Open Carry Laws, Guns on Capitol Hill, and a Police Force Outgunned by Militias

After the attack of the Capital of January 6, questions have been raised about guns, militias, and hate groups. Here, Stanford Law Professor John Donohue discusses gun laws in the U.S. and the potential for armed insurrection.

Can guns be carried in D.C.—and on Capitol Hill?

D.C. does issue permits to carry guns, but it regulates them far more than some states do.  Private citizens are not free to carry guns at the Capitol under any circumstances.

The gun lobby has pushed for national legislation that would allow anyone with a concealed carry permit from any state to lawfully carry throughout the United States. That law has not passed, and DC’s restrictions meant that gunowners who travelled to DC for the Trump protest — including the Proud Boys and members of armed militias — knew that gun carrying would invite police scrutiny, so they largely left them at home.  In other words, DC’s strict gun laws were extremely beneficial in reducing the risk of death in the DC insurrection.

Did the attack on January 6 debunk some gun advocate positions?

The gun lobby spreads the false message that having a gun will confer enormous protective benefits, instead of recognizing that opportunities for defense with a gun are often limited by the very nature of criminal attack and having a gun can also elevate risks. D.C. police officer Michael Fanone was overwhelmed by the crowd during the Jan. 6 attack. Fanone stated that he could have killed two or three of the rioters with his gun but then they would certainly have killed him. Instead, Fanone stated, “Some guys started getting a hold of my gun and they were screaming out, ‘Kill him with his own gun.’” Fanone saved his life by appealing to the humanity of the crowd by saying he had children.  As most armed victims of violent crime learn, guns are much less valuable for self-defense than the gun lobby would have you believe.

In addition, the Capitol insurrection underscored the sheer lunacy of the claim that high-powered weapons in the hands of the public are needed to protect against a tyrannical federal government, as a federal judge in California stated in striking down California’s ban on high-capacity magazines. First, the idea that the private gun owners could stand up to the U.S. military if it backed a tyrannical federal government is absurd.  Tanks, planes, and drones would have little trouble dealing with armed civilians. Second, the idea that gun owners can be expected to oppose rather than support the tyrant was dealt a fatal blow by the violence at the Capitol.  Interestingly, the evidence suggests that non-violent civil resistance has been more effective than armed insurrection in eliminating tyrannical regimes around the world in the last forty years.

The horrific events of January 6 have shown that almost everything the NRA and the gun lobby has ever said about gun policy has been demonstrated to be wrong. Gun control doesn’t work?  Without DC’s restrictions on gun carrying, a very large number of the rioters would have been heavily armed and when the mob spun out of control, the consequences would have been dramatically worse.

Generally, are America’s police in danger from trigger-happy citizens?  

Thankfully, the number of police who die from felonious assaults is not enormous (48 overall in 2019, and 44 by firearm), but there is no question that police in America fear being shot more than police in any other affluent democracy.  In terms of overall gun violence, the opposite extreme from the United States is Japan, which had three gun homicides in 2017 across the entire population of more than 127 million people. We had 44 gun deaths among the 700,000 police (and more than 14,000 for the country as a whole). Police fear of the heavily-armed public in the U.S. is an important reason why American police kill citizens at 50-100 times the rate of our competitor nations.

Does membership in a hate group disqualify a person from owning a gun? What does it take to be prevented from owning a gun? And is that a state-by-state issue?

The primary basis for restriction on access to guns comes from the federal prohibitions on gun possession. Federal law imposes some age restrictions on gun acquisition and bars the following from possession of firearms:  felons, certain other criminals, those subject to domestic violence restraining orders, users of illegal drugs, and (in the words of the federal statute) “those who have been adjudicated mental defectives.”

States vary a great deal in their efforts to enforce these restrictions, and in many parts of the country sheriffs have announced (and certain counties have adopted resolutions that indicate) they will not enforce any federal gun control laws. Members of hate groups have the full constitutionally protected right to own firearms that was established for the first time in 2008 in the 5-4 Heller decision of the U.S. Supreme Court. 

Is it correct to assume that homegrown terrorists are free to purchase firearms—provided they don’t have a criminal record?

Yes. The NRA has successfully fought to ensure that those who are on the no-fly terrorist watch list are still able to buy guns.

Do we know much about gun ownership in the U.S.—such as how many guns are in circulation, how many legally-owned semi-automatic rifles are in circulation, and if individuals are limited in the number of firearms they purchase?

The United States has more guns in private hands than any country in the world by a very wide margin, although precise numbers are hard to obtain. While there are probably as many guns as people in the United States, most Americans do not own guns, which means that those who do own guns have sizeable arsenals. There is no limit to how many firearms one can purchase, and many of those with massive stockpiles of weapons would never be able to lawfully buy any firearm in other nations, which typically try to screen out those with dangerous and erratic tendencies. Almost every major mass shooter in the United States abundantly manifested such tendencies before they began their murderous rampages, but most were able to legally buy weapons in the United States.  This led the Norwegian mass murderer Anders Breivik to laud the loose American regulation of weapons since he was able to purchase from American sellers the high-capacity magazines, not available to him in Europe, that allowed him to murder 69 young summer campers in 2011.

Do you know of any plans by the Biden administration regarding gun control? What would you suggest as a first step?

Given the current configuration of Congress, the options for federal gun control legislation are limited. A huge majority of Americans (including a majority of NRA members) support universal background checks, so now that Mitch McConnell is no longer able to stop any legislation that the NRA doesn’t like, we could conceivably see action on that measure. Biden also might well reinstate an Obama executive order that had prevented gun ownership for those whose mental impairments were so great that they could not handle their affairs. President Trump had eliminated this administrative rule early in his Administration.

There is a reasonable chance that soon the U.S. Supreme Court will expand the Second Amendment by asserting there is a constitutional right to carry guns outside the home, and that this right extends to assault weapons and high-capacity magazines.  If such a ruling were to be handed down, most useful existing state gun control laws would be wiped out.