Flagging future killers

The Wall Street Journal

Aug. 6

The Dayton and El Paso shootings have spurred familiar calls for more gun control, and by all means let’s have a debate. But the focus should be on denying weapons to the potential killers rather than on gun laws that may be politically satisfying but won’t make much difference.

Start with the calls for more “background checks,” which implies none now exist. Yet nearly all gun purchasers today have their backgrounds checked on the spot via the National Instant Criminal Background Check System (NICS). Most mass shooters obtained their guns through licensed dealers after checks, or from family members. The Dayton and El Paso killers, and the Gilroy, Calif., shooter of late July obtained their firearms legally.

Democrats want to expand background checks to person-to-person sales, though policing that would be a challenge as most such sales could be done off the books. They also want to extend to 10 days from three the amount of time dealers must wait to get a response from the background check system before proceeding with a sale. Senators Pat Toomey (R., Pa.) and Joe Manchin (D., W.Va.) want background checks to cover unlicensed sales at gun shows and online, but exempt sales between friends and family.

Congress should have that debate, but no one should think they would reduce the number of mass shootings. Most mass shooters don’t have a criminal history that would pop up in the background system. There is also no evidence that longer waiting periods reduce suicides, homicides or mass shootings. Determined killers can always get a weapon.

A better path of deterrence would be to focus on identifying potential risks and separating them from the means of harm. The use of Big Data by law enforcement to identify patterns of dangerous activity would be helpful, as Holman Jenkins Jr. notes nearby.

Congress can also look to overhaul federal privacy laws that are a barrier to reporting potential threats. These include the Health Insurance Portability and Accountability Act (Hipaa) and the Family Educational Rights and Privacy Act (Ferpa). Federal law and Justice Department regulations disqualify individuals who have been committed to a mental institution or adjudicated as mentally deficient from owning firearms and are noted in the NICS checks.

Yet state participation in NICS is voluntary, and many remain reluctant to submit health records for fear of violating Hipaa. A December 2018 report from the Federal Commission on School Safety noted that states and localities are also confused about when it is appropriate to share student records with officials or parents under Hipaa and Ferpa.

The George W. Bush and Obama Administrations tried to clarify these rules related to public safety, but without apparent success. Congress should update them to reflect the danger from mass killers, and it can drag the 1974 Ferpa into the digital age, making data more easily manageable.

Congress can also work with states and localities to pass emergency protection orders. Some 17 states and Washington, D.C., now have these “red flag” laws permitting police or family members to petition a judge to temporarily remove firearms from individuals deemed a danger to themselves or others.

South Carolina Senator Lindsey Graham this week said he has bipartisan support for legislation for grants to states enacting red-flag laws. Congress could also do a service by advising on model legislation. A good law would provide adequate due process that lets flagged individuals challenge the order; requires judges to rule on the basis of clear and compelling evidence; and includes criminal penalties for anyone bringing false accusations.

Red-flag laws should also go beyond mere firearm confiscation. The mental-health lobby is a more formidable obstacle here than the gun lobby. Most states refuse to reform their involuntary commitment laws, making it impossible to provide help for the severely mentally ill. Yet if an individual is dangerous enough to strip of a constitutional right, the government should also insist on treatment, and in some cases temporary commitment to a psychiatric facility.

There is no single answer to mass shootings, but most of the quick solutions on offer would provide false comfort. That’s true of gun restrictions short of outright bans or confiscation that would run afoul of the Second Amendment. The immediate priority should be to reform laws and practices to deny firearms to those who are a danger to the public.