By John McClaughry
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 Vice President Joe Biden, the front runner in the Democratic presidential pack of twenty, said on CNN that he favored a ban on “military style rifles.” He acknowledged that 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 Donald Trump recognizes that 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 that 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 that mass shooters often crave publicity, whether they live or die in the act.
Here’s a suggestion that 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.