Gun safety: US passes breakthrough law ‘but more has to be done’

Katie KouchakjiMonday 1 August 2022

In late June, the US Congress passed the Bipartisan Safer Communities Act – ending a near-30-year logjam on gun safety legislation in the country. While this breakthrough has been much celebrated, many say the legislation is just a start.

The Act introduces measures including a crackdown on interstate gun trafficking and straw purchasing, whereby an agent purchases a gun on behalf of another; $250 million in funding for community violence intervention programmes; and enhanced background checks for would-be purchasers of long guns – including semi-automatic assault rifles – who are under the age of 21.

The new legislation ‘is nowhere near what [we] need, but it’s a breakthrough,’ adds Benjamin. ‘There’s not a single law that will solve the problem.’

Benjamin praises the investment the Act provides for mental health and school support, but adds it will only help ‘providing people use the money’, with some of the funding down to each individual state to request and spend.

The Act closes the ‘boyfriend loophole’, meaning that anyone who is in a serious dating relationship and convicted of domestic abuse are no longer eligible to own a gun. Benjamin says this will enable a larger number of guns to be taken away, and notes that around seven people are killed daily by a violent partner with a gun.

Efforts to pass gun safety legislation has long been thwarted by arguments such as that involving the second amendment of the US Constitution, which grants the right to bear arms.

However, this constitutional right ‘was borne out of a particular historical perspective’, says Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute Council and a partner at Howard Kennedy. When the US Constitution was written in 1787, the most common weapon was a musket which took a couple of minutes to reload in between shots, ‘as opposed to automatic weapons today, which fire hundreds if not thousands of rounds per minute,’ he says.

‘Automatic and semiautomatic [weapons] are causing the devastation we’re seeing at the moment,’ adds Stephens, questioning whether ‘everyday people’ need access to such weapons.

‘You have to balance the right to life with the right to bear arms,’ Stephens says. ‘It’s very clear that the right to life trumps the right to bear arms.’

He singles out the enhanced background checks for under 21s in the Act as a significant step towards rebalancing these rights. ‘Theoretically, this will reduce the number of guns [in circulation],’ he says.

However, Benjamin says the Act could have gone further in terms of background checks and fails to ban automatic rifles. ‘There is no rational reason for people to own those weapons,’ he says.

‘The US doesn’t have more mental health [problems], we don’t have more people playing videogames – we have more guns,’ says Benjamin.

Steps to make firearms safer, such as the use of fingerprint unlocking or facial recognition, would help reduce gun deaths, he says, highlighting that ‘All the things we use to restrict access to our phones can be used here too.’

Likewise, programmes to reduce the number of firearms in circulation, such as buy-back programmes or amnesties, could also make a difference. These, Benjamin adds, don’t need legislation to implement, but do need funding to establish and run.

A third approach could be to pass legislation to raise the age for access to automatic rifles to 21, matching the age for hand guns. This would ‘rationalise the gun laws we have’, says Benjamin.

There’s a risk that the legislation could be taken apart piecemeal, given how it’s reliant on individual states to implement portions of it.

For example, the Act provides $750m over five years to support crisis intervention for states, including the implementation of ‘red flag’ laws, which allow local police to petition a state court to temporarily remove a firearm from someone deemed a danger to themselves or others.

But in terms of the funding for implementing these laws, every state can have the money, but there’s no specific direction on what to spend it on. ‘We may see some creative ways to use this money not as intended,’ says Benjamin.

Stephens notes that state and federal laws have always been in conflict due to the US Constitution, which has frustrated efforts by some states to restrict firearms in any way. Indeed, on the day that the Senate passed the Bipartisan Safer Communities Act, the US Supreme Court overturned a New York law from 1911 which required a licence for anyone wishing to carry any firearm small enough to be concealed on their person.

The 6-3 majority opinion in this case – New York State Rifle & Pistol Association, Inc v Bruen – found that the state law was unconstitutional and that the Second Amendment gives the right to carry weapons in public.

But Stephens counters that the right to bear arms doesn’t mean there’s the right to do so everywhere. The New York legislature has moved quickly to pass new legislation to define ‘sensitive’ areas where guns are banned – such as schools and public gathering areas – as well as to toughen up permitting requirements.

‘The question then is, what is it that’s offensive about having gun-free zones?’ asks Stephens. ‘The truth is, we need to look at whether that would stand up under scrutiny.’

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