Document Type

Article

Publication Date

8-8-2024

Abstract

States struggle to implement new firearms policies because they are

limited by two major forces: the political feasibility of passing new firearms

legislation and an increasingly broad and individualized Second Amendment

right. Due to this conflict, states continually return to one of few

constitutional yet politically popular methods of gun control: enacting

possession-based firearms laws. These laws are largely ineffective at

reducing gun violence.

In the 2022 Supreme Court decision New York Rifle and Pistol

Association v. Bruen, the Court further expanded the scope of the Second

Amendment to protect the individual’s right to bear arms outside of the home.

Justice Clarence Thomas’s majority established a new, historically focused

test to evaluate government restrictions on the right to purchase and carry a

firearm in public. This new test expanded the scope of the Second Amendment

right to limit the ways a government can burden the right of a citizen to carry

a firearm in public for self-defense. Bruen was a notable expansion of the

Second Amendment right first framed in District of Columbia v. Heller.

This Comment critiques the most common method used by lawmakers

to regulate firearms—criminalizing the possession of a firearm without a

license. These laws are based on the idea that by imposing harsh penalties

for those who possess a firearm without a license, potential wrongdoers will

be deterred from possessing or utilizing a gun in the commission of a crime.

Unfortunately, these possession-based deterrence laws have repeatedly been

shown to have little to no meaningful reduction in crime or gun violence.

Rather, they marginalize minorities, increase disparate sentencing for

victimless crimes, and justify increasingly interventionist policing tactics

without corresponding reductions in crimes involving firearms.

Despite these shortcomings, legislatures continually return to

possession-based deterrence laws because they remain constitutional in the

wake of rapidly evolving Second Amendment law. For example, the Heller

and Bruen decisions endorsed licensing schemes which utilize objective

criteria to determine eligibility to possess or carry a gun for self-defense.

Possession-based deterrence laws are also utilized because they are largely

bipartisan: it is one of the few areas of gun control popular on both sides of

the aisle. As a result, lawmakers may feel like these laws are the only action

available in response to their constituents’ very real worries about rising gun

violence. This legislative tension has only been exacerbated after Bruen, due

in large part to Bruen’s more expansive view of the Second Amendment.

After the Bruen decision, California and New York implemented

progressive and novel approaches to reducing gun violence, such as their

“good moral character” standards required to obtain a concealed carry

permit and their significant expansion of background checks. Though meant

to utilize an objective standard, these approaches will likely fail as they

cannot escape the high constitutional bar set by Bruen. To combat an

ineffective yet likely return to possession-based deterrence laws, state and

federal lawmakers should be freed to experiment with such novel and

innovative ways of combatting firearms violence. This can only happen if the

Supreme Court clarifies or reevaluates the contours of the Second

Amendment in its future decisions.

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