What becomes of a country that cannot protect its young?

 

March for our lives, Washington DC, 24 March 2018

 

It’s too early to say if the grassroots social movement initiated by students who survived the gun massacre at Stoneman Douglas High School in Parkland, Florida will be successful in nudging America’s gun laws in the direction of rationality and evidence.

After killing 17 people with an AR-15 style semi-automatic weapon, and injuring 17 more, 19 year-old former student Nikolas Cruz left the school premises, blending in with the crowd and remaining free for an hour before arrested.

On March 24, students and gun control advocates took to the streets of Washington DC in a “March for Our Lives”.

They’re trying to start a movement.  You can join them.

“To the leaders, skeptics and cynics who told us to sit down and stay silent, wait your turn! Welcome to the revolution!” said student Cameron Kasky.

Barack Obama tweeted: “Michelle and I are so inspired by all the young people who made today’s marches happen. Keep at it. You’re leading us forward. Nothing can stand in the way of millions of voices calling for change.”

In the thick of it, as usual, my friend Professor Lawrence Gostin from Georgetown University Law School, who leads the O’Neill Institute for National and Global Health Law.  You can read about the march on his twitter account here.

He writes: “From a long life’s experience on health and human rights I have found that no meaningful change happens without bottom up social mobilization.”

He’s right.  This is true of gun control, tobacco control, and much else in public health.

Is there constitutional space for rational, evidence-based gun control laws in the United States?

It’s sometimes assumed that the US Second Amendment, which states that “the right of the people to keep and bear Arms, shall not be infringed”, leaves little room for rational, evidence-based gun control policies and laws.

This is not so, argues Professor Gostin in a recent paper published in the Journal of the American Medical Association.  For additional resources, click here, here, and here.

In fact, rational firearms laws are compatible with the Constitution and with recent caselaw, suggesting that the real problem is a political one.  Rational, evidence-based measures to reduce firearms deaths in the United States could include:

  • mandating a higher minimum purchasing age for firearms
  • prohibiting dangerous individuals from purchasing or owning firearms
  • requiring safe storage
  • banning weapons with especially hazardous properties such as military-style rapid-fire firearms and high capacity magazines, and
  • banning open carry of firearms (an emerging issue for college campuses, where academics receive advice about what to do in “active shooter” situations).

Young people exercising another of their constitutional rights, March for our lives, Washington DC, 24 March 2018.  (However, Rick Santorum suggests they would be better served taking CPR classes)

 

What makes bottom-up change happen?

This is a neglected but vitally important questions for public health lawyers.

Will the anger and conviction that fuels the “March for our lives” movement endure?  Will it prove capable of raising the resources that will be necessary to make a compelling case for change to the American people?

Public health advocates often focus on content: the technical content of the policies they advocate, the evidence, and the rational case for change.  And then nothing happens.

More than ever, advocates need to better understand the factors that catalyse change, the factors that make social movements successful, and enduring.

Jeremy Shiffman has written about why some global health issues attract attention while others languish: his scholarship is helpful in also analysing national public health issues.

For social constructionists like Shiffman, global health problems like HIV, polio, or non-communicable diseases do not have any inherent priority or significance.  The attention an issue receives, while not unrelated to epidemiological facts, is “always mediated by social interpretations”.

From a social constructionist perspective, the “core activity” of global health advocates is ideational: health advocates must advance truth claims about the problem and its solutions that resonate with the values and shared interpretations of political leaders and those who control resources.

On this view, global health (and the same could be said of national public health priorities) is a competitive – and brutal – process of portraying and communicating severity, neglect, tractability and benefit in ways that appeal to political leaders’ social values and concepts of reality”.

Yet increasingly, reality itself is no longer a shared experience.  Gun control advocates and gun enthusiasts might as well live in different universes.  Their sources of information are completely unrelated; the things they find persuasive utterly different.

Speaking in Sydney on a recent visit, Barack Obama said that “social and political structures had not yet worked out how to deal with rapidly changing communications technology, a world in which people no longer watched the same TV channels or read the same newspapers. The rapid pace of change was having a flow-on effect across the globe, and was likely to get faster still. Discourse was becoming increasingly fragmented, with people becoming hermetically sealed off from each other inside very different information universes.”

The triple cocktail of extreme individualism, neoliberalism, and populism have created a social landscape in which there is less and less shared ground when it comes to values and visions for a better life.

Speaking as a non-American, it seems to me that the scale of the challenge, for gun control advocates, is reflected in the reflexive tendency of the pro-gun lobby to castigate the very mention of rational gun laws, following [America’s latest semi-automatic gunfire massacre: insert details here] as exploitative – as politicizing a tragedy.

A couple of examples.  Jesse Hughes, whose band, Eagles of Death Metal, was performing at the Bataclan theatre in Paris on 13 November 2015 when terrorists stormed in and took hostages, eventually killing 89, went on an on-line rant, calling the Stoneman High School students “disgusting vile abusers of the dead”.

Another right-wing media type tweeted the following about David Hogg, one of the Florida students advocating for stricter gun laws: “I’ve been hanging out getting ready to ram a hot poker up David Hogg’s ass tomorrow.”

All because some students who survived a mass murder at their school dared express their opinion that government ought to introduce gun control laws to help make such rampages less frequent.

Like the tragedy of the massacre at Sandy Hook Elementary School, the gun massacre at Stoneman Douglas High School reflects the failure of policy, the failure of politics and politicians, and ultimately, the potential failure of a society.

What becomes of a country that cannot – or will not – protect its young?

Authoritarian regimes, that fail the protect basic freedoms, or do so only partially, start to look a whole lot better.  That’s bad news for freedom, and also bad news for America.

The first responsibility of a country is to protect its young.  The innocents.  Time and again, America fails to do so.  That failure is not a constitutional imperative.  It’s a political choice.

 

Professor Larry Gostin will be speaking at Sydney Law School on 19 July, as part of an evening event titled: ‘Public health and health leadership in the USA: what can Australia learn’.  Sydneyhealthlaw.com will advertise this event in due course.  Professor Gostin will be teaching the unit of study, Global Health Law on 17-20 July; for more information on this unit, click here.  For more information on Sydney Law School’s Master of Health Law, click here and here.

Dancing on Christopher Hitchens’ grave? The tricky business of talking about consequences

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Vanity Fair, February 2004

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A “pro-smoking blogger for the libertarian right”  accuses me of “dancing on Christopher Hitchens’ grave”.

And other stuff.

Christopher Snowdon is a Research Fellow for the UK-based Institute of Economic Affairs, a think tank that receives tobacco funding.  He is an opponent of plain tobacco packaging, keeper of the pure flame of libertarianism etc.

My sin – contained in a paper forming part of a symposium on public health regulation and the “nanny state”, was to reflect on a self-confessed “crime spree” Hitchens took in New York City  in late 2003.

During the course of an autumn day, Hitchens broke as many of the city’s “petty ordinances” as he could, particularly its smoke-free laws.

At the time, Michael Bloomberg was in the second year of his first, 4-year term as NYC Mayor.  He went on to serve 3 full terms, introducing tobacco control laws that saw the adult smoking rate fall by 28% between 2002 and 2012, and the youth smoking rate fall by 52% between 2001-2011 .

Which is a terrible result, if you’re a tobacco company, but a magnificent result for New Yorkers – with changed life trajectories and longer, healthier lives for hundreds of thousands of people.

You can read about Michael Bloomberg’s public health legacy here.

Apparently embittered at the constraints on his smoking, Hitch lashed out, reflecting on the “shriveled core of the tiny Bloombergian mind”, and ending with:

“Who knows what goes on in the tiny, constipated chambers of his mind? All we know for certain is that one of the world’s most broad-minded and open cities is now in the hands of a picknose control freak.”

The editor of Vanity Fair, Graydon Carter, who at the time was being serially fined by the NYC Health Department for flouting its smoke-free laws and smoking in his office, published the whole account.

Then, in June 2010, at the height of his powers, Hitchens announced he had cancer  of the oesophagus.  As one journalist wrote, “The celebrated drinker and smoker who once claimed that “booze and fags are happiness” had succumbed to a cancer most often associated with drinking and smoking.”

Hitchens died less than 18 months later.

Like his hero Hitchens, Snowdon believes that smoke-free laws are anti-libertarian.  The mind boggles at this point, given that globally, one in ten people who die from tobacco are non-smokers who are unintentionally harmed (poisoned) by smokers….

However, to my mind the more interesting theme that excites Snowdon is the question of whether Hitchens’ diagnosis challenged his libertarian convictions.  Snowdon assumes that the rationale for discussing this issue was to concoct some sort of contrived, deathbed confession:

“Magnusson clearly thinks that Hitchens got his comeuppance when he died of cancer and wants to believe that he renounced his principles on his death bed.”

The record shows that Christopher Hitchens castigated those who promoted effective tobacco control, yet spoke frankly and publicly about his own cancer, acknowledging that it was probably caused by his smoking and drinking.

Hitchens made his choices, and talked about them freely.  He made his private life a public matter.

So we have permission, I think, to talk about Hitchens – who I suspect would have approved of being the topic of conversation.

“I’ve come by this particular tumor honestly”, he told Anderson Cooper on CNN in August 2010.  “If you smoke, which I did for many years very heavily with occasional interruption, and if you use alcohol, you make yourself a candidate for it in your sixties.” “I might as well say to anyone who might be watching – if you can hold it down on the smokes and the cocktails you may be well advised to do so”.

Cooper responded “That’s probably the subtlest anti-smoking message I’ve ever heard”.

“The other ones tend to be more strident”, Hitchens replied, “and for that reason, easy to ignore”.

“Even if this weren’t incredibly tasteless” Snowdon writes, “Magnusson could hardly have found a less fitting person to use as an example.”

Snowdon seems to think that the point of discussing Hitchens is to trip him up on his words, seek to make an object lesson out of him, or worse, to gloat.

But there are other reasons why Hitchens’ account of his illness is worth reflecting on.

Certainly, it was a compelling story. Statistics are easy to brush off: just ask a smoker.  But stories are a little harder.

Here comes this libertarian prophet – as sure as any libertarian ever was about the infantilising effect of public health laws – suddenly forced to come face to face with his own premature (and probably preventable) death.  Did he have conflicting feelings, second thoughts?  It’s not an unfair question.

“In whatever kind of a ‘race’ life may be”, Hitchens wrote  in 2010, “I have very abruptly become a finalist….In one way, I suppose, I have been ‘in denial’ for some time, knowingly burning the candle at both ends … .[F]or precisely that reason, I can’t see myself smiting my brow with shock or hear myself whining about how it’s all so unfair … . Instead, I am badly oppressed by a gnawing sense of waste. I had real plans for my next decade and felt I’d worked hard enough to earn it. Will I really not live to see my children married?  To watch the World Trade Center rise again?

Through his story, we catch a glimpse of the public interest that public health laws and policies are intended to protect.

The public interest in tobacco and alcohol control laws does not exist for the sake of some abstracted, disembodied “public”, but ultimately for the sake of all those individuals who might otherwise die prematurely, or just as frequently, as Simon Chapman writes, live long in distress and isolation due to the disintegrating impacts of their illness.

Bloomberg’s tobacco control laws were intended to help prevent the kind of death Hitchens died.  To say that is not to gloat.

Consequences tend to be trivialised or absent when libertarians set out their plans for how the world ought to be.

The narrative we tend to get is the one written by the be-suited Hitchens in 2003, flying through Central Park with his feet off the bicycle pedals, witty, cancer-free, not the man 7 years later, who writes  “The chest hair that was once the toast of two continents hasn’t yet wilted, but so much of it was shaved off for various hospital incisions that it’s a rather patchy affair. I feel upsettingly de-natured. If Penélope Cruz were one of my nurses, I wouldn’t even notice”.

How should public health advocates talk about consequences?

In the United States, gun enthusiasts have become so highly proficient at ignoring consequences that anyone who dares link the most recent gun-related massacre [insert dates & details] with that shocking, leftist, evil thing called “gun control” – is howled down for seeking to “politicise a personal tragedy“.

Plenty of compelling stories, it seems, but never a teachable moment.

But for the rest of us, prevention matters because people matter.  Their needless suffering or death is relevant to how we evaluate the wisdom of government actions, laws and policies.

The nanny state conspiracy theorists overstate their case.  Hitchens’ freedom to make choices about smoking, drinking, diet and lifestyle were his for the taking.  No one stood in his way.

Hitchens had no Damascus conversion over tobacco, or anything else for that matter, but his public expressions of regret were no less powerful for their subtlety.

[Interview between Anderson Cooper (CNN) and Christopher Hitchens, 6 August 2010: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=385×492527 (transcript);  http://ac360.blogs.cnn.com/2010/08/07/video-extended-interview-hitchens-on-cancer-and-atheism/ (video).]

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Patching up America’s broken heart: Could regulatory theory offer a solution to gun violence in the US?

Gun violence: America's new normal.

On Wednesday morning, the US suffered another gun-related tragedy. This time, reporter Alison Parker and camera man Adam Ward from WDBJ-TV, Virginia, were shot dead on air by a disgruntled former colleague.

Alison Parker’s father has said that he will not rest until the US introduces stronger gun control laws, and he challenged the media to keep the story as front page news until the government takes action.

The US federal government has been notoriously reluctant to implement stronger gun control laws, despite mass shootings in Sandy Hook, Virginia Tech, Charleston, and Aurora, Colorado, lobbying by high-profile politicians, including Gabrielle Giffords, herself a victim of gun violence, and efforts to tighten restrictions on gun ownership, led by President Obama.

The key barrier to tougher controls is the Constitutional protection on the right to keep and bear arms, which is inextricably linked to a heavily pro-gun culture in some parts of  the country, and a powerful gun lobby that is relentless in its quest to forestall any kind of law that would lessen the perceived rights of gun owners and, presumably, reduce gun sales.

Like many other people living outside the US, I see America’s libertarian approach to gun ownership as irrational, irresponsible, and as posing a serious (and unnecessary) threat to public health and safety. As much as anyone, I would like to see the US introduce comprehensive legislation setting uniform background check requirements, banning the sale of military-assault style weapons to the public, and closing off loopholes in gun trafficking laws – as a start. But I also understand the significant political and cultural barriers that the US faces in introducing strong legislative measures.

In this context, could a regulatory approach offer some inroads into solving the problem of gun violence?

Regulatory theory describes the range of regulatory tools and strategies that are available to governments and private regulators to shape behavior (both that of individuals and of industry or social entities). While regulation may involve “command-and-control” style laws that ban certain forms of conduct outright, more often the aim is to reduce or eliminate the hazards of productive social and economic activities, including risks posed to the environment, to workplace health and safety, and to public health through products such as contaminated food.

Regulatory strategies often involve government-designed laws and regulation, but regulatory theory also stresses the use of various forms of “soft law,” such as co-regulation, self-regulation and even “networked governance,” where large companies use contractual mechanisms to force smaller companies to adopt safe working methods, for example. In this model, governments’ role is often one of “meta-regulation” – encouraging, monitoring and overseeing the adoption of self-regulation and other voluntary measures by industry and civil society.

So what might a regulatory approach to gun control look like? Well, for a start, it could involve pressuring the private sector to adopt voluntary gun control strategies. For example, Walmart has announced that it will stop stocking assault rifles in response to reduced consumer demand. What if there was an industry-wide code on the sale of certain weapons to the public, accompanied by monitoring and oversight by an independent organization?

There are a range of other opportunities here – what about economic mechanisms? Can we harness demand for safer communities in some way, for example, by asking the public to boycott pro-gun businesses, or “naming and shaming” such businesses on The Internet? Are there ways in which safer gun ownership behaviours could be encouraged through education and information-based strategies, creating a shift towards a culture that doesn’t accept mass shootings as the new norm?

Regulatory scholars often suffer from a bad reputation, on the basis that they tend to support “soft” or “hands-off” approaches to social problems. A regulatory approach to gun violence wouldn’t be a final solution. It’s certainly not enough by itself, and it’s no substitute for effective government action. But it might be one step on a long and winding road to a safer American society. I’m sure that for the victims of gun violence and their families – like Andy Parker – anything is better than nothing.