No More Band-Aids, It's Time to Seek a Cure: A Comment on Gun Control Legislation and Making What is Illegal, More Illegal

Daniel Yanks

            As the United States is seemingly plagued by gun violence and mass shootings, helpless cries ring out from all over the country from victims and their families through the president himself.  These acts are truly despicable and they cause an unstable, emotional legislative environment after many.  It is important that we take these emotions and trauma into heavy consideration when writing new legislation to help control and prevent these acts from ever happening again, but it is more important that we don’t let these emotions cause ineffective reactionary legislation and news coverage post-shootings.  This trend of reactionary legislation, or the process of “passing or proposing laws subsequent to any instance of violent crime,” was first acknowledged by Congressman Michael Grimm who urged his colleagues not to resort to such measures in the aftermath of the 2012 shooting of Representative Gabrielle Giffords in Arizona.[i]  Unfortunately, many gun control laws in the United States originated out of reactionary legislation and as a result are not as carefully crafted or as efficiently carried out as they might be.[ii]

            The willingness of citizens to relinquish their Second Amendment rights in response to a perceived public threat goes back to the 1930s.[iii]  The fear of organized crime and the aftermath of the St. Valentine’s Day massacre set the stage for the ratification of the National Firearms Act, which required registration of all firearms and an excise tax on the transfer and manufacture of machine guns and other destructive devices.[iv]  These happenings, events, and Acts have growingly increased over time since the 1930s–but more recently–have dramatically increased with the massive amount of coverage of these gruesome events and political battle cries and fingers being pointed to blame.

            Mass Shootings are now occurring at alarming rates, despite continued legislative attempts to prevent gun violence throughout the twentieth and into the twenty-first century.[v]  Each time a large-scale incident makes national headlines, gun control and gun rights activists alike weigh in on how each of their respective causes could have prevented the incident.[vi]  In response, legislators have continued the trend of reactionary legislation started in the 1930s- meeting no more success in curbing gun violence than previous attempts did.[vii]  In many instances, these legislative fixes fail to address the major issues with pre-existing gun control legislation, including the legislative inefficiencies or loopholes which allowed the perpetrator to access firearms in the first place.[viii]

            From the massacre in Aurora, Colorado, to Sandy Hook Elementary School, to Pulse Nightclub in Orlando, these horrible events, covered by the media, politicians, and the president, time and time again pointless legislation has been passed, when instead, attempts should have been made to correct the already enacted legislation to prevent more Americans from being harmed.  Passing new legislation could be helpful if done correctly, however, most of the time the problems with it are not actually identified and solved.  The difficulty with using the law to restrict gun use and prevent criminal activity is that it assumes that criminals will follow the law as they commit their illegal crimes when in fact “there is an obvious gap between using the law to restrict gun use and the cessation of criminal activity.”[ix]  Enacting legislation in this manner serves only to prevent law-abiding citizens from committing violent acts.[x]

            Rather than looking at preventing firearm homicide by making it more difficult to legally own a firearm, American’s who truly wish to prevent horrific events, such as mass shootings, should look to two factors; the flaws with the current system; and the dangers caused by the media and societal response to mass shootings.

Andre Simmons, an FBI behavior analysis expert, notes a common mindset amongst active shooters for whom shootings bring “a moment of omnipotent control and domination.”[xi] These mass shooters have created a narrative and have persuaded themselves to believe it, they use their spoken warnings, taunting words to victims, or public manifestos to tell the story to others.[xii]  Our ritual response to mass shootings, then, is the implementation of their final desire–to be memorialized as an anti-hero, or broadcast as a victim of circumstance and thus vindicated.[xiii]

Media coverage highlighting deviant and dangerous behavior–including that exhibited by mass shooters–inspires copycats to follow suit and even compete with the perpetrator.[xiv]  By including the name of a shooter, his characteristics, the details of the crime, a tally of victims, and comparisons with other notorious shooters, the media serves to encourage this trend.[xv] The media’s impact on society in the wake of mass shootings is not limited to the possibility that reports will inspire future shooters.[xvi]  Media reports chronicling the disturbed mental state of the perpetrators also contribute to the public association of mental illness with violence.[xvii]  Because people fear what they cannot understand, and because mass shootings are particularly good examples of this sort of random, senseless, and unpredictable violence, the public looks for an explanation and the focus on mental illness provides a good scapegoat.[xviii]

By changing the perception of mental illness from something that is to be feared, to something that requires assistance and understanding, we can reduce the stigma of mental illness, encourage persons in need of help to seek it, and ensure public safety by working to understand and prevent the risk factors that make individuals susceptible to violence.[xix]  In accurately portraying mental illness as a condition that is neither desired, nor caused by fault on the part of the patient, we can advocate for appropriate treatment both of the person and of their mental illness.[xx]  Although it may seem counter-intuitive to some gun control advocates, the system of faulting and stigmatizing individuals with mental illness is not effective and public safety would be better served by openness and understanding.[xxi]

The problem with current gun control legislation is not that Americans are discussing the political implications of gun ownership and mental illness, the problem is that these discussions overlook the root cause of gun violence and fall “into predictable patterns: the left blaming the right for inflammatory rhetoric, the right blaming the left for unfairly singling it out.”[xxii]  As with many ongoing policy discussions, the problem of mass incidents of gun violence calls out for a Band-Aid and a cure.[xxiii]  Because of the increase in the frequency, scale, and impact of these crimes, it is necessary for us to act quickly and effectively–the problem is one that calls out for immediate attention in the form of long lasting, effective change.[xxiv]

That change may be brought about through informed and carefully considered legislation that avoids the historical trend of quick and ineffective reactionary legislation.[xxv]  By closing loopholes and enforcing legislation to its full potential, changing our societal approach to violence to deter would-be anti-heroes, and reducing the stigma surrounding mental illness to encourage effective treatment, we may truly do something to ensure that mass shootings do not continue to rise in frequency and severity.[xxvi]

[i].                  Aimee Kaloyares, Article:  Annie Get Your Gun? An Analysis of Reactionary Gun Control Laws and Their Utter Failure to Protect Americans from Violent Crimes, 40 S.U.L. Rev. 319, (Spring, 2013). See also, Michael Mcauliff, Grimm:  No ‘Reactionary Legislation’ to Arizona Shooting, N. Y. Daily News (Jan. 10, 2011), http://www.nydailynews.com/blogs/dc/grimm-reactionary-leigislation-arizona-shooting-blog-entry-1.1661207.
[ii].                See discussion infra at Parts II, III.
[iii].               Kaloyares, supra note 3, at 326.
[iv].               See Kaloyares, supra note 3, at 326; 26 U.S.C.A. § 5891 (1987).
[v].                See infra Part III.B.
[vi].               See infra Part II–III.
[vii].              David Olinger, Following the gunsDenver Post (Aug. 1, 1999), http://extras.denverpost.com/news/shot0801.html.
[viii].             David Olinger, Following the gunsDenver Post (Aug. 1, 1999), http://extras.denverpost.com/news/shot0801.html.
[ix].               Flaherty, supra note 76, at 46.
[x].                Flaherty, supra note 76, at 46.
[xi].               Patricia Romano, Opinion:  Society’s Attitudes About Violence Are At The Root of ‘homegrown terrorism’, Montreal Gazette (Nov. 6, 2014), http://montrealgazette.com/news/national/opinion-societys-attitudes-about-violence-are-at-the-root-of-homegrown-terrorism.
[xii].              Id.
[xiii].             Id.
[xiv].             Joseph Grenny, The Media is an Accomplice in Public Shootings:  A Call for “Stephen King” Law, Forbes (Dec. 13, 2012), http://www.forbes.com/sites/josephgrenny/2012/12/13/the-media-is-an-accomplice-in-public-shootings-a-call-for-a-stephen-king-law/.
[xv].              Id.
[xvi].             Lewis, supra note 17, at 151.
[xvii].            Lewis, supra note 17, at 151.
[xviii].           Lewis, supra note 17, at 151.
[xix].             Id. at 748.
[xx].              Id.
[xxi].             Id. at 747.
[xxii].            Richard Stengel, After Tucson, TIME (Jan. 13, 2011), http://content.time.com/time/magazine/article/0,9171,2042356,00.html.
[xxiii].           See Kaloyares, supra note 3, at 320.
[xxiv].            See Clark, supra note 62.
[xxv].             See Kaloyares, supra note 3, at 320.
[xxvi].            See Shulman, supra note 139.

Economic Liberty in a World of Pure Imagination: A Theoretical Analysis of Willy Wonka, Natural Rights, and The New Age of Innovation


       Tammy M. Eick

Invention, my dear friends, is ninety-three percent perspiration, six percent electricity, four percent evaporation, and two percent butterscotch ripple.”[ii]

There is something uniquely captivating about the original film, Willy Wonka and the Chocolate Factory, that touches the heart and spirit, regardless of age.[iii]  In 2014, the film was named a cinematic treasure to be preserved for all time in the Library of Congress for its significance in American culture.[iv]  Throughout the film we learn that if there was one thing Willy Wonka valued above all else, it was the limitless belief he had in the capacity of his imagination.[v]  Entrepreneurs are likewise driven by some unknown force of relentless hope and optimism.[vi]

Having the freedom to choose how one builds their life financially has long been a value weaved into the quiltwork of the American dream.[vii]  This is fundamentally true for those born with an entrepreneurial spirit.[viii]  As the creator of a confectionary enterprise, and as a staunch advocate for inspirational innovation, Willy Wonka is much like a fictional embodiment of the entrepreneurial spirit itself.[ix]  According to the Forbes Fictional 15, Wonka’s portfolio valued against “real-world commodity and share prices” puts his net worth somewhere in the neighborhood of $2.3 billion—not bad, for a candy man.[x]  However, the regulatory realities faced by entrepreneurs in America today would likely paint a much different picture for this confectionary mogul.[xi]

The rapidly diminishing cost of information on a global scale is fundamentally changing how developed countries operate.[xii]  This tech-driven phenomenon, in turn, has given rise to a surge in market competition, which is “quickly separating winners from losers” in almost every industry.[xiii]  According to finance experts, “[t]he spoils are going to the boldest innovators.”[xiv]  To survive, industry leaders are uprooting long-established business models, to rebuild, fostering one thing above all:  Innovation—not just break through innovation, but continuous innovation.[xv] 

Many believe that America is falling behind in this New Age of Innovation.[xvi]  For the ninth time since 2008 the United States has dropped on the Heritage Foundation’s global index of economic freedom.[xvii]  A 2017 survey conducted by the National Small Business Association revealed that small businesses are paying an average of $12,000 each year just to remain in good standing with government regulators.[xviii]  The regulatory start-up costs for new business is almost seven times that, at the staggering cost of $83,019. [xix]  Regulatory burdens faced by entrepreneurs are made worse by decades of unchecked administrative overgrowth, which has led “to duplicative, obsolete, conflicting, and even contradictory” regulatory rules.[xx]  Many of these economic regulations beg the question of what—if any—legitimate public health and safety interest could possibly be advanced to justify such restrictions on economic liberty.[xxi]  As the Federal Trade Commission’s acting chairwoman, Maureen Ohlhausen, acknowledged, “[o]ccupational licensing stands out as a particularly egregious example of this erosion in economic liberty.”[xxii]  Ohlhausen goes on to point out that:  “Consumers can, and do, easily evaluate the quality of interior designers, make-up artists, hair-braiders, and others. I challenge anyone to explain why the state has a legitimate interest in protecting the public from rogue interior designers carpet-bombing living rooms with ugly throw pillows.”[xxiii]

But, despite the growing number of Americans facing hard economic times, and public dissatisfaction with government on the rise, for nearly the past century, the Supreme Court of the United States has continued to pass the ball on virtually every opportunity before it to strike down arbitrary economic regulations.[xxiv]  The historical origins for this deferential jurisprudence dates back to 1905, when the Supreme Court issued one of its most notorious rulings in Lochner v. New.[xxv]  It was in Lochner that the Court made the unprecedented declaration that the right to contract was an “individual liberty protected by the [Fourteenth] Amendment of the [United States] Constitution,” irrespective of its lack of textual support in the Constitution itself.[xxvi]  For decades the conventional narrative has been that the Lochner ruling “was [so] obviously and irredeemably wrong.”[xxvii]  Lochner has been, and continues to be, the poster-child of judicial activism—that is, the “illegitimate intrusion by the courts into a realm properly reserved to the political branches of government.”[xxviii] 

Despite the overwhelming consensus among legal scholars, judges, and politicians alike regarding Lochner’s disfavored status, the reason for why Lochner was wrong is still largely a matter of unsettled debate.[xxix]  Unlike many of the non-textual privacy rights currently protected by the Court—such as reproduction and marriage—economic liberties continue to be rejected as non-textual rights under the Constitution.[xxx]  As Professor Richard Levy argues, this logical bias by the Court presents a problem because it “never fully explained why some [non-textual] rights are entitled to special protection,” while others are not.[xxxi]

This Comment argues that just as contemporary constitutional jurisprudence finds justification for non-textual privacy rights in the Bill of Rights, it can—and should—likewise extend that logic to non-textual economic rights in not only the Bill of Rights, but also in the Declaration of Independence.[xxxii]  Within the very text of the Declaration it leaves no doubt, “that all men are created equal, [and] that they are endowed by their Creator with certain unalienable Rights.”[xxxiii]  These fundamental rights “did not simply come from a piece of paper,” but, rather, emanate from the natural rights inherent in us—rights that existed before government.[xxxiv]  It is only by the People’s consent to be governed that empowers governments to regulate.[xxxv]  This is the social contract between the People and their government—that only for the necessary purpose of protecting these unalienable rights is the government authorized to restrict economic liberty.[xxxvi]

As America marches ever forward into the New Age of Innovation, will the Supreme Court continue to pay obedient deference to the Regulatory Leviathan?[xxxvii]  Or, will it appeal to a higher law, in the spirit of the Founding Fathers, to right the scales of democracy?[xxxviii]  One hopes for the latter.


[i].             Leslie Bricusse & Anthony NewleyPure Imaginationon Willy Wonka & the Chocolate Factory”: Musical from the Original Soundtrack of the Paramount Picture (Paramount Records 1971).
[ii].           See Willy Wonka & the Chocolate Factory (Warner Bros. Pictures 1999) (1971).
[iii].          See Casey Robinson, Born to Be Wild(er): The Willy Wonka EffectFordham Observer (Sept. 29, 2016), http://www.fordhamobserver.com/born-to-be-wilder-the-willy-wonka-effect/.
[iv].           Cinematic Treasures Named to National Film RegistryLibr. Congress (Dec. 17, 2014), https://www.loc.gov/item/prn-14-210/.
[v].            Zach Heller, Willy Wonka Is a Marketing GeniusBe Innovation Blog (June 3, 2009 12:10 PM), https://zachheller.com/2009/06/03/willy-wonka-is-a-marketing-genius/.
[vi].           See Casey Robinson, Born to Be Wild(er): The Willy Wonka EffectFordham Observer (Sept. 29, 2016), http://www.fordhamobserver.com/born-to-be-wilder-the-willy-wonka-effect/.
[vii].         See Felix Livingston, The Entrepreneur as a Defender of LibertyFund. Econ. Ed. (Sept. 1, 1996), http://fee.org/article/the-entrepreneur-as-a-defender-of-liberty/.
[viii].        Id.
[ix].          See Steve Struss, Willy Wonka, Entrepreneur ExtraordinaireUSA Today:  Money (Sept. 2, 2016, 4:29 PM), https://www.usatoday.com/story/money/columnist/strauss/2016/09/02/willy-wonka-entrepreneur-extraordinaire/89780100/.
[x].            See The Forbes Fictional 15, #10 Wonka, WillyForbes:  Lists, https://www.forbes.com/lists/2005/fictional/10.html (last visited July 27, 2017); David M. Ewat, The 2013 Forbes Fictional 15Forbes (Jul. 31, 2013 12:29 PM), https://www.forbes.com/sites/davidewalt/2013/07/31/the-2013-forbes-fictional-15/#2430dc767ff5; Willy Wonka & the Chocolate Factorysupra note 2.
[xi].          See infra Note
[xii].         See Julian Birkinshaw, Beyond the Information AgeWired, https://www.wired.com/insights/2014/06/beyond-information-age/ (last visited July 24, 2017).
[xiii].        Alex Kazaks et al., The Age of InnovationMcKinsey & Co.  (March 2017), http://www.mckinsey.com/industries/financial-services/our-insights/the-age-of-innovation.
[xiv].        Id.
[xv].         See C.K. Prahalad & M.S. KrishnanThe New Age of Innovation 11 (2008).
[xvi].        Id.; Birkenshaw supra, note 12.
[xvii].        See infra Section II.B.3.
[xviii].      2017 NSBA Small Business Regulations Survey (Nat’l Small Bus. Ass’n, Washington, D.C.), Jan. 2017, at 2.
[xix].        Id. at 9.
[xx].         See The Cumulative Cost of RegulationsRes. Summary (Mercatus Ctr. Geo. Mason U., Arlington, Va.).
[xxi].        Maureen K. Ohlhausen, Acting Chairman, Fed. Trade Comm’n, Remarks at the George Mason Law Review’s 20th Annual Antitrust Symposium:  Advancing Economic Liberty 1, 2 (Feb. 23, 2017)
[xxii].       Id. (emphasis added).
[xxiii].      Id.
[xxiv].      See Richard E. Levy, Escaping Lochner’s Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. Rev. 329, 334-40 (1995).
[xxv].       198 U.S. 45 (1905); Thomas B. Colby & Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527, 528, 533, 535 (2015).
[xxvi].      Lochner, 198 U.S. at 53.
[xxvii].     See Colby & Smith, supra note 25, at 528.
[xxviii].    Id. at 535; Cass R. Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873, 874 (1987).
[xxix].      See Colby & Smith, supra note 25, at 529, 540.
[xxx].       Id. at 334; Richard E. Levy, Escaping Lochner’s Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. Rev. 329, 334 (1995).
[xxxi].      See Levy, supra note 30, at 362.
[xxxii].     See infra Notes 33-36.
[xxxiii].   The Declaration of Independence para. 2 (U.S. 1776).
[xxxiv].   See Clarence Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, 12 Harv. J.L. Pub. Pol’y 63 (1989).
[xxxv].    Id.
[xxxvi].   Id.
[xxxvii].  See Birkinshaw, supra note 12; Livingston, supra note 7.
[xxxviii].  See Thomas, supra note 34, at 63; Livingston, surpa note 7.