Constitutional Law Blog Essay

Actions to Decrease Gun Violence

The carnage from the massacre in Texas, which left at least 26 dead, is just the latest of so many instances of gun violence, following tragedies in places like Las Vegas, Orlando, Sandy Hook, Aurora, Tuscon, and Virginia Tech. They all share one feature in common:  a disturbed man with a weapon or an arsenal of weapons that allows him to kill a large number of people in minutes.

Action to decrease gun violence is long overdue. Each year, over 30,000 people in the United States die from guns and over 70,000 are injured.  Unfortunately, the discussion of gun control is dominated by a number of myths.

Myth #1:  The American people don’t want gun control.  According to one recent national poll, over 90 percent of voters are in favor of requiring criminal background checks for all guns sold in the U.S. More than 80 percent support required trigger locks for firearms. About 70 percent of voters support assault rifle bans and no-fly list gun sales bans.

Myth #2:  Gun control laws violate the Second Amendment.  The 2008 Supreme Court decision, District of Columbia v. Heller, for the first time recognized the right of an individual to have guns in their homes for the sake of security. But very importantly, the Supreme Court emphasized that the Second Amendment is not an absolute right. Writing for the majority, the late Justice Scalia specifically wrote that, “like most rights, the right secured by the Second Amendment is not unlimited.”

In fact, the Court made clear that the government can regulate who owns a gun, what types of guns can be owned, and where those guns can be located—because the government has a legitimate interest in protecting public safety. For example, Justice Scalia—also in the 2008 majority decision—used laws prohibiting the carrying of concealed weapons as an example of the type of regulations that are permissible under the Second Amendment. He further noted that “nothing in our [Supreme Court] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Myth #3:  Gun control laws won’t make any difference because criminals will still get guns.   Study after study shows that crime has decreased in foreign countries that have adopted strict gun control laws.   Sensible gun regulations won’t stop all the killing, but it will have a dramatic effect.   The fact that people get illegal drugs, or even that people commit murders, despite the criminal prohibitions on those crimes is not an argument against the laws.  Nor is the possibility of illegal possession of guns a reason to give up and fail to make it more difficult for dangerous individuals to get firearms.

So what should be done?  Here are a few things.

First, background checks for gun registration must be strengthened.   For example, the gun-show and private-sale loophole to background checks must be closed.  Ordinarily, when someone buys a gun at a gun shop, the seller confirms the buyer’s right to purchase a gun by contacting the FBI’s National Instant Criminal Background Check System.  However, if a buyer seeks to purchase a firearm at a gun show or elsewhere from a non-professional gun seller, that consumer usually need not undergo the otherwise mandatory background check.  Would-be criminals with disqualifying backgrounds are undoubtedly aware of this path around the bar on their ability to obtain firearms.

Also, currently unavailable data from other federal and state agencies should be included in the background check system.  Requiring all purchasers to undergo a background check is of only limited value unless we are confident that the system effectively screens the vast number of prohibited purchasers from obtaining firearms.  That is not the case today.

Second, weapons that serve no other purpose except to kill a large number of the public in a short amount of time should be banned.  Society always has balanced the benefits of weapons against their potential for misuse.   For example, there is widespread agreement that bazookas are not appropriate for civilian use.  Likewise, Congress should work to enact a ban on those weapons that are the most dangerous to the public and the least likely to serve any other purpose. There is no reason to allow people to have assault weapons, such as semi-automatic military-style weapons that are easily converted into automatic weapons.

High-capacity magazines have been important in all of the recent mass shootings and should be effectively banned.    The Long Island Railroad killer was stopped only when he was forced to change clips because he expended all of the bullets in his gun.  During the rampage of mass shootings, civilians are likely to be far more effective at curtailing killers when the latter are compelled to pause due to magazine-size limitations. The costs of such a ban seem reasonable given the demonstrated benefit in limiting the horrific damage from these seemingly ongoing outbursts of national fratricide.

There is a split among the Circuits as to the constitutionality of such laws. The United States Court of Appeals for the Fourth Circuit struck down a Maryland law that prohibited possession of semi-assault weapons and high-capacity ammunition magazines.   It ruled that a ban on possession of AR–15 style rifles and large capacity magazines by law-abiding citizens substantially burdened the core Second Amendment right to defend oneself and one’s family in the home. By contrast, the United States Court of Appeals for the Second Circuit came to the opposite conclusion and held prohibitions on possessing semiautomatic assault rifles with one or more military-style features and high capacity magazines did not violate the Second Amendment’s right to bear arms.

The Supreme Court should resolve this Circuit split and come to the position of the Second Circuit.  The massacre in Las Vegas occurred because gun companies make semi-automatic weapons that are easily converted into automatic weapons that can kill large numbers of people in a short amount of time.  Gun manufacturers take automatic military weapons like the M-16 and modify them into legal, semi-automatic weapons, like the AR-15.  They can be turned back into automatic weapons, whether through bump stocks or other techniques that are described on many websites.

People should not be allowed to have military-type semi-automatic weapons that can be easily converted to automatic weapons or to possess high-capacity ammunition magazines.  These are not weapons for hunting or sport, but to kill human beings.

Third, it is time to stop giving the gun industry special protections that are not accorded to other businesses.  In 2005, Congress passed the Protection of Lawful Commerce in Arms Act which prevents gun companies from being sued by the victims of gun violence. The NRA got it right when it called this “the most significant piece of pro-gun legislation in twenty years.” No other industry enjoys this special treatment.

The Act could not be clearer in stating its purpose: “To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.”   There are some narrow exceptions where liability is allowed, such as for actions against transferors of firearms who knew the firearm would be used in drug trafficking. But otherwise gun companies are totally immune from any liability.

Adam Lanza used an AR-15 rifle, a weapon initially made for the military, to kill 20 schoolchildren and their teachers in a small town in Connecticut in 2012.  In October 2016, a Connecticut Superior Court judge dismissed a lawsuit filed by the families of some victims of the 2012 Sandy Hook Elementary School shooting against the manufacturer, the wholesale distributor, and the retailer of the semi-automatic rifle used in the shooting. Judge Barbara Bellis said that the suit “f[ell] squarely within the broad immunity” provided to gun manufacturers and dealers by the Protection of Lawful Commerce in Arms Act.

Congress should repeal this unfair law and allow the victims of gun violence to have their day in court. Today, gun companies are allowed to design weapons that can be easily converted into weapons of mass destruction and distribute them freely without having to worry about the destructive consequences of the weapons they put on the streets.

Before the passage of the gun industry protections, courts could hold gun companies responsible for the safety of their products. In March 2000, Smith & Wesson, one of the nation’s largest gun manufacturers, adopted a robust set of safety controls on their handguns as part of a settlement to a major lawsuit brought by a coalition of mayors. If those injured can bring lawsuits against the gun companies, these businesses will make safer products and be more careful about how they distribute them.

Tort liability exists to spread the costs of a product among all of its users and also to create incentives to make the product safer.  The 2005 Act undermines this by providing gun companies sweeping immunity from liability.

Conclusion.  The steps I have suggested are not a panacea and will not prevent all gun-related tragedies.  But they are positive actions that can be taken now and that likely will have widespread public support.

All of us are vulnerable to senseless gun violence.  We all send our children to schools, watch movies in theaters, go to concerts, and spend time in public places. Whatever one’s views of the Second Amendment and gun rights, these steps just make basic common sense.  How many more tragedies must there be before our politicians have the courage to take action?