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Backgrounder #2761 on Legal Issues

January 17, 2013

The Newtown Tragedy: Complex Causes Require Thoughtful Analysis and Responses

By and

Abstract

In responding to horrific crimes such as the massacre in Newtown, Connecticut, individuals, families, civil society, and possibly government must channel their concerns into effective measures that are consistent with the Constitution. As we try to make society safer and stronger, constitutional and complex cultural factors must be taken into consideration, and sound policy must be based on a serious study of the data and other evidence. Policymakers should avoid a rush to judgment on prescriptions that violate first principles, ignore the real root of these complex problems, or disregard careful social science research. Any federal government role must be limited and constrained by constitutional principles. The most important solutions lie at the state and local levels, in the community and within the family.

All Americans, from whatever walks of life and of whatever political or philosophical convictions, abhor the death of innocent human beings and had a visceral reaction of shock and pain to the killing of 20 schoolchildren and six staff members in Newtown, Connecticut, in December 2012. In responding to this attack, Americans must consider with great reflection and care how best to proceed, in a manner consistent with our laws and our traditions, to protect innocent lives.

First, we must identify the specific problems to be addressed involving school safety, mental illness, the cultural climate, and the misuse of firearms.

Second, we must analyze potential solutions to the specific problems identified, examining the facts and taking into account the costs and benefits of the potential solutions to ensure that sound judgment governs the emotions inescapably attached to the subject.

Finally, Americans must implement appropriate solutions in a manner that is consistent with the Constitution, including the Second Amendment guarantee of the right to keep and bear arms, the traditional role of the states in our federal system, and the central significance of family.

Making public policy is especially challenging in these circumstances. In responding to tragedies such as Newtown, concern must be channeled by individuals, families, civil society, and possibly government into effective measures that are consistent with the Constitution. Policymakers should not just do something to alleviate our sense of urgent responsibility without due consideration of its effects. Careful diagnosis of the full scope of the problem is essential. Complex cultural factors must be taken into consideration, and sober judgment about human nature is required. Constitutional principles and constraints, which are so vital to preserving our cherished liberties, must be observed. Not all problems can be solved with government action, and if government action is required, any federal action, including executive orders, should be consistent with our federal system of government, respect for state sovereignty, and the separation of powers.

Our Constitution was framed for a self-governing people, and effective constitutional responses will therefore transcend federal policy mechanisms. Policymakers should avoid rushing to judgment on prescriptions that fail to respect constitutional principle or to locate the root of the problems, some of which lie in complex cultural issues that are best addressed at the state and local levels or that lie beyond the reach of policy altogether—best addressed by families, religious congregations, and other institutions of civil society.

In addressing the topics of gun laws, school safety, mental health, and cultural issues, Americans should focus on the following principles:

Respecting the Right to Keep and Bear Arms: The constitutional right to keep and bear arms is an individual right that is fundamental to a free society, which depends, ultimately, on personal responsibility.

  • The Second Amendment continues to be an important safeguard of Americans' security.
  • Gun control laws do not correlate with decreased violence.

Preserving School Safety: Since a number of shootings have occurred on public school grounds in recent years, the safety of students on campus is a priority concern.

  • Decisions about school security are quintessentially matters that are the responsibility of state and local governments.
  • Community-level identification of and response to risks is essential.

Addressing Mental Illness: While there is no clear evidence that people with severe mental illnesses who are being treated are more dangerous than the general population, it is clear that some with severe illnesses who are not being treated are more dangerous.

  • Decisions about addressing the risks of school violence arising from mental illness are state and local responsibilities.
  • States can both reduce the risk of school violence and address mental illness humanely.

Addressing Cultural Issues: Citizens, parents, and cultural norms may be more important than anything else in working to prevent the recurrence of tragedies such as Newtown.

  • Family plays an essential role in developing thriving children and adolescents, and its role must be respected in policy and supported in communities.
  • Civil society institutions offer a first line of defense in building and maintaining safe and thriving communities.
  • The First Amendment's protection of freedom of speech means that it is up to individuals, families, communities, and corporations to make responsible choices regarding media production and consumption.

Violent episodes like that in Newtown shatter the well-being of a community and unsettle the peace of mind that Americans typically enjoy. Responses must seek to restore the protection afforded by the rule of law and a thriving civil society of individuals exercising their responsibilities as citizens and community members.

The Right to Keep and Bear Arms

The Second Amendment continues to be an important safeguard of Americans' security. The Constitution's Second Amendment 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."[1] In 2008, in D.C. v. Heller, the Supreme Court of the United States held that the Second Amendment protects a right of individuals to keep and bear arms, not just a right to arms only in service of a government-organized militia such as the National Guard.[2] In 2010, in McDonald v. Chicago, the Court held that this is a fundamental right that also applies against state and local governments.[3]

The Founding generation did not trust standing armies. As Justice Antonin Scalia noted in his majority opinion in Heller, English history is replete with instances in which monarchs "succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents," just as King George III tried to do with the colonists in areas he considered rebellious.[4] This provoked a reaction by the colonists, who invoked their well-established rights as Englishmen to keep their firearms.

The Revolutionary War, however, had made it clear that militia forces alone could not be relied upon to provide an adequate national defense, so the Founders decided to give the federal government authority to establish standing armies, including in peacetime. They recognized, though, that this posed a threat to liberty, especially in light of the fact that the proposed Constitution also forbade the states from keeping troops without the consent of Congress. While the Federalists and the Anti-Federalists debated whether federal control of the militia would take away from the states their principal means of defense against federal oppression, both sides assumed that the federal government did not and should not have any authority to disarm the citizenry any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Apart from the Second Amendment's role in deterring government oppression, however, the right to keep and bear arms has another purpose that is every bit as important and urgent today as it was at the time the Constitution was ratified: specifically, to enable American citizens to defend themselves against violent criminals. Even a model police force is not everywhere at all times, and response times for many police departments leave citizens vulnerable for long periods. The Founders accepted the individual right of self-defense as the natural basis for the right to arms. They were no doubt influenced by natural law theorists such as William Blackstone, who said, "Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society."[5] Accordingly, the people who gave us the Second Amendment drew no fundamental distinction between an individual's right to defend himself against a robber and that same individual's right to band together with others in a state-regulated militia.

It is clear that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual weapons for hunting, sport shooting, self-protection, and other lawful purposes. In Heller, the Court made clear that while "some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem[,...] it is not the role of this Court to pronounce the Second Amendment extinct."

What is important to stress as a matter of first principles and now settled constitutional law is (1) that the Second Amendment guarantees fundamental, individual rights of all law-abiding adults and (2) that in seeking to apply the Second Amendment, lawmakers and judges must be faithful to the original public meaning of the Second Amendment as understood at the time of its passage by Congress and ratification by the states, particularly as to the understanding of the natural right of self-defense, rather than some purely pragmatic argument about what legislators and ratifiers would want it to mean today if they were redrafting the Constitution in modern times.

Gun control laws do not correlate with with decreased violence. In addition to the constitutional and philosophical constraints involved in regulating a fundamental right, any laws should be carefully evaluated in light of historical evidence and with a thorough examination of data about their effectiveness.

Concerning the historical evidence on mass killings, Dr. Grant Duwe, a criminologist with the Minnesota Department of Corrections and the author of a book on the history of mass murders in America, states that the rate of mass killings, defined as four or more fatalities in a 24-hour period, peaked (on a per capita basis) in 1929, which was the height of a crime wave and was comprised mainly of familicides and felony-related massacres.[6] In terms of mass public shootings unconnected with the commission of another felony, which constitute a little more than 10 percent of all mass murders, the number rose from the 1960s through the 1990s, peaking in 1991 with eight such incidents.

While it is true that the number of victims killed and wounded in mass public shootings was greater in 2012 than in any previous year, there does not appear to be any discernible upward trend in the number of mass shooting incidents. According to Duwe's estimates, 32 mass shootings occurred in the 1980s, 42 in the 1990s, and 26 in the 2000s. Further, while the rate of random mass shootings in the United States has increased over the past 30 years, according to the FBI, the total U.S. homicide rate has fallen by over half since 1980, and the gun homicide rate has fallen along with it. While gun ownership doubled in the late 20th century, Americans are safer today from "violent crime, including gun homicide, than they have been at any time since the mid-1960s."[7]

Gun ownership does not correlate with increased violence. For example, the rate of gun ownership is higher in rural areas than in urban areas, but the murder rate is higher in urban areas.[8] Similarly, according to one study, blacks are more likely to be victims of violent crimes than whites, but gun ownership among blacks is notably lower than among whites.[9] In localities where right-to-carry laws were enacted, communities saw a decline in murder rates and instances of other violent crimes.[10]

Cross-national and cross-cultural comparisons of gun ownership and violence are notoriously problematic for many reasons, but it is important to note that the correlations do not run in only one direction, as some gun control advocates imply by referencing only a few examples that support their narrative. Gun ownership is roughly three times as high in Switzerland as it is in Germany, yet the Swiss have had lower murder rates. Other countries with high rates of gun ownership and low murder rates include Israel, New Zealand, and Finland.[11]

Between 1940 and the early 1960s, when the use of firearms by dangerous criminals was less prevalent, people could buy guns, ammunition, and dynamite from hardware stores; the Sears Christmas catalog had page upon page of rifles and shotguns that could be ordered through the mail; and some high schools and Scout groups had (and in some states still have) shooting teams. Many high school students on those teams kept their rifles in their school lockers. All of this was before the federal Gun Control Act of 1968 was enacted and before background checks and waiting periods were implemented in the 1990s.

Gun control laws do not correlate with decreased violence. If gun control were a panacea, then Washington, D.C., Oakland, and Chicago, which have very strict gun control laws, would be among the safest places to live rather than among the most dangerous.[12] While some countries with strict gun control laws, such as Japan, experience very little violence as a result of criminal use of firearms, other countries, such as Russia, Brazil, and Mexico, have stricter gun control laws but higher per capita rates of violence through the criminal use of guns than the United States does.[13] Joyce Lee Malcolm's work points to the "cautionary tale" of Britain's experience with banning handguns only to see a rise in gun crime.[14]

During the decade that the assault weapons ban was in place,[15] our nation's public schools were subjected to over two dozen incidents of violence through the criminal use of guns—including the Columbine massacre, in which Eric Harris, 18, and Dylan Klebold, 17, killed 12 students and a teacher before shooting themselves. A study by the University of Pennsylvania, commissioned by the Department of Justice, entitled "An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994–2003," concluded:

[W]e cannot clearly credit the ban with any of the nation's recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence, based on indicators like the percentage of gun crimes resulting in death or the share of gunfire incidents resulting in injury...[16]

Moreover, gun bans create vulnerabilities by disarming law-abiding citizens.[17] Professor of criminology Gary Kleck of Florida State University found that the number of defensive gun uses may be as high as 2.1 million to 2.5 million times per year.[18] Additionally, there have been numerous occasions where mass shooters have been stopped before they could continue their mayhem by ordinary citizens with lawfully possessed firearms. Examples include, among others, an assistant principal who stopped Luke Woodham who, after killing his mother at home, killed two students and wounded seven others at a high school in Pearl, Mississippi, in 1997; the dance hall owner who stopped Andrew Wurst after he killed a teacher and wounded three others at an eighth-grade graduation dance in Edinboro, Pennsylvania, in 1998; and, the students who stopped Peter Odighizuwa after he killed a dean, a professor, and a student and wounded three others at Appalachian Law School in Grundy, Virginia, in 2002.[19]

The Second Amendment's guarantee of the right to keep and bear arms is fundamental to a free society, which depends, ultimately, on personal responsibility. The debate over gun laws must be situated in a larger discussion about the character of our civic order. It should not be used to avoid addressing cultural questions that require much more widespread action on the part of civil society: that is, the personal responsibility of all Americans for their own and their neighbors' good.

Preserving School Safety

Decisions about school security should be state and local matters, and community-level identification of and response to risks is essential. Since a number of shootings have occurred on public school grounds in recent years, students' safety on campus is a priority concern. Constitutionally, schools and school safety are state and local concerns. Given the diversity of student needs across nearly 100,000 public elementary and secondary schools in the United States, it is also a practical necessity. Some schools may determine that it is necessary to have armed guards; others may wish to have more robust physical security such as magnetometers. Private schools and organizations that sponsor them have responsibility for the safety of children in those schools, with state and local authorities supporting them in that role by maintaining public safety in the neighborhoods where they operate. State and local customization to meet immediate needs of public schools and public safety in neighborhoods surrounding private schools is likely to yield the best results. A federal "solution," by contrast, is likely to be far more expensive and rigid and may come with more negative, unintended consequences.

Proposals to employ armed guards in public schools are matters for state and local policymakers to decide. Many schools in this country already employ armed guards to protect their students.[20] Elsewhere, Israeli schools have employed armed personnel since the 1970s, which proved to be helpful on at least one notable occasion. In 2002, two Palestinian terrorists broke into an Israeli high school armed with guns and knives.[21] They stabbed several students before being shot to death by armed school counselors.

Other innovative proposals could also be considered at the local and state levels. Gang problems and school discipline issues in recent decades have led to some promising initiatives that address student character and community culture and could prove relevant to identifying risks before they erupt into violent action. Community-based organizations like the Center for Neighborhood Enterprise and initiatives like Operation CeaseFire have made significant progress in addressing student and youth violence.

The Center for Neighborhood Enterprise (CNE) was founded by Robert L. Woodson, Sr., who has had decades of experience working with gang violence and youth conflict by building relationships. He bases his approach to youth violence on the "10% Principle": About 10 percent of youth in a school are usually responsible for most of the disruptive incidents, and roughly 10 percent of those tend to be the instigators. Targeting the instigators and engaging them to help reorient their leadership in a positive direction can cause violence and disruptiveness to decrease dramatically.[22]

CNE has applied this approach in the Violence Free Zone (VFZ) at George Wythe High School in Richmond, Virginia, which had been one of the city's most crime-ridden schools. One of the core elements of the VFZ model is its Youth Advisors, who are recruited to work with high-risk students. These advisors come from the same communities and have faced and overcome challenges similar to those they are advising, fostering their respect and trust. As a Baylor University report explains, Youth Advisors' roles are several, including "hall monitors, mentors, counselors, role models, and 'peace-makers.'"[23] By engaging those students who are most at risk, Youth Advisors often detect impending violence and are able to step in and de-escalate conflict before it turns violent.

The decrease in violence and crime has been notable. Between 2008 and 2009, police calls from George Wythe High School dropped by 18 percent, and arrests dropped by 15 percent. Additionally, car thefts in the surrounding neighborhood fell by over 60 percent.[24]

Operation CeaseFire was implemented in Boston during the 1990s to target young offenders and gang violence after officials recognized that Boston's violent crime problem was disproportionately concentrated among gang members.[25] The Operation CeaseFire task force consisted of the Boston Police Department, Massachusetts probation and parole agencies, the local district attorneys, federal law enforcement, community groups, and other organizations.[26] During meetings with gang members, the Operation CeaseFire task force promised the gang members that if they continued their violence, their actions would provoke an immediate and intense response. The task force used early prosecutions to show gang members how they could avoid the same punishment.[27] The working group also campaigned systematically to explain to gang members the consequences of their violent actions.

An evaluation of Operation CeaseFire funded by the National Institute of Justice found that the intervention was associated with a 63 percent decrease in the rate of youth homicides, a 25 percent reduction in the rate of gun assaults, and a 32 percent reduction in the rate of shots-fired calls for service.[28] While there is evidence that Operation CeaseFire appears to be a success, the collaborative effort ended in the late 1990s, apparently the victim of its own success, the transfer of experienced police officers from the program, and battles among the police, ministers, and criminologists to claim credit for the program's success.[29] With the incidence of violent crime having risen in 2006, however, Boston officials revived the program.[30]

Although these examples deal with youth and gang violence and not mass shootings, they show the importance of localizing the response to violence to the particular needs of a community. Decisions involving educational policy and public safety are constitutionally committed to state and local governments. State experimentation generates solutions that others may choose to follow, while federal one-size-fits-all solutions tend to stifle innovation. State and local policymakers are and should remain free to choose how to respond to the specific challenges of their environment.

Addressing Mental Illness

Many mass killers in this country have suffered from untreated severe mental illnesses. A 2000 New York Times study of 100 rampage murderers that took place over several decades found that 48 had some kind of formal diagnosis, often schizophrenia, and that more than half had histories of serious mental problems.[31] A lengthy study by Mother Jones magazine found that at least 38 of the 62 mass shooters in the past three decades "displayed signs of mental health problems prior to the killings."[32] Seung-Hui Cho (who killed 32 and wounded 17 others at Virginia Tech); Howard Unruh (who killed 13 in Camden, New Jersey); Jiverly Wong (who killed 13 in Binghamton, New York); and Jared Loughner (who killed six people and injured 13 others, including former Congresswoman Gabrielle Giffords, in Tucson, Arizona) all suffered from untreated schizophrenia. James Holmes (who killed 12 and injured dozens more in an Aurora, Colorado, movie theater) almost certainly was severely mentally ill.[33] George Hennard (who killed 23 in a Killeen, Texas, cafeteria) allegedly had paranoid thinking.[34] Patrick Sherill (who killed 14 in an Edmond, Oklahoma, post office) was known as "crazy Pat" by his neighbors but never formally diagnosed.[35]

Whereas in the past, psychiatrists' accuracy in identifying patients who would become violent was only slightly better than chance, their accuracy seems to be improving. A 2005 University of Virginia study utilizing a risk-assessment "tool" found that 90 percent of those whom the doctors evaluated as low-risk committed no violence over the next six months, while 49 percent of those evaluated as high-risk committed violent acts.[36] A more recent study published in the British Medical Journal reached similar results. These data suggest that the ability to make accurate predictions in this area may be improving significantly.[37]

While there is no clear evidence that people with severe mental illnesses who are being treated are more dangerous than the general population, it is clear that some with severe illnesses who are not being treated are more dangerous. According to psychiatrist and researcher E. Fuller Torrey, "Mentally ill individuals who are not being treated are responsible for approximately 1,400 homicides each year, 10 percent of the nation's total, including rampage shootings such as occurred in Tucson in January 2011."[38]

There are many people with severe mental disorder,[39] who are not being treated. According to the National Institute of Mental Health, 7.7 million Americans currently qualify for diagnoses of schizophrenia, schizoaffective disorder, and bipolar disorder. Of these, 3.5 million are receiving no treatment at any given time, and approximately 10 percent, or 350,000 individuals, become societal problems because of their untreated severe mental illness.[40] "According to federal statistics or academic studies, they comprise one-third of the homeless population and one-fifth of the inmates of jails and prisons, and they are responsible for at least 10 percent of all homicides in the U.S."[41] An analysis of 20 studies published in 2009 found that schizophrenia increased the risk of acting violently fourfold in men and even more in women.[42] The risk of schizophrenics committing homicide was 0.3 percent—more than 10 times greater than the risk for the average citizen.

Restore state responsibility for mental health services. In 1963, President John F. Kennedy interposed the federal government in the mental health field with a new program to transfer psychiatric patient care from state psychiatric hospitals to new, federally financed community mental health centers (CMHC). "The CMHC program was fatally flawed from the outset," according to Dr. Torrey, because it failed to plan adequately for this transition and reduced the leadership of state stakeholders.[43] The effects have been tragic for many who are in need of mental health treatment, as Dr. Torrey describes:

Taking into consideration the increase in America's population in the past half-century, there are more than one million individuals with serious psychiatric disorders now living in the community who 50 years ago would have been in state hospitals. Studies have reported that, at any given time, approximately half of these individuals are receiving no treatment for their psychiatric illnesses, despite the fact that such treatment can be given in the community in most cases; rehospitalization is rarely necessary.[44]

The deinstitutionalization trend accelerated in the 1970s when the Supreme Court, citing the liberty interests established in the Due Process Clauses of the Fifth and Fourteenth Amendments.[45] in cases like O'Connor v. Donaldson[46] (1975) and Addington v. Texas[47] (1979), raised the burden of proof required for involuntary commitment from a "preponderance of the evidence" to "clear and convincing evidence" and required proof that the person to be committed is a danger to himself or others. The Court has similarly expanded the rights of those who refuse treatment for mental illness.[48]

Involuntary civil commitment (ICC) statutes in the various states govern the process through which an individual suffering from severe mental illness is ordered to undergo treatment in a hospital or in the community on an outpatient basis. The laws vary from state to state, with legislatures free to take account of local values, needs, and conditions. For example, section 17a-498 of the Connecticut General Statutes provides that: "If, on such hearing, the court finds by clear and convincing evidence that the person complained of has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, it shall make an order for his or her commitment...."

A 2011 University of California at Berkeley study noted that some states permit civil commitment based on a person being a danger to self and others, on grave disability, on need for treatment, for health safety and property protection, or (in one case) infliction of serious emotional burden on families, or combinations thereof.[49] The study also stated:

Broader ICC criteria appear to allow more rapid, timely and targeted intervention, especially in better mental health systems with access to inpatient hospital beds ... Findings herein seem to substantiate this observation as ICC behavioral criteria more inclusive than "danger to self, others and grave disability" appear to be associated with lower homicide rates....

The study was careful in its conclusions:

The study has its limitations. It does not offer causal certainty and the findings need to be interpreted with caution.

Although the study concluded only that an apparent association, as distinguished from causation, exists between ICC behavioral criteria and lower homicide rates, the study provides a basis for appropriate professional organizations to consider undertaking further research into that apparent association. States could then take into account the resulting body of knowledge, along with local values, needs and conditions, as they review their ICC statutes.

Given the weak track record of federal mental health programs, states should exercise primary responsibility for determining appropriate mental health services, which will entail eliminating restrictions currently imposed by the federal government. For example, evaluations of the Substance Abuse and Mental Health Services Administration (SAMHSA), a $3.4 billion federal agency designed to reduce "the impact of substance abuse and mental illness on America's communities," have shown it to be ineffective in achieving these goals.[50] Consideration should be given to devolving mental health programs under SAMHSA and other federal agencies to the states.

Policymaking regarding mental health involves concerns related to the personal freedom of those who are mentally ill and concerns about preventing harm to those individuals and others. In the past, treatment policies leaned too far in the direction of institutionalization. Since the Supreme Court's interventions in the mid-1970s, it is highly unlikely that mental health officials would seek a return to such policies, nor should they.

Recent developments call for states to reevaluate whether current strategies are adequately serving the needs of the severely mentally ill and the public at large and the need to protect the civil liberties of the mentally ill, including the right to due process before being deprived of their otherwise constitutionally protected right to possess a firearm. State legislatures will want to take into account the available and developing bodies of research concerning risk assessments, involuntary civil commitment, and court-ordered outpatient therapy, and appropriate mental health services of which individuals may avail themselves voluntarily, as well as local values, needs, and conditions, as they consider whether to adjust state laws.

The federal and state governments will need to review their respective laws concerning information sharing, to ensure that those responsible for protecting school children can receive information they need to respond properly to serious risks of violence to school children. Governments should proceed with care in such reviews, taking appropriate account of both the need to share information to protect children and the need to protect information, such as in the confidentiality of the doctor-patient, attorney-client, and priest-penitent relationships

Addressing Cultural Issues

In the immediate aftermath of the Newtown shootings, news accounts highlighted parents telling of hugging their children more tightly that evening and religious congregations gathering for special services of prayer. The reality at the heart of such expressions is far more than a respite in the wake of emergency; these bonds of family and communities of faith contain the very antidote to future acts of violence. Citizens, parents, and cultural norms may be more important than anything else in preventing the recurrence of tragedies such as Newtown.

Family plays an essential role in developing thriving children and adolescents, and its role must be respected in policy and supported in communities. The family is the foundational building block of a flourishing civil society, the first and most important place for individuals to be known, cared for, and to mature into well-adjusted adolescents and independent citizens contributing to society. Sadly, an increasing number of children are experiencing disruptions in what ought to be their most secure environment. More than four in 10 children are born outside the relative social and financial stability of a married family, with an increasing number of children living in single-parent households.[51]

Family structure plays an important role in children's well-being. Children and teens who live in intact, married families tend to report better outcomes on a range of mental health indicators and are less likely to engage in violent or antisocial behavior. Adolescents from intact families tend to report lower levels of emotional and psychological stress and are less likely to experience depressive tendencies than teens from other family structures. Compared to teens living in married households, adolescents who did not live in intact families are four times more likely to exhibit psychological affective disorders (ranging from hyperactivity and irritability to depression).[52]

The presence of fathers in their children's lives is particularly indicative of healthy behavior and emotional well-being. Adolescents who report having a close relationship with their fathers tend to have lower levels of psychological stress and are less likely to exhibit behavioral problems. In turn, adolescents whose fathers are more involved in their lives also tend to exhibit lower levels of aggression, antisocial behavior, and negative feelings such as anxiety, depression, and low self-esteem.[53] As one scholar on fatherhood has noted, "across societies, married fatherhood is the single most reliable, and relied upon, prescription for socializing males. As marriage weakens, more and more men become isolated and estranged from their children and from the mother of their children. One result, in turn, is the spread of male violence."[54]

The psychological, emotional, and social benefits of stable family structure and parental involvement can also have an impact on children. Adolescents living in intact families are less likely to exhibit delinquent and violent behavior like destroying or stealing property, seriously injuring another person, or selling drugs.[55] Teens from intact families are also less likely to exhibit behaviors like carrying a weapon and engaging in physical fighting.[56]

The beneficial effects of individual intact, married families on child well-being and development can be felt throughout a community. Neighborhoods with a greater proportion of intact families tend to report lower levels of community violence, and counties with greater numbers of married households tend to experience lower rates of homicide.[57]

Policy should not be agnostic with regard to the significance of family for children's well-being. For example, the old welfare system rewarded unwed childbearing, sending exactly the wrong policy message about the significance of marriage for a child's future. Research on the correlation between the collapse of marriage and child poverty and other risk factors was part of the breakthrough that led to welfare reform in the 1990s, an important policy success that led to improvement in children's well-being.

Civil society institutions offer a first line of defense in building and maintaining safe and thriving communities. Intact, married, stable families are the first responders to the complex and personal needs of individuals. But where the needs of an individual exceed the capacity, knowledge, and expertise of one family unit, other institutions can come alongside to provide individualized, effective support.

Religious congregations and other ministries are often the "first responders" to the emotional aftermath of violence and disasters. They can also offer support for families who are caring for loved ones with mental illness. For example, ChosenFamilies.org is an innovative effort to provide information, connections, and encouragement to families with members who have "hidden disabilities." It also educates and provides resources to religious leaders as they serve families with such needs.

Religious practice and the support of religious communities can have a profound impact on maintaining stable, intact families and supporting the development of children and adolescents. Families who frequent religious institutions are more likely to enjoy lower levels of conflict[58] and higher levels of marital stability,[59] which can positively influence the emotional and psychological development of children in those households. In particular, frequency of religious attendance can be a stronger predictor of paternal involvement in one-on-one activities with children than either employment or income.[60]

Strong religious belief and involvement can likewise shape the emotions and actions of individuals. In one study, teens who frequently prayed and read, watched, or heard religious content were less likely to exhibit anti-social behavior. Private religious practice also moderated the impact of factors associated with an increase in violent behavior, such as witnessing violence or being the victim of violence.[61] On average, adolescents who attend religious services and activities more often and assign a higher importance to religion in their lives are also less likely to consider suicide or attempt suicide.[62]

These positive social outcomes associated with religious practice reinforce the rationale for America's constitutional protection of religious liberty and heritage of limited government that leaves wide space for religious and other civil society institutions. Policy should not erode these important freedoms. Government's role is to secure civil rights and law and order so that such institutions can fulfill their role in nurturing the well-being of their communities.

The First Amendment's protection of freedom of speech means that it is up to individuals, families, communities, and corporations to make responsible choices regarding media production and consumption. Violent images are pervasive in movies, television, and video games. So-called torture porn movies such as The Texas Chainsaw Massacre and the Saw and Hostel series, with their graphic depictions of torture, mutilation, and sadism, are a very popular film genre. The 1990s saw the introduction of popular, highly realistic, and incredibly violent video games such as Mortal Kombat, Doom, Grand Theft Auto, and God of War, and they have only grown more violent as graphics have improved.[63]

There is no question that the vast majority of people who see violent movies and television shows or who play violent video games will not commit a violent crime, just as there is no question that the vast majority of gun owners will not commit a violent gun crime. However, producers and parents alike should be aware that the Newtown shooter played violent video games for hours at a time; the Columbine killers loved Doom, violent songs by Marilyn Manson and others, and the film Natural Born Killers (going so far as to use "NBK" as their code); and Anders Breivik, who killed 77 people (mostly teenagers) in Norway in 2011, told a court he played a video game titled Call of Duty to practice his hand–eye coordination. Parents and community leaders should also be aware of the emerging and evolving research on how gaming seems to affect various kinds of brain activity, although the exact correlation between video games and violence is unclear.[64]

The First Amendment provides,[65] in pertinent part, that "Congress shall make no law...abridging the freedom of speech...," and the Supreme Court has held on numerous occasions that the providers of such entertainment are cloaked with broad protection.[66] But serious self-assessment by the entertainment industries is in order. Former Senator Chris Dodd, current Chairman and CEO of the Motion Picture Association of America,[67] has said that "the motion picture and television industr[ies] want to do our part to help America heal. We stand ready to be part of the national conversation."[68] That should include doing something more than criticizing those who defend the Second Amendment.

The entertainment industries, which produce violent movies, television shows, music, and video games, should consider whether improvements could be made in rating systems to minimize the likelihood that such "entertainment" will result in violent episodes committed by consumers of such fare. Meanwhile, families, parents, and community leaders have a duty to protect the children and teens they know best from excessive consumption of violent input. One tool is the power of the free market to demand better from cultural producers. As media consumers and affected citizens, Americans should urge the media to police their own conduct with respect to formulating norms of responsible reporting on mass shooting incidents that do not encourage copycat tragedies.

The media should also consider how they report stories of violence. TV programs and the Internet greatly magnify the instant celebrity that mass killers can achieve, providing them with the attention, recognition, and notoriety they seek.[69] Loren Coleman's 2004 book The Copycat Effect: How the Media and Popular Culture Trigger the Mayhem in Tomorrow's Headlines demonstrates that the copycat effect is as old as the media themselves. Johann Wolfgang von Goethe's 1774 classic "The Sorrows of Young Werther" triggered a spate of copycat suicides in Europe. There are several modern examples of copycat killers.[70]

Responsible media outlets enforce journalistic ethics and try to shame others who do not follow certain norms.[71] For example, it is a general rule that victims of certain crimes not be identified by name or in such detail that they could be identified. Such norms are valuable and should be encouraged by the media, citizens, and opinion leaders with a bully pulpit and should be constantly re-evaluated, particularly after tragedies such as the Newtown massacre.

Conclusion

In the aftermath of this heinous crime, politicians, pastors, opinion leaders, families, and citizens must engage in thoughtful action that is likely to protect Americans. In doing the serious work that will make society safer and stronger, constitutional and complex cultural factors must be taken into consideration, and sound policy must be based on a serious study of the data and other evidence.

The subject is inescapably fraught with emotion, but emotional appeals cannot be the sole basis for action. Policymakers should avoid a rush to judgment on prescriptions that violate first principles, that ignore the real root of these complex problems, or that disregard careful social science research. Any federal government role must be a limited one that is constrained by constitutional principles. The most important solutions lie at the state and local levels, in the community and within the family.

The massacre at Newtown has made for a truly bleak mid-winter, but Americans' horror and sense of urgency to act is a mark of a cultural vibrancy that speaks well of the possibilities for our civic future. As John Adams wrote in January 1775:

There is also in human nature a resentment of injury and indignation against wrong; a love of truth and a veneration of virtue. These amiable passions are the "latent spark".... If the people are capable of understanding, seeing and feeling the differences between true and false, right and wrong, virtue and vice, to what better principle can the friends of mankind apply than this sense of difference.[72]

In Newtown, we have seen all too sharply the difference between vice and virtue: between a deeply troubled and malicious killer on the one hand and remarkable individuals like principal Dawn Hochsprung, 27-year-old teacher Victoria Soto, and a fourth-grade boy wanting to use his karate to protect his classmates on the other.

Adams and the Founding generation cast their lot with these better angels, arguing that "Human nature itself is evermore an advocate for liberty."[73] Newtown gives us yet one more reason to redouble our efforts in pursuit of the civic order and cultural virtue that make liberty possible.

—John G. Malcolm is a Senior Legal Fellow in the Center for Legal & Judicial Studies, and Jennifer A. Marshall is Director of Domestic Policy Studies and Director of the Richard and Helen DeVos Center for Religion and Civil Society, at The Heritage Foundation

Show references in this report

[1] See Heritage Guide to the Constitution, available at http://www.heritage.org/constitution#!/amendments/2.

[2] 554 U.S. 570, 592 (2008).

[3] 130 S.Ct. 3020, __ U.S. __ (2010).

[4] Heller, 554 U.S. at 592.

[5] 3 William Blackstone, Commentaries * 4.

[6] Grant Duwe, Horrifying, but Rare, OttawaCitizen.com (Jul. 21, 2012), http://www2.canada.com/ottawacitizen/news/archives/story.html?id=ef617d86-2ab5-4375-aa72-e3f49e1ba0eb&p=2. See also Helen O’Neill, School Shooting: Despite Toll, Mass Killings Remain Rare, appealdemocrat.com (Dec. 15, 2012), http://www.appeal-democrat.com/articles/wound-121869-temple-kaleka.html.

[7] Fed. Bureau of Investigation, Uniform Crime Reporting Statistics, http://www.ucrdatatool.gov/index.cfm. See also, David Kopel, Guns, Mental Illness and Newtown, Wall St. J. Dec. 17, 2012, http://professional.wsj.com/article/SB10001424127887323723104578185271857424036.html?mg=reno64-wsj.

[8] John R. Lott, Jr., More Guns, Less Crime 40 (Univ. of Chicago Press 2010). “[W]hile rural areas have the highest gun ownership rates and the lowest crime rates, cities with more than 500,000 people have the lowest gun ownership rates and the highest crime rates (for example, in 1993 cities with over 500,000 people had murder rates that were over 60 percent higher than the rates in cities with populations between 50,000 and 500,000).” Thomas Sowell, “Gun-Control Ignorance,” National Review Online, Dec. 18, 2012, http://www.nationalreview.com/articles/335848/gun-control-ignorance-thomas-sowell#. David B. Kopel, “Crime: The Inner-City Crisis,” davekopel.com, 2001, http://www.davekopel.com/CJ/Mags/InnerCityCrisis.htm.

[9] Lott, More Guns, Less Crime, at 39. “For example, while white gun ownership exceeds that for blacks by about 40 percent in 1996, and the vast majority of violent crimes are committed against members of the offender’s own racial group, blacks are 4.6 times more likely to be murdered and 5.1 times more likely to be offenders than are whites.… Even a 100 percent gun ownership rate among blacks would still leave a gap in gun ownership that is smaller than the gap in crime rates.”

[10] Id. at 275–82. Even when accounting for a variety of factors that can explain crime, murder rates in states that enacted right-to-carry laws dropped after those laws were passed.

[11] Thomas Sowell, “The Great Gun Control Fallacy,” The Guardian, Dec. 18, 2012, http://www.guardian.co.uk/commentisfree/2012/dec/18/great-gun-control-fallacy-thomas-sowell. For statistics on each country, visit GunPolicy.org and select the country to display gun facts, figures, and the law, http://www.gunpolicy.org/firearms/region (last visited Jan. 8, 2013).

[12] Associated Press, “New D.C. Gun Laws Remain Strict,” USA Today, July 15, 2008, http://usatoday30.usatoday.com/news/washington/2008-07-15-new-gun-rules_N.htm. Bill Mears, “Analysis: Guns and the Law; Recent Ruling Highlights Legal and Personal Stakes,” CNN, Dec. 17, 2012, http://www.cnn.com/2012/12/17/us/gun-law-court-ruling/index.html. Mike O’Sullivan, “California Leads US in Restrictive Gun Laws,” Voice of America, July 25, 2012, http://www.voanews.com/content/california-leads-us-in-restrictive-gun-laws/1444762.html. Abby Rogers, “The 25 Most Dangerous Cities in America,” Business Insider, Nov. 4, 2012, http://www.businessinsider.com/the-25-most-dangerous-cities-in-america-2012-10?op=1. Jeremy Gorner and Robert McCoppin, “Police: Chicago Ends 2012 with 506 Homicides,” Chicago Tribune, Jan. 2, 2013, http://articles.chicagotribune.com/2013-01-02/news/ct-met-chicago-homicides-2012-20130102_1_homicide-surge-homicide-toll-chicago-homicide-victims. Oversight Hearing on the District of Columbia’s Gun Control Laws Before the H. Comm. on Gov’t Reform, 109th Cong. (2005) (statement of John Lott), available at http://www.aei.org/speech/society-and-culture/oversight-hearing-on-the-district-of-columbias-gun-control-laws/.

[13] For statistics on each country, visit GunPolicy.org and select the country to display gun facts, figures, and the law, http://www.gunpolicy.org/firearms/region (last visited Jan. 8, 2013).

[14] Joyce Lee Malcolm, Two Cautionary Tales of Gun Control, Wall Street J., Dec. 26, 2012, http://online.wsj.com/article/SB10001424127887323777204578195470446855466.html.

[15] Part of the Violent Crime Control and Law Enforcement Act of 1994.

[16] Christopher Koper, University of Pennsylvania, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994–2003 at 2 (June 2004), available at http://www.sas.upenn.edu/jerrylee/research/aw_final2004.pdf.

[17] Oversight Hearing on the District of Columbia’s Gun Control Laws Before the H. Comm. on Gov’t Reform, 109th Cong. (2005) (statement of John Lott).

[18] Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-defense with a Gun, 86 J. Crim. L. & Criminology 150, 167 (1995).

[19] Howard Chua-Eoan, Mississippi Gothic, Time, Jun. 24, 2001, available at http://www.time.com/time/magazine/article/0,9171,136736,00.html; Robert Moran & Susan Q. Stranahan, Again, Student Held in Slaying Andrew Wurst Is Accused of Killing Edinboro, Pa., Teacher John Gillette and Wounding Three, Philadelphia Inquirer, Apr. 26, 1998, available at http://articles.philly.com/1998-04-26/news/25765866_1_andrew-wurst-john-gillette-science-teacher; When Mass Killers Meet Armed Resistance, Classically Liberal (Apr. 18, 2007), http://freestudents.blogspot.com/2007/04/when-mass-killers-meet-armed-resistance.html.

[20] Gun Control Laws: Texas “Arm the Teachers” School Policy Uses Concealed Carry Permit, Inquisitr (Dec. 20, 2012), http://www.inquisitr.com/448340/gun-control-laws-texas-arm-the-teachers-school-policy-uses-concealed-carry-permit/.

[21] Tzippe Barrow, Terrorists Target Israeli Students, CBN News (Jan. 25, 2008), http://www.cbn.com/CBNnews/310078.aspx.

[22] Byron Johnson & William Wubbenhorst, Baylor Institute for Studies of Religion, The Center for Neighborhood Enterprise Violence-Free Zone Initiative: A Richmond Case Study (Apr. 2010), available at http://www.baylorisr.org/wp-content/uploads/case_richmond.pdf.

[23] Id.

[24] Id.

[25] David B. Muhlhausen, PhD, “Promoting Innovative Policing Strategies Without Busting the Federal Budget,” testimony before the Committee on the Judiciary, United States Senate, Mar. 3, 2010.

[26] Anthony A. Braga, David M. Kennedy, Elin J. Waring, and Anne Morrison Piehl, “Problem-Oriented Policing, Deterrence, and Youth Violence,” Journal of Research in Crime and Delinquency, Vol. 38, No. 3 (August 2001), pp. 195–225.

[27] Id. at 200.

[28] Id.

[29] Editorial, Boston’s Armistice, The Boston Globe, Jan. 28, 2006, at E12.

[30] Suzanne Smalley, City Hopes Gangs Will Be Scared Straight, The Boston Globe, Feb. 16, 2006, at B2.

[31] Ford Fessenden, They Threaten, Seethe and Unhinge, Then Kill in Quantity, N.Y. Times, Apr. 9, 2000, available at http://www.nytimes.com/2000/04/09/us/they-threaten-seethe-and-unhinge-then-kill-in-quantity.html?pagewanted=all&src=pm.

[32] Mark Follman et al., A Guide to Mass Shootings in America, Mother Jones, Dec. 15, 2012, http://www.motherjones.com/politics/2012/07/mass-shootings-map.

[33] Erica Goode et al., Before Gunfire, Hints of ‘Bad News’, N.Y. Times, Aug. 26, 2012, http://www.nytimes.com/2012/08/27/us/before-gunfire-in-colorado-theater-hints-of-bad-news-about-james-holmes.html?pagewanted=all&_r=0.

[34] E. Fuller Torrey & Doris A. Fuller, The Potential Killers We Let Loose, Wall Street J., Dec. 18, 2016, http://online.wsj.com/article/SB10001424127887324407504578185361458883822.html.

[35] Id.

[36] J. Monahan et al., An Actuarial Model of Violence Risk Assessment for Persons with Mental Disorder (Jul. 2005).

[37] Seena Fazel et al., Use of Risk Assessment Instruments to Predict Violence and Antisocial Behaviour in 73 Samples Involving 24,827 People: Systematic Review and Meta-Analysis (2012).

[38] “Two previous studies in New York and California reported the 10 percent figure, and a large 2008 study in Indiana confirmed it.” E. Fuller Torrey, How to Bring Sanity to Our Mental Health System, Heritage Found. Center for Policy Innovation Discussion Paper No. 2 (Dec. 19, 2011), n. 23, available at http://www.heritage.org/research/reports/2011/12/how-to-bring-sanity-to-our-mental-health-system.

[39] “Severe mental disorders are defined by the National Advisory Mental Health Council as including schizophrenia, schizoaffective disorder, bipolar disorder, autism and the severe forms of major depression, panic disorder, and obsessive-compulsive disorder.” Torrey and Fuller, The Potential Killers We Let Loose, Wall Street J., Dec. 18, 2012.

[40] Id.

[41] Id.

[42] Seena Fazel et al., Schizophrenia and Violence: Systematic Review and Meta-Analysis, PLos Med 6(8) (2009).

[43] Torrey, How to Bring Sanity to Our Mental Health System, at 4.

[44] Id.

[45] See Heritage Guide to the Constitution, available at http://www.heritage.org/constitution#!/amendments/5 and http://www.heritage.org/constitution#!/amendments/14.

[46] 422 U.S. 563 (1975).

[47] 441 U.S. 418 (1979).

[48] E.g. Sell v. United States, 539 U.S. 166 (2003).

[49] Steven P. Segal, Civil Commitment Law, Mental Health Services, and U.S. Homicide Rates (2011), available at http://treatmentadvocacycenter.org/storage/documents/segal--civil%20commitment%20law%20mh%20services%20us%20homicide%20rates--2011.pdf

[50] E. Fuller Torrey, Bureaucratic Insanity: The Federal Agency That Wastes Money While Undermining Public Health, National Review, Jun. 20, 2011, at 24–26. Torrey notes: “Senator Tom Coburn’s (R–OK) July 2011 deficit reduction plan (“Back in Black”) made an excellent case for the abolition of SAMHSA and folding its worthwhile programs into the Centers for Disease Control and Prevention (CDC).”

[51] Robert Rector, Marriage: America’s Greatest Weapon Against Child Poverty, Heritage Found. Special Report No. 117 (Sept. 5, 2012), available at http://www.heritage.org/research/reports/2012/09/marriage-americas-greatest-weapon-against-child-poverty#_ftn4.

[52] Steven P. Cuffe et al., Family and Psychosocial Risk Factors in a Longitudinal Epidemiological Study of Adolescents, 2 J. Am. Acad. Child & Adolescent Psychiatry 44, 121–129 (2005).

[53] Marcia J. Carlson, Family Structure, Father Involvement, and Adolescent Behavioral Outcomes, 1 Marriage & Fam. 68, 137–54 (2006).

[54] David Blankenhorn, Fatherless America, quoted in Russ Nieli, “Absentee Fathers and Newtown School Shooting,” The Public Discourse, Jan. 2, 2013, http://www.thepublicdiscourse.com/2013/01/7488/.

[55] “Marriage and Family as Deterrents from Delinquency, Violence and Crime,” FamilyFacts.org Brief, No. 26, The Heritage Foundation, http://thf_media.s3.amazonaws.com/familyfacts/briefs/FF_Brief_26.pdf.

[56] Kathleen B. Rodgers & Hillary A. Rose, Risk and Resiliency Factors Among Adolescents Who Experience Marital Transitions,” 4 J. Marriage & Fam. 64, 1024–37 (2002).

[57] Chris Knoester & Dana L. Haynie, Community Context, Social Integration into Family, and Youth Violence, 3 Marriage & Fam. 67, 767–780 (2005).

[58] Christopher G. Ellison et al., Are There Religious Variations in Domestic Violence?, 20 J. Fam. Issues 87, 87–113 (1997).

[59] Vaughn R. A. Call and Tim B. Heaton, Religious Influence on Marital Stability, 3 J. Sci. Stud. Religion, 36, 382–92 (1997).

[60] W. Bradford Wilcox, Soft Patriarchs, New Men: How Christianity Shapes Fathers and Husbands 115 (Univ. of Chicago Press 2004).

[61] Michelle J. Pearce, The Protective Effects of Religiousness and Parent Involvement on the Development of Conduct Problems Among Youth Exposed to Violence, 74 Child Development 1682, 1682–96 (2003).

[62] Michael J. Donahue and Peter L. Benson, Religion and the Well-Being of Adolescents, 2 J. Soc. Issues 51, 145–60 (1995).

[63] “Are Video Games Getting More Violent?” FoxNews.com, Dec. 18, 2012, http://www.foxnews.com/tech/2012/12/18/are-video-games-getting-more-violent/.

[64] Bruce D. Bartholow et al., Chronic Violent Video Game Exposure and Desensitization to Violence: Behavioral and Event-Related Brain Potential Data, 42 J. Experimental Soc. Psychol. 532, 532–539 (2006).

[65] See Heritage Guide to the Constitution, available at http://www.heritage.org/constitution#!/amendments/1.

[66] Brown v. Entertainment Merchants Assoc., 131 S.Ct. 2729, __ U.S. __ (2011).

[67] Co-author John Malcolm used to work at the MPAA.

[68] Press Release, Motion Picture Assoc. of America (Dec. 20, 2012), available at http://mpaa.org/resources/e0fe67df-bbaf-46f5-b549-57f791f5494e.pdf.

[69] Tim Nash, The Mind of a Serial Killer, Finer Times, available at http://www.thefinertimes.com/Serial-Killers/the-mind-of-a-serial-killer.html.

[70] Nigel Barber, Copycat Killings, Psychology Today (Jul. 27, 2012), http://www.psychologytoday.com/blog/the-human-beast/201207/copycat-killings.

[71] Thomas Lifson, New York Times ‘Outed’ Sandusky Rape Victim, American Thinker (Nov. 30, 2011), http://www.americanthinker.com/blog/2011/11/new_york_times_outed_sandusky_rape_victim.html.

[72] John Adams, The Revolutionary Writings of John Adams, Novanglus No. 1 (Indianapolis: Liberty Fund, Inc., 2000), p. 152.

[73] Id. Id.

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