The recent atrocity perpetrated by Brandon Hole (“Hole”) at the Indianapolis Federal Express facility on April 15, 2021 — as well as other recent media high profile like heinous offenses — will undoubtedly result in new demands for “Gun Control”. I tender though that any narrative should be rephrased to consider “Gun Violence Control” rather then “Gun Control”.

These abominations are of course committed only by a small set of citizens. Firearms though are owned by a much larger set of citizens. Ergo, then, only a minority of owners or possessors of firearms engage in commission of these acts. Consequently, the focus of any regulation should be narrow, viz, on the class of these perpetrators rather than the weapon used or superfluous burdens and restrictions imposed on innocent owners; the latter class, being broader, would impact the majority of owners and possessors who are not a component of the problem. By addressing factors that are not the elements of a problem, i.e. here the segment of owners and possessors of firearms who only use them legally, the effectiveness of any regulation would by definition be diminished. Thus, effective measures rather should be considered, the following being tendered as preferable approaches.

According to news reports (reliable or not, such as CNN and AP), Hole was reported to the Federal Bureau of Investigation (“FBI”) during 2020 by his Mother because of concerns that he might commit “suicide by cop”. The FBI responded and questioned Hole, afterwards of which officers seized a pump-action shotgun possessed by him. It is unclear whether the officers were Federal or State, and whether it was pursuant to IC 35-47-14-1 et seq — the Indiana “Red Flag Law” — or not.

Also according to news reports, Hole subsequently, during July, 2020, and September, 2020, purchased two rifles apparently employed in the atrocity seven (7) months later. The reports do not mention whether any report was made, or any effort was made to invoke IC 35-47-14-1 et seq, during the interim.

The author has previously expressed his opinion that Extreme Risk Protection Order statutes, if structured properly, should be considered for State enactment. Regrettably, as also previously expressed, certain bills introduced at both the Federal and State level fail to satisfy the standard of proper structuring. A cursory review of the Indiana statute appears to indicate it provides at least some of the necessary due process protections.

The author’s rationale is that the vast majority, if not virtually all, of these perpetrators have exhibited severe mental or emotional behavior disturbances prior to their atrocities; some were reported and some were ignored. Assuming that knowledgeable persons would assume the responsibility to initiate appropriate action, then effective solutions for avoidance of many of these incidents do seem to present themselves.

The author is of the opinion that the Eighteenth Century concept of the utility of the Militia is not in the least anachronistic. If so, then each citizen should be expected to own and be familiar with the use of a firearm appropriate for militia use. They should be further required to undergo periodic mustering and training. This would provide the opportunity for observing any aberrations in any of the militia members and the occasion for initiating corrective and protective action to prevent illegal use of and removal of the weapon by and from such a person. A similar scenario is discussed in an earlier post by this author.

It is recognized that this solution might experience significant resistance, Therefore, a solution that likely would have broader appeal would consist of:

• First, a Federal enactment of a due process-compliant statute (“Federal Red Flag Law”) providing financial support to those States that enact Extreme Risk Protection Order statutes that contain certain minimum conditions. (This would be of the form of S.7 and S.506 introduced in the U.S. Senate during 2019, but with its due process deficiencies corrected.); and

• Second, the amendment of 18 USC 922(d) and (g) — the so-called “Prohibited Persons” provisions prohibiting certain persons from firearm purchases — by the addition of a subsection (10) comparable to 18 USC 922(d)(8) and (g)(8), possible verbiage being:

“(10) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) was issued pursuant to a State Extreme Protection Order statute that complies with the Federal Red Flag Law;
(C) includes a finding that such person represents a credible threat to the physical safety of himself or others; and
(D) deprived the person of a firearm in his possession or prohibited the return of a previously-seized firearm to the person.”

Provision for a maximum time for the effectiveness of such a provision, as well as to relief due to changed circumstances in the mental and emotional condition of such a person, should also be addressed. And, of course, none of this discourages attention to improved mental health treatment, as the mental and emotional condition of these perpetrators is the common denominator of the occasion for all of these incidents.

Would all incidents be eliminated by one of these solutions? It is not expected that they would. However, it is tendered that the vast majority thereof would be eliminated, while concurrently avoiding the abuse and restriction of rights of those persons who are not an element of the problem.

[UPDATE:  A new study by the Rand Corporation demonstrates the difficulties with defining and categorizing “mass shootings”.  Accordingly, legislatures should be even more-cautious in promulgating new restrictions to prevent incidents that may be exaggerated by some observers — particularly when those restrictions adversely impact, to a severe extent, a class of persons external to the problem.]

WAYNE A. SMITH
Sanilac County, Michigan USA
19 April 2021