Controlling Gun Violence: Obstacles to an Effective Policy

Legal experts say the big problem is the 3 million guns already in circulation.

December 18, 2012, 3:01 PM

WASHINGTON, Dec. 19, 2012 -- Editor's Note: This post is part of a larger series by ABC News examining the complex legal, political and social issues in the gun control debate. The series is part of ABC's special coverage of the search for solutions in the wake of the tragedy at Sandy Hook Elementary School in Connecticut.

The Second Amendment of the Constitution reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Despite that seemingly clear statement that Americans have the right to buy and own guns, legal experts say it does not preclude the government from enacting measures to regulate the manufacturing and distributing of firearms.

"The biggest misconception is the idea that the Second Amendment imposes serious hurdles to gun control," says Adam Winkler, law professor at UCLA and author of "Gun Fight: The Battle Over the Right to Bear Arms in America."

"The Supreme Court has made it crystal clear that there is plenty of room for effective gun control laws," he said. "The right of people to have guns and gun control are not mutually exclusive."

Legislation introduced which purports to control gun violence has historically focused on regulating high-capacity ammunition clips and certain types of semi-automatic firearms. Polling shows that these types of regulations are generally popular, and therefore proposals to ban the sale of these types of weapons and weapon accessories makes political sense.

But legislation to control sales of weapons doesn't address the biggest hurdle to effective gun control -- the guns that are already in circulation.

"The biggest problem for gun control today is a number: 300 million," Winkler said. "That's roughly the number of guns there are in civilian hands today. Any new law you pass confronts the reality of 300 million guns already in circulation."

Federal and state government hands are tied when it comes to regulating these already circulated firearms, he said.

"You can outlaw assault rifles for instance, say that anyone who has one, it's illegal, you have to turn it in," Winkler said. "You could do that, but they won't be turned in. It's not that you can't outlaw them, it's just that practically speaking you can't get rid of them."

Additionally, the politically popular avenue of banning the manufacturing and sale of certain types of semi-automatic weapons is inherently flawed.

For a gun to be classified as a semi-automatic, it must be designed to automatically reload a bullet after the shooter pulls the trigger. Virtually every civilian-owned gun is a type of semi-automatic gun, which means banning all semi-automatic guns would likely be read by the courts as a violation of the Second Amendment, and therefore any ban on these weapons would be limited in scope.

Automatic firearms -- those in which a shooter pulls the trigger once and the gun fires multiple rounds of bullets -- are tightly regulated and have been since the 1930s.

While regulation of certain types of semi-automatics has broad public support, broader legislative actions are not popular. A recent ABC News/Washington Post poll conducted in the aftermath of the mass shooting in Newtown, Conn., found that 71 percent of Americans oppose banning the sale of handguns to everyone except law enforcement officials.

"The court's reading of the Second Amendment is completely in sync with the American public's views on firearms," said Randy Barnett, professor of constitutional law at Georgetown University. "That is, you're allowed to have firearms, you're allowed to have them in the home for self-defense. ... Americans are willing to consider reasonable regulations of that, and courts are also willing to consider that."

The more effective means of controlling the distribution of assault weapons, Winkler argues, is to improve the reporting of mental health data to the federal government, which oversees background checks.

"The biggest problem is that reporting by states of mental health rulings is voluntary, so very few states provide comprehensive data on mental health rulings to the federal government," Winkler said.

"Another problem with mental health reporting is that it's only adjudicated instances of mental health illness -- a court has to say you are mentally unfit," he said. "That's going to capture a very small percentage of the mentally ill people who are a danger to themselves and others."

But improving the reporting of mental health data is a difficult legal task in and of itself. There is an inherent difficulty in expanding existing laws in a manner that would not infringe on privacy rights.

White House press secretary Jay Carney stressed earlier this week that President Obama does not view gun control as the sole solution to the problem of gun violence in America.

The administration has not provided any specifics on other solutions the president is considering, but given the many problems in effectively controlling firearms, we should expect additional proposals, not related to gun control, to come from Washington in the coming weeks and months.

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