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Does the 2nd Amendment prevent meaningful gun-reform legislation?

July 5, 2018

ASU law professor says mass shootings are for legislatures, not Supreme Court, to solve

Editor's note: This is part of a series investigating gun violence from many angles.

The right to keep and bear arms dates back to America's Revolutionary War, but millions of Americans are saying it's time for a change. Activists have been calling for radical gun reform after a rash of recent high-profile mass shootings and are charging that it has become a public safety issue. While their voices have gotten plenty of national media attention, they still might be fighting an uphill battle. 

In 2008, in a case called District of Columbia v. Heller, the U.S. Supreme Court held, for the first time, that the Constitution’s Second Amendment recognizes an individual right to bear arms that is not tied to service in the military or a state militia. Those who oppose calls for new regulations on the sale or possession of guns often cite this Second Amendment right as a justification and/or reason for their opposition.  

Does the Second Amendment really stand in the way of meaningful gun regulation in the United States? The answer has not been forthcoming from the Supreme Court, which hasn’t heard a Second Amendment case in almost a decade. ASU Now turned to Paul Bender, a professor of law, constitutional law expert and dean emeritus of the Sandra Day O'Connor College of Law, to find out what it would take to enact major gun reform.

Man in glasses and tie smiling
Paul Bender

Question: The Supreme Court has refused to hear any Second Amendment cases since 2008 and 2010, much less comment on why. Do you believe there is a reluctance on their part to hear cases in light of the mass shootings in recent years?

Answer: It’s important to recognize that the Heller case, which is the case that held that the Second Amendment recognizes the individual right of people to possess guns, is a very narrow decision. It holds unconstitutional the District of Columbia’s total ban on the possession of handguns. The court based that decision on its conclusion that the right that the Second Amendment recognizes is a right to possess weapons in order to protect oneself in one's home. Since handguns are the weapon most commonly used for home self-defense, it followed that a total ban on handguns was a violation of the amendment.   

The Heller opinion, however, makes clear that the Second Amendment right is, like most constitutional rights, not an absolute right, but a right subject to reasonable regulations necessary to protect the health and safety of the community. Thus, while the court held in Heller that a total ban on handguns is unconstitutional, it said that the Constitution nevertheless permits a broad range of reasonable regulations of guns. The court specifically listed examples of these permissible reasonable regulations, including bans on concealed carry of guns, bans on possession of guns in public places like parks and public buildings, bans on possession of guns by convicted felons, minors and people with mental problems, regulations of gun sales, and bans on weapons not typically possessed by law-abiding citizens for self-defense. Under Heller, the only gun regulations that raise significant constitutional problems are regulations that go significantly beyond the numerous categories of gun regulations that Heller recognizes as being constitutional under the Second Amendment.    

I think that the main reason why the Supreme Court has not taken cases since Heller is that the court has not been presented with a case involving a gun regulation that goes beyond the kinds of regulations that Heller recognizes as being consistent with the Second Amendment. The gun cases that the Supreme Court has been asked to review are, so far as I know, cases involving regulations that are pretty clearly constitutional under Heller. There is no reason for the court to take such cases, unless it wants to overrule what it said in Heller about there being a broad range of constitutional gun regulations. It is very unlikely that most jurisdictions would enact such regulations today. For example, can you imagine either Congress or the Arizona Legislature enacting a restriction on guns that would, in fact, prevent people from possessing handguns or similar weapons at home for self-defense use?    

The important thing to keep in mind is that Heller establishes a very narrow constitutional right to possess weapons for self-protection, not a broad right to own or possess guns for any purpose. Mass shootings therefore raise problems for legislatures, not the Supreme Court, to solve. Although it would be constitutional for a legislature to do so, the court can't itself impose an assault-weapons ban, or regulate gun sales at gun shows. Meaningful gun regulation today is primarily a political issue for Congress and the state legislatures, not a constitutional issue for the Supreme Court.    

Q: Does the fact that the Supreme Court is slightly conservative play a role?

A: The court is much more than slightly conservative. It is probably the most conservative court we have had since the end of World War II. A more liberal court would not have decided Heller as the court did — Heller was a 5-to-4 decision. The right to bear arms would therefore have remained a right related to service in the military or in a militia. A more conservative court might, in the future, take cases in order to expand the limited right that Heller recognizes. The court has so far not been inclined to do that. An additional (President Donald) Trump appointment to the court might very well change that situation.     

Q: What will it take to get the Supreme Court to hear a Second Amendment case?

A: It would take Congress, or a state or local legislature, deciding to enact a gun regulation that places significant obstacles in the way of possessing traditional self-defense weapons at home — or perhaps in some public places — or a desire, by a majority the court, significantly to broaden the right recognized in Heller.  

Q: What do you feel are the major obstacles in gun control?

A: The major obstacle today is that legislatures today are unlikely to pass legislation significantly interfering with the narrow right that Heller establishes. Heller does not establish a broad right of Americans to bear arms. It establishes a right to possess weapons for self-defense that are broadly recognized in the community as appropriate self-defense weapons. And even that narrow right is subject to a broad range of reasonable regulations.

Top photo courtesy of Pixabay

Reporter , ASU Now

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Addressing our knowledge gaps about firearm injuries and deaths

July 5, 2018

ASU participating in National Institutes of Health study on gun violence and homicide

Editor's note: This is part of a series investigating gun violence from many angles.

Sometimes, it's hard to admit that we don't have all the answers, especially when it comes to gun violence.

Which is where research comes in.

Jesenia Pizarro is an associate professor in ASU’s School of Criminology and Criminal Justice. She studies homicide and is one of 20 researchers from a dozen universities and health-care organizations taking part in an interdisciplinary study on firearm injuries and deaths of children and teens. The $5 million project is funded by the National Institutes of Health. 

ASU Now spoke with Pizarro to learn more about what questions the study hopes to answer.

Question: Why do people kill each other? 

Answer: Because there are so many types of homicides, with multiple types of motives, there are multiple reasons for why they occur. A drug homicide will be different from an intimate-partner homicide, which will be different from someone killing their child. One of the things we do know is that if we want to understand why these crimes occur, we have to get to the bottom of the events or crimes that lead to a homicide. And that will be different depending on each situation. Without understanding that, we can’t effectively try to prevent future occurrences. 

Q: Are there any circumstances that tend to lead to more homicides? 

A: Yes, situationally, there are things that increase the risk of a homicide taking place, and this is different from someone’s motive. A motive might be that a husband wants to kill his wife. But situationally, we know that crime facilitators such as alcohol, drugs and the availability of firearms increase the risk of a homicide taking place. If you have a firearm, you are more likely to use it. Of all the traditional types of weapons you can use, firearms are the most lethal. So, the availability of a firearm increases the odds of a homicide incident occurring. 

Q: Has there been enough research on firearm violence to fully understand the problem? 

A: No. There has not been a lot of research funding for the study of firearm violence, and this has been mostly for political reasons. The National Institutes of Health (NIH) grant that is funding our study is the largest NIH funding commitment in the past 20 years. It is meant to support research into understanding the knowledge gaps in firearm violence research, informing a research agenda, and identifying best practices in the reduction of firearm violence among children and youths. 

Q: Why is it important to do this kind of research? 

A: There is a lot of rhetoric around gun violence. But researchers have not been able to put together a background of objective research that can outline factors that increase incidents of gun violence in recent years. Research is important because you need to understand exactly what you’re tackling before you give a response.

For example, let’s say we want to decrease homicides, and one hypothetical policy proposal might be to focus on open-air drug markets. Well, not all homicides are caused by open-air drug markets, so you may be putting money into an aspect of the problem that may not benefit the entire scope of the problem. That path wouldn’t help mothers who are mentally ill who kill their infant children, or victims of intimate-partner homicides.

To put it in everyday terms, let’s say your car does not start tomorrow. You just don’t blindly put a new battery in. You take it to the auto shop to be checked in order to identify why the car did not start, and then fix the specific problem. That is what we are trying to do with this line of research. 

Leslie Minton

Media Relations Manager , Media Relations and Strategic Communications

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