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The future of gun control laws in the wake of Parkland and Las Vegas – and how students can help

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Parkland Rally
Tallahassee Mayor Andrew Gillum (center) stands with organizer Kathryn Casello (second from left), a junior at Florida State University, at the March on Gun Violence rally in Florida's capital on Feb. 21. "The tragedy in Parkland was a painful reminder that we are not doing enough to protect our youth from gun violence," Casello said. "As citizens and voters we have to be more engaged in the political process, and the Stoneman Douglas High School students have proven how powerful they are in their relentless advocacy these past few days. The march from FSU to the Capitol should be a sign to elected officials that students of all ages are paying attention, and we will be voting and making sure our voices are heard." (Photo by Andrew Salinero)

On Oct. 1, 2017, 58 people were killed and 546 wounded by a gunman from the 32nd floor of the Mandalay Bay Hotel in on the Las Vegas Strip. The massacre is – for the time being – America’s deadliest mass shooting.

Lawrence J. Fuchs, a student at the University of Las Vegas William S. Boyd School of Law, was there. An avid concert-goer, Fuchs had long wanted to see Jason Aldean perform and attended the concert with six friends.

But rather than leaving him with fond memories, that night left him with strong opinions about the way media, society and the legal world deals with tragic events.

“At first, everyone was looking around at each other trying to identify the noise,” Fuchs said. “The best way I can describe the sound at ground zero when it all started was the equivalent of a cap/pop gun being used – the kind kids often play with when they dress up like cowboys.

“There were a couple of shots and then they stopped — Jason Aldean didn’t even stop performing. Then all of a sudden the rapid open fire began.”

Fuchs and his friends saw the crowd part after the *pop* sound, and he said they didn’t realize what was happening until they saw the first couple of people fall to the ground, bleeding. Everyone ran — Fuchs lost sight of his friends and ran into a dead end, where the sound of the bullets made him feel like he was being followed on foot by a gunman.

Fortunately for Fuchs, a friend at the nearby airport was driving for Lyft and was able to rescue him and take him home.

“My biggest challenge moving forward is trying to figure out — I suppose I can never delete the images — but I’ve never seen people shot before. Chaos ensued. It sounded like what we watch as civilians watching major news networks cover conflict overseas,” Fuchs said.

“A lot of people got hurt as they were fleeing — some were trampled, some hit by trucks full of attendees trying to get to safety. There’s a lot of images from that night I’ll have to process and move past because I definitely won’t be able to forget them. I still haven’t gotten a full night of sleep,” he said.

And then came Parkland. On Feb. 14, 17 people — 14 students, a teacher, the athletic director, and a football coach who was also a security guard — died in another shooting at at Marjory Stoneman Douglas High School in Florida.

It was the ninth deadliest shooting in U.S. history, the second deadliest school shooting after the 28 killed at Sandy Hook, and the deadliest ever at an American high school, surpassing the 1999 shooting at Columbine High School in Colorado, which is now no longer in the top 10 overall.

Kathryn Mesa, FSU College of LawIn the wake of Parkland, many students from that school and various surrounding high schools made their way to the state’s capitol in Tallahassee (left and below, photos by Kathryn Mesa, FSU College of Law J.D. candidate) last week to discuss their desires for gun legislation and safety with state lawmakers.

“I came up here because, as students, we all are very — this is the last straw for us,” said Ashley Keene, a sophomore at Cypress Bay High School. “We are all really angry. We’ve had enough of just sitting in our classrooms and hearing about these things and feel like we can’t do anything about it. So now we’re here to actually do something.”

Echoing Keene’s reasoning was fellow Cypress Bay sophomore Grace Churpcala. “I’m here because I know that if we don’t change this now, it will happen to many other schools. We have to feel safe again. We need to have the comfort of safety even in our neighborhoods.I don’t feel safe. No one feels safe any more,” Churpcala said. “If this doesn’t change now, or in a couple months, it will happen. It will continue to happen for our kids and everyone else.”

Keene and Churpcala were two of eight students who were purposefully marching through the halls of the Capitol on Feb. 20, talking to politicians about the need for change — some who had just come from vigils for their deceased classmates — all armed with fear, strength and determination to make a change.

Students spoke with state senators Dennis Baxley (R-12th), Linda Stewart (D-13th) and Rene Garcia (R-36th), among others, that afternoon at the Capitol.

Lexi Ofstein, a junior at Stoneman Douglas, said, “Everyone puts it out of sight, out of mind and thinks that it can’t happen at my school, it can’t happen by me. And after it happened, the entire Parkland, the entire Broward, the entire state of Florida, everybody is getting involved in creating an action because nobody at Douglas wants to go back, wants to go through that tragedy, wants to experience what they experienced that day. I know it’ll be hard for most of us to go back to school after everything that happened. We need to create change.”

Sophomore Beau Simon from Cypress Bay High School appeared at the Capitol out of solidarity for his friends.“It took for it to happen in our own backyard to realize that the threat is real, and it’s out there. We need to be the change, I feel like if not, this is going to happen again,” Simon said. “People will forget. We’ve seen it happen before with Sandy Hook and many different tragedies that have happened. We forget, and it happens again. And we rise this whole debate over it. But now is the time for change.”

Many students are fighting through the fear at the thought of going back to school. Lizzy Eaton, a junior at Stoneman Douglas, drove past the school and said it felt like a whole new world. Many students’ innocence was lost during the less than ten minutes it took for the gunman to murder 17 of their classmates.

Kathryn Mesa, FSU College of LawWhere do we go from here?

In the months following the Las Vegas shooting, security experts have begun rethinking crowd security. The Las Vegas Metropolitan Police Department has continued to investigate the shooter and develop a timeline of the events. Reports of astonishing heroism from everyday Americans have been awe-inspiring.

“It’s so humbling and amazing to see how much people rally around one another in this city,” Fuchs said. “The whole city went above and beyond to help, fix and re-build as best as we can. Blood donation centers reached capacity within 24 hours. Restaurants in town donated meals to the first responders. Now businesses are offering free vehicle repairs if you were helping people flee, and some doctors are offering free scar repair for people who were shot or wounded. A few construction companies in town, along with volunteers, even built a memorial park all within a week or so.

“I’ve never seen a city come together like this,” Fuchs said. “It didn’t matter your background or who you were or what you thought about policy issues — we’re all human beings and we’re all here for one another.”

In many ways, the response has proven the resolve of Americans and their institutions in an increasingly uncertain world – with one glaring exception.

The post-Las Vegas political discourse has been depressingly inadequate. The cycle has become familiar. Political leaders send their collective thoughts and prayers, and then the shouting begins, each side as righteous in their condemnation as the other. After a few days and more dollars raised, the public moves on, more hardened than ever.

“Today, guns have emerged as the central issue of America’s cultural divide,” said Adam Winkler, professor at UCLA law and specialist in American constitutional law and history. “More elected officials are swayed by the NRA for electoral concerns than any other interest group — it stokes passion on both sides.”

Winkler is the author of We the Corporations: How American Businesses Won Their Civil Rights (2018) and Gunfight: The Battle over the Right to Bear Arms in America (2011). According to his UCLA bio, his scholarship has been cited in landmark Supreme Court cases.

There is no shortage of pro- or anti-gun control arguments a Google search away. But, most Americans don’t actually know what federal gun control laws we already have on the books.

“I’m frustrated with politicians and people with their own agendas not giving people time to cope and process. I finally fell asleep around 6 a.m. that Monday morning, and by the time I woke up at around 11 a.m., people were already pushing their policy into the conversation,” Fuchs said.

“From news coverage to social media, everyone felt the need to express their ideas of what should be done and who is to blame. It hadn’t even been 24 hours following the events, and people already had to force their own political agenda into the conversation,” he said.

Kathryn Mesa, FSU College of LawThe laws that are on the books

The United States already has several gun-control and gun-related statutes on the books, but many are not well known. What follows is a brief account of the federal laws currently in effect, as of this publication:

The National Firearms Act (NFA)
The National Firearms Act was enacted in 1934 It imposed a tax on the making and transfer of firearms and required the registration of all firearms. The act covered machine guns, rifles, and some shotguns. Handguns were not covered.

The Gun Control Act of 1968 (GCA)
The Gun Control Act of 1968 banned the importation of certain firearms “with no sporting purpose” but did not prohibit domestic manufacturing of such weapons. The GCA also enacted minimum age limits for firearm purchases and required that all firearms be marked with a serial number, required gun manufacturers to acquire a federal firearm license, and prohibited the transfer of firearms to certain persons, such as convicted felons.

The Firearms Owners’ Protection Act of 1986 (FOPA)
The Firearms Owners’ Protection Act significantly rolled back some of the restrictions on gun sellers under the Gun Control Act of 1968. Among other provisions, the act prohibited the federal government from maintaining a central database of firearm dealers’ records. It also banned the transfer or possession of machine guns.

The Brady Handgun Violence Prevention Act (The Brady Act)
The Brady Act was signed into law by President Clinton in 1993. It temporarily imposed a five-day waiting period to buy a handgun for anyone without a federal or state-issued firearms license. The five-day waiting period expired in November 1998. Today, the law requires an instant background check system that can be extended to three days if the results are unclear.

Public Safety and Recreational Firearms Use Protection Act
This is commonly known as the Federal Assault Weapons Ban. It passed as part of the Violent Crime Control and Law Enforcement Act of 1994. The ban targeted the manufacture and transfer of semi-automatic assault weapons and magazines capable of holding more than 10 rounds of ammunition. It specifically banned 19 weapons by name and copycat weapons. The ban was limited by a 10-year sunset clause, and under that clause, Congress allowed the ban to expire in September 2004.

The Protection of Lawful Commerce in Arms Act (PLCAA) (2005)
This act prohibits civil actions against gun manufacturers and sellers on the grounds that their products had been used to commit a crime. The law was passed in response to litigation filed by big-city mayors in the late 1990s that blamed gun manufacturers for the preceding increase in violent crime. The act blocked those lawsuits but allows for tort claims alleging illegal sales, negligent entrustment, and the transfer of a firearm with the knowledge that it will be used to commit a crime.

States have their own approaches to gun control as well. To find out more about state approaches to gun control check out Boston University’s School of Public Health’s State Firearm Law Database, complete with searchable data sets and interactive maps.

How law students can affect change

Winkler advises law students to get involved in personal ways, in terms of mobilizing and becoming part of their network, and also professional ways.

“Some people think nothing has changed in the gun debate, but I think since Newtown we’ve seen invigoration, such as new money to support better gun laws, the advent of Gabrielle Gifford’s Super PAC to finance pro candidates that are support common sense reforms,” Winkler said. “There are lots of opportunities to get involved: Activist. Contributor. Lawyer.”

Winkler suggests that most gun control laws would survive a reasonableness judicial review, and that constitutional rights are fluid — the 2nd Amendment and proposed regulations can indeed mix. However, single-issue voters who believe that compromise is a slippery slope that can lead to treason view these modest steps as deeply problematic.

“There is a major disconnect with the 2nd Amendment in court, and the politics of the 2nd Amendment in public debate and state houses,” Winkler said. “Bans have been upheld. Most cases have been upheld. However, the NRA’s aspirational vision of the 2nd Amendment has mobilization in a democracy — we the people has a bigger impact than a bunch of judges.”

Winkler believes that, over time, our nation will find its common ground. The Supreme Court has continued to uphold reasonable gun control laws and made it clear that many forms of gun control are constitutionally permissible. Gun owners will see that their right to bear arms isn’t under attack.

The high school students who trekked to the Florida Capitol, attempting to affect change, will be heading to college soon — and perhaps, some will continue on to work in law or politics.

Henry Lee and Andres Santos

Henry Lee (left) and Andres Santos

“We have this mentality of dissonance that has spread throughout the entire U.S.,” said Henry Lee, a junior at Western High School. “It has come to the point where fear has become a daily tradition for all of us. I came here (to the Capitol) because I want to incite a change.”

Andres Santos, a fellow junior at Western High School, agreed. He said he came to the Capitol to stand in solidarity with his brothers and sisters who perished at Stonemason Douglas.

“It affected our community to the point where people don’t show up to school because they’re scared for their lives and they’re scared that they’re not being taken seriously, and the problems they face aren’t going to be addressed,” Santos said. “I seek to be a driving force in addressing the issues that students feel are very pertinent to them. We have suffered. Our community has suffered. By being a part of this, hopefully we can end that suffering and we can put an end to the mass shootings. We can make it so that Stoneman Douglas is the last school that has to suffer a tragedy such as this one.”

You can vote, you can run for office, just one single voice can bring forth a lot of change,” Lee said. “And that’s my message for coming here.”

Kathryn Mesa, FSU College of LawPossible future legislation

There are numerous proposals to change or add to laws that are on the books. So far, lawmakers have been unable to agree on how to respond to the Las Vegas shooting. There has been some traction around a proposed ban on “bump stocks,” attachments that enable semi-automatic weapons to fire at a faster rate that simulates an automatic weapon.

Twelve of the rifles used in the Las Vegas shooting were equipped with bump stocks.

Bills that would ban these attachments have been introduced in both the House and the Senate. The house bill has 10 Democrat and 10 Republican co-sponsors. Meanwhile, Sen. Dianne Feinstein has introduced a similar bill in the Senate with 29 Democrat co-sponsors.

Both are unlikely to pass. The NRA has expressed some willingness to regulate bump stocks, but it will not support legislation to do so. The group’s position is that federal agencies should regulate bump stocks without going through Congress. (Agency regulations are more easily malleable than statutes.) House Speaker Paul Ryan supports this approach, making it unlikely a bill will receive a floor vote. In the wake of the Parkland shooting, President Trump said his administration would consider a bump stock ban and strengthening existing background checks. But Republican opposition to virtually any gun control legislation remains strong.

President Donald Trump suggested arming teachers with firearms in order to help protect students from future traumatic shooting events, but this suggestion has not gained much support from either side of the aisle.

In the CNN Town Hall with Parkland students and various politicians, Sen. Marco Rubio discussed the possibilities of passing a Gun Violence Restraining Order, similar to Red Flag legislation, that would allow certain people to petition a judge to separate dangerous people from their guns, and the FixNICS Act, which would potentially help issues with current background checks.

How does this play into what happened in Las Vegas, Sutherland Springs, Parkland, and in other school shootings as of late?

“It’s more complicated than (simply) NRA lobbying, though that’s an important part,” Winkler said. “If they weren’t so dead set against gun control, elected officials would be more supportive of gun control — they fear NRA will support their competition.”

In addition to the bump stock bills, Connecticut Sen. Chris Murphy – one of Congress’s most outspoken gun control advocates – plans to introduce legislation enhancing background checks and verifications of gun sales. The bill has little chance of receiving a vote in the GOP-controlled Congress.

Winkler points out that the mass shootings occurring in today’s society are increasing in magnitude, and that there’s an effort among gun control proponents that they should focus on combating everyday gun violence.

“There are mass shootings, high profile incidents — the Last Vegas shooting was absolutely horrific — at the same time, since the Las Vegas shooting, so many more people have been victims and they don’t get talked about or written about,” he said. “If we really want an impact in gun violence, we need to bring down the daily death toll.”

Students from Marjory Stoneman Douglas High School are asking for, among other things, a ban on military grade weapons, stricter background checks, higher age restrictions for gun ownership, and for their state senators not to accept campaign money from the N.R.A. After speaking with various politicians at the Florida Capitol, the students were frustrated to discover that, later that day, the Florida House had refused consider a ban on assault weapons.

Having lived through a deadly shooting, Fuchs said the political debate can wait at least a little while in the wake of these events.

“Give it a couple of days at least before you start the political conversations,” he said. “Let people be people. Suspend the debates and the finger pointing until the full story comes out and until people have had a chance to start the grieving process.”

“Everyone suffers an injury even if they’re not shot,” Winkler said.

Dayna Maeder and Rick Adams Dayna Maeder is a 1L student at Florida State University College of Law. She graduated Summa Cum Laude from the University of Central Florida where she studied English and mass communications, and went on to earn her Master’s in Education. Dayna is a former journalist who edited and wrote articles for Houston Chronicle, Chicago Tribune and other major newspapers and magazines throughout the nation. Rick Adams is a 3L at the University of Louisville Brandeis School of Law and a member of the Law Student Division Editorial Board. He currently works as a law clerk at the Office of the Commonwealth’s Attorney in Jefferson County, Ky. Rick is the Executive Editor of the University of Louisville Law Review.