Gun control after Heller and McDonald: what cannot be done and what ought to be done.

Author:Kleck, Gary
Position:Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

Introduction I. What Cannot Be Done: Constitutionally Impermissible Gun Control II. What May Still Be Permissible III. Do Gun Levels Affect Violence? IV. Forms of Gun Control A. Lawsuits Against Gun Manufacturers, Distributors, and Dealers B. Behavioral Interventions to Reduce Firearms Injury C. Firearms Safety Technology V. Effects of Gun Control Laws on Crime A. Bans on Possession of Specific Gun Types 1. Local Handgun Bans 2. Assault Weapon Bans 3. "Saturday Night Special" Bans B. Bans on Acquisition or Possession of Guns by High-Risk Subsets of the Population C. Background Checks of Prospective Gun Buyers 1. The Brady Act 2. State-Mandated Background Checks D. Gun Registration E. One-Gun-a-Month Laws F. Waiting Periods G. Enhanced Penalties for Crimes Committed with Guns. H. Child-Access Protection Laws: Requiring Guns to Be Stored Secured I. Restrictions on Carrying Guns Away From Home J. Gun Decontrol: Right-to-Carry Laws K. Increased Enforcement of Carry Laws Conclusion: What Should Be Done INTRODUCTION

The Heller and McDonald decisions rendered certain gun control measures unconstitutional. This Article discusses the kinds of gun control that still may be constitutionally permissible in light of those decisions. It also analyzes which kinds of gun control are effective, first reviewing evidence on the fundamental underlying issue of whether gun ownership levels affect violence rates. This Article then outlines the major forms that gun control efforts have taken and critically reviews the research evidence concerning the impact of gun control measures on crime. Finally, the Conclusion outlines the types of constitutionally permissible gun control policies that should be implemented to reduce crime.


    In District of Columbia v. Hellerand McDonald v. City of Chicago, the Supreme Court established that the Second Amendment protects an individual's right to own a gun for personal use and that neither the federal government nor state or local governments can abridge this right. (1) More specifically, the Court ruled that there is a constitutional right to keep a loaded handgun at home for self-defense. (2) Thus, it seems clear that governments may not completely forbid the ownership of handguns, or of all guns, or require that all guns kept in the home remain unloaded.


    Beyond these limitations, it remains unclear what other gun control measures, if any, are now constitutionally impermissible. Because the decisions explicitly addressed the possession of guns in the home, it remains possible that governments could completely forbid the possession of firearms outside the home. Possession in the home can be restricted in a variety of ways short of total prohibition. For example, after the McDonald decision struck down Chicago's handgun ban, the city of Chicago quickly responded by implementing a revised ordinance that forbade keeping more than one handgun assembled and operable in the home. (3)

    Likewise, the Court did not explicitly forbid the enactment of laws establishing restrictive firearms licensing laws and ordinances. New York City requires residents to have a pistol permit to own a handgun legally, but the law is administered so stringently that virtually no residents of New York City other than retired police officers are able to get a permit. (4) It costs $431.50 just to apply for a handgun license (including fingerprinting charges), the fees are nonrefundable, and the odds are stacked heavily against the application being approved. (5) For example, in 1987, only twenty-one percent of applications were approved. (6) Applicants may be denied if they had a moving violation in their driving history, failed to get fingerprinted, or failed to provide all the voluminous paperwork and documentation required. (7) The application must include two color photographs of specified size, a birth certificate, proof of current address, a letter of necessity, and for some applicants, copies of the applicant's business sales tax report, a personal income tax return, daily bank deposit slips, and a variety of bank statements. (8)

    In short, it is so difficult to own a handgun in New York City legally that less than one percent of New York City residents have obtained the license authorizing them to possess a handgun. (9) The burden of proof under New York City law is on the would-be handgun owner to show high moral character and a special need for a handgun. (10) Few are able to meet that burden. The New York City law therefore appears to function effectively as a de facto ban on handgun possession even though it is not written explicitly as a ban. It remains to be seen whether this sort of semi-ban is constitutionally impermissible, but if New York City's gun laws are constitutional, it is unlikely that any existing gun laws, or any but the tiniest share of politically achievable future gun control measures, would be ruled unconstitutional.

    The actual impact of Heller and McDonald on gun control restriction in America may well turn out to be negligible. No other large cities besides Washington, D.C. and Chicago--and no states--have enacted outright bans on private possession of handguns or of guns in general. (11) There are no signs that any would have done so in the foreseeable future if Heller and McDonald had been decided differently. If this pair of decisions only forbids outright bans, and later decisions do not significantly increase the scope of measures considered to be unconstitutional, it is unlikely that many significant existing gun control measures would be taken off the books. In sum, it is not clear that any further gun laws will be struck down (beyond the handful of local gun bans in those small towns in Illinois) or that any politically achievable gun control proposals will have to be withdrawn due to constitutional concerns as a result of Heller and McDonald. Furthermore, it may not be politically feasible to enact outright gun bans in the foreseeable future. Only twenty-six percent of U.S. adults supported banning the private possession of handguns in an October 2011 national survey. (12) Thus, if Heller and McDonald forbid only outright gun bans, they will neither preclude enactment of any new gun laws that would otherwise have been politically achievable nor require the repeal or revision of any significant existing gun laws beyond the two they have already negated. (13)

    On the other hand, it is possible that the scope of what is considered unconstitutional may be expanded in the future as the Court extends or elaborates on Heller and McDonald, especially if the composition of the Court changes in a conservative, pro-gun direction. Thus, it is worth thinking about whether anything significant in the way of crime control and violence prevention would be lost if any existing gun control laws were struck down. What does existing research have to say about the effectiveness of gun laws? If they are ineffective, no crime control would be lost by expanded interpretations of the protections of the Second Amendment, no matter how extensive the protections might prove to be.


    A more fundamental preliminary question, however, is whether gun availability actually increases crime and violence. If it does not, there is little utilitarian justification for gun control. While many gun control advocates undoubtedly favor stricter gun laws for non utilitarian reasons, such as a cultural antipathy towards gun owners, (14) few openly rest their case for controls on these grounds. (15) If gun availability does affect the rates or seriousness of crime and violence, then laws that are effective in reducing gun availability may reduce rates of violence.

    Most studies of the impact of gun ownership levels on rates of crime and violence are fatally flawed. (16) Nearly all of them make at least one, but usually all of the three critical errors: (1) they use invalid measures of gun ownership levels; (2) they fail to make any serious effort to control for the effects on crime of other factors correlated with gun ownership ("confounding factors"); or (3) they fail to distinguish the effect of gun levels on crime rates from the effect of crime rates on gun ownership. (17) Only three studies have avoided these three problems, and all found there was no net crime-increasing effect on gun ownership levels. (18)

    Thus, the overall rate of gun ownership in the population as a whole has no net effect on crime rates, including homicide rates. (19) Consequently, even if gun control measures could reduce general gun ownership levels, there is no sound reason to believe this would cause a reduction in crime rates. On the other hand, gun control measures might reduce gun levels within some high-risk subsets of the population, such as convicted criminals. Indeed, few gun control measures are intended to reduce overall gun levels. (20) In fact, they might reduce crime in other ways that do not require reducing gun ownership levels, such as reducing the availability of guns in public places or deterring criminal use of guns through harsh penalties. (21) Thus, some gun control interventions might still be effective even though higher overall gun levels do not increase crime.

    In the review that follows, the conclusions I draw are based on the findings of the methodologically strongest research done on each gun-related intervention. They are not based on crude "vote counting" to determine the most frequent findings. This is a crucial distinction because the vast majority of research in this area is, like the research on the effect of gun levels on crime rates, fatally flawed and the findings of most studies therefore can be given little weight. (22) Making matters worse, most research published in medical and public health journals is not only technically primitive, but also shows distinct signs of...

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