The gun safety movement finds itself on the precipice of disaster.
With new grass-roots and advocacy organizations, better financing, and stronger support from the Democratic Party, it has, arguably, never been stronger. But on Wednesday, the Supreme Court will hear a case that is likely to call into question many of the reforms at the top of the movement’s agenda.
The justices are considering the constitutionality of a New York law that makes it hard for residents to obtain a permit to carry concealed firearms in public. The court, with three conservative pro-gun justices appointed by former President Donald Trump, will almost certainly say New York’s law is too restrictive under the Second Amendment — which will lead, predictably, to more guns on city streets and more violent crime.
The New York case could also signal the beginning of a new era of judicial hostility to gun laws, especially to the bans on assault weapons and large-capacity magazines that the reinvigorated gun safety movement has fought so hard to get enacted. With a single decision, the Supreme Court majority could transform life in many American cities — and stymie the growing political movement for gun reform.
Advocates and activists need an agenda that can survive the Supreme Court’s new interpretation of the Second Amendment. Fighting to restrict the quantity and kinds of guns owned by citizens will be a losing battle. Instead, it is time to focus on policies that will reduce the violence all those guns in America bring.
A good place to start would be community-based intervention programs like Operation Ceasefire, an initiative launched in Boston in 1996. Studies show that a small percentage of the population, such as gang members and hardened criminals, commit a disproportionate amount of violent crime. By bringing together community leaders, former gang members and the police for outreach to those most likely to use firearms, gun violence intervention programs have a proven track record of reducing gun crime.
Such programs, however, require resources and personnel at a time when social services and law enforcement are already stretched thin, and the political will to fund them adequately has never really materialized. That’s where the new strength of the gun safety movement can be a boon. Instead of spending political capital on a national ban on assault rifles that the justices are likely to overturn, the movement could use its muscle to push for federal and state legislation to fund vibrant and effective gun violence intervention programs in every major and midsize city across America.
The gun safety reform movement should also prioritize strengthening federal efforts to crack down on gun trafficking. While the Bureau of Alcohol, Tobacco, Firearms and Explosives, or A.T.F., has federal gun law enforcement authority, the National Rifle Association and its allies have shackled it with outdated technology, insufficient funds, and absurd restrictions. With an ever-increasing number of guns in the United States, A.T.F.’s intentional impotence comes at a deadly cost.
By law, A.T.F. is prohibited from using electronic databases to trace guns found at crime scenes and barred from electronically searching the records it does have. So when a gun is found at a crime scene, agents have to travel to individual gun stores and sort through boxes of documents to find out who bought it. A.T.F. is also prohibited by law from making more than one unannounced, warrantless inspection per year of any licensed gun dealer. And A.T.F. is still operating with roughly the same number of employees it had in 2001, and about 20 percent fewer inspectors, even though the number of guns in the United States has skyrocketed, and we now average at least 30 million gun sales a year. In a country where there are now more licensed gun dealers than branches of Starbucks and McDonald’s combined, these artificial restraints on A.T.F. should be lifted.
The gun safety movement should also launch a renewed push for universal — and better — background checks to make it harder for criminals and abusers to obtain firearms. There is broad public support for universal background checks, even among gun owners, and the court is unlikely to declare them unconstitutional.
Background checks, however, are only as good as the underlying databases. In 2015, a background check error allowed Dylann Roof to buy a handgun, weeks before he shot and killed 9 people in the Emanuel A.M.E. Church in Charleston, S.C. In 2017, more than two dozen churchgoers were killed by another shooter whose domestic violence conviction wasn’t reported to the F.B.I. The current system has significant gaps, especially when it comes to disqualifying mental health records. The federal database is missing hundreds of thousands of mental health records, and state reporting is shockingly uneven.
Gun safety advocates have long recognized these problems — and have been among the lone voices pushing for exactly these reforms. Yet proposals with more obvious popular appeal, like banning assault rifles, have taken center stage over the past decade. An expansive new interpretation of the Second Amendment by the Supreme Court warrants a reordering of priorities.
An agenda that focuses on intervention, beefing up gun law enforcement, and better background checks would not only be more likely to survive in the court, it might also do more to reduce gun violence. While assault rifles look menacing, they are responsible for only a fraction of gun deaths in America each year. While these weapons have been used in some of the most notorious massacres, most mass shootings are actually committed with handguns.
The same principle applies to large-capacity magazine bans. Though good in theory, they’re consistently ignored in practice. Advocates convinced lawmakers in New Jersey to ban them in 2018, but there doesn’t seem to be any evidence that gun owners have turned in or thrown away their now illegal magazines.
For decades now, the N.R.A. has said we don’t need more gun laws, just better enforcement of existing gun laws. It’s time for the gun safety movement to take the N.R.A. up on its challenge. By dropping the excessive focus on banning certain types of weapons, and instead prioritizing reforms that do more to crack down on gun violence, gun safety advocates may be able to avoid the harsh scrutiny of the new Supreme Court — and, in the end, save more lives.
Adam Winkler (@adamwinkler), a professor of law at U.C.L.A., is the author of “Gunfight: The Battle Over the Right to Bear Arms in America” and, more recently, “We the Corporations: How American Businesses Won Their Civil Rights.”
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