5 Questions: A Constitutional Expert Discusses Gun Control

Georgette Jasen
June 21, 2016

As the country mourned 49 deaths in the worst mass shooting in U.S. history and wondered what could have been done to prevent the tragedy, Democrats and Republicans introduced gun-safety measures in the Senate. Opponents, led by the National Rifle Association, cite the second amendment to the U.S. Constitution as they challenge limits on access to firearms.

On June 20, the Senate rejected the latest federal proposals to improve gun safety, and those introduced after the shootings in San Bernardino and Sandy Hook also failed. But some state proposals have been more successful. On Monday, the U.S. Supreme Court refused to hear a challenge to a Connecticut law making it a crime to sell or possess semiautomatic rifles, letting the law stand. Earlier in June, the Ninth Circuit Court of Appeals upheld a California law limiting the right to carry a concealed weapon outside the home.

Jamal Greene, vice dean and professor at Columbia Law School, and an expert on constitutional law, considered some of the legal issues in the current situation.

Q. How do you interpret the Constitution on the right to bear arms?

A. The Second Amendment provides Americans with a basic right to possess firearms in their home. Like all constitutional rights, that right is subject to limitation for compelling reasons. The dangers of gun violence give significant leeway to federal, state, and local governments to restrict who may possess dangerous weapons, the types of weapons Americans may possess and use, and where they may possess and use such weapons.

Q. What does this mean in the 21st century? Does the right to bear arms include assault weapons?

A. Much of the Constitution was written 200 years ago. Applying the document's guarantees to modern circumstances requires the exercise of judgment on the part of public officials and judges. The right to bear arms clearly does not include the right to bear any arms and under any circumstances. An "assault weapon" is a legal term rather than a particular type of gun, and its definition varies across jurisdictions. Whether a ban on certain types of semiautomatic weapons is constitutionally permitted would depend on the specifics of the law and the jurisdiction at issue.

Q. The Orlando shooter at one point was on a terrorist watch list, which may have stopped him from getting on a plane. Why couldn’t it stop him from buying guns?

A. There is no law in place that prevents people on the terrorist watch list from buying guns. So had federal authorities done so, they would have been violating the law. Whether the Constitution permits the federal government to ban people on the terrorist watch list from buying guns depends on details about how that list is generated, about which I am not well informed. Whether the government may prevent them from possessing guns is a more difficult question. Federal gun legislation likely must focus on sale rather than on possession in order to pass constitutional muster, since the federal government may regulate interstate commerce, but lacks a general police power.

Q. Omar Mateen made statements that frightened co-workers, his ex-wife says he was abusive. Should that have kept him from buying guns?

A. The government certainly can prevent people convicted of violent crimes from buying guns and federal law restricts the ability of people convicted of domestic violence to purchase firearms. But a complaint of domestic abuse in the absence of a conviction would not be sufficient under federal law. Mere suspicion of terrorist involvement raises both due process and Second Amendment issues that cannot be answered in the abstract.

Q. Is there anything we can do as a free society to prevent tragedies like the one in Orlando?

A. The obstacle to common sense gun regulation is primarily political rather than constitutional. That said, gun control is not sufficient to prevent tragedies like what happened at Pulse. In the long term we also must address the mindset that lashes out in this way, for example, by improving access to mental health resources, by glorifying violence less in our cultural life, and by working to build bridges to disaffected people around the world.