The teenager who murdered eight students and two teachers at Santa Fe High School in Texas didn’t have to go to great lengths to find the guns that fueled his rampage. The shotgun and the .38 caliber pistol he took to school belong to his father and were available to him right at home.
The Santa Fe school shooter used his father’s guns. Could his father be punished?
Texas has legislation on the books that holds parents liable if their kids access their guns. But both gun owners and gun control advocates have problems with the law.
It’s the latest mass shooting at a school where a student used a parent’s gun (or guns) — a trend that’s simmered quietly in the background, even as politicians and school districts grapple with what to do about these violent acts.
But Texas has laws designed to force parents to keep their firearms out of their kids’ hands. Prosecutors can charge parents even if a child doesn’t ever fire the gun or cause an injury; just allowing access to firearms is a violation. (However, in the case of Santa Fe High School, the shooter was already 17. The law applies only to children under 17 years old.)
As Texas begins to grapple with how to stop mass shootings — particularly in schools — politicians are struggling to come up with solutions that will curb violence while fitting into the state’s gun culture and commitment to the Second Amendment. The idea of holding parents responsible is already on the books (though rarely enforced) and could be one option to engage gun rights advocates who also support the conservative value of parental responsibility. So why aren’t these laws more popular with conservatives?
Texas has one of the broadest child-access prevention laws in the country
Under Texas law, parents whose children gain access to their lawfully owned guns can be held criminally liable. Per Texas Penal Code 46.13, “Making a Firearm Accessible to a Child”:
(b) A person commits an offense if a child gains access to a readily dischargeable firearm and the person with criminal negligence:
(1) failed to secure the firearm; or
(2) left the firearm in a place to which the person knew or should have known the child would gain access.
A violation is a Class A misdemeanor “if the child discharges the firearm and causes death or serious bodily injury to himself or another person.” Such an infraction is punishable by one year behind bars and/or a $4,000 fine.
But the law is rarely enforced. Between 1995 and 2015, 61 Texans were convicted of making a firearm available to a child. For comparison’s sake, in 2013, roughly 45 percent of Texas voters owned at least one gun.
Texas joins 27 states — including Massachusetts and Mississippi — and the District of Columbia in imposing criminal liability on adults when a minor gets access to a gun that’s been stored improperly, or even if the gun has simply been left somewhere where an adult should have known a child could get it.
According to a study by the RAND Corporation that my colleague German Lopez analyzed earlier this year, child-access prevention laws have been shown to reduce both suicides and unintentional deaths. But the impact of CAP laws on mass shootings is unclear. According to researcher Andrew Morral, the head of RAND’s gun policy initiative, “We didn’t find qualifying evidence one way or the other. That’s not to say it doesn’t have an effect on mass shootings, that’s just to say we don’t have the research to show what effect it does have.”
While CAP laws might be meaningful in preventing tragic accidental deaths in homes across the country that arise from a child gaining access to a loaded gun — and even might reduce some violence in schools — we just don’t know whether enforced CAP laws would stop mass shootings. Such bills would appear to thread a nearly impossible political needle — stopping gun violence while encouraging parental responsibility, with no guns seized in the process — but the real impact of the legislation leaves a lot to be desired, for both gun control advocates and gun owners.
Are these laws a deterrent?
The big question about these laws is whether they get parents to keep their guns safe. That’s where gun control advocates and gun owners differ — the former think such laws don’t go far enough, while gun owners see CAP laws as an invasion of privacy.
I spoke with Ari Freilich, staff attorney and California legislative affairs director at the Giffords Law Center to Prevent Gun Violence. In his view, the problem with Texas’s child-access prevention legislation is twofold: “First, it only applies to adults who leave readily operable loaded firearms accessible to unsupervised minors,” he told me, noting that the second major issue was that it was only applicable to those 16 and under.
CAP laws, Freilich said, “are only effective if they are enforced and lead to a behavioral shift. Drunk driving and seat belt laws helped to shape drivers’ norms about highway safety; child-access prevention laws are most effective where gun owners are aware of their legal and moral responsibilities to safely store firearms around children and teens and incorporate safe storage practices as the behavioral norm for gun ownership.”
Texas law limits the term “child” to those under the age of 17. In the case of the shooting in Santa Fe, the shooter was 17 years old, meaning that though the father of the gunman confirmed on Greek television (he is a native of northern Greece) that the guns used in the shooting were his — “I have guns, I am a hunter and had a farm which I rented in the 1980s. The guns in my house are legal and declared,” he said — under Texas law, he couldn’t be penalized.
Neither could the parents or guardians of the shooter in Parkland, Florida, or at a Waffle House near Nashville — in both of these cases, the shooter was over the age limit (19 and 29, respectively). Texas isn’t alone in carefully limiting who counts under the term “minor” — in Illinois, Iowa, Virginia, and Wisconsin, only children under the age of 14 are considered “minors” under those state’s child-access prevention laws. In Connecticut, Florida, Maryland, and four other states, “minors” must be under the age of 16.
Freilich does think that recent school shootings might encourage states to expand or strengthen existing CAP laws, or create new ones. “I think these shootings have rightly prompted law makers to consider how we can strengthen our laws to make tragedies like this less common and less lethal,” he said. “The available data shows that the vast majority of school shooters obtain their weapons from their parents or another family member, suggesting that more responsible and secure gun storage practices could help prevent many tragedies from ever occurring.”
State legislatures have been paying attention. After the shooting in Parkland, New York legislators put forward a package of bills aimed at stopping mass shootings. Among them was the Children’s Weapon Accident Prevention Act, which would criminalize storing a gun improperly.
In a statement to Vox, New York state Sen. Liz Krueger (D) said that she has supported CAP legislation since 2011: “We see the tragic consequences of the failure of adults to safely store guns all too often. It is estimated that about one of every three deaths from accidental firearm discharge could have been prevented if proper weapon safety procedures had been followed. This bill will make it clear that failure to adequately secure weapons is a crime.”
But to the National Rifle Association and to many gun owners and gun rights advocates, the laws are “unnecessary, ineffective, and endanger law-abiding gun owners.” That’s according to a September 2017 op-ed, which noted that overall gun deaths were decreasing and argued that gun safety education (especially gun safety education courses created by the NRA) was contributing directly to that decline. I reached out to multiple NRA representatives for comment but have not yet received a response.
The politics of gun control
For many conservatives, CAP laws — though they would seem to mandate parental responsibility without taking anyone’s guns away — aren’t the solution they appear to be. I spoke with David French, a conservative writer at National Review who has written frequently on gun issues.
“From a 50,000-foot view, one of the conservative arguments about school shootings is that the absence of parental involvement — specifically absent fathers — is a big part of the problem,” he told me. “That doesn’t apply as much to the Santa Fe shooting (at least based on what we know), but a significant percentage of young mass shooters come from broken homes. I think the general feeling is that CAP laws won’t make an irresponsible parent responsible.”
Andrew Klavan, a novelist and political commentator with a podcast at the conservative site Daily Wire, told me that virtually any form of gun control legislation, including child-access prevention laws, would be the first step toward overall efforts to confiscate the guns of law-abiding gun owners. “That’s why our first answer is always the Spartan one: molon labe. Come and take them,” he said.
Moreover, he added, “the idea that preventive measures should center on restricting guns rather than more important things — increasing security, better law enforcement awareness, and maybe addressing the collapse of the family and other sources of mental health danger — almost always can be shown to make no sense. Most people who commit these crimes have already broken the existing laws, so new laws are unlikely to stop them.”
In fact, French points out that any enforcement of a child-access prevention law would likely come after something had already happened. In Texas Republican Rep. Phil King’s words in an interview with the Texas Tribune, such legislation is “reactive, not proactive.”
That’s the difference between CAP laws and other safety-based legislation. While drunk driving laws and seat belt laws could be enforced through, say, a drive-through check point, police officers going from home to home to check on how secure a family’s guns are would be unpopular at best, and unconstitutional at worst. (In the Supreme Court case DC v. Heller, the Court ruled that laws requiring that guns be kept disassembled or nonfunctional in the home violated the Second Amendment.)
The only way for such laws to be enforced before guns were used by children would be if a search warrant had been executed for another reason and an unsecured weapon was found. To French, that would make them “an instrument of additional law enforcement.”
At a time when mass gun confiscation is, rightly or wrongly, viewed as a real concrete possibility in the wake of a series of mass shootings, gun owners just aren’t buying any legislative attempts to limit access to guns, even in the guise of encouraging parental responsibility.
Klavan told me, “I’m all for parental responsibility, [but] I don’t think that’s what any of this is about. I think it’s all just making arguments to get people’s guns.”
