The pressure is on for lawmakers to “do something” after the devastating tragedy in Uvalde, Texas, where a killer known to authorities with a history of violent behavior went unchecked and committed an atrocity. The solutions typically proposed only address the aftermath of the underlying problem that is left unchecked. Uvalde native Matthew McConaughey spent two days in Washington, D.C. this week lobbying lawmakers and spoke at a White House press briefing where he called for red flag laws, an “assault weapons” ban and for raising the age of rifle purchase from 18 to 21 years old (the age for handgun purchases).
So-called red flag laws constitute one of the most dangerous proposals in modern history. The purpose of red flag law is the obliteration of due process in the name of speed and efficiency. Red flag laws first render punishment and establish guilt through ex parte orders, after which the respondent must prove his/her innocence in a process that can take months—and at significant legal expense, to boot. During his 2019 testimony before the Senate Judiciary Committee, law professor Dave Kopel noted that a whopping one-third of red flag orders are wrongly issued and that the ex parte system deprives citizens’ due process rights and right to counsel. If something is serious enough to infringe upon someone’s enumerated constitutional rights, then it’s serious enough to follow our system of due process which allows for a 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. The red flag law precedent won’t stop at firearms—it could be widely applied to numerous issues.
McConaughey has previously called for an “assault weapons” ban—that is, a ban on commonly-owned semiautomatic rifles. Perhaps after reading the RAND Corporation’s 2020 study, which found no evidence that the ban reduced crime (a similar Department of Justice (DOJ) study concluded the same, along with Politifact) he retooled his position, calling this week only for a waiting period in order to purchase an “assault weapon.”
But there is no evidence to support that waiting periods reduce homicide, either. The Sandy Hook killer didn’t want to wait the required 14 days when purchasing a rifle (and was denied one by the Federal Firearms License dealer), so he stole his mother’s rifles to commit his evil act. In general, a 2016 DOJ study found that only “1.3% of prisoners obtained a gun from a retail source and used it during their offense.” And a University of Pittsburgh study concluded that four out of five criminals get their weapons on the black market.
McConaughey says all gun purchases should require a background check. Well, purchases do go through background checks. Intrastate private sales of non-National Firearms Act items are still federally regulated under threat of penalty to require transfers between eligible parties only. There is no evidence to support the claim that lawful, private gun transfers drive crime. The 2015 South Carolina church killer 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. Then-FBI Director James Comey explained in a statement the clerical error that allowed the purchase.
Establishing a registry, which is what the gun control lobby is getting at when it calls for “universal background checks,” does nothing to prevent the majority of criminals who buy their weapons on the black market from obtaining said firearms (and it violates the Firearm Owners Protection Act, too). I don’t trust the government that weaponized the IRS against tea partiers—a government that has brazenly abused its authority within the DOJ, FBI and FISA court system—to create a database of every gun Americans own. As for straw purchases, states with the most restrictive gun laws are some of the very worst at prosecuting falsified 4473 forms, according to a Government Accountability Office 2018 report.
One of the proposals gaining serious momentum is that of raising the age to purchase a rifle from 18 to 21 years old. Age isn’t the problem—people willfully choosing to commit evil is the problem. The 2017 Las Vegas killer was 64 years old. The Virginia Tech killer was 23 years old. The Sutherland Springs, Texas killer was 26 years old. El Paso’s killer was 21 years old. The Pulse Nightclub terrorist in Orlando was 29 years old. The Thousand Oaks, California killer was 28 years old. The San Bernardino killers were 29 and 28 years old. The Ft. Hood terrorist was 51 years old. The Pittsburgh synagogue killer was 46 years old. The average age of mass shooters is actually 33.2 years old.
Instead of punishing law-abiding people by punitively raising the purchasing age and robbing them of an enumerated constitutional right and due process, perhaps stop sealing the juvenile records of murderous 18 year olds, which prevents violent, felony criminal activity from following to adult records.
How many kids are stuck in the legal limbo of 18-21 years old who live alone while seeking higher education or starting their lives after moving out of their family homes? What other constitutional rights are now subject to ad hoc, age-based modification?
School shootings are rare tragedies. Instances of defensive gun use—when guns are used to protect and save lives—outnumber instances of criminal usage even by the most conservative estimates. Punishing the innocent by restricting their defenses doesn’t reduce the number of killers—it just increases the number of victims.
Dana Loesch is a nationally syndicated radio host (“The Dana Show”), best-selling author and Second Amendment advocate. Twitter: @dloesch.
The views expressed in this article are the writer’s own.