The Second Amendment to the Constitution of the United States enshrines the right of the people to keep and bear arms. The overwhelming majority of people who own guns in America under the protection of the Second Amendment are upstanding, law abiding citizens who possess and bear firearms for sport, hunting, or self-defense. As with anything else, there are those in society who do not follow the rule of law or suffer from diseases or symptoms that should prevent them from purchasing or possessing a firearm. It is there that the framework for a Gun Violence Reduction Act must focus in order to achieve a policy outcome of reducing violent acts involving firearms.
The mass shootings that have captured the attention of both the media and the nation represent a small subset of gun violence that centers on criminal activity. In the case of the mass shootings, the common factor is either behavioral, emotional, or mental health issues. That is not to say that they are not worthy of coverage or attention but in terms of legislation. If you’re going to pass a law then make it comprehensive to address all aspects of the problem. With Republicans in control of congress, there is the ability to do so without infringing on the rights law-abiding citizens, which is what some proposals from far left activists have called for.
So what does a framework for legislation look like?
1. Enforce and strengthen criminal statutes. In many cases, criminals who use a firearm in the commission of a crime have made a calculated decision that risk was worth the reward in terms of the potential punishment if they are caught versus what they stand to gain. What if we were able to change that calculus? A criminal might be willing to do 5 to 10 years for robbery. Would they be willing to do 30 to life plus the sentence for whatever crime they were committing with a firearm? Such reform has worked before both abroad in places like Japan and even here at home. The fall of the American mafia can be traced to a change in prosecutorial tactics when U.S. attorneys began building criminal cases under the Racketeer Influenced and Corrupt Organizations (RICO) Act, which significantly increased the jail sentences mafia members would face upon conviction. Over the course of two decades, the American mafia was reduced to a fraction of what it once was as members began to flee or turn state witness to avoid lengthy jail sentences. Penalties for failing to properly store firearms or reporting thefts of firearms in a timely manner also need to be increased. Finally, prosecutors and Judges also need to enforce existing statutes and not give offenders a break.
2. Make background checks universal. Anyone wishing to purchase a firearm from a private sale, a gun show, or a store should undergo a background check to ensure that the individual is not a criminal, felon, suspected terrorist, or suffering from a mental, emotional or behavioral health issue, which should preclude them from purchasing a weapon. There is widespread support for this policy proposal but the issue has always been with the mechanics of doing so. I will address the extrajudicial processes that must be reformed in order for this to work and not violate the constitutional rights of the people next.
3. Reform federal watch lists. The “Terrorist Watch List,” “No Fly List,” etc. are maintained by the executive branch of government and citizens can be placed on these lists without due process. Denying someone their constitutional rights without due process is what prevents these watch lists as they are currently structured from serving as a trigger for a denial during a background check. Law enforcement does have valid concerns that, if the suspect is notified, it could jeopardize the investigation and subsequent prosecution of terrorist or criminals. As is the case with the FISA court, it would possible for the Department of Justice to submit evidence to a court under seal that would add the individuals in questions to a federal data base of individuals who cannot purchase or possess a firearm if a judge concurred with the evidence presented. If a case is dropped or if the individual attempts to purchase a firearm, then they would have the right to appeal.
4. Deny guns to people with mental health problems. The common factor that all of the murderers who have committed mass shootings share is mental or behavioral health issues. Upon diagnosis, a licensed psychiatrist or psychologist, who is authorized to diagnose mental or behavioral health disorders or diseases, should report the diagnosis to a federal list which would trigger a rejection if the patient attempts to purchase a firearm. Law enforcement should also be able to order a psychiatric evaluation for suspects, such as the man who just committed the mass murder in Florida, demonstrating erratic behavior. A refusal to submit to an evaluation should also lead to a denial when attempting to purchase a firearm — much as a refusal to take a breathalyzer test leads to a suspension of your driving privileges. The definition of what types of diseases, disorders, or symptoms should prevent an individual from purchasing a firearm must be clearly defined. As is the case with other watch lists, the individual in question should have the right to appeal through due process.
5. Recover firearms from criminals and mentally ill people. If a person has been diagnosed with specific diseases or is demonstrating symptoms that clinicians determine should preclude someone from possessing a firearm, or if an individual refuses an evaluation, or is convicted of a crime, then law enforcement should be able to query the federal background check list to see if that individual has ever attempted to purchase a firearm. If they have, then law enforcement can submit evidence to a court for a warrant to seize the firearms from the individuals if so ordered by the court. That will provide an opportunity for due process and also ensure that law enforcement is notified about — and has an opportunity to recover — firearms from individuals who purchased their firearms legally but have since then committed a crime or developed or exhibited symptoms of mental illness. Using the purchase attempt history will prevent the need for a federal registry or data base of firearms ownership. This again helps to ensure due process is afforded.
6. Increase mental health treatment funding. The U.S. federal government as well as all the state governments need to make considerable investments in mental health treatment and research. While it is important to prevent someone from purchasing a firearm it is more important to treat them. This would get to the root cause.
Alex Plitsas is a national security professional. He is a combat veteran and a former Pentagon official.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.