The Disarm Hate Act: Common Sense Gun Legislation That Will Save Lives
Getnick Law attorneys devote significant time to professional activities aimed at improving the legal profession and the law in order to promote the public good. On February 5, 2024, Getnick Law Partner Margaret Finerty presented Resolution 603 to the American Bar Association House of Delegates at its Midyear meeting in Louisville, Kentucky that urged the passage in Congress of the Disarm Hate Act.
The Disarm Hate Act (H.R. 5435/S. 2776, 118th Cong.), introduced into the Senate and the House of Representatives on September 13, 2023, would amend 18 U.S.C. §§ 922(d) and (g) of the Gun Control Act of 1968 to include in the list of persons who cannot purchase, possess, sell, etc., firearms and ammunition, people convicted of misdemeanor hate crimes. It would also prohibit people who have received an enhanced sentence for a misdemeanor crime because of hate or bias in its commission from obtaining a firearm. The Bill specifies that “convicted of a misdemeanor hate crime” means that: (1) the crime is a misdemeanor under federal, state, or tribal law; (2) that it has, as an element, that the conduct of the offender was motivated by hate or bias because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person; and (3) that it involves the use or attempted use of physical force, the threatened use of a deadly weapon, or other credible threat to the physical safety of any person. It only includes such convictions if the individual (1) was represented by counsel in the case; or (2) knowingly and intelligently waived the right to counsel in the case; and (3) was tried by a jury if entitled in the jurisdiction (or knowingly and intelligently waived the right to have the case tried by a jury), by guilty plea or otherwise. It does not include convictions that have been expunged or set aside, or offenses for which the person has been pardoned or has had their civil rights restored, if that restoration included the right to possess or purchase a firearm.
Resolution 603 also urged state, local, territorial, and tribal governments to pass similar laws. Federal law (18 U.S.C. § 922(d)(1) and (g)(1)) already prohibits those convicted of felony crimes, which includes felony-level hate crimes, from purchasing or possessing firearms and ammunition, however, there is no prohibition against purchasing or possessing a weapon at the federal level for those convicted of misdemeanor hate crimes. The underlying motivations of a hate crime are the same, regardless of whether the crime fits into the felony or misdemeanor category. A report issued by the Center for American Progress concludes that crimes that are motivated by hate have a “unique tendency to continue or escalate to future physical violence.” Notably, a study published in the Journal of the American Medical Association found that people previously convicted of a violent misdemeanor were nine times more likely to be charged with another violent offense after purchasing a handgun, compared to people with no criminal history.
Hate crimes are rising at an alarming rate. Due to the increase in hate-motivated violent crimes, the FBI in 2020 declared hate-fueled violence to be a top national security priority on a par with foreign terrorism. In particular, racially or ethnically motivated violent extremists, including White supremacists, are a focus of their efforts, which they coordinate with state and local law enforcement around the country.
Prohibiting individuals with misdemeanor hate crime convictions from possessing or buying guns does not run afoul of the Second Amendment. On June 23, 2022, the United States Supreme Court, in New York State Rifle & Pistol Association, Inc. et al. v. Bruen, Superintendent of New York State Police, et al., rendered one of the most significant decisions on the Second Amendment in over a decade. It struck down as unconstitutional New York’s concealed carry law, which required an individual to prove that “proper cause” existed before a license would be issued allowing that person to carry a concealed pistol or revolver in public. The Court recognized in Bruen and in prior precedent that the Second Amendment right is not unlimited, and that prohibitions against gun possession for certain individuals in certain sensitive places, such as schools and government buildings, were lawful. State laws that prohibit gun possession by those who have been convicted of hate crimes have withstood constitutional challenge.
Sadly, there are too many examples of mass shootings where hatred towards a particular group of people was the apparent motivation of the shooter. To name a few that are well known: the June 2017 shooting at the Emanuel African Methodist Episcopal Church, during which nine people were killed and one was injured, was motivated by hate and racism; the October 2018 shooting at Pittsburgh’s Tree of Life synagogue, during which 11 people were killed and six were injured, was motivated by hate and antisemitism; the August 2019 shooting at the Cielo Vista Walmart in El Paso, Texas, during which 23 people were killed and 22 were injured, was motivated by hate and racism; the May 2022 shooting at the Tops Friendly Market in Buffalo, New York, during which 10 people were killed and three were injured, was motivated by hate and racism; the November 2022, shooting at Club Q, an LGBTQ+ nightclub in Colorado Springs, Colorado, during which five people were killed and 25 were wounded, was motivated by hatred of LGBTQ+ people; and the August 2023 shooting at the Dollar General Store in Jacksonville, Florida, during which three people were killed, was motivated by hate and racism.
Evidence shows that individuals who are motivated to commit gun violence by bias or hate often signal to others, verbally or over the internet, in hate speech or pictures or symbols, their desire to inflict harm on people in the targeted group, as shown by the many examples set forth above. In these instances, extreme risk laws, which allow a Court to issue an order removing firearms from a person where there is evidence that they may harm themselves or others, can prevent these tragedies from occurring.
Passage of the Disarm Hate Act is a common sense way to save lives while not treading on Second Amendment rights. Resolution 603, that urged its passage, was passed by the American Bar Association’s House of Delegates on February 5, 2024 with no opposition.
Watch Margaret Finerty’s presentation of Resolution 603 to the American Bar Association House of Delegates at its Midyear meeting on February 5th in Louisville, KY here.