“Screaming Into The Void”: Why Gun Control Is So Hard To Enact

Washington appears to be settling around background checks as the response to the latest massacres in Texas and Ohio despite the fact that such background checks would not have stopped most of the past mass shootings. What politicians will not admit to the public is that there is a very limited range of actions that Congress can take in curtailing an individual constitutional right.

Here is the column:

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.

426 thoughts on ““Screaming Into The Void”: Why Gun Control Is So Hard To Enact”

  1. It took me an hour to find the paragraph in Fahrenheit 451 that sums up our current situation:

    “Coloured people don’t like Little Black Sambo. Burn it. White people don’t feel good about Uncle Tom’s Cabin. Burn it. Someone’s written a book on tobacco and cancer of the lungs? The cigarette people are weeping? Burn the book. Serenity, Montag. Peace, Montag. Take your fight outside. Better yet, into the incinerator. Funerals are unhappy and pagan? Eliminate them, too. Five minutes after a person is dead he’s on his way to the Big Flue, the Incinerators serviced by helicopters all over the country. Ten minutes after death a man’s a speck of black dust. Let’s not quibble over individuals with memoriams. Forget them. Burn them all, burn everything. Fire is bright and fire is clean.”
    ― Ray Bradbury, Fahrenheit 451

    Not just our nation, but all of what pleases itself to be called “Western Civilization” frantically demands to be cosseted away from dissent. Communism died (mostly) in Europe, and we thought we’d killed authoritarianism as well, but while they stirred the cauldron of evil together, they were separate enemies. Fascism and Communism are largely dead, but that barking mad voice that demands no one ever be offended is the third weird sister at the cauldron. She can enslave men to mediocrity and bind them helpless when worse evils than her appear at the gates.

  2. “I’m afraid of children my own age. They kill each other. Did it always use to be that way? My uncle says no. Six of my friends have been shot in the last year alone. Ten of them died in car wrecks. I’m afraid of them and they don’t like me because I’m afraid. My uncle says his grandfather remembered when children didn’t kill each other. But that was a long time ago when they had things different.”
    ― Ray Bradbury, Fahrenheit 451

  3. Gin control laws don’t control guns they control people. When that control limits the right to defend yourself, it’s tyranny pure and simple. The founders understood that guns — even ones exactly like the standing army possesses — is a fundamental check on government intrusion into our lives. Eroding those rights makes the populace vulnerable and the gun grabbers from Hitler to Mao knewit as a precursor to turning a free people into a subservient herd.

  4. OT: From Judicial watch taken from the 302’s
    ———–

    On November 22, 2016, Bruce Ohr said that “reporting on Trump’s ties to Russia were going to the Clinton Campaign, Jon Winer at the U.S. State Department and the FBI.”
    In late September 2016, Ohr describes a person (likely Christopher Steele) as “desperate that Donald Trump not get elected and was passionate about him not being the U.S. President.”

    “Ohr knew that [Fusion GPS’s] Glen Simpson and others were talking to Victoria Nuland at the U.S. State Department.”
    Glenn Simpson directed a person whose is redacted to speak to the press. It appears as if the press that person went to was the far left leaning Mother Jones.
    On December 5, 2016, Ohr promised to “voluntarily” give his wife Nellie Ohr’s Fusion GPS research to the FBI. He also provided the FBI with a report on Paul Manafort titled, “Manafort Chronology.”
    On December 12, 2016 Simpson gave Ohr a thumb drive with Fusion GPS research on it. Ohr claims to not know what is on that drive. During the meeting Simpson, based evidently on a meeting with Glenn Simpson, identified Michael Cohen, President Trump’s former personal lawyer as having “many Russian clients.” Simpson also told Ohr that Cohen, “may have” attended a meeting in Prague.
    Ohr describes Simpson directing someone to talk to the Mother Jones reporter “as it was Simpson’s Hail Mary attempt.”
    On December 20, 2016, Ohr provided the FBI with his wife’s Nellie Ohr’s Fusion GPS research, “which contained the totality” of her work “but the Fusion GPS header was stripped.”
    On January 23, 2017, Ohr tells the FBI that Steele told him that Steele “spoke with a staff member of Senator John McCain’s office sometime prior to October 2016.”
    The FBI interviews show that Ohr texted and talked to Christopher Steele using the WhatsApp application.
    On February 2, 2017, the FBI tells Ohr to see if Steele would be “comfortable getting the name of an FBI agent” as a contact. Ohr tells the agents that State Department official Kathleen Kavalec spoke with “Steele several times prior to the U.S. Presidential election and believed Steele’s reporting to have [been] generated mainly from [REDACTED].
    On February 14, 2017, Ohr tells the FBI that Steele communicated with him via Facetime that Steele was “beginning to worry about his business.” Steele discussed brokering new business with the FBI and told Ohr, “You may see me re-emerge in a couple of weeks.”
    On May 3, 2017, Steele called Ohr to tell him that he “had been worried about Director Comey’s upcoming testimony to Congress, especially his response to questions that would be raised by (Senator) Grassley.” Although what he was specifically worried about is redacted, Steele was “happy with Director Comey’s response.”
    Steele also stated that he was limited in “his ability to testify before Congress” because of disclosure laws in the UK being more narrow than the United States.
    On May 12, 2017, Steele called Ohr to discuss a letter the Senate Intelligence Committee sent him. According to Ohr, “The letter requested answers to the following questions:

    302’s at: https://www.judicialwatch.org/wp-content/uploads/2019/08/JW-v-DOJ-Ohr-302s-02107-1.pdf

  5. “People say he only smiles when he sees me.” – Trump speaking about Kim Jong Un.

    Hey @realDonaldTrump, under your watch:

    North Korea has NOT:

    -Eliminated any nuclear weapons
    -Eliminated any missiles

    North Korea HAS:

    -Increased nuclear fuel
    -Built 12 more nuclear weapons according to US intel agencies

    Why wouldn’t Kim Jong Un smile when he sees you?

    https://twitter.com/tedlieu

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