Anti-LGBTQ+ gun violence is occurring in the United States at an alarming rate. The Department of Homeland Security has even issued a domestic terrorism warning for attacks against the LGBTQ+ community. When the shootings at the Pulse Nightclub in Florida and Club Q in Colorado are combined, fifty-four individuals were murdered and seventy-eight more were wounded while simply existing in an LGBTQ+ space. Both of these targeted shootings occurred within the past six years, indicating that anti-LGBTQ+ gun violence is not a relic of the past. As they were ten years ago, LGBTQ+ individuals are still disproportionately impacted by hate crimes and gun violence.
But, when analyzing the constitutionality of gun regulations under the Second Amendment, the prevalence of anti-LGBTQ+ gun violence today is largely irrelevant under the Supreme Court’s announced approach in 2022 in New York State Rifle & Pistol Association v. Bruen. Instead, our country’s “history and tradition” of gun regulation matters most. Thus, any attempt to move forward in the fight against anti-LGBTQ+ gun violence using gun regulations must pass this backward-looking test. Thankfully, there are options.
This Article argues that two legislative actions can be effective in curbing anti-LGBTQ+ violence while also passing the Court’s Bruen test: (1) expanding and reforming the federal hate crime statute; and (2) expanding the conditions under 18 U.S.C. § 922(g) that prohibit certain individuals from possessing firearms. Those who commit hate crimes should not be able to possess a firearm. Our laws should fully reflect that.
Brett V. Ries, Looking Backward to Move Forward: Ending the "History and Tradition" of Gun Violence Against the LGBTQ+ Community, 73 Duke Law Journal Online 119-158 (2023)