Guns: Yes, Virginia, There Really is a Middle Ground

Katie R. Ochoa
boy with sign

Photo by Jason Leuing on Unsplash

Sometimes it seems the only thing those on the polar ends of our politics have in common is their assertion that the sky is falling.

Those who oppose any restrictions on firearms say the Bipartisan Safer Communities Act  signed by President Joe Biden in June amounts to the death knell for gun rights. Texas Senator John Cornyn was even jeered and censured by party activists for his leadership on the legislation.

Those on the other side are similarly irate, insisting that the U.S. Supreme Court’s Bruen decision, which determined that a New York state law requiring a license to carry concealed weapons in public places was unconstitutional, will turn our nation into a “wild, wild West.” 

Actually, if this legislation and the Court’s ruling were placed on a football field representing American public opinion, they would be much closer to the 50 yard-line than the end zones.

Although neither is without flaws, the legislation and decision are more modest and well-supported than their detractors suggest.

Notably, both still leave much room for states to tailor gun policies to their preferences. Already, New York lawmakers convened a special session seeking to cure the defects the Court found in Bruen. Gov.

Kathy Hochul then signed into law a bill that provides more detailed guidance on qualifications for receiving a license, enhances training requirements, specifies “sensitive” public places where gun permit holders cannot carry, and expands the state’s safe storage law.

Similarly, on July 5, New Jersey Gov. Phil Murphy signed seven bills restricting guns.

These states’ new regimes go far beyond what more conservative, and generally more rural, states are inclined to seriously consider.

The latest New York and New Jersey laws should be subject to rigorous evaluation to determine whether they are reducing gun violence and being equally enforced, while minimizing unintended consequences such as unduly delaying qualified individuals from obtaining firearms suitable for self-defense.

However, regardless of the merits of such policies, which are quintessentially a question for the public and policymakers in their respective states to assess, the fact that there is at least a plausible argument that they are within the contours of the Bruen ruling suggests that the decision leaves more room than its critics suggest for many flowers to bloom—reflecting the diverse landscape of public opinion in each state.

By the same token, the Bipartisan Safer Communities Act applies a light touch to gun regulations, allowing states to take a wide range of customized approaches. Indeed, there are several reasons why the Act and Bruen decision are neither incompatible with—nor out of the mainstream of—legal and policy thought.

First, the Bipartisan Safer Communities Act is a rational response to the nation’s ongoing wave of mass shootings, given that many have been committed by 18- to 21-year-olds and that, unlike those who engage in street gun violence, most perpetrators bought their guns legally.

Under this Act, an enhanced records check occurs when 18- to 21-year-olds seek to buy a gun, a review that includes viewing juvenile records and consulting with local law enforcement.

Juvenile records are typically kept confidential to protect individuals from facing barriers to employment, housing and other opportunities because of a youthful mistake. But this exception to that rule is narrowly drawn and supported by evidence.

Indeed, there are sound reasons to subject 18- to 21-year-olds to additional screening.  Some two-thirds of the deadliest mass shootings since 2018 were perpetrated by this age group. In addition, research has established that emerging adults’ mental capabilities in key areas such as impulse control are still developing.

Given that people cannot even drink until they are 21, it is hardly unreasonable to impose a more exacting requirement for those seeking to buy a product that can kill as many, if not more, people than an intoxicated driver.

The only other provision that has the potential to limit currently legal gun ownership is the incentive funding for states to enact red-flag laws, which recognizes the primary role of state policymakers to tailor gun laws.

The RAND Corporation found some evidence that such laws reduced suicides in Colorado and Indiana, but said more research is needed to determine the overall effect of such laws on gun violence given the methodological challenges of establishing a counterfactual – that is, whether someone whose gun was taken away would have used it to commit violence against themselves or others.

States can and should ensure such statutes provide extensive due process protections. But it is paradoxical to reflexively oppose red-flag laws when, in all 50 states, there is no vocal opposition to laws that allow a person who is seriously mentally ill to be civilly committed to a residential treatment facility, a far greater deprivation of liberty than temporarily losing access to firearms.

As even Sen. Chris Murphy (D-CT) has acknowledged, however, the federal government lacks the general police power constitutionally reserved to the states to administer such laws.

Under the Act, states that opt against adopting such laws can use the incentive funding for crisis intervention measures such as drug, veterans and mental health courts. The best evidence suggests that one-third of mass shootings are committed by people with mental illness, and in some of these incidents the perpetrator’s mental illness may be accompanied by other factors such as racial or religious bigotry.

While the vast majority of people with mental illness are not dangerous, this is not an insignificant number. Moreover, enhancing access to treatment both inside and outside of the justice system offers many benefits unrelated to mass shootings or gun violence more broadly.

The most substantial criticisms of the Act are not that it unduly undermines gun rights, but that its $13-billion price tag is excessive and that the offsets designed to pay for it will not materialize.

As with every major federal initiative, it is reasonable to question whether there will be sufficient oversight and evaluation to ensure funds are wisely and transparently used. Nonetheless, the Act puts resources into many of the right places.

Two examples are new grant funding for school safety and mental health initiatives and community violence intervention programs that have a promising track record.

Bruen Criticisms Overblown

When it comes to the Bruen decision, the criticisms are likewise overblown.

It precludes neither most gun regulations that are now in place nor most that would have sufficient support to pass in state capitols and Congress. The case stems from New York’s law that required a judge to find that the applicant had “proper cause” to possess a gun for the purpose of using it for self-defense outside the home.

In practice, this meant that applicants had to demonstrate they had a particularized need, such as being in an occupation related to public safety or being more likely than the average citizen to be the target of an attack.

In the Bruen case, the plaintiffs were denied when they asked the judge for permission to not just use their gun outside their home for hunting and camping, but also for self-defense.

New York’s permitting regime differed significantly from the licensing requirements for concealed weapons in 43 other states, which focus on objective factors, and that made it particularly vulnerable.

Specifically, it went beyond disqualifications based on factors such as a prior violent crime conviction and empowered judges to assess applicants’ profiles and intentions to determine whether they had sufficiently good reasons and character to receive a gun permit for self-defense outside the home.

Naturally, this sort of assessment could vary from one judge, and in his majority opinion, Justice Clarence Thomas rightly argued that few would endorse such a subjective process of obtaining permission before other rights can be exercised. Indeed, there is an instructive analogy to the First Amendment.

While parade permitting regimes are not uncommon, a jurisdiction could not deny permits simply because it disagrees with the purpose of certain parades. Similarly, it could not require a parade applicant to demonstrate a need exceeding that of the average person or group to express their views.

The virtually untrammeled discretion in New York’s gun law led to the strange bedfellows moment of three public defenders groups filing an amicus brief in support of the plaintiffs in Bruen.

Moreover, too little attention has been paid to the pivotal concurring opinion authored by Justice Brett Kavanaugh and joined by Chief Justice John Roberts.

It states:

New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.

Such wide discretion, including requiring a showing of “good moral character,” should similarly trouble those on the left, as it historically has led to an abridgment of the rights of minorities and members of groups who are politically unpopular.

In fact, the public defenders’ amicus brief states that, for the last 13 years, black and Hispanic residents accounted for at least 90 percent of arrests in New York City for unlicensed guns.

This concurrence also drew upon a passage by Justice Antonin Scalia in the Heller decision amplifying the majority opinion’s acknowledgement that the Second Amendment is not absolute, but rather allows a “variety” of gun regulations.

Of particular interest, given the majority opinion’s focus on history is the point made in the concurrence that the Second Amendment covered weapons in common use at the time of the founding and that, therefore, “unusual and dangerous” weapons could be prohibited.

Machine guns were not even invented until 1884, and recent mass shootings have laid bare the tragic and rapid devastation that can be caused by weapons that were unimaginable at the time of our founding.

The majority opinion in Bruen does place great weight on whether a gun regulation is consistent with history and tradition, particularly at the time of the American founding and perhaps also when the Bill of Rights was incorporated against the states after the Civil War, but this is not at odds with the Court’s jurisprudence on free speech.

In this area, the Court has similarly held the First Amendment, despite its sweeping plain text that lacks any express qualifications, does not preclude regulation and even prohibition of obscenity and child pornography.

Indeed, in the 1957 case U.S. v. Ross, the Supreme Court applied a historical analysis in holding that the framers could not have intended the First Amendment to be absolute given that 13 of 14 states at the time of the Constitution’s ratification criminalized profanity or blasphemy, or both, as well as allowing for recourse against libel.

To be sure, the framework offered by Justice Thomas that focuses primarily on whether current limits have sufficient parallels in early American history is not without its challenges, even if it is not clear how else to avoid every judge deciding by their own contemporary lights what constitutes a reasonable limitation.

One key question in applying this historical inquiry in future cases will be how to treat regulations that rely on technology that was not available more than two centuries ago, such as those requiring tracking of ammunition so it can be linked to the gun which are part of New Jersey’s new package.

Therefore, it is difficult to draw any conclusions from the lack of such policies around the time of the founding, but the majority opinion can be most logically read as not threatening such regulations.

This is because, unlike New York’s may-issue permitting regime, they do not prevent someone from owning a gun or using it for self-defense, and they do not rely on subjective criteria to distinguish among individuals seeking to exercise this right.

While the debate between originalism and a “living Constitution” approach is a longstanding one, some critics of the Bruen decision are really critics of the Second Amendment and even constitutionalism.

It is true that on both scores there are other models in many developed countries. Some, such as Australia, have virtually outlawed all guns, and others like the United Kingdom do not even have a Constitution, let alone a right to bear arms enshrined in it.

Constitutions are, by design, a check on majoritarianism, or as detractors would say, rule of the living by the dead. It’s intellectually stimulating, albeit disconnected from reality, to engage in academic discussions about whether the Constitution should have been written differently or should be amended, which is nearly impossible on any subject.

However, it is disingenuous to lionize the Court when it rejects subjective regimes for regulating political speech at the heart of the First Amendment, and then villainize the same body for giving meaning to the plain text and history of the Second Amendment.

Still, Americans need not be made to worry that the Court has construed either as absolute or is poised to do so. After all, if rights were absolute, judges themselves would become superfluous once it was determined a policy regulated the subject matter of that right.

It is not just the often-vitriolic tenor of our politics that turns many Americans off, but the incessant exaggeration by both sides of the consequences when they don’t get their way.

Neither the Bipartisan Safer Communities Act nor the Bruen decision, when properly understood, is far off target from the mainstream. Indeed, both can be reconciled with public opinion, as most Americans both support the Second Amendment as an individual right and back reasonable limitations on it.

While litigation will continue to define the exact scope of Bruen, we need more data to distinguish between those regulations potentially reconcilable with Bruen that are effective in reducing gun violence and others that may be constitutional and well-intentioned but ineffectual.

Among those policies that have been evaluated, research is mixed, with evidence suggesting gun buybacks are ineffective at lowering gun violence while laws restricting children’s access to guns produce statistically significant reductions.

Yet research is still catching up to the scope of the problem, as many policy alternatives remain largely unexamined by empirical studies.

Marc Levin

Marc Levin. Photo by Andrea Cikpriano/TCR

One reason for this is that it was not until 2018 when a damaging federal prohibition on funding gun safety research was partly repealed. Fortunately, private sector leaders in the field, such as Arnold Ventures, are filling the gap by funding rigorous evaluations of policy alternatives.

A Chinese proverb instructs us that is better to light a candle than curse the darkness.

Instead of being consumed by the despair at the polar ends of the spectrum over either the Bipartisan Safer Communities Act or the Bruen decision, let’s deploy our intellectual ammunition to continue finding solutions to gun violence that lie in the middle of the street where most Americans live,  and where the Second Amendment and public safety must coexist.

Marc Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice and can be reached at [email protected] and on Twitter at @marcalevin.

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