The Marjory Stoneman Douglas High School carnage of February 2018 is yet another appalling tragedy that occurred in the United States due to the current regulations on the commercialization of assault weapons.
Seventeen people – children and adults – were killed when the 19-year-old Nikolas Cruz entered the high school armed with an AR-15 rifle and multiple magazines. He was formerly a student at Douglas, who had been expelled for disciplinary reasons and had reportedly been receiving treatment for mental health issues. Sadly, the dynamics of the attack followed a usual pattern to which we have become accustomed.
As reported by a Mother Jones’ Investigation, 25 mass shootings occurred in the United States only from 2015 onwards. The list of similar tragedies is long and death toll appalling. Just a few months ago, in October 2017, Stephen Paddock opened fire on a crowd of 22,000 concertgoers in Las Vegas killing 58 people and injuring almost 500.
These numbers constitute conclusive evidence per se. As Christopher Murphy, senator for Connecticut, rightly pointed out: “This happens nowhere else other than the United States of America. This epidemic of mass slaughter, this scourge of school shooting after school shooting. It only happens here not because of coincidence, not because of bad luck, but as a consequence of our inaction. We are responsible.”
The right of ordinary people to keep and bear arms is protected by the Second Amendment to the United States Constitution as adopted on 15 December 1791. It is part of the first ten amendments included in the Bill of Rights that aimed at giving citizens more confidence in the government and contain many of today’s Americans most valued freedoms. The amendment reads as follows: “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.”
From a legal perspective, it is possible to limit constitutional rights where the enjoyment of such rights in an unrestrained way may end up infringing the fundamental rights of other individuals. As a matter of fact, constitutional values sometimes exist in disharmony. For instance, protected speech and publication may jeopardize the due process rights of criminal suspects. If this is true, nothing prevents the United States legislator from limiting the right of the people to keep and bear arms using an approach of balancing competing individual interests, where the unrestricted enjoyment of such a right may lead to serious infringements of fundamental rights of others.
Reasonable limitations of the right to bear arms should have both subjective and objective dimension. The former should forbid individuals who have not reached a certain age or have experienced mental health issues to buy or possess firearms; whilst the latter should forbid ordinary citizens to bear assault rifles, other automatic and semi-automatic firearms, as well as any device that could allow a weapon to mimic the rapid discharge of an automatic one (e.g., the so-called “bump stocks“). The use of such weapons and devices should be restricted to military and law-enforcement personnel. These limitations, where implemented, would not jeopardize the very nature of the right of the people to keep and bear weapons whilst, at the same time, the fundamental rights of the entire community would be safeguarded.
However, no effective legislation has been enacted by the U.S. Congress. Some limitations have been introduced only at state level. For instance, the General Assembly of Maryland enacted the State’s Firearm Safety Act of 2013 (FSA), which inter alia criminalizes the act of possessing, selling, transferring, purchasing, or receiving an assault weapon and detachable large-capacity magazines. In an interesting decision taken by the U.S. Court of Appeals for the Fourth Circuit (No. 14-1945) on 21 February 2017, the judicial body ruled that the FSA does not contravene the Second Amendment affirming that the court had “no power to extend Second Amendment protection to weapons of war.”
Support for stricter gun control laws has spiked in polls conducted after each mass shooting occurred during the latest years, hitting eventually its highest level in at least a quarter-century. At the present time, 68 percent of Americans are in favor of the adoption of such laws. One may wonder how it could be possible that in a democratic society the legislator remains inert where the vast majority of citizens are asking for intervention. This leads us to the first corporate social responsibility issue to be analyzed.
Irresponsible use of lobbying practices
The reasons behind such a situation, which appears, at first sight, paradoxical, lie in the irresponsible lobbying practices adopted by the gun industry. For decades, companies have opposed the introduction of any limitation to the commercialization of firearms. Such a strategy has been pursued openly but mainly through the actions of the National Rifle Association of America (NRA), which is an American non-profit organization which advocates for gun rights and is considered as one of the top three most influential lobbying groups in Washington, DC. The organization’s overall revenue, which includes membership dues, program fees, and other contributions, has boomed in recent years – rising to nearly $350 million in 2013. In particular, the organization constantly receives millions of dollars in donations from corporations and, although it is not required to disclose the names of its contributors, some major gunmakers like Smith & Wesson and Sturm, Ruger & Company, MidwayUSA, and Beretta have revealed large donations in the past. A glaring example of how the NRA uses this money also to manipulate public opinion is represented by the advertisement film “Trigger the Vote” starring Chuck Norris, which tried to instil in the minds of American citizens the idea that: “the Second Amendment is under attack like never before, and the best way to protect it is by exercising your right to vote.”
Moreover, American politicians are becoming increasingly vulnerable to lobbying practices because of the historic US Supreme Court decision Citizens United v. Federal Election Commission, which prevents the government from setting limits on corporate spending for political advertising allowing groups and individuals to back – or attack – candidates. In an inspiring speech published online by the New York Times on 9 October 2013, President Obama underlined how, as a consequence of the more aggressive corporate lobbying, “ordinary Americans are shut out of the [political] process.”
As a result, it is not surprising that, although in 2017 the NRA spent at least $4.1m on lobbying, most of its influence currently stems directly from the supreme court’s Citizens United decision. The NRA bet big on 2016’s presidential election, making independent expenditures worth $53.4m and obtaining extremely positive results (the NRA poured $14.4m into supporting 44 candidates who won and $34.4m opposing 19 candidates who lost).
It is such a misuse of corporate wealth and power that induces American leaders to act even contrary to prevailing public opinion. This is a burning issue that can be resolved only through the direct intervention of the legislator establishing, for instance, a greater level of transparency in corporate lobbying practices.
Absence of corporate social responsibility solutions
In such a situation of impasse, where the adoption of effective legal instruments to limit the commercialization of firearms still appears to be a distant mirage, are the corporations themselves that have to assume social responsibility for their own actions and operate accordingly. The adoption of corporate social responsibility solutions is a matter of paramount importance where state regulation is ineffective and cannot safeguard the interest of the community. If it sounds utopian to expect that the gun industry itself would adopt such solutions, they could be effectively implemented in other parts of the supply chain that are less involved in the above-mentioned political strategy.
For instance, distributors, which sell a wider range of products, can voluntarily decide to adopt initiatives to limit the commercialization of certain firearms to individuals at risk. As a result, the circumstance that two of the nation’s leading gun sellers – Walmart and Dick’s Sporting Goods – adopted a voluntary corporate social responsibility measure consisting of limiting the sale of any gun only to customers over 21 years of age, has to be warmly welcomed. Such initiatives can be extremely beneficial for the involved corporations, which will compensate for the lower sales of firearms with an enhanced corporate reputation that can be an additional source of competitive advantage.
Another fundamental role can be played by large investors and private equity firms, which could use the threat of selling the stocks as leverage to foster a more socially responsible corporate behavior. Emblematic has been the BlackRock CEO’s letter circulated in January 2018. In the letter, Larry Fink rejected Milton Friedman’s shareholder-primacy governance and embraced sustainability and stakeholder-focused governance as supported by scholars like R. Edward Freeman. Following a similar path, in the aftermath of the carnage, Cerberus Capital Management, a U.S. private equity firm, said it is to sell its stake in the maker of the AR15-style rifle used in the Newtown school shootings.
The adoption of such corporate social responsibility measures has to be widely praised and encouraged. It is the demonstration that, even if slowly, the challenging work that many academics, political activists, and industry experts have been doing for the last two decades to foster good corporate governance is eventually showing its first positive results.
It is a shame to learn that the United States are not able to safeguard its citizens. If the second amendments of 1791 cannot be amended then the American government have failed its own citizens. I feel strongly that it all come down to “only the voice of the Rich can be heard” also because of the gun industry secret lobbying. It is for sure that the fight to amend the second amendments would continue so that the lives of common citizens can be protected even though the government refuses to listen.
In response to the Marjory Stoneman Douglas High School carnage of February 2018, Florida legislature has enacted today the Marjory Stoneman Douglas High School Public Safety Act (hereinafter the Act).
In the Senate Press Release, the piece of legislation is depicted as a “comprehensive approach to addressing the issues presented by the tragedy at Marjory Stoneman Douglas High School in Parkland” (http://www.flsenate.gov/Media/PressReleases/Show/2882). In reality, although the intervention of the Florida legislator has to be welcomed, it seems yet another missed opportunity to deal with the burning issue of mass shootings in an effective way.
Once again we must ask why a straightforward ban on the commercialization of assault and semi-automatic firearms has not been introduced, and once again the reason appears to lie in the pervasive influence that the gun industry exerts on politicians through the use of irresponsible lobbying practices.
The fact that lobbying arm of the gun industry – the National Rifle Association (NRA) – has decided to sue the state of Florida after that the law was passed is emblematic of such a pervasive and irresponsible use of its corporate wealth and power. From the NRA’s perspective, “this bill punishes law-abiding gun owners for the criminal acts of a deranged individual.” Specifically, the NRA suit focuses on the part of the law that raises the minimum age to purchase a firearm to 21 from 18 (https://edition.cnn.com/2018/03/09/us/nra-sues-florida-gun-law/index.html).
In reality, the Act is far from establishing what is really needed to protect the community from future mass shootings.
The Act establishes three subjective limits to the commercialization of firearms.
Specifically, “A person who has been adjudicated mentally defective or who has been committed to a mental institution […] may not own a firearm or possess a firearm until relief from the firearm possession and firearm ownership disability is obtained.”
More interestingly, the Act provides that a law enforcement officer or a law enforcement agency may file a petition with a court to obtain a “risk protection order,” which is aimed at forbidding an individual that “poses a significant danger of causing personal injury to himself or herself or others” from having, purchasing, possessing, or receiving a firearm. Any act of breaking the order is punished as “a felony of the third degree.”
Similarly, the Act provides that “a person younger than 21 years of age may not purchase a firearm” and that “a person who violates this subsection commits a felony of the third degree.”
The Act establishes only one objective limit to the commercialization of Bump-fire stocks providing that “a person may not import into this state or transfer, distribute, sell, keep for sale, offer for sale, possess, or give to another person a bump fire stock. A person who violates this section commits a felony of the third degree.”
The Act also introduces safety measures imposing a mandatory a waiting period between the purchase and delivery of a firearm. The mandatory waiting period is three days or expires upon the completion of the records checks necessary to verify if a person has been adjudicated mentally defective.
Finally, the Act establishes also several school safety initiatives. Among them, the Act provides the possibility of employing armed “school guardians” who have “no authority to act in any law enforcement capacity except to the extent necessary to prevent or abate an active assailant incident on a school premises.” The statute expressly establishes that ” individuals who exclusively perform classroom duties as classroom teachers” cannot become school guardians.
Although the importance of the adoption of the Act has not to be underestimated in that it represents evidence that change is happening, still this intervention does not seem adequate to safeguard the community for further mass shootings.
What is missing here, again and again, is the political will to forbid ordinary citizens to bear assault rifles, and other automatic and semi-automatic firearms, whose possession should be restricted to military and law-enforcement personnel.
As it has been introduced, the safety net established by the statute presents major flaws. An attack could be easily conducted by someone that is affected by mental disorders or is a fanatic or a radicalized individual but has never been formally adjudicated as mentally defective. The statute offers no protection against such types of attacks.
Moreover, besides the fact that the school “militarization” program seems a paradoxical solution that will result in more firearms to be put into circulation, it will not prevent mass shootings to take place in other vulnerable contexts such as movie theatres, concerts, discos, churches and so on.
Some interesting articles to keep following this story:
Courtney Weaver, “Donald Trump drops call to raise age limits on assault rifles,” Financial Times, 12 March 2018 (https://www.ft.com/content/c6133f0e-261e-11e8-b27e-cc62a39d57a0).
Courtney Weaver, “US backs firearm training for ‘qualified’ school staff,” Financial Times, 12 March 2018 (https://www.ft.com/content/b593547e-2584-11e8-b27e-cc62a39d57a0).
Andrew Edgecliffe-Johnson, “Consumers force business to take stand against NRA,” Financial Times, 2 March 2018 (https://www.ft.com/content/3be54770-1e2e-11e8-aaca-4574d7dabfb6).
Andrew Edgecliffe-Johnson, “More US companies cut ties to NRA after school shooting,” Financial Times, 25 February 2018 (https://www.ft.com/content/89eef560-1983-11e8-aaca-4574d7dabfb6).
“Why the Second Amendment does not stymie gun control,” The Economist, 20 February 2018 (https://www.economist.com/blogs/economist-explains/2018/02/economist-explains-14).
The new Marjory Stoneman Douglas High School Public Safety Act has some welcome elements that really should have been implemented from 2015 , when the mass shootings started, according to the ‘Mother Jones’ investigation. An example being that full checks will be made on anyone purchasing a gun of any sort, alongside the delay in receiving that gun. This is long overdue and does not address the millions of Americans who already own guns. How can their mental state be monitored? Records should also be kept on all owners of guns and whether they have been trained to use them or not.
However, as you say Costa the Act does not go far enough, rifles and automatic guns such as the ‘Bump stock’ should be limited to Army or police officials exclusively and should not be sold in local gun shops at all. It is also pleasing to see they are looking at more security in schools, rather that just arming Teachers, which was suggested by Donald Trump.! It should be more about prevention. I am sure Parents would not mind being searched on entrance to schools in the interest of safety for all for example.
What really needs to be addressed is the pressure that Lobbying groups weald over Congress. Can they be regulated to ensure that they are not acting against the best interests of the American people? Corporate social responsibility and Governance is sorely needed regarding these lobbying groups, who pump finances into achieving outcomes that benefit themselves rather than general public.
The issues, and the questions raised in this article are very interesting and still relevant almost one year after the article, especially as multiple news sources seem to confirm that school gun violence in 2018 was higher than ever. One of the main problems in the USA, as mentioned in the article, seems to be the corporate powers at work in federal and state affairs regarding weapons legislation due to lobbying.
The struggle for raising corporate social responsibility is daunted by current regulations such as the Protection of Lawful Commerce in Arms Act of 2005, which strongly suggests gun lobbyist influence, that prevents anyone from holding a weapon manufacturer or arms distributor liable for crimes committed with their products. Before this law was passed, manufacturers might have been held liable by individuals, but also by cities and states for introducing products such as ‘bump stocks’ to the general public, but that door is now closed.
In 2017, another important piece of legislation came through Congress: the Concealed Carry Reciprocity Act. Through this Act concealed carry permits allowing the holder to carry weapons in public as long as they are concealed, must be acknowledged as valid in every single State, regardless of that State’s own regime regarding concealed carrying. If e.g. a person receives such a permit under the laws of a State in the US with loose criteria, that person is still allowed to carry weapons in a State with stricter criteria, rendering those stricter State regimes almost useless.
These examples underline the apparent influence of lobbying groups on the federal Congress in the United States, where the interests of the general public and the independence of the individual states seems to be disregarded for the benefit of the few, as Betty pointed out in her comment. How can/will the US tackle corruption within the legislative bodies caused by this corporate irresponsible behaviour but also, how can such strong lobbyist influence be made more transparent and how can it be ‘disarmed’ within the (federal) political environment?
Gun laws such as they are, are not the problem. The Miami Herald the Sun-Sentinel and others have all done good jobs in documenting how federal, state, and local authorities either failed to enforce the law or simply refused to deal with Nikolas Cruz in an efficient and timely manner. According to reports, police visited Nikolas dozens of times, and people had warned the police that Cruz had threatened people with guns before, even going so far as to point them at their heads. After the FBI got tips about Cruz, these were not forwarded to the proper local authorities and the policies in place to deal with these tips were not followed.
It has also been reported that in 2016 following a breakup with his girlfriend, Cruz cut his arms on Snapchat and said he wanted to buy a gun. Had Florida followed the Baker Act – a Florida law that allows people with mental illnesses to be held involuntarily for up to 72 hours in a mental health treatment facility if they meet certain criteria – then Cruz would most certainly have been barred from ever purchasing firearms because this would have shown up on his background check.
What we have here are not inadequate gun laws but the proper authorities failing to exercise their duties.
My condolences for the victims, this is very heartbreaking, gun violence is an urgent issue, the government must be able to overcome the high rate of shootings in schools, one of which is to strengthen the gun law, research published in JAMA Internal Medicine in early March found that strong firearms laws in a state, such as background checks for all private sales and restrictions on multiple purchases, were associated with lower rates of gun homicides. Gun violence, especially in the case of school shootings, is also very closely related to the psychological state of students. The most consistent and strong predictor of future violence is the history of violent behavior, psychological aspects can make an important contribution to policies that prevent gun violence.