The Rhetoric and Realities of Gun Control

Within minutes of the shooting at a Minneapolis Catholic Church Mass on Wednesday, politicians and pundits were calling for new gun control measures and blaming conservatives for the deaths of the children. These are the same calls that have emerged after past shootings for everything from a ban on “assault weapons” to a total ban on all guns. What the public is not being told is the limited range of options under existing constitutional precedent.

The inconvenient fact in these interviews was that Minnesota has some of the nation’s strictest gun controls, and these weapons were acquired legally in that state by the shooter. The state has “red flag” laws and other provisions, but this was someone who did not raise “red flags” or other barriers. The state is at or near the maximal level of gun controls permitted under the Constitution. What remains are bans that would trigger greater serious constitutional challenges.

After calling for more limits, Sen. Tina Smith (D., Minn.) admitted to CNN that the guns were legally obtained in her state, but insisted that “there are only so many things that an individual state can do, because guns pour into Minneapolis and Minnesota from all other parts of the country.”

Over at MSNBC, pundits were suggesting that it may be time for an Australian-like ban and seizure of all guns. The Trace reporter Mike Spies told MSNBC’s Katy Tur that “[guns are] too powerful, even handguns too, again, that’s why in Australia … The only thing that really works, if you really wanted to bring down gun violence, was to do what Australia did and to do what many other countries in Europe do.”

The problem, of course, is that this is not Australia, and we have a Second Amendment protection of gun ownership with over 490 million guns in private hands back in 2022. In 2008, the Supreme Court handed down a landmark ruling in District of Columbia v. Heller, recognizing the Second Amendment as encompassing an individual right to bear arms. The Supreme Court further strengthened the right in New York State Rifle & Pistol Association Inc. v. Bruen.

Politicians know that, but continue to call for measures that would be presumptively unconstitutional. Any Australian ban would require a constitutional amendment, absent the most extreme interpretation of the Second Amendment to flip its meaning.

As I have previously written, these calls often appear entirely disconnected from the actual crime or the constitutional protections afforded gun owners, including President Biden demanding a ban on assault weapons after a shooting with a handgun. Biden and others often collectively call these guns “assault weapons,” a standard reference to such popular models as the AR-15.

The AR-15 is the most popular gun in America and the number of these guns in private hands is continuing to rise rapidly, with one AR-15 purchased in every five new firearms sales. These AR-15s clearly are not being purchased for armored deer. Many are purchased for personal and home protection; it is also popular for target shooting and hunting. Many gun owners like the AR-15 because it is modular; depending on the model, you can swap out barrels, bolts and high-capacity magazines, or add a variety of accessories. While it does more damage than a typical handgun, it is not the most powerful gun sold in terms of caliber; many guns have equal or greater caliber.

That is why laws to ban or curtail the sale of the AR-15 would likely run into constitutional barriers. Even the U.S. Court of Appeals for the Ninth Circuit struck down a California ban on adults under 21 purchasing semi-automatic weapons like the AR-15.

After past tragedies, some of us have cautioned that there is a limited range of options for gun bans, given constitutional protections. There are also practical barriers, with roughly half a billion guns in the United States and an estimated 72 million gun owners; three out of ten Americans say they have guns. Indeed, gun ownership rose during the pandemic. When former Texas congressman and U.S. Senate candidate Beto O’Rourke declared, “Hell yes, we are going to take your AR-15,” he was widely celebrated on the left. However, even seizing that one type of gun would require the confiscation of as many as 15 million weapons.

These calls for greater gun control remain either factually ambiguous or legally dubious. For example, former FBI Deputy Director Andrew McCabe declared after an earlier shooting that it is time to “change the context of gun ownership.” It is unclear what “changing the context” means, particularly when the context is first and foremost constitutional.

While a few courts have upheld such bans in places like Illinois, it has yet to face a full review in the Supreme Court. In Barnett v. Raoul, the ruling of U.S. District Judge Stephen P. McGlynn was upheld. Notably, the appellate majority was composed of conservative Judge Frank Easterbrook and liberal Judge Diane P. Wood. Conservative judge Michael P. Brennan dissented.

The majority stressed that in Heller, the Supreme Court held, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” They further noted that the court has previously found that machine guns are not protected under the Second Amendment because they were not “bearable” arms under the Second Amendment.

While gun rights advocates have stressed the similarities with other clearly protected weapons, Easterbrook and Wood stressed the  similarities between AR-15s and M16s:

The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon. In a decision addressing a ban on bump stocks enacted by the Maryland legislature, another federal court found that bump-stock devices enable “rates of fire between 400 to 800 rounds per minute.”

In an analysis that gun rights advocates challenge, they stressed that the guns use the same ammunition and “deliver the same kinetic energy.” Yet, the kinetic energy used in AR-15s is also analogous to that of clearly protected weapons.

The ruling was challenged but a petition for certiorari in the case was denied on July 2, 2024.