Was the Charleston shooter able to get hold of his gun because there is a “loophole” in federal law? Among other outlets, the Boston Globe has suggested that he was:
WASHINGTON – The man accused of killing nine people in an historically black South Carolina church last month should not have been able to buy a gun, the FBI said Friday in what was the latest acknowledgment of flaws in the national background-check system.
A loophole in the check system cleared the man, Dylann Roof, to buy the .45-caliber handgun despite his having previously admitted to drug possession, the bureau said. Those conducting the background check did not have access to that police report.
“We are all sick this happened,” said the FBI director, James B. Comey. “We wish we could turn back time.”
The suggestion that this mistake has exposed a ”loophole” in the law is completely off-base. The reason that killer wasn’t flagged is that the requisite information wasn’t in the database. But that’s not a “loophole”; it’s a data-entry error. If there’s a wider problem here it’s that the authorities are incompetent, not that the law doesn’t give them enough latitude.
Naturally, this hasn’t stopped the idle call for new rules. Per the New York Times’s Michael Schmidt:
Despite having previously admitted to drug possession, the man, Dylann Roof, 21, was allowed to buy the .45-caliber handgun because of mistakes by F.B.I. agents, a failure by local prosecutors to respond to a bureau request for more information about his case, and a weakness in federal gun laws.
I can only imagine that, by “a weakness in federal gun laws,” Schmidt s taking aim at the individual protections that were woven into the Brady Bill. After “the three-day waiting period expired,” he confirms, the killer “returned to the store and purchased the gun.”
“Weakness” is a subjective term, and Schmidt is within his rights to complain about the status quo. But it should be acknowledged for the record that the three-day exception was not a drafting error or an oversight, but a provision that was deliberately included within the law as a means of protecting the the innocent. Just as the police are forbidden from detaining suspects without charge — and just as one cannot be imprisoned unless prosecutors can prove one’s guilt — the government is not permitted to remove your Second Amendment rights without good reason. If they can’t find that reason within three days of your attempting to purchase a firearm, they have to stop trying.
In light of what subsequently happened, that the shooter was able to obtain a gun seems problematic. As a matter of general principle, however, the legal protections from which he benefited are sound. We would not seek to do away with due process because the guilty are occasionally left free to offend again. We should not diminish the Second Amendment because the state screwed up either.
UPDATE: At RealClearPolicy, Robert VerBruggen notes that “after three days, law enforcement can still make efforts to retrieve a gun that was sold improperly.” By writing that the authorities “have to stop trying” after three days, I didn’t mean to suggest that this wasn’t the case; just that the government cannot delay your rights while it’s assembling its brief.