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Guns, Kids, and Safe Solutions: Gun Regulation from D.C. to San Jose

Credit: Tim Mudd | Unsplash

2022 saw a staggering amount of deaths caused by firearms, around 20,138. Over 2,000 of these deaths were those of children. Addressing gun regulations is a notoriously difficult topic, and as such, gun violence in America is a perpetuating cycle that has yet to be broken. Federal legislation addressing gun violence has lagged, despite repeated mass shootings and fatal firearm incidents throughout the country. In 2022, the U.S. had 647 mass shootings, or incidents defined as shootings with four or more people shot. As of March 24, 2023, a staggering 9,759 victims of gun violence have been documented little over a quarter of the way through the year.

Six months ago, the SCBC Public Interest, Regulatory, and Government section addressed the regulation of manufactured, distributable gun parts, known as “Ghost Guns.” Today, we address gun legislation and policies since then, and plausible solutions to the seemingly never ending gun violence cycle. We bring the gun issue to light again, not only for its continuing significance, but to reveal its unfortunate, unnecessary continuation that we as academics and law students have the power to influence. Like the plethora of firearm types, the extent and effectiveness of gun regulation at the national, state, and local level vary greatly.

The Lack of Federal Gun Legislation

After US v. Lopez, 514 U.S. 549 (1995), Congress found it more difficult to regulate gun safety nationally. In that case, the U.S. Supreme Court held that criminal gun possession and violence near schools could not be regulated by Congress's Commerce Clause power. Id. at 631. Gun possession, alone, is not an “economic activity” within interstate commerce, nor part of a broader commercial market or regulatory scheme appropriate for federal regulation. Id. at 549.

More recently, Congress found another constitutional avenue for gun violence prevention: its spending power for education and mental health funding. In June 2022, the Bipartisan Safer Communities Act expanded gun safety in America. The Act funds programs for mental and behavioral health and creates more stringent background check requirements. Investing in educational awareness and access to mental health could address gun violence in America in the long term. Yet the fact remains that only 4% of interpersonal gun violence is attributable to mental health. Thus, focusing solely on mental health policies is unlikely to solve the cycle of gun violence.

On March 14, 2023, President Joe Biden announced the Executive Order on Reducing Gun Violence and Making Our Communities Safer. President Biden demanded more background checks before firearm sales, more “reg flag” laws, which are law enforcement policies for identifying and apprehending shooters before fatal mass shootings, and policies that hold the gun manufacturing industry accountable. Firearms are, however, already circulating legally and illegally, and there is no federal law regulating the storage of firearms.

Crucially, President Biden demanded that Congress implement safe storage standards. Only a few states have narrowly addressed safe gun storage policy. For example, Massachusetts and Oregon require safe storage whenever guns are left unattended. In contrast, Colorado, Connecticut, and New York require safe storage only when certain individuals are present. Implementing “smart gun policies,” policies requiring the personalization of distributed firearms, in California and New Jersey have been successful attempts at prevention.

California’s Smart Gun and Safe Storage Policies

California has some of the most progressive gun regulation policies in the U.S. The state’s “smart gun policiesrequiring the personalization of distributed firearms may be a reason the state’s firearms fatality rate is 39% below the nation’s average. In 2022 alone, the state enacted comprehensive ghost gun reforms, passed one of the strongest national victims’ access to justice laws, restricted firearm marketing to children, and formed a medicaid violence intervention program. In June 2022, however, Governor Gavin Newsom signed the public-carry firearm law, Assembly Bill (AB) 1621, seeking to ensure training requirements included the handling and storage of firearms.

California received an “A” grade in the annual gun law “scorecard,” but besides its smart gun policies, the state punishes the “criminal storage of a firearm of the first degree.” Cal. Penal Code § 25200(a). Active in 2019, the law criminalizes a person’s firearm possession in their residence where they know or should know a child is likely to gain access without supervision, unless they have a locked container for safe storage. Cal. Penal Code § 25205.

Similar to California, New Jersey has comparably tough gun laws. In 2022, New Jersey strengthened its concealed carry licensing standards, enacted a gun industry accountability law, strengthened regulation of ghost guns, and restricted guns in publicly sensitive areas. Despite its gun reform success, the state has no policy related to the safe storage of unattended firearms.

Historically, the regulation of privately owned firearms has been met with fierce political backlash. In March 2023, Tennessee Rep. Tim Burchett claimed the March 2023 Nashville mass shooting was “a horrible, horrible situation and we’re not going to fix it.” Members of Congress will argue the meaning and extent of the Second Amendment and their inability to regulate firearm “possession” under Lopez. Id. 514 U.S. at 631.

While Congress attempts to maneuver around constitutional hurdles, gun violence has surpassed car accidents as the leading cause of death for American children in 2022. The leading cause of adolescent death in America is not illness or vehicle accidents, but guns.

Giffords Law Center stated that, “Comprehensive child access prevention and safe storage laws are an incredibly effective tool to curb gun deaths and injuries among children and teens.” Over 90% of shootings by kids involve guns found at home. Although it is difficult to explain why gun deaths among children are so high, the increased availability of guns has played a monumental role in home gun violence. Uncoincidentally, 4.6 million households with minors in the U.S. have at least one loaded and unsecured firearm.

Child safety receives congressional bipartisan support. Bipartisan lawmakers are currently pushing to protect children on online platforms under the “Kids Online Act.” Republicans and Democrats agree that social media and the tech industry are harmful to adolescent mental health. Mental health and security of sensitive personal information are important, yet aren't the lives of America's youth equally, if not more important?

In California, San Jose’s Gun Harm Reduction Ordinance seeking to protect children from home gun violence is a potential bipartisan solution.

San Jose, California’s Safe Storage Incentive for At-Home Gun Possession

The City of San Jose’s recent gun storage policy has gained national attention. Back in 2019, San Jose implemented Ordinance No. NS-644. The ordinance prohibited firearms from being kept in residences “unless in a locked container, disabled with a trigger lock, carried by an authorized user, or in immediate control or possession of an authorized user.” Created in an effort to protect localized public safety, the ordinance sought to prevent the circulation of firearms and residential deaths in Santa Clara County, particularly when firearms are left unsecured at home. However, growing research revealed that in spite of safer storage practices, home gun possession generally increased the likelihood of firearm homicide and suicide at the home.

On January 1, 2023, San Jose executed a new gun safety ordinance. Under the Gun Harm Reduction Ordinance, San Jose residents that own or possess a firearm are required to “obtain and maintain liability insurance and pay an annual gun harm reduction fee.” The city is the first in the nation to require liability insurance for gun possession. Arguably more progressive than California’s safe storage law, the ordinance mandates homeowner’s, renter’s or gun liability insurance policies for firearms and covers losses or damages as a result of accidental use. Additionally, the annual gun harm reduction fee is tentatively set at $25 per household, but is yet to be enforced.

The Gun Harm Reduction Ordinance has been met with mixed responses. The former mayor of San Jose, Sam Liccardo, believes the ordinance will incentivize safer behavior and reduce the risk of gun harm with the hopes that insurers will potentially offer lower premiums to gun owners who take safety measures with their firearms. Others have challenged the ordinance’s burden of taxing a constitutional, second amendment right to bear arms.

While the new ordinance is an ambitious pursuit to increase gun safety and prevent future injuries and fatalities, it is seemingly stronger in theory than in execution. With the reduction fee not yet enforced, the likelihood of insurance benefits being slim, and the constitutional concerns, the efficacy of such a progressive gun storage policy is unknown. Nevertheless, Congress can learn from the innovative safe storage method.

Gun Ownership Over Gun Violence

In modern America, our federal lawmakers protect gun ownership over gun violence. After another mass shooting, we mourn the March 30, 2023 victims of Nashville, Tennessee, killing three students and three staff members. Shouts of “Save our children!” echoed the chambers in the Senate and House Chambers in the U.S. Capital that week, with more protesters taking to the streets. The number one cause of adolescent death in America is gun violence. Americans and our lawmakers should be outraged. Whether its California, New Jersey, or the City of San Jose, Congress has been handed an array of methods to combat incessant gun violence. If child safety, and therefore safe storage, is an overlapping bipartisan value, it may be the first means of establishing congressional common ground. Only time, public outcry, and legislation will tell. Until then, gun violence will continue.

*The views expressed in this article do not represent the views of Santa Clara University.


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