The past few months have been somewhat of a topsy-turvy ride when it comes to the issue of gun control. This past June the Supreme Court rejected 10 different cases that could have expanded gun rights. The refusal to take up the expansion of gun rights caught some liberal-leaning organizations by surprise and the “theory that Second Amendment cases are in season” with a solid conservative majority on the Supreme Court seemed to be cast in serious doubt. Just over a week ago, however, the Ninth Circuit gave gun rights advocates reason to hope again.
Before we get into the specifics of the Ninth Circuit decision, it is vitally important to discuss the context in which this decision takes place. Because although we are currently living in an era where major restrictions on gun ownership have been overturned, or lapsed, the rate of violence, including gun violence, has nevertheless steadily decreased. Jacob Sullum at Reason recently summarized this remarkable trend well:
According to the FBI’s numbers, total homicides in the United States fell from 24,700 in 1991 to a low of 14,164 in 2014 — a 43 percent drop. The homicide rate fell even more dramatically, from 9.8 per 100,000 in 1991 to 4.4 per 100,000 in 2014 — a 55 percent drop. Homicides rose in 2015 and 2016, then fell in 2017 and 2018, when the rate was 5 per 100,000, up 14 percent from 2014. The FBI has not published final data for 2019 yet, but preliminary numbers for the first half of the year indicate that homicides fell by 7.4 percent.
The trends for murders committed with firearms are slightly different because the type of weapon used varies over time. Gun homicides fell from a peak of 17,075 in 1993 to a low of 7,803 in 2014 — a 54 percent drop. The number rose in 2015, 2016, and 2017, then fell in 2018, when it was 32 percent higher than in 2014 but still 40 percent lower than the 1993 total. The gun homicide rate in 2018 was about 3.1 per 100,000, half the 1993 rate.
As I have written before, the only thing that could turn the incredibly good news that gun violence is steadily decreasing into something depressing is if nobody actually believes it, which most Americans sadly don’t.
At the risk of going all “both sides” on you here, it must also be pointed out that there is a lot of blame to go around for the current misconception surrounding gun violence. The president’s repeated depictions of “American carnage” are simply not true, but a lot of people believe him anyway. Moreover, as Sullum points out, Joe Biden characterizes gun violence as an “epidemic” that is seemingly out of control when, again, the only notable attribute about gun violence rates lately is that they have gone down, drastically. Thankfully, our courts have largely not taken the bait with either form of misleading political rhetoric, choosing instead to focus on the facts. Which brings us to the recent Ninth Circuit decision.
The Ninth Circuit case focused on whether California’s criminalization of large capacity magazines (LCMs) that hold 10 or more rounds passes “constitutional muster.” As the court noted in its decision, these LCMs are extraordinarily common. In fact, they make up “about 115 million LCMs out of a total of 230 million magazines in circulation” and, perhaps most importantly, are commonly the standard with many handguns. If you are asking why it should matter that these LCMs are common in handguns, well, the Supreme Court has recognized that the handgun is the “quintessential self-defense weapon.” Moreover, like with the First Amendment, courts view the Second as an individual right. Indeed, the Ninth Circuit has recognized that gun-control must be individual-based and that general bans that limit this individual right to self-defense should be viewed with strict scrutiny.
In order to pass strict scrutiny, the government must have a compelling interest. But while the Ninth Circuit recognized that California did advance a compelling interest of “preventing and mitigating gun violence” in its LCMs ban, the decision to categorically criminalize “nearly every weapon that can be reasonably expected for use in self-defense” was not an acceptable means of achieving the compelling interest. Indeed, the Ninth Circuit decision goes into great length about the value of the legal right of self-defense that is essentially being taken away by California’s criminal prohibition, particularly on “those who may not be equally protected by the state.”
I understand that many will not agree with the Ninth Circuit, or me, on the subject of gun control. But we should be able to agree with basic facts about gun violence and acknowledge that these facts make the issue extraordinarily complicated. For example, it is a fact that many people should not be allowed to have guns and that most guns intended for self-defense will never be used. Indeed, bringing a gun into the home is to bring a certain degree of risk. But at the same time, it should be said that there is nothing illogical about courts recognizing the right of psychologically stable people, committed to safe handling, to use common tools such as firearms for their self-defense.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.