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An American Tragedy: Part One

The following blog is Part I in a two-part series devoted to discussing the law surrounding the horrific mass shootings that occurred August 3 and 4, 2019, in El Paso, Texas and Dayton, Ohio, respectively.


By Saturday evening, August 3, 2019, the nation was in stunned grief, with people looking on their phones or televisions for the most recent update about the horrific mass shooting in El Paso, Texas. The number of people fatally wounded kept increasing, as did the number of people injured. It’s happened again, was the constant refrain.

When the nation woke Sunday morning, August 4, 2019, news of a mass shooting killing 9 people and injuring dozens was confusing: the numbers were not the same. In a sickening moment it became clear why; it was a second mass shooting, mere hours apart from the horrific massacre in El Paso. The second mass shooting had occurred in Dayton, Ohio.

In 14 hours, two young white men had killed a combined total of 31 people and injured over 50. The attacks had each lasted only minutes before police and first responders arrived. How is this level of carnage possible in such a short time?


Once again, the huge number of casualties in stunningly short time periods is due to the type of weapon used: a military-style rifle with a high-capacity magazine. In fact, many experts point to the high-capacity magazine as being more lethal than the semi-automatic gun itself. But both are controversial, and both were banned under the Federal Assault Weapons Ban passed in 1994 and in effect until 2004, when it expired under a Republican-controlled Congress. Even before the mass shootings of August 3-4, 2019, 57% of American adults were in favor of banning guns such as the AK-47 and the AR-15.

In the wake of the tragedies, the public and some political leaders are calling for gun reform. Although the terms “red flag laws,” “assault weapons bans” and “universal background checks” are frequently used, the devil is in the details. Below are the details.


These are gun violence prevention laws that allow police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to others or themselves. Fifteen states and D.C. have these laws; Maine and Pennsylvania are considering enacting their own. (Georgia does not have a red flag law.) Since Connecticut became the first state to enact such a law in 1999, the main impact of these laws has been shown to be suicide prevention. Indiana saw a 7.5% decrease in firearm suicides in the 10 years after the adoption of its red flag law, and Connecticut saw a 13% decrease from 2007-2015. On August 5, 2019, Senators Graham and Blumenthal announced that they will co-sponsor a bill to create a federal grant program to help states adopt red flag laws. Ohio Governor Mike DeWine proposed a red flag law be enacted in Ohio, along with several other reforms.

The NRA and gun rights’ groups are against red flag laws because they fear that the removal of weapons through an ex parte hearing would lead to a person’s loss of their right to own weapons without proper procedural safeguards.


As noted above, a ban on assault weapons and high-powered magazines was in effect from 1994-2004, and the majority of Americans support re-establishing the ban. The NRA has opposed any limit on the type of guns and firepower, but the viability of the group’s absolutist stance may be coming to an end. The effectiveness of any ban will depend on the ability to define an assault weapon and include the devices used to make pistols and rifles into semi-automatic and fully automatic weapons (like the brace used by the shooter in Dayton, and the bump stock used by the shooter in Las Vegas, which was later banned). Add-ons that modify legal pistols into rifles and illegal automatic weapons have become popular; the weapon is more concealable because it is smaller but just as lethal.


This idea is promoted a lot, but what exactly does it mean? First and foremost, it means closing the loophole that allows unlicensed sellers—people who sell guns online, at gun shows or anywhere else without a federal dealer’s license—from transferring firearms without having to run any background check whatsoever. Unlicensed sellers are currently exempt from doing background checks on buyers, despite the fact that background checks are easy and processed through the National Instant Criminal Background Check System (NICS) in less than 2 minutes most of the time. NICS has an accuracy score of 99.3-99.8%. Even before this past weekend’s carnage, 90% of Americans supported universal background checks.

The House passed two bills aimed at enhancing background checks earlier this year. The first closed the loophole described above. The second extended the time sellers would have to wait before completing a firearm sale. Currently, if a background check by the FBI takes longer than 3 business days, the sale can move forward even if the check is not completed due to incomplete data. The bill approved in the House increased the waiting period to 10 days, with the potential to be extended another 10 days. Neither of the bills even came up for a vote in the Republican-controlled Senate, and the President indicated he would veto the bills should they reach his desk, despite his vocal support of universal background checks after the Las Vegas and Parkland mass shootings.


It is easy to see why many call the above three proposals “common sense reforms;” when looked at, the legislative ideas make perfect common sense. Many people decried all the signals that were missed with respect to the Parkland shooter, and wondered how so many could have missed so much wrong. Florida passed a red flag law within one month of the mass shooting at Marjory Stoneman Douglas High School. Similarly, a Second Amendment right to bear arms is not unfettered; like all constitutional rights, it is subject to reasonable restrictions in favor of the common good. Banning weapons that can kill huge numbers of civilians in matters of seconds is a reasonable restriction in favor of the common good. The Second Amendment does not give people the right to buy nuclear weapons, or missile launchers. Some weapons are deemed too dangerous for personal, civilian possession and use.

Requiring universal background checks on all purchases of guns is another reasonable restriction on a person’s right to bear arms. The process is easy, quick and accurate. Keeping guns out of the hands of people with prior felonies, domestic abusers, or people who are otherwise precluded from owning them is worth any small inconvenience or intrusion by the government. There is no constitutional right to buy guns online or from unlicensed dealers. There is an inherent, human right to be safe. What are we as a society willing to do to make our human right a reality in this country?

Look for Part II of this series in which we will discuss the impact of White Supremacy and Domestic Terrorism on the Hispanic Community.


If you or someone you know has been injured, contact Dave Thomas at The Thomas Law Firm for a free evaluation of your legal rights.

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