"We can't tolerate this anymore," President Obama declared after the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut. "These tragedies must end." At the same time, he conceded that "no single law" and "no set of laws" can "prevent every senseless act of violence." Yesterday, responding to the mass shooting that took 14 lives in San Bernardino, Obama made even more allowance for reality, telling CBS News, "There are some steps we could take, not to eliminate every one of these mass shootings but to improve the odds [so] that they don't happen as frequently." Yet he still faces the same challenge: What steps, and how exactly can they be expected to "improve the odds"?
Obama referred to "common-sense gun safety laws," including "stronger background checks." We don't yet know whether the perpetrators of yesterday's attacks—identified by police as Syed Rizwan Farook, a 28-year-old environmental inspector who worked for the county health department, which was holding a holiday party in the building where the attack occurred, and his 27-year-old wife, Tashfeen Malik—had criminal or psychiatric records that would have legally disqualified them from buying guns. But given the general pattern in mass shootings, the odds are that they didn't. Furthermore, as Brian Doherty noted last night, California already has the "universal background checks" that Obama would like to require throughout the country: All gun transfers, except those between close relatives, must be carried out with the assistance of a licensed firearms dealer, who is required to make sure the buyer does not meet any of the state's disqualifying criteria, which are more numerous than those set forth in federal law. California also requires a buyer to wait 10 days before taking possession of a gun, restricts the size of magazines, and bans so-called assault weapons.
Like Obama, New York Times columnist Nicholas Kristof thinks "universal background checks" are "an imperative first step" in "curbing access to guns among people who present the greatest risk." That makes it sound as if there is a well-established connection between violent tendencies and the factors that bar gun ownership under federal law. But except for the criteria related to violent crimes (including misdemeanors as well as felonies in the case of domestic violence), that is simply not true. The fact that people consume cannabis, enter or stay in the United States illegally, commit a nonviolent felony, or have undergone forcible psychiatric treatment for suicidal tendencies does not make them especially likely to commit mass murder. (In fact, undocumented immigrants seem less likely to commit crimes than natives.) Yet all these groups are legally barred from owning guns.
Universal background checks would only compound this injustice by improving enforcement of rules that arbitrarily deprive people of the right to armed self-defense. Yet instead of reconsidering the absurdly broad excuses for taking away people's Second Amendment rights, Obama and Kristof want to expand them. "We have a no-fly list where people can't get on planes," Obama told CBS News, "but those same people who we don't allow to fly could go into a store right now in the United States and buy a firearm, and there's nothing that we can do to stop them. That's a law that needs to be changed." Kristof concurs:
Astonishingly, it's perfectly legal even for people on the terrorism watch list to buy guns in the United States. More than 2,000 terrorism suspects did indeed purchase guns in the United States between 2004 and 2014, according to the Government Accountability Office and The Washington Post's Wonkblog. Democrats have repeatedly proposed closing that loophole, but the National Rifle Association and its Republican allies have blocked those efforts, so it's still legal.
One man's loophole is another man's due process. The American Civil Liberties Union (ACLU) estimates that the FBI's so-called Terrorist Watchlist includes more than 1 million names. The ACLU describes the list as a "virtually standardless" dragnet that "ensnares innocent people and encourages racial and religious profiling." Although the list is supposedly limited to people "reasonably suspected of being involved in terrorist activity," something like two-fifths have "no recognized terrorist group affiliation."
Under current law, certain convictions, including many that have nothing to do with violence, result in the permanent loss of Second Amendment rights. Obama and Kristof think that's a wimpy approach. In their view, mere suspicion, no matter the grounds for it, should be enough to disarm someone. Why insist on a conviction, or even formal charges, when public safety is at stake?
In addition to depriving innocent people of their constitutional rights, the "stronger background checks" Obama wants would impose new burdens on millions of gun owners trying to sell their own property. That's the downside. As for the upside, we cannot say for sure that requiring background checks for all gun transfers would never prevent a mass shooting. But unless it turns out that Farook and Malik were legally disqualified from buying guns but evaded background checks by obtaining them from a private seller outside of California, their crimes do not make the case for the policy favored by Obama and Kristof any stronger. "It's not clear what policy, if any, could have prevented the killings in San Bernardino," Kristof concedes. "Not every shooting is preventable. But we're not even trying."
When "trying" means imposing definite costs in exchange for uncertain benefits, pointing that out does not make one complicit in mass murder, as the New York Times editorial board implies. "Are these atrocities truly beyond the power of government and its politicians to stop?" it asks. "That tragically has been the case as political leaders offer little more than platitudes after each shootout, while the nation is left to numbly anticipate the next killing spree." In truth, it is the Times that keeps offering platitudes, as opposed to actual policy proposals backed by anything resembling a logical argument. The Times wants "firm action" in the form of "gun safety laws." That's as specific as it gets.
This ritual is quite familiar by now. Gun controllers insist that a horrifying, headline-grabbing crime bolsters the case for the policies they have always favored, but they can't explain how. Might that failure have something to do with their lack of success?
Update: According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the two rifles and two handguns used in the San Bernardino attack were purchased legally in the United States four years ago. Assuming they were sold in California, that means the buyer(s) passed background checks.