Monday, June 20, 2016


When it comes to firearm injuries and death, there are varying and intense opinions among Americans. We hear a lot of argumentation about "mental health – gun show exception – deeper background checks – punishing straw purchasers and limiting magazine size."

Whenever there is a shocking mass shooting, one side suggests some gun restrictions any other side carefully explains how that would not have stopped this particular shooting.

Let's put all that aside for the moment and see if we can find something upon which nearly everyone can agree.

Right now it is against the law of the United States of America for the CDC or the NIH, while using any government funds, to study the public health implications of firearms.

In 2014 (Nothing magic about 2014, it's just the most recent year I can get what I find to be reasonably complete raw data) there were approximately 52,000 incidents involving a firearm in which someone was hurt or killed. Just about 13,000 of those resulted in deaths. As nearly as one can tell from the data, people of all ages were implicated, firearms of all stripes were implicated, suicides were included and, of course, accidental discharges were included.

Can we all agree that, if there were a new, foreign, virus abroad in the land killing 13,000 Americans and injuring another nearly 40,000, our public health professionals would be studying it?

So right now we have a Congress that is considering gun safety measures with no benefit of cross-tabulated data because Congress, itself, has outlawed our best public health statisticians from creating such data.

Wouldn't it be better, smarter and a sensible use of our resources to let our public health professionals tell us, just for example, what is the population base most likely to be involved in a gun homicide? What is the length of ownership of the weapon and gun homicide? How many gun homicides are committed with a weapon that was straw purchased?   how many gun homicides are committed with gun show purchased weapons? How many weapons used in deadly or great bodily harm attacks are actually purchased at gun shows using the dreaded "gun show exception…"? How many of those would the purchaser have qualified anyhow?  How many of the homicides are actually a lawful gun owner deploying his weapon to prevent a felony or other murder?

Does anybody actually think that by not studying how, when why and by whom fatal and catastrophic shots are fired that we might be able to better craft sensible, constitutional legislation and subordinate regulations that actually respond to the problem is a public health problem?  Do we really believe that we should make our decisions on the basis of  slogans, memes and chants?

I think it was Socrates, later co-opted by Einstein who said" a question well asked is half answered."

Because of our lack of penetrating study on this rather obvious public health issue, we are not only failing to ask the question well but maybe attempting to answer all the wrong questions.

We have good scientists, really big, really fast computers and an abundant sample size. Deep study is slowing the increase of cervical cancer, diabetes and especially macular degeneration. Statistical applications have forever changed the way wars are fought and baseball games are played. There is simply no valid argument against applying the same rigor to the study of firearm injuries that we do to determining whether we should trade for this relief pitcher or that second baseman.

Knowledge is power. Can we all agree that it can't hurt anything and might actually help if we study this problem like we study other public health problems? That takes one clean, decent vote from our Congress, takes no one's guns away and limits no one's existing rights

Surely we can all agree that the anti-intellectual approach to this has long since outlived its usefulness.  Mind you, I'm a gun guy and I see absolutely no problem letting real scientists deal with real truths and come up with real cross-tabs.

Saturday, June 11, 2016


For purposes of this discussion, let's agree that the sentence in the Stanford swimmer rape case was incorrect.  Hell, for purposes of this discussion, let's just call it an outrage.  OK, we have that covered.

I would like to argue that the effort to remove that judge from the bench for this one decision is, from a societal point of view, contrary to the interests of having an ordered society.

The petition effort has its basis in the belief that the judiciary is somehow supposed to be "responsive" to the desires of the electorate.  This is a misunderstanding of the the third branch's role.

Legislatures are sent to vote on public policy and they are sent by electors with the expectation that they will pursue the goals that caused the people to send them to seat of government.

The Executive, President or Governor, is supposed to see to the goals the people expressed when they elected him.  To a greater or lesser extent, the legislative branch and the Executive Branch are supposed to be "responsive".  If they don't do more or less exactly what we want, we know how to get rid of them.  They must respond to us.

We send (and every state does this differently) judges to the bench to be impartial and to apply the law to the facts without fear or favor.  Think about this:  It is impossible to be BOTH impartial and responsive at the same time.  In judges, we prize and seek judges who are skilled, of course, but, above all, are imbued with impartiality and integrity.  If society, or aspects of it, can recall or bully judges into deciding things "their" way, then we have no more independent judiciary.  Or, to put it another way, we have no effective third branch of government.

It is not difficult to imagine how badly a two-legged stool works.

Australia went through kind of similar social movement last decade.  Their then Chief Justice, Sir Gerard Brennan (no relation to Babs) had some interesting remarks and observations then, that apply nicely to our current situations.

" But the implications for our society are profound. Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors but the governed. But, you may ask, if that is so, why do we see so much ill-informed criticism of the judiciary? There are many answers to this question, but it cannot be doubted that one answer is this: there is a lack of awareness of the extent to which the peace and order of our society depend upon the maintenance of a strong and independent judiciary as the third arm of government...."

"The reason why judicial independence is of such public importance is that a free society exists only so long as it is governed by the rule of law - the rule which binds the governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought. However vaguely it may be perceived, however unarticulated may be the thought, there is an aspiration in the hearts of all men and women for the rule of law."

"  Judicial independence is the priceless possession of any country under the rule of law. The public are entitled to insist on its observance by the judges and on its protection by the Parliament and the Executive."

There is a price to be paid for judicial independence.  The absence of recall or ballot initiatives is one price.  This necessarily means the occasionally "clanger".  Many would argue that the Stanford sentence was one of those clangers.  The judge exercised his independence in a way that angered many people.  Many of those angry people would trade the concept of an independent judiciary for the "feel good" proposition that they can "get" a judge for one arguably poorly conceived decision.  As Chief Justice Brennan points out, that is a bad trade, giving up judicial independence to scratch a short time itch.

Ask yourself, "do I want to know I'm getting a truly impartial judge for my case, whatever it may be, when it comes before the court or do I want a judge who must necessarily cower before petition drives and ballot initiatives?"

On the federal side, why do you think the drafters created lifetime appointments for members of the judiciary.  THAT's how important they thought a tamper-proof judiciary was.

NOTE: nothing in this discussion is intended to discuss the details of the Stanford rape case.  I said my piece on that on facebook.  I welcome your comments on judicial independence here but let's not rehash the rape case because it is beside the point of this submission.