“”A 2017 task force report on the involuntary referrals of children under Florida’s Baker Act found that one-third of them were not necessary,” according to a recent article by Kaitlin Gibbs of the University of Florida Levin College of Law. “Many children are Baker Acted more than once, which shows the initial Baker Act may not have successfully treated children with mental illness. At least thirty percent of all children Baker Acted will have a repeat Baker Act within five years.”
Nor is throwing people into mental wards likely to reduce the number of mass shootings. As Ragy Girgis, a clinical psychiatrist at Columbia University, wrote in 2022, “Serious mental illness—specifically psychosis—is not a key factor in most mass shootings or other types of mass murder.” And while 25 percent of mass shootings “are associated with non-psychotic psychiatric or neurological illnesses, including depression,” he notes that “in most cases these conditions are incidental.”
In the case of last week’s murders in Maine, the shooter, 40-year-old Robert Card, was hospitalized during the summer. But officials say there is no evidence this hospitalization was involuntary. And Card’s history of mental illness makes him unusual among other mass murderers.”
“If DeSantis’ plan were enacted, the likely result would be a rapid increase in the unnecessary institutionalization of mentally ill individuals—and a negligible impact on criminal violence.”
“The core question in Rahimi, in other words, is whether the Court will back away from its decision in Bruen, which has led to all kinds of disastrous results, including the Fifth Circuit’s decision holding that abusive husbands have a right to keep a weapon they could use to murder their wives.”
“Bruen held that, in order to justify nearly any law regulating firearms, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” This means that lawyers defending even the most widely accepted gun laws, such as the federal ban on gun possession by domestic abusers, must show that “analogous regulations” also existed and were accepted when the Constitution was framed — particularly if the law addresses “a general societal problem that has persisted since the 18th century.” If they cannot, the challenged gun law must be struck down.
This places an extraordinarily high burden on any lawyer defending a gun law. When the historical record is ambiguous or indeterminate, the government loses, and a gun law is effectively repealed by the courts. And lawyers defending gun laws face an especially heavy burden when they defend laws that seek to address a problem, like domestic abuse, that has existed for centuries.
Almost immediately, the Bruen decision sparked mass confusion in the federal courts. Judges have reached contradictory results in a multitude of post-Bruen challenges to gun laws. Courts applying Bruen have struck laws prohibiting guns in places of worship, requiring guns to have serial numbers that allow them to be tracked by law enforcement, and prohibiting underage ownership of guns — all claiming that these laws are inconsistent with “historical tradition.””
“On the day Bruen was decided, Justice Stephen Breyer warned in a dissenting opinion that, by requiring judges to dive into often-vague and indeterminate historical records, Bruen “imposes a task on the lower courts that judges cannot easily accomplish.” “Courts are, after all, staffed by lawyers, not historians,” Breyer continued. And “legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.””
“One fundamental problem with Bruen, as Judge Miller’s critique of the decision emphasizes, is that the six Republican-appointed justices who joined it appear to have no understanding of why changes in American society over the past 250 years make it difficult or impossible to draw meaningful analogies between modern gun laws and those that existed when the Constitution was written.”
“No other high-income country has suffered such a high death toll from gun violence. Every day, 120 Americans die at the end of a gun, including suicides and homicides, an average of 43,375 per year. According to the latest available analysis of data from 2015 to 2019, the US gun homicide rate was 26 times that of other high-income countries; its gun suicide rate was nearly 12 times higher. Mass shootings, defined as attacks in which at least four people are injured or killed excluding the shooter, have been on the rise since 2015, peaking at 686 incidents in 2021. There have been 565 mass shootings in the US in 2023 as of late October, including the Lewiston shooting, and at the current pace, the US is set to eclipse the 2021 record this year.”
“According to a database maintained by Advanced Law Enforcement Rapid Response Training Center at Texas State University, there were 520 active attacks — defined as when one or more people are “actively killing or attempting to kill multiple unrelated people in a public space,” including but not limited to shootings — between 2000 and 2022. In many of those cases, police were unable to stop the attacker, either because the attack had already ended by the time they arrived or because the attacker surrendered or committed suicide. Only in 160 cases were police able to successfully intervene by shooting or otherwise subduing the attacker.
nother 2021 study from Hamline University and Metropolitan State University found that the rate of deaths in 133 mass school shootings between 1980 and 2019 was 2.83 times greater in cases where there was an armed guard present. The researchers argue the results suggest the presence of an armed guard increased shooters’ aggression and that because many school shooters have been found to be suicidal, “an armed officer may be an incentive rather than a deterrent.””
“In 2008, the Supreme Court effectively wrote NRA CEO Wayne LaPierre’s “good guy with a gun” theory into the Constitution. The Court’s 5-4 decision in District of Columbia v. Heller (2008) was the first Supreme Court decision in American history to hold that the Second Amendment protects an individual right to possess a firearm. But it also went much further than that.
Heller held that one of the primary purposes of the Second Amendment is to protect the right of individuals — good guys with a gun, in LaPierre’s framework — to use firearms to stop bad guys with guns. As Justice Antonin Scalia wrote in Heller, an “inherent right of self-defense has been central to the Second Amendment right.”
As a matter of textual interpretation, this holding makes no sense. The Second Amendment provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
We don’t need to guess why the Second Amendment protects a right to firearms because it is right there in the Constitution. The Second Amendment’s purpose is to preserve “a well-regulated Militia,” not to allow individuals to use their weapons for personal self-defense.
For many years, the Supreme Court took the first 13 words of the Second Amendment seriously. As the Court said in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias. And thus the amendment must be “interpreted and applied with that end in view.” Heller abandoned that approach.
Heller also reached another important policy conclusion. Handguns, according to Scalia, are “overwhelmingly chosen” by gun owners who wish to carry a firearm for self-defense. For this reason, he wrote, handguns enjoy a kind of super-legal status. Lawmakers are not allowed to ban what Scalia described as “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.”
This declaration regarding handguns matters because this easily concealed weapon is responsible for far more deaths than any other weapon in the United States — and it isn’t close. In 2021, for example, a total of 14,616 people were murdered in the US, according to the FBI. Of these murder victims, at least 5,992 — just over 40 percent — were killed by handguns.”
“One of the most common types of new laws this year are those that allow handgun owners to carry a concealed gun without a permit. Florida, Nebraska and South Carolina have passed such laws, joining 23 other states that have passed permitless concealed carry since 2010. North Carolina advanced a similar law that was shelved earlier this month, but the state legislature did repeal a law that required a permit to buy a handgun, overriding the Democratic governor’s veto.
Other states have considered expanding the areas in which concealed weapons can be carried. In Mississippi, the state Board of Education implemented a policy last year to comply with a decade-old law that allowed guns in K-12 schools. In West Virginia, guns are now allowed on public college and university campuses, a similar law to one Tennessee considered. The Iowa state House passed a bill allowing legal gun owners to keep a weapon in their car on public grounds and decriminalized the carry of concealed weapons for certain people, like those deemed a danger to themselves or others. The Missouri House advanced a law allowing guns in places of worship and on public transportation.
Many of these gun-rights expansions are also geared toward schools. After the Uvalde, Texas, school shooting that killed 19 children and two teachers, the Republican Party promoted arming teachers as a way to increase school safety, and states have since begun passing laws allowing it. Last year, Ohio passed a law allowing teachers to be armed after 24 hours of training (down from 700 hours); this year, Mississippi passed a bill that would create a program to arm teachers, and Oklahoma has considered one similar to Ohio’s, though its legislative session is almost over. Texas’s legislature is considering a law that would offer a stipend to armed teachers, and Indiana has passed a bill allowing state-funded handgun training for teachers.”
“We don’t know much about the effects most of these specific laws will have, because longstanding roadblocks on gun-related research mean we don’t know a lot about what kinds of gun laws prevent shootings, especially mass shootings. More than 20 years of research has found that increased availability of guns is associated with higher rates of homicide, and a 2014 study in the Journal of Urban Health found that a repeal of Missouri’s permit requirement for handgun purchases contributed to a 25 percent increase in firearm homicide rates in the five years that followed.”
“many states are working to prevent the kind of data collection that would tell us more about the relationship between guns and gun violence. The federal government doesn’t track gun purchases. To fill in the gaps in that data, the gun-safety advocacy community has tried to work with credit-card companies to track gun purchases, according to Holihan. But Arkansas, Florida, Montana and Utah are among the states that have passed new legislation preventing “discrimination” against gun manufacturers in an effort to stop that practice before it starts, and credit-card companies have backed away from it. South Dakota Gov. Kristi Noem has also banned state agencies from working with banks that track gun purchases.”
“Yet the perpetrator, who was killed by a police officer at the scene, had been licensed as an armed security guard, which means he passed a background check and was legally allowed to own firearms.
In that respect, the killer was typical of people who commit crimes like this. That is the main reason why expanded background checks cannot reasonably be expected to have much of an impact on mass shootings, contrary to the impression left by politicians who reflexively recommend that solution.
Federal law disqualifies broad categories of Americans from owning firearms, including people who have been convicted of felonies or subjected to court-ordered psychiatric treatment. Background checks are required for all gun sales by federally licensed dealers, and some states extend that requirement to transfers by private sellers.
As several news outlets noted after the Allen attack, Texas is not one of those states. But that detail does not seem relevant in this case: Although the killer bought some guns from private sellers, CNN reported, the rifle he used in the attack was “purchased legally,” meaning he was not a “prohibited person” under federal law.”
“In 2020, gun violence surpassed traffic accidents, cancer, suffocation, and poisoning as the leading cause of death among children and teens. That makes the US exceptional: In no other wealthy or similarly sized country is gun violence one of the top four causes of death among children and teens, let alone the leading one, according to a 2022 analysis by the Kaiser Family Foundation. That analysis also showed that the US accounts for 97 percent of all child and teen firearm deaths among its peer countries.
Most of those US deaths are caused by assault, with 3.6 children and teens per 100,000 dying on that account in 2020. By comparison, 1.7 and 0.3 per 100,000 children and teens died from firearm suicide and unintentional or undetermined firearm-related causes, respectively.
Children and teens in the US also experience ongoing secondary effects from gun violence, even if they are not injured in a shooting. Researchers at Penn Medicine found in a 2021 study of more than 2,600 shootings that there was a significant spike in emergency department visits for mental health issues among children after neighborhood shootings, with the most acute effects observed among children living closest to the site of the shooting and those who have witnessed multiple shootings.”
“54 percent of the approximately 77 million gun owners in the US do not practice safe gun storage, according to a 2018 Johns Hopkins Bloomberg School of Public Health survey. And one-third of these households with dangerously stored guns are also home to children.
This is a fact that should alarm us. In 2020, firearms surpassed car accidents as the leading cause of death for American children, with 4,357 children killed by gunfire that year. While the majority of child deaths from guns are due to homicide, an average of 35 percent between 2018 and 2021 were suicides, while 5 percent were caused by unintentional, accidental shootings.”
“The distinguishing feature of “stand your ground” laws is that they eliminate the duty to retreat for people confronted by threats of violence in public places. The shooting of Ralph Yarl did not happen in a public place; it happened on the doorstep of the man who shot him. The shooting of Kaylin Gillis likewise happened on the property of the man who killed her. New York, in any event, is not one of the 28 states with “stand your ground” laws. And as Reason’s J.D. Tuccille notes, the Texas cheerleaders, Payton Washington and Heather Roth, “were chased by their assailants, which isn’t self-defense by any understanding.”
So why does NPR suggest that any of these defendants might successfully invoke a “stand your ground” defense? You got me.
A recent New York Times article that begins by citing the shootings in Missouri and New York is equally hazy on the relevance of “stand your ground” laws. Reporter Adeel Hassan compounds the confusion by mentioning a Florida jury’s 2013 acquittal of George Zimmerman, who was charged with second-degree murder and manslaughter after he shot 17-year-old Trayvon Martin.
Zimmerman argued that he reasonably feared for his life when Martin pinned him to the ground, punched him, and smacked his head against the pavement. That account was supported by physical evidence and witness testimony. Given those circumstances, the absence of a duty to retreat did not figure in Zimmerman’s defense or in the verdict.
Politico reporter Brakkton Booker nevertheless asserts that Florida’s “stand your ground” law was “central” to Zimmerman’s trial. Booker also thinks the shooting of Ralph Yarl “has all the ingredients to revive the national debate over ‘stand your ground’ laws,” although he never explains why.
Hassan at least correctly distinguishes between “the common-law ‘castle doctrine'” and “stand your ground” laws. The castle doctrine says people have no duty to retreat when they are confronted by intruders in their own homes. “Stand your ground” laws, Hassan notes, “go further” because they “apply anyplace where a person has a legal right to be, not just at home.” He cites Florida’s law as an example.”
“Texas has a similar law. It allows someone to use deadly force when he “reasonably believes” it is “immediately necessary” to protect himself against the “use or attempted use of unlawful deadly force.” It adds that “a person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.””
“Homicide defendants do sometimes invoke the absence of a duty to retreat in public places, although often implausibly and unsuccessfully, and there is a legitimate debate about whether that extension of self-defense law is fair and prudent. But that debate is muddied whenever news outlets bring up the controversy in contexts where it is plainly irrelevant.”