Texas, June Grasso, Bloomberg Radio discussed on Bloomberg Law


This is Bloomberg law with June Grasso from Bloomberg radio After the tragic school shooting in Texas by a teenager who bought his AR-15 style rifle legally president Joe Biden called for action on gun control legislation that has stalled on Capitol Hill As a nation we have to ask when in God's name are we going to stand up to the gun lobby When in God's name we do we all know in our gut needs to be done But the governor of Texas Greg Abbott brushed aside calls for strict gun legislation saying gun laws don't curb violence in major cities that have them I hate to say this but there are more people who were shot every weekend in Chicago than there are in schools and Texas Joining me is an expert in Second Amendment law Joseph blocher a professor at duke law school In America we have more guns than people And there's been an upward trend in the purchase of guns since 2020 Why are Americans buying more guns Yeah there's a few things to say about it And I think one is the sheer number of guns But another is why are people buying guns As far as the sheer number I think the thing that always stands out to me is that although the number of guns in circulation seems to continue going up the percentage of Americans who own them continues to go down There was a bit of a spike during the pandemic I get the background of George Floyd the way the protests and so on But if you look over the last ten or 15 years actually the percentage of Americans who live in a household with a gun continues to decline So what that means is that the people who own guns are buying more and more but the number of people who have them continues to go down But the other thing that's changed really dramatically is the tipping point within the last ten or 15 years is that the primary reason for Don ownership has shifted It has historically been recreation and hunting And it is today self defense And so the motivation and then I think that sort of changes the mindset for gun ownership has dramatically changed too And self defense is a justification we hear a lot Even just as Brett Kavanaugh asked during the oral arguments in the case over New York's gun law why isn't it good enough to say I live in a violent area and I want to be able to defend myself This is a tricky one because so much of this is a debate about sort of hypothetical from counterfactuals And what would have happened if this person had had a gun or something I had a gun And that's tricky I think do that well requires a rigorous look at big sets of data rather than sort of trading the hypotheticals and anecdotes And there has been scholarship on this and Fowler's disagree unsurprisingly about the degree to which permissive public carry laws either do or don't reduce rates of particular kinds of violent crime I've never seen anything convincing that guns in schools would reduce the math school shootings that we've seen I mean there was an armed guard at the school in Texas And that wasn't enough President Biden has called on Congress to end gun violence by passing common sense gun laws Is federal legislation the answer I think it's going to require a variety of responses federal state and local I think there are some kinds of laws that are best known as the federal level expanded background checks would be a good example That's easiest to administer using a national influence background check system which relies on data that comes from the state But at the state level there's plenty of reforms as well Some of which have some bipartisan support and has become more popular even in the last 5 years So the passage of extreme risk protection order laws often called red flag laws That's a good example There's more than 20 states have those now almost all of them have been adopted in the last 5 years So there's a room there At the local level things are a little trickier because most states might more than 40 states now have what are called preemption laws which make it hard for local governments to regulate But in the states where local governments still have some regulatory space they could for example designate certain places like Mars or busy public areas stadiums et cetera as sensitive places where guns should be taken They might impose licensing requirements on people carrying guns into particular places So it's going to require a broad response at the federal state and local level So I want to go back because it wasn't until 2008 that the Supreme Court ruled that the Second Amendment protects the gun rights of individuals That was the Heller case and it was a 5 to four decision In European is that a true reading of the Second Amendment Yeah I should say in the interest of full disclosure here I was one of the attorneys who represented the District of Columbia In that case so I was on the loose side of that case You know my review on it now is that the question is much closer than the Supreme Court made it sound So the question for the court was whether the Second Amendment extends to private purposes like the individual use of parameters self defense against criminals or whether it is limited to the organized militia that is like state militias come into people and arms and activities having some connections to those militia I actually think that's a hard question I think that justice Scalia's majority opinion could have been much better reasoned if he were not so committed to relying on some of the historical sources that he did I think that justice Stevens in dissent had the plausibly the better of the historical argument But I think Heller itself is settled law and at least until now it has not been the problem You know the main obstacle to gun regulation is still political It's not the courts are striking down gun laws until recently anyway courts haven't been striking down many gun laws It's more that the laws are just never being first but justice Scalia's opinion is very explicit that the government retains regulatory authority over things like dangerous and unusual weapons and certain classes of persons and carrying certain places and for that matter can feel caring And so it's really kind of up to us what are we going to do in that space that Heller leaves open That space may be closed somewhat because we're waiting for this opinion from the court and most people who listen to those oral arguments are anticipating that the court is going to strike down New York's law imposing special requirements to get a handgun license Yeah I think the challenges in that case have reason to feel confident I think that the New York law at least in its current form is probably going to be struck down And what we're really waiting to hear is on what basis How broad is the Supreme Court's ruling going to be The challenge is to New York's current system for issuing permits to publicly carry a concealed handgun And the court could just say well New York standard is too strict or New York standard has too much discretion built into it And that would be a relatively limited holding It could be a big one The court could go further and say you know permit requirements for public hearing are unconstitutional or they all have to be protocols shall issue meaning based on purely objective criterion And those would be broader The other thing the court could do and I think this is the one that most in the weeds but maybe the most significant is that they could adopt a whole new test The whole new methodology for evaluating whether gun laws New York or others are constitutional And that would be what's called the test of text history and tradition which was advocated by land judge Bret Kavanaugh when he was on the D.C. circuit before he was elevated at the Supreme Court And under that test the idea would be gun laws should be evaluated based solely by reference to text history and tradition And I felt a brief in the New York case arguing that that would be a bad idea I think that's true I think that's an extreme form of originalism It's just not going to give judges guidance in most cases It would make it hard to evaluate the federal rules prohibiting guns on airplanes right What are the framers think about that Nothing I had no idea or the current federal law for having any gun possession by people who committed crimes with domestic violence not even prosecuted as a crime in the late 1700s So I think those who are really in the ceiling are keeping eye on that methodological question as well as the specimen's outcome with regard to New York's law Thanks Joseph fast professor.

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