Thinking Sensibly About Guns

James L. Robertson

Article by James L. Robertson Featured Author


I know a thing or two about guns because I've seen thing or two. The same goes for gun rights and regulation.

Unlike many of my friends back in Greenville and the Delta, I did not grow up around guns. My non-school hours growing up were consumed with the organized sports, baseball and then basketball.

What I know about guns begins with the summer of 1961. I had been in Army ROTC while a student at Ole Miss, still playing a lot of pick-up basketball in the gym now known as Martindale. Six weeks of summer camp at Fort Benning, Georgia, loomed large, before my senior year in college. Learning everything there was to know about the M-1 rifle was going to be a big part of that experience.

I was nervous at first. I didn't know much about the use of rifles. But I got to where I could take an M-1 apart and reassemble it about as fast as most. We were assured this was a life-saving skill if you ever got into combat. [Yes, we'd heard the M-14 was about to take over but rookies like us would have to earn our spurs first with the WWII-style M-1]. Then came the rifle range. After training and practice runs, our exam was lying flat on the ground with that M-1 and plenty of ammo. Popup "aggressors" would appear suddenly, at irregular intervals, and widely differing distances, near and far, differing angles left then right. You had two seconds at most to bag the "aggressor" [of course, before he got you].

Long story short, I shot "expert." That was fun. Any angst about my inexperience with guns vanished. I can do this!

As fate would have it, I soon washed out of Army ROTC. I had developed an arthritic condition in both hip joints. Can't honestly say I was disappointed when I came to understand that this meant no visit for me to Southeast Asia at the Government's expense in the mid-to-late 1960s.

I was admitted to the bar in 1965. Over the years that followed I had many and varied — and many quite serious — learning encounters involving guns. Thanks to the famous SCOTUS decision in Gideon v. Wainwright, I was appointed to defend lots of persons charged with crimes. More than a few of these involved gun violence.

I came to know a number of law enforcement officers. My father was good friends with two successive chiefs of police in Greenville. That opened doors. The husband of a lady who worked in our law office was married to a police detective. We became friends. I came to know and visit socially with the chief criminal deputy sheriff in Washington County. And more than a few others.

In time I became aware of an important insight. Many instances of criminal activity involving gun violence occurred when both shooter and victim were armed. I was told by more than one cop, "you can recover from a robbery, but not from a homicide," or words to that effect.

The drug abuse era began and reached Mississippi. Not so much as advice, but just in talking, experienced police and law enforcement friends would tell me, if you encounter a person "high on drugs" who is armed, nothing could enhance your own danger more than for the druggie to know that you are also armed.

I became more involved in criminal defense practice, though with an otherwise small town law firm. More exposure to tragedies wrought by guns.

Also, through much of the 1970s, again while I was still practicing law in Greenville, I defended a number of prisoner damage suits brought against the state penitentiary board, top officials at Parchman and guards charged with prisoner abuse. These experiences culminated in Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978).

I learned a lot in that decade. I was on the side of the prison officials, working with lawyers from the state Attorney General's office. I got to know every walk of life in the Parchman hierarchy, from superintendent down to trusty guards and more than a few prisoners.

The most surprising lesson there was that no prison official carried a gun. I asked about this and was assured that no prison official in his right mind would pack a weapon inside the prison. His and others' lives would be in great danger if he carried a gun.

I became involved in the post-conviction proceedings in capital murder cases. Often the victim had been armed, even well trained in the use of firearms. He was still dead. See Bell v. Watkins, 692 F.2d 999 (5th Cir. 1983); Jones v. Thigpen, 555 F. Supp. 870 (S.D. Miss. 1983).

It was my privilege to serve on the Supreme Court of Mississippi for close to ten years (1983–1992). I was challenged to study and understand many instances of gun violence, and in a wide variety of contexts. Views that I had picked up along the way were reinforced.

In many homicide cases I saw as a judge, the victim was armed or at least had done something that threatened the defendant. I recalled the street-smart good sense of cops I had known. Again, you can survive a robbery, but not a homicide.

Fast forward. Most people have heard about the 2008 SCOTUS decision in the Heller case.1 There are ironies here.

For one thing, the decision was far from ordained by the text of the Second Amendment. Given the penchant of so many to argue that the meaning of the Constitution should be a function of the "original understanding" of the Founding Fathers, many objective lawyers thought the decision likely to go the other way.

Textualists argue that all clauses and phrases of a legal document must be given meaning and effect. This is so whether the document be a will, a contract, a statute or a constitution. The Second Amendment begins with two important phrases, viz., "a well-regulated militia," and "the security of a free state." These are core concerns expressed by the constitutional draftsmen.

The tenor of the times, 1789 variety, was a function of the problems colonists had with the British leading up to and during the Revolutionary War. A secondary threat was the perceived danger from hostile Native Americans. No fair-minded lawyer can deny that these ideas dominate the original understanding of the Second Amendment.

The second irony is that pro-gun political action has been so much more passionate in the ten years since Heller than it ever was before. But the gun lobby won in Heller. Any objective court watcher surely knows that the chances of Heller being watered down anytime soon are the proverbial "slim and none." Some people just won't take "yes" for an answer.

Third, I have heard otherwise sensible persons passionately defend their Second Amendment rights, with no apparent clue that the state constitution gives them far greater rights. "The right of every citizen to keep and bear arms in defense of his home, person or property … shall not be called into question." Miss. Const., Art. III, § 12. No such wording appears in the Second Amendment.

Some lawyers seem unaware as well that as a general rule states are free to grant and enforce personal rights, more favorable to the citizen than anything found in the U. S. Constitution. State Constitution Section 12 does that.

Lastly, you've heard the line, "if guns are outlawed, only outlaws will have guns." Horsefeathers! If gun access is sensibly restricted consistent with the state constitution, common sense suggests a lot fewer outlaws will have guns.

Discussions of gun rights these days generally yield more heat than light.

As fate would have it, mass gun violence has become a part of the American experience. The first I recall was the Texas Tower shooting in 1966 where a lone rifleman took 17 lives.

Everyone of my generation was stunned by the almost back-to-back assassinations of Martin Luther King and still boyish Bobby Kennedy in the Spring of 1968. And by the 1981 attempt on the life of President Reagan, albeit unsuccessful.

It came closer to home in 1997. Young Luke Woodham, a student at Pearl High School in Rankin County, shot and killed three and wounded seven others.

In 1999, Columbine High School in Littleton, Colorado was in the headlines with the tragic news of two senior class students, Eric Harris and Dylan Klebold, killing more than a dozen and wounding many more. They had knives as well as their firearms.

In 2007, some 33 persons were savagely gunned down at the Virginia Polytechnic Institute in Blacksburg, Virginia.

The list goes on. You know it as well as I do.

For some time, enough has been known to greatly curtail mass killings, even if never eliminated altogether. Real background checks for gun purchases. Few have legitimate need of assault rifles.

We tolerate intrusions into our personal liberties at airports and in other group settings. We know our safety and the safety of others depends on it. Common sense suggests stricter scrutiny of gun purchases. Yet many balk, and with fury.

Mental health professionals armed with increasingly sophisticated risk identification insights could have been provided, though there's way too much Monday morning quarterbacking here. More importantly, there's no known cure for a psychopath.

I've followed the coverage of all of the mass gun violence since Pearl High School and then Columbine. I've never seen a credible report from qualified professionals suggesting that any — not one! — of the perpetrators could have been "cured" with timely intervention before his rampage.

No reasonable lawyer has ever read Heller, much less Mississippi's Section 12, to preclude the strictest scrutiny of persons trying to buy rapid-fire, assault weapons. People like nineteen-year-old Nicholas Cruz.

Every constitutional right is subject to reasonable regulations as to time, place and manner. Every one. As with other rights, reasonable regulation of time, place, and manner is allowed.2

The police power of the state is an independent and alternative source of constitutional power to regulate the use of firearms.3 This is particularly important as the constitution squarely declares that "the exercise of the police powers of the state shall never be abridged." 4

One example of the exercise of this regulatory power is the statute providing that persons under the age of eighteen (18) years may not possess a firearm or other deadly weapon.5 This same regulatory power authorizes the legislature to increase the minimum age for possession of a firearm to twenty-one (21) years, should it decide to do so, or to twenty-five (25) years, for that matter.

The legislature has enacted an elaborate licensing scheme authorizing a person to have permission to carry a stun gun, concealed pistol, or revolver. The Department of Public Safety has been authorized to cooperate with the Federal Bureau of Investigation within the National Instant Criminal Background Check System.6

Permits are required before certain employees, such as bank guards, company guards, watchmen and certain others not sworn law enforcement officers, may carry "pistols, firearms or other suitable and appropriate weapons."7

Court clerks are required to keep records regarding certain persons with mental illnesses or intellectual disabilities and report promptly to the Department of Public Safety.8 Possession of arms by persons having been convicted of a felony is well regulated.9

Nothing in the Second Amendment, much less state Section 12, says we can't or shouldn't do more. A lot more. For starters, a person has to be 21 to buy a beer. Why not the same for guns? That's the easy one.

I know I do not have the power to stop gun violence in American society. Over time I have learned that the odds of someone being shot and killed in the course of a criminal activity are substantially reduced if the crime victim is not armed. To be sure, I might be killed. Some criminals still want to silence potential witnesses. The teaching of the law of averages is pretty clear. My chances are much better if I am unarmed, and don't do anything stupid.

Like many, I have been intrigued and quite interested that Richard Thaler was recently awarded a Nobel Prize for his research and insights in the field of behavioral economics. The third such prize in recent years. Thaler and others have proved that people are not nearly as rational actors as they think they are.

This insight holds in many contexts. Most people tend to follow the herd. Appearances and emotions affect our behavior more than reality and reason. Preconceived ideas are difficult to dislodge. And much more along these lines.

I am not aware that behavioral economics has dug deeply into gun use behavior, but I see no reason why its common sense insights do not apply. It is one of the lessons of life that passion and particularly fear often preclude rational thinking.

Why is it not plain common horse sense that, where both sides are armed, the one on offense is more likely to win? That arming some school teachers with concealed weapons is nuts?

We need light, not heat.

I have no beef with legitimate hunters, though it never occurred to me that hunting would be something I would want to do. I have wondered how anyone could enjoy killing an animal as beautiful as a deer with antlers. And why would anyone ever shoot a doe? Fish and fowl, fine. But a majestic mammal? Why? Unless one really needs that meat to feed one's self and family.

I do not recall being moved when my hunter friends would tell me the importance of thinning out the deer population in the Delta, without which there would be too many and lots of deer would starve. When I hear farmers complain that deer help themselves to soybean crops in the fields, I wonder why well-placed fences would not help substantially with this one. I rather suspect all of this is apparent for anyone stumbling upon the opinion I authored in 1985 in Pharr v. State,10 a deer headlighting case. Or the political cartoon in the Clarion Ledger the next day.

As I cascade towards 78 years old, I have many thoughts and reflections about matters that seem of genuine concern to others. I am as aware as any of the Mississippi gun culture. I dare say overall I have had a more varied experience with guns and gun violence than most others, though I've never been a hunter.

As a lawyer, I know my Second Amendment rights. I know my more extensive rights under state constitutional Section 12. Do we not all have lots of rights that for the most part we never wish to or need to exercise?

And so I offer only the silent witness of one, that long life can be lived, cherished and flourish without a gun anywhere to be found.

No, it's not that I've just been lucky, though everyone who lives to play in the fourth quarter has dodged a few bullets along the way.

I've long known the odds and tried to act accordingly.

  2. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1166 (Miss. 1987) (free speech); McLellan v. Mississippi State Bar Ass'n, 413 So. 2d 705, 707 (Miss. 1982) (commercial speech).
  3. Miss. Const., art. vii, § 190; see also, e.g., James v. State, 731 So. 2d 1135, 1137 (¶9) (Miss. 1999).
  4. Miss. Const., art. vii, § 190.
  5. Miss. Code Ann. § 97-37-1(2).
  6. Miss. Code Ann. § 45-9-103(2).
  7. Miss. Code Ann. § 97–37-7(1).
  8. Miss. Code Ann. § 9–1-49; see also, Miss. Code Ann. § 97–37-5(4).
  9. Miss. Code Ann. §§ 97–37-5; 97–37-7(1)(b).
  10. Pharr v. State, 465 So.2d 294 (Miss. 1985); see also my article Practical Benefits of Law in Literature, and Their Limits, 35 Miss. Coll. L. Rev. 266, 304–312 (2016).