After another high profile shooting, a background check on gun rights
High-profile incidents, like the recent shooting during a congressional baseball practice, renew interest in the national debate over gun rights and gun control, but gun safety should be a concern for everyone, every day. Americans have strong and divergent views on the subject. The Pew Research Center reports that 37 percent of American households keep guns and 79 percent of gun owners think guns keep them safe. Yet statistics from the Centers for Disease Control and Prevention show that almost two-thirds of the 33,594 firearm-related deaths that occurred in 2014 were accidental (461) or suicides (21,386).
Gun control efforts and enforcement are important to reduce violent crime. According to theBureau of Justice Statistics, only 40 percent of state inmates who committed crimes while armed obtained their guns illegally.
Gun Control Legislation
Federal law places some restrictions on the sale and possession of firearms. Weapons manufacturers and professional firearms dealers must be licensed, keep transfer records and comply with relevant federal and state background checks. These laws do not apply, however, to intrastate purchases from unlicensed private sellers. This gap in the law is sometimes referred to as the “gun show loophole.”
The sale of new fully automatic weapons has been banned since 1986, but there are an estimated 182,600 pre-1986 machine guns in the United States that may be bought and sold legally.
The sale of new fully automatic weapons (machine guns) has been banned since 1986, but there are an estimated 182,600 pre-1986 machine guns in the United States that may be bought and sold legally. Semiautomatic assault rifles, which require a trigger pull for each bullet discharged and can shoot two shots per second, may be legally sold under federal law.
The National Instant Criminal Background Check System (NICS) was established to prevent the sale of guns to convicted felons, fugitives from justice, drug addicts, persons involuntarily committed to mental institutions, unauthorized immigrants and most nonimmigrant visitors, persons dishonorably discharged from the U.S. Armed Forces, persons who have renounced their U.S. citizenship, persons under court-ordered restraints and those convicted of domestic violence offenses. As noted in a 2016 Department of Justice report, however, the government’s incomplete database has, with tragic consequences, resulted in the sale of weapons to individuals who should have been denied purchase.
Minors may not purchase weapons from federally licensed dealers, but there is no federal age restriction on the use and ownership of rifles. Subject to Second Amendment or state constitutional restraints, state and local governments are free to enact stricter gun control laws, such as waiting periods, bans on the sale of semiautomatic weapons, background checks for private gun transfers, additional ownership and carry restrictions, and firearm bans on school grounds. According to the National Conference of State Legislatures, 16 states ban concealed weapons on college campuses while 10 states specifically allow concealed carry on campus. The rest of the states leave the decision up to college administrators.
The Second Amendment states: “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.” Although the Second Amendment was ratified in 1791, it was not until 2008—in District of Columbia v. Heller—that the Supreme Court determined individual gun ownership is protected. The prefatory militia clause, wrote Justice Antonin Scalia, “does not limit or expand the scope of the operative clause.” However, “[l]ike most rights, the right secured by the Second Amendment is not unlimited”:
[N]othing in our 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.
Justice Scalia went on to conclude that prohibitions also could be placed on “the carrying of ‘dangerous and unusual weapons.’” The Heller decision struck down a federal District of Columbia law that prohibited the possession of a handgun in one’s home and required all weapons kept in the home to be disassembled or stored with trigger locks.
In McDonald v. Chicago (2010), the court applied the Second Amendment to state gun control laws and reaffirmed that “the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.” In Caetano v. Massachusetts (2016), the court held the Second Amendment protects the right to own stun guns but did not determine the extent to which the government may regulate that right.
In Peruta v. San Diego (2016), the U.S. Court of Appeals for the Ninth Circuit held: “The Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” The court did “not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry.”
The Supreme Court declined to review this decision, which means gun rights vary across the country. California, and other states and localities within the Ninth Circuit, may strictly curtail the possession of weapons on streets and public places, but lawmakers under the jurisdiction of other circuit courts must abide by different interpretations.
For example, in Moore v. Madigan (2012), the Seventh Circuit determined the constitutional right to bear arms for self-defense “is as important outside the home as inside.” The court struck down “a flat ban on carrying ready-to-use guns outside the home.”
In addition to lobbying for stronger gun control laws and enforcement, victims of gun violence and their families have sought justice in civil lawsuits against gun manufacturers, sellers and owners of weapons that were used in violent acts. In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act to protect these defendants from personal injury claims based on the criminal activity of others.
The law was relied on when a Connecticut court dismissed claims against the manufacturer of the assault weapon used in the Sandy Hook Elementary School killings. Complicit gun retailers and straw purchasers (individuals with clean background checks who buy and then immediately resell weapons) do not benefit from the law’s immunity.
According to the Pew Research Center, “[l]arge majorities in both [political] parties continue to favor preventing people with mental illnesses from buying guns, barring gun purchases by people on federal no-fly or watch lists, and background checks for private gun sales and sales at gun shows.” If the polling numbers are correct and Americans want fewer criminals and dangerous individuals to own guns, it is time to fund gun buyback programs and improve our background check system.
Voters cannot leave these life-and-death issues to lobbyists but can write, call and peacefully remind elected officials that they want reasonable laws enacted to help end gun violence.