Over at The Volokh Conspiracy, UCLA law professor Eugene Volokh points out that
Dylann Roof was arrested and charged only with misdemeanor drug possession. The Lexington County (S.C.) criminal records site reports, under “Charges,” that Roof was charged with “0179-Drugs / Poss. of other controlled sub. in Sched. I to V – 1st offense.” Charge code 0179 refers to misdemeanors. S.C. Code § 44-53-370(d)(2) provides that possessing a Schedule III substance (here, suboxone) is a misdemeanor leading to at most six months in jail. The arrest report confirms that this is what Roof was arrested for.
It appears, however, that the South Carolina records at first incorrectly listed the charge as a felony, according to the Greenville News (Nathaniel Carey). “A spokeswoman with the State Law Enforcement Division said Roof’s criminal record incorrectly listed the pending charge as a felony due to a data entry error. The record has since been corrected to reflect it is a misdemeanor, she said.”
If this is correct, it would seem that Roof was not a prohibited person by operation of his prior arrest. But,
[h]ad Roof indeed been charged with a felony, dealers would have been legally forbidden from knowingly selling him a gun simply because of that formal charge, even before he was convicted. That is because 18 U.S.C. § 922(d)(1) bars sales of guns to people who are known to be “under indictment for, or [have] been convicted in any court of,” a felony. (How felony is defined for purposes of federal gun law is complicated, but I’ll set that aside here.) Moreover, “indictment” has been read as covering not just indictments by grand juries, but also “informations” filed by prosecutors. Formal charges had indeed been filed against Roof by the time the gun purchase background check took place.
As noted by Volokh, even “[t]hough Roof wasn’t charged with a felony, the sale to him might still have been barred under 18 U.S.C. § 922(d)(3), which covers anyone who is an unlawful user of or addicted to any controlled substance.”
But how would a firearms dealer — or the FBI, for that matter — know that someone is barred under 18 U.S.C. § 922(d)(3) unless that person, prior to or during the transaction, admits as much (by stating it, or through some other evidence)?
As one VC commenter points out, there are not “a lot of policies being put forth that would prevent this sort of coldly pre-planned massacre.”
That’s because there aren’t any.
The oft-proposed “universal background check” (“UBC”) mandate is really only part of the new gun control equation. Even if UBC systems were fully-integrated, realtime, and functioned perfectly, it would only deny new firearm transfers to persons known to be in a currently-prohibited class. Certainly some evil and/or insane people will fall outside those criteria.
Then there are post-prohibition policies of disarming known gun owners following a known prohibiting event. (See, e.g., California’s failed “APPS” program.) But that system relies on the government having a list of gun owners and their firearms. It also relies on virtually unlimited law enforcement capacity and a willingness on the part of law enforcement officers to engage with some truly armed and dangerous people (in addition to a possibly mentally-unstable, but probably harmless grandpa or grandma with a revolver in their nightstand). This policy, too, fails to capture all of the Dylann Roofs prior to their evil acts.
Finally, there are the “predictive model” policies that are currently gaining some momentum. These policies would create new prohibiting conditions that would deny new firearm acquisition (or expand a prohibition) to people not simply based on prior felony or violent crime convictions, or adjudicated mental health matters, but on factors that, according to some, indicate a simple “likelihood” that a person might commit a violent crime if allowed to acquire or possess firearms. (See California Senate Bill 755 (2013, vetoed by Calif. Gov. Jerry Brown) and the currently-alive California Senate Bill 347.) Since we [thankfully] don’t have three Precogs and a PreCrime division of law enforcement, “predictive model” policies would only infringe fundamental, individual Second Amendment rights without offering society anything more substantive than a “feeling” that “something was done” about violent crime in America.
Even if gun prohibitionists got their wish (they won’t) and gun control policies were so expansive that virtually all people acting through legitimate channels were under the government’s all-knowing (and remembering) thumb, they would still fail to prevent the underground (“black market”) sales of firearms and ammunition. And their growingly-ominous and paternalistic policies will undoubtedly drive more and more otherwise law-abiding people to that underground market, putting more firearm transactions outside the reach of government knowledge and undercutting the already de minimis (at best) value of gun control regulations.
In the post-Heller world, the philosophical underpinning of modern gun control advocacy is “if you can’t ban all guns, then ban as many people as possible” — no matter the cost to individual liberties.
That is an unacceptable and unconstitutional response to our social ills.