Legislating away mass murder

August 7, 2012

In the wake of the terrible massacres in Aurora and the  Sikh temple in Oak Creek, it is no surprise that there has been a resurgence of debate over the proper legislative response to help prevent such horrific acts in the future.  Not surprisingly, the recommended approaches have varied as widely as the opinions on the proper role of guns in our society.

Senator Frank Lautenberg (D-NJ) and Representative Carolyn McCarthy (D-NY) have each introduced bills in their respective chambers of Congress to restrict online sales of ammunition.  (Sen. Lautenberg’s bill is 2011 US SB 3458, the cite for Rep. McCarthy’s bill will be 2011 US HR 6241, but it is not available online as of this writing).  Both have also proposed legislation restricting the capacity of magazines for semi-automatic weapons to 10 rounds of ammunition, reviving restrictions in place under the Brady Bill (also known as the Brady Handgun Violence Prevention Act, Pub. L. 103-159), but it does not appear those bills have actually been offered yet.

To keep track of the bills proposed by Senator Lautenberg or Representative McCarthy, you can use the following as a WestClip search in CONG-BILLTXT:  au(lautenberg mccarthy).  To see when the magazine restriction bills are offered, try: (magazine /s 10-round) “large capacity ammunition feeding device” (large high +2 capacity /5 magazine) in the same database.

There has also been discussion of legislative responses from Second Amendment supporters, as well.  Much new discussion has been had of a pair of companion bills currently pending before Congress (one House version, one Senate) known interchangeably as the National Right to Carry Reciprocity Act, which I wrote about here.  To see some of that recent discussion, try this search in All News on WestlawNext:

“National Right to Carry” “right to carry reciprocity” & da(aft 07/20/2012)

But in researching for this post, I also learned about another legislative proposal from Second Amendment supporters that has been making rounds on internet discussion forums, and even in some state legislatures.  The measure is known familiarly as the “Gun-Free Zone Liability Act.”  It would seek to impose tort liability upon those who post signs or otherwise convey to their guests or patrons that guns are prohibited on their premises.  Second Amendment advocates point out that the Century 16 theatre in Aurora was posted as a gun-free zone that banned the possession of weapons on its premises.  Under the Gun-Free Zone Liability Act, at least as it was propsed before the Colorado legislature in 2008, those in attendance at the movie that night would have had a new option for redress.  The act provided:

A PERSON WHO SUFFERS INJURY AS A RESULT OF CRIMINAL CONDUCT THAT OCCURS IN A GUN-FREE ZONE SHALL HAVE A PRIVATE RIGHT OF ACTION FOR DAMAGES AGAINST THE PERSON, ORGANIZATION, ENTITY, OR AGENCY OF GOVERNMENT THAT CREATED THE GUN-FREE ZONE. IN AN ACTION BROUGHT PURSUANT TO THIS SECTION, THE PLAINTIFF SHALL HAVE THE BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT A REASONABLE PERSON WOULD BELIEVE THAT POSSESSION OF A FIREARM COULD HAVE HELPED THE PLAINTIFF DEFEND HIMSELF OR HERSELF AGAINST THE CRIMINAL CONDUCT.

2008 CO S.B. 115 (NS).

Similar legislation has also been proposed in Arizona (2008 AZ S.B. 1400 (NS)), Illinois (2011 IL S.B. 48 (NS), 2005 IL S.B. 2789 (NS) and 2005 IL H.B. 4564 (NS)), and South Carolina (2007 SC H.B. 5221 (NS)), though no state has yet adopted the measure.  Search:  gun-free /p liab! in BILLS on Westlaw Classic.

The logic behind the law is that nearly all mass shootings occur in places where the lawful possession of guns by those duly licensed is prohibited, so by creating a disincentive toward the creation of these gun-free zones, fewer places would ban guns.  As a result, according to the argument, criminals would have less certainty that their intended victims were disarmed and defenseless and may think twice before carrying out their heinous plans.

Many states with permit-to-carry laws on the books allow private property owners to post signage informing permit holders that they wish their property to remain “gun free.”  See, e.g., Minn. Stat. 624.714, subd. 17 (providing for the posting of a sign that “(owner or operator) bans guns on these premises”).  Wisconsin, in its newly enacted carry law, took a new approach to the question of posting signs prohibiting the carrying of weapons by granting immunity to anyone who decides not to prohibit an individual from carrying a weapon on their premises.  Wisc. Stat. 175.60(21).  It has been an open question whether this grant of immunity in any way effects the liability of those who do choose to ban guns from their premises, but the general consensus is that it won’t.  (As a “for instance,” see this document from the Wisconsin Restaurant Association ).  Clearly, the Gun-Free Zone Liability Act would add a new dimension for consideration in those states that allow for the posting of signs prohibiting carry.

For a list of the state’s that allow for such posting, try this search on WestlawNext:

Content: All States:
Search: post sign prohibit carry of firearm

Whichever direction the legislative approach to solving public massacres takes, this much is certain: there won’t be any easy answers, and we’re not likely to solve it anytime soon.