This week we’ve learned a lot about Devin Kelley, the man who gunned down 46 people, killing 26 of them, during church services last Sunday in Sutherland Springs, TX. We’ve learned he had been under a domestic violence restraining order, that he’d violently assaulted and battered his young son, that he’d received a year in military prison and a punitive discharge after a general court-martial, that he’d been involuntarily confined to a psychiatric facility from which he subsequently escaped, that he’d been arrested on animal cruelty charges, that he’d been making increasingly irrational threats to people he knew on Facebook. Most of those particulars would have resulted in the FBI’s instant background check system rejecting Kelley’s application to purchase a semi-automatic rifle. But none of those things made their way into the system.

Now retiring Senator Jeff Flake has come up with an amazing common sense idea that would have stopped Kelley in his tracks:

Writing a bill w/ @MartinHeinrich to prevent anyone convicted of domestic violence – be it in criminal or military court – from buying a gun

— Jeff Flake (@JeffFlake) November 7, 2017

Incredibly proactive considering that law has been on the books since the mid 90s. https://t.co/li2bSEW0LE

— Donald Trump Jr. (@DonaldJTrumpJr) November 7, 2017

If being proactive means closing the #DomesticViolenceLoophole exploited by the #SutherlandSprings Texas shooter, you're right. https://t.co/8S89dgaTuK

— Jeff Flake (@JeffFlake) November 7, 2017

https://twitter.com/MiltonWolfMD/status/928012130674233349

wut? Domestic violence loophole? I think my brain is bleeding.

What Flake is asserting, which is entirely bogus, is that because the UCMJ does not recognize “domestic violence” as a unique crime, but rather treats it as assault, that members of the Armed Forces are essentially exempt from the provisions of federal law. specifically 18 U.S. Code § 922, which has prohibited persons under a domestic violence restraining/protective order or who have a domestic violence conviction from purchasing a firearm since 1997.

Texas shooter was able to buy a gun because what civilian courts call domestic violence, military courts call assault. In fact, DOD has only reported ONE case of domestic violence to fed. background check system since 07. #DomesticViolenceLoophole Closure Act is commonsense fix pic.twitter.com/pxEOAPZ1HA

— Jeff Flake (@JeffFlake) November 7, 2017

First things first. We know for a fact that Kelley would have been barred from firearms ownership if the law had been followed. His conviction by a general court-martial was a felony conviction and that should have been sufficient. He had been hit with a protective order by civil authorities. Again, that should have been sufficient. His involuntary confinement to a psychiatric facility might have sufficed. As in so many of these cases, at some point the system broke down and a guy breaks a smallish law–buying a firearm which he is not legally able to own–in order to break a very big law–murder, proving, yet again, that the one defining feature of criminals is that they commit crimes.

The reason that there are a very small number of military domestic violence reports is simple. For the military justice system to become involved in a domestic violence case there has to be a service connection. If a military person lives in civilian quarters and is married to a civilian, by and large, the military has limited primary jurisdiction. Domestic violence, both protective orders and prosecutions, are mostly handled by civilian authorities with the military merely reinforcing the reach of the civilian authorities If there is actual physical violence, the military will more often than not let the local civilian prosecutor handle the case. Courts-martial are slow and time-consuming. It is easier to wait on the civilian adjudication and then use that conviction to punish or separate the servicemember.

https://twitter.com/JesseKellyDC/status/928015101910757379

Flake is grandstanding. He’s inventing a problem where none exists and trying to make a legislative solution for the problem he imagines exists. He’s just taking one more swipe at the GOP as he heads for the exit.