Gunman Slipped Through Inconsistencies in State, Federal Laws

Inconsistencies between state and federal laws allowed Virginia Tech gunman Cho Seung-Hui to purchase guns legally despite his record of exhibiting signs of a dangerous mental illness. But even if it had been illegal for Cho to buy the handguns, Virginia law would have been powerless to prosecute the dealer who sold them--both issues of the state law that at least one leader in the state legislature says will be "of significant debate" in the next legislative session.

At issue in Cho's case is the difference between being deemed by a judge as a "danger to himself or to others"--the standard for prohibition according to the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives--and actually being committed against one's will to a mental health facility, the threshold for prohibition in Virginia. (See the federal and state statutes).

Furthermore, the Virginia Code only outlines punishments for the illegal sale of firearms to convicted felons or those acquitted of a crime for reasons of insanity, neither of which applied to Cho. (See statute.)

Cho's own brief detention at the Carilion St. Albans mental health facility in Radford, Va., in December 2005 (pdf of order) falls in the limbo between the federal and state regulations. While a special justice for the Virginia District Court deemed Cho a threat to himself, he found that there were "suitable" alternatives to involuntarily committing Cho to an institution.

Full document here.

One legislative response to the shootings may be to tighten the Virginia statute governing when a dealer can be prosecuted, said Dave Chapman, the Commonwealth attorney in Charlottesville, Va. He added, however, that he believes most gun dealers would not sell a weapon to a person who was prohibited because of a past institutionalization, even if Virginia law is not strong enough to make that act of doing so a punishable offense.

"We don't have any experience in my time here with dealers seeking to make sales to prohibited people for whom they cannot be prosecuted under state law," he said.

Ken Stolle, the Republican whip in the Virginia Senate, predicted that the subject will be "an issue of significant debate" in the next legislative session.

"The problem that Virginia will probably have to deal with is if somebody seeks or is required to seek a mental health treatment, to what extent is the Commonwealth going to use that to restrict access to firearms?" Stolle said.

"It would be too early for me to predict what would happen, but my guess is it will have a lot of support," he said.

An ATF spokesman, Mike Campbell, said the bureau's legal counsel is reviewing all the relevant documents in Cho's case to determine whether the state ruling should have activated the federal law denying Cho access to the weapons.

--Will Sullivan and Chris Wilson