Document Type


Publication Date

Winter 2015

Publication Citation

90 Indiana Law Journal 151 (2015)


Mass shootings at Navy Yard, Newtown, Aurora, and elsewhere have jolted Congress and the states into considering gun violence prevention. More than 1500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary-school children and six adults. Legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces. In the states, the most successful type of legislation involves firearms restrictions for the mentally ill. In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity magazines. While the national attention to firearms violence prevention is salutary, for law and policy to tackle the core of the problem it is important to address two empirical questions: Who are the dangerous individuals committing most firearms homicides, and why do the law’s current screens miss them?

This Article draws on data from the National Violent Death Reporting System to answer the crucial foundational questions of who poses a danger and why the dangerous slip through existing legal screens. Presenting data on the most prevalent place of shooting, the victim-shooter relationship, and the shooter’s prior history, this Article shows that prevention of extraordinarily devastating firearms violence calls for attention to how the nation addresses “ordinary” violence. By ordinary violence, this Article means violence that is often viewed as mundane, such as altercations between family members, friends, and intimates in the home. Many perpetrators of firearms homicide have a history of such prior events—yet a substantially smaller proportion of these violent episodes have been adjudicated, thereby slipping through existing screens for firearms restrictions. Based on these findings, the Article discusses how executive action steering scene-of-assault procedure and discretion in dealing with ordinary violence can improve detection of the dangerous regardless of whether proposed firearms restrictions survive the gauntlet that besets new gun laws.