Federal Laws Were Already in Place to Prevent Texas Shooter from Buying Firearms. Who Dropped the Ball?

Posted on Nov 15, 2017 9:05am PST

With shootings at the forefront of our never-ending news cycle, there are any number of voices crying out for more laws to govern gun ownership. All of these laws are well-intended, and designed to protect people from shootings. Sadly, these laws rarely work the way in which they are intended, and do not wind up protecting the public the way they were intended to do so. This article will discuss the most recent shooting, and several nuances in gun control laws.

Our most recent tragic shooting was that in Sutherland Springs, Texas, when Devin Patrick Kelley shot and killed 26 people after he shot at a church using a rifle. There are already laws in effect that would have barred Kelley from obtaining a firearm and firearm ammunition, but those laws did nothing to prevent the tragic slaying of those 26 people.

Kelley was subject to a federal firearms prohibition, and had been for years. A firearms prohibition is a creature of statute that prohibits certain individuals from possessing a firearm or firearm ammunition. Federal law imposing a firearms prohibition on Kelley were already in force, and did little to save the people of the First Baptist Church.

Federal law already prohibits someone from possessing a gun when he or she has been convicted of a felony or a misdemeanor crime of domestic violence. Crimes of "domestic violence" can be anything involving domestic violence, and the law does not distinguish between titles of offenses. In other words, a person could have a Domestic Battery offense in the State of Illinois amended to being a Disorderly Conduct, a crime that does not intrinsically involve domestic violence. However, under federal law, if a family or household member were involved and some force, however slight, were used, then it would be considered a crime of "domestic violence" for purposes of imposing a federal firearms prohibition.

Years before the tragic shooting in Texas, Kelley had been convicted of a crime involving domestic violence against his wife at the time as well as his child. As a result of this incident, he would be court martialed, and, despite his apparent lack of prior history, was incarcerated for 12 whole months, the maximum a person could be incarcerated for a misdemeanor offense. He was then released in 2014, and was given a bad conduct discharge from the United States Air Force. (The difference between a bad conduct discharge and a dishonorable discharge is that bad conduct discharge can follow misdemeanor offenses, while dishonorable discharges can follow felony offenses.)

At the time of his release in 2014, he was subject to a federal firearms prohibition. Nothing about federal firearms prohibitions has changed since then, at least as far as Kelley is concerned. This prohibition should have served to prevent him from acquiring any firearms. However, in the years that followed, he acquired 4 firearms, and can even be seen posing in Facebook posts with a firearm.

Those who do not understand firearms laws and would blame the individual states in which Kelley obtained his firearms for the breakdown would be wrong. It was the United States Air Force that failed to report Kelley's conviction.

Another federal law would have been in place to prevent Kelley from obtaining firearms, and it requires that a background check be performed. A person purchasing a firearm is still mandated to complete this check prior to purchasing. However, there too firearms laws did not work. Kelley successfully passed a check performed by the National Instant Criminal Background Check Service (or "NICS"), which is run by the Federal Bureau of Investigation (or "FBI") without issue whatsoever.

Federal firearms laws did not stop what happened in Texas. Imposing additional laws further restricting firearms possession would not have stopped what happened in Texas either. A gun registry listing people who have guns would not have stopped what happened in Texas, and neither would have a longer waiting period before someone could obtain a gun. The voices crying out for a change to the law or additional gun control laws in general are all well-intended. However, these voices fail to realize that just because something is legislated does not mean that it will accomplish more than making us feel good, and they fail to realize that more laws restricting everyone's rights does not mean that the system will operate the way they intended.

Copyright © 2017 by Brendan Bukalski

The information provided in this column is general in nature, and should not be relied upon as legal advice or interpreted as creating an attorney-client relationship. As a general rule, all specific legal problems should be handled by an individual's attorney. All rights reserved. Any copying, duplication, or commercial use of the information contained in this column is strictly prohibited without prior permission.

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