The recent spate of mass shootings has once again started discussions concerning the proper limits of gun ownership. This concern, in combination with the election of President Biden and a pandemic-linked production backlog has made it all but impossible to buy guns and ammunition. Over the next year sporting goods shelves will be restocked, but it is unlikely American’s mixed relationship with gun possession will be solved.
People generally understand the Supreme Court and the Second Amendment of the Constitution provide the sideboards for the gun ownership discussion. This 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.” In 2008, the Supreme Court posted a decision relative to the District of Columbia v. Heller. This case was based on a police officer who carried a gun at work but the District of Columbia denied Mr. Heller a permit to keep a gun at home. The decision was 5-4 with the majority opinion authored by Justice Antonin Scalia who found this DC law unconstitutional. This finding and a more expansive decision in 2010 (MacDonald v. Chicago), reinforced the Constitutional right of individuals to own and keep guns at home for self-protection.
In his opinion, Justice Scalia argued many historic constitutions protected the individual’s right to own guns. For example, Pennsylvania’s 1776 declaration of rights stated; “That the people have a right to bear arms for the defence of themselves and the state.” Justice John Paul Stevens penned the minority decision that disagreed with this interpretation and stated that Scalia’s judgment was “a strained and unpersuasive reading” that would “bestowed a dramatic upheaval in the law.” Such an upheaval has been slow in coming even as the court in its current configuration is likely even more supportive of gun ownership rights.
In this and other decisions, however, the Court has stated the privileges of the Second Amendment are not unlimited. In the past the Supreme Court has upheld concealed weapons prohibitions, keeping guns out of the hands of felons and the mentally ill, allowing the federal government to outlaw certain types of weapon (e.g., machine guns) and not allowing gun possession in sensitive places like schools and government buildings. It is almost a certainty in the next several years that the Supreme Court will take up cases that better define how states can limit gun ownership.
These cases will come from liberal states such as New York and Hawaii so will have little effect on what gun owners can do in Idaho and Utah. In Idaho, most people over 18 years of age can carry a concealed weapon in most locations without a permit. Starting May 5, Utahans will no longer need a permit to carry a concealed weapon in most places if you are at least 21 years old and can lawfully possess a firearm.
It is important to note that nearly six out of seven registered voters support background checks before purchasing a gun. While I support these checks, they are unlikely to affect mass killings. Most perpetrators of these acts use guns that were legally purchased.
In contrast, red flag laws allow police or family members to petition the court to remove firearms from troubled individuals. Done properly this might not only reduce mass killings but suicides as well. A recent shooter at a FedEx facility had been identified under such a law and shouldn’t have been able to possess a gun.
For red flag laws to work, however, the government must be able to track the outcomes of these decisions and use this information to improve future decisions. This became more likely in late 2019, when Congress finally passed a law that provided federal support for this type of research. Given the ability to use analytics on everything from football to trends in COVID cases, we should be able to gather the types of information necessary to improve gun safety decisions. That said, any red flag law also needs a strong mechanism to insure due process for gun owners in the courts.
I hope the stress of this bizarre year explains part of the increase in mass shootings. All rights come with responsibilities. An effort to reduce gun violence across the nation is one of those responsibilities. Some may see this as a slippery slope toward the loss of gun ownership but the conservative nature of the existing Supreme Court should ensure this concern is at least a decade or two away.