Mass Shootings and the Law

David and Sarah talk about the terrible school shooting in Texas and explore various gun ...

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David and Sarah talk about the terrible school shooting in Texas and explore various gun control proposals, including red flag laws. They also talk about a new Second Amendment case and its potential relationship to the First Amendment. Next up is the Florida social media law regulation. They end with a brief look at a Pennsylvania election law case that could decide the 2022 Republican Senate primary.

Please note this episode was taped the evening of the school shooting in Texas. Technical difficulties delayed its release.

Show Notes:

–French Press: “Pass and Enforce Red Flag Laws. Now.”

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  1. Avatar photo
    WKDawson

    I appreciate Sarah's opinion on the 2nd amendment, though I am very amenable to anyone who is willing to say that this matter needs to be fixed and what we have is ridiculous. I think red flag laws (properly enforced) would help, but a note of praise to Sarah this time.

    I didn't really hear you really get to the first part of the 2nd amendment that talks about the issue of militias, though maybe your discussion about "original intent" was meant to point that out indirectly. I do think the first part of the second amendment suggests that it was intended to allow every individual the right to own arms for the purpose of protecting the nation. Because it is tied to forming militias, it also seems like there should be the requirement of __training__ and, indirectly, licensing (or at least "permission"). It was written in a time when the threat of Indian attacks was real. It would also apply if a nation chose to invade the US. Our people would be entitled to own and use firearms to protect our nation. Although we have a standing army, it is not so different from what has emerged in Ukraine right now. In fact, it seems some people have tanks in their garage. There is a time for everything it seems.

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  2. Avatar photo
    Dguaspari

    A comment of Sarah 's suggested that it's easy to turn a semi-automatic weapon such as an AR-15, into an automatic weapon. According to a Kevin Williamson column (whose accuracy I'm inclined to trust), that's not so. Here's a relevant quote:

    It can be done, but it requires some real expertise and tools that most people don’t just have lying around the house. (I could explain to you how it is done, but even providing that information is a felony under federal law.) In fact, under U.S. law, semiautomatic firearms that are “readily convertible” into fully automatic firearms are legally classified — meaning prohibited — as fully automatic weapons, even if they are never converted.

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  3. Faith

    Sarah’s weeping reminded me of the following passage
    15 “Thus says the Lord:
    A voice is heard in Ramah,
    lamentation and bitter weeping.
    Rachel is weeping for her children;
    she refuses to be comforted for her children,
    because they are no more.”
    I heard the report in my car radio on the way home from work. I had to pull over and stop to compose myself.
    A comment about firearm background checks. I am an adoptive parent which required background checks using our fingerprints. The backlog for adoptive parents was 6–8 weeks. Concealed carry background checks were turned around in 2 days. I inquired about the significant time difference and was told by my congressman‘s staff member, ” Guns are a constitutional right children are not.”
    My congressman at the time was both a member of right to life and the NRA.

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  4. AHenry

    Is it better to have one federal red flag law or 50 state ones? As Sarah pointed out, having the states enforce the laws lends more people to the effort.

    Could the feds do something like they did with drinking age where they attached receipt of federal highway fund to raising the drinking age to 21?

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  5. General Darden

    @David, my only thought on Red Flag laws is the ridiculously slow pace of the procedure to file, adjudicate and declare judgment. Sometimes it is needed in minutes. How do you develop this for speed?

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  6. General Darden

    Not a lawyer. Know and have 2A opinions, but do not own a handgun but own two shotguns. My wife is a military-trained marksman who was #1 in her class, but she had never shot before and barely since. My Dad went to school on a Riflery (Marksman) scholarship. What I want to understand is why *anyone* is able to just go in and purchase a weapon without some sort of a waiting period or background check.

    The Uvalde shooter allegedly purchased two rifles when he turned 18. Couldn't there have been a mandatory check with people <21 years of age to ask for (a) family representative consent, (b) agreement individual did not represent a threat to others or self [evidence: court records, school records, etc.], and/or (c) some sort of certified gun safety training for the devices being purchased? These are not "radical" ideas: if I want to practice medicine and carve open a chest cavity with a legal scalpel, I have to get training and a heckuva lot of practice. If I want to fly a plane, I have to get minimum hours of training and demonstrate core competency. Both are LICENSES granted by the state, however, and not RIGHTS assumed by the 2A, so folks will say they are not the same, but why not?

    I read a lot about the road to hell and good intentions, and I do not seek to end the right to bear arms - just slow the process of procuring and ensure the acquisition is initially by an individual of good standing and judged of good character. We already say felons cannot own guns, so we know some restrictions are carved out and accepted.

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  7. DJ

    I think owning guns should be considered weird and looked down upon socially. . Sure, buy your guns, but talking about how awesome they are, or sharing your weird ideas about how they protect you from the government or sending pictures of them on Christmas cards? That’s weird. You’re weird.

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  8. Avatar photo
    Gz Expat

    I'm just wondering how many F-bombs producer Caleb had to scrub from Sarah on this episode?
    Frankly, if there were any, they should have been left. The emotion and passion were warranted and heartfelt.
    God Bless the Brisket and the backpack. He's gonna be amazing

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  9. Jon Hamilton

    I haven't listened yet because I haven't been mentally equipped to deal with the topic again today, but wanted to ask a question.
    Would it be constitutional to regulate guns like cars? Anyone can use one but you need to pass a test, have it registered periodically, possibly inspected, and insured for liability?

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    1. Avatar photo
      Kerani

      This proposal has been proposed before, primarily by people who do not recognize how hard it is to get a firearm legally vs an automobile. Also liability insurance does not cover criminal action.

      I do support having voluntary gun safety classes in every high school.

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  10. Tngraham

    Interesting pod episode. Thanks!

    I wasn't convinced by the opinion in the 11th circuit social media law case though. It seemed circular. I.e., the judge seemed to be saying that social media isn't like a common carrier because a common carrier is defined to be a business that can't pick and choose customers according to the ideas they use the medium to communicate.

    Well, yes. It's exactly *that* definitional problem that the Florida law was trying to solve. That is, the Florida law was trying to *change* the way social media companies were treated: to treat them more like common carriers and less like comments sections on newspapers or blog websites. To say they can't make change the law in that way because currently they're treated in a different way doesn't make a whole lot of sense:

    "I want to classify this platypus as a marsupial."
    "You can't."
    "Why not?"
    "Because a platypus is currently classified as a kind of duck."
    "But why can't I change its classification?"
    "Because the only classification allowed is one in which it is a duck."
    "Why?"
    "Because it is a duck."
    "Why do you say it is a duck?"
    "Because the classification currently says it is a duck."
    ...

    As for David's analogy of calling tables ducks (ducks seem to be figuring a lot in this comment--that ought to please Sarah, I know she has a thing for avians), to treat a social media company as though it were a comments section on a blog or a computer bulletin board is at least as much of a mischaracterization as likening it to AT&T. In fact many of us (myself included) think the latter analogy is actually more apt. Sure, social media companies grew up in a world in which a certain set of laws pertained. Those laws encouraged them to establish moderation policies and terms of service which set the rules under which users operated. But those laws could be changed, and it is actually far from obvious that the Constitution forbids regulating social media companies as common carriers rather than computer bulletin boards.

    As for the purported difference of regulating content beforehand or after the fact, I actually think that's something of a red herring when it comes to deciding which of the two analogies is more apt.

    I think the scale distinction is also bogus. Regardless of size, social media companies should offer an all-comers policy and try to regulate using standards similar (time/place/manner) to those governing public fora. Moderation would mean taking down or limiting visibility of posts violating time/place/manner rules (e.g., separating porn and making it inaccessible to children) but would not be censored according to the whims or political predilections of the company.

    I also think arguments about private property only go so far. AT&T is a private company, but it is a common carrier, so certain rules apply. I can't think of a good constitutional reason that a similar set of rules couldn't govern social media company.

    The industry has matured from the time that the laws governing it were made (the era of computer bulletin boards) and the laws ought to change to reflect what the social media companies now represent for American consumers.

    In short, unless I'm missing something I don't see that the arguments presented in the episode make a lot of sense.

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