Blumenthal called last year’s Bruen decision a “deeply frightening potential obstacle to common sense measures.”
[WASHINGTON, D.C.] – In case you missed it, U.S. Senator Richard Blumenthal (D-CT), a member of the Senate Judiciary Committee, defended Ethan’s Law and other safe storage legislation at yesterday’s Committee
’s hearing titled, “Protecting Public Safety After New York State Rifle & Pistol Association v. Bruen.” Last year’s Supreme Court decision struck down a New York law concerning concealed-carry licenses and set a new legal standard for other gun violence prevention measures. In Bruen, the Supreme Court ruled that the constitutionality of modern-day gun safety laws depends on whether the government can demonstrate that there were sufficiently similar historical gun laws in place at the time of the adoption of the Second Amendment in 1791 or the Fourteenth Amendment in 1868.
“Ethan’s Law simply requires that guns be safely stored. It doesn’t take away a single gun. It doesn’t look at who owns the gun. It doesn’t provide any ban on any type of gun. It simply says if you have a gun, you should safely store that gun,” said Blumenthal, before asking Eric Ruben, Assistant Professor of Law at Southern Methodist University, if under the Bruen decision legislation like Ethan’s Law would be, “constitutional under the court’s apparent reasoning that there has to be some historical analog?”
“Before Bruen, safe storage laws fared very well in the courts,” said Ruben. While discussing 18th century safe storage laws that were intended to separate gun powder from firearms as examples of historical analogs, Ruben said, “It was a different time with different problems and the policymakers back then addressed the problems that existed…It’s very much an open question. But one thing for sure is the court did say that a lot of regulation is still permissible under the Bruen standard.”
“Gun deaths have recently surpassed any other kinds of deaths affecting children. Gun violence is the most common cause of child death in the United States today. An estimated eight children and teens are…unintentionally injured or killed due to an unsafely stored firearms. So the risk may be different, but the analog is the same in so far as it says risk can be taken into account in requiring safe storage,” Blumenthal responded. “I’m going to continue to advocate Ethan’s Law at the federal level and other measures that I’ve introduced here, trying to encourage the courts to interpret Bruen expansively, because it really is a matter of life and death.”
Ethan’s Law, legislation requiring gun owners to safely and securely store their firearms, is named in honor of Ethan Song, a teenager from Guilford, Connecticut who was tragically killed in 2018 by an unsecured gun in a neighbor’s home. Under Ethan’s Law, gun owners would be required to secure their firearms in a “secure gun storage or safety device” if a minor is likely to gain access to the firearm without permission, or if a resident of the dwelling cannot legally possess a firearm. With loaded and unlocked guns in the homes of an estimated 4.6 million American minors and killing or injuring eight children or teens every day, Ethan’s Law would reduce access to these unsupervised firearms often used in suicides, school shootings, and other acts of violence.
Video of Blumenthal and Ruben’s exchange can be found here. A transcript is available below.
U.S. Senator Richard Blumenthal: Thank you all for being here. Thank you to the advocates who have joined us today and I want to thank Senator Padilla and other members of the committee for their steadfast support of measures that will stop that epidemic of gun violence. These measure made vastly more difficult by the Supreme Court’s decision in Bruen in ways that we have no way of knowing at this point because Bruen remains a deeply frightening potential obstacle to common sense measures. I could talk about many of them but I want to focus on safe storage laws, known in Connecticut as Ethan’s Law. Our law is named after a young man who was killed when he was accidentally shot by an unsecured firearm. Ethan Song was a teenager at the time and the firearm had been stored in a Tupperware box in a closet alongside the ammunition and keys to the gun lock. Ethan’s Law passed in Connecticut, but we know across the country 4.6 million minors live in households with at least one loaded and unlocked gun. An estimated 54 percent of gun owners don’t lock all of their guns securely. Ethan’s Law simply requires that guns be safely stored. It doesn’t take away a single gun. It doesn’t look at who owns the gun. It doesn’t provide any ban on any type of gun. It simply says if you have a gun, you should safely store that gun. So I would like to ask Professor Ruben, based on the Bruen decision, whether that kind of law would be constitutional under the court’s apparent reasoning that there has to be some historical analog on which any kind of law is based under the Second Amendment?
Professor Eric Ruben: Thank you, Senator. So as you mentioned there’s a lot of uncertainty right now about what Bruen means and how it will apply to specific gun laws, including that one. Before Bruen, safe storage laws fared very well in the courts. And after Bruen, the question will be first, whether or not the storage or laws about storage fall within the plain text of the Second Amendment. That’s an open question. And then the second question that will be asked is whether or not they have historical analogs. And it’s a challenging one. This is a good example of the challenges that courts have now, because back in the framing era, the guns were largely muzzle-loaded black powder guns that were not kept loaded or carried loaded because of the risk of misfire. There were laws about storage back then. For instance, there were laws in the City of Boston and other places about storing gun powder separate from the firearms, but those were because there was a risk of fires. It was a different time with different problems and the policymakers back then addressed the problems that existed. Today, the problems as you mentioned are different than the problems back then. And a lot will depend on how court, how flexible courts look to historic laws like the Boston safe storage law and how they relate them to today. And it’s very much an open question. But one thing is for sure is the court did say that a lot of regulation is still permissible under the Bruen standard.
Blumenthal: I think your point is very important that an analog means exactly that. That is doesn’t have to be exactly the same and the laws for example that you’ve cited in Boston requiring safe storage of some of the materials used in firearms or firing weapons perhaps provide that kind of analog. And today the risks may be different. In fact gun deaths have recently surpassed any other kinds of deaths affecting children. Gun violence is the most common cause of child death in the United States today. An estimated eight children and teens are unintentionally injured or killed due to an unsafely stored firearms. So the risk may be different, but the analog is the same in so far as it says risk can be taken into account in requiring safe storage.
Ruben: And that’s absolutely correct in terms of how courts are going to have to apply Bruen in light of changed circumstances. One of the problems I’ve seen in opinions that have come out after the Bruen decision is that courts in effect are looking for dead ringers. A lot of courts are sidestepping analogical exercise altogether and just looking for dead ringers. Well that’s just not now analogical reasoning works and in fact, historical laws are going to have to be viewed with a relatively high level of generality, flexibly in order to accommodate the reality of change over time.
Blumenthal: Well thank you very much. Thanks Mr. Chairman for having this hearing. I’m going to continue to advocate Ethan’s Law at the federal level and other measures that I’ve introduced here, trying to encourage the courts to interpret Bruen expansively because it really is a matter of life and death and I commend President Biden for taking the action he did yesterday. Thanks.