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July 26, 2023 HUMAN RIGHTS

The Supreme Court, Gun Violence, and the Rule of Law

by Angela Downes

Uvalde. Mother Emanuel AMEC Church. Colleyville Synagogue. Parkland High School. Methodist Dallas Medical Center. Sandy Hook. Michigan State University. Tyre Nichols. El Paso Walmart. Buffalo Tops Grocery Store. Atatiana Jefferson. George Floyd. Oxford High School. Ahmaud Arbery. Marjory Stoneman Douglas High School. Pulse Nightclub. Santa Fe High School.

According to the Gun Violence Archives, 6,497 Americans have died in gun-related incidents so far this year. There have been 86 mass shootings as of early March. The issue of gun violence compounds with each passing day and permeates every aspect of life—from the recent New York State Rifle & Pistol Association, Inc. v. Bruen case where the U.S. Supreme Court found that gun owners have a constitutional right to carry guns outside of their homes and that laws restricting concealed carry licensing laws violated the Second Amendment; the recent Fifth Circuit ruling in USA v. Rahimi, No. 21-11001 (5th Cir. 2023), which allows the subjects of domestic violence protective orders the ability to possess firearms during the length of the order; to continued school shootings and the continuing challenges of police interactions with the public and cases of police brutality. There is an expansion of the means to possess a firearm as well as robust legislative action with respect to regulation of the purchase, possession, and transportation of firearms, along with proposals to substantially curtail ownership of firearms, but there is no definitive singular way to address increasing gun violence. While gun violence continues to increase, finding solutions to the fallout is slow to emerge. 

Our federal, state, and local governments spend a combined average of nearly $35 million each day to deal with the impact of gun violence.

Our federal, state, and local governments spend a combined average of nearly $35 million each day to deal with the impact of gun violence.


The Second Amendment is one of the most fundamental rights afforded to Americans. The challenge lies in preserving the essence of the amendment while ensuring safety and reducing incidents of gun violence. The rule of law sets out that all citizens and institutions in a country, state, or community are accountable to the same laws. While the Supreme Court has a stricter interpretation of the application of gun laws as reflected in recent decisions, this does not diminish the number of incidents of gun violence that are on the rise. We must continue to marshal resources in pursuit of a multidisciplinary approach to the issue. The impact of gun violence on taxpayers, survivors, families, and employers is too high. The cost is not only associated with the undefinable cost of losing a loved one but also upfront costs associated with police investigations, medical treatment, and consequent costs—mental health care, long-term medical treatment, lost wages or earning potential due to death or disability, and a diminished standard of living because of ongoing pain and suffering for victims and families. 

An Interdisciplinary Approach

There is not one solution to quell gun violence in America. We must use every strategy and tactic available to stop what many call an epidemic of gun violence. An interdisciplinary approach focuses on harnessing various tactics to attack the issue. According to recent data, our federal, state, and local governments spend a combined average of nearly $35 million each day to deal with the impact of gun violence. 

Public Health

The American Medical Association and the American Public Health Association both describe gun violence as a public health issue. Reflected in the societal costs of firearm assault injury include work loss, medical/mental health care, emergency transportation, police or criminal justice activities, insurance claims processing, employer costs, and decreased quality of life. By designating gun violence as a public health issue, there may be opportunities for increased funding and policy changes.

Suicide accounts for between 60 and 65 percent of all gun deaths annually in the United States. Three states have passed legislation allowing people who fear they may become suicidal to place themselves on a “do not sell” list to block their purchase of a gun. The voluntary participants would have the option to suspend their ability to purchase a gun by voluntarily entering their name confidentially into a background check system that is already in place. While those navigating a current crisis would most likely not participate, for those who suffer from mental health episodes, the do not sell registry could serve as a protective barrier between someone suffering a mental health issue and the purchase of a gun. Advocates of the law say that there is a link between guns and suicide, which cannot be denied, and there is a link between stricter gun laws and lower suicide rates. 

However, advocates of the do not sell list and the National Institutes of Health are quick to note that mental illness is not a predictor of violence toward others. After shooting events, mental illness is often blamed as the cause. However, research finds that mental illness is not a significant risk factor for gun violence. Only a small number of mass shooters, 20 percent, have experienced serious mental illness. People with mental illness are more likely to be victims of violence rather than perpetrators. It is clear that gun violence may cause mental health issues for survivors—we have only to look at the recent mass shooting at Michigan State where we later learned that some of the students impacted were also survivors of the Oxford Hills High School shooting one year before. How those who were still processing one tragedy will deal with another is yet to be seen.

Strengthening Gun Laws

On June 25, 2022, President Joe Biden signed the bipartisan gun safety bill. Touted as the most significant federal legislation to address gun violence to pass since 1994, this new legislation aimed to improve mental health support and school safety, restrict firearm access for domestic violence offenders, enable states to put in place laws that will allow authorities to take weapons from those deemed “dangerous,” and toughen background checks for young gun buyers. The bill includes expanded background checks, closing the boyfriend loophole, red flag laws, illegal gun purchases, mental health expansion, gun dealer checks, and school safety.

With expanded background checks, for the first time, juvenile records, including those regarding mental health, will be required in federal background checks for gun buyers under the age of 21. The maximum time for gathering criminal background records has now been extended to 10 days. Red flag laws provide federal aid to states that create red flag laws to aid authorities in obtaining court orders to temporality remove guns from those deemed dangerous by a judge. The aid is meant to incentivize states and can be used to create crisis intervention programs. With illegal gun purchases, the bill focuses on gun trafficking and straw purchasers, people who purchase guns for other individuals who would not pass necessary background checks, and the expansion of mental health programs and community behavioral health clinics. Provisions include support for pediatric mental health training and care, school-based mental health programs, the suicide crisis hotline, and community mental health. The section focused on federally licensed gun dealers is meant to close the gun show loophole in which unlicensed private sellers have been able to sell guns without performing required checks.

By closing the boyfriend loophole, the legislation expands on current laws barring those convicted of domestic violence or subject to a domestic violence restraining order from purchasing a firearm. This legislation also includes other intimate partners, in addition to people who are married to, living with, or had a child with the victim. During the pandemic, there was an increase in incidents of domestic violence. Victims were locked down with abusers, and many shelters struggled to safely provide services. There was also a steady increase in gun purchases. Domestic violence incidents rose in the United States by about 8.1 percent after the imposition of pandemic-related lockdowns, according to an analysis by the National Commission on COVID-19 and Criminal Justice. 

Firearms contribute significantly to domestic violence. Around 4.5 million women in the United States have been threatened with a gun, and nearly 1 million women have been shot by an intimate partner. Abusers use guns to threaten and control victims. These threats often escalate to murder. Every month, an average of 70 women in the United States are shot and killed by an intimate partner. Research shows that access to a gun in domestic violence situations makes it five times more likely that the woman will be killed. Like many other forms of gun violence, the deadly intersection of guns and domestic violence has a disproportionate impact on communities of color, particularly Black, American Indian or Alaska Native, and Latinx women. 

The Collaborative for Academic, Social, and Emotional Learning Studies show that an education that promotes social and emotional learning finds beneficial outcomes related to attitudes about self, school, civil engagement, social behaviors, conduct problems, emotional distress, and academic performance. It is unknown if the significant changes addressed in the bipartisan gun safety bill will withstand the challenges raised in cases making their way to the Supreme Court.

Police Interactions and Training

According to data compiled by the Washington Post, 1,098 people have been shot and killed by police in the past 12 months. The fallout from the Breonna Taylor case where Taylor was fatally shot while sleeping in her bed as police executed a no-knock warrant led to an examination of police interaction and training. The U.S. Department of Justice investigated the Louisville (Kentucky) Metro Police Department and identified 36 recommended remedial measures and outcomes in order to address violations and a framework for change. The resulting consent decree requires that the Louisville Metro Police Department will be monitored by an independent regulatory agency while changes are made to improve community relations and public safety and to comply with federal and state laws. 

Many of the measures center on training related to the use of force, search warrants, street enforcement, and the need for clear policies and processes related to interactions with domestic violence or sexual assault victims and those facing behavioral health (mental health) episodes and the lack of support for officers. The consent decree identifies areas of unconstitutional policing and ensures that the agency will shift to constitutional policing. Police agencies are called to protect communities and to deal with situations we could never imagine. However, with the call is a duty to provide public safety for all. Other law enforcement agencies should engage in similar examinations of their policies and training to improve public safety and to provide officers with the tools they need to succeed and effectively serve their community. 


We must continue to engage in an interdisciplinary approach as gun violence continues to rise. Focusing on public health, strengthening gun laws, and examining police interactions and training are just some of the ways to reduce gun violence. As gun violence continues to be a reality on school and university campuses, we must also look at policies to protect our students, like campus carry. We must also determine if conflict resolution measures like social-emotional learning techniques, mediation, and the implementation of pre-mediation programs are appropriate mechanisms to assist. It is only when we apply varying tactics that we can reduce the gun violence crisis and ensure that the rule of law is upheld.

The ABA Standing Committee on Gun Violence is a unique, nonpartisan voice committed to working on evidence-informed policy, education, and advocacy. Its mission aims to address the problem of gun violence through public education, bar activation, and legislative efforts aimed at reducing gun violence and by taking on a coordinating role for lawyers active in the ABA, for its Sections and Divisions, state and local bars, and private bar groups.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Angela Downes

Chair of the ABA Standing Committee on Gun Violence

Angela Downes is a chair of the ABA Standing Committee on Gun Violence, a JAMS neutral for the Dallas panel, and a professor at the University of North Texas Dallas College of Law, where she serves as assistant director of Experiential Education. Professor Downes also teaches clinical courses, the 40-hour mediation course, and Domestic Violence and the Law.