EDITORS NOTE: Mr. Levy misses a few points, and makes a few
bad ones. Overall, not a bad read.
By Robert A. Levy
This article appeared in the
National Law Journal on February 11, 2013.
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.
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.
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.
* By the author's own
admission, the ban must bear a heavy burden to justify the benefits of banning, and since limiting
magazine sizes would produce no noticeable benefit, and because it impedes to
many law abiding individuals and manufacturers, there is no legal justification
for it.
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.
*Yet the so called
"assault weapons" (a misnomer) ARE of great use in self defense. The Department of Homeland Defense agrees,
calling them “suitable for personal defense use in close quarters.” in recent
RFP Solicitation HSCEMS-12-R-00011.
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.
*Because when you
take away an individual’s ability to defend themselves, criminals get a free
pass. Violent crime decreases when more law abiding individuals are armed
because criminals fear the individual, and because fewer criminals survive and
go free to commit crimes again.
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.
*Just another
instance of government programs making the situation worse. The eight most terrifying words in the
English language are "We've from the Government, we're here to help"
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.
*No, it would not be
warranted. By the author's own
admission, the ban must bear a heavy burden to justify the benefits of banning, and since we do not
have a problem with assault weapons being used in violent crimes, there is no
legal justification for it.
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.
*The author would
have no objection? Mandatory background
checks go through a system that identifies and tracks transactions. The records are kept indefinitely. This is defacto gun registration. In every case in recorded history, government
registration of firearms leads invariably to government confiscation of
firearms.
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.
*This is wholly
ridiculous. By that argument we could legalize all crime. There would be no need for a criminal to
carry any weapon to mug, rape or murder.
Instead, we need to prosecute and execute violent criminals, not pamper
them in prison where they can make more criminal friends and then parole them.
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.
*Put the government
in charge of defining who is crazy, and soon enough, all political part
opposition will be declared insane.
*What we need is a
better support system for families who are struggling with mental illness.
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.
*As long as they are
properly trained and certified privately held companies and not government
agents or troops, this is a great idea.
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.
*As long as they are
properly trained and certified private citizens, they should be allowed to
carry a sidearm in defense of themselves and their students.
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.
*Just another example
of the Israelis doing it right. In a
country surrounded by enemies, they learn fast and can not afford to make the
political mistakes that we do here. They
learned how to properly defend themselves form attack. They promoted individual
self defense.
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.
*Both Public and
Private schools should be given the legal leeway to let the parents choose to
employ armed guards or to allow concealed carry by teachers, administration,
and parents.
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.
*And our States need
to act now to allow schools and parents to choose!
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.
*But several studies
show that right-to-carry laws, which allow law abiding citizens to carry firearms
to defend themselves, do indeed reduce 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.
*That's because Gun
Control laws are not about controlling crime.
They are about (1) Politicians "making a show" about
addressing the issue so as to appease their misinformed constituents and keep
their jobs. (2) Controlling the
political opposition.
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.
