A Creative Solution to the Stubborn Problem of Gun Law Reform

By James Sasso*

It is past time that America keeps assault rifles and other military-style weapons away from public use. There are compelling reasons for American politicians to prohibit free ownership of military-style or semi-automatic weapons that reload automatically and can kill many people in rapid succession. A viable solution must respect Second Amendment rights while simultaneously keeping military-grade weapons out of public circulation. Even though the Supreme Court has greatly expanded Second Amendment rights in recent years, those decisions leave room for a creative legislative solution to our seemingly intractable problem of mass gun violence. That solution can moreover functionally ban assault rifles while respecting an individual’s right to own and use those guns recreationally.

Congress has the regulatory authority to thread this seemingly contradictory needle.  D.C. v. Heller (2008) interpreted the Second Amendment as strongly embodying a fundamental right to bear arms. Justice Scalia’s majority opinion nonetheless invites governmental regulation to ensure that the right does not extend too far. Like other rights, such as free speech, the government can impose upon that freedom when it has a compelling reason to do so. Justice Scalia pointed out that “the right secured by the Second Amendment is not unlimited” and that the “right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller also held that the right could be limited to those weapons “in common use at the time,” which might suggest that Congress could regulate modern weapons in any way it sees fit. However, the Court appeared to dismiss this limitation in Caetano v. Massachusetts (2016) when it invalidated a Massachusetts law banning the possession of tasers. The Court noted that the Second Amendment should apply to whatever modern weapons people can use to protect themselves today. This case suggests that an outright ban on military-style assault rifles might be unconstitutional, but that lawmakers can find creative ways to regulate guns without blanket prohibitions.

Indeed, my proposed solution achieves just that. Congress could restrict the public use or possession of military-style weapons and lower the chance of another school shooting if they take up the following proposal. Our politicians should establish a system of licensed firing ranges where gun owners must store any military-style weapon or gun that shoots multiple bullets with a single trigger squeeze. Only these ranges could sell these classes of guns and their ammunition. Additionally, gun owners could not take the weapons or bullets off the premises. Essentially, these weapons and their ammunition could only be sold and used in the confines of firing ranges licensed and regulated by the federal government. People would retain their Second Amendment right to own such firearms, but Congress would exercise its regulatory ability to circumscribe the places in which those guns could be used or stored.

No matter what the NRA might say, this proposed law would not dramatically distort the right of self-protection contained within the Second Amendment. There are several ways to conceive of this right. First, the right of self-protection might be a pure right to own weapons to defend oneself against criminals. Over the past 50 years, the NRA has concocted a convincing narrative that a high-powered, semi-automatic weapon is an important self-defense tool in today’s “dangerous” society. But, the statistics tell a different truth; violent crime rates have overall decreased and average citizens rarely, if ever, face home invaders or criminals armed with assault rifles. The world is not coming to people’s doorway ready for a shootout. People can adequately protect their homes with a shotgun or handgun that would still be legal under my proposal.

A second conception of self-protection inherent in the Second Amendment is the citizens’ right to protect themselves from a tyrannical government. Some Founders worried that the United States could eventually become tyrannical like the English monarchy. Because the early government possessed the same weapons as the general populace, an armed citizenry could possibly defeat that tyrannical government. However, that reasoning no longer passes muster.

Today, the public’s right to bear arms could never adequately protect itself from a tyrannical government, no matter how many military-grade guns that the public owned. Our powerful military controls such a disproportionate amount of the country’s potential firepower and weaponry that the government would not need to confiscate guns to create a military state if it so wished; tanks, fighter jets, Navy destroyers, and missiles would be sufficient. My proposed law may change the Second Amendment’s framework, but it does not impede either conception of the people’s right to self-protection under the Second Amendment.

Opponents of this proposal will also complain that the law alone will not prevent another mass shooting from occurring. Handgun violence causes much more violence than assault rifles. This law therefore must be part of a broader array of solutions that fix our background check system, improve our mental health care and monitoring, improve our government’s inter-agency communications about potentially dangerous individuals, and perhaps give law enforcement the power to seize weapons from individuals after a judicial determination that they threaten society.

Unfortunately, none of these other solutions can prevent the next shooting spree without functionally banning assault rifles from use or possession in public. No matter how tight our regulations or monitoring, people will obtain assault rifles if they are available for general sale. Disturbed individuals will commit mass murder with them regardless of how heavily we arm “good people” like teachers. We must keep these weapons cordoned off from the public.

My proposal’s imposition on the Second Amendment is therefore necessary to enhance the safety of society, and I believe that the right to own a military-style weapon should be subordinate to the right to life and the right to feel relatively safe in our daily lives. Without limiting access to these guns, the threat will remain that they will be misused by those who should not have been allowed to purchase them.

But, my proposed legislation would not be perfect. First, the system would create dangerous caches of weapons across the country. I am nonetheless confident that America can establish adequacy guards to prevent criminals from over-running the proposed ranges. Second, the law will not stop criminals from using the black market to purchase assault rifles and ammunition. No matter what law we pass, sadly, criminals will find ways to get guns. Hopefully, as happened in Australia, the law would eventually decrease the number of military-style weapons in circulation.

Finally, discrete classes of gun owners may find the law unworkable. Some people in rural communities may live too far from gun ranges to make it practicable for them to store their weapons there. Hopefully, politicians could establish a licensing and regulatory system—perhaps with lock-up and ammunition controls—to enable those gun owners to keep their weapons at home. Regulators could check to see that the owners complied with these reasonable safeguards from time to time as happens in Japan.

While this appears to be a radical law in the United States, it is a practical response to a complicated issue. It tries to balance the rights of people to own such guns against the obvious and compelling need to protect our citizens from being murdered. It alone would not stop mass gun violence, but it could mitigate the number of shootings and the harm they impose. Although politically and culturally difficult, the law could help accomplish what other solutions cannot do on their own to mitigate mass gun violence. I wish that our politicians had the political will to concoct such a practical compromise.

*James is a 2L at Harvard Law School and a PhD Candidate in Politics at Princeton. James is the Executive Managing Editor for Volume 13 of the Harvard Law and Policy Review. 

Old Paper by ThunderThemes.net