Stanford’s John Donohue on Gun Control Legislation Since Parkland

One year after the mass shooting in Parkland, Florida, and the subsequent student-organized “March for our Lives” movement that is pushing for gun safety laws, has there been any progress? In the Q&A that follows, leading empirical scholar Professor John Donohue discusses gun violence in the U.S. and legislative progress across the country.

John J. Donohue III
Stanford Law Professor John J. Donohue III

Why does the U.S. have so many mass shootings?

The definition of mass shooting is contested, but certainly all of the trends for the most vivid crimes – involving someone who is indiscriminately firing on innocent individuals in a public space – have been troubling since the federal assault weapons ban lapsed in 2004 and Congress relieved the gun industry of liability for criminal use of their products in 2005.  Flooding the market with AR-15s and saturating unstable young men and boys with advertisements promoting the idea that these battlefield weapons will enhance their manliness and power has almost certainly contributed to this lamentable and worsening aspect of modern American life.

Indeed, the FBI has documented that from 2000-2006 there were 6.4 active shooter incidents per year and that from 2007-2013 that number rose to 16.4 per year.  The mayhem accelerated in 2014 and 2015, during which 20 incidents occurred each year,[1] and jumped further to 25 per year in 2016 and 2017.[2]

How many mass shootings have there been in the U.S. in the last year?

2018 has the unfortunate distinction of being the first calendar year in American history with four mass shootings with at least ten deaths.  Exactly one year ago, 17 people lost their lives at the high school shooting in Parkland, Fl, and three months later 10 more died at a high school in Santa Fe, Texas.  Then 11 more died In October 2018 in the Pittsburgh synagogue shooting, and 12 more died at a bar in Thousand Oaks, California in November 2018.

Have we seen a significant legislative push in Congress since the popular gun control movement led by students from Marjory Stoneman Douglas High School who survived the mass shooting at their school a year ago? I understand there is an effort underway to bring a bill on background checks to the floor.

The American people have long wanted action on many gun control proposals, but even with roughly 90 percent of all Americans (including a majority of NRA members) wanting background checks prior to any gun purchase (“universal background checks”), the stranglehold that gun makers and dealers have on the Republican party and President Trump ensures that no federal legislation will occur unless the Democrats take over both houses of Congress and the Presidency.  The Democratically controlled House may well pass some measures, but Senator Mitch McConnell will not allow any gun measures to advance in the Senate (and the NRA would lobby hard for a veto of any federal measures in any event).

What about at the state level? Have we seen any new laws that might reduce gun deaths in the U.S.?

There have been a number of state initiatives that have passed in the wake of the Parkland shooting, although most of these are only designed to nibble at the edges of the gun problem.  Still, if a school shooter is stopped by one of the newly enacted state “red flag” laws that are designed to disarm someone who poses a risk to himself or others, some parents will be able to see their children grow to maturity that would otherwise be burying them. For example, in the three months after Maryland’s post-Parkland red flag law took effect on Oct. 1, 2018, Maryland courts seized guns from 148 people after finding probable cause the individuals posed a danger to themselves or others.  Law enforcement indicated that four of these gun owners posed “significant threats” to schools.

Most of our competitor nations look at the mass shooters in the four cases mentioned above and wonder why the United States is so tolerant in allowing individuals who are clearly disturbed, deeply troubled, under age, and/or openly and darkly racist or anti-Semitic such easy access to weapons that were designed to maximize the kill capacity of U.S. soldiers in Vietnam (or are at least dramatically deadlier than any concealable weapon around in 1791).  Such unrestricted access to high-powered weaponry has become the legacy of those who believe in a super-charged Second Amendment.

What cases are you watching—at the federal or state level?

Right now, one of the most intriguing battles over gun control is playing out largely outside the awareness of most Americans.  Few even in California know that after voters approved a ban on high-capacity magazines in 2016 (Proposition 63), the NRA managed to find a federal judge who enjoined the ban from going into effect.  The NRA has also brought action in federal court to overturn California’s ban on assault weapons and limitations on concealed carry.  NRA litigation of this sort is going on around the country, and with two new conservatives appointed to the Supreme Court, joining Justices Alito and Thomas, who have been strong supporters of gun rights, the NRA believes that they are now in a position to wipe out almost every major gun control measure in the country.

Thus, while there is clearly some energy pushing the electorate in the direction of greater gun control, the Supreme Court could slam the door on an enormous array of gun measures with a broad reading of what the Second Amendment prohibits.  Justice Thomas has already made it clear that he believes no safe storage law could pass constitutional muster, and Justice Kavanaugh has opined that assault weapons are constitutionally protected, gun registration is impermissible, and bans on high capacity magazines are highly suspect.  Both are itching to rule that there is a constitutional right to carry guns outside the home (which would considerably expand the 2008 Heller decision that initially created the individual right to have a gun in the home for self-defense).

Will the Supreme Court hear any gun cases this term?

The Supreme Court has accepted a case for review that deals with restrictions on transporting guns in New York City. This suggests the Court’s opponents of gun regulation are hoping to further expand the reach of the Second Amendment.  As long as Ruth Bader Ginsburg remains on the Court, it appears that Justice Roberts will be the decisive vote on whether virtually any of the important gun control initiatives – existing or proposed – can be sustained.

I am hoping that Justice Roberts will heed the words of (conservative, Republican, Reagan-appointed) 4th Circuit Court of Appeals Judge J. Harvie Wilkinson, who voted to uphold Maryland’s assault weapons ban and warned:  “To say in the wake of so many mass shootings in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny – this would deliver a body blow to democracy as we have known it since the very founding of this nation.”

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.

[1]  FBI, “Active Shooter Incidents in the United States in 2014 and 2015,” file:///Users/jjd/Downloads/ActiveShooterIncidentsUS_2014-2015%20(1).pdf.

[2] FBI, “Active Shooter Incidents in the United States in 2016 and 2017,”