Nearly ten years after the massacre of 26 students and teachers at Sandy Hook Elementary School in Connecticut, the world has been shocked by another American school shooting—this one at Robb Elementary School in Uvalde, Texas where 19 students and two teachers were gunned down on May 24. That came barely a week after the racially motivated massacre of ten shoppers at a Tops Friendly Market in a predominantly Black neighborhood in Buffalo, New York. And these are only the most lethal mass shootings—hundreds more have already occurred in cities across the United States. In this episode, Professor John Donohue, an expert on gun law, joins Rich and Joe to discuss what can be done to meet this uniquely American challenge of mass shootings.
This episode originally aired on SiriusXM on June 18, 2022.
Richard Thompson Ford: From Stanford University and Sirius XM, this is Stanford Legal. I’m Richard Thompson Ford and I’m here with my co-host, Joe Bankman, and today we’re going to discuss gun violence and mass shootings in the United States.
Joe Bankman: Rich, it’s been 10 years after Sandy Hook and we had another mass shooting recently in Texas, and that followed another mass shooting, this one racially motivated. A hate crime that occurred in Buffalo, New York. I think a lot of people are wondering, “What can we do about this and are we finally going to start to take action? Then if we take action, is any of that going to hold up in court?”
Ford: Well, our guest today, John Donahue, is an expert on all these issues. He’s our colleague here at Stanford Law School and he’s been one of the leading empirical researchers looking at questions of gun violence among other things. He’s also, of course, an expert in the jurisprudence surrounding the second amendment and guns and so we’re lucky to have him here today to help us sort through this very big American challenge. Welcome John.
John Donahue: Good to be with you, Rich.
Ford: So John, there have been, of course, a series of horrific mass shootings in the United States, the latest of which was at an elementary school in Texas, but this has been a long standing crisis in the United States. Can you tell us about what happened in Texas? What the history of this kind of gun violence in the United States has been?
Donahue: So the latest tragedy, and there were multiple tragedies in the month of May, was the Uvalde shooting at the elementary school that you mentioned in Texas. In that case, tragically 19 young students were killed and two teachers were killed and it was all perpetrated by an 18 year old, who would’ve been graduating from high school if he had stayed in high school, but he dropped out about a year ago and apparently he was depressed and felt bad about his life and about not graduating. So he shot his grandmother in the face and then headed over to the elementary school and holed up in a dual classroom and killed a very substantial portion, although not all of the portion, of the students in the room that he was holed up in.
Of course the police have come under some criticism because they waited quite a bit of time before they stormed the room and killed the shooter, but since the shooter was very heavily armed with assault rifles, the police were obviously apprehensive about trying to directly confront someone with that level of weaponry.
Ford: John, this is by far not the only mass shooting that’s happened in the United States in recent memory. How many mass shootings have there been this year alone?
Donahue: Yeah. So it’s a great question. Depends on what metric you use for counting. So the most stringent method that the FBI frequently uses is that four people or more were killed other than the shooter. Those are increasing in numbers, but are less frequent than the broader definition of mass shootings, which includes those instances when at least four people were shot. It turns out that we get at least one of those a day, somewhere in the United States, where at least four people were shot, but not four people die.
So it depends a little bit on which definition you use, but all of the definitions are all trending upward since the end of the federal assault weapon ban in 2004.
Ford: Wow. One a day.
Bankman: A truly horrifying statistic, John. What is the total, if we forget about mass shootings, because I assume that most shootings aren’t mass shootings, but they result in deaths nonetheless. What are the totals for the country? Where does that compare to other causes of death?
Donahue: Fortunately, homicide is relatively rare in the catalog of all things that can kill you. We have about 4.5 million people who die each year and only about 19,000 die from homicidal acts by gun, but more and more of the homicides that do occur are being perpetrated with firearms. We are just way above all of our competitor nations, the affluent nations, in terms of the number of homicides and of course the number of firearm homicides. We really are quite an outlier in that dimension. So we would have 10 times as many firearm deaths as England, for example.
Bankman: I read somewhere, I don’t know if this is true, that homicides are now one of the leading causes of death in children who otherwise wouldn’t die and aren’t prone to things like heart disease and cancer, like the rest of us so much.
Donahue: Yeah. In part, because traffic accidents have declined over the years and gun deaths have risen, we now have crossed over that line, if you include all of the ways in which firearms linked to death, which would include homicide, accidents, and suicides. Suicides are a very big and growing number as well and the different categories of death play out in different racial, ethnic, and age groups. Overall we have about 45,000 firearm related deaths across all of those categories.
Ford: And John, you said that the number of firearm injuries and deaths have been rising in recent years. What’s the cause for that? Is it more crime? Is it just a more troubled society or is it the kind of weapons that are being used or some combination?
Donahue: Yes, there are all sorts of trends that are going on and during the pandemic, one of the very unfortunate trends was a very sharp upward jump in homicides and pretty much driven by firearm homicides. So, that became a problem and of course now that the schools are back in action and people are out and about, the public mass shootings have returned at a high level.
Luckily, in terms of overall homicides, we are at a lower level than we were at the beginning of the 1990s. So that’s the good news, but the bad news is that the trend over the last two or three years has been sharply upwards and that is troubling. In terms of your question, there is not an upward trend in overall crime. It really is an upward trend in shootings and homicides resulting from shootings. So guns are clearly playing a role in that.
I think there are lots of factors that contribute to that. Obviously society has become much more stressed. I do think the Trump administration probably unleashed a level of discord and hatred in the society that has grown over time. You saw the Buffalo shooting in early May where some 18 year old white kid who was a racist traveled a number of hours to go to Buffalo, New York to kill as many black individuals as he could. He just walked into a grocery store and started shooting away and killed 10 individuals.
So these are the things that when hate gets unleashed and there’s access to very lethal weaponry, you do tend to see some of these outrageous actions. Also, it seems to be the case that young men in particular are having more and more mental health crises. You see that reflected in the suicide rates of young men rising again and suicidal young men with access to assault rifles is a very bad combination.
Bankman: John, I want to pick up on that last statement, which I think everybody has to agree with. Suicidal young men with access to assault rifles is a bad idea. If there were no constraints and we had the political will, what could we have prevented? Could we have prevented what happened in Texas or Buffalo or how does an expert think about what we could do if we were willing to do it?
Donahue: Yes. Luckily we have been able to research the consequence of the Federal Assault Weapon Ban, which was adopted in 1994 during the Clinton administration, but unfortunately was allowed to lapse in 2004. So it was in effect for 10 years. What we saw was that these public mass shootings dropped during the 10 year period and then started a very sharp upward trend in the aftermath of the assault weapon ban in 2004. So at least we know that you get some payoff just by having what we had over that 10 year period.
Now the political dynamics are such that it’s hard to get what you or I might think would be optimal policy and even the Assault Weapon Ban had many features that made it not fully effective. But even so, even with its limitations, it did at least restrain the problem of mass shooting so that was at least one step that could be taken.
Let me give you a couple of senses in which it was limited. So first of all, the definition of an assault weapon was not as capacious as it should be. You could take off a few of the features of an assault rifle and it would not look as scary and might not be as fully functional, but still would be pretty close to the same capacity to cause death. That was one limitation.
The second was that the Assault Weapon Ban grandfathered in all existing weapons and so that’s not ideal because many of these weapons can make their way to people who want to do harm with them.
The thing that was clearly beneficial about the federal assault weapon was that it restrained the size of magazines to 10 and that limits how rapidly you can fire and sort of cuts down on the ability to just mow down people endlessly without needing to reload.
If you remember back to the 2011 shooting of Congresswoman Gabby Giffords, where a troubled young man went to assassinate her and purchased his ammunition on the way to the assassination, he had 30 rounds clipped and so he was able to fire 30 shots. When he finished that, he was reloading and he was tackled by a 74 year old unarmed man. That’s how that episode was stopped, as many of them are. Now, if he had had to reload twice before he had gotten to 30 bullets, a number of individuals would’ve been saved in that case.
So the limitations on the magazine size was nice because it was a straightforward limitation and was hard to circumvent. Unfortunately, now, if we even were to re-adopt an assault weapon ban that had those components, the magnitude of the weaponry that has been purchased since 2005 has grown enormously so grandfathering leaves us in a much worse place than we were back in 1994, when the Assault Weapon Ban really went into effect.
Now, just to give you one other sense, in 1996, Australia, which up until that time actually had a worse mass shooting problem than the United States on a per capita basis, had a totally tragic case of 35 people killed in one episode and 12 days later, the country of Australia completely eliminated semiautomatic rifles. There was no grandfathering in. They were completely prohibited and they bought back existing stock of weapons and that basically ended their mass shooting problems. So we know that can make a difference, but that’s a very, very heavy lift in the United States. You might recall Charlton Heston talking about, “Try and come and take my gun away. You’ll have to try it from my cold dead hands.”
So when the very conservative prime minister of Australia announced that policy, he actually wore a bulletproof vest because it was thought to be very unpopular at the moment, but it’s now wildly popular. They would never go back to where they were. He noted that Australia had two advantages. They didn’t have a Second Amendment and they didn’t have a domestic gun industry. We have both of those and they’re a very major impediment, especially since in the United States the gun industry and the Republican party have essentially had a mutual support pact and they look out for each other and neither one has been able to give in on anything since 2005.
Bankman: We’ll be back with more from John Donahue on Stanford Legal on Sirius XM Business Radio, channel 132.
Ford: Welcome back to Stanford Legal. I’m Rich Ford with my co-host Joe Bankman and our guest today is John Donahue. We’re going to discuss the jurisprudence around the second amendment and the kind of legislation that might help to curb the problem of gun violence.
Bankman: John, we were talking about the tragedy in Texas, and then before that in Buffalo and what some other countries like Australia have done. The reports are that this country might do something. There’s a bill in Congress that passed the House. Something’s being discussed in the Senate. Can you give us a sense of what’s likely to emerge, if anything?
Donahue: Yeah, so of course the major constraint is the Senate and the House has already passed some legislation that the Senate has said that they will not consider. Just the fact that they’re talking about it shows that this recent spate of mass shootings has raised some concerns among Republicans, that they may take a hit politically if they don’t do something.
So essentially what I suspect is going on is that the Republican party is consulting with the NRA to say, “What are the things that will be least harmful to gun sales that we can try to pass?” Obviously hardening schools doesn’t cut into gun sales, but universal background checks or assault weapons bans would really cut into gun sales and therefore those two measures are off the table right now in the Senate. So I’m not expecting much of real value to come out of the Senate.
One thing that, again, would be very easy to do, and I think would be very wise as California and Florida have done is to say that you can’t buy a gun until you’re 21. Both of these Buffalo and Uvalde shooters were 18 years old. Ironically, three days before the Buffalo shooting, a panel of the ninth circuit struck down as unconstitutional California’s ban on sales of semiautomatic rifles to those under 21.
So you can see that there’s tension in the law between what is good policy, which is certainly the case that you don’t want people under 21 getting access to assault rifles and what may or may not be constitutional. So this is a contentious issue that is before the courts all over the country right now.
Ford: John, with respect to the courts, the Supreme Court’s about to take up another case involving gun control. Could you tell us about that and how that’s likely to affect what seemed to be the already kind of dim prospects to getting good legislation on this?
Donahue: So the New York case involves a law that’s been in place for over 100 years that restricted carrying of guns to those who have a proper cause. The Supreme Court signaled during the oral argument, which was held last November, that they were likely to strike that down. In fact, I suspect that the decision would’ve come out last week because it was next in line for release but I imagine that the justices thought it would look bad to be greatly expanding gun rights while the public was very alarmed about the recent mass shooting. It’ll probably come out in a week or two with the idea that people will be perhaps less enraged after people turn away from the latest events.
But that law will essentially likely strike down restrictions on concealed carry in New York and California and basically say for the first time that every American has a constitutional right to carry a gun outside the home. I think this will be a major step in the wrong direction and the work that I’ve done and others have done shows that as you make gun carrying more permissive, an array of problems arise, all of which lead to higher crime. Everything from road rage incidents to gun thefts.
Also as my current paper shows, a degrading in police performance, and sort of a reflection of that was the Uvalde case that police are much less anxious to be charging into situations, to reduce crime when they’re going to be more likely confronting guns because the only thing that can kill police other than COVID, perhaps, is a gun. Police are never beaten to death and almost never stabbed to death. It’s only a gun that threatens them and from an assaultive act.
Bankman: John with the jurisprudence that seems so expansive in its read of the Second Amendment, what is left to be done? Are mental health related restrictions still okay? Are age related restrictions okay? Is a magazine restriction still okay?
Donahue: We don’t know. Everything is up for grabs. As I said, California just had its age restriction struck down. California also had its ban on high capacity magazines struck down by a federal district court judge. Also, had its assault weapon struck down by the same district court judge in another case. Also, had its requirement that you must go through a background check to buy ammunition was struck down by the same federal district court judge in yet another case.
So there’s uncertainty about where we stand, but certainly there’s plenty of reason for concern, given some of the decisions by the five most conservative justices on the Supreme Court who now make up a majority and if they were to stick by some of their previous positions, many things that are in place in at least some states and notably in New York and California would likely be struck down as unconstitutional.
Bankman: It’s a pretty depressing outlook because it looks like even as the Senate finally talks, at least, about controls, there may be virtually no constitutional controls allowed at least under this Supreme Court’s holding.
Donahue: Yes. I do think there’s going to be a lot of effort made when the Supreme Court decision comes down to see what is off the table and then what might possibly be done. It is a depressing picture in some respects.
Just to give you a sense, when Ronald Reagan was shot in 1980, John Hinckley used a six shot revolver .22 caliber gun and shot all six bullets and hit four people, none of whom died. Today he probably would’ve been using a Glock pistol, which would’ve had 15 bullets and far more lethal and the evidence is very strong, you get hit by some of these more high powered weapons and the lethality is substantially greater.
So this is a growing problem. This was underscored to me so much just a few years ago in Texas not far from Uvalde when a 26 year old man went to a Baptist church, stood outside the church, and fired 254 bullets at head level through the walls of the church, killing 26 people inside the church, sitting in their pews. This is a type of weaponry and power that, of course, was utterly non-existent in 1791 when the Second Amendment was adopted. Yet the current Supreme Court has frequently said all of these weapons are protected in the same way as the weaponry of 1791, which really is not a very sensible position but that seems to be where many of the justices have been.
Although one silver lining of the horrors of May, 2022 may be that some of the Supreme Court justices will rethink their prior statements.
Bankman: We’ve been talking with John Donahue about what happened in Texas and what the prospects are for gun control.
John we’ve had you on before and I know that the only thing, I think, that the NRA and gun control advocates agree on is that you’re the nation’s leading expert on that. So we hope to have you back and hope next time we’ll hear some better news.
Donahue: Thank you.
Bankman: Thanks to John Donahue. I’m Joe Bankman for Rich Ford, and this is Stanford Legal on Sirius XM Business Radio, channel 132.