I should start with a few words about Gabrielle Giffords. She is a delight. I don't know her well I've watched her campaign; we've had several conversations but her warmth and avidity, her obvious decency, are immediately apparent to all who meet her, or, perhaps I should say now, all but one. She is a human refutation of the sordid stereotypes about politicians. She is neither cynical nor craven; her willingness to talk and think freely made her an instant favorite of mine. So it's distressing, and vaguely obscene, how quickly she almost disappeared in the media lather that was unleashed by her shooting. One of her last public acts was to read the First Amendment to the U.S. Constitution aloud. She was, apparently, delighted by that honor. The First Amendment guarantees freedom of speech. But, ironically, it was an argument about the limits and excesses of free speech that preoccupied the cable-news bloviators in the days after she was shot. This was a distressingly convenient argument, allowing the bravos of the right and left to retreat to their respective bunkers and begin firing spitballs.
There are other, more practical, questions to be discussed. Two are obvious: Given the flood tide of massacres perpetrated by crazy people, have we made a grievous error in our policies regarding the confinement of the mentally ill? The second question involves the right to bear arms: Are there any limits at all to our gun fetishism? These are both questions of liberty. Our current policies on both represent relatively recent victories by civil libertarians of the left and right.
There are an estimated 2.4 million schizophrenics in the U.S. Not all of them are violent, but a significant minority of them are. Until the 1950s, such people at least, those so severely afflicted that they could not function in society were confined to mental hospitals. These were terrible places. A combination of humanity, chemistry and frugality rendered them obsolete. It was believed that a new class of tranquilizing drugs could create behavioral miracles. Those sufferers who still needed care would be moved from the state hospitals to community treatment centers. But few communities were willing to house the treatment centers, and the drugs were not always effective. So all of a sudden, in the 1960s, the streets of most major cities were teeming with homeless people, the vast majority of them drug addicts, but a significant minority of them mentally ill. Many were both.
At the same time, there was a romanticization of mental illness. In books and movies like One Flew over the Cuckoo's Nest a book Jared Lee Loughner listed as one of his favorites and King of Hearts, insanity was depicted as an appropriate, almost countercultural, response to the crushing conformity of an immoral society. This zeitgeist and the skilled advocacy of lawyers from the American Civil Liberties Union influenced a series of court cases that made it near impossible to commit mentally ill people to a secure facility without their permission, or even require them to have a psychological evaluation and accept a course of treatment. There has been some pushback in recent years, according to University of Virginia law professor John Monahan. "In some states, like New York, people who are identified as potentially dangerous are required to participate in a program of outpatient care and drug treatment," Monahan told me. That might have helped in Arizona.
As for gun control, a fever of excess has overtaken the country during the past 20 years. Even such a conservative stalwart as Judge Robert Bork said, in 1989, that the Constitution's Second Amendment guaranteed "the right of states to form militias, not for individuals to bear arms." But the National Rifle Association has waged a disastrously effective campaign in favor of the latter position and the Democratic Party has de-emphasized its traditional opposition. Even the right to bear assault weapons, which the founders couldn't have possibly anticipated, is now considered sacrosanct. In 2008 the Supreme Court ruled that local governments couldn't impose strict gun-control provisions. In Arizona, Loughner could simply walk into a gun store, buy his Glock and carry it about, concealed, without a permit. He could carry it into a bar, or a church. He carried it into a political rally. And used it.
Beneath these two issues treatment of the mentally ill and gun control lies a deeper one: Where does one draw the line between freedom and anarchy in a democratic society? According to Yale law professor Paul Gewirtz, "Our various legal rules, taken together, may be producing a society in which liberty is bordering on disorder." The libertarian tendency is deeply American, going back all the way to the Whiskey Rebellion. But it must be balanced against a civilized society's need for behavioral constraints, agreed upon by the consent of the governed. If the Arizona shootings point in any direction, it is toward reassessing the excessive liberties we've granted ourselves in recent years.