Jews burnt during the bubonic plague, accusing them in the contamination of christians wells (woodcut illustration from Nuremberg Chronicle, 1493)

A couple of weeks ago, one of my Amherst classmates sent me a thoughtful comment that I thought deserved more readers. I asked if I could post it as a “guest blog,” and he kindly agreed. Here it is.



Through the end of May only 21 weeks had elapsed in 2018, and 23 school shootings resulting in either death or injury had occurred: more than one school shooting a week so far this year.

Apparently, our elected representatives, for whatever reasons, are not going to tackle this plague of mass school shootings, accidents involving firearms, and the resolution of disagreements by violence.  Many possible avenues are open to them: licensing; nationwide data banks of purchases and sales of firearms; background checks; restriction of various fire arm accessories; more in-school personnel protections; and early detection of likely troubled minds.   But they gag when asked if the scourge might have something to do with firearms. Instead, they argue that the gun accidents and massacres are a function of our nation’s abortion policy, or of too much pornography, or of various mental health issues– and then cut the budget for mental health care.

To a lawyer, which I am, the current interpretation of the Second Amendment to our US Constitution, in vogue for only the last ten years – is contrary to our interpretation of it for the preceding 200 years. This current interpretation clearly frustrates any common-sense remedies to our current plague.  I agree with former US Supreme Court Justice John Paul Stevens, who wrote in March 2018:

 “Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that “a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.  During the years when Warren Burger was our Chief Justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment.”

 “In 2008, the Supreme Court overturned Chief Justice Burger’s and others’ long-settled understanding of the Second Amendment’s limited reach by ruling, in District of Columbia v. Heller, that there was an individual right to bear arms. I was among the four dissenters. That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power.“

According to Dennis Baron, a professor of English and linguistics at the University of Illinois, Justice Scalia, being a strict constructionist and writing the opinion, focused on the words, “bear arms”, and Scalia thus concluded that the right to “bear arms” would not have been spoken in a military context in the 18th century. He thought that the meaning of “bear arms” simply referred to carrying a weapon and had nothing to do with armies.  Justice Scalia wrote,

 “Although [‘bear arms’] implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization.  From our review of founding-era sources … [i]n numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.” 

But Professor Baron says that Justice Scalia is dead wrong. Baron points out that databases of English writing from the founding era confirm “bear arms” as a military term; uses of that phrase in the non-military sense are almost nonexistent.  Among 1,500 separate occurrences of “bear arms” in 17th and 18th century writings, only a handful don’t refer to war, soldiering or organized, armed action.

More than 150 years ago, Tennessee Supreme Court Judge Nathan Green wrote,

“A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and yet, it would never be said of him, that he had borne arms….”

And in 1995, historian Garry Wills put it more succinctly:

 “One does not bear arms against a rabbit”;

Despite the flawed reasoning in the 2008 Heller case, its decision is still binding.  While I agree with Justice Stevens and Professor Baron, and with the interpretation of the Warren and preceding Courts, even if the 2nd Amendment were correctly interpreted and all of the proposed regulatory approaches were enacted, somehow, somewhere, someone would likely slip through the cracks. Another mass shooting, or one toddler accidentally killing another, or worse, would still occur.


Policy-makers have available two broad types of instruments for changing the various habits and activities in society: traditional regulatory approaches that set specific standards and expectations, or economic incentives —market-based policies that rely on market forces to correct or modify societal behavior. Throughout the history of the United States, most activities that we as a society choose to encourage or discourage are implemented through the use of “sticks”, that is, regulation or through the use of “carrots”, or incentives.  To enhance charitable giving, we allow a tax deduction for qualifying gifts. To prevent excess cultivation, we reduce real estate taxes via a “green acres” program.  To encourage people to “go green”, society offers incentives, including tax credits, low interest loans, property tax abatements, and others. To encourage people to understand right from wrong, and to make the right choice as opposed to the wrong choice there are disincentives, usually couched in terms of loss of money or loss of freedom.

When the legislative “stick” fails, as it has in the case of gun legislation, because policy makers are at loggerheads, flummoxed, addicted to the contributions of arms manufacturers, or just lacking in political courage to act, then the “carrots” of incentives and disincentives offer an alternative approach.

So, let’s consider the concept of “strict liability”.  Strict liability, sometimes referred to as “absolute liability” exists in both civil and criminal law.  It refers to holding an individual liable for damages or losses without having to prove either fault or negligence.  Generally, in tort law, an aggrieved person has to prove that his grief was sustained on account of another person’s fault, whether by negligence or intent.  The law, however, recognizes that there are certain circumstances that are so inherently dangerous or hazardous, that there is no need for the aggrieved to prove direct fault or negligence.  Instead there is strict liability.

Some years ago, I bred and exhibited Morgan horses throughout the Midwest. I kept a stallion on my property. I knew that if my stallion broke out and kicked or bit someone, behaviors for which stallions are noted, I would be “strictly liable” for the resulting damages. Consequently, I built a corral with a six-foot high fence made out of sturdy two-inch thick oak planking and supported by posts almost a foot in diameter.  I did this for self -protection. I would have been strictly liable if that stud horse got out. My lack of negligence or malfeasance would have been irrelevant.   Other examples of strict liability include product liability, harboring of wild animals either in zoos or privately, the disposal of hazardous chemical wastes, and the storage of explosives.

In 2012, Adam Lanza used weapons that his mother owned, apparently legally, to kill 26 children and adults at Sandy Hook Elementary School in Newtown, CN.  Just recently a 17-year-old loner slaughtered 10 at a high school in Santa Fe, Texas using a pistol and a shotgun; weapons legally owned by his father.  I don’t know where Nikolas Cruz got his weaponry to terrorize the Parkland, Florida high school, or where James Holmes got his to terrorize Aurora, Colorado, or where Devin Kelley or Stephen Paddock got theirs to kill people in Sutherland Springs, Texas or Las Vegas, Nevada, respectively. But someone owned those guns, probably legally. Additionally, there are many, many incidents of children injured or killed by other children who are playing with guns. And just last month, a man was shot by his own dog; the dog jumped on a gun lying on a sofa and somehow managed to discharge it.  All of these incidents raise the issue of whether there is simply too much carelessness about the storage and protection of firearms.

Courts and legislators could extend the concept of strict liability to the housing or storage of firearms, just as they have to keeping stallions, wild animals or explosives.  I suggest that legislators might more easily focus on the back-end of the issue with a “disincentive” approach to our current plague, as opposed to the front-end “regulatory” approach that has them so flummoxed.  If an individual wishes to own firearms, then if those firearms “get loose” and cause harm perhaps the owner should be strictly liable, at least civilly, without any burden thrust upon the aggrieved to prove negligence.

Placing that burden on a gun owner is certainly not any more onerous than was my effort to build a corral that would have probably restrained an elephant, maybe even a rhinoceros or two.


Stephen E. Smith II, BA (Amherst College), JD (University of Minnesota)                                  June 2018