Unlike most mass shooters, the man who killed seven people in Midland and Odessa, Texas, on Saturday seems to have been legally barred from owning firearms. The Associated Press, citing an unnamed "law enforcement official," reports that he tried to buy a gun from a federally licensed dealer in 2014 but was blocked because of a "mental health issue." He purchased the AR-15-style rifle that he used in the drive-by shootings in a private transaction that was not covered by the federal background check law.
The Midland/Odessa shootings, in other words, looks like a good example of how expanding the background-check requirement might stymie would-be mass murderers. But is it really? That partly depends on how much compliance can be expected with a law that requires background checks for all gun sales.
Last year, researchers who looked at what happened after Colorado, Delaware, and Washington imposed that requirement reported that "background check rates increased in Delaware, by 22%–34% depending on the type of firearm," but "no overall changes were observed in Washington and Colorado." It is hard to see how the federal government can do any better, since it does not know who owns which guns and cannot possibly monitor unrecorded transfers.
The lack of compliance does not necessarily reflect a sinister desire to assist mass murderers, or even a nonchalant attitude toward violent crimes that might be committed by gun buyers. By and large, I suspect, it reflects a widespread sentiment among gun owners that they should be able to dispose of their own property without going to the trouble and expense of arranging transactions through government-licensed dealers. But whatever the motivation, the general unwillingness to jump through those hoops represents a serious and probably insurmountable problem for people who imagine that "universal background checks" will prevent mass shootings even in the small minority of cases where the perpetrator has a disqualifying criminal or psychiatric record.
To the extent that expanding the background-check requirement actually results in more background checks, as appears to have happened in Delaware, that is by no means an unalloyed good. Even the American Civil Liberties Union, which maintains that the Second Amendment does not protect an individual right to arms, recognizes that "the categories of people that federal law currently prohibits from possessing or purchasing a gun are overbroad, not reasonably related to the state's interest in public safety, and raise significant equal protection and due process concerns."
While we don't know specifically what "mental health issue" legally barred the Texas shooter from owning guns, it need not have involved any perceived threat to other people. Under federal law, anyone who has ever undergone involuntary psychiatric treatment, whatever the reason, is forever stripped of his Second Amendment rights. That policy affects a lot of people who have never shown any violent tendencies.
In 2014, for instance, the U.S. Court of Appeals for the 6th Circuit decided a case involving Clifford Tyler, a 73-year-old resident of Hillsdale County, Michigan, who tried to buy a gun in 2011 but was turned away after failing the background check. Tyler learned that he had permanently lost his Second Amendment rights because he had been forced to undergo psychiatric treatment in 1985 after an emotionally devastating divorce. His daughters were concerned that he might be suicidal, and a court ruled that he posed a threat to himself.
Since then, according to Tyler, he had not experienced any more bouts of depression. A psychologist who evaluated Tyler in 2012 found no evidence of mental illness and concluded that the 1985 incident "appeared to be a brief reactive depressive episode in response to his wife divorcing him." Yet under 18 USC 922(g)(4), that one incident barred him from owning a gun, even a quarter-century after his psychological crisis.
In District of Columbia v. Heller, the landmark 2008 case in which the Supreme Court recognized that the Second Amendment protects an individual right to arms, it said "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." But the provision that stopped Tyler from buying a gun goes further than that, the 6th Circuit noted in its ruling, since "the class of individuals constituting those ever previously mentally institutionalized is not identical to the class of individuals presently mentally ill." Because the proscribed category is overbroad, the appeals court said, it is not "narrowly tailored" to serve a "compelling interest," as required under strict scrutiny. The court concluded that "Tyler's complaint validly states a claim for a violation of the Second Amendment."
The Supreme Court in Heller also mentioned the federal ban on gun possession by people with felony records as an example of longstanding, presumptively constitutional restrictions. Yet that proscribed category is also clearly overbroad. If someone was convicted of growing marijuana, for example, what does that tell us about his violent tendencies at the time, let alone decades later? Likewise with the bans on gun ownership by unauthorized U.S. residents and illegal drug users, including cannabis consumers in states where marijuana is legal. Unlike someone who was convicted of a violent crime, these people have not done anything that suggests they might use a gun to hurt others.
Fans of background checks frequently cite blocked sales as evidence that the policy is working. Yet if those disqualified buyers mainly fall into nonviolent categories, the fact that they were unable to exercise their Second Amendment rights by purchasing firearms is a bug, not a feature. The threat generally posed by people who are not legally allowed to own guns can be divined by the way they are usually viewed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
If the FBI cannot complete a background check on a gun buyer within three days, the dealer is allowed to complete the sale, so the ATF, a law enforcement agency that is part of the Justice Department, is sometimes tasked with seizing guns after the fact. A 2004 report from the Justice Department's inspector general noted that there were often delays in retrieving weapons from prohibited buyers, partly because "ATF special agents did not consider most of the prohibited persons who had obtained guns to be dangerous and therefore did not consider it a priority to retrieve the firearm promptly." If these people were not actually dangerous, one might reasonably wonder, why were they barred from owning guns in the first place?
In short, there are three major problems with background checks as a way of preventing mass shootings: The vast majority of mass shooters do not have disqualifying psychiatric or criminal records; those that do can easily evade background checks, even when they are notionally required, through private sales; and the people whose purchases are actually blocked are for the most part harmless. As a general solution to gun violence, of which mass shootings represent only a tiny share, background checks are even less effective, since ordinary criminals are highly motivated to obtain the tools of their trade and can do so through straw buyers or by taking advantage of the black market.
That does not mean background checks never prevent homicides. They might work against impulsive people with violent intent and disqualifying records who simply give up after unsuccessfully trying to buy a gun from a licensed dealer. But such would-be gun buyers are probably pretty rare, and the current system casts a very wide net, sacrificing the constitutional rights of many innocent people, in order to catch them.