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Gun control, the Second Amendment and the judges of the U.S. Supreme Court | Explained

admin — Wed, 26 Jun 2024 14:51:45 +0000

The story so far: On June 21, the U.S. Supreme Court upheld a federal gun control law intended to protect victims of domestic violence, in a landmark 8-1 ruling. In United States vs Rahimi, the Court was tasked with deciding whether a statute prohibiting a person subject to domestic violence restraining orders is violative of the Second Amendment to the Constitution.

The Second Amendment reads as follows: “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.”

In the present case, Texas man Zackey Rahimi had threatened to shoot his ex-girlfriend, who had also obtained a restraining order against him, and also engaged in six shooting incidents (with no fatalities) Mr. Rahimi’s case reached the Supreme Court after prosecutors appealed a ruling that threw out his conviction for possessing guns while subject to a restraining order. A federal appeals court in New Orleans had struck down the 1994 law.

In an 8-1 decison, the Court held that a law may impose criminal penalties for gun possession without violating the Second Amendment if the person is considered a danger to others by the judge. Authoring the Court’s opinion, Chief Justice John Roberts wrote, “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

This decision, while welcome by gun rights advocates, did little to clarify the Second Amendment jurisprudence in the nation. This was the Court’s first major Second Amendment case since 2022, when its decision in Bruen expanded gun rights and proposed a historical analogue test to guide decisions about laws restricting guns.

Gun rights and control is a contentious, often litigated issue in the United States. And gun violence in a growing public menace. Recently, U.S Surgeon General Vivek Murthy declared gun violence a public health crisis in the U.S, due to the increasing number of injuries and deaths caused by firearms.

Against the backdrop of the increasing gun violence and a growing jurisprudence (and confusion) over the status of gun laws in the country, we examine the Second Amendment, a few recent cases and what guides decision-making about this issue in the U.S.

Recent cases: Cargill and Rahimi

The Supreme Court started its present session on October 3, 2023, and is expected to rule on several important cases dealing with different constitutional matters— including the First and Second Amendment— by the end of June 2024.

Last week, in Garland vs. Cargill, the Court had overturned a Trump-era ban on bump stocks, rapid-fire gun accessories which were used in the 2017 Las Vegas shooting— the deadliest mass shooting in modern U.S. history. The Court held that the Justice Department had overstepped its authority in imposing the ban. The Senate also voted down a bill that proposed to outlaw stocks, which was intoduced after the Court’s decision.

However, the decision in Rahimi unfolded in a different manner.

In November 7, the Court heard arguments in United States v. Rahimi, a gun control case centering on a Texas man named Zackey Rahimi. Rahimi was convicted under a 1994 federal law [18 U.S Code Section 922(g)(8)] that prevents a person subject to a domestic violence restraining order from possessing a firearm— he had assaulted his girlfriend, and she filed for restraining order post the end of their relationship. Rahimi is now serving a six-year prison sentence and challenged his conviction, saying it violated his Second Amendment right to keep and bear arms. While the U.S 5th Circuit Court ruled in his favour, the Biden administration appealed and the case made its way to the Supreme Court.

The U.S Circuit Judge Cory Wilson had noted that Rahimi was involved in several shootings in Arlington, Texas over the course of two months. When police showed up with a warrant to search Rahimi’s house as a possible suspect, he admitted to possessing guns, despite being subject to the domestic violence restraining order which disallowed him from owning them. The appeals court had initially upheld the conviction under a balancing test which also considered whether the restriction enhances public safety. But the panel altered course after the decision in Bruen.

During hearings in the Supreme Court in November, some judges expressed concerns that a ruling favouring Rahimi may also call into question a background check system based on domestic violence protective orders. According to the Biden government, this system has helped stop more than 75,000 gun sales over the last 25 years.

Gun control groups and advocacy groups supporting domestic violence victims had urged the Court to uphold the law. Meanwhile, gun rights groups supported the previous ruling in Rahimi’s favour, saying that the appeals court was right in looking at history and finding no restriction which could justify the firearms ban today.

The Court eventually found against Rahimi, in an 8-1 ruling. Justice Clarence Thomas was the sole dissenting judge.

Post the judgement, U.S Attorney General Merrick B. Garland issued a statement, saying that the law “protects victims by keeping firearms out of the hands of dangerous individuals who pose a threat to their intimate partners and children.”

“As the Justice Department argued, and as the Court reaffirmed today, that commonsense prohibition is entirely consistent with the Court’s precedent and the text and history of the Second Amendment.,” it noted. “The Justice Department will continue to enforce this important statute, which for nearly 30 years has helped to protect victims and survivors of domestic violence from their abusers.”

Bruen and the historical analogue test

Friday’s case stemme directly from the Bruen decision in June 2022, which not only expanded Americans’ gun rights under the Constitution but also changed the way courts are supposed to evaluate restrictions on firearms.

In June 2022, the Court, which has a 6-3 conservative majority, expanded gun rights inNew York State Rifle & Pistol Association v. Bruen. In this case, the Court invalidated New York State’s limits on carrying concealed handguns outside the home. In doing so, it created a new test for assessing firearms laws, saying restrictions must be “consistent with this nation’s historical tradition of firearm regulation,” not simply advance an important government interest. In Bruen, Justice Clarence Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791, when the Second Amendment was ratified.

What constitutes a historical analogue has, however, not been defined. In an interesting turn of events, Judge Carlton Reeves of the Southern District of Mississippi Court proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions” to decide the constitutionality of a federal law barring felons from possessing firearms. Scholars have also questioned the premise that the Second Amendment created an individual right to bear arms, saying that the right was first established in 2008 in District of Columbia v. Heller

Bruen had a major impact. Lower courts overturned thirty-one gun laws in the eight months following the Bruen decision, a study by gun-safety organisation Giffords found.

The decision in Rahimi however, saw the majority in the Supreme Court state that the lower courts did not have to identify exact replicas of historic laws to uphold modern-day gun restrictions. The opinion, authored by Chief Justice John G. Roberts Jr., said that a law can impose criminal penalties for gun possession without violating the Second Amendment as long as a judge finds the person to be a danger to others.

Authoring a concurrence, Justice Ketanji Brown Jackson, a member of the court’s liberal wing, highlighted that Bruen had created uncertainty, suggesting that it was the high court’s fault for not providing clarity for lower courts to follow.

Justice Amy Coney Barrett, a conservative, wrote a concurrence where she questioned how lower courts were seeking quasi-parallel historic laws while considering a modern law. “Imposing a test that demands overly specific analogues has serious problems….It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’” she wrote.

The Court’s sole dissenting member, Justice Clarence Thomas maintained that the Supreme Court’s decision in Bruen was straightforward. Modern gun laws needed to be “consistent with the nation’s historical tradition of firearm regulation” to ensure they did not violate the Second Amendment.

Other gun cases: recent and pending

The Supreme Court has been facing a slew of gun rights cases, and is likely to face more.

In last October, the US Supreme Court refused to revive a controversial Missouri law that prohibits local law enforcement from helping federal officials enforce federal gun regulations. It also sided with the Biden administration on ghost guns, blocking a Texas federal judge’s ruling that would have prevented the government from enforcing a rule by the Bureau of Alcohol, Tobacco, Firearms and Explosives against two manufacturers of gun parts. (Ghost guns are firearms without serial numbers that virtually anyone can assemble from parts, often purchased in a kit.) In both cases, the Court’s conservative justices dissented.

Now Rahimi is expected to influence outcomes in several other pending cases.

One important case centres on the prosecution of Hunter Biden, President Joe Biden’s son, who was convicted for three felonies pertaining to the purchase of a revolver in 2018, when he allegedly lied about his drug addiction on a federally-mandated gun-purchase form. His lawyers have indicated that they will appeal his conviction.

Another case that bears relevance to Hunter Biden’s and has been appealed to the Supreme Court is one where a Mississippi man challenged a federal law which criminalises owning a weapon while being an “unlawful user of or addicted to” drugs. The 5th Circuit ruled in the man’s favour. A similar challenge was raised in U.S vs. Daniels, which was decided by the 10th Circuit Court of Appeals. In another case, a Pennsylvania man challenged a federal law prohibiting felons, including non-violent ones, from possessing guns; the man had been convicted of welfare fraud for lying on a form to obtain food stamps.

Other cases waiting in the wings deal with challenges to Illinois’ ban on “assault weapons” and New York’s regulations on carrying concealed firearms.

Besides gun rights, the Court has also handed down a slew of decisions on constitutional matters in June. One such case, Vidal v. Elster, was a trademark case centring around the phrase “Trump too small,” inspired by a debate joke in 2016.

Interestingly, the case saw Amy Coney Barrett break with fellow Conservative justice Clarence Thomas, on the question of historical analogues and precedent, albeit in a case related to the First Amendment instead of the Second. She wrote, in a part concurrence, that the Court in its opinion, “never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.”

“Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test,” she wrote, “And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.”

Public attitudes towards guns

As gun control cases play out in the Courts, guns remain a sensitive issue in politics and the public domain. In the U.S, conservatives largely tend to favour protection and expansion of rights to own guns, while liberals tend to argue for gun control.

According to a Pew Research Center survey, around eight-in-ten Biden supporters (83%) say the increase in guns in the U.S. is at least somewhat bad for society. Only 21 % of Trump voters hold this position; 40% believe it is good, while 13% believe it is neither good nor bad.

Meanwhile, 85% of Trump supporters say it is more important to protect the right of Americans to own guns as compared to 19% of Biden supporters.

This is amid a rising tide of gun violence, with mass shootings in publics spaces and schools remaining a major safety concern.

In another Pew Research Center study, a majority of public school teachers- 59%- say they are at least somewhat worried about shootings taking place at their school, including 18% who say they are extremely or very worried. About a quarter (23%) say that they experienced a lockdown in 2022-23 related to a gun or the suspicion of a gun in their school.

The impact of gun violence is also unevenly distributed across demograpgics. In her concerrence in Rahimi, Justice Sonia Sotomayor highlighted that women living domestic abusers are five times more likely to be killed if there is access to a gun. A U.S-based study also noted that more than 70 people are shot and killed each month by a partner.

Also read:Explained | Gun laws in countries outside the U.S.

Interpreting the Constitution

Much of the judicial debate surrounding the Second Amendment boils down to varying theories of interpreting the American Constitution, authored in 1787. The Second Amendment itself was ratified in 1791.

There are several theories of statutory interpretation, used to better understand the bare text of the law— including Constitutions. Former Associate Justice of the U.S Supreme Court Oliver Wendell Holmes Jr. said, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” Justice Holmes, Jr. is one of the key names associated with legal realism; this quote summarises the core tenet at the heart of this theory. Legal realism is defined as a theory that all law derives from prevailing social interests and public policy. In legal realism, judges are expected to consider not merely the rules, but also social interests and public policy to decide a case.

Legal realism can be contrasted with legal formalism, which postulates that “legal rules stand separate from other social and political institutions.” Thus once laws have been created, judges are to apply them to the facts of a case, without taking into account matters relating to social interests or public policy.

A specific theory that has been subject of much discussion in the context of the US Supreme Court is originalism, which postulates that the text in the law, particularly in the United States Constitution, should be interpreted as it was understood at the time of adoption of the Constitution. This original meaning is to be gauged from the ideas of the framers of the constitution, or the Founding Fathers, or from public events, debates, dictionaries and documents belonging to that time. One of the key proponents of originalism was Supreme Court Justice Antonin Scalia.

Originalism itself can be contrasted with the living constitutionalism theory, which asserts that the Constitution is living and can evolve with society, and that the meaning of constitutional texts changes over time.

Legal experts and essayists have drawn out threads and highlighted the jurisprudence and legal philosophies underpinning the individual decision-making of judges. Further, judges themselves have revealed the principles that guide their judging during confirmation hearings, or speeches and articles in various public fora. It is these principles that can be gleaned from their current decisions in Constitutional cases as well.

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Gun Violence A Public Health Crisis In US, Declares Surgeon General

admin — Tue, 25 Jun 2024 17:44:54 +0000

Provisional data indicates that over 48,000 US citizens died due to gun-related injuries in 2022. (File)

Washington:

In a new advisory released on Tuesday, US Surgeon General Dr Vivek Murthy said that gun violence in the country is an urgent public health crisis that demands the “collective commitment of the nation” to put an end to it, reported CNN.

This is the first Office of the Surgeon General publication that specifically addresses gun violence and its “deep consequences” for victims, communities, and mental health.

The US Department of Health and Human Services states that a surgeon general’s advice is usually used to highlight important public health issues.

The advise released on Tuesday outlines the terrible effects of gun violence in the US and provides information on how public health initiatives can be helpful.

Provisional data indicates that over 48,000 US citizens lost their lives as a result of firearm-related injuries in 2022 alone. Homicides, suicides, and accidental deaths were all included in that total. The recommendation states that the number of firearm-related deaths in the US has been increasing and will peak in 2021 at three decades, reported CNN.

According to the advice, since then, there has been a decline in gun-related killings but the number of gun-related suicides has remained relatively constant. The caution states that although mass shootings are still uncommon–they account for only 1 per cent of gun fatalities–the frequency of these events has been increasing.

The Surgeon General’s advisory underlined, how people of colour are “disproportionately impacted” by gun violence, reported CNN.

The recommendation states that firearm violence can have a negative impact on mental health in addition to the physical issues it can cause.

According to the advisory, youngsters are especially prone to fearing gun violence, with many of them believing that their school will be the scene of such carnage. It states that in order to understand how to lower and prevent firearm violence in the US, additional funding for guns research is required. Investments should be made with a focus on improving data gathering and preventative tactics, CNN reported.

The guideline calls on healthcare providers and communities to take proactive measures to support populations that are most at risk of this type of violence.

“There are no federal standards or regulations regarding the safety of firearms produced in the US,” the advisory says.

In the past few weeks, the US has witnessed several shooting incidents, with at least 21 other mass shootings recorded by the Gun Violence Archive since last Friday. According to CNN report, the Gun Violence Archive regards mass shootings as ones in which four or more people are shot, excluding the shooter.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

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U.S. surgeon general declares gun violence a public health emergency

admin — Tue, 25 Jun 2024 10:38:34 +0000

U.S. Surgeon General Dr. Vivek Murthy.
| Photo Credit: AP

The U.S. Surgeon General on June 25 declared gun violence a public health crisis, driven by the fast-growing number of injuries and deaths involving firearms in the country.

The advisory issued by Dr. Vivek Murthy, the nation’s top doctor, came as the U.S. grappled with another summer weekend marked by mass shootings that left dozens of people dead or wounded.

“People want to be able to walk through their neighbourhoods and be safe,” Dr. Murthy told The Associated Press in a phone interview.

“America should be a place where all of us can go to school, go to work, go to the supermarket, go to our house of worship, without having to worry that that’s going to put our life at risk.” To drive down gun deaths, Dr. Murthy calls on the U.S. to ban automatic rifles, introduce universal background checks for purchasing guns, regulate the industry, pass laws that would restrict their use in public spaces and penalise people who fail to safely store their weapons.

None of those suggestions can be implemented nationwide without legislation passed by the Congress, which typically recoils at gun control measures. Some state legislatures, however, have enacted or may consider some of the surgeon general’s proposals.

Dr. Murthy said there is “broad agreement” that gun violence is a problem, citing a poll last year that found most Americans worry at least sometimes that a loved one might be injured by a firearm. More than 48,000 Americans died from gun injuries in 2022.

His advisory promises to be controversial and will certainly incense Republican lawmakers, most of whom opposed Dr. Murthy’s confirmation — twice — to the job over his statements on gun violence.

Dr. Murthy has published warnings about troubling health trends in American life, including social media use and loneliness. He’s stayed away from issuing a similar advisory about gun violence since his 2014 confirmation as surgeon general was stalled and nearly derailed by the firearm lobby and Republicans who opposed his past statements about firearms.

Dr. Murthy ended up promising the Senate that he did “not intend to use my office as surgeon general as a bully pulpit on gun control”. Then-President Donald Trump dismissed Dr. Murthy in 2017, but President Joe Biden nominated Dr. Murthy again to the position in 2021. At his second confirmation hearing, he told senators that declaring guns a public health crisis would not be his focus during a new term.

But he has faced mounting pressure from some doctors and Democratic advocacy groups to speak out more. A group of four former surgeon generals asked the Biden administration to produce a report on the problem in 2022.

“It is now time for us to take this issue out of the realm of politics and put it in the realm of public health, the way we did with smoking more than a half century ago,” Dr. Murthy told the AP.

A 1964 report from the surgeon general that raised awareness about the dangers of smoking is largely credited with snubbing out tobacco use and precipitating regulations on the industry.

Children and younger Americans, in particular, are suffering from gun violence, Dr. Murthy notes in his advisory called “Firearm Violence: A Public Health Crisis in America”. Suicide by gun rates have increased significantly in recent years for Americans under the age of 35. Children in the U.S. are far more likely to die from gun wounds than children in other countries, the research he gathered shows.

In addition to new regulations, Dr. Murthy calls for an increase on gun violence research and for the health system — which is likely to be more amenable to his advisory — to promote gun safety education during doctor visits.

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A Hub for Gang Recruitment Amid Rising Gun Violence

admin — Mon, 24 Jun 2024 08:44:26 +0000

Sweden has by far the highest per capita rate of gun violence in the EU.

Gothenburg:

The killer was only 14 and had lived in youth homes as a ward of the authorities since he was eight.

A year ago, a gang helped the boy escape, put him up in a hotel, and gave him cannabis, food, and new clothes. Six days later, gang members told him it was time to repay them for their kindness. They had a job for him.

Together with another youth, the boy, who as a juvenile cannot be identified, shot dead a 33-year-old Hells Angels biker. He was convicted by a court that described the case as a gangland contract killing.

As he was too young to be sentenced, he was handed back to social services and sent to another youth home.

Sweden has long prided itself on one of the world’s most generous social safety nets, with a state that looks after vulnerable people at all stages of life.

But these days it also has another distinction: by far the highest per capita rate of gun violence in the EU. Last year 55 people were shot dead in 363 separate shootings in a country of just 10 million people. By comparison, there were just six fatal shootings in the three other Nordic countries – Norway, Finland, and Denmark – combined.

In an increasing number of cases, courts have found the epidemic of violence emerging from Sweden’s archipelago of youth homes, built to serve the dual purpose of looking after children in state care and punishing youth offenders.

According to accounts for this story from eight sources including a former gang member, several youth home workers, prosecutors and criminologists, the homes have turned into recruiting grounds for gangs, who use them to enlist killers too young to be jailed.

TROUBLED TEEN TO ‘CAREER CRIMINAL’

Yayha, now 23, was first sent to a youth home at 16, finding himself bunking with seven other boys in a dormitory wing in Gothenburg, the gritty port city on Sweden’s west coast that houses the biggest harbour in Scandinavia.

His father had died a couple of years earlier. He had dropped out of school and was convicted of assault and theft, beating up other kids, and stealing their phones and clothes.

During his year in the home, members of one of Gothenburg’s criminal gangs became his new family, he told Reuters in a coffee shop by the harbour in the city where he now works as a carpenter after escaping the gang life.

“I was a troubled teen when I entered and came out a career criminal. I went from fighting and stealing from other kids to selling drugs by the kilo,” said Yayha, who asked that his surname not be used to prevent his former gang from finding him.

“You wanted the respect, the clothes, the rings, the money but also friendship. They were the people you hung out with anyway. Later it became more serious and you had to do things that you really didn’t want to, but that is the way it works.”

The wave of violence has come to overshadow all else in Swedish politics, driving the rise of a rightwing coalition with the support of the far right, which came to power in 2022, ending the latest eight-year period of rule by the Social Democrats, Sweden’s dominant political party since the 1930s.

The new government has promised to tackle crime. So far it has further restricted Sweden’s previously generous immigration policies, introduced harsher sentences for gun crimes, and given police increased surveillance powers. Even the military has been called on to help out.

“It is obvious that our system wasn’t built for this type of criminality,” Justice Minister Gunnar Strommer told Reuters.

He said the government was working on a revamp of the entire youth criminality prevention system, including giving more powers to social services. New youth prisons would house the most hardened criminals, keeping them separate from youth homes.

“I think it is clear that in reality, the state-run homes have functioned as a kind of recruitment base from the criminal networks,” Strommer said. “It’s a monumental failure.”

‘LINKEDIN FOR YOUNG CRIMINALS’

Sweden’s youth homes have varying degrees of security, with around 700 of the most troubled youths housed in 21 homes run by a state body, the National Board of Institutional Care (SiS).

Children with social problems can find themselves sleeping in beds next to those who have committed serious crimes. Most children stay for less than a year but some can be held for up to four years.

The homes are often fenced off, with schools and parks on the premises. While the youths are not allowed to leave without permission, security is often lax.

Residents have access to phones and tablets making it possible for gang members to contact them from outside. In one case now being tried, prosecutors have charged a boy of 15 with planning and ordering three murders in Stockholm from inside a youth home.

Birgitta Dahlberg, head of youth care at the SiS, told Reuters it was unfair to blame the homes for their inability to deal with serious violent offenders, which they were not designed to handle.

“When it comes to serious criminality, it is fair to say that the legislation has not given us the right conditions,” she said, noting that until regulations were changed just weeks ago staff did not even have sufficient authority to take away residents’ mobile phones.

Children as young as 12 are often gang members already by the time they arrive, said Alexander, who works at the Gothenburg home where Yahya stayed. He declined to give his surname as he was not authorised to speak publicly.

“Out of our 40 boys, around half are gang affiliated when they come here,” he told Reuters.

“If you put two new kids in a wing where six out of eight inmates are with the Foxtrot gang, it doesn’t take a genius to figure out what could happen,” he said, referring to one of the largest gangs believed to have hundreds of members.

Two other youth home workers, speaking on condition of anonymity, gave similar accounts of rampant gang membership among their charges.

In theory, the youth homes aim to rehabilitate young offenders to prevent them from becoming adult criminals. But according to a report released weeks ago by the Swedish National Audit Office which supervises the government, nine out of ten gang-affiliated youngsters at youth homes go on to relapse into crime, and almost eight out of ten eventually end up in prison.

The youth homes seem to do more harm than good, said Stockholm prosecutor Lisa dos Santos, who has handled numerous cases of youth gang crimes.

“One police officer described them as LinkedIn for young criminals,” she said. “You wonder what effect they have had in spreading gang crime when boys from different parts of the country are put together.”

While Swedish law allows criminal prosecution of people as young as 15, those under 18 are very rarely sent to prison even for serious crimes. Dos Santos said gangs are exploiting this, deliberately recruiting children to commit acts that would lead to a long jail sentence for an adult.

Sweden has about 14,000 active gang criminals and an additional 48,000 people loosely affiliated with gangs, according to a police report last year.

Other European countries such as the Netherlands, France, and Belgium are also struggling with violent gangs, but Sweden has outpaced them all in gun violence, by wide margins.

In 2022, there were 73 youths in Sweden aged 15-20 suspected of murder or attempted murder with firearms, up from just 10 a decade earlier, according to the Crime Prevention Board, a government agency.

According to EU statistics agency Eurostat, 25 people aged 15-24 were killed by gun violence in Sweden in 2021, second in the EU only to France, which had 40 such deaths across a population six times the size of Sweden’s.

Nils Duquet, director of the Flemish Peace Institute, a leading European gun violence think tank, said the reliance of Sweden’s gangs on young recruits to commit violent crimes had created a different culture around guns than elsewhere in Europe.

Elsewhere, criminal gangs tend to reserve access to guns for older and more senior members, he said. In Sweden, the youngest are expected to pull the trigger.

“Because there are so many young criminals with access to guns, that makes it so violent,” Duquet said.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

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