Balancing Rights and Responsibilities: The Role of Government and Citizens in Combatting Gun Violence

• Published date: 01 November 2022
• DOI: http://doi.org/10.1177/00027162231171474
• Author: Michael R. Ulrich
• Date: 01 November 2022
• Subject Matter: Opportunities for Gun Violence Prevention

292 ANNALS, AAPSS, 704, November 2022

DOI: 10.1177/00027162231171474

Balancing

Rights and

Responsibilities:

The Role of

Government

and Citizens in

Combatting

Gun Violence

By

MICHAEL R. ULRICH

1171474ANN The Annals of The American AcademyBalancing Rights and Responsibilities

research-article2023

Congress passed the first federal legislation on firearms

safety in decades at nearly the same moment that the

Supreme Court issued its first major Second

Amendment decision since 2008. It will take time to

assess the effects of these actions on both gun safety

and Second Amendment rights, but, with gun violence

skyrocketing across the country, it is clear that finding a

balance between rights and safety is desperately

needed. The public is ill-equipped to protect itself

against the broad harms of gun violence, so the govern-

ment has a central role to play in addressing those

harms and the racial disparities that come with them.

Gun owners, too, must recognize their obligations to

fellow citizens, not only to act responsibly with fire-

arms, but to accept the limitations of their constitu-

tional protections. An evidence-based path forward can

be forged that mitigates the harm of gun violence while

minimally burdening the rights and interests of those

who own firearms.

Keywords: Constitution; rights; public health; safety;

duty; gun violence; Second Amendment

Two events occurred within days of each

other that will have a significant impact on

efforts to tackle gun violence in the United

States while also protecting Second Amendment

rights: President Biden signed into law the first

major piece of gun legislation in decades, and

the Supreme Court issued its first substantive

Second Amendment ruling since 2008. The

Bipartisan Safer Communities Act narrowed—

but did not fully close—the boyfriend loophole,

broadened the definition of sellers that are

Correspondence: mrulrich@bu.edu

Michael R. Ulrich is an assistant professor of health

law, ethics, and human rights at Boston University’s

School of Public Health and School of Law; and

Solomon Center Distinguished Visiting Scholar at Yale

Law School. His scholarship focuses on the intersection

of public health, constitutional law, and bioethics,

emphasizing social justice through examining the law’s

impact on health outcomes of marginalized and under-

served populations.

BALANCING RIGHTS AND RESPONSIBILITIES 293

required to do background checks, created opportunities for expanded back-

ground checks of purchasers 18 to 21 years of age, and increased penalties for

straw purchases. The impact of these changes is debatable—especially given

external limitations such as background checks’ reliance on voluntary participa-

tion in the National Instant Criminal Background Check System (NICS)

system—but passing any federal law related to firearms may show some progress

toward the potential for common ground. And perhaps the greatest impact will

result from the increased funding in areas such as community violence preven-

tion programs, financial incentives for states to pass extreme risk protection order

laws, and suicide prevention and trauma services.

In New York State Rifle & Pistol Association v. Bruen (2021), the Supreme

Court provided its most significant Second Amendment decision since declaring

an individual constitutional right in District of Columbia v. Heller (2008). In

Bruen, the Supreme Court struck down New York’s “proper cause” restriction,

which required residents who wished to carry a firearm in public to demonstrate

that they had a specific need to carry a concealed weapon. In striking down this

law passed in 1911, the Court emphasized how it infringed on the right of self-

defense—which Heller held as underpinning the Second Amendment—for “law-

abiding citizens.”

The lasting impact of each will take time to assess, but both may have impor-

tant lessons in the effort to strike a balance between tackling gun violence and

protecting Second Amendment rights. In the case of the Safer Communities Act,

the willingness to directly connect gun safety legislation and mental health is

disconcerting. While increased funding and resources for mental health are

sorely needed and may help to reduce suicide by firearm, this link perpetuates a

false narrative that gun violence is largely caused by those with mental illness.

This notion has zero empirical support, and, in fact, data show that individuals

with mental illnesses are more likely to be victims of gun violence than perpetra-

tors (Metzl and MacLeish 2015). Thus, while the mental health resources may be

beneficial, the long-term impact of their inclusion in this federal legislation—a

response to mass shootings and not the suicide crisis—may be to enable the con-

tinued use of mental illness as a scapegoat, which could prevent more balanced,

effective future legislation.

Meanwhile, the Supreme Court’s ruling in Bruen appears to be an explicit

rejection of balance. The “proper cause” restriction on public carry is an effort to

limit the number of firearms in public without eliminating the ability to carry a

gun for self-defense for those who are more likely to need it. While the Court

could have ruled that the enforcement and approval process was operating too

strictly—an as-applied ruling—the Court instead chose to strike down the law in

its entirety by focusing strictly on the right to carry. This decision generates an

expansive ability to carry firearms in public but, more important, ignores the

state’s interest in protecting and promoting public health and safety.

A narrow focus on the right alone casts doubt on the judiciary’s willingness to

consider state justification for firearm restrictions in the future, suggesting courts

may completely ignore the increasing gun violence we see now. This eliminates a

standard constitutional analysis, which looks at the burdens a law places on the