BUT, who, pray tell, shall be judge / jury here?
Well, see, the thing is that society is capable of having these discussions as long as it is willing to.
Think of everything else we can do.
And think of some of the stuff we can't.
So let's start with an obvious one. There is a class of criminal behavior whereby society just doesn't want to acknowledge the danger. As a result, instead of keeping guns out of their hands through felony exclusions, we try to extend the felony exclusion to cover misdemeanors. See, the idea, here, is that someday I might have a wife that I need to beat, and that shouldn't mean I can't have my gun with me when ... when ... well, you know the rest, right?
I remarked, earlier in the thread that this aspect has been known to drive some otherwise intelligent people I know bonkers. I really don't get it, but we're doing everything we can to keep certain domestic violence and stalking from being felonies, and, yes, the right of a stalker to bear arms while stalking is one of the stakes.
So we can start with that one:
▸ Is there a legitimate reason to issue this protection order against you on behalf of a spouse, domestic or intimate partner, or former thereof? Yes? Okay, hand over your guns until we get this sorted out.
Perfectly straightforward. When so much so apparently orbits the question of whether the abuser has access to a gun, we have our reasons.
We know what the problem is, right? And we also know, from other lessons in the past, about the problem with hewing to the problem? Here, for the gallery, just so we can remind the young'n's: The problem is that any range has a borderline. The problem with hewing to that problem is that we then protect what is beyond the pale as if it was borderline. And rolling up a few extra cases with the borderline isn't a big deal if we're talking about how perfectly centered the edible decals on the box-mix sugar cookies are, but when those determinations have literal life and death implications, what then? It's one thing to worry about that problem, but the discussion generally doesn't get far enough.
In the deevee question, the difference is a sevenfold-plus increase in likelihood. And the reason we don't settle this question is that the overwhelming majority of beneficiaries will be women, and the overwhelming majority of risk—
e.g., temporary or permanent loss of firearm access—falls to men. Therefore, we will stretch the constitutionality of our authority by extending felony exclusions to cover preferred misdemeanors. What could possibly go wrong?
In some aspects, we might wonder who
shall be judge or jury, as such, without pausing to wonder who presently
is.
There is also a mental health question. A detail from one or another shooting a few years ago is that the killer's family had tried to intervene in his firearm danger and failed because the laws just didn't afford such courses. Say what we want about banning various boxes, because it's true, the same question will apply. There will, however, also be some clear-cut cases that, presently, the laws simply will not afford any manner of intervention.
The question of judge and jury doesn't become particularly sticky
until we engage the borderline ranges.
In the early part of the century, Bureau of Justice Statistics numbers emerged regarding firearm offenses among federal prisoners, and one of the topline notes, were toplines a trend at BJS back then, would have been that these offenders got their weapons from friends and family just as often as through collective illegal means. My cynical distillation was that these criminals were getting their guns from "responsible gun owners" at least as much as they were from illegal sources. Regardless of how we settle the deevee and stalking questions about misdemeanor and felony, there are simply some felons who we already know can't have guns, and we leave far too many pathways open.
Toward that, we had a case about a decade ago that still bugs me to this day. It was a DV, with prior history, on a foreign alien who had overstayed his visa, and when the cops had him, they turned him loose. Seventeen hours. They arrested him for coming after his pregnant ex-girlfriend, and over the next seventeen hours, he was released, obtained a .357 from a friend who insists the gun was stolen, and shot her to death before killing himself. Seventeen hours. And we
had him.
I want that friend to prove the gun was stolen.
I want "stolen" to mean more than
my friend walked into my place, took the loaded weapon from wherever he knew he could easily access it because he had been told and shown where it was and the thing was left unsecured, and I just plain didn't notice because, well, I just don't pay that close of attention to my gun and bullets.
I think we can do that. I think that's within our right as a society to demand a bit more responsibility than that.
It's like when the guy died while doing the horse. Turns out we didn't have a law against having sex with animals, so ... they tried to charge the cameraman with trespassing, except he had been invited, so ... er ... ah ....
And, you know, back then there wasn't really any confusion about freedom and necessity. That is to say, they passed the damn law, and we comforted ourselves on the dearth with the pretense that we never really needed the law before that because, well, right.
Uh huh. Whatever. We believe them. And I digress.
I guess the larger point is that there is plenty we can do before ... I don't know, something. I suppose it feels like I get your question but it feels way too early and sounds way too preclusive.