Mass Shootings, Legislative Responses, and Public Policy: an Endless Cycle of Inaction

• Publication year: 2020

Mass Shootings, Legislative Responses, and Public Policy: An Endless Cycle of Inaction

Jaclyn Schildkraut

Collin M. Carr

MASS SHOOTINGS, LEGISLATIVE RESPONSES, AND PUBLIC POLICY: AN ENDLESS CYCLE OF INACTION
Jaclyn Schildkraut^* Collin M. Carr^**
Abstract

Although mass shootings give rise to particularly visceral reactions and demands for action within the public sector, the corresponding response from legislators has failed to produce any meaningful change. With much of the discourse in the aftermath of these events centering on the polarized gun control-gun rights debate, two proposed solutions—assault weapons bans and universal background checks—often are at the forefront. Although varying by group and often higher immediately following a shooting, public support for these two proposals has yet to translate into legislative action. In this Article, we explore previous attempts by the federal government to regulate assault weapons and implement background checks for all firearm purchases, particularly in response to high-profile (and highly lethal) mass shootings. We situate these efforts in the context of corresponding public support as well as examples of how such regulations may have been effective at creating impediments for the perpetrators. We also explore state legislative efforts, which have been far more successful in enacting legislation related to assault weapons and background checks. Finally, we consider the role of lobbying and interest groups in overshadowing bipartisan support for these proposals, as well as what may be needed to break the perpetual stalemate in Congress and end the cycle of legislative inaction stemming from mass shootings.

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Introduction...........................................................................................1045

I. Assault Weapons.........................................................................1047

A. The Federal Assault Weapons Ban......................................... 1048
B. Public Opinion About an Assault Weapons Ban .................... 1050
C. Arguments Surrounding an Assault Weapons Ban ................. 1052
D. Effectiveness of Assault Weapons Bans .................................. 1055

II. Background Checks...................................................................1056

A. National Instant Criminal Background Check System (NICS) 1058
B. Shortfalls of Background Check Systems ............................... 1059

III. Expanding Background Checks...............................................1066
IV. State Legislation........................................................................1069
V. Discussion.....................................................................................1071

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Introduction

Though within the context of the national crime picture, mass shootings are statistically rare events, their frequency of occurrence has been found to be on the rise in recent years.¹ The disproportional amount of attention they receive, particularly from the media, however, makes it appear as though mass shootings are reaching an epidemic-like proportion² with many accepting these events as a fixed part of American culture.³ Consequently, mass shootings have become, and continue to be, a cause for concern for politicians, pundits, and the public alike.⁴ Some events are viewed as reflecting broader problems within society.⁵ Conversely, others have been perceived as isolated incidents.⁶ Still, all events elicit some type of collective response that something needs to be done.

Despite such perceptions, however, the response to mass shootings has become almost scripted and therefore predictable. When word of a shooting breaks, politicians and the public alike immediately rush to offer their "thoughts and prayers" to those who have been impacted.⁷ Debates ensue across both the

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public (often via social media) and political arenas about the root causes of mass shootings,⁸ a conversation that routinely falls to the "usual suspects" of guns, mental health, and violent media.⁹ Yet despite such outrage, the conversation often is short-lived,¹⁰ and Congress fails to take any meaningful steps to address the issues surrounding these events—in some cases even noting that the immediate aftermath, when support for change often is at its highest, is not the time to politicize the tragedy.¹¹ That time, however, seems to never come, and the conversation fades as quickly as it began, only to be reignited with the next mass shooting, causing the cycle of inaction to restart.

This is not to say, however, that no legislative efforts have been offered in responses to mass shootings.¹² Numerous proposals have been put to the floors of both the Senate and House of Representatives, though the majority never make it past introduction.¹³ At the same time, laws that already exist on the books that could potentially play a role in helping to prevent mass shootings (or at least make it more difficult for them to occur) are not utilized to their fullest capacities. The occurrence of such attacks also may highlight gaping loopholes in the existing legislation that need addressing to help prevent future attacks.

In short, the federal government has failed to respond adequately to mass shootings in a meaningful way. In this Article, we explore several of the key debates that arise after mass shootings—namely, whether assault weapons should be banned and if universal background check policies should be implemented. Specifically, we examine the key arguments from both supporters and those who are against such policies and related congressional action (or lack thereof) from each side. We also consider how such policies correlate with mass shootings and what impact, if any, the implementation of such legislation could have on the occurrence of these events. Finally, we explore what action has been

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taken at the state level and whether addressing mass shootings at the federal level can be achieved or if the partisan divide will continue to perpetuate this endless cycle of inaction.

I. Assault Weapons

A common response in the aftermath of mass shootings is to call for the banning of assault-style weapons, such as AR-15s, AK-47s, and similar firearms. This call to action stems from the perception that these types of guns are the weapon of choice among mass shooters, despite the fact that handguns are three times more likely to be used by such perpetrators.¹⁴ proponents of banning assault-style firearms also routinely claim that the usage of these by mass shooters has been significantly increasing.¹⁵ In reality, however, despite a small uptick in the proportion of events where these weapons were present, their use in mass shooting events has remained largely stable over the past three decades.¹⁶

Part of the reason that these claims have gained traction is that such weapons have been used in high-profile shootings including (but not limited to) an Aurora, CO movie theater (2012); Sandy Hook Elementary School in Newtown, CT (2012); a municipal government office in San Bernardino, CA (2015); a nightclub in Orlando, FL (2016);¹⁷ a concert in Las Vegas, NV (2017); a church in sutherland springs, TX (2017); and Marjory stoneman Douglas High school in Parkland, FL (2018).¹⁸ These shootings also are among the more lethal events

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that have been carried out. Collectively, they account for 202 fatalities and 597 injuries.¹⁹ It bears noting, however, that not all highly lethal mass shootings are carried out using an assault-style rifle. The 2007 shooting at Virginia Tech, which claimed the lives of thirty-two individuals (excluding the gunman) and left seventeen injured, was carried out with two semiautomatic handguns.²⁰ Variations of the handguns used at Virginia Tech also were present in other particularly lethal attacks including a Killeen, TX restaurant in 1991 (twenty-three killed, twenty injured); a Tucson, AZ supermarket in 2011 (six killed, thirteen injured—including Congresswoman Gabrielle Giffords); and a Charleston, SC church in 2015 (nine killed).²¹

Still, the presence of an assault-style rifle has been found to increase the number of casualties—both fatalities and injuries—in a mass shooting event. In one analysis of 340 mass shootings occurring between 1966 and 2016, it was found that in mass shootings carried out using at least one assault-style rifle, an average of 5.2 people were killed and 7.6 others were injured.²² Comparatively, an average of 2.9 fatalities and 3.2 people injured per event was found in cases where no such weapon was present.²³ With these statistics in mind, it is not surprising then that there regularly is a call to ban assault-style rifles following such tragedies.

A. The Federal Assault Weapons Ban

On September 13, 1994, the Violent Crime Control and Law Enforcement Act was signed into law by President Bill Clinton.²⁴ Among the provisions included in the Act was the Public Safety and Recreational Firearms Use Protection Act, more commonly known as the Federal Assault Weapons Ban

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(AWB).²⁵ The legislation prohibited "the manufacture, transfer, or possession of a semiautomatic assault weapon."²⁶ Specific criteria for what designated a firearm (either a rifle, pistol, or shotgun) as an "assault weapon" was among the language crafted in the AWB. Semiautomatic rifles in particular were categorized as such if they were able to accept detachable magazines and had two or more of the following features: (1) a folding or telescopic stock; (2) a pistol grip that protrudes conspicuously beneath the action of the weapon; (3) a bayonet mount; (4) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; or (5) a grenade launcher.²⁷ The AWB further banned possession of large-capacity magazines—those capable of holding more than ten rounds of ammunition—as well as the production of nineteen specific semiautomatic firearms classified as assault weapons, including the...