ULTIMATE RANT | Hold Gun Dealers Accountable for the Actions of Their Guns

rant_FeatBy Allison Perry | 6/16/16

Last Sunday morning, during our collective morning yawns, many of us read about yet another mass shooting, this time in sunny Orlando at a LGBT nightclub. As of right now, the death toll stands at 49 (not including shooter Omar Mateen), making this the deadliest mass shooting in modern U.S. history.

I couldn’t care less how you skew politically, religiously, sexually, or what your personal analysis of the Bill of Rights is: if this doesn’t make you feel something akin to rage, frustration, sadness or hopelessness, you’re not a human being.

And if your first reaction was to jump on the defensive and think “Well, s*it, now the gun police are really going to start a racket,” I think you need to go back to school and maybe have a sit-down with every single person whose daughter, son, mother, sister, brother, niece, nephew, best friend or spouse died at the hands of a gunman wielding some kind of bullet-spraying assault weapon this past decade.

So what do we do?

This is going to make me relatively unpopular in the gun-loving state of Colorado, but I am a staunch, wholehearted, all-in kind of supporter of gun control. No, I do not think all guns should be illegal. No, I do not think the government should storm our houses and forcibly remove all our weapons.

I also don’t think it should take an enormously long time to get a weapon if you’re a sane human being with no felonies on your record. However, if you’re a sane human being you’d just put up with extended background checks and longer waiting periods as the rest of us sane people do for, oh, say, everything involving the DMV, passports, getting cleared for certain jobs, etc.

We need better gun control. And we need to come down with a sledgehammer, spread it thick, and scare the s*it out of anyone who has ever sold or thought of selling any kind of military grade firearm to a civilian.

Before I continue, let’s get a couple of the absolute DUMBEST arguments against better gun control out of the way.

1. The people who really want those kinds of guns will get them from the black market anyway.

Ok. Maybe you’re right. So…how about we make heroin, meth, crack and all forms of prostitution legal, just to name a few. Drug addicts will get drugs from somewhere, whether they’re legal or not. People who can’t get laid on their own are going to find somewhere to pay for sex, whether it’s legal or not. Let’s just stop trying.

I actually believe both drugs and prostitution should be legal in the interest of curtailing violence and enhancing public safety, but for the purpose of this piece that doesn’t matter. What matters is that the government and the people identified things they believe to be a threat to our well-being on a physical, financial and moral level and made those things illegal despite the existence of the black market and the reality that people would obtain these things anyway. Guns are no different.

However, because guns are such lucrative business and the NRA has enough money and therefore clout to sway the political process, what we see is that the very same Republicans who would tout public health and safety don’t want to lift a finger to address the very real threat to public health and safety that is at bare minimum exacerbated by our lax gun laws.

Why is that? Because they have to appeal to the ignorance of half the populace in order to get elected.

Err. Did I just say that out loud? I meant…because they’re such staunch supporters of the Bill of Rights!

But…one little problem…we all have a 14th Amendment right not to be deprived of our liberty without due process of the law. Doesn’t killing ourselves with drugs fall under the penumbra of “liberty”… as long as we don’t hurt anyone but ourselves? Doesn’t using our bodies to earn money by willingly engaging in sex fall under some kind of personal liberty everyone must have?

Doesn’t my liberty to terminate a pregnancy count as, well, a liberty?

I suppose the framers of the constitution only intended that the Second Amendment be strictly construed and upheld without an eye on changing norms in society for all of the rest of eternity. Those other pesky amendments – you know, the ones that guarantee freedom of speech and religion, due process, equality – those are clearly subservient to the ever-relevant and always crucial Second Amendment.

2. Why do I have to pay for the mistakes of a few bad apples. I have a right to whatever guns I want and I want them NOW.

Well, how about driving laws?

Think of what we go through to get a driver’s license. It takes months. There’s driver’s ed, driving class – you know, to learn how to properly use the multi-ton deadly weapon underneath your body capable of killing many people all at once with very little effort – lectures from state troopers and MADD moms and then you take a written test, a vision test and a driving test and if you don’t pass you wait even longer.

We accept this because there’s absolutely nothing we can do about it, but also because many of us actually understand that driving is inherently dangerous and can (and does) cause a lot of harm, injury and death.

More importantly, consider DUI laws. I’m willing to bet many of us can drive perfectly safely after a beer or two. But guess what? If you get caught you’re getting a DUI. Know why? Because too many people can’t drive after any amount of beer and many, many people have died because of those people. That’s how the law works. The law is blind. As in blind to whatever personal conveniences you have to sacrifice for the good of society as a whole.

So…how are guns any different?

We’ll jump through hoops when we’re 16 years old to be able to drive, but as adults we can’t wait a little longer to get our guns? And, to boot, we have to have the option available to own weapons that were invented solely to mow down a bunch of humans at once – because they’re fun to shoot? Or because we are paranoid that we might need them when the zombie apocalypse comes?

Are you fucking kidding me?

3. We need guns to protect ourselves from the crazy people with guns.

This has been so statistically disproven and is such a load of bulls*it I’m not even going to dignify it with a real response. Patently false.

4. The same violence will still be achieved by other means: bombs, knives, regular guns, karate, etc.

Again, this argument is fatally flawed unless you are James Bond, Chuck Norris or any character Harvey Keitel has ever played in a Tarantino film. How many mass bombings have you read about recently in this country? It’s a lot fewer than mass shootings. And I’m not an expert shot, but I’m guessing it’s much, much harder to kill as many people in as short a period of time with a good old fashioned handgun or hunting rifle.

It’s fine to say that people could still purchase assault weapons illegally, but that should not stop us from trying as hard as we can to make it harder for the wrong people to get them legally and to step up efforts to combat illegal sales.

So here’s what I propose.

Assault weapons should be banned. I don’t think the federal government should send troops to sweep through everyone’s homes and forcibly take their assault weapons. I think the government should pass legislation making it illegal for citizens to own or purchase one and should then institute a national buy-back program that incentivizes sane and law-abiding people to get some cash in exchange for their assault weapons (and other guns if they just want to get rid of those too.)

This is not a Second Amendment issue. Assault weapons did not exist when the Constitution was written. You know what they had? Muskets. With fucking bayonets. Do you have any idea how long it takes to load those things? The framers couldn’t even have comprehended the ease in which we’d be able to topple innocent people like dominos with a little shoulder strength and the flexion of an index finger, nor did they imagine we would be turning these weapons on innocents far more routinely than we’d be taking up arms to fight an oppressive tyrant or a formidable enemy on our own soil.

Assault weapons, like the AR-15 used to gun down 49 people early Sunday morning and 20 children at Sandy Hook Elementary School in 2012, are for one thing only – as Justin Peters, a Slate correspondent wrote: “Engaging the enemy at a rapid rate of fire.”

Yet according to Slate, the NRA’s official stance is that the AR-15 is primarily used for “hunting and home defense”.

I had trouble reading this without screaming. In fact, I would scream. But I’m in a library right now. This has to be some kind of joke. I know a lot of hunters and not a single one of them feels the need to spray elk, deer or moose with a hailstorm of bullets to ensure killing as many as possible, or just one.

And home invasion? Just how many burglars do you think are flying through that door to steal your belongings and rape your wife? I’ve never heard of a case where 20 burglars bum-rushed a house. Since home invasions usually involve people trying to evade the law and, necessarily, not draw attention to themselves, I’m pretty sure they travel in small groups and could be put off quite easily with a normal fucking gun.

I’m also under the (I believe correct) impression that fending off a would-be burglar with an assault weapon would put not only your family in danger because the bullets are going to be flying around everywhere, tearing through walls and possibly the flesh of the very people you are “protecting,” but would also endanger your neighbors and anyone who happened to be walking by.

Assault weapons exist to kill large quantities of humans. And the only people who ever need these weapons for anything are in the military. Period.

As such, any civilian who requests to buy an assault weapon can be presumptively assumed to need it for one reason and one reason only. And for that reason, they should not be allowed to have it.

The only exception in my book would be if Trump becomes president. Then we should let the Mexicans, all women and probably all minorities own assault weapons in the true spirit of the Second Amendment, because there would be a chance that the government might try to invade their homes and wage war on them.

That said, I understand that I live in a country that is too sick and too far gone to ever realistically hope for a ban on assault weapons, so how about this: let’s use sanction-based legislation and go after the problem at its source – sellers.

Perhaps the law would have to change first. So be it. If we can’t expect to see our government push legislation through that would at least extend background checks, ban all those on federal watch lists from buying firearms or ban assault weapons, let’s give the gun sellers ample incentive to make sure via their own means that they’re not selling a deadly weapon to the wrong person.

Perhaps if we put their liberty at stake based on the actions of another person, they will go above and beyond in vetting these people, whether the law directly forces them to or not.

The law is rife with examples of when we are allowed to hold a person equally accountable for the actions of others, such as the felony-murder rule, vicarious liability and accomplice liability.

If a getaway driver for a bank robbery can go to prison for murder when he never knew his co-felons had guns or were planning on killing anyone, and he never set foot in the bank (felony-murder), why can’t we hold gun dealers similarly accountable? Shouldn’t failing to take adequate safeguards when selling a deadly weapon be considered recklessness, negligence, or a crime?

We also routinely punish people for helping aid criminal and terrorist activity, particularly when the activity is so widespread that its malignancy is considered of special concern. Look at the Racketeer Influenced and Corrupt Organizations Act (RICO) – a federal law that allows prosecution and civil penalties for racketeering activity performed as part of an ongoing criminal enterprise – or many of the laws that have been passed under the umbrella of counterterrorism.

I’m not generally a believer in levying the threat of extremely disproportionate sentencing and punishment as a means of deterring crime, but in this situation I’m making an exception.

Let’s hold gun dealers accountable for the actions of their guns.

Here’s how this might work. If you, dealer, sell a gun of any kind, but especially an assault weapon that is then used in an intentional mass-casualty shooting (not against zombies – killing zombies is okay), you are on the hook for the same crime as the shooter. And guess what, dear gun dealer. As seems to be the pattern in these cases, the shooter is probably going to be dead and society is going to be looking for someone to pay for the bloodshed. And that’s going to be you.

How about we draft a new law or extend an existing law to say that any time a dealer sells a firearm, particularly (and maybe only) an assault weapon, it is reasonably foreseeable that a similarly situated and reasonable gun dealer should assume that this weapon might be used in exactly the way it is intended. Given this foreseeability, the gun dealer is tasked with the burden of taking all steps necessary to prevent this.

Doesn’t seem fair, does it?

Poor gun seller who is just trying to make some money. It’s not his fault the loopholes don’t require him to obtain an adequate background check or take any steps to ensure he’s not selling a gun to any “sketchy” individual. If he “did everything he was required to do”, why should he be punished? Additionally, how can we hold someone culpable for a crime he didn’t himself commit? How can we punish him for so long?

Well, we do this all the time. Aside from felony-murder examples, we hold people accountable for the actions of co-conspirators to the tune of whatever those carrying out the conspiracy will receive as a sentence if they’re caught.

Under RICO we extend legal and civil penalties for anyone involved in organized crime, particularly those who ordered crimes or participated from afar. Under the Patriot Act, sentencing for terrorist acts was enhanced and the statute of limitations was removed.

What we see here is the law’s willingness to use enhanced punishment as deterrence and to extend the scope of certain laws to capture people who could previously claim they were not culpable because they didn’t carry out a criminal act themselves.

One glaring problem of holding gun sellers vicariously and criminally liable for acts attached to the guns they sell is the fact they might never have had the intent to kill someone. But we already hold people liable in certain situations for crimes they did not intend to be committed, such as felony-murder, homicide while intoxicated or under duress and DUIs.

When combining theories from all of these laws and examining why they are in place, holding gun dealers – particularly private sellers – liable for selling their guns to the wrong person doesn’t seem farfetched at all, even if it isn’t really fair.

I don’t know about you, but if I were selling a few AR-15s and I knew selling them to the wrong person might land me in prison, I’d be asking for criminal records, eight forms of ID, three references, medical records and if even a hair on a buyer’s head looked wrong I’d refuse to sell the gun. I might even require an independent psych evaluation.

I’d probably also figure out a way to check FBI databases to find out if they’ve ever been on a watch list or labeled a “person of interest.” Perhaps Omar Mateen would not have been so successful had whoever sold him his weapon “legally” thought to take a few extra steps before releasing the weapon to this dangerous, dangerous person.

Perhaps if this gun dealer was forced to have a personal interest in ensuring his buyer was legit, s/he would also have taken the necessary steps to find out that Mateen had a history of domestic violence in addition to having been suspected of terrorist activity by the F.B.I. for a certain period of time.

I’m also a believer in gun sellers being able to access medical records, or at least ask for them, to make sure they’re not selling a weapon to someone who is mentally ill.

And if you’re going to cry me a river about how medical records and certain information is nobody else’s business, go for it. If you want that gun badly enough, you’ll relinquish a little bit of your privacy to get it. 

Sure it’s inconvenient and a little embarrassing. But you know what’s more inconvenient? Having your loved ones shot to pieces.

And to anyone who complains about increased waiting times to purchase a weapon? If you were here I would punch you right in the face. We wait for everything. All the time. Deal with it.

So how do we implement this scenario?

Well, how do we implement any program aimed at curbing violence through stricter regulation and oversight? We throw more money at it, perhaps create a new bureaucracy or task force, beef up the Bureau of Alcohol, Tobacco, Firearms and Explosives (perhaps we could redirect some of the wasted money we spend fighting drugs or useless wars abroad), get more law enforcement on the ground, hire compliance officers…I don’t know. But we’ve figured it out for the war on terror, the war on drugs, the war on illegal immigrants, the war on abortion, the war on transgendered people in the wrong bathroom (well, maybe not that…).

And the black market? See above. When has the existence of a black market ever stymied our attempts to fight against something the government decides is morally unacceptable and a threat to our country’s health and safety? Exactly never.

I don’t know what the definitive solution to this problem is. But I know the time to do something, anything, was probably way back when Dylan Klebold and Eric Harris got their hands on a bunch of guns and opened the door to this particular malignancy that continues to rot our country from the inside out.

Whatever you think, don’t forget that the piece of paper the NRA and gun-nut Republicans are hiding behind was written with a changing society in mind and that the overriding purpose of the Bill of Rights was to guarantee freedom, equality and due process to everyone in this country.

As such, the Second Amendment cannot and will never supersede the fundamental right we all have to continue be alive and not to live in constant fear of an enemy so insidious we don’t even know it’s lurking in the shadows until it’s too late.

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About the Author

Allison Perry

Allison Perry was born and raised in New York City and earned a BA in Political Science from The University Of Wisconsin - Madison and a JD at Case Western Reserve University School Of Law before moving to Alaska with the hopes of becoming the next Unfrozen Caveman Lawyer. Although she went so far as to pass the Bar Exam in Sarah Palin's playground, she became disillusioned with law and decided to pursue her dream of becoming a journalist and a photographer. She moved to Colorado in 2010 and after a few years ski-bumming and retailing, she was finally able to transform her freelance writing into a full time career at The Watch. Allison believes local journalism is an essential part of living in a small town, and strives to write objectively, in plain English, with a critical eye and a dash of sarcasm here and there. She is stoked to be a part of the San Juan Independent.