Health law attorneys and professionals look at the current debate over gun regulation and make suggestions for gun control laws consistent with the Second Amendment.
By Lawrence O. Gostin, Sibel Ozcelik, Sarah Duranske and Eric A. Friedman
Lawrence O. Gostin is the O’Neill Chair in Global Health Law and Director, World Health Organization Center on National & Global Health Law, at Georgetown University Law Center.
Sibel Ozcelik, is a health rights advocate. She is currently conducting evidence-based research and legal analysis as an O’Neill Institute Fellow and a Health Policy Analyst at Healthsperien.
Sarah Duranske is a Thomas C. Grey Fellow at Stanford Law School. She works in the areas of public health, medical innovation, and biotechnology.
Eric A. Friedman works on global health and human rights projects at the Georgetown University Law Center’s O’Neill Institute. Previously, he was Senior Global Health Policy Advisor at Physicians for Human Rights.
In the March for Our Lives on March 24, hundreds of thousands of people flooded the streets of Washington, DC and across the nation to demand political action to curtail gun violence. Inspired by students who survived the school massacre in Parkland, Florida on Feb. 14, impassioned leaders, teens, and survivors called on Congress to enact stricter gun-control laws.
Matthew Soto, whose sister was killed at the 2012 Sandy Hook massacre, beseeched, “America, I am pleading with you to realize this is not OK. Show those that say our lives are not more important than a gun that WE are important.”
The march evidenced the power of social mobilization, pressing policymakers toward transformative gun control laws. What’s missing, however, is exactly what students like Matthew Soto are advocating for—political will.
The National Rifle Association and gun-rights supporters often frame virtually any gun regulation as a violation of the Second Amendment’s “right of the people to keep and bear arms.” As Emma Gonzales, a survivor of the Parkland shooting, passionately voiced shortly after the shooting: “They say that tougher gun laws do not decrease gun violence. We call BS…They say that no laws could have been able to prevent the hundreds of senseless tragedies that have occurred. We call BS.”
Emma is correct. The U.S. Supreme Court and courts across the nation have made clear that the Second Amendment does not stand in the way of wide-ranging, effective gun control measures. What is required of legislators and executives is to enact and enforce evidence-based reforms that safeguard the public’s health, along with funding for rigorous research on gun safety to identify the most effective measures.
It is true that gun regulations are not the only set of policies required to reduce gun violence to a minimum. A public health approach would encompass the full gamut of actions required to address the causes of gun violence and include, for example, mental health interventions to reduce the risk of suicide, sweeping changes to the criminal justice system, and addressing root causes of crime and violence. Yet gun regulations are an integral part of what is required, would save many thousands of lives each year—and, with sufficient political will, could be enacted today.
The demonstrations nudged Congress and the President to act. Yet, the modesty of lawmakers’ response stands in sharp contrast to the country’s mass mobilization in support of gun reform.
The omnibus Consolidated Appropriations Act of 2018 includes three reforms to limit gun violence. The first involves the Dickey Amendment, which prohibits the Centers for Disease Control and Prevention (CDC) from using its injury prevention funds to advocate for gun control. A report accompanying the Act simply recognized the Secretary of Health and Human Services’ recent statement that “the CDC has the authority to conduct research on the causes of gun violence.” But researchers who study gun violence are unconvinced that this statement will invigorate public agencies to engage in more research.
The Dickey Amendment’s chilling language remains, dissuading firearms research, and the bill contains no new money for research (which had already precipitously dropped after the passage of the Dickey Amendment). Not only does this barrier need to be removed, but also, full funding must exist for evidence-based gun violence research-- along with data collection--to flourish. Public health agencies should not face a political chill when seeking to understand what interventions would best safeguard the public’s safety.
The second measure in the omnibus act is the bipartisan Fix NICS (National Instant Criminal Background Check System) Act of 2018. Rather than expanding gun purchase restrictions or establishing universal background checks , the bill is meant to increase states’ and federal agencies’ compliance with the existing background check system, which prohibits members of certain identified groups, including felons and people with domestic violence convictions, from purchasing guns. Fix NICS incentivizes federal agencies and the military to add relevant records to the NICS database and punishes their failure to comply.
Gun reform advocates, however, are frustrated as this measure doesn’t go nearly far enough. Current federal regulations only require federally-licensed dealers to conduct background checks. Sales and transfers of firearms through the internet, at gun shows, and through private transactions are not subject to federally-mandated background checks.
A two-pronged solution would (1) prohibit potentially dangerous individuals (members of identified groups) from purchasing or possessing firearms, and enact red flag laws, and (2) enforce this ban with universal background checks (that is, requiring everyone seeking to purchase a firearm to undergo a rigorous background check).
Restricting gun ownership based on the applicant’s criminal record, history of domestic abuse, age, mental health, physical ability, vision, record of prior firearm negligence, and safety knowledge comports with the Second Amendment.
Recently, Florida enacted the Marjory Stoneman Douglas High School Public Safety Act, which limits gun possession by persons adjudicated as mentally ill and gun purchases for those under 21-years old. Evidence validates that age limits do have an impact; a quarter of convicted gun offenders in 13 states would have been prohibited from possessing any firearm if the minimum legal age had been 21 years.
States already have adopted minimum purchase ages for other hazardous products (e.g., tobacco and alcohol) and activities (e.g., driving). But under principles of federalism, the federal government cannot mandate states to perform background checks, even though the public overwhelmingly supports them. Instead, the federal government can provide incentives to states, and states themselves can implement background checks at the point of any firearm transfer.
Further, along with these permanent restrictions, states should enact “red flag” laws. These would enable law enforcement or family members to petition for a judicial order to temporarily take firearms away from individuals judged to be a danger to themselves or others. Mental health professionals should be similarly empowered, as proposed in New Jersey.
A third measure in the omnibus act is the Student, Teachers, and Officers Preventing (STOP) School Violence Act, which appropriates $50 million per year for developing FBI- and Secret Services-recommended “threat assessment systems,” improving school security, and implementing anonymous reporting systems. While these provisions to train both staff and students to protect themselves against gun violence are important, they place no limitations on gun possession. Arming school teachers has no evidence of effectiveness and wide concerns beyond the literal and symbolic detraction from teachers’ primary role and responsibility—to educate students. And if, in training situations of an active shooter, even professional police officers miss their intended targets more than 80 percent of the time, how would armed teachers fare in real situations?
On top of research, expanded and truly universal background checks along with red flag laws, and educating students and staff and adding security, more measures are necessary to prevent firearm violence from happening in the first place—be it in schools, homes, or inner-city streets.Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) recently took a small step toward gun control by implementing a rule intended to ban bump stocks and similar devices that turn semiautomatic weapons into machine gun-like mimics.
A critical question is whether the Bureau has the authority to ban these devices. In January 2010, the ATF concluded that bump stocks were firearm parts and thus not regulated under the National Firearms Act or the Gun Control Act. The new rule will certainly be subjected to legal challenges.
The Administration’s action on bump stocks was influenced by bottom-up social mobilization. Because of a gunman’s use of semiautomatic weapons with bump stocks that left 59 dead and more than 400 injured by gunfire in the Las Vegas shooting, political pressure grew immensely. President Trump issued a memorandum in February 2018 to Attorney General Sessions and directed the Department of Justice to dedicate all available resources to propose a rule for notice and comment banning all devices that turn legal weapons into machine guns.
While semiautomatic-turned-machine gun shootings represent a small fraction of firearm deaths and injuries, the carnage in Las Vegas, which occurred on Oct. 1, 2017, was the deadliest mass shooting in modern U.S. history. The possibility of other massacres like this one instills public fear.
Members of Congress, including GOP leaders like House Speaker Paul Ryan, and Iowa Republican Joni Ernest, who has used the Second Amendment as a rhetorical tool against gun control, have called on the ATF to regulate bump stocks.
We would go further, advocating for a complete ban on especially hazardous weapons, including military-style or assault firearms, high-capacity magazines, and bump stocks. What’s promising is the number of states and localities that have already passed laws banning these dangerous weapons, and the courts that have uniformly upheld the bans. Furthermore, the Supreme Court has expressly stated that unusually dangerous weapons can be banned.
“Fight for your lives before it’s someone else’s job” – Emma Gonzales
Although gun rights advocates promote the right to bear arms as a mark of liberty and an American’s given right to own a gun, the Second Amendment reads in a far more nuanced way: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Every Supreme Court case that has considered the Second Amendment has permitted states and the federal government to create “well-regulated” firearms environments. Indeed, it wasn’t until 2008 that a divided Supreme Court, in District of Columbia v. Heller , declared that the Second Amendment is an individual right (and in doing so, transgressed from more than 70 years of court cases). Regardless, the Supreme Court noted with approval laws that (1) prohibit carrying guns into government buildings, schools, and other sensitive locations; (2) restrict members of dangerous groups from firearm purchases; (3) ban dangerous and unusual weapons; (4) impose commercial sale-related conditions and qualifications; and (5) prohibit concealed carry.
A decade after Heller, the verdict is clear: The Second Amendment will not block a suite of effective gun regulation. As described above, in compliance with the Second Amendment, the following six evidence-based public health law strategies lay out a roadmap for effective gun regulation, especially if enacted as a set of interventions working in concert:
1) Remove all legislative barriers to gun violence research and fully fund it.2) Prohibit potentially dangerous individuals in members of identified groups from purchasing or possessing firearms and enact “red-flag” laws.3) Fully enforce the ban on potentially dangerous individuals from gun ownership through comprehensive universal background checks.4) Create and implement safe storage laws to limit access to dangerous weapons by children and other vulnerable individuals in the home.5) Ban especially hazardous weapons, including rapid fire firearms, bump stocks, high-capacity magazines, and armor piercing bullets.6) Prohibit the concealed carry of firearms.
The jury remains out as to whether politicians will heed the voices from thousands of survivors and their families, public health researchers, and the clear majority of the public—or whether they will continue to take funding from the NRA and heed its unwavering message of absolute gun rights. If they fail to act, they will have only themselves, not the Constitution or the courts, to blame for allowing a national tragedy to continue unabated.
Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.
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