As co‐counsel to Dick Anthony Heller, I was a vigorous advocate for the right to possess firearms for self‐defense. But I understand, as does every rational individual, that the right is not absolute. The Second Amendment does not guarantee a 12-year-old’s right to possess a machine gun in front of the White House when the president is walking on the lawn. Some persons, some weapons and some circumstances may be regulated. Subsequent cases will have to flesh out the details. But the Constitution does not foreclose common sense and the right to bear arms does not foreclose public safety. Reasonable persons should be able to fashion reasonable restrictions—a framework for gun control in the aftermath of Newtown—without violating core Second Amendment rights.
From the beginning, the battle for gun rights was structured as a three‐step process. Step 1: Determine the meaning of the Second Amendment. That was accomplished by the U.S. Supreme Court’s decision in District of Columbia v. Heller, which affirmed that the Second Amendment secures an individual right to bear arms, in part for self‐defense. Step 2: Determine where the Second Amendment applies. That was accomplished by the Court’s decision in McDonald v. Chicago, which affirmed that the amendment covers every state and locality—not just federal enclaves such as Washington. Step 3: Determine the scope and limitations of Second Amendment rights. That’s the next major task.
Here is the key principle: Both Heller and McDonald corroborated that the right to bear arms is “fundamental”; i.e., it is implicit in the concept of ordered liberty and deeply rooted in our nation’s traditions and culture. Consequently, the Constitution establishes a presumption of individual liberty. That means government bears a heavy burden to justify any regulations that would compromise the right.
With that principle in mind, let’s examine several proposed restrictions that are currently front and center.
- Banning high‐capacity magazines. Gun rights advocates posit a Korean shop‐owner in the Watts riots needing multiple rounds to protect his store and family. But others cite multiple‐victim killings like in Newtown where innocent lives might have been saved if high capacity magazines had been effectively banned.
Firearms experts note that murderers can easily load a second or third magazine in a matter of seconds. Accordingly, limiting magazine size to, say, 10 rounds will not have much practical effect. Perhaps so; but that would also mean individuals trying to defend themselves would not be seriously hampered by a 10‐round limit. They too could reload very rapidly.
If regulators can show that the benefits of banning high‐capacity magazines exceed the costs, I have little doubt that such a ban would survive a Second Amendment court challenge. But there are three related problems: First, magazines are simple metal boxes with a spring. They can be made in a well‐equipped machine shop. Second, there is no way to confiscate the millions of high‐capacity magazines now in circulation. Third, millions of existing semi‐automatic pistols come with 12–19-round magazines; thus a ban on any size below 20 rounds would encounter great resistance.
- Re‐enacting an assault weapons ban. Evaluation of an assault weapons ban, like that of a magazine ban, should be based on empirical evidence. After the 1994 ban expired in 2004, the New York Times reported: “Despite dire predictions that the streets would be awash in military‐style guns, expiration of the assault weapons ban has not set off a sustained surge in sales [or] caused any noticeable increase in gun crime.” Millions of so‐called assault weapons are now used by millions of Americans for hunting, self‐defense, target shooting, even Olympic competition. Criminals typically use handguns; assault weapons are expensive and difficult to conceal.
In Washington, where the Heller case was litigated, the city experienced 46 violent crimes per day, each and every day for an entire year, nearly two decades after D.C. enacted an outright ban on all functional firearms for all people in all places at all times. The D.C. government insisted that gun smuggling—mostly from Virginia, where regulations were lenient—was the root of the problem. Not likely. Consider island nations that do not have to deal with cross‐border smuggling, such as Ireland, the United Kingdom, and Jamaica. All three of them imposed bans but saw violent crime increase.
Cross‐country comparisons can be misleading because there are so many differences that affect crime rates. That’s why it’s instructive to look at data serially, over time, and analyze what happened in each country before and after gun controls are enacted.
Jamaica is particularly revealing. Beginning in 1974, handguns were virtually banned. You could get them with a license, but you had to prove need, and licenses were almost never issued. Since the ban, the murder rate has soared to become one of the highest in the world—now more than double other Caribbean nations, six times higher than before the ban, and a dozen times the U.S. rate. Naturally, the ban is not wholly to blame, but it certainly did not help.
Moreover, even if we were to reenact the assault weapons ban, how could we deal with the millions of such guns already owned? Some people think a voluntary buy‐back program would work. But it would be costly. And who might the sellers be? They would be individuals who valued the money more than the firearm. That would include low‐income persons living in high‐crime areas who obey the law but need a means to defend themselves. And who would keep the weapons? They would be individuals who valued the firearm more than the money. That would include criminals, terrorists and mentally deranged persons who are not motivated by financial incentives.
In the Heller case, Justice Antonin Scalia suggested that the Second Amendment would pose no barrier to outlawing weapons that are not in common use and especially dangerous. Clearly, some weapons can be banned. Essentially, automatic weapons have been banned since 1934; and they remain banned. The task is to identify those firearms or attachments that are not commonly used or needed for self‐defense, and would improve public safety if they were banned. The 1994 Assault Weapons Ban went too far; but a better‐crafted, limited version might be warranted.
Banning popular semi‐automatic rifles, merely because they come equipped with a pistol grip or some other attachment that has no effect on their lethality, makes no sense whatsoever. FBI data for 2011 indicate that almost 13,000 people were murdered with a weapon. Of those, 1,700 were killed with knives; almost 500 with hammers, bats, and clubs; and 728 by someone’s bare hands. Only 323 people were killed with rifles of all types.
- Background checks for private sales at gun shows. Gun control advocates occasionally misuse the phrase “close the gun‐show loophole” to urge that all private sales be subject to background checks. Two clarifications: First, sensible proposals to extend background checks would not reach all private sales, but only those at gun shows. Second, most sales at gun shows are through licensed dealers that already have to conduct such checks.
Survey data indicate that less than 2 percent of guns used by criminals are bought at gun shows and flea markets—and that includes sales through licensed dealers. Still, the New York Times editorializes that background checks “prevented nearly two million gun sales” over a 15‐year period. Of course, that’s ridiculous; there is no way for the Times to determine how many sales did not happen. Violence‐prone buyers who do not pass the background check go elsewhere for their purchases.
Here are the figures for a recent year: The National Instant Criminal Background Check System (NICS) denied 79,000 would‐be buyers. Of those, 105 were prosecuted and 43 were convicted. That’s a conviction rate of 5/100ths of one percent. Either the remaining denials were false positives — legitimate purchases unjustly blocked by NICS — or, if the denials were proper, then 99.95 percent of the 79,000 rejected applicants escaped punishment. Neither conclusion offers much hope for an expanded system of background checks.
Further, the claim that background checks take just a few minutes to process on the telephone is disingenuous at best. A significant number of checks last 72 hours, and most gun shows are two‐day events. The intent of requiring checks for private sales may be to drive gun shows out of business. Indeed, existing delays and the large number of false positives have reduced gun shows by about 14 percent. Some say that’s a good thing. But they know that a law banning gun shows would not pass constitutional muster; so they try to accomplish the same thing through the backdoor.
Remember, the “I” in NICS stands for “Instant.” If technology were to facilitate truly speedy background checks — say, 24 hours maximum—without unreasonably intruding on privacy rights, I would have no objection to extending NICS to cover private sales at gun shows—not because I am convinced that expanded background checks would curb violence, but because it would get us past this particular debate and let us concentrate on options that might be more productive.
- Drug legalization. The single most effective option—which is not being discussed at all—would result in a huge reduction of gun violence: Legalize drugs. There are 1.5 million drug arrests each year, and more persons incarcerated for drug infractions than for all violent crimes combined. Fifty percent of our federal prison population comprises narcotics violators. Most important, because drugs are illegal, participants in the drug trade cannot go to court to settle disputes and enforce contracts. As a result, disputes are resolved by force. Meanwhile, the Drug Enforcement Administration has 10,000 agents, analysts, and support staff, who could be fighting terrorism or real crime—including gun violence.
- Mental illness. A second step is earlier detection and treatment of mental illness. I do not pretend to be an expert on mental health, so I am not prepared to offer specifics. But I do believe that early detection and treatment can be a legitimate function of government. It’s part of a state’s police power to protect residents against rights‐violating activities, such as the criminal use of firearms.
There are, however, three corollaries: First, government funding should be limited to those mental illnesses that could cause harm to innocent bystanders. It is not the government’s role to pay for private medical care unless third‐party rights are involved. Second, federal funding is not constitutionally authorized. This is a state matter—an application of the state’s police power, which the federal government does not possess. Third, to the extent that government peruses medical records and may even prescribe involuntary treatment, there are serious civil liberties implications that must be confronted.
- Armed guards. Another alternative—suggested by the National Rifle Association—is armed guards at schools. In the United States, there are approximately 100,000 public schools, so staffing should not be prohibitively expensive. About 28 percent of those schools already employ security officers who carry firearms. For the remaining schools, retired police and military personnel would be obvious recruits. The focus should be on entrance security, which reduces manpower requirements.
It’s true that an armed guard did not prevent Columbine; but neither did the ban on assault weapons and high‐capacity magazines then in effect. Moreover, the rules of engagement, which have since been changed, told the armed guard at Columbine to wait for SWAT team backup. No wonder the guard did not stop the carnage; although he did delay the killers, which gave some students time to escape.
About two‐thirds of public schools are elementary schools, thus educators and parents would have to assess if young children could be psychologically stressed by the presence of armed guards. Assuming that problem can be addressed, the idea has considerable merit—and its implementation would have an immediate impact. Gun‐free school zones have been a magnet for the mentally deranged. We have armed guards in banks, airports, power plants, courts, stadiums, government buildings, and on planes. There is no reason why armed guards at all public schools—not just 28 percent of them—should not be considered.
In fact, it might even be desirable to extend the program—on a strictly volunteer basis—to teachers and principals. They would require extensive background screening and psychological testing, as well as classroom and practical training—roughly equivalent to what sky marshals now get. The teachers and principals wouldn’t necessarily carry firearms, but the weapons would be accessible—subject, of course, to proper safe‐storage regulations.
In the Aurora, Colo., shooting, seven theatres showing the Batman premier were within a 20‐minute drive of the suspect’s apartment. Researcher John Lott reports that the killer did not pick the closest theatre or the largest theatre. He picked the only one of the seven that banned concealed weapons. With just two exceptions, every public mass shooting in this country over the past 60 years has taken place where citizens are banned from carrying guns. The same pattern is true in Europe, where three of the worst six school shootings occurred despite strict gun regulations.
The Israelis have learned that police and soldiers cannot protect all of the terrorist targets all the time. In exceptionally dangerous locations, licensed and trained citizens, including teachers, are armed with concealed weapons. An added benefit is that killers do not know whom to attack first.
That said, in urging armed guards at schools, the NRA’s Wayne LaPierre got it wrong on two counts: First, a government mandate for armed guards should not be imposed on all schools—especially not private schools, which should adopt whatever security measures they deem appropriate, with liability only for unreasonable negligence. Fully informed parents who do not like the security arrangements are free to send their children elsewhere.
Second, Congress has no role to play in funding armed school guards. Like mental health treatment, this is a police power function that is constitutionally reserved to the states. Security that may be necessary in the inner city of Detroit is likely to be quite different than what’s needed in the hills of Montana. Each state or locality should decide for itself, and foot its own bill. When the feds pay the piper, the feds end up calling the tune.
Our framers intended that the states serve as experimental laboratories. Residents who disapprove can vote with their feet. Even the indisputably anti‐gun Washington Post editorialized: Armed guards are “not unreasonable where local schools feel they need [them].”
- Cautionary comments. In the aftermath of the horrific and heart‐rending tragedy at Sandy Hook Elementary, our gun laws should and will be re‐evaluated. But the process must be measured and dispassionate. And before we embark on a crusade for new controls, let’s remember a few facts:
First, random multi‐victim killings are a fraction of 1 percent of all murders in the United States. Regrettably, they will occur even where stringent gun controls are imposed. In Norway, with tight controls and licensing, Anders Breivik gunned down 69 people. Here in the United States, our worst incident killed 38 elementary school children in Michigan. The weapon of choice was bombs, not guns. From a historical perspective, U.S. gun controls from 2000 to date have been relatively restrictive. Part of that time, we had a ban on assault weapons. The entire time, we had background checks. Nonetheless, random mass killings occurred three times more often since 2000 than over the decade of the ‘80s, when gun controls were weaker.
Second, the evidentiary debate in peer‐reviewed journals centers on the question of whether gun laws such as right‐to‐carry reduce violent crime or have no significant effect. Despite dozens of studies, no reliable evidence indicates that such laws increase crime. The two most exhaustive studies on gun control were conducted by the National Academy of Sciences and the Centers for Disease Control. Neither agency could be accused of favoring the gun lobby. In 2004, the National Academy reviewed 253 journal articles, 99 books and 43 government publications evaluating 80 gun‐control measures. Researchers could not identify a single gun‐control regulation that meaningfully reduced violent crime, suicide, or accidents. In 2003, the CDC reported on ammunition limits, restrictions on purchase, waiting periods, registration, licensing, child access prevention and zero‐tolerance laws. Conclusion: None of the laws demonstrably reduced gun violence.
Third, guns are already the most heavily regulated consumer product in the United States. Handguns are the only consumer product that cannot be purchased outside the buyer’s state of residence. Firearms retailers, wholesalers, and manufacturers all require federal licenses. Each retail sale must be pre‐approved by government. Nationwide, thousands of laws regulate who can own a gun, how it can be purchased, and where it can be possessed and used.
Overall, I am skeptical about the efficacy of gun regulations that are imposed almost exclusively on persons who are not part of the problem. Drug legalization would radically reduce gun violence overnight. Armed guards at schools and better detection and treatment of mental illness should help. The NRA thinks so, and I agree. But the NRA is less convincing in its opposition to a ban on magazines with 20 or more rounds, a sensibly refined version of the assault weapons ban, and background checks (if they can be completed in no more than 24 hours) on private sales at gun shows.
With regard to further regulations, the Supreme Court has directed government to certify two essential points: First, the proposals will make us safer. Second, the same ends could not be attained without unduly compromising individual rights that are secured by the Second Amendment. So far, the regulators have not met that burden.