ACS NATIONAL CONVENTION STUDENT PANEL ON GUN CONTROL THURSDAY, JULY 26 TH, 2007 THE SECOND AMENDMENT: INDIVIDUAL RIGHTS AND THE SAFETY OF OUR COMMUNITIES MEMORANDUM BY: TANYA KOENIG (UNIVERSITY OF MICHIGAN LAW SCHOOL) SWAN LEE (UNIVERSITY OF CALIFORNIA, HASTINGS COLLEGE OF THE LAW) DONYA KHALILI (UNIVERSITY OF PENNSYLVANIA LAW SCHOOL) THE SECOND AMENDMENT 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. U.S. Const. amend. II. Perhaps not surprisingly given this Amendment (written with the founding of the American republic fresh on the Framer s minds) and the current state of the country (fully settled and without a lasting frontier or colonizing influence), issues involving gun ownership and gun control laws continue to engender strong emotions in the American politic. There are three major schools of thought reflected among the decisions in the circuits, and each relies heavily upon the single Supreme Court case from the 1930 s, United States v. Miller, 307 U.S. 174 (1939). Miller held that in the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, the Second Amendment cannot be said to guarantee the right to keep and bear such an weapon. Id. at 178. This requirement of a relationship to militia is often referred to as the Sophisticated Collective Rights/Limited Individuals Rights model, which has adopted by the First, Third, Eighth, Tenth and Eleventh Circuits. Under this model, individuals maintain a constitutional right to possess firearms only insofar as such possession bears a reasonable relationship to militia service. Some circuits have taken Miller even farther and held that the Second Amendment s right to bear arms guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons. The Second, Fourth, Sixth, Seventh, and Ninth Circuit Courts of Appeals have adopted this view, has become known as the Collective Rights model. Under this model, the Second Amendment never applies to individuals but merely recognizes the state's right to arm its militia. U.S. v. Parker, 362 F.3d 1279, 1284 (10th Cir. 2004). The Ninth Circuit held in Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002) that the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting possession or use of firearms, including dangerous weapons such as assault weapons. The third view, called the Traditional Individual Rights Model, posits that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited government regulation. This view has
been adopted only in the Fifth circuit, in U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001). This view has recently been adopted by the Department of Justice, reversing a long-standing position on the Second Amendment reflected in Seegars v. Ashcroft, 297 F. Supp. 2d 201 (D. D.C. 2004). Unlike most of the Bill of Rights, the Second Amendment has not officially been applied to the states. The few cases that ruled on the issue came well before incorporation. In United States v. Cruikshank, 92 U.S. 542 (1876) the Supreme Court held the Second Amendment declares that the right to bear arms shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. Additionally, the Court ruled in Presser v. Illinois, 116 U.S. 252 (1886) that this amendment limits only the power of Congress and the national government, not the states. More recent cases have decided the issue in a manner that can be attributed to one of the three schools of thought discussed above; they do not reach the issue of applying the Second Amendment to the states. GUN LEGISLATION PAST AND PRESENT Today, most Americans support some form of gun control and favor making existing gun laws stricter. More than 9 in 10 surveyed support requiring a background check for firearm purchases and 50% of Americans support a ban on the manufacturing and selling of assault rifles. 1 Although statistics show that Americans would approve of several gun control proposals in Congress, voter apathy except when faced with gun crime combined with the powerful pro-gun lobby on Capitol Hill presents a challenge for any firearm law reform. The sheer number of gun owners makes gun control legislation difficult to monitor and enforce. There are approximately 192 million privately owned firearms in the U.S., of which 65 million are handguns. 2 Legislation must account for the diversity of gun owners who possess firearms for reasons from hunting to self-defense, as well as the causes of death by firearms. In 2004, 29,569 people in the U.S. died from fire-arm related deaths: 11,624 (39%) of those were murdered, 16,750 (57%) were suicides, and 649 (2.2%) were accidents. 3 Gun violence affects a larger percentage of young people. In 2004, firearm homicide was the second leading cause of injury death for men and women 10-24 years of age second only to motor vehicle crashes. 4 The main purpose of gun control laws is to prevent violent crime by placing restrictions on the purchase of firearms. The past federal gun control laws have employed different strategies to prevent guns from entering the hands of potential criminals: The National Firearms Act of 1934 and the Federal Firearms Act of 1938 were passed in response to prevalent organized crime and gangster violence during the 1920s and 30s. A heavy tax was imposed on manufacturers and dealers of weapons like sawedoff shotguns and machine guns. Manufacturers had to register with the Internal Revenue Service (IRS) and maintain records. The federal Firearms Act set the model 1 The Gallup Poll: Gallup's Poll of Democracy Gun Laws, http://www.galluppoll.com/content/default.aspx?ci=1645 2 The Brady Campaign Firearm Facts, http://www.bradycampaign.org/facts/factsheets/pdf/firearm_facts.pdf 3 Id. 4 Id. 2
for federal gun control for most of the twentieth century. The Act prevented manufacturers and dealers from shipping interstate to anyone without a license and made it a crime to knowingly sell a firearm to someone convicted of a crime of violence or a fugitive from justice. The Gun Control Act of 1968 (Pub. L. No. 90-168, 82 Stat. 1213) required firearms dealers to have a federal license and made it illegal for dealers to sell to non-state residents or to sell at any place other than the licensee s place of business. The Act also made it a felony for a person with a felony record to possess a firearm and to use or carry a firearm in commission of a federal felony. The Handgun Control and Violence Prevention Act of 1993, known as the Brady Bill (Pub. L. No. 103-159, 107 Stat. 1536), required licensed dealers to delay gun sales up to five days to conduct a background check. Five years after its passage, the National Instant Check System (NICS) allowed licensed dealers to check the purchaser s name in a federal background checking system. Within a few years, the number of licensed dealers had been cut in half from 124,286 and by 1999, the number fell to 80,600. 5 There is no data on unlicensed dealers in the secondary market. The Assault Weapons Ban of 1994 (42 U.S.C. 14071) prohibited importation, manufacture, sale, and possession of semi-automatic assault weapons. This drove up prices on semi-automatics and made them less available, but also created an incentive for gun manufacturers to design barely-legal guns, like concealable semi-automatic pistols, and remove only banned features. As for state laws, restrictions vary widely. Most states do not require any license or permit to possess a handgun, while others require prospective purchasers to obtain a license before purchasing a firearm or handgun. Some states have waiting periods that extend from when the firearm is purchased to when the buyer may take possession of the weapon. Others have firearm registration laws that require the handgun be registered with the secretary of state. Gun control opponents argue that such laws are ineffective because criminals purchase guns in secondary markets to avoid background checks and restrictions. The Brady Law was also criticized for its failure to require background checks of individuals who obtained firearms via sales, gifts, or loans, and its failure to cover gun shows. However, no gun control law will function perfectly. Such legislation acts in accord with existing laws to comprehensively counter gun violence in this country. While continuing to advance gun control laws will alleviate this problem, addressing the underlying causes economic disparity, ethnic and racial conflict, our gun culture, firearm awareness and education cannot be sidestepped. THE FUTURE OF GUN LEGISLATION AND LITIGATION 5 Jacobs, James B., Can Gun Control Work?, Oxford: Oxford University Press (2002), 31. 3
Traditionally, following highly publicized gun crimes, legislatures respond by passing popular gun control statutes which are later rolled back by subsequent laws or sunset provisions. The National Firearms Act of 1934, which passed following the 1933 death of Chicago mayor Anton Cermak during an assassination attempt on President Roosevelt, though the President had proposed the bill in 1929. This legislation regulated the sale, manufacture, and civilian possession of machine guns and other "gangster type" weapons. The Gun Control Act of 1968 was passed in response to the assassinations of Robert Kennedy and Martin Luther King, Jr. But much of this legislation was rolled back by the Firearms Owner s Protection Act in 1986. On April 16, 2007, the world watched in horror as Sung-hui Cho killed 32 people and wounded dozens more, at the Virginia Tech campus. The incident sparked international debate about gun laws, the responsibility of college administrations and the perpetrator s state of mind. Cho bought semi-automatic pistols two years after being declared mentally ill by a Virginia special justice, despite a federal law intended to prevent such purchases. Both the state government and the college were aware of his mental illness, yet neither provided the support that some have argued could have prevented this tragedy. Two weeks later, after Virginia officials re-examined gaps between federal and state gun purchase laws, Governor Tom Kaine issued an executive order intended to close the gaps that allowed Cho to purchase guns. The National Rifle Association has suggested that if Virginia Tech not had a gun-free policy, students or faculty carrying their own weapons might have been in a position to stop the shooter. In response to the Virginia Tech shootings, Texas Governor Rick Perry proposed that licensed gun owners be permitted to carry firearms anywhere in Texas. On June 13, 2007, the United States House of Representatives passed a federal gun control law to improve state reporting to the NICS to stop criminals, those who have been declared mentally ill (like Cho), and other people prohibited from possessing firearms from buying guns. If passed by the Senate and signed by President George W. Bush, this would be the most important gun control act passed since the Federal Assault Weapons Ban was passed in 1994. This bill is supported by both the NRA and the Brady Campaign to Prevent Gun Violence. On the litigation front, on March 11, 2007, the U.S. Court of Appeals for the D.C. Circuit became the nation's first federal appeals court to overturn a gun control law by declaring that the Second Amendment grants a person the right to possess firearms in Parker v. the District of Columbia, 478 F.3d 370 (D.C. Cir 2007). The court held unconstitutional the 1976 D.C. ban on handguns, ruling that the District has a right to regulate and require registration of firearms but not to ban them in homes. The D.C. government and citizens have vowed to fight this decision; they have announced their plan to file a writ of certiorari in August. Many believe that this case could lead to the Supreme Court s first review of Second Amendment law in nearly 70 years. If this case goes forward, the Supreme Court will meet with a wide range of opinions for and against gun control laws under the Second Amendment. In addition to the traditional conservative gun rights arguments, progressives have made strong arguments both for and against gun control laws under the Second Amendment. The most prominent face of the individual rights argument against gun control is Harvard Law Professor Laurence Tribe. He suggests the Second Amendment allows ordinary citizens to protect their communities by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. He 4
suggests that this recognizes a right of individuals to possess and use firearms to defend themselves and their homes and that this right may be among the privileges or immunities protected by the Fourteenth Amendment against state or local government action. However, most progressive legal scholars note the Second Amendment s focus on the importance of militias to protect freedom and conclude that the purpose of the Second Amendment is to guarantee the states' ability to maintain independent militias composed of state residents available to be called upon to defend the country should its security be threatened. In light of previous Supreme Court and federal court decisions, this seems to be the traditional interpretation. The federal courts have consistently given the Second Amendment a collective, militia interpretation. Indeed, until Parker, no gun control measure has ever been struck down as unconstitutional on Second Amendment grounds. What is clear is that, whether or not Parker reaches the high court, these issues will continue animate discussions in the American politic for the foreseeable future. 5
DISCUSSION QUESTIONS 1. What should be the scope of Second Amendment right to bear arms? Should it apply only to militia organized for the purposes of protection of the republic, or should it apply to individuals? If to individuals, what limitations, if any, should be imposed? Age limits? Diminished mental capacity? Mental illness? Violent crime history? 2. Which of the three schools of thought seems correct under Miller and the text of the Second Amendment? 3. Should the fact that our society has changed dramatically (from untamed wilderness to settled urban, suburban and rural communities) and that gun technology has increased dramatically (from the musket to the rapid fire automatic handgun) alter constitutional expectations of the citizens? 4. Is it the role of the federal government to pass gun control legislation or does this infringe on states rights to protect their citizens as they see fit? 5. How much power does Congress have under the Commerce Clause to regulate gun ownership and sales through gun control laws? 6. Where should we draw the line between protecting the citizens from gun violence and enforcing the Second Amendment s right to bear arms? 7. What role should universities be playing in protecting their students from gun violence? 8. How effective are gun laws prohibiting or restricting certain types of firearms, if violent crimes can still be committed and gun manufacturers redesign their guns to comply with new laws and standards? 9. How do we reconcile what some have called the unique gun culture in America with the progressive goals of gun control legislation? RECOMMENDED READING Stephen P. Halbrook, Introduction: The Second Amendment In The Supreme Court: Where It's Been And Where It's Going, 29 HAMLINE L. REV. 449 (2006). Robert J. Spitzer, The Second Amendment "right to bear arms" and United States v. Emerson, 77 ST. JOHN'S L.REV. 1 (2003). Don B. Kates, Gary Mauser, Would Banning Firearms Reduce Murder and Suicide?: A Review of International and Some Domestic Evidence, 30 HARV. J.L. & PUB. POL'Y 649 (2007). Brian J. Siebel, Gun Industry Immunity: Why The Gun Industry s Dirty Little Secret Does Not Deserve Congressional Protection, 73 UMKC L. REV. 911 (2005). 6
Kristin A. Goss, Policy, Politics, and Paradox: The Institutional Origins Of The Great American Gun War, 73 FORDHAM L. REV. 681 (2004). Jesse Matthew Ruhl, Arthur L. Rizer III, Mikel J. Wier, Gun Control: Targeting Rationality In A Loaded Debate, 13 KAN. J.L. & PUB. POL'Y 413 (2004). Joyce Lee Malcolm, Lessons of History: Firearms Regulation and the Reduction of Crime, 8 TEX. REV. L. & POL. 175 (2003). Greg S. Weaver, Firearm Deaths, Gun Availability, and Legal Regulatory Changes: Suggestions From The Data, 92 J. CRIM. L. & CRIMINOLOGY 823 (2002). Daniel D. Polsby, Guns and Violence Symposium: Firearms Costs, Firearms Benefits and the Limits of Knowledge, 86 J. CRIM. L. & CRIMINOLOGY 207 (1995) 7