Last week in Virginia, Vester Lee Flanagan, Jr. shot and killed WDBJ reporter Alison Parker and cameraman Adam Ward. Flanagan, who died after he fled the scene and turned the gun on himself, filmed the shooting and posted it to his Facebook account and faxed a 23-page document of his grievances to ABC News.
The portrait of Flanagan that has emerged in the wake of the shooting is one of an angry, troubled man. In his suicide note, he claimed to admire other angry, troubled men whose rage, like his, turned deadly: he listed Charleston shooter Dylann Roof, Columbine shooters Eric Harris and Dylan Klebold, and Virginia Tech shooter Seung-Hui Cho as heroes and influences.
Flanagan also had a history of angry outbursts and had been ordered by his former employers at WDBJ to seek mental health counseling. Despite these red flags, Flanagan, on paper, was a perfectly law-abiding gun owner. In July, Flanagan passed a background check and legally purchased two handguns, including the one he used to kill Parker and Ward.
In response to the shooting, Virginia Gov. Terry McAuliffe called, once again, for an overhaul of U.S. gun laws, a request that was echoed by Parker's grieving father.
Noting that the tragedy was still fresh, McAuliffe nevertheless pushed for stronger policies to regulate gun ownership. "Keeping guns out of the hands of people who would use them to harm our family, friends and loved ones is not a political issue; it is a matter of ensuring that more people can come home safely at the end of the day,'' he said.
But as last week's tragic shooting makes clear, while tighter gun regulations save lives, a weakly enforced system of categorical prohibitions in the U.S.—like restrictions on gun ownership among people convicted of felonies or subject to domestic violence restraining orders—leave a lot of room for people who may present a danger to themselves and others to buy a gun. Or many guns.
"Unfortunately, at the moment, this seems to be our reality under the legal system," Dr. Emma McGinty, an assistant professor at the Johns Hopkins Bloomberg School of Public Health whose work addresses mental health and gun policy, told Fusion. "The key thing to think about… is that we need policies that allow a little bit more flexibility, frankly."
Fusion talked to McGinty about the tragedy in Virginia, what kinds of policies may prevent similar acts of violence, and the limits of policy in a country, like the U.S., that is so saturated with guns.
Our conversation has been condensed and lightly edited for clarity.
There was another shooting last week. The country is, once again, talking about gun laws, about mental health, about why this violence has become so predictable. What are we supposed to do here?
It’s not totally clear that the Virginia shooting was directly related to mental illness, though clearly [shooter Vester Lee Flanagan, Jr.’s] mental state was not what we would consider… healthy.
But in terms of federal laws and background checks, for mental health, the only prohibition under federal law that relates to mental health is if you have been involuntarily committed to either inpatient or outpatient care you are prohibited from purchasing or possessing a firearm, and that would lead to failing a background check.
Which requires some interaction with the courts, which doesn't happen in many cases.
It’s a very high bar. What it involves is a person being determined by a judge, in most states—or a clinician and a judge, in others—that they are an imminent risk of being a danger to themselves or others. That’s a very high bar in terms of firearm prohibitions around mental health.
But there are some other key things that aren’t in place that can help. One of them is what’s called discretionary permit to purchase laws. These laws are in effect in Massachusetts, New York, and New Jersey, and what it means is that in addition to passing a background check, you have to apply for a permit, which is the case in many more states than those three. But the difference in these discretionary permit to purchase states is that it is just what it sounds like: law enforcement, the people approving the permit, have discretion to say “No, we don’t think it’s a good idea if you have a gun.”
They have to be able to justify it, of course. But in cases [like what just happened in Virginia] where it was clear that the gunman had raised red flags with co-workers, that there were anger issues, that could be something that, in this discretionary permit to purchase process, is uncovered. Now, of course, they may not necessarily uncover it. But it could [be a prevention mechanism], and in that case, they could say, “No, we’re using our discretion to not grant you this permit.”
And this makes it harder, in general, to get a permit?
It makes it considerably harder to get a permit. Essentially you have to be able to justify why you need a gun. And it’s something that, again, potentially, could help.
Another one is what’s called a gun violence restraining order, or GVRO. This is something that is a relatively new policy option in the landscape. The only state that has passed it into law so far is California, although it’s been proposed in multiple states, including Virginia, actually. It was introduced but did not pass. What this GVRO is is a process that mirrors, almost exactly, the domestic violence restraining order process which exists in all 50 states.
Under federal law someone who is under a domestic violence restraining order is not allowed to have a firearm, but of course that only applies to situations where intimate partner violence is involved. So the idea with a gun violence restraining order is that, in the California model, family and intimate partners can petition the court for a restraining order, to say, “You know, I am really worried.” About my son, my husband, my cousin, whoever it may be, becoming violence, either toward himself or others.
That could be related to anything: substance use, mental illness, being fired from a job—there are no parameters around the source of the potential violence. Then, after that petition is issued, it works just like a domestic violence restraining order. A judge can issue an emergency gun violence restraining order in which case law enforcement would go and remove firearms from that person if they had them in their possession, and also put them in the system so that they could fail a background check. And within a short period of time the respondent and the petitioner go before a judge who either says that restraining order will be maintained or overturns the restraining order.
And this only applies to intimate partners and family members?
In California, it’s only a mechanism that family and intimate partners, but it’s a mechanism that I believe could be helpful in scenarios when someone could be a danger to themselves or others but doesn’t meet any of the prohibiting criteria that would prevent them from purchasing a gun under federal law.
It seems like a lot of people who may be dangerous gun owners will never interact with the courts, particularly when you think about under-reported issues like domestic violence. So we have these policies that could be an additional stopgap for people who may be a danger to themselves or to others. But I found myself thinking, again, after the shooting last week, whether or not tighter gun restrictions are sufficient to address what seems to be America’s uniquely violent and lethal gun culture.
From a public health standpoint, the ideal way to solve a problem like this is to reduce the number of guns in circulation. This is the lethal means involved that are directly causing this problem. That said, and this is the perspective I incorporate into my research, it’s not really feasible in the U.S.
The Supreme Court has made it not feasible. In 2008 with District of Columbia v. Heller and 2010 with McDonald v. the City of Chicago, the two cases the Supreme Court that resulted in individual firearm ownership being determined to be, once and for all, a constitutional right.
This leaves us with the only policy option available in terms of firearm policy, which is to try to implement laws that will prevent dangerous people from getting guns. As you suggest, that is never going to be 100% possible, but I think certainly discretionary permit to purchase, GVRO, universal background checks, these types of policies can, the research suggests, make some pretty big steps in the right direction.
The unfortunate and depressing reality is that, with all the guns in circulation, we are not going to be able to keep firearms out of every single dangerous person who we would like to.
Your colleague at Johns Hopkins, Dr. Daniel Webster, has talked about this gap as the problem of the "law-abiding gun owner": the person who on paper will be able to check off all of these boxes and legally obtain a gun, but describe them to to someone and ask, “Person X has a history of being violent to their partner, their family has been alarmed by their violent outbursts, they have threatened to hurt themselves in the past. Do you think person X should have a gun,” and the answer would often be, “No.”
And yet the law creates quite a bit of room for people in these situations to have guns, not just one gun but as many guns as they want. So it sounds like what you’re saying is that the answer is less guns, but we kind of can’t get there.
Unfortunately, at the moment, this seems to be our reality under the legal system. The key thing to think about, and the two policies that I mentioned are a good example, is that we need policies that allow a little bit more flexibility, frankly. These categorical prohibitions miss a whole, huge host of people who shouldn’t have guns.
These more flexible policies, like discretionary permit to purchase and the gun violence restraining order, where you have law enforcement and judges having a little bit of discretion to evaluate people outside of categorical prohibitions is really important.