ISSUE ADVISORY: Mass Shootings Continue with Little Progress on Gun Control – PART TWO

March 20, 2019

The horrendous mass shooting at two mosques in Christchurch, New Zealand, March 17, which left 50 dead and 39 injured has created a new urgency for reforming gun laws in that country. The Pittsburgh, Penn. Tree of Life Synagogue shooting in late October when 11 people were killed and seven injured was the deadliest attack against Jews in U.S. history. In early February, a suspect in Aurora, Illinois fatally shot five co-workers and wounded five police officers with a handgun that he, as a convicted felon, should not have been able to purchase. In 1994, the suspect beat his former girlfriend with a baseball bat and stabbed her with a knife.

Reflecting on the issues of domestic violence and gun violence in Part One, Part Two continues with more information about the Second Amendment, the Supreme Court, and gun laws in the states. Part Three will finish up this three-part series with more information about misconceptions on gun violence, and limitations to lasting change.

THE SUPREME COURT HAS THE POWER

How the Second Amendment is Interpreted Matters

The Second Amendment in full reads “A well regulated Militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” According to gun proponents, this grants individual citizens (“the people”) the right to carry firearms. This view has led to some contention. Assuming the framers of the Constitution wanted to grant guns to private citizens, why stipulate the necessity of a “well-regulated militia”? An individual homeowner with a rifle would almost certainly not meet the criterion concerning participation in a well- regulated militia. As such, it is possible that the amendment was not intended to indicate the right of individuals, but of regulated forces to bear arms.

Another perspective on this issue arises from Supreme Court Justice Stephen Breyer’s dissent in DC v. Heller, a case in which the right of Officer Dick Heller, a special police officer authorized to carry a firearm while on duty, was brought into question. The majority opinion, written by Justice Scalia, was that the denial by the District to allow Heller to carry his firearm off-duty was a violation of Heller’s Second Amendment rights. In his dissent, however, Justice Breyer called such an understanding of Second Amendment rights into question by stating that the amendment could not be understood the same way it was when the framers wrote it. The world is fundamentally different now than it was back then – guns are more powerful, and there is less need for “roving militias” to protect the population. Consequently, Breyer opined, Second Amendment “rights” cannot be strictly evaluated based on words written in a past context that no longer reflects reality, regardless of how sacredly we treat such words as part of our Constitution. Modern considerations must be considered to allow us to engage with a changing world.

The Supreme Court Will Hear a Gun Control Case This Spring

With disagreements over how the Second Amendment is interpreted, the U.S. Supreme Court holds the power to reshape gun control in the United States. The new makeup of the Court also leaves this future uncertain. This spring, the justices will take up New York State Rifle & Pistol Association v. City of New York and their decision will affect existing regulations and future actions states can take to keep communities safe through gun control.

The case at stake concerns a New York City ordinance that prohibits licensed handgun owners from carrying guns locked and unloaded outside their homes. Owners are also not allowed to carry the gun outside of the city to a second home unless they have a license to carry. Lower courts fairly upheld the law for protecting public safety in a reasonable way.

How will the Supreme Court likely rule? Justices Clarence Thomas and Neil Gorsuch indicated last year in dissent over a similar San Diego policy that “the framers made a clear choice: They reserved the right to bear arms for self-defense.” As a lower court judge, Justice Brett Kavanaugh was critical of a D.C. ban on assault weapons. Justice Samuel Alito has been critical of restrictions to the Second Amendment, namely of a Massachusetts stun gun ban in Caetano v. Massachusetts. These four justices would likely strike down the New York law.

On the other hand, Justices Ruth Bader Ginsberg, Elena Kagan, Stephen Beyer, and Sonya Sotomayor would likely uphold the law. This leaves Chief Justice John Roberts the swing vote. As Nina Totenburg from NPR explains, Justice Roberts views on gun control are relatively unknown. He struck down the D.C. handgun ban in District of Columbia v. Heller, but that was more than a decade ago. Even with a role as swing vote, Roberts will more likely than not protect the Second Amendment in the same way as the other conservative justices by striking down the law. This will seriously limit types of protection states can have on gun safety,  however.

LEGISLATORS NEED TO PASS GUN CONTROL BILLS

In a swift action to demonstrate that they were serious about passing gun control legislation, House Democrats adopted H.R. 8, the Bipartisan Background Checks Act of 2019, sponsored by Rep. Mike Thompson (D-Calif.), with a vote of 240-190 on February 27. A companion bill is S.42, the Background Check Expansion Act, introduced by Sen. Christopher Murphy (D-Conn,). This act would close background check loopholes and would ensure that individuals prohibited from gun possession are not able to obtain firearms. A Quinnipiac Poll indicates that strengthening background checks for gun purchases is overwhelmingly popular, with 94% of respondents in support. Once the bill passed the House, Donald Trump announced that he would veto such a measure if it got to his desk.

Another bill is S.66, the Assault Weapons Ban of 2019, sponsored by Sen. Dianne Feinstein (D-Calif). This bill would ban assault weapons for civilians in the United States, though it does not have the same bipartisan support as background checks. Banning assault weapons is important, but with the NRA’s investment in politics, such a ban coming to fruition would be incredibly challenging.

There are other bills that target research on gun violence. H.R.674 and S.184, the Gun Violence Prevention Research Acts of 2019, seek to appropriate funds to the Centers for Disease Control and Prevention for research on gun violence prevention and firearm safety. H.R.435, the National Gun Violence Research Act, would create a full “National Gun Violence Research Program” and an Interagency Working Group on gun violence.

Bills like S.193, Ethan’s Law, introduced by Sen. Richard Blumenthal (D-Conn.) regulate the safe storage of firearms in the home. H.R.33, the Gun Trafficking Prohibition Act introduced by Rep. Bobby Rush (D-Ill.) would create stand-alone criminal offenses for trafficking in firearms and straw purchasing of firearms.

Due to the intersection of domestic violence and gun violence, some legislators have directed their efforts to close the “Boyfriend/Girlfriend” loophole. Sister bills, S.120, Protecting Domestic Violence and Stalking Victims Act of 2019, and H.R.569, the Zero Tolerance for Domestic Abusers Act of 2019, address this issue. Respectively introduced by Sen. Amy Klobuchar (D-Minn.) and Rep. Debbie Dingell (D-Mich.), these bills would expand the term ‘intimate partner’ to include a ‘dating partner.’ Currently, some domestic abusers can obtain firearms because they were not married to or living with the abused. This law would change to protect survivors of domestic violence and stalking from gun violence.

Legislators need to take gun violence seriously by enacting legislation, and these bills would be a step in the right direction.

STATES NEED TO ACT

Six days after the Parkland shooting, the Florida House of Representatives voted down a bill (HB 219) banning assault weapons and high capacity magazines. Students from Marjory Stoneman Douglas High attended this session, having arrived on buses to advocate for the bill’s passage. Instead, they watched their representatives disregard their trauma. The Florida Senate later passed a bill – known as the Marjory Stoneman Douglas High School Public Safety Act – which raises the minimum age for gun purchases, mandates a three-day waiting period for all firearms sales and bans bump stocks. Several items remain uncovered, including a ban on assault weapons, a ban on high-capacity magazines, and any attempt at strengthening or streamlining background checks. In addition to these omissions, the bill also legalizes the arming of school employees, a policy which has also been suggested by Trump at the federal level.

In March 2018, the NRA moved to challenge the Marjory Stoneman Douglas law on the subject of age limits. Additionally, on May 23, the parents of victims Jaime Guttenberg and Alex Schachter sued firearm manufacturer American Outdoor Brands Corporation, formerly known as Smith & Wesson, the manufacturer of the rifle used by Cruz, and distributor Sunrise Tactical Supply, the retailer who sold Cruz the rifle, claiming damages due to “the defendant’s complicity in the entirely foreseeable, deadly use of the assault-style weapons that they place on the market

States such as Massachusetts, Maryland, and California serve as more effective examples of gun regulations and control, despite the shooting at Maryland’s Great Mills High School on March 20th. In Massachusetts, to own a non-large capacity gun (a non-semi-automatic gun), one must be at least 15 years old with parental consent, or 18 or older. Either a Certified Firearms Safety Course or a Basic Hunter Education Course is required as part of the registration process. Regulations for semi-automatic weapons are similar, with the exception that an individual must be 21 years old to apply. Non-residents are not permitted to purchase guns or ammunition in Massachusetts, and a background check is required for any sale of a gun in Massachusetts. After all this, the license itself is only valid for a period of six years.

In Maryland, an HQL, or Handgun Qualification License, is needed to own a gun as of 2013. The process of obtaining this license includes a background check and the completion of a Firearms Training Course in the last three years. Magazines with a capacity exceeding 10 rounds are additionally illegal to sell, purchase or manufacture in Maryland. In 2018, Maryland also enacted a “red-flag” law, banned bump stock sales, and required domestic abusers to surrender their guns to law enforcement.

In California, to own a gun, one must be at least 21 years of age (if purchasing a rifle or shotgun). People must pass a Firearm Safety Certificate test before they purchase a gun, and a ten-day waiting period is in place between the purchase and release of a firearm. AR-15s and the possession of magazines that can hold more than 10 rounds of ammunition are additionally banned under California law. Though concealed carry is permitted, this is only with a permit granted by law enforcement for reasons of “good cause” based on the existence of a “clear and present danger” to a person and/or their family and based upon a judgment of the person’s “good moral character.” This represents a diversion from federal law, which does not require a permit for concealed carriage of firearms.

As such, all states allow their residents to own guns in some form, but it is important for them to check ownership and/or types of guns available for purchase via heavy regulation in order to limit the number of gun deaths that occur in-state. This is supported by research compiled from the CDC, the Law Center to Prevent Gun Violence and the NRA itself, as noted in The National Journal, which indicates that states with difficult-to-get concealed carry permits and mandated background checks, such as these three states, have lower average gun-related homicides.

TO BE CONTINUED WITH PART THREE.