[Ed. note: This guest blog post is part of the Center’s Mini-Symposium on papers presented at the 2020 Firearms Law Works-in-Progress Workshop.]
A heavily armed man, Dmitriy Andreychenko, walks into his local Walmart, and was eventually taken out in handcuffs. Another heavily armed man, Patrick Crusius, walked into his local Walmart and left under the same restraints. But only one, Crusius, had the intent to kill and left twenty-three dead and many others injured. Andreychenko was a “law-abiding citizen” with no intent to harm anyone and believed he was merely exercising his Second Amendment right to carry firearms in public. But in these seemingly identical scenarios, the public is powerless to determine an armed individual’s true intentions. The public cannot—and the law should not ask them to—make split second assessments of who is a threat and who is not. Instead, “good cause” requirements to carry firearms in public, which generally means providing a demonstrable need beyond self-defense interests, may provide a necessary balance between the rights of individuals who have reason to fear for their safety and the public’s fear of the growing gun violence crisis in this country.
In District of Columbia v. Heller, the Supreme Court made it clear that an individual right to keep and bear arms is the law of the land. The contours of that right, however, are still unclear. What is clear is that gun violence is a growing public health problem that impacts people directly and indirectly across the country. Policy solutions must balance individual rights and the health and safety of other citizens. As I have stated elsewhere, understanding this balance is fundamental to charting a sensible path forward for Second Amendment jurisprudence.
The Second Amendment creates certain unavoidable hurdles to preventing gun violence. For example, under Heller a complete prohibition on carrying firearms for all citizens is unlikely to stand. But the recurring invocation of the “law-abiding citizen” in the effort to expand the Amendments rights and protections is misleading and disingenuous. The ability to predict whether and when an individual may misuse their firearm is extremely limited, if not impossible. Currently, we rely primarily on labels such as felon and mentally ill—with the blessing of the Supreme Court in Heller. But these proactive measures are supported more by stigma and stereotypes than they are empirical evidence. Those with mental illness, for example, are no more likely than the average citizen to commit an act of violence and, instead, are more likely to be a victim.
Public health research adds nuance and an empirical foundation for the discussion. And what we know from the data is that the presence of firearms can escalate confrontations and exacerbate harm. The “more guns, less crime” theory is losing statistical credibility with more data and more sophisticated analysis methods, while a consensus is emerging that loose regulations on carrying firearms in public are associated with increased harm. Public health principles, such as the social determinants, also tell us that poverty, poor education, neighborhood violence, and lack of secure employment are likely to drive many to criminal behavior, regardless of a court’s reading of the Second Amendment. With data suggesting armed victims is an incentive for criminals to acquire and carry their own firearms, extending Second Amendment protections beyond the home has the potential to cause a proliferation of firearms in public and exacerbate the current crisis.
This research sheds light on the fact that gun violence is preventable and amenable to proactive measures. Reliance on reactive measures, such as criminal law enforcement, have not stemmed the growth of gun violence. Reliance on law-abiding citizens to remain law-abiding seems similarly unpromising. But the good cause restriction—also known as a may-issue licensing regime—aims to strike a balance between the self-defense needs of individuals and the state’s undoubtedly compelling interest in protecting public health and safety. By limiting the scope of firearms in public to those who can provide a specific need for a gun, good cause restrictions prevent the proliferation of weapons in public settings. These types of laws, which typically rely on the determination of law enforcement officials and judges, have been associated with a reduction in gun violence. These regulations, therefore, provide a tailored measure that enable the means of self-defense for those who truly need it—as opposed to those who simply desire to carry a firearm wherever they go—and limit the exposure to firearms for the rest of the citizenry.
The heated debate over gun control and gun rights is often regarded as a struggle between individual rights and an overreaching government. But, as a public health lens illustrates, the issue is more accurately framed as a balance between individual rights and the health and safety of other citizens. Good cause regulations may be a good solution to the problem of gun violence because it accepts this fact, recognizing that the potential proliferation of firearms in public creates a legitimate public health threat while the Second Amendment prevents sweeping restrictions on public carry. Fundamental rights have been limited in the name of public health and safety since the founding, and the Second Amendment right is no different. Public health research suggests good cause regimes as a useful means of working within legal constraints and striking an appropriate and necessary balance between the rights and interests of all citizens.