The morning of April 16th brought news of another mass shooting, and all the politicians will be sent to the warehouses where they keep “thoughts” and “prayers” to lay in a fresh supply.
I predict that before the calendar rolls over to May, there will be another mass shooting, requiring a fresh application of thoughts and prayers to the wounds that have been open since at least 1966, when the University of Texas tower became a sniper perch.
Mass shootings have become as common nationally as tornados were regionally where I grew up. Whether mass shootings could be mitigated by law or were as random and dangerous as the tornados got no discussion that I recall. Semi-automatic rifles were as dangerous as chainsaws or nail guns and at least as common.
Pistols kill more people in the aggregate, but rifles are the weapons of choice for mass murder. Pistols were not common tools like a duck gun or a deer rifle. I “pulled my hitch” (in the language of ’50s Indian country) at a time and place where every young man was born owing Sam a “hitch” if he could pass the Armed Forces Qualification Test and the physical.
Very few young men could afford a bone spur even if they were willing to take the reputational hit that would certainly follow from buying out of an obligation thought to be concomitant with the U.S. citizenship first extended to American Indians in 1924. Military officers routinely carried a sidearm in combat and U.S. flyers got a pistol in the survival kit stashed for those who went down behind enemy lines.
At the bottom of the mass shooting remedy bag, under the thoughts and under the prayers, there is something that put me off from the time I decided I wanted to be a judge and that has not improved in the 48 years since. The public is being asked to punt a wedge issue to the judiciary. This is understandable, but it appears to me to risk a great deal of harm to very little good.
Wedge issues are, by definition, carrying enough emotional baggage to cause a significant part of the public to ignore the meat of a lawsuit, the task of applying the law to the particular facts. The judgment is determined by the issue and there are not enough facts or laws in the moral universe to budge the outcome.
A wedge issue that works that way is the judicial bypass law in Texas that kicks in when an unmarried minor wants an abortion but does not want to bring her parents into the decision. Rather than force the young woman to aggravate an already fraught relationship, she may ask a judge to sign an order declaring that she is mature enough to consent to her own abortion.
This does not seem to me a simple question.
Was she mature enough to consent to intercourse? If not, does it matter that the pregnancy is the result of rape?
If she is not mature enough to consent to her own abortion, is she mature enough to raise a child? Is she mature enough to waive all rights to her child for at least 18 years (which will be longer than she has been living)? Is there a fourth option that I’m overlooking?
Is there some basis to believe that this judicial bypass proceeding will lead to a “better” outcome than allowing a child to assert her right to privacy?
Texas selects judges by partisan election. States that have other selection methods also have ways to remove judicial tyrants short of their biological ends, even if the removal takes a bit longer than simply waiting for the next election. There are plenty of political activists on both sides of the abortion issue prepared to wage jihad over that matter regardless of what else an incumbent judge has or has not done.
I am retired now, but before I retired I had little to fear from a judicial bypass case because most of the voters who elected me live in Austin, where my support for the Bill of Rights was unlikely to do me harm. But Texas is a big state and plenty of judges have to submit to an electorate that cannot distinguish an abortion from a murder.
When a judge is presented with a wedge issue without any rational basis for decision other than the values that made it a wedge issue in the first place, I expect the judge may be statistically likely to call most cases as the electorate would wish or according to the judge’s values. I would not turn my vote on that one issue and most people would not, but one issue voters can wield power out of proportion to their numbers.
This sad news rolled another wedge issue to the stage: gun safety. From the congresscritters dispensing thoughts and prayers on various channels, I gleaned two things on gun safety. The first was the opinion that the Senate will not vote to plug all the loopholes in the background check requirement. I find this surprising because most of the gun nuts I know have passed background checks and therefore do not see any impediment to stocking up the arsenal in a more robust background check requirement.
The second opinion that got my attention was that the reform with the most cheerleaders appears to be a red flag law. This is a law that allows certain persons given standing within the law — law enforcement and mental health professionals, family, close friends — to convince a judge that a particular individual is a high risk for abusing his firearms. The judge can then order a temporary seizure of the firearms without regard to whether the gun owner has a permit. While I have not laid eyes on a red flag law, it seems obvious to me that the seizure would have to be subject to a prompt hearing.
The idea for red flag laws has come from interviewing persons close to perpetrators of mass shootings and discovering that many people can read danger signs in the rearview mirror that either did not appear before the killing started or, if they did, left the observer with no viable course of action.
Red flag laws set up the political problem of wedge issues punted to a judge, but there is a distinction that could be very important depending on how the law is drafted. Unlike the judicial bypass for an abortion, it’s possible to instruct the judge on what the legislature intends in a meaningful way.
The judge’s skillset includes finding facts. How “mature” a teenager might be is a fact only in relation to the possible outcomes of a pregnancy and the relative maturity requirements in those outcomes are joined at the hip with values arrived at through religion or philosophy — matters we are not accustomed to treating as “facts” for good reason.
Future dangerousness may be slippery as a squid, but it’s an inquiry a criminal court makes at every sentencing. The drafting problem is how to make the dangerousness issue less slippery. A verbal threat against a known person or place is the easy case. So easy, in fact, that I am moved to ask how the person who uttered such a threat will get his guns back?
I hate to invite a gun-grabber alert, but it’s not hard to imagine personality disorders that would make an individual too dangerous to be trusted with firearms or explosives or other efficient killing devices….ever.
Remember, a red flag finding is supposed to be temporary. Therefore, after you instruct the judge what sorts of facts justify confiscation of firearms, the next necessary inquiry is what sorts of facts justify returning the firearms? The more wiggle room left in the law, the more likely it becomes that a judge will tend to call most cases the same way and the process for selecting and retaining judges will break down over this one issue.
The method that seems to me more likely to protect the public is to be careful about who gets guns in the first place, but that would require….universal and airtight background checks. It’s also important to remember that gun permitting fell apart over the same issue I raise about judges — the decision-makers calling all applications the same way, depending on his or her attitude toward guns or whether the applicant is a big shot.
The National Rifle Association peddled laws one state at a time to break gun bans disguised as gun permit laws. The laws are called “shall issue” and they say the government can require a gun permit, but everybody who applies for one gets it unless the government can give a reason why not. The NRA has been responsible for some awful policies, but this is not one unless you find no issue with people of limited means in high crime neighborhoods having only illegal weapons while the swell folks get permits from bureaucrats with whom they are on a first name basis.
The bottom line, for now, is that there would be good reason to throw a red flag on red flag laws if the legislative branch of the government was functioning. It’s not, so an interim study would get nowhere after the fighting over who gets on the committee to represent decisions already made in lobbyist offices.
So we probably ought to work on a federal red flag law, because the sooner it gets in the books, the sooner we can start finding out the many ways to screw it up. Then, at least there would be something in the mass shooting remedy bag besides thoughts and prayers.
Previously Published on Medium