by Sylvia Mendoza
When an active shooter entered the Michigan State University campus on February 13, 2023, killing three students and wounding five others, for some it would be the second mass shooting they survived. Several MSU students had also survived a shooting at a Michigan high school in November 2021, and one student had been a sixth grader at a nearby school when the shooting at Sandy Hook Elementary School occurred in 2012.
There is not a consensus on the definition of a mass shooting; however, the Gun Archive, a nonprofit research group formed in 2013 to track gun violence, defines it as a shooting where at least four people are killed or injured. Other definitions only count those killed, not injured, but also put the number at four. The Federal Bureau of Investigation (FBI) does not set a minimum number of fatalities in its definition, which is: “An event in which one or more individuals are actively engaged in killing or attempting to kill people in a populated area. Implicit in this definition is the shooter’s use of a firearm.”
Using its definition, the Gun Archive reports there were 648 mass shootings nationwide in 2022. As of the first six weeks of 2023, the group has logged 80 mass shootings.
Gun safety laws
After the mass shooting at Sandy Hook Elementary School, where 20 children and 7 adults were killed, 45 states enacted more than 350 gun safety laws. California leads the nation with over 100 gun safety laws on its books, followed closely by New Jersey, New York and Hawaii.
According to the Giffords Law Center to Prevent Gun Violence, a nonprofit organization that promotes gun safety legislation, states that have strong gun safety laws see less gun violence. Those laws, according to the Center, cover background checks, child and consumer safety, guns in public, gun sales, hardware and ammunition, owner responsibilities, as well as who can own a gun.
In determining whether a gun safety law is constitutional, the courts look to the Second Amendment to the U.S. Constitution which reads: “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.”
According to Dru Stevenson, a professor at South Texas College of Law Houston, whose current research focuses on firearm law and policy, the U.S. Supreme Court’s interpretation of the Second Amendment has changed. For many years, he says, the Court concluded the amendment referred to state militias.
“In the last 15 years, they decided it referred to an individual’s right to own and carry guns,” explains Professor Stevenson. “They could change their minds again in the future. And even if we disagree with whatever view the Supreme Court holds right now, the Court has the power to set the rules that all lower courts must follow.”
Decision on carrying concealed
In June 2022, in New York State Rifle and Pistol Association v. Bruen, the U.S. Supreme Court handed down a 6–3 decision that overturned the Sullivan Act (1911), a New York gun safety law that established restrictions on carrying a concealed firearm. The Court ruled that requiring a license to carry concealed weapons in public places is unconstitutional under the Second Amendment. Justice Clarence Thomas wrote for the majority, saying the Second Amendment “protects an individual’s right to carry a handgun for self-defense outside the home.”
Professor Stevenson explains that the case was brought by gun owners who challenged the constitutionality of New York’s gun permit system.
“The law was around 100 years old but had been revised and amended several times,” says Professor Stevenson. “The specific issue in this case was that New York’s system gave local police discretion to deny permits to anyone they suspected of being a criminal, or anyone who could not offer a good reason for needing a concealed carry permit.”
Justice Thomas wrote that the restrictions on who may carry a concealed weapon “prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”
Some aspects of New York’s permit system remain, including requiring a background check, restricting access if someone has a criminal record or mental health issues, and banning guns in certain places or situations. In his opinion, Justice Thomas indicated that gun safety laws restricting guns in “sensitive places” such as schools, courthouses or polling places would likely be deemed constitutional; however, expanding those categories is not likely.
“Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department,” Justice Thomas wrote.
In his dissent, former Justice Stephen G. Breyer referenced the mass shootings at an elementary school in Uvalde, TX and a supermarket in Buffalo, NY.
“New York’s legislature considered empirical evidence about gun violence and adopted a reasonable licensing law to regulate the concealed carriage of handguns in order to keep the people of New York safe,” Justice Breyer wrote.
A new test
Justice Breyer also criticized the new test outlined in the majority’s decision that lower courts will need to use when deciding Second Amendment cases, claiming it harms the state’s ability to regulate guns. Previously, courts followed a two-step test to determine whether a gun restriction was constitutional. First, a judge would determine if the restriction fit into a history of gun restrictions in the U.S. If an example could not be found, the second step would be to balance the need for a particular restriction against the right to bear arms. With the Bruen ruling, the second step was eliminated.
Justice Thomas wrote, “When the Second Amendment’s plain text covers an individual’s conduct [here the right to bear arms], the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
The decision did not offer much guidance on historical traditions but advised that courts should examine “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” So, what does this mean for future gun safety legislation?
“The simple answer is that nobody knows for sure what this means for legislatures moving forward,” Professor Stevenson says. “All the law professors who have commented on the Bruen decision so far in op-eds and academic article drafts have criticized it for leaving so much uncertainty and so many unanswered questions.”
In an op-ed for The Washington Post, Joseph Blocher and Darrell A. H. Miller, co-directors of the Duke Center for Firearms Law, wrote: “From now on, the constitutionality of firearms regulations, like prohibitions on guns on airplanes or in the hands of domestic abusers, will depend solely on whether they are, in some ill-defined sense, ‘analogous’ to a historical regulation, not whether they are effective in preventing serious harms.”
Lower courts are bound to follow the Court’s line of reasoning in considering challenges to other gun laws. Professor Stevenson notes that since the Bruen decision, there have been more than 100 cases across the nation in which lower courts have tried to apply the new Bruen test.
“Honestly, they are all over the place. For every court decision striking down a law, there seems to be another one in another state upholding the same law, Professor Stevenson says. “This is why Bruen is so controversial and has been very confusing for the lower courts to apply. Some judges so far are acting like Bruen changed everything, and some are acting like it changed very little.”
In the Garden State
In New Jersey, Governor Phil Murphy signed gun safety legislation less than three weeks before the Bruen decision was issued. The new law limited where and how an individual can carry a concealed handgun, not allowing them in several “sensitive places” including schools, courthouses, child care centers, nursing homes, polling places, government buildings, bars and restaurants where alcohol is served, airports, movie theaters and other entertainment centers, casinos, parks and beaches.
In January 2023, U.S. District Judge Renee Marie Bumb, a federal judge who sits in the District of New Jersey, granted a temporary restraining order from a coalition of gun owners. The order puts the law on hold while the case is pending in a Camden federal court. Judge Bumb did allow portions of the law to remain in place, including restrictions on carrying guns at playgrounds and youth sporting events. She cited “historic parallels” which complied with the Bruen decision.
Professor Stevenson says there are things states can do to improve enforcement of existing gun laws. For example, he suggests, “cracking down on gun dealers who are negligent about following laws, boosting the reporting of names to the FBI’s database of people prohibited from purchasing guns, and providing funding for violence intervention programs and local gun buyback campaigns in cities.”
On the national level, just two days after the Bruen decision was handed down, President Joseph Biden signed the Bipartisan Safer Communities Act into law—the first federal gun safety legislation enacted in 30 years. The federal law implements changes to the mental health system, school safety programs, as well as gun safety laws. The law allows for extended background checks for purchasers under 21, clarification of firearms license requirements and funding for crisis intervention programs.
Not just mass shootings
While mass shootings grab headlines, the reality is that gun violence happens every day. The Gun Archive reports that overall gun violence—not just mass shootings—killed 44,000 people in 2022.
The New Jersey Gun Violence Research Center at Rutgers University (NJGVRC) puts that number at closer to 45,000 gun-related deaths in the U.S. annually, with nearly 60% being suicides.
“Only one percent are mass shootings, but they are the most shocking and skew perceptions,” explains Mike Anestis, Ph.D, executive director of NJGVRC, as well as a professor at the Rutgers School of Public Health.
NJGVRC believes that by “better understanding gun-related violence and its predictors among various populations, we can develop better interventions to reduce various forms of gun-related death.” Dr. Anestis’ research is focused on understanding who is most at risk for firearm suicide, how factors such as firearm storage practices and firearm beliefs may influence risk, and how to diminish suicide risk among firearm owners, particularly military veterans.
In New Jersey, approximately 475 people die by guns annually, according to NJGVRC. Based on statistics from the Centers for Disease Control and Prevention (CDC), that puts New Jersey at the 3rd lowest in the country for the rate of gun deaths based on population (5.5 deaths per 100,000 people). For perspective, the state with the highest gun death rate, according to the CDC, is Alaska with 23 deaths per 100,000 people. Alaska has a population of more than 732,000, whereas New Jersey’s population is over nine million.
“In a post-Bruen world, we have to keep our finger on the pulse of gun-related violence and the fundamental risks,” Dr. Anestis says.
- What do you think of the U.S. Supreme Court’s new “historical test” for determining the constitutionality of gun safety laws and the confusion it has created? How would you clarify the test? Explain your answer.
- The article mentions several “sensitive places” where concealed guns would not be allowed. List three examples (whether from those mentioned in the article or come up with your own) and explain why it should or should not be designated as a sensitive area.
- Read the sidebar “Tracing Ghost Guns” below. Gun rights advocates believe the new rule regarding ghost guns is an “overly burdensome regulation,” and violates the Second Amendment, while a district court upheld its constitutionality. Which argument do you find more compelling? Explain your answer.
bipartisan — supported by two political parties.
empirical — based on verifiable observation or experience rather than theory.
legislation — laws made by a legislative body.
This article originally appeared in the spring 2023 issue of The Legal Eagle—Special Gun Safety Edition.
BONUS SIDEBAR: Tracing Ghost Guns
A ghost gun is a weapon that lacks a serial number by which it can be identified. Without a serial number it is difficult for law enforcement to trace a weapon when it is used in a crime.
Parts or kits for ghost guns are typically bought online and assembled by the user. Between 2016 and 2020, according to statistics from the U.S. Justice Department, nearly 45,000 “privately made firearms,” also called ghost guns, were recovered from crime scenes or during criminal investigations.
In April 2022, the Biden Administration announced a new rule regarding ghost guns. The rule requires commercial manufacturers of gun assembly kits, which are called “Buy, Build and Shoot” kits, to include serial numbers on the products. The rule clarifies that these kits qualify as firearms under the Gun Control Act.
“Until they are put together, they’re not considered guns,” Alex McCourt, a professor in the Department of Health Policy and Management at Johns Hopkins University’s Bloomberg School of Public Health told National Public Radio. “And so, anybody that is prohibited from purchasing a gun or possessing a gun can get one of these kits.”
Previously, because the kits were sold in parts, they were classified as components, not as a firearm. Because the items were not considered a gun, buyers were not subject to background checks. With no background check required, someone who would not be allowed to own a firearm—such as someone with a criminal history—could easily purchase an assembly kit.
Minors could also purchase these kits online. In November 2019, a 16-year-old bought a .45 caliber pistol assembly kit online and used the assembled weapon to shoot five of his classmates at Saugus High School in Santa Clarita, CA. The student killed two classmates and then turned the gun on himself.
Since they are now selling firearms, the new rule stipulates that gun kit manufacturers must be federally licensed and include serial numbers on the kit’s core components, like the frame or the receiver. Gun kit sellers must also become federally licensed and run background checks before selling a homemade gun kit. Sellers must also keep records of purchases for as long as they are in business. Everytown for Gun Safety, a gun control group that has tracked the growth of the gun kit industry, said there were 26 online gun retailers in 2014. In 2020, the number had jumped to 80.
Gun rights advocates claim the new rule is an unconstitutional overreach and violates the Second Amendment.
“Their argument is not valid,” says Louis Moffa, an adjunct law professor at Rutgers Law School in Camden and a Cherry Hill attorney. “There is nothing preventing gun ownership. It merely requires identification.”
Multiple court challenges to the Biden Administration’s new rule are pending; however, two judges—one in Texas and one in North Dakota—denied efforts to block the rule.
In an August 2022 ruling, a district judge for the District of North Dakota wrote that the Biden Administration acted within its authority and the rule “was and remains constitutional under the Second Amendment.”
After the North Dakota ruling was announced, a spokesperson for the Arizona Attorney General, who is spearheading the efforts of the 17 states that joined the North Dakota lawsuit and disagreed with the court’s ruling, said the office “will continue to defend the Second Amendment against overly burdensome regulations.”—Jodi L. Miller