By Simon Pelsmakher, University of Windsor

shutterstock_318715832On January 6, 2017, a horrific shooting attack occurred at Ft. Lauderdale- Hollywood International Airport, which left 5 people dead and 42 injured. Unfortunately, this incident was not a one-off event, and the US has been plagued with many such shooting attacks in recent years. As former President Obama has argued: legally, it is all too simple for these individuals to acquire the necessary weapons to carry out such attacks. The law should therefore be amended and reformed to address these challenges.

2nd Amendment

The right to possess arms is guaranteed in the Bill of Rights of the US Constitution. Specifically, the 2nd Amendment reads:

a well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Attempts to restrict and/or regulate access to guns are highly opposed and litigated in the United States due to this basic guarantee. For instance, the Supreme Court held in DC v. Heller [1] that Federal regulations to merely require handguns to be unloaded and safely stored at home are unconstitutional.

Commerce Clause

The Federal Government’s powers are typically limited to those enumerated in the US Constitution, such as issues pertaining to commerce. According to the Commerce Clause (Article 1, Section 8 of the Constitution), the Federal Government shall have the power to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” In layman’s terms, this means that so long as the Federal Government can demonstrate the matter it seeks to regulate has an effect on commerce, it has the right to regulate that issue, even if it is not expressly enumerated in the Constitution.

This is, for example, how the Federal Government came to criminalize the local production and use of marijuana as per Gonzales v. Raich [2].The Constitution does not make specific mention of the Federal Government’s right to regulate marijuana production. However, because the Federal Government could demonstrate that the local production of marijuana would influence interstate commerce (i.e. being sold/bought/carried over interstate lines), regulating this issue would not be deemed unconstitutional.

Commerce Clause Applied

In the wake of the recent attacks in the United States, the Federal Government should use the Commerce Clause to restrict access to weapons in highly sensitive areas which have been prone to attacks. In US v. Lopez [3], the Supreme Court struck down a federal statute which prohibited the possession of firearms in school zones – the right to regulate this matter was not enumerated in the Constitution, nor did the issue touch on interstate economic activity as per the Commerce Clause.

In contrast, areas such as airports, shopping malls, and movie theatres are centers of commerce (and interstate commerce), and the potential for gun violence in those areas can have a negative impact on commerce. Therefore, unlike in Lopez, the Federal Government should be able to regulate the possession of firearms in these security-sensitive areas based on the Commerce Clause, to reduce the potential for attacks.

Challenges

As the Lopez case demonstrates, this strategy would be insufficient to fully address the issue of mass shootings, as non-commerce areas (such as schools and universities) could not be easily governed by a law regulating firearms. Furthermore, while the Supreme Court in Heller held that banning guns in sensitive public places is constitutional, it is unclear how courts would rule on the question of the confrontational right to self-defense (a right stemming from the 2nd Amendment) being impacted in the wake of such a regulation.

It is clear that instances of gun violence have become far too frequent; American lawmakers should examine new legal proposals to address this issue. The legislation proposed in this article would be imperfect, but would be a first step to combat mass shootings.

 

[1] 554 U.S. 570 (2008)

[2] 545 U.S. 1 (2005)

[3] 514 U.S. 549 (1995)