that KNOWS the pilot has suicidal depression to continue allowing the pilot to fly? Does the pilot have a "right" to work out his demons over time while flying 200 passengers five times per week?

In the case of the Virginia Tech assailant, he stepped into the public square by requesting to attend a university, he publicly demonstrated repeated threatening behavior in his writings and in his stalking of two separate women and was ruled a danger to himself and others by a judge. He had no "right" to attend Virginia Tech or any other school under those circumstances and legal interpretations in all states should be uniform and clear that the school had the right to deny his attendance at the school.

Denying him the right to attend would not have solved the larger problems of this assailant nor assured the safety of Virginia Tech students in an open campus environment. However, it would have reduced his daily exposure to a social environment he clearly was not equipped to handle, possibly lessening the risk posed to that particular community. This doesn't imply each organization that becomes aware of such conditions only owes a duty to its own local community and to hell with the rest of the world. Instead, it simply reflects the primary obligation to act responsibly within your local scope of authority.

Unique Public Safety Issues in Schools -- Margaret Spellings, Education Secretary for the Bush Administration, appeared on Meet the Press April 22, 2007 to discuss the Virginia Tech shootings. In her comments, she attempted to calm fears by stating that overall, our schools are quite safe. That may be true in a pure statistical sense but in the particular case of mental illness and public safety, Virginia Tech is just the latest in a series of incidents which prove school settings are uniquely UNSAFE. I don't know what Ms. Spellings' definition of "anomaly" might be, but does this list (taken from Wikipedia at #1) look like school shootings are an anomaly in America?

Parkway South Junior High School -- Saint Louis, MO - 1/20/83
Laurie Dann -- Hubbards Woods Elementary School; Winnetka, IL -- 5/20/98
Stockton -- Stockton, CA -- 1/17/89
University of Iowa -- Iowa City, IA -- 11/1/91
Simon's Rock College of Bard -- Great Barrington, MA -- 12/14/92
Richland High School -- Lynnville, TN -- 11/15/95
Frontier Junior High -- Moses Lake, WA - 2/2/96
Pearl High School -- Pearl, MS -- 10/1/97
Heath High School -- West Paducah, KY -- 12/1/97
Jonesboro -- Jonesboro, AR -- 3/24/98
Thurston High School -- Springfield, Oregon, United States; May 21, 1998
Columbine High School-- Littleton, CO -- 4/20/99
Heritage High School -- Conyers, GA -- 5/20/99
Santana High School -- Santee, CA -- 3/5/01
Appalachian School of Law -- Grundy, VA -- 1/16/02
Rocori High School -- Cold Spring, MN -- 9/24/03
Southwood Middle School -- Miami, FL -- 2/3/04
Red Lake High School -- Red Lake, MN -- 3/21/05
Campbell County High School -- Jacksboro, TN -- 11/8/05
Platte Canyon High School -- Bailey, CO -- 9/27/06
Nickel Mines School -- Nickel Mines, PA, 10/2/06
Weston High School --Cazenovia, WI -- 9/2906
Henry Foss High School -- Tacoma, WA -- 1/3/07
Virginia Tech massacre -- Blacksburg, VA -- 4/16/07

The similarities in many of these shootings about the assailants and their mental background seem to point out OBVIOUS aspects of school scenarios that make students particularly vulnerable:

1) The compulsory nature of schools (even colleges which aren't technically compulsory) creates an environment where disturbed individuals who already feel powerless feel more so by the highly scheduled nature of classes.
2) A school setting places disturbed individuals in close proximity to the micro-society they often obsess over as the "cause" of their suffering for extended periods of time (6-7 hours per day) for weeks / months at a stretch.
3) The physical setting of schools provide an unlimited number of locations where large groups of people gather in rooms with limited numbers of easily blocked exits
4) The scheduled nature of classes creates a situation where disturbed individuals with a grudge know exactly where the people they've fixated upon will be at any given time

The safety of students in schools (particularly primary and secondary school) poses unique obligations to our society because of the compulsory nature of school. We're REQUIRING students to be in those classrooms. We therefore owe a particular duty to protect their safety.

Gun Rights in a post-Virginia Tech World -- The Virginia Tech shooting shouldn't change anything about the right of individuals to own and use firearms. What must change is our understanding of how those gun rights intersect with the larger goals of our society and the rights of those within that society. No change in gun laws can guarantee a school massacre never occurs again. Some other method could be employed. The goal should be to prevent massacres period, not simply prevent gun massacres. However, at this time, the combination of mental illness and easy access to weapons is proving consistently and repeatedly lethal in educational settings in particular.

In a perfect world of mentally balanced people and no robberies or murders, all Americans would have the right to own and use any weapon they desired. If you want to live on top of a massive depot of pistols, rifles, shotguns, machine guns and enough ammunition to recreate World War II, so be it. However, if you cannot guarantee your weapons will not be stolen and used to commit a crime, society has a right to impose limits on the nature and number of weapons you can possess. Society also has an obligation to hold you strictly accountable for the safety of your weapons and ANY consequences (accidental or otherwise) of their use. If you are not mentally balanced enough to keep your apocalyptic visions firmly in check and you communicate with others in patterns similar to mass murderers, society has a right and an obligation to restrict your access to any and all firearms. Once your public behavior steps over an objective line, there is no presumption that your right to bear arms trumps anyone else's rights. In fact, the exact opposite is true. Once you cross that line of public behavior, your right as an individual to bear arms goes to the very bottom of the list.

Despite what some pro-gun advocates would like to believe, the right to bear arms was never intended by the founding fathers to enable or promote a nation of nut jobs holed up in a shack or some religious compound "defending" themselves as individuals against everyone else in society. It was not identified as an inalienable right. The language of both the Declaration of Independence and the Constitution make it clear that all rights described in those documents were proscribed to foster the well-being of We the People as a whole and provide individual rights in sync with that larger goal. In particular, the references to arms and "defence" are both explicitly framed with references to well-organized public forces protecting common interests, not individuals attempting to protect themselves against everyone else or claiming to defend themselves in the absence of a functional police force.

America needs to unify standards for reporting court findings of mental incompetence and improve the sharing of such information. A large number of states currently withhold mental fitness rulings from the national registry. Some only report if a person is involuntarily committed. Based on the pattern of behavior with many of these school shootings, the threshold should be altered to be any official police interaction (call to the home, formal arrest or conviction) with someone ruled a potential threat.

No government use of such data is guaranteed to be perfect (the Duke incident being a prime example of government / prosecutorial abuse) but all that is at stake with this information if an error is made is one person's right to have fun shooting a weapon. If information isn't shared at all to prevent a gun purchase by a deranged person, the stakes are indescribable. Indescribable unless of course you meet a survivor of Columbine, Virginia Tech or one of the other dozen or so shootings. They can tell you EXACTLY what is at stake.

The students and larger community of Virginia Tech have a great deal of hurting and healing to get through in the coming months and years. The rest of us owe them our best effort to rethink our approach to all of the issues that combined to produce this latest horror and do our best to prevent it from happening again and adding more members to their family of survivors.

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#1) http://en.wikipedia.org/wiki/School_massacre#List_of_school_shootings