At a vigil for the latest victims of a mass shooting, Ohio Governor Mike DeWine, a Republican and a supporter of gun rights, was offering his condolences when the crowd began to chant, “Do something!” It is a desperate mantra being repeated across the country. Do something, anything, to end our continual cycle of boom and bust. Mass shootings are followed by scenes of sorrowful politicians, which are then followed by minimal actions. Worse yet, politicians routinely propose reforms they know will not pass constitutional review, creating the appearance of “doing something” when, in reality, they do little beyond giving cover.
This latest bloodshed has politicians once again pledging action. Many of these politicians opposed the decision of the Supreme Court in 2008 in District of Columbia versus Dick Anthony Heller, establishing that the right to bear arms is an individual right under the Second Amendment. The court has repeatedly reaffirmed that landmark decision. In 2010, the court ruled that this constitutional right applied to the states as it does to the federal government since it is one of those “fundamental rights necessary to our system of ordered liberty.” Just two years ago, the Supreme Court reversed a lower court decision and held that this right is not confined to firearms “in existence at the time of the founding” but to “all instruments that constitute bearable arms” including, in that specific case, stun guns.
Despite these and other rulings by the federal courts, politicians still act as if they are still operating before Heller in which any rational gun control is presumptively constitutional. The legal results are predictable. New York City mayor and Democratic candidate Bill De Blasio complained in the aftermath of the recent shootings, “It feels like we are screaming into a void.” It feels that way because we are, and that void is a space that no longer exists for many measures after Heller. As an individual right, there is a higher showing required from both state and federal governments, a standard that is unlikely to be met in many proposed gun regulations.
For example, many politicians are pledging again to remove all “assault style weapons” such as the AR-15. However, such limits must meet a standard that requires a narrowly tailored law advancing a compelling state interest. While a ban on AR-15s sounds compelling, it breaks down under closer review. The AR-15 and other weapons in its class use an intermediate cartridge that actually is less powerful than that used in a rifle. These weapons are often twice as powerful as a handgun but not nearly as powerful as a rifle. Moreover, guns like the AR-15 are popular because they are modular and allow for different grips and barrels.
A law cannot ban the look of a rifle. It must focus on the inherent power of the weapon, which may prove less compelling for some justices. Such a ban would have to pass muster with Neil Gorsuch and Brett Kavanaugh, the newest members of the Supreme Court. Both justices are viewed as supporting gun rights under Heller, and Kavanaugh wrote a dissent in a 2011 case saying that an assault weapons ban would be unconstitutional.
The road ahead may therefore prove more difficult for gun control. A federal judge in San Diego shot down the California law banning high capacity ammunition magazines with more than 10 rounds. While the ruling could now be reversed by the Ninth Circuit Court of Appeals, the decision repeatedly hit on what the court felt was an arbitrary ban given the common use of such magazines. The court noted that the Glock pistol “is designed for, and typically sold with, a 17 round magazine,” as is true of a wide assortment of other such popular weapons. Moreover, banning high capacity magazines will not likely have a transformative effect. It is relatively easy and fast to swap out magazines on a weapon. This and other such cases are currently working their way to the Supreme Court.
The Supreme Court is already poised to rule in a critical gun rights case, a decision that will come a decade after its last major decision in the area, with New York State Rifle and Pistol Association versus City of New York. This will once again test the mettle of the Second Amendment right and could result in a substantial blow to an array of laws passed across the country in the wake of Heller. Gun control advocates have adopted a strategy long used by pro-life advocates. Rather than seeking a direct challenge to the right to bear arms, they advocate laws limiting the right on the edges, chipping away at the scope of the Second Amendment.
The New York case is an example of this “death by a thousand paper cuts” approach. Not to be outdone by the already restrictive gun laws in the state legislature, the New York City Council passed a law that not only required most owners to keep their guns unloaded and locked away at home but curtailed their ability to take their guns outside of their homes. It banned gun owners from transporting guns except to one of the seven city shooting ranges, preventing owners from taking their guns outside of city limits, even to second homes. The law is simple harassment, but two lower courts upheld it. It is scheduled to go before the Supreme Court.
An appeal from gun manufacturer Remington is also pending before the Supreme Court. The company seeks to overturn a decision that supports the right of families of victims in the Sandy Hook massacre to sue gun manufacturers. However, Congress passed the Protection of Lawful Commerce in Arms Act of 2015, giving gun manufacturers immunity from most lawsuits. I opposed this law as unnecessary and unwise. Courts had already ruled against product liability and nuisance challenges to gun manufacturers without giving the industry immunity, yet Congress still passed the law under pressure from the National Rifle Association.
In response, various states have sought to develop exceptions to the blanket immunity. In the case pending before the Supreme Court, the Connecticut high court declared that people could sue the manufacturer of the assault rifle used by the killer under a state law on advertising. The plaintiffs relied on the company slogan, “Forces of opposition, bow down. You are single handedly outnumbered.” That would seem a particularly weak claim even without immunity. While it is a bit chilling, the company slogan is not an invitation to mow down children. As a result, this could prove a bad case creating even worse law for gun control advocates.
The latest suggestion is the red flag law to allow the police to remove weapons from individuals who are viewed as unstable or dangerous. These laws could prove more successful. But the challenge to some of these “red flags” may come down not to the Second Amendment but to the due process clause because of the lack of protections for gun owners seeking to challenge such seizures of their property. Moreover, while red flag laws could deter some violence, they would not necessarily have prevented many of the recent massacres by shooters who did not show such red flags. The shooter in Dayton had plenty of flags including “rape lists” for students at his high school. Conversely, the suspect in the El Paso shooting had few red flags and was described as a “loner” during college.
The point is not to abandon efforts to seek reforms. I have long supported gun controls. However, we can either work with legal realities in crafting such reforms or simply “scream into the void” of our constitutional law.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.