In the wake of horrendous mass shootings in El Paso and Dayton, leading political figures are once again demanding sweeping measures of gun control.

Former VP Joe Biden, the front runner in the Democratic presidential pack of 20, said on CNN that he favored a ban on “military style rifles.” He acknowledged  there’s no legal way of confiscating such rifles from private owners, but “we can, in fact, make a major effort to take them off the street and out of the possession of people,” suggesting a voluntary buyback program.

Beto O’Rourke called for mandatory buyback and national gun licensing. Sen. Corey Booker proposed to “crack down on firearms manufacturers and gun dealers.” Other candidates called for the usual examples of “bold steps to stop gun violence”, such as universal background checks, lengthy purchase waiting periods and magazine bans.

President Trump recognizes guns don’t pull their own triggers, manufacturers and dealers can’t be held responsible for making legal sales to qualified buyers, and universal background checks do not stop a determined lawbreaker from acquiring a gun in a country whose citizens have a constitutional right to possess three hundred million of them. (The El Paso and Dayton shooters passed their background checks.)

Instead, the president and Republicans are focusing on identifying, dissuading and disarming disturbed and hate-filled individuals before they can commit their murders. That approach has its difficulties. Who exactly are those individuals? How far along do they have to be in their plotting? What evidence is necessary to allow a prospective infringement of a constitutional right?

Last year, the Vermont Supreme Court held that planning for a mass murder, acquiring the means to do it, and casing the target, absent some concrete step to initiate the act, does not add up to a criminal offense. This was the Jack Sawyer case in Fair Haven.

The 2018 Legislature responded by passing – unanimously in both chambers - Act 97. This “extreme risk protection order” or “red flag” law allows law enforcement to dispossess a person of firearms or explosives for up to six months, if a judge finds the person poses an imminent and extreme risk of causing harm to himself or others.

To the Legislature’s credit, it paid careful attention to the due process rights of the person involved. A “red flag” order can issue only after notice to the respondent and a hearing. The petitioner has the burden of proof. The evidence must be clear and convincing. The accused can appeal and whoever makes false statements to harass the weapon owner, is subject to fine and imprisonment. These provisions won at least the tacit acceptance of the firearms defenders who furiously opposed the actual gun control measures contained in the companion bill that became Act 94.

The president and his allies plan to give grants to 33 states to, in effect, bribe them to enact a “red flag” law. Bribing and threatening states is definitely not good federal practice. Trump is resorting to it only because the federal government lacks the constitutional authority to enact a law taking firearms away from persons who have committed no crime.

The big challenge here is to locate and get inside the head of a prospective mass murderer, to influence him to decide against committing the act. That’s a task for psychiatrists, but it’s well-known mass shooters often crave publicity, whether they live or die in the act.

Here’s a suggestion I offered four years ago after the Charleston church murders. Suppose the prospective shooter knew that after he died at the scene of the crime, or after his capture, trial, conviction and death by hanging, his lifeless body would be subjected to the Berkeley Rule.

This is attributed to Sir William Berkeley, governor of Jamestown Colony during Bacon’s Rebellion of 1676. According to historian James D. Rice, one rebel “was suspended in chains on the gallows, left to die of thirst, starvation and exposure, then to decay in public view, his rotting corpse and bleaching bones a monument to the fruits of treason.”

In this age, the prohibition against cruel and unusual punishment rightly prevents mistreating a live person, no matter how wicked. Thus, only the corpse of the shooter would be suspended at some crossroads, for a year of decay in an iron cage. After that, the rotting remains would be thrown down an old mine shaft, where a catwalk across the opening would afford citizens the opportunity to relieve themselves upon his memory.

That will strike some people as disgustingly medieval. But as I conceded then, some notoriety-seeking mass shooters might not care what became of their corpses, but at least some would think twice about having their remains suffer the Berkeley Rule.

John McClaughry is vice president of the Ethan Allen Institute.

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(1) comment

John G

The usual bag of NRA type comments always arrive after the immediate horror is over and always from the same people. First order of business is the second amendment argument.

Since none of the weapons that are most destructive existed at the time the second amendment was created you have to ask if the founding fathers intended the interpretation posited by the NRA and the opinion made above. The reality is that when Gatling guns came along the intent of the founding fathers became more clear.

Then there is the obvious issue of where does the protected weapon fit into the scheme of things. Assault weapons are deemed protected. The first time I saw 100 round and 30 round magazines at a gun show I was stunned. Bump stocks that convert rifles into automatic weapons fall into the same category. Does anyone truly believe that a home is made safer because the protective weapon can wipe out twenty people breaking in at the same time? I have news for them, if twenty people are attacking your home they are likely to be part of a mass invasion so your problem isn’t going to be protecting your home.

Because the NRA and those that follow the mantra claim there are virtually no limits on weaponry why not permit other weapons like machine guns, flame throwers, and howitzers. Is that line not yet crossed because it is an absurd dichotomy or simply because the NRA doesn’t represent the manufacturers of those weapons?

What we do know is that the overwhelming majority of the population, including gun owners, want reasonable laws that will address the fact that the United States has the highest gun related murder rate and suicide rate of virtually all developed countries in the world. I don’t think that was what the founding fathers had in mind when they were talking about having an organized militia.

We now know that blaming murders and suicides on mental illness is bogus, even though the NRA and our president keeping stating that lie over and over. The mental illness factor is real, but it only accounts for about 10% of the deaths by guns.

Most of the people I know have owned guns as have I. Some have a real collection, most of them hunt. I don’t know anyone who thinks bump stocks or 100 round magazines has anything to do with hunting. If someone thinks it does I would recommend finding out where this person hunts and avoid it like the plague. Sort of reminds of the period when there were famous painters who created masterpieces by standing on a ladder and throwing buckets of paint on canvas nailed to the floor.

There was a time when I had a particularly obnoxious neighbor, the whole neighborhood agreed. I wondered if the NRA would back me up if I protected my home by mounting a cannon in my front yard. Of course the plan was ruined because all cannons are rendered inoperable when decommissioned. Where was the NRA when I wanted to have my second amendment rights protected.

As a final thought: doesn’t it embarrass those folks, who come up with the NRA excuse list, when the rest of the world has been able to accomplish what we are now being told is impossible. Oh, and by the way, that old saw about “guns don’t kill people, people pulling triggers kill people” is so utterly ridiculous. How about “cars don’t kill people, people driving cars kill people” Oh my goodness, that’s the same thinking but everybody goes out of their way to make cars safer to drive. And to drive you actually need to pass a drivers test and you have to be able to see and you have to learn how to drive and you can have your license taken away if you drive drunk, especially if you kill somebody.

J. Gorman

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