Everything about him seemed to scream out trouble, but try writing the policy that establishes he has to lose a constitutional right

Just about everyone agrees Nikolas Cruz shouldn't have been able to get a gun, but here's why it's not so simple

By —— Bio and Archives--February 21, 2018

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Just about everyone agrees Nikolas Cruz shouldn't have been able to get a gun, but here's why it's not so simple
It seems insane, in retrospect, that Nikolas Cruz was allowed to buy any sort of gun, let alone an AR-15. With everything we know about the threats he made, and about the many police visits to his home, Cruz would appear to be the walking epitome of the unstable, dangerous character who would and should be told, “Sorry, bro.”

And yet, up until the Parkland Hills shooting, he had committed no crime. He had sure as hell given signals he would, but he hadn’t actually done anything. You say common sense suggests he’d provided more than enough reason to suspect he would do something awful if he got his hands on a gun, and no reasonable person would disagree.

But here’s the problem: You can’t draft a policy that decides when you’ll take a constitutional right away from someone based on “common sense.” Because while there are some situations in which it seems painfully obvious - and this is one of them - most others are not so simple and are going to require a judgment call on the part of someone whose “common sense” might not work in the same way as yours and mine.

Radio host John Carlson of Seattle’s KVI looks at the problem:

Nikolas Cruz, the confessed killer of 17 in Florida last week, had been investigated by Florida’s child-protective agency in late 2016 after cutting himself in an online video. He stated he was going out to buy a gun (which he did). The investigating agency “found him stable enough not to be hospitalized.”

Two months later, Mr. Cruz, a chronic troublemaker who had been repeatedly suspended from school, was referred for a “threat assessment.” Records show he attended half a dozen schools, including one for students with emotional problems. The FBI received a tip from someone who knew Mr. Cruz, cited concerns about his behavior and guns, and expressed concerns he could attack a school. The FBI has confirmed that it did not follow protocol in handling the reports. Nor did it follow up on a tip from a YouTube blogger after Mr. Cruz left a comment declaring: “Im [sic] going to be a professional school shooter.” The local sheriff said his office had received more than 20 calls about Mr. Cruz. Police had been called out to his house more than three dozen times.

And he was able to buy a gun.

Pre-emptively denying someone a constitutional right requires navigating a social, legal and political minefield. It is a tough job that needs to be done. The president should announce a task force to make clear recommendations to Congress on where that line should be drawn. Attempts to deny some Social Security Disability recipients gun rights recently ran afoul not only of Congress and the president, but also the American Civil Liberties Union and a host of disability-rights groups as well. But conservatives and liberals can agree that someone like Nikolas Cruz shouldn’t be allowed to legally buy a gun.

This is the problem in a nutshell. If you’re going to take away some people’s constitutional rights (or even just one constitutional right), you have to clearly draw the line that defines how, why and under what circumstances you’re going to do this. It has to be a set of standards that can be clearly understood and consistently applied. It has to pass muster with federal courts.

And it will be challenged. And it should be challenged. Because this is no small matter, and if politicians and law enforcement are going to decide that certain people who have not committed any crimes should nonetheless be denied the right to keep and bear arms, that’s every bit as serious as accusing someone of a crime. Someone whose job it is to challenge the taking of that person’s rights should absolutely do so in a country that takes very seriously the rights of the accused.

Liberals usually value this highly. When a man is accused of gunning someone down on the street, find me the liberal who would favor denying that person the right to counsel in the subsequent criminal proceedings. I doubt you would find many, nor should you. But they’re willing to pre-emptively deny people the exercise of a constitutional right, without anyone challenging the legality of such a move?

That will not happen. This is why the ACLU and disability-rights groups have challenged past attempts. It is why other groups would challenge the attempt to decide pre-emptively who cannot own a gun. For all the demonizing of the NRA that is in vogue these days, the NRA advocates for the protection of an individual right that’s in the Constitution of the United States. That is their job, every bit as much as it’s the job of a defense attorney to cast doubt on evidence against a client that seems to be clearly guilty.

Continued below...

Could a presidential task force come up with clear, fair guidelines that could result in a bill passed by Congress, signed by the president and accepted by the Supreme Court? What would it consist of? The number of times the police had been called to a person’s home, even if the person was never charged with a crime? Would it establish a legal standard that says you can be denied your Second Amendment rights if you posted belligerent statements on social media? How clearly belligerent would the statements have to be? “I want to be a professional school shooter” seems pretty clear, but I suppose even that could be challenged as a joke or a momentary fit of pique. But what about the marijuana freaks who have told me in the comment section, “I hope you die in a fire.” Does that qualify?

And if the police or the FBI decide someone is too dangerous to be allowed to own a gun, does that also mean that person should be forcibly institutionalized? What if the police think he’s a threat but no psychiatrist can come up with a diagnosis of mental illness? What then?

Let’s go back to the start: Just about everyone agrees that Nikolas Cruz shouldn’t have been allowed to buy a gun, and that the warning signs were plain as day. Because of that, it’s considered a travesty and a scandal that he got one and was able to use it. But it’s not a scandal because there are no clear legal standards that establish when someone like him can and should be denied his Second Amendment rights, and developing such standards is almost impossibly difficult. Even if Congress manages to come up with something and the Supreme Court upholds it as constitutional, people will still slip through because their behavior was not as obvious, or hadn’t been noticed by anyone who drew attention to it.

And then, when that person shoots up a school, people will again demand new laws because they don’t understand why “do something” isn’t the mere matter of political courage you want it to be.


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Dan Calabrese -- Bio and Archives | Comments

Dan Calabrese’s column is distributed by HermanCain.com, which can be found at HermanCain

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