Real Gun Violence Reduction by Ben Boothe Jr., Attorney


By: Ben B. Boothe Jr, Attorney At Law, Ft. Worth, Texas

Trump said today he was going to get bump stocks banned. Well that is good. But it is a little like telling the widow of a drunk-driving victim that we are going to lower the speed limit. Of course we should have reasonable speed limits, just as obviously as we should ban bump stocks. But that misses the point altogether!

The goal is to reduce gun violence. But with typical slight-of-hand and misdirection, the administration has focused on the type and style of firearms that should be prohibited. That is irrational. People commit crimes and will continue to do so with whatever means possible, even if certain types or styles of firearms become slightly more difficult to acquire. Dangerous people must be the focus. To prevent terrible gun crimes we must identify dangerous people and take guns away from them.

Currently, the last and most porous line of defense is the Brady law, which prohibits licensed firearms dealers to sell firearms to persons who are listed on a certain national database. The Brady law is arbitrary at best, and ridiculous at worst. It should be dramatically changed in order to be part of a real effort to guard against gun violence. The Brady law only effects would-be gun purchases made through a licensed firearms dealer.

            Under the Brady law, these following people (I paraphrased the names) shouldn’t be allowed to purchase firearms:

  1. Felons- convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
  2. Fugitives- who is a fugitive from justice, jumped bail, or escaped custody;
  3. Drug user- who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);
  4. Mentally defective- who has been adjudicated as a mental defective or has been committed to any mental institution;
  5. Illegal alien- who has no current legal status in the United States;
  6. Dishonorably discharged- who has been discharged from the Armed Forces under dishonorable conditions;
  7. Renouncer- who has renounced his or her United States citizenship;
  8. Stalker- who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or
  9. Wife beater-  who has been convicted of a misdemeanor crime of domestic violence.

Banned people seem to be categories that the government does not like, who mostly cannot vote, and who have little or no political influence. However, most of the categories do not generally correspond to the probability that a person would commit gun violence. Real gun violence perpetrators, like the deranged and angry “lone wolves,” have all-too-often been identified to law enforcement as having a violent fixation or ideology. But having a violent fixation or ideology does not get a person on the Brady list. I think it should.

            Here are my issues with the Brady list:

  1. One’s status as a felon does not indicate whether a person has a violent past. A rational limitation should include only violent felonies, and expanded to misdemeanor crimes of violence. If you committed felony check fraud, I don’t think you belong on the Brady list.
  2. One’s status as a fugitive is no indication at all of whether a person might be violent. The overwhelming majority of these are persons who have failed to appear in court and are subject to a bench warrant. A tiny few must be escapees. If this category is to remain, it must be clear that this addresses relatively few at large, dangerous, would-be gun buyers. After all, a fugitive would hardly be inclined to present their actual ID to a gun dealer to run past the government. If anything, we should encourage them to attempt to pass a Brady check so that the government might dispatch law enforcement to their location and arrest them. The local police should sponsor participating gun dealers: “Buy guns here. Fugitives welcome!”
  3. A minority of drug users are identified to the Brady check system as such. A more sensible screening method would be to have gun purchasers subject to a fingernail test to screen for dangerous drug use. Indications of marijuana use would not be a rational way to infer that a person is more likely to misuse a firearm. Presence of cocaine, and/or methamphetamines, and/or heroine in a person’s body might be reasonable indicators that a person is troubled and unhealthy.  I really think a psychologist should make that call. Shrinks are good at telling if you are still hooked.
  4. Mentally defective and persons who have been committed to a mental institution includes too few people, and is a greatly underreported group. The general category is sensible on the Brady prohibited list; however, the category should be expanded to include persons who collect disability for a mental condition, as well as people who have been treated for a psychological condition, within a reasonable period of time, including those who were prescribed psychoactive medications. I mean people on antidepressants and such should be relieved of their guns for as long as a shrink says.
  5. Illegal aliens are simply a category of persons without influence and disfavored by the government. The rabble rousers always make it sound like illegal immigrants are particularly dangerous. But the opposite is true. Fact: illegal immigrants commit crimes at a lower rate per capita than the general population of Americans. Therefore, this category should be eliminated from the prohibited purchaser list—just based on facts—not based on some appeal to people’s prejudices. Fanning the flames of prejudice makes us less safe; whereas the point of gun control is to make us more safe.
  6. Dishonorably discharged persons is also a category that, on its face, simply includes persons who are out-of-favor with the national government. The category should be narrowed to include only persons whose dishonorable discharge is related to a violent or threatening act, or to some psychological issue.  Persons who were kicked out of the military for mere insubordination do not need to be on the Brady list.
  7. Persons who have renounced their U.S. citizenship are, as far as I know, only disfavored by the government, but are in no way more likely to misuse a firearm. This category should be eliminated.
  8. Persons subject to a Temporary Restraining Order, Injunction or Protective Order, or some other court order due to harassing stalking or threatening, is a good category. The real problem with this category is the reporting of the individuals to the Brady list.
  9. Similarly to 8, above, persons convicted of family violence should certainly be included, and, more importantly, reported to the Brady list.

But the Brady law only addresses screening to purchase a firearm from a licensed firearm dealer. To make the intended prohibitions real, three things must happen. First, all firearm transfers, regardless of whether they are: through a relative; through a private collector; sold; traded or gifted, should be subject to a Brady check to certify the potential recipient’s legal right to purchase and possess. In other words, Brady should count for every gun transfer. If a gun changes hands without a Brady check, both parties should be guilty of a federal crime. There. I said it! Every transfer of every firearm should be regulated. Now it starts to get real. Opponents will say this will tear apart the constitution. So this will be hard. But this is finally something real. 

Second, any possession of any firearm should be prohibited by any person prohibited from purchasing a firearm. So if you can’t buy one, you can’t keep the one that you already have. This is the real crux. Was it of any importance to any gun violence victim that the firearm that killed them was, or was not, legally acquired? Of course not! The only issue was that at that fateful moment some crazy asshole actually did have a gun! Third, and this follows naturally, any person in legal possession of a firearm should be subject to periodic recertification of their authorization to possess a firearm. Who cares if you were normal when you bought it. After you became a crazy asshole, we should have taken it away from you! That’s what the law should say.

Finally, persons who subscribe to violent extremist ideologies should be included as a category prohibited from both purchasing and possession firearms. The U.S. government should include all such persons it identifies, and places on the Brady list, through a special civil proceeding, which allows for persons to be included on the Brady list due to their knowing membership and/or participation with a group that advocates violence.

The F.B.I. already seeks to identify such persons. Their role, and the role of the ATF, should simply be expanded to place all such persons on the Brady list and to ensure that any person on the Brady list is not in possession of a firearm. We would need thousands of new agents to proactively screen for people who should be on the Brady list, and to ensure that such persons are not currently in possession of firearms, regardless of whether or not the firearms were legally acquired at the time of acquisition. This would cost billions of dollars; however, such an expansion for real gun control would protect more Americans than any wall.

To stay off of the Brady list, law-abiding citizens should simply not:

  1. commit any crime of violence;
  2. use any hard drugs;
  3. fall victim of a psychological condition;
  4. threaten, stalk or beat anyone; or
  5. associate with or preach violent extremism.

Decisions on the margins should be made by qualified psychologists.

To actually make a difference in gun violence, the government will have to become proactive in screening not just purchases, but also all identified persons from maintaining possession of any firearm. Obviously, the government would prioritize such screening to people whose violent beliefs, or threatening behavior, have been recently reported, and then work down to the other categories to the extent possible.

It seems to me that if your shrink thinks you shouldn’t have a gun, then you should live without a gun for a time. And, whether or not you can afford a shrink, one will be appointed for you. And, if you are on the list of people who should not have a gun, then the feds should be able to come and make sure, at any time. They cannot possibly knock on every door. They can, however, pay special attention to people who have been treated for psychological conditions, have a violent past, or who have recently made threatening remarks or espoused a violent ideology.

The feds should be able to make anybody volunteer to the stay on the new Brady list, for a time, and to verify compliance, or else make them sit down with a shrink and take a few tests. Keeping the system honest and fair would keep it efficient. In other words, these tests should be passable by normal, nonviolent people. This need not be a source of great controversy or litigation. Some of the best shrinks in the world work for the F.B.I. already. I think they already know how to screen for violent personalities. And, frankly, I think my neighbors deserve to know that, if I’m armed, I’m not homicidal. I’d happily trade them that kind of mutual assurance.

This would be real gun control. Not just making it a little more difficult to get the most deadly assault rifle, with a bump stock, through a licensed dealer, with my own real ID. Any child can get around that! Therefore, any crazy can get any gun they want! That’s what we have right now. And to say that is the best we can do is truly BS.

What we need to do is something real—something actual—not some BS slight-slight-of-hand that changes nothing! Preventing some narrow means of acquisition, or styles of guns or accessories is BS.  But prohibiting, and proactively relieving, reasonably targeted individuals from possessing firearms, that can make a difference. That will save lives. It will be hard-- but at least it will be real!


Ben Boothe Jr., practices law in Fort Worth, Texas. He can be reached at: