Criminal Justice

ABA supports universal background checks, other proposals to curb gun violence, lawmakers told

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ABA President Patricia Lee Refo is urging leaders of the Senate Judiciary Committee to consider the association’s proposals to curb “the scourge of gun violence in America.”

“About 40,000 Americans a year die from gun violence—including homicides, suicides and unintentional shootings—but this staggering death toll is not inevitable,” Refo said in the March 29 letter.

Refo commended the committee for hosting a March 23 hearing on constitutional and commonsense steps to avoid gun violence. She offered these recommendations, based on ABA policy, “as a meaningful starting point”:

• Require universal background checks. Current law requires background checks only for those buying guns from a federally licensed dealer. But a significant percentage of firearms are obtained through private, unlicensed sales.

“Research suggests that firearms obtained through private sales are disproportionately used in criminal activity,” Refo said in the letter. “With an investment in a more robust National Instant Background Check System, and the closing of the Charleston loophole, these unlicensed sales and transfers would not be permitted to proceed without the benefit of background checks.”

The Charleston loophole allows gun dealers to sell a firearm if the background check has not been completed within three days. Convicted Charleston, South Carolina, church shooter Dylann Roof was said to have obtained a gun, despite an admission to police that he possessed drugs, because his background check was not completed within that time frame.

• Repeal the federal law granting broad immunity to gun dealers and gun-makers, the Protection of Lawful Commerce in Arms Act. Also, increase funding and enforcement authority for the Bureau of Alcohol, Tobacco, Firearms and Explosives. More funding for the bureau could support additional personnel and technology investments.

“The ABA believes civil remedies and administrative enforcement both play important roles in preventing gun violence,” Refo wrote.

• Support implementation of gun violence restraining orders, which enable state and local courts to temporarily remove guns from those likely to harm others or themselves. Such orders should comply with the Second Amendment and due process protections.

• Enact safe storage laws that define the requirements of safe storage of a firearm, require guns owners to meet those requirements, and promote safe storage education.

• Enact laws to ban possession and display of firearms at locations of legislative debate or voting. Exceptions to the ban would be made for authorized members of the military, law enforcement or security personnel.

“While this policy was adopted after the events at the U.S. Capitol on Jan. 6, 2021, it was developed and submitted well before then, in light of the emergence of armed intimidation around elections and public meetings,” Refo wrote.

Refo said the ABA is confident that all the proposals, if enacted, would withstand constitutional scrutiny.

“The Supreme Court, in District of Columbia v. Heller (2008), concluded that Second Amendment rights are not unlimited,” Refo wrote. “In his opinion for the majority, Justice Antonin Scalia wrote that the Second Amendment should not be understood as conferring a ‘right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ While federal courts since Heller have occasionally struck down some outlier laws on Second Amendment grounds, in the vast majority of cases, they have upheld a broad range of firearm regulations as constitutional, consistent with Heller.

“These critical laws save lives—it has repeatedly been demonstrated that states with evidence-informed, constitutional firearm laws also have lower rates of gun violence.”

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