Q&A with Lisa McElroy: The Newtown Shootings, Gun Control and the U.S. Supreme Court
January 9, 2013
By Tim Hyland
The tragic and unthinkable school shooting that rocked Newtown, Conn., on Dec. 14 reignited the national debate about gun control.
In the immediate aftermath of the shooting, President Obama promised strong action to reduce gun-related violence and is expected to announce a host of gun-control proposals in the days and weeks to come. The National Rifle Association, meanwhile, has promised to fight any new gun-control measures and has already moved to block a gun buyback program in Arizona.
What the future holds for gun control in America remains uncertain, but this much is clear: If and when serious gun control proposals are enacted, they will likely find their way to the Supreme Court, where their fate would be decided.
Lisa McElroy, a professor at the Earle Mack School of Law and expert on the Supreme Court and the Second Amendment, recently spoke with DrexelNow about the impact of the Newtown shootings, the Court’s most recent rulings on guns rights and the likelihood that the justices will revisit the issue anytime soon.
How did you first become interested in issues related to gun violence?
When I was pregnant with my first child, I happened to be working on a book about Dianne Feinstein. She was serving on the Domestic Terrorism Subcommittee, and I was following her around. There was one day when a subcommittee hearing was going on and there were some people up there testifying about some issue or the other. The senators were mostly sitting around looked bored. Then an aide walked in and handed a note to Sen. John Kyle, and suddenly everything got very quiet. This was back in 1999, before everyone had smartphones, so none of us knew what was going on outside of that hearing. Well, as it turned out, Columbine had just happened. This was such a profound moment—we weren’t used to [mass shootings] yet. And I really believed at the time that the Senate would be able to act, that legislation would be moved forward. Of course, at that time the Court had yet to declare that there was this individual right to bear arms.
How has the Court ruled on guns issues in recent years?
It has been interesting and in some ways alarming to see how this has evolved in the years since. I was very disappointed with the Court’s rulings in the Heller and McDonald cases—Heller vs. the District of Columbia (2008) and McDonald vs. the City of Chicago (2010). Basically, in those cases the Court looked at the Second Amendment and how it applies to individuals. There has been considerable debate over the years whether that right to bear arms applies solely to organized militias, or if it is actually an individual right. In Heller, the Court said that this was in fact an individual right. And in McDonald, the Court said that this right also applied to the states. That’s important because, when you think about it, the Second Amendment is from a federal constitution. But McDonald stated that the 14th Amendment was the means by which that right also applied to state laws.
Broadly speaking, what was the impact of these rulings?
What that meant was that in D.C., for instance, which is a federal entity, or in a city like Chicago or a state, the government could no longer impose bans on gun ownership. Now, what exactly the limits of those rulings are—those haven’t been tested. It may be there will be some kind of horrible gun that will push governments to propose a ban, and maybe that ban would go to the Court and they would say that the right to bear arms did not include that type of gun, or that, for instance, it didn’t include the right to own a nuclear bomb. But we haven’t seen those limits tested yet. So far the Court has just said that limits on gun ownership for people with felony records or history of mental health issues are probably OK.
The Newtown shootings obviously brought this issue front and center. Do you believe that it will remain there, or will the debate fade away?
It’s hard to know. I think the fact that this happened right before the holidays meant that many people had many different things pulling them in different directions. The Senate was in a bit of a pinch dealing with the fiscal cliff, and this is a time of year when Congress typically doesn’t do much. You kind of hope that the momentum will keep going but historically that hasn’t happened, has it? What I think is possible is that there can be more of a grass roots push for change, even in our local communities. My school district has distributed a lot information to parents [since Newtown] and we’ve received several emails since it happened, telling us, ‘This is what we’re doing, this is how we’re showing you that we’re taking this seriously.’ My daughter takes French horn lessons in the district, but it’s at a different school from the one she attends during the day, so I have to drive her over there after school. Before Newtown, I would just pull up to the back door and she would walk right in. And now, the door is locked—she has to call the teacher to come get her. Little things like that can be moves forward, but the bigger question is whether we really ought to have to protect our kids from this kind of thing.
Do you think the Court has any interest in looking at gun control at the moment?
Right now there is no interest in taking up the issue. And the reason why is that the composition of the court is basically the same as it was for Heller and McDonald. We have had a couple spots turnover, but those changes haven’t really changed the power balance on the Court and hasn’t changed the ideological composition of the Court. What we would need [for a change] would be for one of the conservative justices—one of the ones who voted in favor of the interpretation of the Second Amendment that it’s an individual right to bear arms—to go, and we would need President Obama or another like-minded president to nominate someone who would vote the other way. As it is right now, it’s settled law, and there’s no reason for them to take another case. But if there were a change in the composition of the Court, they might say, ‘Hey, let’s take a case.’ This does happen. We’ve seen it with gay rights and we’ve seen it with limits on abortion.
I think the most important thing to note here is that I wouldn’t want people to think they are powerless. Through their political voices, they can vote for a president who sees this issue a different way and would nominate somebody to the Court who sees it a different way. Because of the way the Court works, the laws can’t be reversed tomorrow, but they can be reversed in a decade. It’s something worth working toward, because in my mind, the alternative is very, very scary.