Wednesday, August 21, 2019

Details Matter: Finding Ways To Reduce Mass Shootings

As this is written, in the wake of two horrible mass murders involving firearms, we are seeing the same knee jerk proposals and the same response in opposition.  I'm writing this in an effort to break this deadlock and help us to actually do something about the senseless mass murders that have become all too common.  I will look at the common proposals and offer some alternatives that may be much more effective.

No one wants mass shootings to continue.  Not gun control advocates, not gun rights advocates.  No one - least of all the gun rights advocates, because they are a clear danger to the right they want to protect.

Before we look at the various proposals, we must recognize that there are constitutional limits that rule out many potential gun laws.  For instance, the Supreme Court has taken a handgun ban off of the table, even though handguns are the most common weapon in both mass shootings and murders in general.  Additionally, SCOTUS has established a test that all gun control laws must pass.  More on this later.

So, let's look at some of the most common proposals:

Red Flag Laws are deeply flawed - but alternatives could do a lot of good

The potential for abuse of Red Flag Laws
is great - during the first year of California's
law 90% of orders were determined to be
unfounded and were lifted after the subject's
case was heard.
Red Flag Laws are a step in the right direction in that they focus on dangerous people, rather than just one method of mass murder.  However, they are flawed because after finding that the person is dangerous, all that is done is to take away their guns.  The flaw in this system can be seen in the very crime that motivated the passage of the first such law.  In that case, the murderer used knives, his car and guns to kill people.  Had a Red Flag Law been in place, and if it were used, his guns would have been taken away - but he would have been free to murder with his knives and his car.  He also would have been free buy a firearm on the black market.  It doesn't matter if you are killed with a gun, a truck or a bomb - you are still dead.

There are, however, better alternatives.  

First, every state should have an emergency mental health commitment law - and police need to be trained to make the most of them.  We need to recognize and treat the mentally ill.  If need be, they should be confined long term.  People committed under such laws can and should lose their firearms rights.  Police should have the ability to seize firearms from people thus committed.  It makes no sense to say, "This person is mentally unstable and dangerous, but all we are going to do is take the guns they have now."  Of course, due process must be protected, but this is also doable.

Second, we need to make sure that current laws forbidding subjects of restraining orders, also called orders of protection, from possessing firearms are enforced.  Judges should order firearms seizures at the time such orders are issued.  While restraining orders are far from perfect, it makes no sense to issue such an order and allow the subject to keep their firearms - or to take their firearms without issuing an order.

Third, we need to make preparing to conduct a mass murder a crime.  If two people conspire to plan a mass shooting, they can be prosecuted for conspiracy.  The problem with mass shootings is that they are usually a solo crime.  We need to make sure that law enforcement has the tools to put those who are actively planning and preparing to commit mass murder away for a very long time.

Once we have taken the preceding steps, it is possible that there may be a limited place for Red Flag Laws - but only when the mental health and criminal laws fail - and only if the constitutional right to due process of law is respected.  They are not going to work as the primary tool to prevent mass murder.

We need to adopt the methods used by the Secret Service and those used by domestic intelligence agencies to stop terrorist attacks.

The focus here is on detecting the attacks before they happen.  This will not stop 100% of them, but it would stop many of them.  We need to stop focusing upon the tool that mass murderers use, and make our primary focus detecting and stopping dangerous people.  We have not lost a president in over 55 years.  Many assassination attempts have been detected and stopped before they ever got close to happening.  Applying these methods should enable us to stop mass murders no matter what method they plan to use - and there are many..

The greatest risk factor for mass shootings may very well be phony gun free zones, secured by nothing more than a sign

Two places where there have never been a mass shooting: The secure area of an airport and a shooting range - the first because no one has guns except security personnel, and the second because everyone has a gun.

If a gun free zone is really secured - screening at all entrances, metal detectors, etc. and the perimeter is properly secured, the risk of a mass shooting is greatly reduced if not completely eliminated.  If the location is open, but potential attackers know that there is a good chance that potential victims are armed, there is also little chance of an attack.  

Both of these facts are especially true of random public mass shootings where the sick individual simply wants to kill as many people as possible, with little or no regard for who they are.

The problem is not gun free zones per se, it is gun free zones enforced by the "honor system".  Posting a sign is very effective at keeping people who are legally armed, such as off duty cops and people licensed to carry, out of the area.  Cops and CCW license holders are both extremely law abiding - they are simply not a threat.  Keeping these people out of an area does not make that area safer - it makes it more dangerous.

It's not just the absence of cops and legally armed citizens that make these areas less safe, it is the fact that mass murderers can see the signs and know that they are unlikely to face any armed opposition for several minutes.  The longer it takes for a "good guy with a gun" to arrive the higher the body count - and these sick individuals want to kill as many people as possible.

Gun control groups play fast and loose with the facts on gun free zones.  I have looked at literally hundreds of public mass shootings, and the overwhelming majority took place in gun free zones.  So, how come gun control groups constantly say this is not true?

The FBI considers any shooting with 4 or more victims to be a "mass shooting".  Obviously,  with this definition, there are many different kinds of mass shootings.  They fall naturally into the following categories: Domestic violence, gang shootings, workplace violence, and public mass shootings.  Obviously, there is a huge difference between a gang "drive by" and workplace violence.  If you mix all of these very different categories together, gun free zones do not appear to be as much of a factor - but if you look at public mass shootings and workplace violence, you discover that well over 90% of these shootings happen in gun free zones. 

The most effective way to deter potential public mass shooters is to let them know that they will probably face armed opposition very quickly.

This can be done with covert armed security, and/or allowing lawful carrying of firearms - and then making sure that potential mass shooters know about it.  As mentioned above, the goal of workplace mass shooters and public mass shooters is not to kill "only" one or two people.  As if playing a video game, they want to rack up the highest "score" possible.  They hope to do this by selecting a location where their victims will not be able to shoot back because they are not armed.

History shows that these sick individuals plan their crimes carefully.  Before they fire their first shot at a potential victim, they have already decided how they want things to end.  In the vast majority of cases, the plan is to die.  In a much smaller number of cases, the murderer wants to tell their story - which means they want to survive.  In only a very small number of cases have they wanted to "shoot it out" with police.

Either way, if they want to die or the want to live, as soon as they face another armed person, their ability to control the outcome disappears.  If they want to die, they could just be wounded and survive.  If they want to live they could be killed.  This loss of control causes the murderer to activate their end game plan - meaning that they either kill themselves or surrender.  Very rarely will they "shoot it out".

The point is that these individuals know going in that as soon as someone else with a gun shows up - it's over.  For this reason they try very hard to avoid places that may have armed citizens or off duty cops.  For instance, the Colorado theater shooter picked the only theater in the area that was showing the Batman film and had clearly posted "No Guns" signs.  There were theaters closer to his home, farther away, smaller and larger.  The only reason for picking that theater is that he knew that off duty cops and licensed citizens were not supposed to carry there.

Just as "no guns" signs attract mass murderers, making it clear that potential victims may be armed will likely cause them to look elsewhere. 

Expanding background checks will not help - but plugging the holes in the system likely will.

For details see Expanding Background
Checks Will Accomplish Almost
Nothing - There Is A Better Way
Contrary to what gun control groups want you to believe, neither criminals nor mass shooters are getting their firearms via the non-existent "gun show loophole" or via private party sales in which the seller does not know or suspects they could not pass a background check at a dealer.  Why do criminals get their guns?  For criminals, the most common source is black market dealers.  For mass shooters, the most common source is licensed dealers where they pass a background check, either because they have no prior events that prohibit firearms possession - or, and in Sutherland Springs, a conviction or mental health commitment was not reported to the FBI for inclusion in the database.  About 1/3 of of people prohibited from owning firearms are not in the system.  This means that they will pass a background check at any dealer.

We will get to the issue of mass murderers that have no prior record later, but we can prevent prohibited people from buying guns through legal channels by fixing our broken background check system.  All courts must be required to report all criminal convictions and mental health commitments to the FBI system.  Additionally, juvenile convictions and mental health records must be included.  This would have stopped the Ohio shooter from obtaining a gun through legal channels.

After Sutherland Springs, a bill aimed at fixing this problem passed, but we will be paying for the broken system for decades to come as criminals and other prohibited persons use the guns they were able to obtained when the system failed.  It also remains to be seen if the FixNICS law will produce results.

Our background check system will be useless until we punish people for "lying and trying"

Pres. Obama's ATF Director called prosecuting
criminals who illegally try to buy guns "a waste
of resources".
This change is directly related to what we just talked about.  Lying and trying is when a person who is prohibited by law from owning firearms - for instance because they are and convicted felon or have a history of severe mental illness - walks into a gun store and lies on the form, hoping to slip through.  This is exactly what the Sutherland Springs mass murderer did - and as we all know, he slipped through.

The problem here is that these people are almost never prosecuted.  Thousands are rejected each year and prosecutions number in the double digits each year.  Excuse me for suspecting that when someone who is mentally ill or a felon and they attempt to buy a gun illegally, we should be very, very concerned.

Instead, according to Pres. Obama's ATF director, prosecuting prohibited person for "lying and trying" is "a waste of resources".  It was not much better under the Bush administration.  I have not seen stats from the Trump administration, but I have heard nothing to indicate that things have changed.

The problem here is two fold:

First, we are missing an opportunity to prevent gun crime or even mass shootings.  In some cases these people simply want a gun for self defense, but in many cases they want it so they can commit gun crimes.  We are leaving them on the street, where they can access the thriving black market to obtain a firearm.

Second, with the prosecution rate so slow, prohibited persons know they are not taking much of a chance by lying in an attempt to slip through.  This encourages criminals and the mentally ill to do just that.

Our background check system will continue to be useless until we severely punish straw purchasers

The problem with this billboard is that
offenders seldom get any jail time,
much less ten years.
A straw purchase is when a person who cannot legally buy a firearm has someone with a clean record buy a firearm for them.  This is a crime (felony) for both the straw purchaser and the prohibited person.  There is a warning on the federal Form 4473 that everyone buying a firearm at a dealer must fill out - so these people know that what they are doing is highly illegal.

So, one would think that these people would be severely punished, right?  WRONG.  When they are prosecuted - and prosecution levels are low - it is nearly unheard of for for them to serve any time in prison.  Until it is well known that supplying a firearm to someone who cannot legally own one will cost you 5-10 years in prison, this will continue.

History shows that banning so called "assault weapons" will not help (and is likely unconstitutional) - any solution must focus on preventing ANY gun from being used in mass murder.

When one category of firearm is used in several mass shootings, the knee jerk reaction is to simply ban them.  However, people familiar with firearms who have followed mass shootings (like myself) can see the problems with this.  The bottom line is that you do not need a semi-auto rifle to kill a lot of people in a public mass shooting.  The mass murderer at Virginia Tech (who also slipped through the background check system) used two handguns to kill 33 people.  The Santa Fe High murderer used a 12 ga pump shotgun and a .38 revolver in the second most deadly school shooting of 2018.

Given this reality, it is easy to see why gun rights advocates don't want to agree to a ban on semi-auto rifles, or AR15s.  This is what they see happening:  First, so called assault rifles are banned.  If by some miracle that ban could actually be enforced, mass murderers would turn to other, less scary looking semi-auto rifles.  At that point the cry would go out to ban these rifles.  When the killing continues with semi-auto pistols, the call would be, " Ban handguns and the problem will be solved".  This would continue until all, or nearly all guns are banned.

Even worse is the argument that "weapons of war" should be banned.  What most people unfamiliar with guns do not know, but gun owners do know is that ALL GUNS are, or have been "weapons of war".  So effectively this is a call to ban all firearms, while still sounding reasonable.

The reality is that the AR15 is - by far - the most popular firearm in America.  Yet it is seldom used in murders.  In fact, 20 times more people are murdered with handguns than with all rifles combined.  In fact, more people are murdered with knives, clubs, and bare hands and feet INDIVIDUALLY than with all rifles combined.

While lower courts have continued to ignore the clear direction of SCOTUS in the landmark Heller decision, if it is applied, a ban of semi-auto rifles would clearly be unconstitutional.  The ruling contains a simple test to determine if a firearm is protected.  If a firearm is in common use by the public for ANY lawful purpose, it is protected PERIOD.  The AR15 pattern rifle is the most popular firearm in the U.S. - if it is not protected, no firearm is protected.

What guns can be banned under Heller?  Those that are both unusual (not in common use) and dangerous.  Some lower courts have actually interpreted the decision as if it reads unusual OR dangerous.  Of course, since all firearms are dangerous, this change allows any firearm to be banned.  Furthermore, the very argument in the Heller case was that handguns, as the primary murder weapon in the U.S. and the most common weapon in mass shootings, should be banned.  SCOTUS rejected this argument.

If Congress passed and Pres. Trump signed a semi-auto rifle ban tomorrow, it would be tied up in the courts for years - and given the makeup of the Supreme Court, would likely be struck down as unconstitutional.

It is far wiser to focus upon doing what we can - consistent with the Constitution - to keep dangerous people from getting ANY gun than to pin our hopes upon banning a single type of gun.

No gun control laws will do any good until we suppress the massive firearms black market - and that will be very, very hard

As indicated by the DOJ study referenced above, there is already a huge black market in firearms.  If we were to ban the most popular firearm in America, it does not take a rocket scientist to figure out that a black market will develop.  The more restrictive the laws become, the greater the money to be made.  We already have been fighting a losing battle with drugs - any firearms ban would be huge plus for the same drug cartels.  They have the contacts for guns, they have the smugglers and they will certainly see this as a huge money making opportunity.

Remember, we cannot currently control the black market in guns.  A ban of the most popular gun in America would be like throwing gas on the fire.  Demand will still be there, and criminal organizations will move to meet that demand.  Mexico is awash in illegal AK47s from China, North Korea and countless other nations - so meeting the demand would be no problem for them.  A mass shooter would be able to buy one as easily as a bag of illegal pot.

If we have been unable to control the drug market, why do people think we could control the market in illegal guns?

History shows that magazine capacity limits are useless and potentially unconstitutional

The Parkland mass murderer
used 5 round magazines like
this - not "high capacity" mags.
Gun control advocates and their friends in the media love magazine bans.  Their reasoning is that people will be able to rush the attacker while they are reloading.  Of course, anyone with firearms experience knows that how quickly magazines can be changed.  After the Parkland mass murders, the media told us that 30 round magazines were used and contributed to the large death toll.  Months later we got the official report from the Parkland Commission - and we learned that the murderer had not used 30 round magazines, or 20 round magazines or even 10 round magazines - he used 5 round magazines designed for hunting.  Did these smaller magazines reduce the death toll?  Absolutely not.  Magazine limits are useless in the context of mass shootings.

They are also - in most cases - unconstitutional, because they run afoul of the common use test.  pistol magazines of up to 20 rounds and rifle magazines of up to 30 rounds are, like it or not, in common use and therefore protected by the 2nd Amendment.  As with gun bans, lower courts have simply ignored this clear standard - but now SCOTUS is taking 2nd Amendment cases.  A ban of such magazines would be held up in court and likely banned.  One federal district court has already found California's 10 round limit to be unconstitutional.

Could magazines above these capacities be banned? Possibly.  The question would turn on that same "common use" standard.

Any gun confiscation would be extremely dangerous, especially in the current political climate

To understand why this reality exists, one has to understand the original purpose of the 2nd Amendment, and why people still believe it is relevant.

The first purpose of the 2nd Amendment, that was explicitly affirmed in Heller, is personal self defense.  This is why some federal appellate courts have held that there is a personal right to carry a firearm for this purpose.

The second purpose of the 2nd Amendment is to enable the federal government to rapidly raise a large army to meet external threats.  Clearly, this is not as important as it once was.

The third purpose of the 2nd Amendment is to enable the states to rapidly raise an army to restore constitutional government, should the federal government every be taken over by tyrants who acted to establish an extra constitutional government.  As much as we would like to believe this is impossible, this is as much of a threat as it was in the 1790s.

The fourth purpose is to enable the people to act to restore constitutional government should both state and federal government be subverted by tyrants.  Although it would be much harder to take over both state and federal governments, this to is as much of a threat as it was in the 1790s.

The 2nd Amendment is not intended to allow people to revolt because they simply do not like the outcome of an election, or because they disagree with government policies.  Such issues should, in a democratic republic such as ours, be settled peacefully.

Finally, the deterrent value of an armed citizenry should not be underestimated.  The United States has existed as a democratic republic for over 225 years - longer than any other such nation.  Consider the history in Europe, or in the Americas.  Democratic governments come and go - because they are frequently overthrown.  One of the biggest differences is our right to keep and bear arms.  This did not happen by accident:

Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” – Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

Dozens of such quotes - from the men who wrote and/or ratified the 2nd Amendment, survive.  Many can be found here.

That said, one more fact makes it clear that the founders wanted privately held firearms to serve as a check on the abuse of government power.  The militias existed in the UK at this time too.  However, their arms were held by the government (usually in the homes or castles of the elite) and issued only in times of emergency.  Why was this done?  To keep arms out of the arms of the people - so they would not be able to resist the rule of that same elite class.  At that time in the UK only men who owned property could vote.  Calling that nation a democratic monarchy would be a real stretch.  When considering the issue of personal arms, the founders did not want them held by an elite group of people, or by the government, but by the people.  Hence the 2nd Amendment.

With all of this as preface, consider how divided we are as a nation.  Consider that the left is moving toward socialism at a time when we see a socialist government in Venezuela subverting democracy and oppressing the people.  Consider that the people of that nation were forcibly disarmed, resulting in their current helplessness.  Consider that tens of millions of people, many of them US Military combat veterans, firmly believe that confiscating firearms unconstitutional and the first step towards tyranny.  Consider that over 1/3 of the US population sees a civil war on the horizon.  Consider that many counties and even states have declared themselves 2nd Amendment sanctuaries - indicating that they will refuse to enforce gun laws they consider unconstitutional.

Considering all of these scary facts (and I could list more), how long do you think it will be before efforts to confiscate privately held firearms will result in violence?

A little over 244 years ago, the colonies that would become this great nation were deeply divided.  People were upset about taxes and the lack of representation.  They were upset that they were ruled by a king thousands of miles away.  These and other issues resulted in the division - but none of these things started the revolutionary war.  What sparked the war was an effort to confiscate the arms of the colonists.  This resulted in the citizens militias mustering - including one that mustered on Lexington green.  There was a confrontation, shots were fired (no one knows who fired the first) and both sides stumbled onto a war.

If you live in a solid blue state, you may find it hard to believe that this could happen again.  If you live in a solid red state - and you are at all observant - you know just
This is a mainstream (and majority) view
in most red states.
how possible it is.
  My fear is that efforts to confiscate the very firearms best suited for militia use, could result in this country splitting apart. Think that local authorities in red states will help those confiscating guns for the federal government?  Think again.  They would be more likely to arrest the feds.  Just who is going to do the confiscating?  If you are going to get rid of those tens of million of firearms, you are going to have to send the military door to door.  How long will it be until many service members desert, rather than take actions they consider completely unconstitutional?  An attempt to confiscate this many firearms wouldn't just split the nation, it would split the military.  In short, it would be a disaster.

The colonists took a stand that April morning so long ago, because they either had to use their arms, or lose them.  Presenting millions of patriotic Americans with that same choice would be incredibly stupid.  We must find another way to deal with the profound evil of mass shootings.

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