Gun Control after Heller and McDonald:. What Cannot Be Done and What Ought to Be Done

By Kleck, Gary | Fordham Urban Law Journal, October 2012 | Go to article overview
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Gun Control after Heller and McDonald:. What Cannot Be Done and What Ought to Be Done


Kleck, Gary, Fordham Urban Law Journal


Introduction
  I. What Cannot Be Done: Constitutionally Impermissible Gun
       Control
  II. What May Still Be Permissible
  III. Do Gun Levels Affect Violence?
  IV. Forms of Gun Control
      A. Lawsuits Against Gun Manufacturers, Distributors,
         and Dealers
      B. Behavioral Interventions to Reduce Firearms Injury
      C. Firearms Safety Technology
  V. Effects of Gun Control Laws on Crime
      A. Bans on Possession of Specific Gun Types
         1. Local Handgun Bans
         2. Assault Weapon Bans
         3. "Saturday Night Special" Bans
      B. Bans on Acquisition or Possession of Guns by High-Risk
         Subsets of the Population
      C. Background Checks of Prospective Gun Buyers
         1. The Brady Act
         2. State-Mandated Background Checks
      D. Gun Registration
      E. One-Gun-a-Month Laws
      F. Waiting Periods
      G. Enhanced Penalties for Crimes Committed with Guns.
      H. Child-Access Protection Laws: Requiring Guns to Be
         Stored Secured
      I. Restrictions on Carrying Guns Away From Home
      J. Gun Decontrol: Right-to-Carry Laws
      K. Increased Enforcement of Carry Laws
Conclusion: What Should Be Done

INTRODUCTION

The Heller and McDonald decisions rendered certain gun control measures unconstitutional. This Article discusses the kinds of gun control that still may be constitutionally permissible in light of those decisions. It also analyzes which kinds of gun control are effective, first reviewing evidence on the fundamental underlying issue of whether gun ownership levels affect violence rates. This Article then outlines the major forms that gun control efforts have taken and critically reviews the research evidence concerning the impact of gun control measures on crime. Finally, the Conclusion outlines the types of constitutionally permissible gun control policies that should be implemented to reduce crime.

I. WHAT CANNOT BE DONE: CONSTITUTIONALLY IMPERMISSIBLE GUN CONTROL

In District of Columbia v. Hellerand McDonald v. City of Chicago, the Supreme Court established that the Second Amendment protects an individual's right to own a gun for personal use and that neither the federal government nor state or local governments can abridge this right. (1) More specifically, the Court ruled that there is a constitutional right to keep a loaded handgun at home for self-defense. (2) Thus, it seems clear that governments may not completely forbid the ownership of handguns, or of all guns, or require that all guns kept in the home remain unloaded.

II. WHAT MAY STILL BE PERMISSIBLE

Beyond these limitations, it remains unclear what other gun control measures, if any, are now constitutionally impermissible. Because the decisions explicitly addressed the possession of guns in the home, it remains possible that governments could completely forbid the possession of firearms outside the home. Possession in the home can be restricted in a variety of ways short of total prohibition. For example, after the McDonald decision struck down Chicago's handgun ban, the city of Chicago quickly responded by implementing a revised ordinance that forbade keeping more than one handgun assembled and operable in the home. (3)

Likewise, the Court did not explicitly forbid the enactment of laws establishing restrictive firearms licensing laws and ordinances. New York City requires residents to have a pistol permit to own a handgun legally, but the law is administered so stringently that virtually no residents of New York City other than retired police officers are able to get a permit. (4) It costs $431.50 just to apply for a handgun license (including fingerprinting charges), the fees are nonrefundable, and the odds are stacked heavily against the application being approved. (5) For example, in 1987, only twenty-one percent of applications were approved. (6) Applicants may be denied if they had a moving violation in their driving history, failed to get fingerprinted, or failed to provide all the voluminous paperwork and documentation required.

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