It was Supreme Court Justice Oliver Wendell Holmes, Jr. , a veritable fount of philosophical wisdom disguised in juridical clothes (one of the only few in history who could be so acclaimed), who perhaps first observed that hard cases make bad law. The compulsion to do something, anything, to prevent another Sandy Hook, affords a poignant example of what Justice Holmes meant.
A great many people feel that law compels people to action. A better informed view is that law doesn’t compel people to action, but simply reflects what society has deemed to be acceptable behavior, and while law can increase the cost of pursuing unacceptable behavior on the margins of human experience, it can’t prevent outlier behavior. Killing a bunch of innocent school children and school staff is about as outlier a behavior as could be imagined. There is no enforceable law would have prevented it.
Just run the gamut of proposed preventative measures. What among them would have prevented Sandy Hook? How does a government prevent irrational, illogical, psychotic and murderous behavior prior to the fact? Illogical behavior, i.e., behavior that supposes no rational ends to the means employed, lies outside the realm of rational control.
For argument’s sake, take the most extreme of possible governmental measures—banning all privately owned firearms (though no one is seriously considering doing so, as the political practicalities are insurmountable). Was it necessary, once the madman decided to inflict mayhem and carnage and death on the children, teachers and school staff of Sandy Hook Elementary, that he used a gun or guns to do so? There are all sorts of means available for inflicting mayhem, carnage and death. None of the 9-11 hijackers carried guns, yet they managed to destroy two towers and partially destroy the Pentagon, killing about 3,000 people along the way. The troubled mind of the Sandy Hook killer was hell-bent to do some damage; he could easily have achieved similar results through different means. He could have planted a bomb. He could have locked all the doors and started a fire.
The mind of a psychopath bent on destruction can be as creative as the mind of a scientist seeking a cure for disease. It is the nature of mankind particularly, and the universe generally, that the ability to destroy increases in lockstep with the ability to create. Steel and dynamite built cities and highways in the early twentieth century. Steel and dynamite destroyed a great many of them before the century was half through. The atom destroyed legions of lives and whole cities before the power discovered in its nucleus was ever used for creative purposes.
Take the other extreme—arming teachers and school staff. The National Rifle Association at least pretends to believe that schoolteacher Jane could have whipped out a 9mm Glock strapped to her bodice according to school protocol and gunned down the deranged killer. Maybe one in a hundred Jane’s would have exhibited such depth of Hemingway-esque grace under pressure (perhaps the English teacher with an appreciation that what Hemingway believed—grace under pressure–was the greatest of all virtues), but most would have been terrified to even contemplate the horror of killing another human, even when that other human presented an obviously existential threat to their own life. Even soldiers in combat often fail to fire their own weapons. Could it be imagined that teachers in a classroom—in most cases and under most circumstances not considered as a combat zone—would do any better than soldiers in a firefight?
But there is a draconian way to prevent mass killings like Sandy Hook Elementary: eliminate mass gatherings. It is very difficult (except perhaps by suffusion of a deadly microbe, such as happened to Native Americans through the smallpox virus upon the arrival of Europeans in the late 15th century—but genocide through microbes in that instance was unintentional and quite specific to the circumstances), to kill on a mass scale without which human beings are massed conveniently together. Had the populations of Nagasaki and Hiroshima been diffused throughout the countryside instead of huddled together in their cities, the bombs would have killed far fewer. Mass killings accomplished through steel or gunpowder or the unleashing of the energy stored in the atom depend on concentrating force and power upon massed concentrations of human beings.
If Sandy Hook/9-11/Hiroshima, etc., could have been prevented by what amounts to reverse urbanization, should dispersion have therefore obtained? Are a few mass killings worth abandoning the quite profitable urban means of organizing civilized society? The cost of social dissociation is, at least presently, considered too high a price to pay to prevent mass murder. But some parents of school age children might decide that the cost of home-schooling is more proportionate to its benefits in the wake of the shooting. The Sandy Hook tragedy, aside from ironically making some gun and bullet manufacturers quite profitable for a few quarters, might also propel forward the gathering disintegration of trust in public schools reflected in the explosively-expanding home-schooling movement. The only viable answer to preventing the tragedy, the one that can’t be tried because of the impairment to aggregate social value it might entail, might very well be the strategy that is engaged by those most at risk for the next mass killing of kids in school.
Government depends for its power and relevance upon having the ability to protect its citizens from harm, both collectively, at the borders of its sovereignty, and individually, in their homes, persons and public places. Accordingly, governmental authorities would never counsel the only viable means of preventing a Sandy Hook type tragedy—the avoidance of mass gatherings of its citizens, whether in a theater, or a federal office building, or an office tower, or in a grammar school. If the government can’t seem to be doing something to protect individuals in their persons, property and liberty, it fears it will have failed of its essential purposes in the minds of the governed. So it feels it must do something to show that it can, indeed, accomplish the functions for which its citizens have given up a slice of their individual liberties for it to perform.
But no government could have prevented Sandy Hook. No government can predict when and how a borderline psychopath might become dangerous such that it could prevent every potential madman from acting on his delusions. The government can provide for more careful monitoring and care of the psychopaths in its midst, perhaps, but that’s about all.
Just last week, in my little hometown of Birmingham, Alabama, a Methodist minister cracked, and turned a gun on his wife and daughter, and then attempted to kill himself with a knife. The daughter was somehow able to wrestle the gun free from him before he could finish the job of killing her and himself with it. The pastor succeeded in killing his wife. I personally knew the guy and his family. He was, from every interaction I’d ever had with him, a pleasant and personable human being. No law, no governmental program or policy—nothing—could have prevented the tragedy of what he did. Something snapped inside him, and he turned violently murderous, bent on destroying everything around him, including himself. He had been off work for several months after having suffered head injuries in an automobile accident, which perhaps explains the source of his psychosis. But there is really no way to have known beforehand that he was drifting towards delusional violence.
What sort of law should or could be passed to prevent Methodist ministers from attempting to kill their families? The actions the pastor in Birmingham took were already illegal. Law can’t prevent tragedies like his. It can only help, if only a bit, to clean up the carnage afterwards. The same is true of Sandy Hook. Sandy Hook is a hard case. Trying to make law or policy in its wake that attempts to prevent it ever happening again would be symbolism over substance—the essence of bad law. The government would be wise to acknowledge its profound impotence in the face of such tragedies. No matter how steadfastly the government claims otherwise, it can’t always protect the life, liberty and property of the citizens it governs. Its inability to do so with outliers like Sandy Hook does not impair its overall relevance and purpose. Forthrightly admitting its impotence would render a tincture of legitimacy to actions it takes in other realms. Whatever law or policy arises from the Sandy Hook tragedy is bound to be bad, because Sandy Hook is a hard case, and hard cases make bad law.