Countering the threat of mass shootings: can military theory help?

In the aftermath of the horrific mass shootings in Texas and Ohio, the public has been inundated by all kinds of commentary, much (most?) of it ill-informed and/or unproductively politically-charged.  Are there any practical and effective ways of limiting gun violence?  Yes, and the architecture for doing so has surprising resonance with classic military theory.

Some context:  Duke Law is fortunate to have the nation’s two leading Second Amendment scholars, Professors Joseph Blocher and Darrell Miller.

They head Duke Law’s Center for Firearms Law, and are the authors of the award-winning book, The Positive Second Amendment: Rights, Regulation, and the Future of Heller. 

The book’s title references the 2008 landmark case of District of Columbia v. Heller where the Supreme Court held, as Justia put it, that “[p]rivate citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia.”

Why is the Heller case so significant?

I was among those who – prior to Heller – thought the Second Amendment’s language (“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”) meant the right was, in fact, linked to the militia.  I said as much in a 1995 Tennessee Law Review article entitled “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment.”

I had essentially concluded that the Founders intended the Second Amendment to create a national security architecture that would substitute sizeable state militias for the need to maintain a large standing army (which, they feared, could be a source of oppression).  The militias would also provide the states with a military force capable of countering a tyrannical central government.

Since the nature of military power had changed so significantly since the Constitution was written that it was no longer realistic to think a collection of civilians armed with personal weapons could successfully dislodge a determined and heavily-armed professional military, I thought it reasonable that this changed circumstance regarding the military efficacy of a militia would allow the courts to more readily approve gun control measures,

Obviously, the Supreme Court in Heller thought differently in finding that private citizens have a right – unrelated to any militia service – to “bear” at least some kinds of guns for self-defense.  Since Heller, courts have grappled with the exact scope of the right as the Supreme Court interpreted it.  For example, the 9^th Circuit has announced it will re-hear a case where the issue is whether the logic of Heller extends to a right to openly carry weapons in public for self-defense.

Countering mass shootings with military theory? 

The recent tragedies have understandably re-ignited the debate over gun control.  Lots of ideas are being touted, but is any particular measure a panacea?  According to Professor Blocher, the answer is an unequivocal “no.”  He told me recently:

“No single rule change is ever going to eliminate mass shootings or any other kind of gun related violence. The question is always, just like in other areas of law, what we can do at the margins to reduce the risks.

And I think that means thinking about “gun control” as more than just one thing – it’s not a matter of banning guns or not, but coming up [with] specific, tailored, evidence-based policies that keep guns out of the wrong hands as much as possible. When it comes to mass shootings, that might mean restrictions on large capacity magazines, or broader adoption of red flag laws, or a better system of background checks, or some combination of rules and policies.”

I completely agree.  What is more is that his recommended approach has touchstones in archetypal military thinking.  For example, in his classic treatise, On War, the legendary military theorist Carl von Clausewitz speaks about how “friction” can operate to frustrate the achievement of a military objective.

Clausewitz says that “[e]verything is very simple in war, but the simplest thing is difficult.”  These “simplest” things can amount to “difficulties [that] accumulate and produce a friction.”  Thus, the “influence of an infinity of petty circumstances” can coalesce to collectively produce “a friction” sufficient to thwart the realization of an intended action.

Obviously, Clausewitz was counseling military leaders as to how to overcome this friction, but the concept has application to Professor Blocher’s proposal.  That is, the successful thwarting of mass shootings might most effectively be achieved not by searching for a single decisive approach, but rather by simultaneously applying multiple measures, including those which individually may seem to be of minor importance – but which can accumulate so as to collectively inflict debilitating “friction” onto the process that produces gun violence.

There’s another, related aspect of military theory that may have application here, that is, the doctrine of parallel operations.  In the warfighting context, parallel operations “are those that apply pressure at many points across an enemy’s system in a short period of time to cause maximum shock and dislocation effects across that system.”  If we consider mass shootings as being the “enemy system” in this context, it would mean imposing “friction” as simultaneously as possible across the factors that must align themselves to produce mass shootings.

Why is all of this important?  There is a lot of sobering data available that dishearteningly suggests that no individual measure can – alone – make a decisive difference.  For example, last year, Stanford law professor John Donohue argued in Time Magazine that “It’s Going to Take More Than Background Checks and AR-15 Bans to Stop Mass Shootings.”  I agree with him that neither effort “work[s] perfectly,” but the discussion ought not end there.

Sure, it’s true that the AR-15 is responsible for only a tiny portion of all gun violence.  However, CNN tells us that in the case of the Ohio shooter, he “managed to fire 41 shots in less than 30 seconds” and that he “did so by wielding a .223-caliber high-capacity rifle with 100-round drum magazines.”

(The Wall Street Journal reports that the weapon actually used in the Ohio shooting was an AR-15 style pistol. It’s never before been employed in a mass shooting, but “it fires the same types of bullets and uses the same magazines.”)

So it seems to make sense to ban, as Blocher (and Donohue) suggest, the high-capacity magazines.

Admittedly, it isn’t alone a complete solution.  In a 2009 article Slate magazine examined how Maj. Nidal Hasan managed to fire 100 rounds in seven minutes in gunning down 13 people at Ft. Hood, TX, using a handgun with a magazine of just 20 rounds.  Slate found that a “novice can fire three shots in less than a second, and a trained shooter can double that.”  The article added:

“Experts holster extra ammunition on the side of their nonshooting hand to speed the exchange and can have the new magazine loaded before the empty one hits the ground. So each 20-round magazine would take no more than 5.3 seconds, including time to reload. That means you could fire off 1,575 shots in seven minutes—provided you were carrying 79 magazines on your person.”

This doesn’t mean it’s fruitless to limit (or ban) high-capacity magazines.  Not everyone has even a “novice’s” facility with handguns, and (as Donohue suggests) even the moments it may take to change a magazine might be enough for law enforcement to act.  Regardless, simply because it won’t stop all mass shootings, it doesn’t mean banning large capacity magazines won’t inhibit some.  More importantly, it could become another one of the “difficulties” that can accumulate to lessen the likelihood of a successful mass shooting.

Much the same can be said about recommendations regarding tougher background checks.  In 2013, CNN headlined a story: “Would background checks have stopped recent mass shootings?  Probably not.”  Likewise, in 2018, the New York Times piece reported the “vast majority of guns used in 19 recent mass shootings were bought legally and with a federal background check.”

However, the Times also said: “At least nine gunmen had criminal histories or documented mental health problems that did not prevent them from obtaining their weapons.” To me, this doesn’t indicate background checks can’t lessen the possibility of mass shootings, it’s more about improving the quality and depth of those checks.  I’m convinced better checks can add to the “friction” that can impede gun violence.

With respect to “mental health problems,” the Court in Heller made it clear that its decision “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by…the mentally ill.”

Yet today we have experts claiming that “there is no factual link between mental illness and violence against others.” (Emphasis in the original.)

While I absolutely agree it’s clearly wrong to say everyone suffering from a mental illness is a threat to others, it is also imprudent to suggest there’s never a connection.  This is especially so since the same experts who say there is no link nevertheless concede a “few U.S. mass shootings have been committed by people who were “mentally ill.”” When it comes to mass shootings, a “few” is too many, so let’s work on them.

Likewise, even if we agree that, as the Washington Post says, “[m]ost studies of mass shooters have found that only a small fraction have mental health issues,” addressing that “small fraction” is another way we might impose friction on the process that results in the terrible incidents.  Keep in mind that our military-derived theory looks for opportunities accumulate even “small” factors that can be combined to make a real difference.  The “small fractions” can add up.

Maybe there’s something of a definitional issue:  respected Duke University School of Medicine professor Jeffrey Swanson contends that the “fact that somebody would go out and massacre a bunch of strangers, that’s not the act of a healthy mind, but that doesn’t mean they have a mental illness.”

Yes, there may be important medical – and legal – distinctions, but isn’t it worth trying to address those who lack a “healthy mind” even if they don’t technically have a “mental illness”?

Furthermore, the Post reports that:

[A] 2018 FBI study found that shooters typically experienced several stressors in the year before they attack: financial pressures, fights with classmates or co-workers, and substance abuse. And on average, shooters displayed four to five concerning behaviors that those around them could notice — the most frequent being behavior related to mental health, interpersonal conflicts or some sign of violent intent.

And the New York Times reported earlier this week that:

About one in five mass murderers shows evidence of psychosis, according to Dr. Michael Stone, a forensic psychiatrist who maintains data on some 350 murderers going back more than a century.  The other 80 percent have many of the problems that nearly everyone has to manage at some point in life: anger, isolation, depressive moods, resentments, jealousy.

In addition to persons suffering actual psychosis, these two article identify several “behaviors” and “problems” that might be ameliorated by mental health treatment, even if it they are only “related” to mental health.  Additionally, it can also address gun violence beyond mass shooter situations.

Suicide is the most common form of gun violence

The overwhelming number of gun violence fatalities – two thirds in fact – are not homicides, but rather suicide victims.  Last May a Rolling Stone article observed:

“The Centers for Disease Control recorded 47,173 suicides in 2017, and there were an estimated 1.4 million total attempts.  Many of society’s plagues strike heavier at women and minorities, but suicide in America is dominated by white men, who account for 70 percent of all cases.

The American Public Health Association’s 2018 “Reducing Suicides by Firearms” study found that:

“Multiple risk factors for suicide exist, including a previous suicide attempt (the strongest predictor), a history of depression or other mental illness, alcohol or drug abuse, a family history of suicide or violence, physical illness, and a feeling of being alone.  However, as evidenced by the far greater prevalence of these factors than of suicide deaths, most people with one or more such risk factors do not go on to die by suicide.  While individuals with these risk factors are encouraged to obtain mental health treatment, many of those who die by suicide have no known record of such treatment, indicating a need for additional strategies to increase the safety of people at risk.  Reducing access to lethal means is one such strategy.”

An “additional strategy” to “increase the safety of people at risk” might be the “red flag laws” Professor Blocher referenced.  These “laws — known as extreme risk protection orders — that allow a court to intervene when someone shows warning signs of impending violence.”  It’s important because studies show that “half of those who commit mass shootings show warning signs that they were a threat to themselves or others.”

Some experts find there is “some preliminary evidence suggesting that extreme risk protection orders have been effective in stopping suicides.”  Nevertheless, NBC News says: “while researchers say the laws hold promise, particularly in preventing suicides, there isn’t enough research being done to understand their effect on homicides ─ let alone mass shootings.”

Again, not a perfect solution, but one that seems like it could be effective in some cases and would be, in any event, yet another piece that together with other measures can create an effective obstacle to gun violence.

What does not help:

Overly-intense media coverage.  NPR reported this week that “scientists who study mass shootings” say the evidence “shows that these incidents usually occur in clusters and tend to be contagious.” Indeed, they argue that [i]ntensive media coverage seems to drive the contagion.”  (Emphasis added.) A 2018 study is even more direct: there the researchers say their “findings consistently suggest that media coverage systematically causes future mass shootings.”  (Emphasis in original.)

We can’t expect the media not cover these events, but we can hope for responsible journalism.  The 2018 study points out that “self-imposed media guidelines are employed in other areas where unintended consequences could emerge from increased coverage, such as the media attention devoted to suicides” and suggests that such “guidelines could serve as a starting point for a discussion regarding media coverage when it comes to mass shootings as well.”

Fear mongering.  Fear mongering doesn’t help produce solutions.  Part of what responsible journalists can do is to give the public the facts, so that people can better understand the context, and deal with the risks realistically.  And some in the media do.

For example, Vox reports:

As shocking as mass shootings are, they are responsible for only a small portion of all gun deaths. In 2016, according to the CDC, 39,000 people died of gun-related injuries.  Mass shooting deaths represented less than 2 percent of all gun deaths in the US that year — 451 of nearly 39,000 overall gun deaths.

Last year author and Harvard instructor David Ropeik made the point in a Washington Post op-ed that despite the terrible school shootings of recent years, the “statistical likelihood of any given public school student being killed by a gun, in school, on any given day since 1999 was roughly 1 in 614,000,000.”  Ropeik recognizes the understandable psychological impact that the fear of harm to children occasions, but warns we “sometimes seek protection from our fears in ways that put us in greater peril.”   He counsels that:

“We should look at the facts and try to keep the risk in perspective.  We should worry about statistically bigger threats. We should more rationally weigh the costs and benefits of the ways we try to make schools safer.  We should reduce our exposure to dramatic and upsetting news coverage of such events and avoid what might be called “awareness poisoning” by not watching or reading every story for days on end and posting it all on social media.”

Ropeik acknowledges his prescription is easier said than done, but rightly insists that we “need not just reasonable gun control, but also a bit more self-control over our emotions and instincts if we want to keep ourselves and our kids safer.”

Politicizing mass shootings: Politicians and others of all political persuasions are too often quick to try to capitalize on heartbreak of these shootings by making shrill, partisan allegations (even though the two most recent killers seem to be on the opposite ends of the ideological spectrum – see here and here).

Does ideology mean as much as some politicians would have us think?  Stetson University psychology professor Christopher Ferguson wrote this week that “[m]ost mass homicide perpetrators don’t proclaim any allegiance to a particular ideology at all.” Are mass shooters more likely to be of a particular race? According to Ferguson, “[c]omparing mass shooters from 1982 to 2019 with the U.S. population as a whole shows the groups are made up of roughly similar proportions for race.”

On Monday, the Boston Globe’s Jeff Jacoby sensibly explained that:

In recent years, massacres in America have been carried out or attempted by white supremacists and Islamists, by anti-Semites and immigrant-bashers, by anti-abortion fanatics and Republican-haters.  Violent extremists have been white, black, and Asian, male and female, religious and atheist, left-wing and right-wing.  , There is no single profile of a mass shooter, no single cause of such mayhem, and no single scoundrel to blame for the poisoning of American culture. (Emphasis added).

Concluding observations:

I wish I could tell you we can completely prevent all mass shootings, but I just don’t think that’s possible.  Even if guns were totally outlawed, it does not appear they could be kept out of the wrong hands entirely.  Consider that despite having some of the toughest gun control laws in the world, Australian police estimate 260,000 illegal weapons remain in their country.

However, simply because total success is unlikely to be achieved, that doesn’t mean mass shootings, not to mention other deaths from gun violence, can’t be markedly diminished.  Nor should we be discouraged because particular measures may only have a limited effect.

In this regard it’s critical that we not sequentially implement individual measures because that risks “defeat in detail.”  Rather, as described above, we need to conduct “parallel operations” where many different actions engage the “enemy” of mass shootings at the same time.  Military experience shows that this kind of simultaneity is mutually supportive of individual actions, and can also reveal new vulnerabilities in the “enemy” to exploit.

In short, we must work – together – in order to, as Clausewitz might put it, “accumulate” as many “difficulties” as we can to impose on the “enemy” to produce as much “friction” as possible so as to make mass shootings less likely.

.Still, what might be the most effective measure?  Maybe the one found here.