Gun-Violence Restraining Orders?

NRO's David French offers "A Gun-Control Measure Conservatives Should Consider."

NRO’s David French offers “A Gun-Control Measure Conservatives Should Consider.”

After quite a bit of throat-clearing about the intractability of the pro- and anti-gun control positions, he points to a reasonable middle-ground:

[T]here 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.

That’s a sensible enough starting point. He then offers a specific solution:

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.

My initial reaction to that was that, if a person is sufficiently dangerous to merit a GVRO  under this process, giving him 72 hours notice that you’ve petitioned to take his guns away gives him gives him 72 hours to shoot the petitioner and anyone else he’d planned to shoot.

But, even though I’d never heard of the practice before, it’s apparently in place or being considered in several states. Connecticut, the first, passed it way back in 1999. A scholarly study published in 2016 (hat tip: Dan Friedman) found that the practice was effective in reducing suicide rates:

This article presents the results of a systematic research study on the characteristics, implementation, and outcomes of 762 gun removals conducted under Connecticut’s risk-warrant law during the period 1999-2013. The study found that the law was invoked to separate guns most often from men (92 percent) who were judged to be at risk of self-harm, but had no criminal record in the preceding year. By matching risk-warrant cases to official death records, the research revealed that 21 of these individuals (3 percent) eventually completed suicide, 6 with guns and 15 by other means; this equates to a suicide rate approximately 40 times higher than that of the general adult population of Connecticut. However, even more suicides would have occurred if guns had not been removed from these individuals. We applied population-level data on the specific fatality rates associated with various methods of intentional self-injury to estimate that 142 (19 percent) of the gun removal subjects had attempted suicide, of which 121 survived. We calculated the number (within a range) of additional fatalities that would have occurred if these individuals had retained their guns and attempted suicide with a firearm instead of using some less lethal method. In this manner, we estimated that approximately 10 to 20 gun seizures were carried out for every 1 suicide averted.

California’s law went into effect just over two years ago and several other states (“New York, Pennsylvania, New Jersey, Delaware, Virginia, Wisconsin, Illinois, Missouri, Minnesota, Michigan, and perhaps Massachusetts“) were considering enacting similar measures in late 2016. Time will tell how effective they are but, presumably, if there were a rash of post-GVRO preemptory killings, I’d have heard about it by now.

I’m skeptical that any single measure will have much impact on mass shootings but, as seemingly commonplace as they’ve become, they’re the outlier in gun violence. Indeed, suicide is easily the leading type. At this point, I’m happy to pass any measures that can get through our political morass and see what combination, if any, can help.

Hat tip: Joy McCann

FILED UNDER: Guns and Gun Control
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MarkedMan says:

    It does seem a sensible proposal. Unfortunately the Republicans and a few Dems are so totally owned by the NRA that their response after recent massacres has been to make it easier for those with domestic abuse or mental health issues to obtain weapons. They need to defend themselves too, you see. I honestly don’t think we can move forward with significant numbers of Republicans in office.

    4
  2. TM01 says:

    @MarkedMan:
    No.
    The problem is the intractable Leftists who insist on confiscation.

    You’ll never see meaningful action taken to prevent tragedies like this with Democrats in office.

  3. Liberal Capitalist says:

    @TM01:

    The problem is the intractable Leftists who insist on confiscation.

    You may not realize this, but those “leftist” only exist in 2A fanatic fevered dreams.

    Remember how Obama was going to confiscate all your guns? Here is a picture of all of the guns Obama confiscated: https://imgflip.com/i/xybm3

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  4. SC_Birdflyte says:

    I have an alternative proposal: since NRA acolytes define “mental health” as the problem, require that anyone wishing to purchase anything above and beyond a revolver, single-shot rifle, or shotgun present a certificate signed by a psychiatrist license to practice in their state attesting to their mental health. Penalty to any gun seller who violates this provision is 5 years in prison (no eligiblity for probation). Ludicrous perhaps, but consider what else is on offer.

    4
  5. Mu says:

    @SC_Birdflyte: Constitutional rights only if you meet “common sense” approval methods. I think we practiced that before, a very conservative attitude.

  6. KM says:

    @TM01:
    You know what, let’s play devil’s advocate. Let’s say “intractable Leftists” really do “insist on confiscation” of guns from the mentally ill and violently unstable. Let’s say they are really, physically coming to take guns away from people like Cruz, Paddock, Mateen, Lanza et al. – people who are clearly “mentally ill” and dangerous, planning on killing US citizens.

    Explain why that’s a bad thing.

    Go on, we’re waiting. As someone who’s pro-2nd but insists on reasonable limits and controls, I’m dying to hear how you justify the above. The government’s not coming for my guns because I’m not a raving nutcase. You, however? Might need to be concerned……

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  7. On paper, there is a lot about this idea to like but I think we need to be careful about how ideas like this are implemented, As I’ve noted in the past when the gun control debate strays into the mental health arena there are two concerns that we need to keep in mind.

    The first, of course, are the civil liberties concerns that any legal process like this that inevitably creates. While we all want to make sure that the dangerously mentally ill are separated from access to or possession of dangerous weapons both for their own safety and the safety of others, doing so in a way that protects their rights to due process, privacy, and their rights under the Constitution. Thus, I’d need to know more about these restraining orders before fully endorsing the idea.

    Second, there’s the question of what standards would be used to determine when it would be right to make use of this kind of procedure. In some cases, it’s going to be clear when someone is so mentally ill that they should not have access to weapons, but in others it’s not going to be so clear. Who gets to define where that line is drawn? Should it be applied to anyone who is on “mind-altering” medication? In that case, millions of people who are successfully being treated for things such as depression could be on the list, many of them unfairly.

    Third, the process needs to account for the fact that family members don’t always have the best interests of “troublesome” people who may be “mentally ill” at heart.

    Finally, as I’ve noted before, there are some real concerns that come into play whenever the state gets involved in the mental health business. If people who need treatment start to believe that what they tell a mental health professional could get them put on a government list, then they could be discouraged from seeking help that could benefit them and make their lives better.

    These and other concerns are one of the reasons we need to be careful about adopting sweeping legislation based on the passions of the moment. The Parkland shooting was horrific, as was the attack on Sandy Hook Elementary and all the other mass shootings, but we have to remember that we’re talking about changes to the law that could have sweeping and long-lasting impacts in the future, not all of them for the positive.

    1
  8. Blue Galangal says:

    @Doug Mataconis: It seems you’re eliding the domestic violence part to argue against the mental health part.

    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.

    Domestic violence ban – if you’re convicted, you never own a gun ever. If you’re up on charges, all your guns are held and you are put on a no-buy list. If the police are called, a partner takes out a restraining order, or any of the above, you are put on a no-buy list for a period of years. Aside from being white men, most of these shooters also have domestic violence in their past. It seems to be a common-sense predictor that, as the article you cite above notes, has some constitutional protections built in to using it as a basis for banning guns to this subset of people.

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  9. Daryl's other brother Darryl says:

    @TM01:

    The problem is the intractable Leftists who insist on confiscation.

    If your opinions are based on total bullshit, then your opinions are total bullshit.

    3
  10. @Blue Galangal:

    That’s because it was my intention to specifically address the mental health elements of the issue.

    1
  11. Kathy says:

    Should Democrats in this year’s mid-terms run on a broad platform to stop mass shootings?

    I’ve no doubt many will run on further gun control laws, but that can easily create a backlash in battleground areas. I mean a broad approach to the problem, which would look into all possible solutions and implement such as will work, whatever they may be.

    For starters they should push to authorize a sufficient budget for the CDC to study the causes and effects of gun violence, and go on from there. In particular they should also pledge to support the right to bear arms, with as many caveats as they want.

    1
  12. KM says:

    @Doug Mataconis:

    Finally, as I’ve noted before, there are some real concerns that come into play whenever the state gets involved in the mental health business. If people who need treatment start to believe that what they tell a mental health professional could get them put on a government list, then they could be discouraged from seeking help that could benefit them and make their lives better.

    And that’s why this “mental illness” BS the right’s latched onto will never, ever be acted upon. It can’t, really. Does anyone even know what the official diagnosis is for these “mentally ill” shooters? What’s the DSM-V cat they all fall into? There’s a difference between the various legal and medical definitions of “mental illness” and what the public calls “crazy”. Depression’s a mental illness and so’s OCD and ADD. What most people are thinking of with a list like this are delusional disorders, paranoia or psychosis but that’s not what’s going to get encoded into law.

    Frankly, most people the public would call “crazy” would not qualify for such lists and thus would render them meaningless bureaucratic dead-ends.

    2
  13. becca says:

    When my stepfather’s stroke-related dementia caused some scary hallucinations of “militiamen” lurking in the woods of the back lawn, the guns came out. He was a retired military policeman, so he had some good ones.

    This made it dangerous for anyone in the vicinity, obviously. Especially grandkids.

    We hid the guns, but he called the local police to report them stolen. When they arrived to file a report, my mother explained the situation, that he was hallucinating and threatening violence, but they said there was nothing they could legally do about it. They were not allowed to take them away from him.

    After a not brief discussion about the insanity of the situation , the police left and took the guns with them, at my mother’s request.

    This all transpired in a small, southern town, so the police are neighbors, too.

    2
  14. James Joyner says:

    @Blue Galangal:

    Domestic violence ban – if you’re convicted, you never own a gun ever. If you’re up on charges, all your guns are held and you are put on a no-buy list. If the police are called, a partner takes out a restraining order, or any of the above, you are put on a no-buy list for a period of years. Aside from being white men, most of these shooters also have domestic violence in their past. It seems to be a common-sense predictor that, as the article you cite above notes, has some constitutional protections built in to using it as a basis for banning guns to this subset of people.

    You’re proposing a permanent ban on Constitutionally-protected rights for non-felony convictions and long-term suspension of same rights on the basis of mere allegations? That’s hardly what I’d call a “reasonable” solution.

    3
  15. OzarkHillbilly says:

    To start with, I know several people who should not be allowed to own guns, not because they are mentally unstable but because the are just flat out stupid, and do stupid things with guns.

    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);

    So as the recipient of death threats from an armed and violent sociopath I could file for a restraining order but not for a GVRO? That makes absolutely no sense.

    @James Joyner: Domestic violence is a pretty good indicator of a lack of impulse control and latent violence. I have had too much experience with these type of people (up to and including needing to carry a gun for actual self protection from a specific individual and the witnessing of a murder/suicide) and can say without reservation that none of them should ever have been allowed anywhere near a firearm. The status quo that presently exists is unacceptable.

    Your point is taken, but I feel the need to point out that this Constitutionally-protected right comes with a caveat: “A well regulated Militia, being necessary to the security of a free State,” Our free State currently lacks security what with the almost complete lack of regulation of Militias or anything/anyone in regards to firearm ownership. If a law was passed that anyone with a history of domestic violence, tried and adjudicated, is banned from ever again legally owning a firearm, it sounds OK to me so long as there is a legal process in place for the possible reversal of that life time ban.

    I want to emphasize the ‘possible’ in that last sentence. Being convicted of domestic abuse is proof of one’s lack of the proper emotional character for gun ownership. As such one should have to prove that their emotional character had changed in order to again enjoy the right of gun ownership.

    4
  16. EdIdieInCA says:

    @James Joyner:

    Sir.

    Why do you and others, while discussing the 2nd Amendment, often (always) seem to ignore the first half of the 2nd Amendment:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    I’ve never understood how the 2nd Amendment, read in it’s entirety and in context, allows for the idea that everyone has the right to own a firearm. Where is the “well-regulated Militia”, and “security to a free state” elements when it comes to gun ownership?

    I’m not trolling. I genuinely don’t understand how my clear reading of the 2nd Amendment, in context, and looking at the history behind it, is so different than that of so many other well-educated people.

    8
  17. teve tory says:

    Gun Nutz went beyond the point of no return a long time ago, with the help of the NRA. There’s not going to be any responsible compromise, or a negotiated solution. But just look at the percentage of the popular vote GOP Presidential candidates have gotten over the last 30 years. Graph it. The trend is unmistakable. It’s slowly been going down down down. And the courts are finally starting to fix gerrymandering. At some point there won’t be enough angry old white southern christian men*, and the Democrats will have enough power to put the country back on track on this issue, as well as others like spending, research, carbon pollution, taxation, Etc…

    *(seniors, often having nothing better to do, vote at rates over 60%. Millennials vote at just over 30%. If it weren’t for this asymmetry, we wouldn’t even have this problem right now.)

    2
  18. bookdragon says:

    @James Joyner: As I read that, the proposed permanent ban is for those convicted of domestic violence. I don’t care if it’s a ‘non-felony’ conviction. I don’t care if some guy has to do without his weapons while he’s being tried for abuse. Rights have to be balanced. Frankly, having your right to a gun suspended until you can be cleared is far less harmful to you than leaving guns in the hands of abusers is to victims of domesticate violence. Their right to life and liberty has to count for something too.

    I’ve volunteered at a women’s shelter. Have you? If not, I challenge you do so. Go on. Listen to their stories and then look those women in the eye and tell them that their lives are a lot less important the right of their abusers to own a piece of hardware.

    6
  19. Franklin says:

    @TM01:

    You’ll never see meaningful action taken to prevent tragedies like this with Democrats in office.

    Not sure if you’ve noticed, but the Democrats aren’t currently in office.

    8
  20. al-Ameda says:

    @TM01:

    The problem is the intractable Leftists who insist on confiscation.

    Yeah, right.
    Remember “Operation Jade Helm”?
    This is from the Dallas Morning News in 2015:

    Jade Helm 15 took place over two months this summer, with activities in Texas, Mississippi, Louisiana and Florida that utterly failed to deliver on the archconservative Internet-fueled hysteria. Rumors, fear, suspicion and online conspiracy sites erupted when the military briefed residents of Bastrop about the upcoming exercise last March.

    Wild claims were tossed around suggesting the exercise was a prelude to martial law, a way for Obama’s jackbooted thugs to confiscate guns, leaving civilians helpless.

    Gov. Greg Abbott ordered the Texas State Guard to “monitor” the exercise to ensure that Texans’ “safety, constitutional rights, private-property rights and civil liberties will not be infringed.”

    4
  21. @bookdragon:

    So one conviction on what may be a non-felonious charge is sufficient to bar someone from being able to exercise a Constitutional right for life? Do you also believe that people convicted of crimes should be denied the right to vote for the rest of their life?

    2
  22. bookdragon says:

    @Doug Mataconis: I believe that people convicted of domestic violence should be banned from owning guns for the rest of their lives. Yes. It is hard to get those convictions and there is ample evidence that there is correlation between domestic abusers and spree shooters.

    Kindly do not conflate the ‘right’ to terrorize and/or murder someone with the right to vote. But if protecting the lives of victims is trivial compared to your concern for some poor wrongly convicted guy being deprived of a gun, then sure, let there be a process for him to prove that he is no longer a threat. But the burden there should be on him, not on the woman who may have to fear for her life if he gets his guns back.

    11
  23. MarkedMan says:

    @al-Ameda: If I remember correctly, the Republican fever swamp’s reaction when nothing actually happened during Jade Helm was to pat themselves on the back and note that the Army was going to confiscate guns but were afraid of the well armed patriots who had found them out.

    Reminds me of the old joke: Bazooka Joe: “Why are you wearing that amulet?” Mort: “It keeps the elephants away.” Bazooka Joe: “But there are no elephants in Kansas!” Mort: “See how well it works!?!”

    3
  24. MarkedMan says:

    @Doug Mataconis: Good Question
    @bookdragon: Good Answer

    3
  25. JohnMcC says:

    @Doug Mataconis: Kind of off topic but I’ll be brief. Revoking the right to vote for felony convictions is not a hypothetical. It’s Florida law.

    I spent many days registering voters for the Dem’s and I am absolutely certain that Florida would have gone solidly D if not for this clever ploy of Jeb’s.

    5
  26. @bookdragon:

    Murder is a felony.

    Many of the types of offenses that fall under the label “domestic violence” are not, and are instead misdemeanors under applicable state law. The same is true of some, if not most, cases of simple assault and battery. The law treats the two categories, misdemeanors and felonies, as different for many purposes, including the right to vote. However, it is not the case in any state that I am aware of that someone can lose their right to vote for the rest of their life based on one misdemeanor conviction of assault and/or battery. I can’t support the idea that someone convicted of a similar misdemeanor charge should be treated differently with regard to any Constitutional right just because if falls under the category “domestic violence.”

    I understand this is an issue that you are passionate about, but I respectfully suggest that this passion is causing you to ignore the rather obvious civil liberties concerns your position raises.

    2
  27. @JohnMcC:

    Yes I am aware of that, which is why I oppose a lifetime bar on voting for most convicted felons.

    1
  28. gVOR08 says:

    @EdIdieInCA:

    I’m not trolling. I genuinely don’t understand how my clear reading of the 2nd Amendment, in context, and looking at the history behind it, is so different than that of so many other well-educated people.

    Your problem is that your reading the clear meaning of the words as written. You’ve obviously never had the advantage of Federalist Society indoctrination.

    4
  29. gVOR08 says:

    I don’t know how well this would work, and the effect would likely be small. But it’s one more thing on a long list of things we could do now.

    Another thing on that long list would be for the Senate to reject the reciprocal concealed carry bill currently under consideration.

    I don’t know what effect gun violence restraining orders or reciprocal concealed carry would have. Maybe if the NRA hadn’t effectively banned federal funding for gun research 20 years ago we would know. That’s another thing we could do right now, fund gun research by the CDC.

    2
  30. bookdragon says:

    @Doug Mataconis: I respectfully suggest that your lack of passion illustrates your lack of concern for civil liberties that you do not fear having taken away by an abusive partner or former partner: life and liberty.

    You want to get into the weeds about what ‘counts’ in terms of domestic violence, fine. I’m not a lawyer, so I concede that there may be gradations there. But I maintain that if a person has by their actions shown that they are a danger to their partner, they should have their weapons removed unless and until they can show that they are not a threat. One person’s right to ownership of an inanimate object is not more important than another person’s right to life.

    You see, I can do passionless Vulcan logic here too. “The needs of the many outweigh the needs of the few.” I.e., the needs of domestic abuse victims, and all of us really, to not have to fear a violent unstable person with a gun outweigh the needs of a few guys might lose their guns for ‘just slapping a b!tch around’.

    4
  31. MarkedMan says:

    I’m curious Doug. Let’s look at someone like Rob Porter. He has abused at least three women (two former wives and a former girlfriend) to the point that police were involved and contributed to his divorce settlements. He has broken at least one restraining order in order to confront a wife that he had previously struck. By all there accounts he loses his temper, then loses control and then attacks them physically. But he hasn’t been convicted of a felony. Are you satisfied that his right to own guns trumps the rights of those he threatens?

    2
  32. @MarkedMan:

    I think cases like that need to be judged on a case-by-case basis, with the person in question being given notice of any legal proceedings, due process, and an opportunity present evidence in their defense. The idea of a blanket rule that would apply to all cases of “domestic violence,” even in cases that are simple misdemeanors, that bars someone from exercising a recognized Constitutional right is something I believe we ought to avoid.

    When we’re dealing with violent crimes that rise to the level of a felony, the charges are obviously far more serious and there’s a good argument for some kind of blanket rule. Even then, though, I would argue that there should be a procedure by which someone should be able to petition for the proposed lifetime bar be lifted.

    3
  33. @bookdragon:

    That’s the problem with passion and emotion, these are not the proper way to rationally discuss or recognize the consequences of particular policy proposals.

    I doubt I’m going to change your mind on this, though.

    3
  34. KM says:

    @Doug Mataconis:

    Respectfully Doug, this kind of answer is why nothing is getting done. You are quibbling about the fact that DV is a misdemeanor and therefore shouldn’t forfeit rights for life without stopping to question *WHY* DV is only a misdemeanor and thus allowing a lot of potential shooters to skate by the system. Quite frankly, it’s a major red flag that gets a pass solely because we as a nation have decided beating your child and/or spouse is less heinous then tax evasion or assault of a stranger. We’ve already made the social decision that breaking a few noses shouldn’t stop you from buying an AR-15 so long as those noses are blood-related.

    If one were to think logically, not legally, it shows a clear connection between the willingness to do harm to a loved one and the willingness to do harm to a stranger. In a logical world, someone who was convicted of DV would have demonstrated the same kind of violent intention that other violent crimes do and would be treated in the same vein. Can you explain why the violence of DV should be qualitatively any different then the violence of similar felonies?

    I get what you’re say about misdemeanors not having the same penalties as felonies. Our point is some misdemeanors should really be felonies and that shooters are getting access they shouldn’t on that technicality. My personal thought is having demonstrated violent tendencies towards another human life (regardless of the specific legal status of the charge), one’s gun rights should be curtailed and must be slowly earned back if ever. Abusers generally don’t get better, they get worse.

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  35. MarkedMan says:

    @Doug Mataconis: I pretty much agree with you here. What I would like is for this to become a much more routine solution. Basically, if a court grants someone a restraining order against a spouse, boyfriend, coworker, neighbor, etc due to violent tendencies, I think the standard should be “remove weapons from their possession unless they show very good cause why their violent outbursts should not be considered.” And after the ruling, failure to turn them over would be a felony, as would borrowing, buying or otherwise just about anything that would entail touching a gun. Finally, reinstatement would never be automatic. They would need to petition the courts, and the person who had obtained the original sustaining order would be allowed to testify.

    1
  36. MarkedMan says:

    @Doug Mataconis: I think you are off-base re: passion and emotion. You are passionate about defending someones second amendment rights. Another person is passionate about ensuring abused spouses aren’t put in any more danger. Which one we value more as a society is in fact about those passions.

    3
  37. James Joyner says:

    @EdIdieInCA:

    Where is the “well-regulated Militia”, and “security to a free state” elements when it comes to gun ownership?

    I’m not trolling. I genuinely don’t understand how my clear reading of the 2nd Amendment, in context, and looking at the history behind it, is so different than that of so many other well-educated people.

    While I took a lot of ConLaw classes, at both the undergraduate and masters level, 30-plus years ago, the 2nd Amendment has never been a huge interest area of mine (the 1st and 4th interest me much more). But it was always understood that the militia meant the common citizenry and we have significant judicial precedent on that point. No right, not even the right to free speech or worship, is absolute and certainly we can take away guns from violent felons. But the notion that the mere accusation of domestic violence would yield to losing fundamental rights for years on end and that conviction of a non-felony would cause permanent ban is absurd on its face.

    2
  38. OzarkHillbilly says:

    @MarkedMan: A thousand thumbs up, if I could.

  39. @KM:

    I am saying that no conviction for a misdemeanor should be the basis for denying someone Constitutional rights for, potentially, the rest of their life.

    2
  40. @MarkedMan:

    Actually, I think I’ve been fairly even-handed when it comes to the Second Amendment and that you are accusing me of something that just isn’t true.. I have said many times in the past that I generally support the idea of expanding and improving the background check system. I have said I think bump stocks should be illegal. And, I’ve said in the past that I’m at least open to a discussion on other issues, as long as it falls short of absurd and unworkable ideas like repealing the Second Amendment or actual weapons confiscation.

    The main point I have raised in this comment thread is that I don’t think that conviction of a misdemeanor should be sufficient reason to deprive anyone of any rights for the rest of their life.

    2
  41. Han says:

    @Doug Mataconis:

    That’s the problem with passion and emotion, these are not the proper way to rationally discuss or recognize the consequences of particular policy proposals.

    Well, if we were to rationally discuss the issue with zero passion or emotion on either side, we could reasonably determine that a well regulated Militia is no longer necessary to the security of a free State. And as such, it is no longer necessary to have a Constitutionally enshrined right of the people to keep and bear Arms.

    1
  42. EddieInCA says:

    @James Joyner:

    Thank you for the response, but, as usual, the big one gets left out…

    “…well-regulated”. Based on your own definition, this would mean “well regulated citizenry”. Wouldn’t that give the government the ability to regulate how the citizenry acquires and uses “arms”? I’m still at a loss in understanding how your definition ignores the “well-regulated” part of the amendment.

    But thank you for your insight.

    1
  43. @Han:

    I suggest you read the Heller majority opinion, you have a profound misunderstanding of what that portion of the Second Amendment actually means.

  44. Jim Brown 32 says:

    @Han: You could conclude that…based on what evidence Im not sure. But there is a way to change the rights enshrined in the Constitution. Good luck with that.

    1
  45. Sleeping Dog says:

    As a liberal, I can sign on to French’s proposal as a reasonable attempt to reduce gun violence. Does it have problems, yes, but one shouldn’t allow the perfect to block the good.

  46. MarkedMan says:

    @Doug Mataconis:

    you are accusing me of something that just isn’t true

    Actually, you are misreading my words, or perhaps I was imprecise. I wasn’t actually commenting on your position (actually I had done that above and acknowledged the legitimacy of your points.) I was limiting my comment to the “passions” statement, and I wasn’t judging you negatively. I certainly wasn’t saying I thought you were an extremist that didn’t care about people killed in DV situations. I was merely making the point that where we come down on this can’t be separated from our passions because in the end it is a call about what we value. And sure, there are extremists that only value one side or the other, but there aren’t many here (Trolls aside).

    In fact, the discussion we are having is the correct one, in my opinion. In one sense, we are all in agreement. Conviction of certain crimes should result in losing your right to own a gun. And there is at least an argument by all that demonstrating someone has a serious risk of violence under a judge’s examination could result in the loss of those gun rights for a specific period of time. And from there we can have the discussion that the legislators should be having. What crimes? How much leeway should a judge have? Should something be automatic? Those are real debates.

  47. Jim Brown 32 says:

    I find it hilarious that Democrats supposedly have a constituency rooted in analysis, facts, and evidence….until their hot button issues are up for discussion and those things no longer matter.

    Constitutional rights are equal..non more important than the other so policy approaches clearly out of bounds with respect to one type of right don’t all of a sudden come in play because you’re passionate about it or have personal experience.

    It’s clearly out of bounds to erect a barrier in front of a Constitutional right to have people “qualify in.” That goes for Voting, Speech, Trial by Jury…yes even guns. Frankly, this is yet another issue where Left and Right continue to be intellectually lazy. Just like there are some foreign policy problems you can’t bomb your way out…there are domestic challenges you can’t legislate your way out of. Especially with ham-fisted gun control policies that are ill thought and whose impact demographic is overwhelmingly people not at-risk for rampage.

    If Liberals and ConservaDems would pull their heads from their rear (“Conservatives & Trumpkins simply aren’t cappable) and ask: How do we identify the pool of at risk boys and men for this behavior? They’d have a better feel for what policy roads to go down.

    I’m sure it’s completely possible to identify at-risk shooter and intervene with a variety of techniques. I’m also sure it would be fairly hard and clunky in the beginning stages but improve with time. That would take work and thinking though..things people don’t like to do

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  48. Just 'nutha ig'nint cracker says:

    I mostly stay away from commenting on these posts. I suspect that it’s because I’ve become willing to consider “prying the guns from their cold, dead fingers” as a workable solution even though I suspect that it’s not. I’ll go back to lurking on this topic now. We need a better society. One that doesn’t elect guys like Trump–and Hillary, too, as far as that goes.

  49. DrDaveT says:

    @Doug Mataconis:

    I am saying that no conviction for a misdemeanor should be the basis for denying someone Constitutional rights

    Yes, you are. Repeatedly. At the same time, you (and James) seem to somehow believe that which crimes are ‘felonies’ and which are ‘misdemeanors’ is somehow a fact of nature, handed down by God, and not a product of the culture we live in. The same culture that seems to think protecting gun ownership is more important than protecting people from abusive spouses.

    Let’s be blunt. Are you seriously asserting that repeatedly beating the crap out of your wife should only be a misdemeanor? The rest of your argument rather hinges on that question.

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  50. DrDaveT says:

    @Jim Brown 32:

    I’m sure it’s completely possible to identify at-risk shooter and intervene with a variety of techniques.

    Then you are… let’s say ‘uninformed’.

    Hint: it should be just as easy to identify likely suicides. But it isn’t.

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  51. James Joyner says:

    @DrDaveT:

    I can’t speak for Doug but I think “domestic violence” is too broad a category to result in a permanent ban but perhaps not a temporary restraining order. Under Virginia law, simple assault is a Class 1 misdemeanor but can escalate to felony status for all manner of protected classes. I find that highly problematic. I’d much prefer to see gradation based on the severity of the attack rather than the victim. And, indeed, in the case of assault and battery against a household member, which begins as a Class 1 misdemeanor, it can escalate to a felony:

    Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding or unlawful wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, (v) strangulation in violation of § 18.2-51.6, or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.

    I’m fine with increased penalties for repeat offenders. Throwing a punch in anger shouldn’t ruin your life, whereas “repeatedly beating the crap out of your wife” should put you in jail for a long time. And, sure, I’m willing to have a presumptive stripping of gun rights with restoration needing to be earned in some way for the latter.

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  52. @DrDaveT:

    Someone who “beats the crap” out of their wife, girlfriend, child, or even just a random person on the street is likely to be charged with felony assault and battery. Misdemeanor charges are typically used in far less serious cases that don’t involve major injury, and in most states that I am aware of repeat offenders usually see assault charges upgraded to felonies.

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  53. @James Joyner:

    I think “domestic violence” is too broad a category to result in a permanent ban

    That’s basically my position as well.

  54. EddieinCA says:

    Doug Mataconis says:
    Wednesday, February 21, 2018 at 10:04
    @James Joyner:

    I think “domestic violence” is too broad a category to result in a permanent ban

    That’s basically my position as well.

    With all due respect, you both sound like guys who don’t know anyone who has been the victim of “domestic violence”, or you just believe it’s not as big a deal as the right to own a gun.

    I believe (maybe wrongly), that once you show that you lack impulse control (not just for DV, but in any way), you should not be allowed to purchase a gun. Domestic Violence – even as a misdemeanor – to me should be an automatic disqualifier to owning a any firearm.

  55. James Joyner says:

    @EddieinCA:

    With all due respect, you both sound like guys who don’t know anyone who has been the victim of “domestic violence”, or you just believe it’s not as big a deal as the right to own a gun.

    I believe (maybe wrongly), that once you show that you lack impulse control (not just for DV, but in any way), you should not be allowed to purchase a gun. Domestic Violence – even as a misdemeanor – to me should be an automatic disqualifier to owning a any firearm.

    My position is simply that we can’t permanently take away Constitutional rights for misdemeanor violations. Period.

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