Why both sides of debate say Devin Kelley should not have owned a gun

Defense Secretary James Mattis on Tuesday ordered the Pentagon’s inspector general to launch an investigation into why the Air Force did not report Kelley to the NICS.

Just down the street from the First Baptist Church, where a gunman killed 26 parishioners on Sunday, convenience store clerk Chris Speer is still trying to sort through his feelings about how a man who the federal government and state of Texas said could not legally own a gun, could walk into a store and buy a Ruger assault-style rifle.

Devin Kelley was court-martialed and spent time in a military brig for assaulting his baby stepson and once smuggled weapons onto an Air Force Base in New Mexico after making death threats against commanders. His last rank in the Air Force was “prisoner.” He also escaped from a mental health facility.

“My honest opinion is you can regulate guns all you want, but if you're not going to red flag somebody who did something like that then that's just stupid. It’s just completely dumb,” says Mr. Speer, who was on a break. He is not interested in expanding gun control – pointing out that a neighbor with a rifle shot the gunman and, in his view, saved lives. But as for Kelley, “the moment he put his hands on a baby he should have been a priority No. 1 red flag. But then you let him go further and he breaks out of a mental institution? That’s a red flag!”

In a hyperpolarized atmosphere, people on both sides of the spectrum are in agreement on one thing: Kelley should not have been able to buy a gun.

In one sense, experts say, the failures to enforce existing laws raise questions about national will to address a series of mass slayings that have shaken the domestic tranquility. At the same time, a growing demand for answers underscores, at least to some gun policy experts, how both sides actually share common goals.

“It would terrify a lot of people to realize how faulty the system really is – there’s a lack of standards on reporting, there are missing records, erroneous records,” and the list goes on, says University of Arizona gun culture expert Jennifer Carlson, author of “Citizen-Protectors.” “The reason why this issue is so important is that both sides of the [gun] debate should want to get this right. The gun rights people don’t want faulty records and they want a mechanism to clear someone’s record; and the gun control people want the system to be complete and not have holes in it.”

Indeed, even many of those who argue on the legal front for expanded gun rights see the Kelley probe as an opportunity for reform.

America has now seen three of its five worst mass shootings in less than two years, the worst one coming in October when 58 people died and more than 500 were injured in Las Vegas. The sheer volume of death and injury has in some ways intensified familiar battle lines between those who want to see America armed even more and those who want to regulate gun ownership.

Yet the attack on a country music festival, the massacre at an Orlando night club, the sniper assault on Dallas police officers last year, and now the massacre inside a small-town sanctuary are involving an ever-broader swath of Americans.

That has jarred the thinking of even staunch gun rights advocates, many of whom, including Republican Texas Gov. Greg Abbott, are focusing on raising compliance standards for existing laws.

'Solving problems in unison'

Mike Gonzales, a pastor at Cornerstone Church in San Antonio and a Sutherland Springs resident, says that there is, for him at least, a new sense of common purpose to protect innocent Americans. On one hand, he says, “I have guns myself – I strongly believe it’s not the gun, it’s the person.”

The retired Army soldier found new salience in a recent speech at Brooke Army Medical Center, where he talked about “what veterans need to do to help our nation have stability.” Now, he said, speaking at a vigil Sunday night, “It’s going to take an effort all the way through. Civilians, military, government, teachers – we have to unite.”

“The problem we have is you have a large population of [gun owners] who, as a group, have lower rates of violence than people otherwise,” says Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research in Baltimore. “But that masks something important: Because our standards of gun ownership are low, there are a whole lot of people with violent backgrounds who can legally and easily possess firearms – and go on to become legal carriers.”

Given that, he adds, “We need to … realize this is not a cultural debate at all but about solving problems in unison.”

Defense Secretary James Mattis on Tuesday ordered the Pentagon’s inspector general to launch an investigation into why the Air Force did not report Kelley to The National Instant Criminal Background Check System (NICS).

An FBI database launched in 1998, NICS has denied more than 1.3 million gun applications. The system receives – or should receive – data about criminal convictions and mental adjudications from thousands of jurisdictions, courts, agencies, police departments, and the Pentagon.

The system 'failed us terribly'

After the shooting, Texas Sen. John Cornyn (R) vowed to introduce legislation that would incentivize federal agencies to quickly upload data to NICS. That followed a bipartisan bill introduced last week, before the massacre, that would help states add domestic abuse data to NICS reporting.

“According to the Department of Justice, the number of these records that are actually uploaded is staggeringly low,” Senator Cornyn said in a statement. The system, he added, “failed us terribly.”

In some ways, given a series of reforms under President Barack Obama, Mr. Webster notes that NICS is “far better today than it has been” in the past.

Yet this is the second church shooting where the system failed.

President Obama’s order to hire hundreds more FBI background investigators came in 2015 after a white supremacist named Dylann Roof, who should have been disqualified from owning a gun because of a drug conviction, legally purchased a handgun used to kill nine parishioners at Mother Emanuel Church in Charleston.

In that case, then FBI Director James Comey apologized for "lapses in the FBI’s background-check system.… An error on our part is connected to this guy’s purchase of a gun.”

While Kelley was recently denied a Texas gun-carry permit – the reason why has not been made public – he passed the FBI background check four times.

In Comal County’s court records, The Washington Post reported, “a little yellow flag is posted on Kelley’s electronic file, denoting that he has psychiatric issues.” It appears that information was never relayed to the FBI.

Kelley had been feuding with in-laws who attended First Baptist Church before the shootings, authorities say. He himself had attended a Halloween festival there a week earlier. His wife’s grandmother died in the attack.

“It’s really reprehensible that the military didn’t get his [conviction record] to NICS,” says Second Amendment lawyer Stephen Halbrook, author of “That Every Man Be Armed.” “There’s no excuse for these records to slip through the cracks.”

In some sense, the reaction to the tragedy both locally and nationally has fallen along familiar lines between those who want to ban assault-style weapons and those who believe that “good guys with guns” should be given a larger role as citizen protectors.

“We may well have something that says we’ve got to do better reporting between Army discharges, convictions in criminal military courts and reporting to NICS – those are all particular reforms that would actually do some good,” says Dave Kopel, research director at the libertarian Independence Institute in Denver.

'Where is the follow through?'

But reforms may have to go deeper – to more distinctly define the role of government in taking weapons away from Americans who are no longer allowed by law to possess them.

When it comes to illegal gun owners, for one, “a big question for everybody is: Who has the prerogative to seize those guns?” says Professor Carlson. “Where is the follow through?”

In a lot of states, including Texas, there are no clear mechanisms to either confiscate or surrender guns. Police are authorized to, but not required, to seize guns belonging to illegal owners.

To much fanfare, California introduced the Armed & Prohibited Persons System in 2001. It gave power to police to conduct wide sweeps to collect illegally owned weapons. So far, more than 1,600 firearms have since been seized.

But when Carlson asked California police chiefs how they used the system, they said there are few clear standards and they often don’t have the enforcement capacity to go after people who are known possessors of illegal firearms.

Those kinds of deep looks into how America actually regulates gun ownership also underscore a broader desire for hard data, notes Charles Branas, a Columbia University epidemiologist who studies the impacts of gun policy on public health.

Just as recent studies have found that gun deaths increase in states that liberalize gun laws, he notes that the 1994-2004 assault weapons ban did not appreciably stem gun violence in the US.

Next week, the Center for Gun Policy and Research will publish a poll that shows 83 percent of gun owners believe that a license to carry concealed firearms demonstrates that someone can safely handle guns in all situations. The actual standard for concealed-carry permits, however, is lower than that.

“Gun owners, if you talk to them and shoot with them, they are some of the most safety-conscious people in the US, but they also tend to think that everyone else is also safety conscious,” says Mr. Branas. “Perhaps that is a mindset where they are trying to protect their capacity to defend themselves, but it’s not recognizing that there might be others with firearms that … don’t have that safety mindset. All you need is a minority of people who make bad decisions with a firearm and you see what happens.”