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American Bar Association

How to tackle gun violence without violating 2nd Amendment rights? Legal leaders share strategies

Posted Mar 10, 2014 9:45 AM CDT
By Kristin Choo

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In his opening remarks at last Thursday’s ABA conference, "Taking Aim at Gun Violence: the Myth and Meaning of the Second Amendment," Philadelphia managing director Richard Negrin turned quickly to the human costs of gun violence in his city. A Facebook fight that ended with an adult firing a gun into a carful of teenagers, killing three. A 2-year-old girl shot in the stomach at a block party.

And a 13-year-old boy, who, on his way to football practice with his father, saw his father gunned down in the street by a man wielding a MAC-10 submachine gun. The father died in the boy’s arms.

“I was that 13-year-old,” Negrin said. In the shocked silence that filled the room, he added sharply, “This issue is real for me.”

It was a somber start to the event, co-sponsored by the city of Philadelphia and held in the city’s National Constitution Center. The gloom deepened as public health experts in the first panel presented some of the dark statistics about gun violence in the United States: in 2010 alone, over 31,000 gun deaths, including about 19,000 suicides; sharply higher suicide rates in states with high rates of gun ownership; and an estimated 4.3 million American women who have been threatened with guns by intimate partners, with 850,000 shot at or shot.

In addressing this “unacceptable public health burden,”the law can be a powerful public health tool, argued Jon S. Vernick, deputy director of the Center for Injury Research and Policy at Johns Hopkins Bloomberg School of Public Health. For example, strong licensing requirements and regulation of gun shops have been shown to reduce gun trafficking. “But laws have to be constitutional,” he added. “You don’t want to spend a lot of your political capital on laws that the courts will eventually strike down.”

The challenge of crafting a legal response to gun violence without violating Second Amendment rights was tackled by the next panel. Juliet Leftwich, legal director of the Law Center to Prevent Gun Violence, said that public revulsion over the 2012 Newtown, Conn., tragedy, in which a gun-wielding assailant killed 20 children and seven other adults, may have reversed a 30-year trend of weakening gun regulation. In the five years before the tragedy, the Law Center, which tracks gun laws nationwide, saw twice as many laws passed relaxing gun regulation than laws expanding gun regulation. After Newtown, this ratio flipped.

Still, federal legislation to strengthen background checks has stalled in Congress. Meanwhile, the 2008 Supreme Court decision, District of Columbia v Heller, has complicated the legal landscape. The decision, said Erwin Chemerinsky, dean of the University of California at Irvine School of Law, marked the first time the Supreme Court recognized the right of an individual to own a gun for personal safety rather than for militia service.

But, Chemerinsky cautioned, this decision applied only to those wishing to keep guns in their homes for personal security. “Very importantly, the Supreme Court emphasized that the Second Amendment is not an absolute right,” he said. The government can regulate who has guns, where guns can be located and what types of guns people can possess.

Left unsettled were questions such as the level of scrutiny courts should apply to gun legislation curtailing an individual's right to possess a gun. Chermerinsky noted that in general, courts tend to uphold laws regulating guns. "I can probably count on the fingers of one hand the number of decisions that have struck down gun regulations,” he said.

Litigation is another powerful tool to combat gun violence, said Jonathan E. Lowy, director of the Legal Action Project at the Brady Center to Prevent Gun Violence. He described how the Project has sued to put “bad apple” gun shops out of business, force companies to improve gun safety, and to challenge laws like the Florida law that barred physicians from talking about guns with their patients. The final panel showcased the efforts of local Pennsylvania groups to combat gun violence by engaging with violence-prone communities and raising public awareness.

In his speech at the conference, former Pennsylvania Gov. Edward G. Rendell argued that real change will come only when gun control advocates take a cue from gun rights advocates, such as the National Rifle Association, and become “single issue voters,” besieging their elected representatives with calls and emails about gun issues.

In his remarks at the event, ABA president James Silkenat said that conferences like these were important because they helped lawyers educate themselves about gun issues, allowing them to better inform state and national legislators "how we can all be safer and still maintain our Second Amendment rights." “We may not be able to stop every shooting,” he said. “But I believe we have a responsibility to do more to stop gun violence in this country.”

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