Americans are, once again, confronting a mass shooting—this time at a school in Parkland, Florida, where 17 students and teachers were killed and dozens more injured, some critically, on February 14, 2018. While mass shootings in Las Vegas, Orlando, and Newtown make the headlines, there are many more each year. In the Q&A that follows, Stanford Law Professor John Donohue III discusses gun safety law and legislative developments.
It has been reported that the suspect in the Florida school shooting purchased an assault weapon legally. Is Florida unusual in that respect—can most Americans purchase this powerful a firearm?
After the federal assault weapons ban lapsed in 2004, Americans who were at least 18 years of age could buy semi-automatic rifles everywhere in the United States, subject to some restrictions in a relatively small but growing number of states. For example, California, New York, Connecticut, Maryland and a number of other states have passed state assault weapons bans that prohibit at least some semi-automatic rifles, and––perhaps most importantly––restrict the number of bullets in the gun magazine to ten (as the now lapsed federal assault weapons ban had from 1994-2004). For comparison, Canada limits magazine size to five bullets.
After each mass shooting there is a push to better identify mentally ill people and prevent them from purchasing firearms—and to do the same for people convicted of spousal abuse or those prone to violence. Have we had any new laws passed in Congress recently to address these issues and other measures that might help?
Unfortunately, no. In fact, the Trump Administration and the House of Representatives teamed up to overturn an Obama-era regulation that added 75,000 severely mentally disabled individuals who were collecting disability benefits to the existing background check system, which shows that the frequent NRA invocation that the problem is mentally ill individuals with guns is simply another part of the charade to divert attention from reasonable gun safety measures.
The only gun-control item that has garnered any possible support among Republicans is a bill that would improve aspects of the background check system. Even this bill is simply trying to make the information in the system more complete. It is not designed to take the unambiguously positive step of requiring universal background checks, which is needed if there is to be any hope of progress towards keeping guns out of the hands of identifiably dangerous individuals. Even though 93 percent of Americans in gun households favor universal background checks (as do 96 percent of those in households with no guns), gun merchants don’t want to lose gun sales to criminals, the severely mentally ill, and other prohibited purchasers, so the Republicans have fought this provision tenaciously.
In the current Congress and Presidency, all of the recent federal legislative action has been directed towards making guns more available and removing restrictions on various gun regulations. The NRA is even pushing hard to have National Reciprocity for concealed carry permit holders so that anyone with a carry permit in, say, Florida could carry a gun in New York or California, even though that person would not be able to lawfully carry if he or she were a resident of New York or California. Similarly, gun manufacturers are hoping to overturn the federal ban on silencers, and the Republicans are pushing for this legislation, which will certainly delight criminals all across the country.
After the Las Vegas shooting in October, in which 59 people were killed, there was some movement to outlaw the mechanism that the shooter used to modified semi-automatic weapons that allowed them to be fired faster than a normal semi-automatic assault weapon. Has that gone anywhere?
It would certainly be a good idea to outlaw the bump stock mechanism that enabled the Las Vegas shooter to increase the deadly power he could inflict on the helpless concertgoers, but this Congress does not seem prepared to create a precedent of restricting guns in any way.
About how many mass shootings are there in the U.S. each year—and is it a higher number than other Western countries?
As with many issues in the gun arena, there are often highly conflicting claims, which are frequently based on different definitions. Some researchers will say that there is a mass shooting every day (on average) in the U.S. because they are talking about three or more people having been shot in a single incident. (For example, the New York Times recently stated “More than 1,600 mass shootings have taken place in America since” Sandy Hook.) The traditional federal definition of mass shooting requires four gun deaths (not including the shooter) in some public space that is not gang-related or purely intra-family violence. Under that definition a far smaller number occur, which leads some gun advocates to simply declare that mass shootings are “the price of freedom.” That argument is misguided in a number of ways. First, it ignores that these mass shootings are often the most publicly visible and wrenching crimes. While deaths from mass shootings are small relative to the overall number of homicides in the U.S., the mass shooting problem is getting worse, both in terms of frequency and deadliness: three of the worst ten mass shootings in the United States have occurred in the last five months. Second, 17 dead in a Florida high school doesn’t capture the degree of victimization from that tragedy. Seeing your best friend blown away as she stands three feet away from you is scarring even if you have not been physically harmed. A teenager running from the scene of a mass shooting is victimized even if untouched by bullets––as are students and parents around the country who visualize this nightmare. Determined steps to stop mass shootings are needed. But instead, ludicrous suggestions that mass shootings can best be stopped by more concealed carry permit holders were even given space in the New York Times two days before the Florida nightmare. But concealed carry permit holders are more likely to add to the victimization from shootings than to subtract from it, so this imaginary tale should not be given credence.
Do we have a level of mental illness that is out of sync with our peer nations—something that could explain that level of violence?
The United States has roughly comparable levels of severe mental illness as our peer nations, but we see a substantially higher rate of mass gun murders for two reasons. First, we make it very easy for disturbed individuals to procure unusually dangerous weaponry. Second, our disturbed citizens marinate in a very aggressive gun culture that glorifies the use of guns as a vehicle for asserting manliness and power over those we don’t like. Other countries don’t have the NRA pushing sales of t-shirts and posters showing targets covered with bullet holes and a well-positioned gun under the banner “Group Therapy.” Apparently, the recent 19-year-year old Florida shooter was very moved by this image, which he shared on his Instagram account.
Is the FBI partly to blame for not investigating a tip that the Florida school shooter was a threat?
The FBI did underperform in this case, but it is not clear that their intervention could have been very helpful under current law. Recall an earlier case in which the parents of 22-year-old Elliot Rodger contacted the police and specifically told them that their son was a threat to himself and others. All the police could do, though, was ask Rodger if he had any unlawful plans. When he spoke coherently and falsely denied he intended to hurt anyone, the police had to leave, even though a search of his bedroom would have revealed his weaponry and elaborate plans for a mass shooting. His killing spree started three weeks later in May of 2014 in Isla Vista, California, leaving six dead and 14 injured (before Rodger killed himself). Today in California such information could have been used to procure a gun violence restraining order, but no similar option was available to the police or the FBI in Florida. In our peer nations, the Florida shooter would not have had legal access to any firearm, let alone the deadly weaponry that facilitated his murderous rampage.
There was a federal assault weapons ban in effect from 1994-2004. Was there a dip in mass shootings during that period?
The federal ban reduced the number of fatalities and the number of individuals shot in mass shootings during that ten-year period, although the ban was far from complete as it grandfathered in an enormous existing arsenal and delayed the start date to allow gun manufacturers to flood the market with as many assault weapons and high capacity magazines as they could produce. Again, a critically important feature of the federal assault weapons ban was the restriction on high-capacity magazines to ten bullets. California voters overwhelmingly approved making such a restriction applicable throughout the state but a federal judge enjoined this law from going into effect on July 1, 2017 on the grounds that such weapons are protected under the Second Amendment. This issue may end up being resolved in the U.S. Supreme Court.
Would a ban on assault weapons help to reduce the death toll of mass shootings?
The problem of mass shootings has been effectively addressed in other countries, with Australia being the most notable success story. After a devastating mass shooting in 1996, Australia banned all semi-automatic rifles (a move far more stringent than the US federal assault weapons ban), with no grandfathering of existing weapons––it was a real ban. The result is that Australia, which had been averaging close to one mass shooting a year over the prior 15 years (a rate that was higher than the US rate of mass murder at the time when adjusted for population), has now gone almost 22 years without a mass shooting––an astonishing achievement of public policy. Australia did not have a major gun industry to contend with, however, and the economic and political power that the gun lobby wields in the US will be used to fight any such determined efforts to reduce mass shootings in our country. I should add that Australia took many additional gun control steps, such as banning “personal protection” as a reason for obtaining a gun permit. Importantly, their rates of homicide, suicide, and robbery have all trended down contrary to the assertions and predictions of the NRA. Although robbery rates in the US and Australia were once comparable, Australian robbery rates are now about half the rate of the U.S.
You’ve studied gun violence in the U.S. and in other countries. Is there a country that we could model––an example of a country in which citizens can own guns but with fuller regulation for safety?
Virtually every peer nation has a better regime to address gun violence than the United States. I have just mentioned Australia, but you can take your pick of almost any affluent nation and they are much more concerned about reducing gun violence (murder, accidents, and suicides) and much more effective in doing so. Take our neighbor to the north: “Nobody legally buys a gun in Canada without first taking the Canadian Firearms Safety Course. Then, they have to submit an application for a Possession and Acquisition License (PAL), where they’re screened by the [police] for risk factors such as criminal history and mental health.” Of course, the Florida school shooter likely would have been stopped right there from legally buying any firearm. Then, Canada specifically regulates all of the weapons used in typical American mass shootings as “restricted firearms,” which can only be used by hunters and target shooters. As in Australia and many other peer nations, Canada aggressively tries to discourage the idea that guns in private hands should be owned to shoot or threaten humans––under any circumstances.
In the U.S., the NRA constantly trumpets that “law abiding citizens” should be able to have whatever arsenal they want. Unfortunately, almost all of the mass shooters in the United States from Columbine, Sandy Hook, Aurora theatre shooting, Fort Hood, Washington Navy Shipyard, Isla Vista, Orlando nightclub, Las Vegas, to the latest disaster in Florida met the NRA definition of “law abiding citizens”––until they became mass killers.
John J. Donohue III has been one of the leading empirical researchers in the legal academy over the past 25 years. Professor Donohue is an economist as well as a lawyer and is well known for using empirical analysis to determine the impact of law and public policy in a wide range of areas, including civil rights and antidiscrimination law, employment discrimination, crime and criminal justice, and school funding.