Re: Preventing Mass Killings
Dear President Trump:
Here we go again. Too many people die from a specific form of violence that has a lot of shock value. A lone man can wind up making us feel really insecure going about our daily business. I know you are working on something, so just take this missive as a confirmation of what feels right to lay people, and maybe a source of some new ideas.
The second amendment is a powerful factor in keeping us a free and great country. Its very presence in our Constitution is an awe inspiring feature of the United States. We dont want to dump it overboard in our rush to make ourselves feel more secure. We should stop pretending this is about the right to hunt, or to defend oneself - it is about the right to resist an external invader, or a government that tramples on our liberty. It is the last bulwark against the passage and enforcement of unjust laws, ensuring the people have the means to revolt. Obviously, once they decide to revolt, law is irrelevant.
That should tell you where I stand in this debate. But we dont want to make the second amendment an excuse for inaction on something that is of serious concern.
I think we can look to the second amendment itself for the necessary safeguards. The founders struggled with the danger of regular people owning arms, and decided to add the clause about "A well regulated militia". I think we can take it from there to make a sane set of laws repecting the second amendment, as well as providing security.
First two steps, we have to assure people (and the NRA) that "the right to [keep and]1 bear arms shall not be infringed" is truly respected. Obviously, you cannot "bear arms" without having them in your possession. Also, arms are not just guns! So the implementing law should explicitly state something like:- "Mere possession of any non-living thing or substance shall not be illegal in any jurisdiction of the United States, nor shall any person be convicted of any crime when mere possession is the preponderance of the evidence."
Such a clause would enhance liberty in many ways, and reduce injustice by corrupt law enforcement. A kid building a battery using small amounts of high energy material(!) in a school lab is not a criminal. A weapon found on you or your property does not get you arrested - or worse. A dope bag planted in your car by an overzealous cop cannot result in your conviction. Ownership, not possession, can be regulated. If it can be shown that the dope bag belongs to you (because you bought it from the cop, or you claim it!) you can still be convicted.
Carry is another part of "bear arms". So we have to ensure that it is legal to transport arms through public spaces. We don't want the scary look of open carry, and we want to enable quick response by law enforcement if the person carrying it decides to use those arms. We should add something like:- "It shall be legal to transport arms through any public space, provided that such arms are disabled and effectively concealed during transport." Unauthorized display of arms in a public place can be met with lethal force by law enforcement personnel.
Third, we recognize a class of arms (based on kill rate) that individuals can own [carry?] without restriction, such as short knives, single shot rifles, and handguns. This can be location specific and should include any items deployed by the most local law enforcement agency. This extends to private spaces - a bar owner can make a rule that says "no knives or guns", if his bouncers carry no knives or guns. As a corollary, ownership of higher kill rate weapons and modifications to achieve the higher rate can be regulated.
Fourth, we explicitly recognize the right to form a militia2. "Any group of more than 10 people can combine to form a militia with a set of bylaws regulating the use of arms by its members. The kind of arms that can be owned by such a militia may be regulated, based on its bylaws, and the size of the militia." A large enough private security force is a militia, the number 10 is just an example. A "militia" consisting of one or two people is undesirable - the social support of a militia's fellow members and the constraints of its bylaws help prevent an individual from going off the deep end. If he does anyway, there is a social group that can recognize when it is about to happen, excommunicate him, and deprive him of access to weapons; or the conscience of another member makes them take other action to prevent damage. The draft was a great thing, it gave young men discipline, ethics, and purpose; it gave them a group identity when they most needed it. It is young men that usually are the problem, and militias are effective ways to channel their energy and anger. Maybe we could even coopt gangs as local militia! We can avoid the charge of de-facto registration by allowing militias to not disclose their membership3 until law enforcement has a question about a specific person whose acts they are investigating.
Fifth, we extend liability to owners for any damage caused by arms they own. "Owners shall have full liability for any acts committed with arms they own. Theft does not take away such liability. In the case of a militia, liability may be extended to its members." This makes sure the internal policing actually happens.
If we have residual liability and KYC (know your customer) rules like banks do when arms owners transfer them to somebody else, we don't even need to make background checks mandatory. Sellers will do it by themselves for people they don't know (like a random buyer at a gun store), they will pay for it, and demand good service from the background check system. Even if the background check system gives a person a pass, they will refuse the sale if the customer looks troubled or is from a more restrictive state. The NRA and gun manufacturers may hate this, but you can mitigate their objection by limiting the residual liability to the first transfer and a finite period of time, and if sellers can show they have used due diligence establishing the customer will use the arms responsibly (such as by using the background check system).
Red flag laws make sense, but I think there are two important issues to consider. First we need to be careful not to turn them into violations of our free speech rights. There is a huge social benefit when we allow individuals to freely express their thoughts, no matter how uncomfortable it makes other people. When people feel they cannot get a hearing for their pain or dissatisfaction with words, they will resort to more attention getting methods. The law needs to draw a really bright sharp well defined line around what speech or publication is unacceptable, making the forbidden set as small as possible; and prevent the censorship of anything else by a public platform. A public platform can be defined as one that is capable of reaching more than (say) 10000 people and publishes the submissions of others without paying them a fee, or if it claims to be unbiased. Public platforms should be obliged to follow this no censorship law, and if necessary should delay publication of any post so they can check for violations.
I think the advocacy on any platform of violence against any person or [non-government]4 class of people should be unacceptable, earn a red flag, and actually be punished - with non-publication and/or a fine. A small but near certain penalty is preferable to a rarely used felony charge. If the identity of the advocate cannot be determined, the platform owner should be required to suffer the penalty. On public platforms, we can add a few others - campaigning for the unemployment of a non-public person or group, or the doxxing of a person or group that uses a pen name. On the other hand, publishing reports of any illegal act (if true) of a person or group should be explicitly allowed.
A second issue with red flag laws is that we also need to work on the process of confiscation or confinement to make sure that subjects are not killed or have their rights violated5. 5 am raids to take away guns are a bad idea; people are normally kind of irrational at that time. We need an arrest warrant served in broad daylight, and the guns taken away only after the arrest has been done. It is especially important to figure out how to accomplish the ERPO without killing the subject when the referral has been made by a concerned family member. I think it is a good idea to let the states experiment with the red flag process, but encourage them to do it.
Finally, I think we need to do something about glory hounds or copycats. It should be against the law to publish the name of a mass killer in any public forum unless law enforcement needs it to be done to apprehend him. If such a person dies (either during the crisis or after trial) he should be cremated, and if determined to be a glory hound or copycat, no marker should be left of his existence.