Why Was Cho Able to Buy a Gun?

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Chip Somodevilla / Getty

A Glock 19 handgun, like the one Jared Lee Loughner allegedly used in a Jan. 8, 2011, shooting spree in Tucson, Ariz.

Could the Virginia Tech massacre have been prevented by a single court order two years ago? That's the question raised by Cho Seung-Hui's brief passage through Virginia's legal system, which has shown the limitations of both state and federal law regarding guns and the mentally ill.

By the time Cho was standing in front of special justice Paul Barnett of Virginia's Montgomery County in December 2005, he had already been accused of stalking by two women on campus, detained by police who were concerned about his sanity, and ordered by a magistrate to a mental health hospital where he would be evaluated.

The first step in the proceedings called for Barnett to ask Cho if he would volunteer to seek mental health treatment. Court records indicate Cho refused that opportunity and instead demanded a hearing. That same day, Barnett heard from a doctor who said that while Cho was mentally ill, he did not pose a threat to himself or others, and that Cho had denied any suicidal ideas. Barnett won't discuss Cho's case, but court records show he nevertheless was concerned enough about Cho's mental illness that he issued a court order stating that he was a threat to himself. He also ordered him to seek treatment.

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But what kind of treatment? In the days since Cho shot to death 27 students, five teachers and himself on the sprawling Virginia Tech campus in nearby Blacksburg, the debate over whether stronger gun controls laws in Virginia could have prevented the tragedy has centered on just that question. Had Barnett ordered Cho to in-patient treatment, he would have also been required to submit Cho's name to a state and federal database used to restrict gun purchases by so-called mental defectives. But Barnett told TIME Virginia law also requires him to consider the least restrictive alternatives to forced hospitalization, such as outpatient treatment. Court records show Barnett decided that Cho's mental illness was not severe enough to warrant hospitalization and that outpatient treatment would be enough to address his problems.

Critics in Virginia and elsewhere are now saying the state should change its laws to make cases like Cho's trigger a report to the state and federal databases. They point to federal regulations issued by the U.S. Bureau of Alcohol, Tobacco and Firearms that bar gun sales to individuals who are categorized as "mental defectives," guidelines that would have kept Cho from buying his Glock 19 last month.

Richard Bonnie, chairman of the Supreme Court of Virginia's Commission on Mental Health Law Reform, told TIME that the mismatch between state and federal law is simply an oversight that should be rectified. "I don't think people have given much advanced thought to this. Outpatient commitment is very rare event," Bonnie said. "The usual case, what was most in mind for the authors of the federal rules, was the cases where you see severe enough mental illness to be committed to the hospital. This was simply overlooked."

But some observers point out that the case illustrates the way government must balance the rights of the mentally ill and the duty of government to protect society from those who are dangerous. Indeed, the reason state law required Barnett to consider outpatient treatment first is precisely because some judges may be too quick to deprive the mentally ill of their liberties. "That is perhaps the central tension in mental health law," said Professor Timothy Hall, associate dean at the Brandeis School of Law at the University of Louisville. The FBI says only 22 states, including Virginia, report mental health records to the federal database, which was created by the passage of the 1993 Brady bill.

Cho's case raises the issue of conflict between state and federal law. While federal guidelines may stipulate who is to be blocked from buying guns, it is the states that must provide the information to make the databases work. In practical terms, it won't matter what the federal guidelines say if state law says only certain people need to be reported. "Obviously there is no way that the sellers of the gun could have known what happened in the procedure with Mr. Cho," Bonnie told TIME. "Even if it should have been entered in the database under federal law, there was no way for that to have happened in Virginia, so the sale of the gun was lawful."