Below is my column in the Hill Newspaper on the proposals for new gun control measures in the wake of the Las Vegas massacre. As I discuss below, there are some obvious possible measures that could pass constitutional muster like banning bump stocks (which allow semi-automatic weapons to perform more like automatic weapons) and conversion kits. However, these proposals would not have prevented the massacre. There are many “work arounds” for semi-automatic weapons and Paddock would have likely passed any enhanced background checks. Nevertheless, GOP members have expressed interest in some additional gun control measures.
Here is the column:
It is human nature to try to make sense out of even the most senseless acts of violence. That is certainly the case with the Las Vegas shooting spree. In the wake of the massacre, politicians rushed forward to give meaning to the tragedy, other than the raging madness of Stephen Paddock. Various reforms have been proposed, from new licensing laws to limiting the number of guns a person can own, to banning military-style weapons or silencers or high-capacity ammunition clips. There are some changes worth considering, but Congress will need to show they are more than simply sensible or rational. The strict scrutiny test customarily applied to an individual right demands more than blaming the gun or the gun lobby as opposed to the gun man.
In District of Columbia v. Heller, the Supreme Court in 2008 ruled the right to bear arms is an individual right. Two years later, in McDonald v. City of Chicago, the court ruled that this right applied against the states. Since then, courts have rejected efforts to limit aspects of gun ownership from barring concealed weapons to restricting ammunition. Last July, in Wrenn v. District of Columbia, the D.C. Circuit struck down a requirement that gun owners show “good reason” for a concealed carry permit as unconstitutional.
When legislating within a constitutional framework, Congress must meet a higher standard in the curtailment of an individual right, usually a showing of a narrowly tailored law advancing a compelling state interest. The Supreme Court stated in Heller, “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”
Some of the proposals seem still based on pre-Heller rational basis logic. For example, Hillary Clinton oddly responded to the attack with a tweets denouncing the NRA and raising the issue of silencers, which appear the only thing not found in Paddock’s arsenal of weapons, ammunition and explosives. After first telling people to “put politics aside,” Clinton denounced the gun lobby and observed that the “crowd fled at the sound of gunshots. Imagine the deaths if the shooter had a silencer, which the NRA wants to make easier to get.”
It is not hard to imagine the use of a silencer but it is hard to imagine a different outcome in Las Vegas. The gun may be silent, but the victims are not. While a person may not actually hear or recognize the gunshots, that person would certainly see dozens of people being hit and a crowd stampeding. It is ridiculous to think that Paddock could shoot a dozen people with a silencer, but people take little notice of the falling bodies or stampeding people around them.
Other proposals are constitutionally problematic like banning weapons like the AR-15 used by Paddock. Beyond its military look, the distinction between the AR-15 and hunting rifles can be difficult to discern. “AR” does not stand for either “assault rifle” or “automatic rifle.” It stands for Armalite, the company that manufactures the rifles. It is used in hunting as well as shooting competitions. It is popular because it is modular and allows for different grips and barrels. More importantly, it has a lower caliber than hunting rifles like the 30-06 Springfield. Those types of comparisons make weapons bans more difficult under a heightened or strict scrutiny standard.
However, timing can be everything. The Supreme Court currently has a petition pending in one of the few successful cases involving a ban on assault rifles. The case, Kolbe v. Hogan, involves Maryland’s 2013 ban on assault weapons and large-capacity ammunition magazines, which was upheld in a 10-4 decision by the Fourth Circuit in Richmond, Virginia. Twenty-one states have joined gun owners in asking the Supreme Court to reverse the Fourth Circuit and rule the ban as unconstitutional.
Cases like Kolbe could help define the outer limits of gun ownership after Heller. The Court recognized that the Second Amendment right is not absolute, any more than free speech or other rights in the Bill of Rights. One such limitation that predated Heller is the ban on that ownership of fully automatic weapons sold after 1986. Such machine guns are unlawful absent special licensing (though hundreds of thousands were “grandfathered” in by the law and can still be owned and sold in the United States). It is also illegal to convert a semi-automatic weapon into an automatic weapon.
While limiting the number of guns is dubious under constitutional analysis, some background checks could pass constitutional muster. Challengers would likely point out that Paddock passed background conditions and would likely have satisfied any additional requirements. Nevertheless, polls show overwhelming support for background checks, including some showing support at over 90 percent. There are some loopholes or “workarounds” that could be addressed. For example, it remains legal to sell conversion kits to turn a semi-automatic into an automatic weapon.
Congress could easily close that loophole by limiting such kits to only approved and licensed owners. Congress could also address “bump stocks,” a device that Paddock reportedly used to allow at least one semi-automatic weapon to function like an automatic weapon. Since it does not actually convert the weapon, it is considered legal. Once again, however, even without a bump stock Paddock could have maintained nearly the same rate of fire with rapid trigger pulls for that critical nine minutes.
While Congress does not have to show that a new law would have changed the outcome in Las Vegas, it does have to show that limiting an individual right under the Bill of Rights is more than simply a rational response to an irrational act of violence.