Stanford Law Professor John J. Donohue reflects on both successful and failed gun control measures in the wake of the Newtown, MA school shooting in December of 2012 in The Stanford Lawyer. 

One year has passed since the horrific Newtown school shooting of December 14, 2012, and we have likely learned all that will be known about the tragic events of that day. As we reflect back on the event and the subsequent political and legislative responses, a few points should be noted.

First, it has become clear that mass shootings—particularly of affluent, white young children—tear at the national spirit and have the ability to impel legislative action more powerfully than the steady drip of death that is the numeric core of American violence. Over the last five years, we have averaged approximately 35 deaths annually from public mass shootings and 8,987 annually from other gun homicides. Even though the overall loss of life has been immense for years, no serious measures to strengthen federal gun control laws were considered since Bill Clinton’s first term until the heart-breaking deaths of 20 school children catalyzed some political action. But despite the truly overwhelming initial support for closing the enormous loophole in the federal background check system that permits private sales to evade this control, the public’s attention span on gun issues is short, while the vigilance of the gun lobby is sustained and intense.

The result was that states that moved quickly, such as New York, Connecticut, and Colorado, were able to tighten their gun laws. The more sluggish efforts at the federal level soon lost steam as the interest of the people ebbed and the voices of the NRA grew louder. Even though NRA Executive Vice President Wayne LaPierre had agreed in the wake of the 1999 Columbine shootings that all gun sales should involve background checks, the NRA was proclaiming soon after Newtown—and managing to convince its followers and political toadies—that anyone who would suggest such a measure is some dark enemy of the Constitution. As a result, the anticipated federal legislation to provide for universal background checks was thwarted. At the same time, the gun lobby was able to feed off the energy created by the calls for greater gun control to actually weaken gun regulation in a number of states and punish a few legislators in Colorado via recall that had voted to strengthen background checks and restrict the size of ammunition magazines.

Second, the disconnect between the murders that are egregious enough to impel legislative action and the responsive remedies that are offered in their wake is underscored by the fact that none of the legislative actions that were proposed in the wake of Newtown would have stopped the episode from occurring. While universal background checks undoubtedly would reduce homicides and suicides overall, they would have been feckless in Newtown since the killer, Adam Lanza, secured his guns from his mother Nancy.

The sad truth is that Newtown started, as so many gun homicides do, with the weaponry of a law-abiding citizen being used to kill others. No politician wants to suggest that law-abiding citizens contribute to the gun mayhem in the U.S., but that is one of the clear lessons of Newtown. Nancy Lanza was a wildly irresponsible gun owner, who was trapped by the rhetoric of the virulent portion of the gun culture that invests guns with magical powers of protection and is utterly unaware of or indifferent to the risks of gun ownership. Living in one of the safest towns in America, Nancy thought she should have an arsenal to protect her in the event of a break down in law and order that would lead the dangerous hordes to sweep through her community. The deep irrationality of preparing for that remote event while ignoring the clear and present danger of nurturing her deeply troubled son’s interest in guns and providing him with unlimited access to her lethal arsenal cannot be overstressed. One can only be baffled by the recent revelations that, as Adam was planning his homicidal rampage, Nancy had planned on giving him a new gun for Christmas. One wonders whether mother Lanza had also supplied the “School Shooting” computer game, which was a chilling part of his video arcade according to the recently released Report of the State’s Attorney.

Would a safe storage law have been effective? Probably not for a person with Nancy’s misguided mindset, since she likely would not have locked the guns away from her 20-year-old son. No existing or proposed gun law would have required her to do so, and one must assume that she did not appreciate the risk to herself, her son, and to others or presumably she would have taken the obvious precaution of ensuring that he did not have unsupervised access to firearms.

Of course, nothing would have prevented Adam from buying his own guns, which again shows a shocking lapse in American gun regulation. Indeed, the debate over the Second Amendment is essentially a debate between those who think the government should take steps to keep the Adam Lanzas of the world from having access to guns and those who think the government should be protecting his right to possess semi-automatic weapons. Nancy knew that Adam had a significant neurological or psychological disorder and told a friend that a year before the shooting Adam had started burning himself with a lighter. Had a court been apprised of that information, Adam would almost certainly have been adjudicated mentally defective and therefore barred by federal law from possessing firearms. But Nancy did not seek such an adjudication, nor would she have wanted to since she was trying to facilitate rather than prevent his use of and access to guns. Indeed, one wonders whether the apparent lack of mental health treatment Adam received might have been motivated by Nancy’s desire to preserve his right to bear arms.

Sadly, even when mental health assessments are supposed to bar access to guns, the background check system often fails to reflect these judgments. In fact, in the even deadlier mass shooting at Virginia Tech in 2007, the killer’s mental problems had led to a judicial determination that should have identified him to all firearms dealers as a prohibited purchaser. Sadly, the sloppy implementation of the requirement that such records be entered into the background check system meant that Seung-Hui Cho was able to pass a background check and secure the guns he used to inflict mass slaughter. Since this tragedy, Virginia has tried to do a better job of entering the appropriate mental health records into the system, but as long as mass killers such as Adam Lanza, James Holmes (the Aurora theater killer of July 2012 who killed 12 people during a showing of The Dark Knight Rises), and Jared Loughner (the Tucson killer of six during his attempted assassination of Congresswoman Gabby Giffords in January 2011) are never deemed to be mentally defective, their Second Amendment rights will remain murderously in force. None of those killers could have passed the required mental health examination that would have been a prerequisite to their purchasing a gun in countries such as Japan, Italy, France, or Germany.

Can we say anything about the deadliness of the firepower available to Lanza? Barring access to an assault weapon of the kind that Lanza used in Newtown is not a panacea. Cho was able to kill 32 students at Virginia Tech with two semi-automatic handguns with 10 and 15 round magazines. Moreover, the killer at the Washington Navy Yard—Aaron Alexis—was denied access to his preferred assault weapon by virtue of his out of state status, but he was still able to kill 12 with his Remington seven-shot pump-action shotgun in September 2013.

One can legitimately ask, though, whether mass shooters such as Lanza and Alexis were drawn to these assault weapons because they were deadlier or merely because it was psychologically more appealing to kill with that type of weapon. Both of these would be factors worth considering in any discussion of whether to ban certain firearms. Weapons bans that only influenced mass shootings will not have a major impact on overall gun deaths, but the impact is commensurately greater if such measures can change the culture of violence.

Moreover, we learned from both the Tucson and Newtown shootings that the need to change ammunition clips can slow down the killing. It was during these efforts to reload clips that Jared Loughner was wrestled to the ground by a 74-year-old retired United States Army colonel and during which 11 children were able to run from the classroom and escape Lanza’s murderous rampage. One can only wonder how many lives would have been saved in both Tucson and Newtown alone if the federal assault weapons ban that limited ammunition clips to 10 rounds had not been allowed to lapse in 2004 and Lanza and Loughner had not had their 30 and 33 round clips (respectively).

Unsurprisingly for a group financed by gun manufacturers and sellers, the NRA responded to Newtown by calling for placing armed security guards in all schools. This would not be a cost effective measure to save lives, since the roughly $5 billion per year that would be needed to hire almost 100,000 new armed guards would save a great deal more lives if those resources were directed at high crime areas. Indeed, this was one of Bill Clinton’s great crime-fighting initiatives (which George W. Bush effectively eliminated when he took office): Clinton fought to have 100,000 new police on the streets, and this played a non-trivial role in the enormous crime drop that occurred during the Clinton administration.[1]

Even if it is not cost-effective, one can still ask whether an armed security guard might have avoided the Newtown tragedy. One cannot answer that question with confidence, but it is worth noting that 1) the school shooting at Columbine that left 15 dead in April 1999 was not stopped by the armed security guard who did exchange fire with the killers; 2) the nature of the Newtown attack was so fierce and employed such firepower that a security guard might have been overwhelmed and merely joined the list of fatalities; and indeed 3)in the Washington Navy Yard shooting, an armed security guard (and former Maryland State Police officer), Richard Ridgell, knew the rampaging killer was in the building but even with this advantage he was unable to stop Alexis. In fact, Alexis not only killed Ridgell but then took his gun and used it to shoot others after running out of his shotgun ammunition. The important point to note is that the constant NRA message that more guns will stop crime was not true for Nancy Lanza nor was it true in the Navy Yard scenario, and indeed the guns intended for protection, far from stopping the slaughter, only added to the death count. Sometimes guns help, and sometimes they hurt. The NRA and the Nancy Lanzas recognize only the first half of that sentence.

In contrast to the NRA call for an arms race as the path to safety, one country responded to a horrific mass shooting by adopting the opposite approach to that offered by the NRA. Consider what happened in Australia after a crazed gunman killed 35 people in Port Arthur, Tasmania, in 1996.

The Australian federal government persuaded all states and territories to implement tough new gun control laws. National registration of guns was imposed and it became illegal to hold rapid-fire semi-automatic and pump-action rifles and shotguns that might be used in mass shootings. The gun ban was backed up by a mandatory buy-back program that substantially reduced gun possession in Australia. It is widely conceded that one impact of the gun measures was a significant decline in gun (and overall) suicides. The overall rate of homicides continues to decline in the wake of the gun ban, and most importantly when thinking about the lessons of Newtown, while there were 13 mass shootings in Australia during the 17-year period from 1979–96, there have been none in the 17 years since.

This striking accomplishment suggests that the Australian gun buyback somehow changed the culture of violence that breeds mass shootings. Indeed, the 2012 murder rate in Australia was 1.11 murders per 100,000 people (down from 1.70 in 1996, the year before the gun buyback).[2] In the U.S., the 2012 murder rate was 4.7 murders per 100,000 (and the gun homicide rate was 2.82).[3] Meanwhile, the U.S. mass shootings continue every few months, and we struggle with a murder rate that is more than four times that of Australia.

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