The current majority of the Supreme Court has significantly increased access to firearms. In last year’s New York State Rifle & Pistol Association v. Bruen decision, the majority curtailed legislative options for protecting U.S. citizens from the danger presented by unfettered access to life-threatening weapons. The majority refused to acknowledge the danger inherent in firearms and the substantive difference in function between an antique flintlock and an AK-47. The Court’s refusal to consider the change that technology has brought to firearm capabilities has resulted in a dramatically reduced ability for any legislation to address the danger of firearms in a constructive manner. However, this reduction is not necessarily an elimination. Even with the historically inaccurate and logically flawed decision of the current majority, there are still measures that can be taken. Modern technology can be used to limit the harm posed by rampant gun possession even under the Court’s recent interpretation of the Second Amendment.
The majority in Bruen embraced analyzing the purpose of the Second Amendment to hold that people should be allowed to carry a gun outside their home and on the streets of every city in America. The adoption of purpose analysis, however, can not only enlarge gun rights but also constrain gun harms, such as via technological means. This same purpose analysis can be used to establish meaningful safeguards to help reduce unnecessary deaths that even this majority will be hard-pressed to deem unconstitutional. Legislators should use purpose analysis to establish regulations that will help protect Americans from gun violence.
This Article proposes the introduction of methods like gun tagging to promote greater safety in our country. The contributions of this work are thus two-fold: an analysis of the Bruen decision both from a historical and legal perspective, and the introduction of gun tagging as a mechanism to enhance public safety in the United States. This analysis shows the flaws in the majority opinion in Bruen but simultaneously highlights the fact that the proposal in this Article works under that regime until the members of the Court are changed and that law can be overturned. This solution balances the concerns of gun skeptics with the judicial embrace of gun rights, for better or for worse, in our nation’s history.
Robert E. Wagner,
(Gun) Tag, Congress Is It!,
SMU L. Rev.