Why The Ft. Lauderdale Shooter Still Had A Gun

In the wake of the Ft. Lauderdale shooting a familiar array of questions are being raised:

Why did this happen? Could we have seen this coming? What could have been done to prevent this?

In searching for answers to those questions many are focusing on the mental health of the shooter, Esteban Santiago. The connection between mental illness and violence seems clear in this case and that connection can make it feel like there is an obvious solution, not letting mentally-ill people have guns. But under scrutiny that idea is not the easy or simple solution it may appear to be.

Currently, federal law prohibits certain people from owning firearms, including anyone “who has been adjudicated as a mental defective or has been committed to any mental institution.” Esteban Santiago had spent time in a mental institution in 2016 after going to the FBI in Alaska to tell them that he was having “terroristic thoughts” that he believed were coming from ISIS and also that “his mind was being controlled by a U.S. intelligence agency,” according to the FBI. During that time, his gun was taken, but, when Santiago left the facility, it was returned to him. The fact that Santiago spoke to a law enforcement agency and spent time in a mental institution and then got his gun back feels like an infuriating and tragic lapse in common sense. But our laws don’t operate based on common sense.

The return of Santiago’s weapon was actually in keeping with federal law, because he had entered the mental health facility voluntarily. For a person to be prohibited from owning a firearm, they have to be involuntarily committed and that is an important distinction. Currently in this country, we treat individual gun ownership as a right. That means that, like stripping a person of any right, there are a very narrow set of circumstances under which this right can be limited. There is no legal precedent for taking away rights from people because they sought help for a health issue, mental or otherwise.

Denying gun ownership to anyone who gets treatment for mental health issues could also prevent people from making the already-difficult decision to seek help, and add to the already-considerable stigma of mental illness in this country. A law like that would be impractical to enforce as well as unjustified; the vast majority of people with any given mental health issue are not violent. If mental health officials could accurately determine who was going to commit acts of violence, they would be doing it already. And, while there are some highly publicized cases like this of people with mental illness committing acts of mass violence, statistically, mentally ill people are more likely to be the victims of violence than the perpetrators.

Of course, none of this is to say that Santiago should have had a gun. Obviously he should not have, but legally there was no justification for taking his gun away. Santiago‘s mental health history was not enough to infringe on his right to own a firearm, and neither was the fact that police had come to his home as a result of domestic violence. A person can only become federally prohibited from owning a firearm due to domestic violence if they are “subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner” or if they have “been convicted of a misdemeanor crime of domestic violence.” Santiago had been charged with the misdemeanor “criminal mischief” but that is also not enough to stop him from having a gun. Even in combination these things did not create a situation where any law enforcement agency was empowered to take Santiago’s gun away.

What this illustrates is that we don’t have a working system in this country for keeping guns out of the hands of people like Santiago, who should not have them. Some states have tried to rectify this with stricter laws about mental health and domestic violence as relates to gun ownership, but state gun laws are largely meaningless because people can simply get guns in one state and then take them wherever. The real problem here is not about transporting guns and it’s not about mental health, it’s about how we treat guns and gun ownership in the U.S.

As long as we act like owning a gun is a right, then it’s going to be very hard to stop people from exercising that right. If, instead, we treated guns the way we treat other tools with the capacity to inflict bodily harm, like cars, we could come at this from the opposite angle. Rather than having the default be “everyone should be allowed to own a gun” we could have a legal framework that required people to prove that they could be a responsible gun owner before getting a gun. With a different paradigm about gun ownership and recognition that not everyone should have guns, we could probably implement criteria for gun ownership that would have precluded Santiago from getting or keeping his gun. If we’re serious about keeping guns away from people like Santiago, who intend to use them to harm others, then we need to shift our thinking about guns and we need a new system for determining who gets guns. As we’ve seen yet again, giving everyone easy access to guns and then trying to figure out ways to see who shouldn’t have a gun, and then attempting to make and enforce laws to take guns away from only those people is a crazy and dangerous system.

Alexis Chapman is a Political Consultant and Writer specializing in policy analysis, from international law to local ordinances. She’s lived in Australia, Ghana, Vermont, Hawaii, and Texas and has worked for small and large NGOs, state legislature, industry associations, and a variety of publications. She is a regular contributor to Political Storm and you can find her on Twitter @AlexisAPChapman.