Responding to Matthew McConaughey's Gun Control Editorial
Punishing the innocent by restricting their defenses doesn’t reduce the number of killers, it increases the number of victims.
The Statesman published an editorial by Uvalde native Matthew McConaughey this morning on gun control. The massacre broke the nation’s collective heart, but the pain is understandably more visceral for people who were born in or live in the community.
While I appreciate that McConaughey doesn’t enter this discussion with the usual ad hominem to which we accustomed from gun control advocates, I still strongly disagree with his proposals which I don’t believe address the problem or get us any closer to a solution. From his piece:
1) All gun purchases should require a background check. Eighty-eight percent of Americans support this, including a lot of responsible gun owning Texans. … I’ve met them. Roof, who killed nine people in a black church in South Carolina in 2015, got his pistol without a completed background check due to a legal technicality. The system failed. Gun control activists call this a loophole. I call it incompetence.
Criminal acts are not loopholes and we need to stop referring to criminal acts as such. If you’re busted driving drunk it’s not because a loophole allowed it, it’s because you chose to commit a criminal act.
All purchases do go through background checks. Intrastate private sales of non NFA items are still federally regulated under threat of penalty for transfer between eligible parties only. There is no evidence to support the claim that lawful, private transfer drives crime.
McConaughey is incredibly wrong on the case of Dylan Roof, who was allowed to purchase his firearm after a completed background check because the background check system failed. It didn’t fail due to a “legal technicality,” it failed because of human error. I noted this in a previous piece (please excuse the formatting). Here is what then-FBI Director James Comey explained in a statement on what actually transpired, bold my emphasis:
I want to describe the particulars of the Roof gun purchase and background check, because Roof should not have been allowed to purchase the handgun. Here is what happened, as I understand it today:
First, she went on the website of the Lexington County court to see if the matter had been resolved.
Her review of the court website showed that Roof was a defendant there but there was not yet a disposition in the case, which meant he was not a convicted felon. She didn’t stop there.
Second, she faxed a request to the Lexington County Sheriff’s Office asking for more details on the case.
Third, she faxed a similar request to the Lexington County prosecutor’s office.
She heard back from the sheriff’s office, telling her that the case was not theirs, and that she should check with the Columbia Police Department.
Not knowing the geography, she did what she was supposed to do and followed our protocols. Examiners use contact sheets that list criminal justice organizations, organized by state and county. Because the arrest was attributed to the Lexington County sheriff, she was obviously dealing with Lexington County, so she pulled up the sheet for that county. As she examined it, she did not see a listing for a “Columbia,” but she did see a listing for “West Columbia.”
Informed by the fact that the gun had been bought in West Columbia and that it was the only listing on the sheet for such a name in Lexington County, she contacted the West Columbia police. They replied that they had no record of such a case.
The contact sheet for Lexington County did not list the Columbia police. Instead, Columbia PD was listed as a contact only on the sheet for Richland County. But the examiner never saw that sheet because she was focused on Lexington County.
So the court records showed no conviction yet and what she thought were the relevant agencies had no information or hadn’t responded. While she processed the many, many other firearms purchases in her queue, the case remained in “delayed/pending.”
By Thursday, April 16, the case was still listed as “status pending,” so the gun dealer exercised its lawful discretion and transferred the gun to Dylann Roof.
After that horrific day when Roof allegedly used the gun in Charleston, the matter was obviously researched and the rap sheet confusion—listing the arresting agency as the Lexington County Sheriff—and the internal contact sheet omission were discovered. But the bottom line is clear: Dylann Roof should not have been able to legally buy that gun that day.
Those are the facts as we know them today. I have directed a full review of the matter by our Inspection Division and given them 30 days to report back to me. I will provide an update to you. I not only want to understand all the facts, but I want to know if there are ways to improve our process, our procedures, and our training. We are all sick that this has happened. We wish we could turn back time, because from this vantage point everything seems obvious, but we can’t.
What we can do is make sure that we learn from it, get better, and work to ensure that we catch everything.
As far as a waiting period in this case, it wouldn’t have impacted what transpired, notes Politifact, again, bold my emphasis:
One more day wouldn’t have mattered. The FBI director has said that clerical errors led to Roof being able to legally purchase the gun in April 2015, and the FBI didn’t confirm that the sale shouldn’t have been allowed until after the shooting two months later.
According to South Carolina court documents exclusively obtained by Radar, Roof, 21, was arrested in Lexington County on felony charges of possession of cocaine, methamphetamine and LSD on February 28, 2015.
That alone disqualified him from legal carry and purchase of a firearm. In South Carolina, you only have to be charged with a felony to lose your 2A right. Roof would have failed a properly-performed background check and blocked from properly purchasing a firearm. It was reported that his father purchased him a handgun for his 21st birthday. Two months after he's charged with a felony his father buys him a gun? This means if his father purchased a gun for his birthday it was a straw purchase, a felony, punishable by up to 10 years in jail and a $250,000 fine.
The system isn't perfect. It is only as effective as the people running it, as I covered at the time. It’s wrong to punish all law-abiding Americans for the authorities’s mistake here.
[*An excellent point from listener Pam: “There are background checks throughout the nation. When you are 18 there’s not a lot there to check, especially when schools hide chronic criminal behavior. Use the Loudoun County Schools that hid the trans sex offender rape attacks and they moved him to another district as an example.”]
2) Unless you are in the military, you should be 21 years old to purchase an assault rifle. I’m not talking about 12-gauge shotguns or lever-action hunting rifles. I’m talking about the weapon of choice for mass murderers, AR-15s. The killer in my hometown of Uvalde purchased two AR-15s for his eighteenth birthday, just days before he killed 19 students and two teachers. He obeyed the law. Had the law been different, perhaps I wouldn’t be writing this today.
The killer didn’t obey the law. He murdered 21 other people. No one reported his behavior in order to establish a record and adjudicate him ineligible to purchase.
Age isn’t the problem — people willfully choosing to commit evil is the problem. The Vegas killer was 64 years-old. VA Tech was 23 years-old. Sutherland Springs killer was 26 years-old. El Paso’s killer was 21 years-old. The Pulse killer terrorist was 29 years-old. The Thousand Oaks killer was 28 years-old. San Bernardino killers were 29 and 28 years-old. The Ft. Hood killer terrorist was 51 years-old. The Pittsburgh killer was 46 years-old.
The average age of mass shooters is 33.2 years-old.
In addition, they are most commonly younger than age 45 (82 percent); more specifically, 26 percent of mass public shooters from 1976 to 2018 were younger than age 25, 27 percent were aged 25 to 34, and 29 percent were aged 35 to 44. Relative to the overall U.S. population, mass public shooting offenders are much more likely to be male and are somewhat younger; relative to other homicide offenders, males and non-Hispanic Whites are overrepresented among mass public shooters, and mass public shooters are older. For comparison, of the overall U.S. population in 2019, approximately 49 percent was male, 60 percent was younger than age 45, and 60 percent was non-Hispanic White (U.S. Census Bureau, 2020). Of murderers in 2018 with known offender characteristics, 88 percent were men, 84 percent were younger than age 45 (38 percent younger than 25, 31 percent aged 25 to 34, and 16 percent aged 35 to 44), and 42 percent were White (Hispanic ethnicity information was not provided) (FBI, 2019f).
Raising the age would not have stopped the worst mass casualty shooting in the country’s history or one of the worst at Virgina Tech.
It penalizes the innocent for the crimes of killers. Raising the age is the removal of an affirmed right without receiving due process. The argument (made by Jerry Nadler and others) is that 18 year-olds are mentally incapable of lawful carry in the U.S. but there is no problem with sending them off to fight wars on foreign soil and given taxpayer-funded weapons that possess far more capabilities than what American citizens are allowed to carry.
One of my sons already had to sign a draft card, by threat of severe penalty, pledging his life to the military if drafted — we expect 18 year-olds to sign such a card but simultaneously reduce them to second-class citizens? (Democrats are still so in love with the draft that they want to force your daughters to sign such a card, too.)
How many kids are stuck in the legal limbo purgatory of 18-21 years-old who live alone while seeking higher education or starting their lives after moving out of their family homes?
If these natural rights — different from courtroom-created civil rights — are subject to modification based on age, what about the right to free speech? Peaceful assembly? Worship? Press?
3) Red Flag Laws should be the law of the land. These measures, which are already in effect in 19 states and Washington, D.C., empower loved ones or law enforcement to petition courts to temporarily prevent individuals who may be a threat to themselves or others from purchasing or accessing firearms. These laws must respect due process, judicial review, and hold account individuals who may abuse such laws.
I’m against red flag laws because there isn’t any evidence to show that they work. New York’s red flag laws didn’t stop Buffalo (even after the killer reportedly told a retired FBI agent of his plans) , neither did California’s, Colorado’s, etc. In fact, there is more concrete evidence (in number of cases within the states already enforcing them) of wrongly-issued orders than not because the very nature of their design is ripe for error and abuse and there is no national standard regarding legal standard.
Our due process allows for the respondent to face the accusations in court before a judge, be evaluated by a mental health professional, and makes the state prove guilt before rendering a penalty. If it’s serious enough to remove a right it’s serious enough to go before a judge. Red flags reverse “innocent until proven guilty” and make respondents prove their innocence after they are penalized in ex parte processes. Penalties should come after police investigations but with red flag law, this is reversed.
Under Indiana's law, a police officer can seize guns without a court order, in which case he is supposed to file an affidavit explaining his reasons after the fact. If a judge agrees that the officer had probable cause, police can keep the confiscated weapons. A hearing is required within 14 days, at which point the state has to prove by clear and convincing evidence that the gun owner meets the law's criteria. After at least six months have passed, the gun owner can seek the return of his property. He has to prove by "a preponderance of the evidence" that he "is not dangerous."
Notwithstanding the requirement that a hearing be held within two weeks, a 2015 study reported in the journal Behavioral Sciences and the Law found that gun owners waited an average of more than nine months before a court decided whether police could keep their firearms. When a hearing finally was scheduled, most of the gun owners did not show. But when they did, they usually prevailed, meaning judges decided the state had not met its burden of proving them dangerous. During the last 71 months covered by the eight-year study, gun owners won every contested case.
In many states the standard of proof is far reduced — in New York an imminent threat isn’t even required. As Dave Kopel rightly noted, if petitioners cannot produce “clear and convincing” evidence appropriate for an ex parte order then the order shouldn’t be granted.
Kopel estimates that on average, about 30% of orders are wrongly-issued and there is no imminent threat (or threat, period) at all. Many of the states with red flag orders (such as Maryland) immediately require law enforcement to show up and seize property, thereby creating highly dangerous situations. Additionally, not every state affords respondents a state appointed lawyer to represent them in clearing their name and restoring their rights. In Indiana police can seize guns without a court order at all provided the seizure is supported by probable cause and a judge agrees. It’s supposed to take two weeks to restore rights afterwards but there are stories of the process lasting for months.
There is not a single red flag law in existence in any state that protects due process because our existing process to have a court determine ineligibility is still the process that does. The purpose of red flag laws are specifically to sacrifice due process for speed.
I’m interested in hearing ways to prioritize these cases in the courts within our current system, as well as proposals that incentivize, not stigmatize, recognition of and treatment for mental illness. Not every killer has a mental health issue, though, some of these murderers are just evil and we should be careful not to allow evil to appropriate an identity of mental illness, nor should we stigmatize everyone who struggles with mental health by intimating that they’re evil. One thing for certain is that every single one of these mass murderers were either well known to LEO or their cruelty was well-known to those around them, yet not a single thing was done. It’s one thing to make stupid remarks online, it’s another thing to carry around a bag of cats that you slam on the ground and show off on video and at the same time sending rape and murder threats to women online.
4) We need to institute a national waiting period for assault rifles. Individuals often purchase weapons in a fit of rage, harming themselves or others. Studies show that mandatory waiting periods reduced homicides by 17 percent. Gun suicides account for the majority of U.S. gun deaths. A waiting period to purchase an assault rifle is an acceptable sacrifice for responsible gun owners when it can prevent a mass shooting crime of passion or suicide.
I’m not sure which studies McConaughey refers to here but there is no evidence to support that waiting periods stop or reduce crime:
Waiting-period laws are intended to reduce suicide, violent crime, and mass shootings in several ways. First, waiting periods are primarily designed to disrupt impulsive acts of violence and self-harm, giving angry or distraught buyers time to "cool off" or gain perspective. While it is plausible that this cooling-off period could reduce impulsive interpersonal gun violence, some evidence exists for the potential effects of this mechanism in reducing suicides.
Still, for some individuals, waiting periods may serve only to delay suicides rather than prevent them. Evidence from a cohort of handgun purchasers in California found that, while almost no firearm suicides were committed by this population during the state's 15-day waiting period, the most elevated relative risk of firearm suicide (compared with the general population) occurred in the first week after receipt of the weapon and remained highly elevated over the first month of purchase (Wintemute et al., 1999). Moreover, most firearms are purchased by individuals who already own a firearm. Azrael et al. (2017) found that, on average, gun owners had close to five firearms each, and a large majority (62 percent) purchased their most recent weapon from a licensed gun dealer. For those who already own guns, a waiting period may have little or no effect on suicide risk.
The Sandy Hook killer stole his mom’s firearms because he didn’t feel like waiting for Connecticut’s mandatory 14-day waiting period. Additionally, the overwhelming majority of criminals obtain their guns from the black market (more here). People fixated on mass carnage will not be delayed from their evil just by waiting a few days, but those like Carol Browne who need their right of self defense to protect themselves may be delayed in doing so.
As I have covered for many years, the first “assault weapons” ban that McConaughey supports was a failure:
We found no qualifying studies showing that bans on the sale of assault weapons and high-capacity magazines decreased any of the eight outcomes we investigated.
Propublica: “The senator says ‘the evidence is clear: the ban worked.’ Except there's no evidence it saved lives – and the researcher behind the key statistic Feinstein cites says it's an outdated figure that was based on a false assumption.”
LA Times: No, the assault weapons ban didn’t work: Impact Evaluation of the Public Safety and Recreational Firearms Use Protection Act of 1994
The New York Times: “The Assault Weapon Myth”
McConaughey’s heart is in the right place but the suggestions he offered are suggestions we’ve heard before from gun control lobbyists in Washington, with the exception of his inclusion of mental illness — and they don’t work for the reasons I’ve listed.
Yes, we do need to focus on mental health while also not conflating mental illness with pure evil. We need to increase our school security per the recommendations of the Sandy Hook Advisory Commission and Majory Stoneman Douglas School Safety Commission. The Gun Free School Zones Act has not prevented these tragedies for the past 30 years and we should repeal it. The question of who is armed should make potential school killers should fearfully reconsider committing their evil acts.
The Buffalo killer specifically cited New York’s gun control as his reason for selecting his target in his manifesto. He knew innocent people would be limited in their ability to defend themselves.
Punishing the innocent by restricting their defenses doesn’t reduce the number of killers, it increases the number of victims.