What Can We Do About Gun Control?

In this episode of Law, disrupted, John is joined by Assistant Professor of Law at Southern Methodist University, Dedman School of Law, Eric Ruben, Duane R. Lyons, a partner in Quinn Emanuel’s Los Angeles Office, and Stacylyn Doore, a partner in Quinn Emanuel’s Boston Office. Together, they discuss three main topics surrounding guns: Supreme Court Second Amendment cases, regulation at both the state and federal levels, and pending litigation. Guns and the rights of US citizens to bear arms is a hotly contested policy issue in the USA, which has only become more relevant due to the recent mass school shooting in Uvalde, Texas, and the recent New York State Rifle & Pistol Association, Inc. v. Bruen Supreme Court decision.

They begin by discussing how the Supreme Court held in Bruen ruled that the New York gun safety law at issue is unconstitutional. This law required a license to carry concealed weapons in public places and provided for discretion in the state’s provision of such licenses. Eric outlines the landscape, pre-Supreme Court decision – he touches on the lay of the land, outlining the historical context, as well as explaining how firearm regulation and control have primarily been executed at a state and local level, rather than federal, and that there has been a long history of gun control at the local/state level in the US, citing to registration requirements in the 1930s and long before. There have only been a handful of significant federal laws that would count as “gun control.” The recent bipartisan federal legislation was an exception. It was several decades earlier when the last federal gun safety law was passed.

The conversation moves on to discussing the Heller case, another US Supreme Court decision which held that the Second Amendment guarantees an individual the right to possess firearms independent of service in a state militia and to use firearms for traditionally lawful purposes, including self-defense within the home. Duane notes that there are members of the courts that view guns and gun rights completely differently than people in large metropolitan areas and that many court decisions seem results driven. They move on to discuss the difference between where the focus should be and where the focus will actually be for future gun control regulation and litigation.

Stacylyn moves the discussion toward future applications of Heller and Bruen, noting how we’ve seen a lot of historical analysis in the cases thus far and asking how much more there is to mine and to what extent comparable historical analogs are now required in all future gun regulation cases. Eric answers by discussing the means and scrutiny approach to Second Amendment cases, explaining that once the Second Amendment is in play, the government has to find historical analogs in order to justify modern-day gun regulation. However, Eric highlights that times have changed, noting that historical analogs may not suffice given the technological advancements in the intervening centuries.

Duane moves the conversation towards whether there are any historical analogs showing that firearms were prohibited in some parts of the country. Eric notes how Britain in the 1300s had strict firearm laws, as well as other restrictions, such as Texas gun laws in 1871, which banned the public carry of pistols and public weapons. John touches on age limitations being a potential appropriate response in light of Bruen, as well as increased reliance on mandatory training and designation of sensitive areas. 

Finally, the conversation comes to a close, with Duane discussing ghost guns and how they’ve become the choice guns for criminals in the USA, with law enforcement seizing more and more ghost guns. Duane highlights Quinn Emanuel’s involvement in a lawsuit against a ghost gun company, Polymer80, a case that is set for trial next year.