By David French
Friday, February 16,2018
To understand the American gun-control debate, you have
to understand the fundamentally different starting positions of the two sides.
Among conservatives, there is the broad belief that the right to own a weapon
for self-defense is every bit as inherent and unalienable as the right to speak
freely or practice your religion. It’s a co-equal liberty in the Bill of
Rights, grounded not just in the minds of the Founders but in natural law.
Against this backdrop, most forms of gun control proposed
after each mass killing represent a collective punishment. The rights of the
law-abiding are restricted with no real evidence that these alleged “common
sense” reforms will prevent future tragedies in any meaningful way.
Many progressives, however, simply don’t care about
restrictions on gun ownership. They don’t view it as an individual right, much
less an unalienable one. To them, the Second Amendment is an embarrassment, an
American quirk that should be limited and confined as much as possible. To
them, gun ownership is a privilege, not a right, and can be heavily regulated
and restricted without doing any violence at all to individual liberty.
To describe these differences is not to say that the two
sides never meet. Putting aside the relatively meaningless polls about various
gun-control measures — the polls that truly matter are at the ballot box, and
there the results are very clear and very distinct for both red and blue —
there is broad conceptual agreement that regardless of whether you view gun
ownership as a right or a privilege, a person can demonstrate through their conduct that they have no
business possessing a weapon.
Felons, the dangerously mentally ill, perpetrators of
domestic violence — these people have not only demonstrated their unfitness to
own a weapon, they’ve been granted due process to contest the charges or claims
against them. There is no arbitrary state action. There is no collective
punishment. There is, rather, an individual, constitutional state process, and
the result of that process is a set of defined consequences that includes
revoking the right to gun ownership.
Now, let’s back up for a moment and apply this reasoning
to our contagion of mass shootings. Time and again mass shooters give off
warning signals. They issue generalized threats. They post disturbing images.
They exhibit fascination with mass killings. But before the deadly act itself,
there is no clear path to denying them access to guns. Though people can report
their concerns to authorities, sometimes those authorities fail or have limited
tools to deal with the emerging danger.
What if, however, there was an evidence-based process for
temporarily denying a troubled person access to guns? What if this process
empowered family members and others close to a potential shooter, allowing them
to “do something” after they “see something” and “say something”? I’ve written
that the best line of defense against mass shootings is an empowered, vigilant
citizenry. There is a method that has the potential to empower citizens even
more, when it’s carefully and properly implemented.
It’s called a gun-violence restraining order, or GVRO.
While there are various versions of these laws working
their way through the states (California passed a GVRO statute in 2014, and it
went into effect in 2016), broadly speaking they permit a spouse, parent,
sibling, or person living with a troubled individual to petition a court for an
order enabling law enforcement to temporarily
take that individual’s guns right away. A well-crafted GVRO should contain the
following elements (“petitioners” are those who seek the order, “the respondent”
is its subject):
1. It should
limit those who have standing to seek the order to a narrowly defined class of
people (close relatives, those living with the respondent);
2. It should
require petitioners to come forward with clear, convincing, admissible evidence
that the respondent is a significant danger to himself or others;
3. It should
grant the respondent an opportunity to contest the claims against him;
4. In the event
of an emergency, ex parte order (an
order granted before the respondent can contest the claims), a full hearing
should be scheduled quickly — preferably within 72 hours; and
5. The order
should lapse after a defined period of time unless petitioners can come forward
with clear and convincing evidence that it should remain in place.
The concept of the GVRO is simple, not substantially
different from the restraining orders that are common in family law, and far
easier to explain to the public than our nation’s mental-health adjudications.
Moreover, the requirement that the order come from people close to the
respondent and that they come forward with real evidence (e.g. sworn
statements, screenshots of social-media posts, copies of journal entries)
minimizes the chance of bad-faith claims.
The great benefit of the GVRO is that it provides
citizens with options other than relying on, say, the FBI. As the bureau
admitted today, it did not respond appropriately to a timely warning from a
“person close to Nikolas Cruz.” According the FBI, that person provided
“information about Cruz’s gun ownership, desire to kill people, erratic
behavior, and disturbing social media posts, as well as the potential of him
conducting a school shooting.”
In other words, it appears the FBI received exactly the kind of information that
would justify granting a GVRO.
Just since 2015, the Charleston church shooter, the
Orlando nightclub shooter, the Sutherland Springs church shooter, and the
Parkland school shooter each happened after federal authorities missed chances
to stop them. For those keeping score, that’s four horrific mass shootings in
four years where federal systems failed, at a cost of more than 100 lives.
In other words, proper application of existing policies
and procedures could have saved lives, but the people in the federal government failed. And they keep failing. So
let’s empower different people. Let’s empower the people who have the most to
lose, and let’s place accountability on the lowest possible level of
government: the local judges who consistently and regularly adjudicate similar
claims in the context of family and criminal law.
Advocates for GVROs have been mostly clustered on the
left, but there is nothing inherently leftist about the concept. After all, the
GVRO is consistent with and recognizes both the inherent right of self-defense and the inherent right of due process.
It is not collective punishment. It is precisely targeted.
As I wrote the night of the Parkland shooting, a vigilant
citizenry is a far better defense against a mass shooting than the sweeping,
allegedly “common sense” gun-control measures debated after every massacre. But
when individual citizens are vigilant and individual government officials are
not, then it’s time to consider different measures. It’s time to consider
rearranging the balance of power.
I don’t pretend that a GVRO is the solution to mass
killings. There is no “solution.” It’s a tool, one among many. In 2016
California courts granted 86 restraining orders. Most of them applied for a
mere 21 days. In ten instances those orders were extended for a year. Until I’m
persuaded otherwise (and I look forward to the conversation), I’ll believe that
a restraining order can give a family the power federal incompetence has taken
away — the power to save lives.
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