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Shooter’s Purchase of Handguns Raises Questions About Gun Control Laws

April 20, 2007 at 12:00 AM EST
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MARGARET WARNER: The Virginia Tech shooter, Seung-Hui Cho, used two firearms to kill 32 people and himself in the Monday massacre. The gun purchases were legal.

On March 13th, he bought a Glock 19 9-millimeter semiautomatic pistol at a Roanoke gun shop about 30 miles from campus. The store’s owner is John Markell.

JOHN MARKELL, Owner, Roanoke Firearms: There were no red flags kicked up in any way. He got a clean bill of health from the state police. There was just no reason for me not to have sold him the gun.

MARGARET WARNER: Cho’s other gun was a .22 caliber Walther semiautomatic pistol. He bought that online February 2nd and picked it up at a pawnshop just minutes from campus. In both cases, he presented identification and passed a computerized background check by state police. There was no waiting period.

Virginia law makes it illegal to own a firearm if someone has been: acquitted by reason of insanity and committed to a mental institution; subject to a protective order issued pursuant to stalking; or adjudicated legally incompetent or medically incapacitated or involuntarily committed.

In 2005, two female Virginia Tech students reported being stalked by Cho, but they chose not to press charges. Yet after talking to him, campus police recommended he be detained for mental evaluation.

Cho was evaluated at a local psychiatric hospital. A doctor there found him depressed, but said Cho denied being suicidal. The next day, a state magistrate found Cho “presents an imminent danger to himself as a result of mental illness,” but did not find he was a threat to others.

The magistrate recommended outpatient treatment as opposed to involuntary commitment. It’s unclear what follow-up treatment Cho had.

The director of Virginia Tech’s counseling center said the matter was not reported to any other authorities.

CHRISTOPHER FLYNN, Director, Virginia Tech Counseling Center: This is not a law enforcement issue. He had broken no law that we know of. The mental health professionals were there to assess his safety, not particularly the safety of others, and so there is no necessity, perhaps, that they would notify everybody, whether it be the police or the university.

MARGARET WARNER: A newly appointed state commission will look into all this as part of its investigation.

The background check system and Cho

Dave Kopel
The Independence Institute
There's a case from the federal district court of Michigan, U.S. v. Vertz, that finds exactly that, that, in a very similar situation, the Federal Gun Control Act did apply and prohibited the person from having a gun.

MARGARET WARNER: And for more now, we get two perspectives. Matt Bennett is the co-founder of Americans for Gun Safety, a project of a progressive think-tank in Washington called Third Way.

And Dave Kopel is research director of the Independence Institute, a conservative think-tank in Colorado. He co-authored the law textbook "Gun Control and Gun Rights."

Welcome, gentlemen.

So, Matt Bennett, how would a young man with Cho's history of mental health problems be able to get a gun?

MATT BENNETT, Co-founder, Americans for Gun Safety: Well, as the tape piece suggested Cho followed the law. He went to a gun store in one instance. He presented the identification required of him. They ran his name through the background check system. He came up clean, and he was given the gun.

And then the other case, when he bought the gun over the Internet, he did what he was supposed to do. The problem is that the federal law and the state law is antiquated and has large holes in it, so somebody like Cho was able to slip through the cracks.

MARGARET WARNER: But explain how the background check system works. The gun owner or the gun shop owner said the state police...

MATT BENNETT: That's right. In some states, like Virginia, the state police do the check. In other states, the FBI does the check. But in all cases, they use the same database, which is the National Instant Background Check database.

That database has a number of different factors that it checks for, to see if someone is a convicted felon or if they have committed a crime of domestic violence or under a restraining order. There's about nine or 10 different factors, and one of them is this mental health provision, but it's very narrow and it's somewhat antiquated.

MARGARET WARNER: What would you add to that, Dave Kopel, about how the process works and what does put up a red flag that says, "Don't sell this person a gun"?

DAVE KOPEL, The Independence Institute: Well, let's take a look at the statute. I think, actually, the federal law was clear enough in this case, but the problem was that, as in lots of cases, the law didn't get properly enforced.

The Federal Gun Control Act, ever since 1968, has prohibited the possession by a person or the sale to a person who is what they call mentally defective. The Bureau of Alcohol, Tobacco and Firearms wrote a regulation, and that regulation says that that category includes a person who has been found by some kind of official body to be a danger to himself or others.

Cho was found to be a danger to himself or others when he was brought before a magistrate. The magistrate had the option to commit him but found that less restrictive treatment, the outpatient treatment, would be sufficient. Yet even though he wasn't committed, that's sufficient under federal law to bar him for the rest of his life from ever possessing a firearm.

And, in fact, there's a case from the federal district court of Michigan, U.S. v. Vertz, that finds exactly that, that, in a very similar situation, the Federal Gun Control Act did apply and prohibited the person from having a gun.

Now, clearly it would be very helpful if these regulations were better known and disseminated more broadly to the mental health community and to the judges and magistrates who may make these commitments or determinations about a person's danger so that this information does get reported.

Reporting mental health data

Matt Bennett
Americans for Gun Safety
In part, it's a resource problem. It's very expensive to maintain this database and make sure that these data all get inputted.

MARGARET WARNER: So, Matt Bennett, the problem then is, what's in the database? Who determines in the mental health area what is in the database?

MATT BENNETT: Well, that's exactly right. The database is made up of all these different factors. And so generally it's states and state courts, like the one that was involved here and, in some cases, private mental hospitals that have to report data they can put into this database through a variety of different mechanisms.

As Dave points out, there's big holes in the database. In part, it's a resource problem. It's very expensive to maintain this database and make sure that these data all get inputted. And they have to go back in time and make sure that the data that's in files in courthouses and dusty basements somewhere are all inputted.

So it's a difficult process made more difficult in the case of mental health because it's a very vague statute. Dave points to a federal district court case in Michigan, but a state court judge in Virginia may not know anything about that. And it's not really before him when he's thinking about this kind of commitment procedure.

MARGARET WARNER: But then you're suggesting that, in courts across the state -- and do address whether Virginia is different than other states or where it falls in this sort of spectrum -- that it's really not widely known or it's not a requirement that a finding such as the one that this judge -- he was a magistrate -- found, which is that he was at least a danger to himself, does or doesn't end up in the database?

MATT BENNETT: My guess is that most judges know generally that there's a prohibition against certain types of people found mentally incapacitated against owning firearms. But they may not know the details of the law. And Cho fell into a very, very narrow and particular part of this law that this judge -- I think Dave is right -- that this judge may have misinterpreted or the people responsible for inputting data misinterpreted.

But it's very difficult to get that knowledge out there, and it's a pretty technical legal problem.

MARGARET WARNER: Dave Kopel, in all the commentary that's gone on about this, a lot of folks of people have pointed to, well, there's a difference between -- if you voluntarily commit yourself, it isn't reported. But if it's involuntary, it clearly reported. Is that a distinction that's operative across the states or is that not?

DAVE KOPEL: The states have the option of layering on to -- the federal law makes the minimum standards for who can't have a gun. And states have the option of going further, and some do, with voluntary commitments. But that's not really the issue here, because Cho was never committed involuntarily or voluntarily.

But what we had a situation was with, where he was found to be a danger to himself. And that goes back ultimately to the federal statute, which says mentally detective or mentally incapacitated. And by the Bureau of Alcohol, Tobacco and Firearms regulations, that's sufficient to put him on the prohibited persons list forever.

So, really, Matt's right that it's certainly digging through old records from the courthouses can be an expensive thing. But on the other hand, reporting cases on a forward-going basis isn't that expensive. And it certainly wouldn't be that expensive for the Bureau of Alcohol, Tobacco and Firearms or the Department of Justice simply to mail to every magistrate in the country a few pages of explanation about what these laws are and how they would be applied in particular situations.

Reviving gun control legislation

Dave Kopel
The Independence Institute
I think what should be done is we start by enforcing the laws that we have.

MARGARET WARNER: So there have been a couple of stories today, Matt Bennett, the Democrats on the Hill say they're going to be working with the National Rifle Association to revive some legislation in this area. What do you think needs to be done to tighten these laws? And how far should they go?

MATT BENNETT: Well, I think the legislation that's been reported on today is very good legislation. We actually, at Americans for Gun Safety, worked on it with the principal sponsors who, back in 2003, Carolyn McCarthy, who was a gun control person, and John Dingell, an NRA supporter, really helped improve background checks.

MARGARET WARNER: What would it do?

MATT BENNETT: It would provide money to the states and guidance to the states, as Dave points out, to make the background check system more complete, so that people like Cho don't fall through the cracks.

MARGARET WARNER: So you don't think that the definition of what constitutes someone who can't have a gun needs to be changed, just enforce it better?

MATT BENNETT: It would be enormously difficult politically to open up the 1968 Gun Control Act in the area of mental health. It would -- all sorts of...

MARGARET WARNER: Why?

MATT BENNETT: Well, because the gun control community, the gun rights community, and the mental health community all have different ideas about whether the definition needs to be expanded, contracted, or kept the same. And it would open a Pandora's box of difficulty.

MARGARET WARNER: Dave Kopel, what is your sense of what's doable, what should be done in this area?

DAVE KOPEL: Well, I think what should be done is we start by enforcing the laws that we have. And Matt's right that we can do better on that, in terms of informing magistrates and judges and also improving the records collections.

We want to make sure that we get the proper records in there. There's some partisan bills that have been proposed to increase records collection that would simply gather in arrests without the dispositions. And, of course, being arrested doesn't make you ineligible to possess a gun. It's the conviction.

One other thing we need to improve, I think -- and it's especially relevant in the mental health area -- is federal law says that, if you're an ineligible person, you can petition the attorney general to be allowed to possess a gun.

For example, maybe you got a dishonorable discharge from the military when you were 19 years old -- and you deserved it -- you can't have a gun for the rest of your life by federal law. But now you're, say, 55 years old, and you've lived a good, clean life in the intervening 36 years. The attorney general would have the discretion to allow that person to be permitted to possess a gun.

That's in the federal statutes, but unfortunately the funding for that program has been eliminated since 1992. And, likewise, in mental health, you might have somebody who should properly be barred from having a gun at a certain time, but maybe 20 or 30 or 50 years later, it would be OK to have their rights restored. We should have the funding put back in for that.

MARGARET WARNER: All right, Dave Kopel and Matt Bennett, we have to end it there. Thank you.

MATT BENNETT: Thank you.