WMU-Cooley Law Review - Volume 31, Number 1

THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Diane Dietz W. Anthony Jenkins Lawrence P. Nolan, Chairman Hon. Bart Stupak Hon. Stephen J. Markman

James W. Butler III Scott A. Dienes Sharon M. Hanlon Hon. Jane E. Markey Edward H. Pappas Dennis A. Swan James C. Morton

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT Honorable Thomas E. Brennan DEANS AND PROFESSORS EMERITI Michael P. Cox Keith J. Hey Robert E. Krinock (Deceased) William P. Weiner

Robert A. Fisher (Deceased) Marion Hilligan (Deceased Helen Pratt Mickens M. Ann Wood

PROFESSORS EMERITI Ronald Bretz David G. Cotter Judith A. Frank Keith J. Hey Eileen Kavanagh Joseph Kimble Dan L. McNeal Charles Palmer Ernest A. Phillips John Rooney Chris Shafer Otto Stockmeyer F. Georgann Wing

Terrence Cavanaugh Norman Fell Elliot B. Glicksman Peter D. Jason Peter M. Kempel Dorean M. Koenig Lawrence W. Morgan Nora J. Pasman-Green Philip J. Prygoski Charles J. Senger Brent Simmons Ronald J. Trosty DEANS Don LeDuc President, Dean, and Professor of Law

Frank Aiello Acting Assistant Dean and Professor of Law

Tracey Brame Assistant Dean and Associate Professor of Law

Charles P. Cercone Associate Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Lisa Halushka Acting Associate Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

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Jeffrey L. Martlew Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law John R. Nussbaumer Associate Dean and Professor of Law

Martha Moore Assistant Dean and Professor of Law James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Assistant Dean Associate Professor

James Thelen Associate Dean for Legal Affairs & General Counsel

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career and Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services PROFESSORS Gary Bauer John Brennan Evelyn Calogero Karen Chadwick Mark Cooney Mark Dotson Gerald Fisher Alan Gershel James Hicks Jr. Tonya Krause-Phelan Gerald MacDonald John M. Marks Michael McDaniel Maurice E.R. Munroe Kim O’Leary Daniel Ray Devin Schindler Dan Sheaffer Gina Torielli

Curt Benson Kathleen Butler James Carey Dennis E. Cichon Patrick Corbett Cindy Faulkner Anthony Flores Christopher Hastings John Kane Joni Larson Paul Marineau Mable Martin-Scott Marla Mitchell-Cichon Monica Navarro James Peden Lauren Rousseau John N. Scott Paul Sorensen William Wagner

David Berry Jeanette Buttrey Paul Carrier Julie Clement Mary Phelan D’Isa David Finnegan Heather Garretson Richard C. Henke Mara Kent Ashley Lowe Dena Marks Dan Matthews Mike Molitor Florise Neville-Ewel l Norman Plate Marjorie Russell Kevin Scott John Taylor Nancy Wonch

ASSOCIATE PROFESSORS Frank Aiello Brendan Beery James Eyster Emily Horvath Lewis Langham, Jr. Patricia Mock Jane Siegel Karen Truszkowski

Tammy Asher Lisa DeMoss Dustin Foster Barbara Kalinowski Ashley Lowe Monica Nuckolls Steven Swanson Victoria Vuletich

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Sherry Batzer Michael Dunn Marjorie Gell Linda Kisabeth Donna McKneelen Torree Randall Christopher Trudeau

ASSISTANT PROFESSORS Erika Breitfeld Heather Dunbar Kara Zech Thelen

Bradley Charles Kathy Gustafson John Zevalking

Victoria Cruz-Garcia David Tarrien

VISITING PROFESSORS Renalia DuBose Robert Savage

Karen Fultz Jeffrey Swartz

Holly Glazier Patrick Tolan

ADJUNCT PROFESSORS Hon. David Allen

Jeffrey Ammon

Patrick Barone Kenzi Bisbing William Burt Burleson Jeffrey Butler Mary Chartier-Mittendorf Hon. Martha Cook Marshall Deason Thomas A. Doyle Frank Eaman Jason Eyster Craig Frederick Hon. John S. Gilbreath, Jr Howard Gordon Michael Homier Michael Hughes Ronald Jacobs John Juroszek Aaron Kendal Bryan Levy Eric Matwiejczyk Donald Messinger Michael Nichols Steven Owen Kevin Peterson Kerry Przybylo Antoinette Raheem Richard Rattner Robert Rothman Traci Schenkel Carly Self Eric Skinner Daniel Simon Stauffer Patricia Sullivan L. Graham Ward

Michael Behan Hon. Archie Brown Mark Burzych David Carter Russel Church Hon. Janice Cunningham Nicholas P. D'Isa Steven W. Dulan Chad Engelhardt Bill Fleener Jackie Freeman Brian Gill Judith Gracey Catherine Hoort William Hyland Julie Janeway Russell Kavalhuna Sue Ellen Krick Marla Linderman Sarah Matwiejczyk Paul Monicatti Hon. Colleen O’Brien Joseph Parrish J.D. Pierce Andrew Quinn Anna Rapa Michael Reinholm Hon. Christopher Sabella Kevin V. B. Schumacher Hon. J. Cedric Simpson Candace Sorenson Robert Stocker II Brad Sysol Michael Walton

Hon. Rosemarie Aquilina Leslie Berg Chad Brown Karen Bush Schneider Thomas Cavalier Paul M. Collins Regina Daniels Thomas Stacey Dinser-Hohl James Dworman Steven Enwright Robert Fleming Hon. Richard J. Garcia Brian Goodenough Thomas J. Hetchler Jr. Tamsen Horton William Jack Caroline Johnson-Levine Kahla Kelchak James Langtry Peggy L. MacDougall Hon. Mark McConnell Hon. Nick Nazaretian Hon. Peter O’Connell Ted Passineau Steven Pollok Alissa Raasch-Schmidt Thomas Rasmusson Brent Rose Michael Sanders Charles Schutze Robert Skilton Paul Sorenson Cari Sullivan Steven Transeth Marie L. Wolfe

INTRODUCTION TO LAW INSTRUCTORS Jeanette Buttrey Jacqueline Freeman Matt Marin David Tarrien

Monika Carter Katherine Gustafson Brianne Myers

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Heather Dunbar John Juroszek Krystal Player

ADJUNCT TRIAL SKILLS INSTRUCTORS Antoinette Abdul-Raheem Russel Church Frank Eaman Howard Gordon William Hyland Peggy MacDougall Paul Monicatti Hon. Peter O’Connell Brent Rose Candace Sorenson L. Graham Ward

Hon. Rosemarie Aquilina Timothy Connors Chad Engelhardt Judith Gracey Bill Jack Eric Matwiejczyk Hon.. Nick Nazaretian Kevin Peterson Christopher Sabella Dan Stauffer

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Kenzi Bizbing Martha Cook Hon. John S. Gilbreath, Jr. Catherine Hoort Bryan Levy Sarah Matwiejczyk Hon. Colleen O’Brien Andrew Quinn Hon. J. Cedric Simpson Mike Walton

TH HOMAS M. COOLEY L LAW R REVIEW W HILA ARY 20114 BOARD OF EDIT TORS Kath hryn Frontierr Ediitor-In-Chieff

Michael Tay ylor Managing Editor E

Stephenn Madej Sympossium Editor

Stephanie Strycharz S Articles Ediitor

Rabih H Hamawi Interim m Sympossium Editor

Jacqueline Langwith L Solicitation Editor

Cathy C Carson Adminiistrator Beachnau Dawn B Adminiistrator (In Mem moriam)

ASSISTA ANT EDITORS Monica Ban nsal Channa Beaard Casey Curtiis Kaitlyn Dob besh Ross Holec Zack Hugg

Ogeenna Iweajunnwa Dan nica Malloy Ard den Mitchelll Cheelsey Morgennstern Antthony Nichoolson Iren ne Patrick Sco ott Sawyer

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Schaedig Chris S Heatherr Strouse Brandoon Thomson Iris Tim mm Shannoon Wambauggh RaShauunda Weaverr

SE ENIOR ASS SOCIATE E EDITORS Jenna Adam mson Matthew Beerry Josephine Duah D Theodora Eisenhut E

Correy Fahnestoock You usef Farraj Claark Gates Merri Kligman Jesssi Michels

Soares Victor S James V Varchetti Amy Y Yaeger Karen Y Yeckley

ASSOCIIATE EDIT TORS Minyon Bolton Jacqulene Brandt B Nathan Chaan Kevin Coe k Aaron Cook

Craaig Dickinsonn Elen na Djordjeskki Cou urtney Drisc oll Ryaan Kaiser Step phanie Kinggsley

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Sharmila Rajani Melainee Schmiz Michaeel Schmiz Elizabeeth Spiridon Brendette Walker

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan Chief Justice Marilyn Kelly Michigan Supreme Court The Honorable Jennifer M. Granholm Governor, State of Michigan Professor Joseph Kimble Thomas M. Cooley Law School Professor Chris Shafer Thomas M. Cooley Law School The Honorable Richard F. Surheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Joseph J. Farah Judge of the Seventh Judicial Circuit Court The Honorable Thomas E. Brennan Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty Second District Court The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor Cathy Carson Law Review Administrator SCHOLARLY WRITING PROFESSORS Stacy Dinser Khala Kelchak John Pierce Toree Randall Anna Rapa Marie Wolfe

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Hillary 2014 Recipients Theodora Eisenhut Jessi Michels EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Hillary 2014 Recipients Chris Schaedig Arden Mitchell DAWN C. BEACHNAU AWARD This award is presented to the member of the Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Hillary 2014 Recipient Stephen Madej

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TH HOMAS M. COOLEY L LAW R REVIEW W TRIN NITY 20114 BOARD OF EDIT TORS Kath hryn Frontierr Ediitor-In-Chieff Jarred Schultz Interim Editor-In-Ch Chief

Michael Tay ylor Managing Editor E

Jacquelline Langwitth Solicitaation Editor

Stephanie Strycharz S Articles Ediitor

Michellle Easter Interim m Solicitaation Editor

Matthew Elzinga Interim Artticles Editor Rabih Hamaawi Symposium m Editor

Cathy C Carson Adminiistrator

ASSISTA ANT EDITORS Monica Ban nsal Channa Beaard Stephanie Carlisle C Kaitlyn Dob besh Erin Haney Ross Holec Ogenna Iweeajunwa

And drew Linke Dan nica Malloy Marrk Meserschhmidt Cheelsey Morgennstern Can ndis Najor Antthony Nichoolson Sum mayya Salehh

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Scott Sawyer Joe Shaada Jessica Stark Brandoon Thomson Iris Tim mm RaShauunda Weaverr

SE ENIOR ASS SOCIATE E EDITORS Matthew Beerry Minyon Bolton Jacqulene Brandt B Nathan Chaan Kevin Coe

Craaig Dickinsonn Elen na Djordjeskki Cou urtney Drisc oll Ryaan Kaiser Step phanie Kinggsley

Sharmila Rajani Melainee Schmiz Michaeel Schmiz Brendette Walker

ASSOCIIATE EDIT TORS Callana Dav vis James Klineedinst Ben Lesnick k

Greeg Masters Saraah Miller Aleec Ohryn

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Irene Patrick Joshua Pugliesi Rebeccca Siegel

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan Chief Justice Marilyn Kelly Michigan Supreme Court The Honorable Jennifer M. Granholm Governor, State of Michigan Professor Joseph Kimble Thomas M. Cooley Law School Professor Chris Shafer Thomas M. Cooley Law School The Honorable Richard F. Surheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Joseph J. Farah Judge of the Seventh Judicial Circuit Court The Honorable Thomas E. Brennan Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty Second District Court The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor Cathy Carson Law Review Administrator SCHOLARLY WRITING PROFESSORS Bradley Charles Rachel Glogowski Carly Self Beth Simonton-Kramer Marie Wolfe

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JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Trinity 2014 Recipients Minyon Bolton Kevin Coe Jacqulene Brandt EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review.

Trinity 2014 Recipients Channa Beard Brandon Thomson Iris Timm DAWN C. BEACHNAU AWARD This award is presented to the member of the Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication.

Trinity 2014 Recipient Kathryn Frontier

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Contents Volume 31

2014

Issue 1

From the Editor...................................................................................... xv

Articles State of Madness: Mental Health and Gun Regulations Steven W. Dulan……………............................................................. 1 A Liberal’s Case for the Second Amendment Craig R. Whitney……………............................................................ 17 Gun Owners, Gun Legislation, and Compromise David T. Hardy……………............................................................... 35

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FROM THE EDITOR On October 24, 2013, the Thomas M. Cooley Law Review hosted its Symposium, World Views Collide: A Panel of Experts Debate on Guns in America. During this moderated debate, scholars from across the nation discussed state and federal bans on assault weapons and high-capacity magazines, background checks, the mental-health-care system in the United States, and concealed handguns and increased security in schools and public places.

The distinguished speakers included Carol Bambery, NRA Board Member and General Counsel, IAFWA; Steve Dulan, Michigan Coalition for Responsible Gun Owners; David Hardy, Attorney & Former NRA Assistant General Counsel; Linda Brundage, Moms Demand Action for Gun Sense in America; Craig Whitney, author of Living with Guns: A Liberal’s Case for the Second Amendment; and Jim Townsend, State Representative (Michigan). Three of these speakers authored articles based on their Symposium remarks, and the Thomas M. Cooley Law Review is pleased to present these articles in the first issue of Volume 31.

On behalf of the Law Review, I would like to thank everyone who contributed to the 2013 Symposium. The following people, in particular, spent countless hours preparing for the event and ensuring its success: Stephen Madej and H. Gavin LaCambra, Symposium Editors; Genna Fasullo and Christopher Schaedig, Publicity Editors; William Wagner, Moderator; and Cheryl Bywater, Director of Information and Event Planning Services. And most importantly, many thanks to our guests and distinguished speakers who provided a respectful and thought-provoking dialogue about guns in our country. — Kathryn Frontier

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STATE OF MADNESS: MENTAL HEALTH AND GUN REGULATIONS STEVEN W. DULAN* ABSTRACT Recently there have been many calls for the disarmament of all “mentally ill” persons. Such overly broad measures would only compound the injustice already inherent in the current scheme by further stigmatizing mental illness, discouraging individuals from seeking potentially helpful treatment, and disarming individuals who may face serious threats to their safety.

This Article explores current problems, using the author’s clients as examples, and advocates that statutes and regulations should clearly distinguish between mental illness and danger to oneself or others. This will help ensure due process for all individuals before they are potentially stripped of their fundamental right to carry a firearm for self-defense.

*

Steven W. Dulan, J.D., Thomas M. Cooley Law School (1994), B.A. in Political Science and International Studies (double major), Michigan State University (1991). The author has taught classes at Lansing Community College, Baker University, Cleary University, and Adrian College. He has been an Adjunct Professor at Cooley Law School since 2009, where he teaches several courses, including Gun Control Seminar, and serves as Faculty Advisor for The Federalist Society. He is a Fellow of the George Romney Institute for Law and Public Policy.

The author is in solo practice in East Lansing, Michigan. He is admitted to the State Bar of Michigan and the State Bar of Colorado and is admitted to practice before the Eastern and Western Districts of Michigan and the Supreme Court of the United States. He also serves on the Board of Directors of the Michigan Coalition for Responsible Gun Owners (MCRGO) and the MCRGO Foundation. In that capacity, he has contributed to drafting several bills and has testified at numerous hearings in the Michigan Legislature. The author wishes to acknowledge the invaluable contributions of (in alphabetical order) Casey Conklin, J.D., Alexander Keane, J.D., Laurette C. LeBlanc, J.D., Brent Riley, J.D., and Daniel Shawl, J.D., who provided assistance with research, writing, and editing of this Article. Finally, the author gives special thanks to Professor M. Carol Bambery, J.D., his former professor, mentor, colleague, and friend.

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TABLE OF CONTENTS

I.INTRODUCTION ................................................................................... 2 II.CASE STUDIES: HOW MICHIGAN REGULATIONS AFFECT “MENTALLY ILL” INDIVIDUALS ......................................................................... 2 III.FEDERAL REGULATIONS CREATE IMPORTANT EXCEPTIONS BUT STILL FALL SHORT ........................................................................ 5 IV.STATUTORY DEFINITIONS FAIL TO DISTINGUISH MENTAL ILLNESS FROM VIOLENT TENDENCIES ......................................................... 9 V.COMPARING STATE AND FEDERAL LAW ......................................... 12 VI.RECOVERING THE RIGHT ............................................................... 13

I.

INTRODUCTION

In the Moral Letters to Lucillius, the Roman philosopher, Seneca, is quoted as saying, “[A] sword does not kill anyone: it is the weapon used by the killer.”1 Clearly, weapons regulation has been a publicpolicy issue for centuries—long before the invention of firearms— but now more than ever, gun-control law is passionately debated and ever-shifting. Public-policy arguments drive constant change in statutes and case law. Currently, there are approximately 90 bills pending in the Michigan legislature that propose changes to firearms regulation.2 One important issue in this debate is the use of mentalhealth diagnoses to limit the lawful possession and carry of firearms, whether for self-defense or another purpose.

II.

CASE STUDIES: HOW MICHIGAN REGULATIONS AFFECT “MENTALLY ILL” INDIVIDUALS

There is some common ground in the gun-control debate; many on both sides agree that there is a clear distinction between those who are “mentally ill” and those who are dangerous. Yet recently there have been renewed calls for gun-ownership restrictions based purely on mental-illness diagnoses. Ignoring the fact that only law-abiding 1. LUCIUS ANNAEUS SENECA, Letter 87, in SENECA: SELECTED LETTERS 167 (Elaine Fantham trans., 2010).

2. See, e.g., S.B. 213, 97th Leg., Reg. Sess. (Mich. 2013) (eliminating county concealed-weapons-licensing boards by transferring their functions to state police departments and repealing gun-free zones and giving schools and hospitals discretions to permit concealed carry).

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citizens will obey the law, we are still left with the serious question of whether gun regulations based on mental-health diagnoses actually contribute to the safety of society. If not, these proposed laws needlessly violate those individuals’ rights. The following case studies demonstrate some of the inherent injustices in this area of regulation.3 Client X is a middle-aged adult with no criminal history. X held a Michigan Concealed Pistol License (CPL) for an initial five-year period without incident. During the latter portion of the five-year period, X sought mental-health treatment. Medical professionals diagnosed X with depression and prescribed medication. The medication was effective and X reported good results. X was able to maintain employment and interpersonal relationships. X was never violent, threatening, or suicidal. When X applied for a CPL renewal, X had never had any contact with law enforcement—even for traffic violations. But Michigan’s CPL application form includes the question, “Do you have a diagnosed mental illness, regardless of whether you are receiving treatment for that illness?”4 X truthfully answered yes, and the renewal application was denied. Michigan’s policy toward mental illness denied an honest, law-abiding citizen, who had taken steps to treat a minor mental illness, the fundamental right to carry a pistol for self-defense.

The next client, Client Y, was involuntarily committed to a mental-health facility at age 15 because Y had threatened to harm an older sibling during the grieving process, after witnessing their father die of a heart attack. Y’s mother opposed the commitment and challenged the diagnosis of schizophrenia. She stated that Y had experienced anger issues since the death of Y’s father and also had been previously diagnosed with epilepsy and overmedicated. The psychiatric hospital reported that Y was intelligent, articulate, welloriented to time and place, and not delusional. It also reported that 15-year-old Y had difficulty with authority, was overly fixated on the formal application of rules, and was sometimes rude and angry. After brief inpatient treatment with the best methods available during the 1960s, the hospital released Y, who went on to successfully complete high school and several specialized vocational programs. Y spent an entire career employed in maintenance and repair positions, earning 3. These case studies provide the relevant facts from the author’s actual client files. All names and identifiers have been removed to protect their confidentiality.

4. MICH. STATE POLICE, CONCEALED PISTOL LICENSE GUIDE 9 (2013), available at www.michigan.gov/documents/ri_012_7736_7.pdf.

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outstanding employee evaluations that described Y as conscientious and honest. Y eventually retired to a rural area. Y has never been a gun owner, but when coyotes and feral dogs attacked Y’s neighbors and their pets, Y wanted to buy a Taser. Michigan law requires an individual to hold a valid CPL in order to legally purchase an electromuscular-disruption device, such as a Taser.5 Unfortunately, because Y was involuntarily committed to a mental-health facility approximately 40 years ago, Y suffers from a legal disability that cannot be cured through any process or mechanism in Michigan Law.6 Thus, Y is ineligible for a CPL which precludes the purchase of a Taser.

Finally, Client Z is an adult, full-time student who has struggled with coursework and exams. An initial screening revealed that Z probably suffers from Attention Deficit Disorder (ADD). Under the Americans with Disabilities Act, if Z was formally diagnosed, Z’s school would be required to provide reasonable accommodations, including extended time for course examinations.7 Z is a CPL holder who is aware that Michigan’s application form asks about current mental-health diagnoses.8 Michigan law considers ADD to be a disqualifying mental-health diagnosis as it “significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”9 Because of the potential consequences, Z has foregone treatment and its possible benefits in order to remain eligible to carry a pistol for self-defense.

These case studies illustrate just a few of the ridiculous and unjust results occurring under Michigan’s current regulatory scheme.

These regulations indiscriminately strip people with mental illness of the right to purchase a Taser or carry a pistol for self-defense, failing to recognize the wide spectrum of diagnoses included under the broad category of mental illness.

5. MICH. COMP. LAWS ANN. § 750.224a(2)(b) (Westlaw 2014).

6. See, e.g., MICH. COMP. LAWS ANN. § 28.425b(7) (Westlaw 2014) (stating that the licensing board, subject to many additional requirements, will grant a license if the applicant has never been involuntarily committed for or diagnosed with a mental illness).

7. 42 U.S.C.A. § 12101 (Westlaw 2014); see also Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 (Westlaw 2014).

8. § 28.425b(7)(l).

9. § 28.425b(19)(c).

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FEDERAL REGULATIONS CREATE IMPORTANT EXCEPTIONS BUT STILL FALL SHORT

At first blush, federal law seems to prohibit people with mental illness from purchasing a firearm from a Federal Firearms Licensed (FFL) dealer.10 The ATF Firearms Transaction Record form includes the question, “Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to others or are incompetent to manage your own affairs) OR have you ever been committed to a mental institution?”11 There are several important exceptions that allow certain individuals to purchase firearms despite having a mental-illness diagnosis. For example, committed to a mental institution does not include individuals who were in a mental institution solely for the purpose of observation.12 Similarly, individuals who voluntarily commit themselves to a mental institution to receive treatment are also excluded.13 The NICS Improvement Amendments Act of 2007 provides other important exceptions. If a federal agency or department adjudicates an individual as mentally defective or commits an individual to an institution, that individual is exempt from the prohibition to purchase firearms if (1) the adjudicating or committing agency sets aside the adjudication or commitment; (2) the agency fully released or discharged the individual from all mandatory treatment, supervision, or monitoring; or (3) the agency found that the individual no longer suffers from the mental-health condition that served as the basis for the initial adjudication.14 To a certain extent, federal law recognizes that mental illness can be a transient, rather than permanent, condition.15 Although federal law now provides a mechanism for those who have recovered from a

10. 18 U.S.C.A. § 922(g)(4) (Westlaw 2014).

11. BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES, U.S. DEP’T OF JUSTICE, FIREARMS TRANSACTION RECORD PART I – OVER-THE-COUNTER 4 (2012), available at http://www.atf.gov/files/forms/download/atf-f-4473-1.pdf. at 1.

12. Id. at 4.

13. Id. 14. NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, § 101, 122 Stat. 2559, 2561.

15. See id.

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previous mental illness to exercise their right to keep arms, this was not always the case.16 Carving out this exception, Galioto v. Department of Treasury, Bureau of Alcohol, Tobacco, & Firearms was an important case that involved a plaintiff, Anthony Galioto, who was similarly situated to many individuals previously diagnosed with a mental illness.17 After serving in the Armed Forces, Galioto became an engineer with the Port Authority.18 Although he had no history of mental illness, Galioto suffered an acute schizophrenic episode and voluntarily admitted himself to a mental hospital.19 During his stay, his treating physician sought to have him committed, and a local court entered a final commitment order. But Galioto was released just five days later, after the same physician determined that his condition had improved.

He was never again hospitalized for mental illness. Ten years after his release, Galioto applied to the state court and received an order granting him a firearms identification purchase card.20 But when Galioto attempted to purchase a firearm with his card, the dealer refused the sale because Galioto answered yes to the question, “Have you ever been adjudicated mentally defective or have you been committed to a mental institution?”21 At the time of the case, a federal statute prohibited the transaction.22 After his denied sale, Galioto applied to the ATF for a release from firearms disability. Federal law allowed convicted felons to have their firearms rights restored if they could establish that they would not be “likely to act in a manner dangerous to public safety” and that having firearms rights restored would “not be contrary to public policy.”23 A former mental-health patient like Galioto, however, had no equivalent mechanism to seek relief.24 The court noted that the law recognized a possibility of rehabilitation for a criminal but not for someone committed for mental illness: “The statute thus implies that mental illness is incurable, and that those persons with a history of mental illness who 16.

17.

18.

19.

20.

21.

22.

23.

24.

Id. 602 F. Supp. 682 (D.N.J. 1985), vacated as moot, 477 U.S. 556 (1986).

Id. at 683.

Id. at 684.

Id. Id. Id. (citing 18 U.S.C.A. § 922(d)(4) (Westlaw 2014)).

Id. (citing 18 U.S.C.A. § 925(c) (Westlaw 2014)).

Id.

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have never committed a crime are deemed more likely to commit one in the future than those persons who have actually done so in the past.”25 The court also noted that convicted criminals may, after meeting certain conditions, possess firearms, and those who have overcome mental illness should be afforded the same rights. As the court stated, “To impose a perpetual and permanent ban against anyone who has ever been committed for mental illness, no matter how ancient the commitment or how complete the cure, is to elevate superstition over science and unsupported fear over equal protection and due process.”26 The court held that New Jersey’s firearm policy, as it relates to people with mental illness, was unconstitutional.27 It found that former mental-health patients constitute a quasi-suspect class for Fourteenth Amendment purposes, but the court did not rest its decision on that ground.28 Instead, the court found that even under a rational-basis test, the provisions were defective under both equalprotection and substantive-due-process theories because they did not “provide former mental patients with the opportunity to contest their firearm disability . . . .”29 These provisions violated the Equal Protection Clause because they treated “former mental health patients . . . differently than others similarly situated . . . without any logical justification for doing so.”30 The court noted that “if anything, the bar would be more logically applied to convicts than to former mental patients, rather than vice versa.”31 The court found further deficiencies. First, that the punitive aspect of the bar is more suited to a person convicted of a crime than an innocent mental patient. Next, that convicts have already shown capability for criminal activity. Lastly, that committed patients who are released have little incentive to appeal their initial commitment, and commitment proceedings generally have fewer procedural safeguards than criminal proceedings.32 These same provisions violated the Due Process Clause because they permanently deprive mental-health patients “without any 25.

26.

27.

28.

29.

30.

31.

32.

Id. at 683.

Id. Id. at 691.

Id. at 687.

Id. at 688.

Id. Id. Id.

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rational basis of the opportunity to demonstrate that they are no longer, or never were, incapable of handling firearms safely.”33 The court noted that the statute created an “irrebuttable presumption that one who has been committed, no matter the circumstances, is forever mentally ill and dangerous” and that “[a]n irrebuttable presumption violates the due process rights of the individual against whom it is applied unless it is ‘at least rationally related to a legitimate state objective.’“34 The court conceded that regulating firearms sales for the public safety was a legitimate state objective.35 An irrebuttable presumption that former mental patients are never fit to own firearms, however, is not rationally related to achieving that objective.36 While the appeal was pending, Congress redrafted the statute, no longer limiting the provision to certain former criminals and allowing the ATF to grant relief to certain former mental-health patients like Galioto.37 The new provisions rendered the federal district court’s issues moot.38 The Supreme Court of the United States eventually granted certiorari, but never decided the merits,39 leaving the basic question of whether or not Congress was discriminating against people with mental illness in this context unsettled as a matter of constitutional jurisprudence.

The victory was short-lived, however, and this issue appears ripe for re-litigation. While the administrative remedy technically still exists, the ATF, in practice, is prohibited from spending any funds on investigating applications for relief under this exception.40 Without 33. Id. 34. Id. at 690 (alteration in original) (quoting Malmed v. Thornburgh, 621 F.2d 565, 575, 578 (3d Cir. 1980), cert. denied, 449 U.S. 955 (1980)); see also Stanley v. Illinois, 405 U.S. 645 (1972) (finding it is unconstitutional to presume that all unwed fathers are unfit as parents); Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir. 1977) (finding it unconstitutional to presume a blind teacher was not competent to teach English in public schools).

35. Galioto, 602 F. Supp. at 690.

36. Id. 37. 18 U.S.C.A. § 925(c) (Westlaw 2014).

38. U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556, 559–60 (1986).

39. Galioto, 477 U.S. 556, vacating as moot, 602 F. Supp. 682 (D.N.J. 1985).

40. See Adjudicated “Mentally Defective,” FFL NEWSLETTER (U.S. Dep’t of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Wash., D.C.), Sept.

2011, at 1; (Westlaw 2014) (noting a loophole in the statutory language: the Attorney General cannot review an application that is never received and the ATF, which is responsible for processing and forwarding the applications, refuses to do

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funding, the ATF cannot so much as open an individual’s application for relief. Individuals who are similarly situated to Galioto are once again denied this important right.

The current regulatory scheme favors those who were adjudicated mentally defective by federal courts or agencies or who had their records set aside or expunged, as these individuals are completely exempt from the definition of prohibited persons.41 But this creates an equal-protection and due-process problem. Given the advancements in research of and treatment for mental illnesses, the Galioto court conclusions are more compelling now, over 25 years later. Even for those who believe that there are valid reasons for discriminating between people with mental illness and convicted felons, there is no rational basis for artificially distinguishing between federal and state mental-illness adjudications.

IV.

STATUTORY DEFINITIONS FAIL TO DISTINGUISH MENTAL ILLNESS FROM VIOLENT TENDENCIES

In defining mental illness solely through commitment or court order, the law fails to recognize the difference between a person with a mental illness and a person who is violent. This failure leads to further stigma against people with a mental illness because only about 3–5% of all violent acts are attributable to people with a serious mental illness.42 The majority of that violence does not include guns.43 The strongest predictor of violent acts among people with a history of mental illness is a prior history of violent crime.44 As a whole, people with a mental illness are not any more dangerous than the general public—but there is a subgroup which may be more prone to violence.45 Past violent tendencies, noncompliance with medication, and substance abuse are factors so, passing the responsibility onto Congress for failing to earmark enough appropriations).

41. Pub. L. No. 110-180, 121 Stat. 2559 (2008).

42. Jeffrey W. Swanson, Mental Disorder, Substance Abuse, and Community Violence: An Epidemiological Approach, VIOLENCE AND MENTAL DISORDER: DEVELOPMENTS IN RISK ASSESSMENT 101, 119 (John Monahan & Henry J. Steadman eds., 1994).

43. See Paul S. Appelbaum, Violence and Mental Disorders: Data and Public Policy, 163 AM. J. PSYCHIATRY 1319, 1320 (2006).

44. See E. Fuller Tolley, Violent Behavior by Individuals with Serious Mental Illness, 45 HOSP. & COMMUNITY PSYCHIATRY 653, 654–55 (1994).

45. Id. at 658.

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which suggest that a person with a mental illness is more likely to be violent.46 Additionally, the correlation between sociopathic behavior and criminal behavior is strong.47 Sociopathic behavior is “a long term pattern of manipulating, exploiting, or violating the rights of others.”48 Rather than depriving an entire group of their right to protect themselves, this information suggests that some change is needed in the criteria used to involuntarily commit and deprive people of their fundamental rights.49 There is, in fact, very little evidence to suggest that laws aimed at keeping firearms out of the hands of people with mental illness are even effective at reducing gun violence.50 Courts have been slow to recognize this inefficacy; it seems for every step forward there is a step backward. In District of Columbia v. Heller,51 the Supreme Court took a step toward protecting the rights of most American citizens from government intrusion, but it also took a step backward in its treatment of people with mental illness. Although the Heller Court bolstered the individual right to possess and carry firearms for self-defense, it unequivocally stated that “nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”52 As restated in United States v. Marzzarella, the Second Amendment must “protect the right of law-abiding citizens to possess firearms for other, as-yet-undefined, lawful purposes.”53 Again, however, the Marzzarella Court reiterated that “[t]he right is not unlimited, however, as the Second Amendment affords no protection for . . . possession by felons and the mentally ill . . . .”54 Federal courts have failed to reconcile the contradiction contained in those two sentences: law-abiding citizens have a fundamental right to keep

46. Id. at 659.

47. See THEODORE A. STERN ET AL., MASSACHUSETTS GENERAL HOSPITAL COMPREHENSIVE CLINICAL PSYCHIATRY 532 (Theodore A. Stern & Jerrod F. Rosenbaum eds., 2008).

48. Antisocial Personality Disorder, U.S. NAT’L LIBRARY OF MED. (Nov. 10, 2012), http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001919/.

49. Id. at 660–61.

50. See Appelbaum, supra note 43.

51. District of Columbia v. Heller, 554 U.S. 570 (2008).

52. Id. at 626–27.

53. 614 F.3d 85, 92 (3d Cir. 2010) (citation omitted).

54. Id.

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and bear arms, but the people with mental illness do not—whether or not they have committed any crime.

Many claim that denying people with mental illness their Second Amendment rights is justified as a public-policy matter, and courts have generally agreed. People with mental illness are all lumped together categorically and automatically considered inherently dangerous.55 This discriminatory mindset fails to account for differences between types of mental illnesses and the wildly varying levels of danger a “mentally ill” person could present to the public.

And it singles out one group for disparate treatment before they have ever committed an overtly violent act—or any crime at all. This is unique in American law, and the only explanation seems to be the irrational fear of people with mental illness.56 It has long been held that those who demonstrate a criminal capacity and willingness to harm others deserve to forfeit even their most fundamental rights, such as voting and firearms.57 Unlike a mental-health adjudication or commitment, many criminal convictions require both proof of a mental state—usually either a specific or general intent to commit a crime—and proof that a specific prohibited act was committed.58 Conversely, people with mental illness, who have broken no laws, are punished solely for involuntarily possessing a mental state that does not necessarily include the intent to threaten the well-being of themselves or others.

Punishing mental illness is essentially punishing thoughtcrime.59 These punishments are levied without the procedural and evidentiary benefits of criminal trials and can be imposed based on a clear and convincing standard of proof, compared to the criminal standard of proof beyond a reasonable doubt.60 This cannot be reconciled with the premise that firearms ownership is a fundamental right for lawabiding individuals. Reading between the lines, current American jurisprudence states that firearms ownership is a fundamental right 55. See Joseph M. Livermore et al., On the Justifications for Civil Commitment, 117 U.PA. L. Rev. 75, 80 (1968).

56. See Saul Simlansky, Utilitarianism and the ‘Punishment’ of the Innocent: The General Problem, 50 ANALYSIS 256, 257–58 (1990).

57. Richardson v. Ramirez, 418 U.S. 24, 56 (1974).

58. See BLACK’S LAW DICTIONARY 41 (9th ed. 2009) (stating that actus reus comprises a criminal act); cf. id. at 1075 (stating that mens rea requires an actor to possess a criminal mind).

59. See George Orwell, Nineteen Eighty-Four (Secker and Warburg, 1949) (introducing the term thoughtcrime).

60. In re Trejo, 612 N.W.2d 407, 414 (2000).

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for law-abiding individuals, so long as the general public is not afraid of them.

V.

COMPARING STATE AND FEDERAL LAW

Michigan law and federal law differ only slightly in the rights given to people with mental illness. Both Michigan and federal law allow for a person with a mental-illness diagnosis to own long guns if they have not been adjudicated mentally deficient or involuntarily committed.61 The same rules apply in Michigan to the license to purchase a pistol.62 But to lawfully conceal and carry that same pistol, Michigan additionally requires that individuals have no current diagnosis of mental illness, regardless of treatment.63 In a post-Heller world, this sort of arbitrary distinction is problematic. Before Heller, Michigan courts recognized “a legitimate interest in limiting access to weapons particularly suited for criminal purposes.”64 But this interest contradicts with the right to bear arms recognized in Heller.65 According to the United States Court of Appeals for the Ninth Circuit, “Such regulations affecting a destruction of the right to bear arms, just like regulations that affect a destruction of the right to keep arms, cannot be sustained under any standard of scrutiny.”66 In striking down Illinois’s ban on concealed carry, the United States Court of Appeals for the Seventh Circuit stated, “The right to bear arms . . . implies a right to carry a loaded [weapon] outside the home.”67 To the courts that have considered this question, it would seem that—under any level of scrutiny—all gun restrictions must be struck down.

These federal circuit courts recognize that the right to bear arms, as specified in Heller, cannot rationally be limited to the home and remain effective.68 The right is clearly based on the idea that individuals must be able to protect their home from any intrusion by 61. See 18 U.S.C.A. § 922(d)(4) (Westlaw 2014); MICH. COMP. LAWS ANN. § 3.111 (Westlaw 2014).

62. MICH. COMP. LAWS ANN. § 28.422 (Westlaw 2014).

63. See MICH. COMP. LAWS ANN. § 28.425b(7)(k), (l) (Westlaw 2014).

64. Hickel v. Kent Cnty. Concealed Weapon Licensing Bd., No. 231199, 2003 WL 231323, at * 2 (Mich. Ct. App. 2003) (per curiam) (citations omitted).

65. District of Columbia v. Heller, 554 U.S. 570 (2008).

66. Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1175 (9th Cir. 2014) (citing District of Columbia v. Heller, 554 U.S. 570, 629 (2008)).

67. Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012).

68. Id.

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a person with ill intent.69 The Ninth Circuit, in reviewing a California law banning the carrying of a loaded weapon outside the home, reasoned that the right to bear arms logically relates to a person’s right to self-defense.70 The court stated that “the sort of conflict for which one would wish to be ‘armed and ready’ is just as menacing (and likely more so) beyond the front porch as it is in the living room.”71 This holding appears to stand for the proposition that if citizens may be justified in defending themselves in their homes, logically they would be justified in defending themselves beyond those safe walls.

This emerging argument, that all gun restrictions must be struck down under Heller, is not without challenge. Heller expressly stated that it would not “cast doubt on longstanding prohibitions on the possession of firearms by felons [or] the mentally ill.”72 Further, Heller did not address the appropriate standard of review to apply to future gun-restriction cases, stating only that the District of Columbia’s outright ban would fail under any level of scrutiny.73 The federal circuits have continued to use language reflecting the fact that outright bans on certain practices would fail to meet any level of scrutiny.74 VI.

RECOVERING THE RIGHT

Some people with mental illness certainly pose a substantial danger to society—as do many individuals who have no diagnosable mental illness. Clearly, states have a substantial interest in preventing violence. The issue then becomes how legislatures and courts balance that interest against the fact that even the most serious mental illnesses do not necessarily manifest themselves through overt acts of violence.

The answer may lie, as United States v. Marzzarella suggests, in existing First Amendment jurisprudence.75 The court noted that there are several ways to articulate intermediate scrutiny, including a reasonable fit between regulations and objectives, narrow tailoring to serve significant government interests, or regulations that are not 69.

70.

71.

72.

73.

74.

75.

Peruta, 742 F.3d at 1149, 1153.

Id. at 1149.

Id. at 1152.

554 U.S. 570, 626 (2008).

Id. at 628–29.

See, e.g., Peruta, 742 F.3d at 1149 (citation omitted).

614 F.3d 85 (3d Cir. 2010).

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more extensive than necessary to serve a substantial government interest.76 These standards are substantively similar.77 While simply grouping all people with mental illness together and denying Second Amendment rights arguably should not pass even rational-basis review, more narrowly tailored and clearly articulated standards could possibly balance the respective interests at play.

This Article does not articulate those specific standards, but it does advocate that the fundamental right to keep a firearm for selfdefense is the most basic of all rights. Any law seeking to restrict that right should be accorded the highest level of scrutiny. But any standard that restricts firearms access by some individuals labeled as mentally ill should recognize the following general principles: (1) mental illness is not a crime, and a person with a mental illness is not morally culpable for having a mental illness; (2) mental illnesses vary widely in duration, symptoms, intensity, and potential danger to the community; (3) law-abiding citizens diagnosed with a mental illness are entitled to the same due process as all other law-abiding citizens; (4) the government should have the burden of proving that the fundamental rights of specific individuals should be restricted; and (5) penalizing those who voluntarily seek treatment is counterproductive, perpetuates an irrational stigma, and needlessly endangers vulnerable individuals by rendering them defenseless.

Judicial solutions are likely to be rare because plaintiffs with mental illnesses often have difficulty securing funding from traditional gun-rights organizations that distance themselves from advocacy for the “mentally ill.� These same plaintiffs encounter resistance from mental-health groups that distance themselves from the gun-rights issue. Until legislatures clarify this issue, there will continue to be injustice and a lack of logic or understanding in this area of firearm regulation.

76. Id. at 97–98.

77. Id. at 98.

A LIBERAL’S CASE FOR THE SECOND AMENDMENT CRAIG R. WHITNEY* ABSTRACT Gun violence takes about 30,000 lives a year in the United States, two thirds of them suicides. Does the Second Amendment to the U.S. Constitution, protecting the right to keep and bear arms, rule out gun-control measures aimed at improving public safety? History shows that it was originally designed to reassure Americans who feared that the new federal government could become tyrannical if it maintained a standing army. It was intended to guarantee that the volunteer militias of the states could continue to be a deterrent to such federal tyranny. The common-law individual right to have and use firearms had always been regulated by states and localities in colonial days, and their gun controls continued after independence, even in the Wild West.

Federal gun regulations came only much later. They were generally accepted until recent decades, when powerful lobbies like the National Rifle Association (NRA) started fighting almost all attempts to balance gun rights with public safety, denouncing them as stealth efforts to deprive all Americans of a fundamental constitutional right. A series of mass shootings then led to a federal ban on semi-automatic “assault” rifles that expired in 2004.

Proposals to renew the ban and pass new federal controls emerged after the tragedy at Sandy Hook Elementary School in Newtown, Connecticut at the end of 2012, but all of them failed to overcome opposition in the Senate the following April.

*

Craig R. Whitney, A.B., magna cum laude, Harvard College (1965). The author is a Vietnam War Navy veteran and a retired foreign correspondent and editor of The New York Times who worked in Vietnam, Germany, the Soviet Union, France, Britain, New York, and Washington, D.C. over a 44-year career. His books include The WMD Mirage, a collection of documents about the mistaken intelligence on weapons of mass destruction in Iraq that led the United States to go to war there, and Living with Guns: A Liberal’s Case for the Second Amendment, both published

by PublicAffairs. This Article arose from a symposium held at the Thomas M. Cooley Law School in October, 2013. Mr. Whitney wishes to thank Stephen Madej, the Symposium Editor of the Law Review, and its staff for their diligent editing help, particularly Kathryn Frontier, Editor-in-Chief; Stephanie Strycharz, Articles Editor, and Jacqueline Langwith, Solicitation Editor.

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This Article argues that most homicidal street gun violence is committed not with semi-automatic rifles or other weapons owned by law-abiding citizens, but by criminals with illegally owned, unregistered semi-automatic pistols. And the common thread among mass shooters is more often untreated mental illness, not use of “assault” rifles. If both sides in the debate about guns look carefully enough, they will find that they share common ground for commonsense measures that can reduce the gun-death toll. But gun control alone can never eliminate all gun violence. And the NRA is right when it argues that, over the long term, improving mentalhealth care has as much potential as gun control to reduce the frequency of mass shootings. Doing nothing will ensure only that the next tragedy is simply a matter of time.

TABLE OF CONTENTS I.DEVELOPMENT OF THE SECOND AMENDMENT ................................. 16 II.TODAY’S GUN-VIOLENCE PROBLEM ............................................... 18 III.THE ROLE OF ASSAULT RIFLES IN MASS SHOOTINGS .................... 19 IV.THE GUN-CONTROL DEBATE AFTER SANDY HOOK ...................... 21 V.THE LEGISLATIVE STALEMATE ....................................................... 22 VI.SEARCHING FOR COMMON GROUND .............................................. 25 VII.CONGRESSIONAL INACTION LEADS TO CONTINUING GUN VIOLENCE.................................................................................... 28 VIII. HOPE FOR THE FUTURE? ........................................................... 29

I.

DEVELOPMENT OF THE SECOND AMENDMENT

American familiarity with firearms is the direct result of the right to keep and bear arms. This familiarity was among the most important reasons why the colonists prevailed in the Revolutionary War. While drafting the Constitution, the founders intended to reassure people who were afraid that the federal government, despite all checks and balances, could become tyrannical—particularly if it had a standing army at its disposal.1 The founders believed that the right to bear arms would ensure qualified marksmen for the state

1. See CRAIG R. WHITNEY, LIVING SECOND AMENDMENT 72–73 (2012).

WITH

GUNS: A LIBERAL’S CASE

FOR THE

2014] A LIBERAL'S CASE FOR THE SECOND AMENDMENT 17 militias, whose strength would deter any potential federal tyranny.2 When the new Congress convened in 1789, it drafted the Second Amendment protecting the people’s right to keep and bear arms. 3 This amendment, along with the rest of what became the Bill of Rights, was ratified in 1791.4 What is a liberal’s case for the Second Amendment? The Second Amendment protects the right of individual Americans to have and use firearms for self-defense, hunting, and sport. This right existed in common-law England before Jamestown and here, too, ever since John Smith’s day.5 But the Second Amendment has never forbidden commonsense regulation of firearms (i.e., gun control) to protect the right of the public to live in safety.6 History shows that the National Rifle Association (NRA) is wrong to claim that the Second Amendment recognizes an absolute right. Colonial authorities regulated firearms before independence.

And there was even regulation in the 19th century Wild West, as signs like one in Wichita, Kansas, warned visiting cowboys in 1873: “Leave Your Revolvers At Police Headquarters, And Get A Check.”7 Shall not be infringed does not mean shall not be limited in any way. Any dictionary will show that infringed does not mean the same thing as infringed on. Rather, to infringe is to break or, in this context, to deny.8 So “the right of the people to keep and bear Arms shall not be infringed”9 means that it cannot be denied to the people in general.

The right was always connected with civic duty—thus the preamble about a well-regulated militia. Further, the Second Amendment has always coexisted with various forms of gun registration and gun control.10 The right can be denied, and has been throughout our history, to lawbreakers and others who simply should not have guns. So although the Second Amendment protects the right to keep and bear arms, a liberal’s case for the Second Amendment

2.

3.

4.

5.

6.

See id. at 74–92.

See id. at 92–102.

Id. at 94.

See LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 136–41 (1999).

See ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA 115–18 (2011).

7. See id. at 160–65.

8. See, e.g., MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 642 (11th ed.

2003).

9. U.S. CONST. amend. II. 10. See LEVY, supra note 5, at 141–49.

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recognizes that this right is not absolute and therefore is subject to commonsense regulation.

II.

TODAY’S GUN-VIOLENCE PROBLEM

The United States has the world’s strongest standing armed forces, hardly feared today as threatening domestic tyranny, and is an industrial continental power. And the NRA often cites that there are over 300 million people living in the United States and about that many rifles, shotguns, and handguns in private hands. 11 Many of these firearms are semiautomatic weapons with magazines that can hold 30 rounds or more and are capable of firing as fast as a shooter can squeeze off rounds.12 This proliferation of firearms is due to the way the Second Amendment right has been understood. This right has clearly come with a cost. Yet our political system has always been slow to produce agreement on federal laws to reduce that cost.

In recent years, political polarization has made it seemingly impossible to pass gun-control legislation. For decades, the NRA and other gun-rights groups have convinced their members and legislators that it is unconstitutional to control increasingly deadly weapons— weapons that the founding fathers could have never imagined. These groups see all gun-control proposals as stealth attempts to eliminate the Second Amendment and seize privately owned guns.

For the past decade, gun violence has taken about 30,000 American lives a year. 13 About two-thirds of those deaths are suicides; most of the rest are homicides or accidents.14 By far, most of these deaths involve handguns and not so-called assault rifles that look like fully automatic military weapons (but actually pack no more firepower than many hunting rifles). 15 There are millions of

11. Semi-Automatic Firearms and the “Assault Weapon” Issue Overview, NRA-ILA (Feb. 15, 2013), http://nraila.org/news-issues/fact-sheets/2013/assaultweapons-overview.aspx?x=&st=&ps=.

12. Id. 13. See generally MICHAEL PLANTY & JENNIFER L. TRUMAN, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FIREARM VIOLENCE, 1993-2011 (2013), available at www.bjs.gov/content/pub/pdf/fv9311.pdf.

14. Sherry L. Murphy et al., Deaths: Final Data for 2010, 61 NAT’L VITAL STAT. REP. 82 (2013), available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/ nvsr61_04.pdf.

15. ALEXIA COOPER & ERICA L. SMITH, BUREAU OF JUSTICE STATISTICS, HOMICIDE TRENDS IN THE UNITED STATES, 1980-2008, 27 (2011), available at http://www.bjs.gov/content/pub/pdf/htus8008.pdf.

2014] A LIBERAL'S CASE FOR THE SECOND AMENDMENT 19 actual assault rifles in circulation despite the Federal Assault Weapons Ban.16 From 1994 to 2004 this legislation banned new sales of assault rifles but grandfathered those that were already in private hands.17 Such rifles have been used in discouragingly frequent mass shootings, but by no means in all of them.

III.

THE ROLE OF ASSAULT RIFLES IN MASS SHOOTINGS

There was no assault rifle used at Columbine High School in Colorado in 1999, where two demented students killed 13 and wounded 24.18 Seung-Hui Cho, another mentally disturbed shooter, had no assault rifle with him at Virginia Tech in 2007; he used two semiautomatic handguns with magazines holding 10 and 15 rounds to kill 32 people before killing himself.19 And Jared Loughner, another disturbed man, did not use an assault rifle when he wreaked havoc on a Tucson, Arizona, shopping mall, where Congresswoman Gabrielle Giffords was meeting with constituents in 2011. 20 Loughner was suspended from Pima Community College for his troubling behavior and told not to return until a mental-health professional could attest that he was not dangerous.21 He never sought treatment and his name was not in the national database used to ensure certain dangerous individuals cannot buy guns from dealers.22 So he was able to legally buy a semiautomatic Glock pistol at a sporting goods store.23 With

16. Public Safety and Recreational Firearms Use Protection Act, Pub. L. No. 103-322, 108 Stat. 1796 (1994) (repealed effective Sept. 13, 2004).

17. Brad Plumer, The Last Assault-Weapons Ban Didn’t Work. Will the New One Be Different?, WASH. POST (Jan. 24, 2013, 2:18 AM), http://www. washingtonpost.com/blogs/wonkblog/wp/2013/01/24/the-last-assault-weapons-bandidnt-work-will-the-new-one-be-different/.

18. See CNN Library, Columbine High School Shootings Fast Facts, CNN (Sept. 19, 2013, 3:16 PM), http://www.cnn.com/2013/09/18/us/columbine-highschool-shootings-fast-facts/; JANET L. KAMINKSI LEDUC, CONN. GEN. ASSEMB., OFFICE OF LEGISLATIVE RESEARCH, No. 2013-R-0057, WEAPONS USED IN MASS SHOOTINGS (2013), available at http://www.cga.ct.gov/2013/rpt/pdf/2013-R-0057. pdf.

19. CNN Library, Virginia Tech Shootings Fast Facts, CNN (Oct. 31, 2013, 3:06 PM), http://www.cnn.com/2013/10/31/us/virginia-tech-shootings-fast-facts/.

20. Sarah Garrecht Gassen & Timothy Williams, Before Attack, Parents of Gunman Tried to Address Son’s Strange Behavior, N.Y. TIMES, Mar. 27, 2013, http://www.nytimes.com/2013/03/28/us/documents-2011-tucson-shooting-casegabrielle-giffords.html.

21. Id. 22. Id. 23. Id.

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the pistol and a 33-round magazine, he shot Congresswoman Giffords and 18 others—6 of whom died.24 But there was an assault rifle at the premiere of The Dark Knight Rises in a movie theatre in Aurora, Colorado, in the summer of 2012; James Holmes used an AR-15 semiautomatic with a drum magazine holding 100 rounds. 25 The magazine was advertised on one online bargain site as, “Just the ticket, should things really heat up and the lead needs to fly. Of course, this means less time spent reloading, and more time for shooting as fast as you can pull the trigger.”26 Holmes, clearly mentally disturbed but also not in the federal database, was able to legally buy the rifle, the magazine, thousands of rounds of ammunition, a Glock 22 .40-caliber semiautomatic handgun, and a shotgun.27 The expanded magazine on the rifle jammed, but Holmes was still able to kill 12 people and wound 58 more before surrendering.28 On December 14, 2012, came something truly unimaginable— Adam Lanza, another psychotic young man, slaughtered 20 innocent small children and 6 faculty members at the Sandy Hook Elementary School in Newtown, Connecticut.29 Lanza used an assault rifle on his victims: a Bushmaster XM15-E2S semiautomatic with magazines that held 30 rounds.30 Then Lanza killed himself with a Glock 20 10 mm handgun, advertised by the manufacturer as a “reliable companion on every hunt. The G20 also provides a safe and accurate finishing shot . . .”31

24. Id. 25. Thom Patterson, Police Chief: Suspect Bought over 6,000 Rounds of Ammunition Through Internet, CNN (July 21, 2012, 11:37 AM), www.cnn.com/ 2012/07/20/justice/colorado-shooting-weapons/index.html.

26. Craig R. Whitney, A Way Out of the Gun Stalemate, N.Y. TIMES, July 24, 2012, http://www.nytimes.com/2012/07/25/opinion/a-way-out-of-the-gun-madness. html.

27. Joe Johns & Stacey Samuel, Would Background Checks Have Stopped Recent Mass Shootings? Probably Not, CNN (Apr. 10, 2013, 6:07 PM), http://www.cnn.com/2013/04/10/politics/background-checks-mass-shootings/.

28. Patterson, supra note 25.

29. STEPHEN J. SEDENSKY III, OFFICE OF THE STATE’S ATTORNEY, REPORT OF THE STATE’S ATTORNEY FOR THE JUDICIAL DISTRICT OF DANBURY ON THE SHOOTINGS AT SANDY HOOK ELEMENTARY SCHOOL AND 36 YOGANDA STREET, NEWTOWN, CONNECTICUT ON DECEMBER 14, 2012 5 (2013).

30. Id. 31. See Press Release, State of Conn., Dep’t of Emergency Servs. & Pub. Prot., State Police Identify Weapons Used in Sandy Hook Investigation: Investigation Continues (Jan. 15, 2013) (available at http://www.ct.gov/despp/cqp/view.asp?

2014] A LIBERAL'S CASE FOR THE SECOND AMENDMENT 21 The guns belonged to Lanza’s mother, with whom he lived and who often took him to firing ranges because shooting seemed to calm him.32 Just before the tragic school shooting, his mother wrote the check to buy Lanza a CZ83 semiautomatic pistol for Christmas, even though he wasn’t speaking to her. 33 Before the massacre, Lanza murdered his mother with several shots from her own .22 rifle.34 The ensuing investigation found that Lanza had a fascination with firearms and an “obsession with mass murders.” 35 He was particularly interested in the Columbine shooting, but a report revealed that while he was “undoubtedly afflicted with mental health problems. . . [he] displayed no aggressive or threatening tendencies” before the shooting.36 But he did own a computer game called School Shooting in which “the player controls a character who enters a school and shoots at students.”37 Though there was no evidence that Lanza had ever bought a gun or a round of ammunition himself, many people thought that this horrific event made it clear that the political stalemate on gun-control legislation had to end. Now even gun-rights enthusiasts would recognize that they had a responsibility to contribute to constructive discussions about possible solutions.

IV.

THE GUN-CONTROL DEBATE AFTER SANDY HOOK

Those who believed Americans need more effective gun-control laws ridiculed the NRA’s Executive Vice President, Wayne LaPierre, for saying that the best way to keep bad guys with guns from wreaking deadly violence in schools was to stop making schools gunfree zones and to put guns in the hands of the good guys—teachers and administrators:38 The truth is that our society is populated by an unknown number of genuine monsters—people so

Q=517284); Glock 20, GLOCK, http://us.glock.com/products/model/g20 (last visited Feb. 16, 2014).

32. SEDENSKY, supra note 29, at 25–34.

33. Id. at 28.

34. Id. at 2.

35. Id. at 3.

36. Id. at 29.

37. Id. at 26.

38. See Wayne LaPierre, NRA Exec. Vice President and CEO, NRA Press Conference (Dec. 21, 2012) (transcript available at http://home.nra.org/pdf/ Transcript_PDF.pdf).

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deranged, so evil, so possessed by voices and driven by demons that no sane person can possibly ever comprehend them. They walk among us every day.

And does anybody really believe that the next Adam Lanza isn’t planning his attack on a school he’s already identified at this very moment? 39 LaPierre’s question denounced violent video games and sensational media for encouraging and rewarding violence. He made no hint of concession that any form of gun control could possibly be a good thing.40 For four years, the NRA told its members that President Obama was bent on eliminating the right to keep and bear arms, even though he proposed no gun-control legislation whatsoever during his first term. 41 But the NRA insisted that he was merely biding his time, waiting to strike. 42 After Sandy Hook, the President put Vice President Joe Biden in charge of a task force to recommend laws and regulations to reduce gun violence. The NRA called this the battle it had predicted all along and mobilized its members to fight every proposed gun-control measure tooth and nail.43 V.

THE LEGISLATIVE STALEMATE

And just as so many times before, people on both sides of the gun-control debate reacted in predictable patterns. On the gun-control side, Senator Dianne Feinstein of California proposed a renewal of the Federal Assault Weapons Ban. 44 She did that even though the Majority Leader, Harry Reid of Nevada, was sure it had no chance of passing. The proposed Safe Communities, Safe Schools Act of 2013 did not include a ban on assault rifles.45 But with Sandy Hook fresh

39. Id. at 2–4.

40. See id.

41. Wayne LaPierre, Send President Obama His Walking Papers!

AMERICA’S 1ST FREEDOM, Oct. 2012, available at http://www.nrapublications. org/index.php/14348/send-president-obama-his-walking-papers/.

42. See id.

43. See Wayne LaPierre, Why America’s Gun Owners Must Stand and Fight, AMERICA’S 1ST FREEDOM, Apr. 2013, available at http://www.nrapublications. org/index.php/15316/why-americas-gun-owners-must-stand-and-fight/.

44. Safe Communities, Safe Schools Act of 2013, S.Amend. 712, 113th Cong.

(2013).

45. Safe Communities, Safe Schools Act of 2013, S. 649, 113th Cong. (2013).

2014] A LIBERAL'S CASE FOR THE SECOND AMENDMENT 23 on many minds, Senator Feinstein pushed forward with the amendment.46 President Obama traveled the country mobilizing those affected

by Sandy Hook, and other atrocities, to put pressure on legislators to do the right thing when anti-gun-control legislation came to the floor.

Some legislators tried proposing other amendments to the underlying bill. The media speculated that not all the provisions could find a majority, but that there was hope that some would pass.

One was a proposal to increase the penalties for straw purchasers. 47 These purchasers buy guns for others whose backgrounds bar them from buying guns.

Another was a proposal to make gun trafficking a federal crime.48 For instance, knowingly shipping and selling guns to disqualified buyers or supplying arms to drug dealers would be a federal offense.

That, as hard as it is to believe, is still not a federal crime.

A third amendment that appeared to have a chance of approval through bipartisan support was a proposal for universal background checks. Since 1968, federal law has barred federally licensed dealers from selling firearms to people who have been adjudicated mentally ill or involuntarily committed for treatment, convicted of felonies, or addicted to drugs.49 And since 1998, the FBI has maintained a federal database, the National Instant Criminal Background Check System (NICS).50 Under the NICS, states and other authorities submit names of people who cannot legally buy a gun. For example, if someone wants to buy a Glock or an AR-15 from a gun shop, the dealer or purchaser must fill out a form that is faxed to the NICS; and if the purchaser’s name is in the database, the dealer cannot legally make the sale.51 But 20–40% of gun sales are private, and private sellers have no reporting requirements.52 Anyone can attend a gun show or go online,

46. Safe Communities, Safe Schools Act of 2013, S.Amend. 712, 113th Cong.

(2013).

47. Safe Communities, Safe Schools Act of 2013, S. Amend. 725, 113th Cong.

(2013).

48. Safe Communities, Safe Schools Act of 2013, S. Amend. 713 to S. 649, 113th Cong. (2013).

49. See generally 18 U.S.C.A. §§ 921–931 (Westlaw 2014).

50. National Instant Criminal Background Check System, FBI, http://www.fbi. gov/about-us/cjis/nics.

51. Id. 52. Michael McKinney, U.S. Rep. David Cicilline Says 40 Percent of Gun Sales Are Made Without Background Checks, POLITIFACT (Feb. 10, 2013, 12:01 AM),

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find a private seller, and buy a gun—no background check required.

Attempting to close the loophole, Democratic Senators Joe Manchin of West Virginia and Charles Schumer of New York and Republican Senator Pat Toomey of Pennsylvania proposed a bipartisan compromise.53 Their amendment would have required private buyers to go through a background check handled by a licensed dealer.54 The proposal specifically provided that the federal government could not use this requirement to set up a national gun registry, which the NRA vehemently opposes and had long ago persuaded Congress to forbid.55 This amendment provides financial incentives for states to do a better job reporting names to the NICS database and penalizes those states that do not. 56 But the NRA, which supported universal background checks as recently as 1999, mounted an intense lobbying campaign against the amendment and all other gun-control bills supported by the Democratic leadership. The NRA argued, despite the language of the legislation, that passing it would let the government start a national registry of firearms that would inevitably lead to the seizure of guns from law-abiding gun owners.

If more Senators actually read the bills’ language instead of listening to the NRA’s protests, things might have turned out differently. But on April 17, 2013, under threat of a Republican filibuster requiring the support of 60 Senators for any measure to get to the floor for a vote, every single piece of gun-control legislation failed. The universal-background-check bill would have passed if the Senate functioned as the founders assumed it would, with a simple majority sufficing to pass laws. Who knows whether the House of Representatives would have passed a universal-background-check law that spring, but 55 Senators voted for it (Majority Leader, Senator Harry Reid, later changed his vote so that he could bring the measure up again someday).57

http://www.politifact.com/rhode-island/statements/2013/feb/10/david-cicilline/usrep-david-cicilline-says-40-percent-gun-sales-a/.

53. Safe Communities, Safe Schools Act of 2013, S. Amend. 715, 113th Cong.

(2013).

54. Id. 55. Id. 56. Id. 57. See 159 CONG. REC. S2740 (daily ed. Apr. 17, 2013) (listing roll call vote).

2014] A LIBERAL'S CASE FOR THE SECOND AMENDMENT 25 The NRA hailed the Senate votes as a defeat for the “enemies of liberty,” but warned its members that more battles lay ahead.58 Chris W. Cox, the NRA’s chief lobbyist, wrote to members two days after the vote: “Elected officials who support the Second Amendment will be subjected to a well-financed, cleverly conceived campaign designed to convince them that they are on the wrong side of history.”59 VI.

SEARCHING FOR COMMON GROUND

The NRA has been talking out of both sides of its mouth in the latest gun debates. It criticizes background checks for not being effective because criminals can evade them. Yet it also calls for measures to tighten up procedures that allow many states to delay or even refuse to comply with federal law by submitting the names of the mentally ill, criminals, and others to the NICS database. Wayne LaPierre told NBC before the Senate votes: We are working on a bill right now that will hopefully at least get the records of those adjudicated medically incompetent and dangerous into the check system that applies on dealers. Most of the states still do not even do that. We need to see if we can get that done.60 If it would be good to tighten up background checks for sales by dealers, why wouldn’t it be good for private sales, too? Because, according to the NRA, requiring background checks for private sales would criminalize law-abiding gun owners and create the possibility that the government could use the NICS to one day seize their firearms.61 But the universal-background-check proposal was aimed at commercial sales of firearms and specifically exempted transactions between family members.

58. Chris W. Cox, Chris W. Cox’s Message to Gun Owners on Their Victory in the Senate, NRA-ILA (Apr. 19, 2013), http://www.nraila.org/legislation/federallegislation/2013/4/chris-cox-message-to-gun-owners-on-their-victory-in-thesenate.aspx.

59. Id. 60. Meet the Press (NBC television broadcast Mar. 24, 2012) (transcript available at http://www.nbcnews.com/id/51308323/ns/meet_the_press-transcripts/t/ march-michael-bloomberg-wayne-lapierre-david-boies-richard-engel-ralph-reedhilary-rosen-ej-dionne-david-brooks/#.Uui6Wfko7IV).

61. Chris W. Cox, Freedom Wins Round One, NRA-ILA (Jul. 15, 2013), http://www.nraila.org/about-nra-ila/directors-archive/freedom-wins-round-one. aspx?s=freedom+wins+round+one&st=&ps.

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The NRA also says the Department of Justice should prosecute people who lie when they fill out background-check forms at a gun shop. “We’re looking to get better enforcement of the federal gun laws. We’re working on laws to beef up the penalties on straw purchases, and illegal trafficking, which we want prosecuted.”62 There are some lessons here. One is that the gun-control proposals in the spring of 2013 were doomed by their close association with the proposed renewal of the Federal Assault Weapons Ban. The ban would have grandfathered millions of assault rifles but under onerous regulations that would have made them difficult to sell or pass on.

But this ban would not have stopped Adam Lanza from using his mother’s rifle and the ten 30-round magazines he took to Sandy Hook Elementary School. And it would have done little to lessen the larger problem of street gun violence, almost all of which is committed with illegally owned handguns.

In any case, the current Supreme Court would almost certainly find a ban on semiautomatic rifles unconstitutional, just as it found the District of Columbia’s ban on handguns unconstitutional in District of Columbia v. Heller in 2008.63 In Heller, the court reasoned that a ban on handguns was unconstitutional because so many were in private hands and were in common use for self-defense.64 But fully automatic rifles and machine guns are uncommon; one squeeze on the trigger and the rounds fly out until the trigger is released. And they are not in common use because they have been tightly regulated since the 1934 National Firearms Act, 65 passed in reaction to organized-crime violence in episodes like the St. Valentine’s Day massacre in Chicago. 66 The regulation has been effective as no privately owned, fully automatic weapon has been involved in any mass shooting in the United States in recent decades.

Another lesson after Sandy Hook is that the gun-control debate will keep going around in circles unless proponents of commonsense gun control seriously consider the position of reasonable gun-rights proponents: Take them at their word, make them live up to their

62.

63.

64.

65.

66.

Meet the Press, supra note 60.

554 U.S. 570 (2008).

Id. at 628–29.

See National Firearms Act, 26 U.S.C.A. §§ 5801–5802 (Westlaw 2014).

BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, ATF NATIONAL FIREARMS ACT HANDBOOK 1 (2009), available at http://www.atf.gov/ publications/firearms/nfa-handbook/index.html.

2014] A LIBERAL'S CASE FOR THE SECOND AMENDMENT 27 word, and then there is a chance of finding elements of common ground. Explaining the NRA’s stance on the universal-backgroundcheck proposal, Wayne LaPierre says that “the NRA supported the gun check because we thought the mental records would be in the system, we thought criminals would be in the system. And we thought they would be prosecuted.”67 Criminals who lie when filling out the background checks should be more frequently prosecuted, he argues.68 And proponents of commonsense gun control would surely agree.

Aiming to correct this lack of prosecution, Republican Senator Charles E. Grassley of Iowa, no friend of assault-weapons bans, offered another proposal in April 2013. 69 Grassley’s amendment, which a rank of conservative Republicans co-sponsored, included proposals similar to the ones in the universal-background-check proposal to penalize states that are not timely or conscientious in providing information to the NICS database.70 The Grassley amendment would have also required complete compliance with the database by all federal authorities.71 It proposed revising the mental-illness provisions of existing federal-gun-control laws in a balanced way,72 and making gun trafficking by criminals, drug dealers and straw purchasers punishable by up to 15 years’ imprisonment.73 And the Grassley amendment would have required the Department of Justice to prosecute people who lied on their NICS forms 74 while reporting to Congress on how vigorously it has prosecuted such cases. 75 But the amendment did not extend background checks to private purchases: It would have made it far easier for legitimate gun owners all over the country to carry their weapons interstate. That made it unacceptable to many Democrats.

67. Meet the Press (NBC television broadcast Sept. 22, 2013) (transcript available at http://www.nbcnews.com/id/53075148/ns/meet_the_presstranscripts/#.UuhyKPko7IX).

68. Id. 69. See Safe Communities, Safe Schools Act of 2013, S. Amend. No. 725, 113th Cong. (2013).

70. See id.

71. See id. at S2756.

72. See id.

73. Id. at S2755.

74. See id.

75. See id. at S2753.

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CONGRESSIONAL INACTION LEADS TO CONTINUING GUN VIOLENCE

No gun-control legislation came out of the Senate in 2013. And without legislative change, there was nothing to change the chronic gun violence that continued to plague the country. Many gun-control proponents felt that the next mass shooting was just a matter of time.

Sure enough, in September 2013, another shooting occurred in the Washington Navy Yard. Aaron Alexis, a defense contractor, had a troubled mental history that led his employer to suspend his access to classified documents for two days in August. But that fact was never reported to the Navy. So the Navy had no reason to suspend his security clearance. Alexis’s name was not in the NICS database, so he had no problem buying a shotgun from a dealer in Virginia before driving unchecked into the supposedly secure Navy Yard facility, where he killed 12 people before he was fatally shot by the police.76 Horrors like this will keep happening until gun-control advocates and gun-rights advocates stop shooting at each other. They must start trying to find common ground and ways to make tragedies like Sandy Hook and the Navy Yard less likely to happen.

In early 2013, some states started their own gun-control measures. New York banned new sales of assault rifles and set a seven-round limit for magazines (later amended to permit ten-round magazines because, it turned out, few gun manufacturers made seven-round magazines—but New Yorkers could load only seven rounds into the ten-round ones, except at a firing range).77 Colorado passed a 15-round limit on magazines.78 Connecticut,79 Maryland,80 and California81 all strengthened their gun control laws (though on

76. See Associated Press, Navy Yard Gunman’s Access Had Been Revoked, N.Y. TIMES, Nov. 23, 2013, http://www.nytimes.com/2013/11/23/us/navy-yardgunmans-access-had-been-revoked.html?_r=0.

77. Find Out About Changes to the Bill, NYSAFE, http://www.governor.ny. gov/nysafeact/gun-reform. But at the end of 2013, a federal judge found that this limitation, which criminals would surely ignore, was unconstitutional. See N.Y. State Rifle & Pistol Ass’n. v. Cuomo, 990 F. Supp. 2d 349, 381 (W.D.N.Y. 2013) (holding that, although the challenged provisions of the SAFE Act are not unconstitutional, the seven-round limit fails the relevant constitutional tests).

78. H.R. 13–1224, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

79. See CONN. GEN. STAT. ANN. § 53–202f (Westlaw 2014).

80. See MD. CODE ANN., PUB. SAFETY § 5–133 (Westlaw 2014).

81. See CAL. PENAL CODE § 26840 (Westlaw 2014).

2014] A LIBERAL'S CASE FOR THE SECOND AMENDMENT 29 October 11, 2013, Governor Jerry Brown vetoed an assault-rifle ban that was passed by the state assembly).82 At the national level, common ground is limited in extent, but it is still there. Starting with the Grassley bill and working one step at a time toward an acceptable universal-background-check measure might meet with more success than the ambitious gun-control proposals that failed in the Senate in 2013.83 And as offensive as the NRA’s favorite slogan—guns don’t kill people, people do—is to many people, it is true that controlling guns alone can never solve the gun-violence problem. For example, the most effective part of the New York law, as far as preventing mass shootings goes, may be its provision enabling mental-health-care professionals to report the names of patients they consider potentially dangerous so that law enforcement authorities can prevent them from acquiring or keeping firearms. 84 A similar federal requirement may be possible if our legislators work toward this common ground.

VIII.

HOPE FOR THE FUTURE?

It is long past time that Americans examine the failure to replace mental hospitals with an effective and adequately funded system of community care for those afflicted with mental disorders. Now we must begin to do something about it. And there is common ground here, too. Both President Obama and the NRA agree on the need to do a better job of providing mental-health care. After Sandy Hook, the President proposed executive actions, not requiring Congressional action, including rules requiring insurers to cover care for mental health and addiction the same as care for physical illnesses.85 Would there be fewer deaths if there were not 300 million firearms in the United States? Of course. The mortality rate for people who die from gunfire is significantly lower in European

82. Sharon Bernstein, California Governor Vetoes Tough Gun Control Bills, YAHOO!NEWS (Oct. 11, 2013, 6:09 PM), http://www.news.yahoo.com/ california-governor-vetoes-several-tough-gun-control-bills-202721952.html.

83. See Ed O’Keefe & Philip Rucker, Gun-Control Overhaul Is Defeated in Senate, WASH. POST, Apr. 17, 2013, http://www.washingtonpost.com/politics/guncontrol-overhaul-is-defeated-in-senate/2013/04/17/57eb028a-a77c-11e2-b0298fb7e977ef71_story.html.

84. N.Y. MENTAL HYG. LAW § 9.46 (Westlaw 2014).

85. See Jackie Calmes & Robert Pear, Rules to Require Equal Coverage for Mental Ills, N.Y. TIMES, Nov. 8, 2013, http://www.nytimes.com/2013/11/08/ us/politics/rules-to-require-equal-coverage-for-mental-ills.html.

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countries than it is in the United States.86 But the United States is not going to eliminate all those guns. And the Second Amendment is not going to be repealed. People who live in states like Montana, or even people who live in upstate New York, do not think about guns the same way as people who live in Long Island or Manhattan do.

But again, nothing in the Second Amendment has ever banned commonsense gun regulation. Even the conservative Supreme Court majority in Heller recognized that: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.87 Gabrielle Giffords and her husband, Mark Kelly, both gun owners who say they do not want their guns seized, started an organization called Americans for Responsible Solutions “as a way to encourage elected officials to stand up for both the 2nd amendment and safer communities by communicating directly with the constituents that elect them.” 88 Immediately after the Senate’s failure to approve background-check legislation, Giffords wrote an op-ed piece in the New York Times calling those Senators who voted against background-check amendments guilty of cowardice and calling on their constituents to tell them so. 89 “Giffords and Kelly will not let leaders across the country forget that Americans are demanding responsible solutions to this critically important issue,” their Web site proclaims.90 And their organization raised $6.5 million to support candidates in favor of more effective measures against gun violence, or those whose opponents got major support from groups

86. See Safety, OECD BETTER LIFE INDEX, http://www.oecdbetterlifeindex.org/ topics/safety/.

87. District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). The Heller ruling was also extended nationwide two years later. Otis McDonald. v. City of Chicago, 561 U.S. 3025 (2010).

88. GABRIELLE GIFFORDS, AMS. FOR RESPONSIBLE SOLUTIONS, http://americansforresponsiblesolutions.org/gabrielle-giffords/.

89. Gabrielle Giffords, A Senate in the Gun Lobby’s Grip, N.Y. TIMES, Apr. 17, 2013, http://www.nytimes.com/2013/04/18/opinion/a-senate-in-the-gun-lobbysgrip.html?_r=0.

90. GIFFORDS, supra note 88.

2014] A LIBERAL'S CASE FOR THE SECOND AMENDMENT 31 like the NRA. 91 Mayor Michael Bloomberg of New York City, deeply committed to strict gun control and not opposed to seizing guns, also provided financial support as he neared the end of his term of office. The NRA has concentrated most of its fire against him.92 The United States needs solutions that both sides can agree on to get beyond artillery duels of this sort. Aside from gun control, there are other methods that have been effective. For example, in some cities like Chicago, Boston, and parts of New York, there are programs to work with young people who live in the troubled neighborhoods where gun violence is often a daily scourge. These programs focus on changing the way youths think about themselves and about guns and changing the destructive human-behavior patterns that are a more important factor than just the guns themselves.93 The Second Amendment is not what makes it impossible to agree on commonsense measures. Rather, rigid ideology and fearmongering lobbying, along with legislators’ fearful deference to it, have done that. There is an old adage that the world can always count on Americans to do the right thing—after they have exhausted all the other possibilities. Looking at the problems Americans are having today, with guns and many other things, one can only hope so.

91. Paul Blumenthal, Gabrielle Giffords Gun Control Super PAC Raises $6.5 Million, HUFFINGTON POST (July 31, 2013, 2:26 PM), http://www.huffingtonpost. com/2013/07/31/gabrielle-giffords-gun-control-super-pac_n_3683118.html.

92. See Robert Pear, The Caucus; N.R.A. Chief Vows to Fight Drive on Guns by Bloomberg, N.Y. TIMES, Mar. 25, 2013, http://query.nytimes.com/gst/fullpage. html?res=9402E7DC133AF936A15750C0A9659D8B63&ref=robertpear&pagewa nted=print.

93. See s.e. smith, Project CeaseFire Fights Gun Violence with Community Leaders, CARE2 MAKE A DIFFERENCE, http://www.care2.com/causes/projectceasefire-fights-gun-violence-with-community-leaders.html.

GUN OWNERS, GUN LEGISLATION, AND COMPROMISE DAVID T. HARDY* ABSTRACT An important human aspect of firearms ownership and regulation includes the reluctance of gun owners to consent to measures that, viewed in historical isolation, appear quite limited. But this opposition is understandable if placed in historical context. During the rise of the modern gun-control movement in the early 1970s, guncontrol proponents publicly proclaimed their objective was a complete or nearly complete ban on private handgun ownership. And they made it clear that lesser measures were but a means to that end.

While they subsequently focused on those lesser measures, they returned to the objective of a complete handgun ban whenever that target of opportunity presented itself. When, in the 1990s, a focus on handguns became politically inexpedient, they switched the focus to semiautomatic rifles—notwithstanding their earlier avowals that rifles were not their concern.

Gun owners thus learned by experience that their opponents were not interested in genuine compromise, where each party gives up something to the other. Their opponents had no stopping point, no exit strategy, no “enough is enough.” Under these conditions, real compromise is impossible. Any concession given would not be a stopping point, but rather a stepping stone to further restrictions.

This conclusion has been underscored by the experience of gun owners in states with restrictive gun legislation, where waiting periods for purchase started at one day but were later increased to three, five, and then ten days. And initially limited restrictions have expanded to fill over a thousand pages of annotated text. Many of these measures serve no discernible purpose except to make legal

*

David T. Hardy, PC, Tucson, Arizona. The author’s prior writings on the right to arms and firearm law have been cited three times by the Supreme Court of the United States. Staples v. United States, 511 U.S. 600, 626 n.4 (1994) (Stevens, J., dissenting); McDonald v. City of Chicago, 130 S. Ct. 3020, 3033 n.10 (2010) (plurality opinion); id. at 3079 (Thomas, J., concurring). This Article is an expansion of one that appeared in Reason Online. David T. Hardy, Why Gun Owners Are Right to Fight Against Gun Control, REASON.COM (July 18, 2013), http://reason.com/archives/2013/07/18/why-second-amendment-supporters-are-righ.

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firearm ownership as difficult, expensive, and legally risky as possible.

Intelligent actions are usually founded upon experience. Gun owners’ experiences have taught them one lesson: there is no true compromise to be had.

TABLE OF CONTENTS

I.INTRODUCTION ................................................................................. 34 II.GUN OWNERS’ WARINESS OF COMPROMISE REFLECTS A SET OF SHARED EXPERIENCES ................................................................ 35 III.GUN-CONTROL PROPONENTS PUBLICLY DECLARE THEIR LONGTERM OBJECTIVES: BANS ON PRIVATE OWNERSHIP .................... 36 IV.GUN OWNERS’ EXPERIENCE WITH EVER-EXPANDING LEGAL RESTRICTIONS ............................................................................. 42 A. California ........................................................................... 42 B. New Jersey .......................................................................... 44 C. New York ............................................................................ 44 V.“REASONABLE” RESTRICTIONS BECOME EVER-GROWING RESTRICTIONS ............................................................................. 45 VI.GUN CONTROL AS A CULTURE WAR .............................................. 46 VII.CONCLUSION ................................................................................ 49

I.

INTRODUCTION

Over the decades, the gun-control debate has narrowed to the point where the dispute is virtually symbolic. In the 1960s and 1970s, the debate was fueled by proposed national registration and permit requirements for firearm ownership. In the 1980s, the issues largely concerned permit systems and banning types of handguns. By the twenty-first century, the focus shifted to measures like requiring background checks for Internet sales and banning “assault rifles.” But most online gun purchases were likely already subject to background checks,1 and firearms manufacturers could simply remove a few minor parts to obviate assault-rifle bans.2

1. See 18 U.S.C.A. § 922 (Westlaw 2014) (requiring any interstate firearm sale to go through a licensed dealer who must run a background check).

2. After the 1994 federal assault-rifle ban, makers of AR-15-type rifles had only to omit the bayonet lug and the flash suppressor (a device fitted to the end of

2014]GUN OWNERS, GUN LEGISLATION, & COMPROMISE 35 As the debate narrowed and the issues clouded, assertions that gun owners3 were unreasonably rejecting regulatory measures escalated. If such measures would do little good, they would also do minor harm to gun owners’ interests.

This Article will present gun owners’ perspectives and provide an explanation for such apparent unreasonableness. Over the last four decades, gun owners have had a set of shared experiences, which revealed that true compromise was never an option and that legislative conflicts were part of a larger culture war.

II.

GUN OWNERS’ WARINESS OF COMPROMISE REFLECTS A SET OF SHARED EXPERIENCES

One of the more frequent criticisms of gun owners is that they refuse to accept reasonable, commonsense gun-control measures. But one response is that commonsense too often means that there is no data suggesting that a measure will have any effect on crime. For example, gun-control advocates propose closing the so-called gunshow loophole: most states do not require private sellers at gun shows to run a background check before selling a gun, unlike the federal requirement for licensed dealers. But there is proof that less than one percent of guns traced in connection with crime were purchased at gun shows.4 And calls to ban “assault rifles”5 continue,

the barrel, which has no function with modern ammunition) to make compliant rifles; makers of AK-47-type arms had only to remove the bayonet lug to make compliant rifles. See Public Safety and Recreational Firearms Use Protection Act, Pub. L. No. 103-322, § 110102(a)–(b), 108 Stat. 1796, 1996–98 (1994) (repealed 2004) (making semi-automatic assault weapons illegal and defining a semiautomatic assault weapon as having a detachable magazine in addition to two of five characteristics specified by the statute). But see id. (defining a semi-automatic assault weapon as any firearm, or copy, known as an Avtomat Kalashinkov or Colt AR-15). In fact, Avtomat Kalashnikov refers to the fully automatic rifle, not the semiautomatic rifle, and Colt had long stopped calling its rifles AR-15s.

3. I use gun owners as a more neutral term than gun activist, gun-rights supporter, or their like.

4. CAROLINE WOLFE HARLOW, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NO. NCJ 189369, FIREARM USE BY OFFENDERS 1 (rev. 2002), available at www.bjs.gov/content/pub/pdf/fuo.pdf (noting that surveys of over 11,000 prison inmates found that 0.6 to 0.7% of offenders purchased their gun at a gun show). To the extent that background checks are the issue, even this overstates the relevant situation because licensed firearms dealers comprise a large part of gun-show exhibitors and are required to run checks. Id. The surveys also found that 9–22% of the inmates were confined for a first offense, so they would have had no

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despite several government-sponsored studies finding that the 1994 federal ban, and its 2004 expiration, had no discernible effect on crime.6 Still, gun owners and their organizations seem firm in opposing some measures that would do little harm to their interests.

Understanding this opposition requires understanding gun owners’ shared experiences. True compromise requires that both parties relinquish something. But there is no true compromise if one party’s position is, “Give me this now, and I’ll come back for more later.”

That party will simply use whatever is gained through the “compromise” as a foundation to seek more. Essentially, that is how American gun owners have perceived gun-control proponents’ positions over the decades.

III.

GUN-CONTROL PROPONENTS PUBLICLY DECLARE THEIR LONG-TERM OBJECTIVES: BANS ON PRIVATE OWNERSHIP

One shared experience derives from the way gun-control proponents describe their agenda. Early on, when gun-control proponents understandably believed they could achieve broad regulatory control, they candidly avowed that the objective was a ban, or even confiscation, of large categories of arms.

By looking at the history of the Brady Campaign, the largest and ostensibly most centrist gun-control-proponent group, it becomes clear why gun owners are hesitant to trust the supposed compromise

convictions at the time they purchased and thus could have bought from a dealer at a gun show. Id. 5. There is no sound distinction between a semi-automatic assault rifle and any other semi-automatic rifle. The 1994 federal ban, for example, applied to the Colt AR-15 but expressly exempted the Ruger Mini-14, although both rifles fired the same cartridge at the same rate and from magazines of identical size. See Bruce H. Kobayashi & Joseph E. Olson, In Re 101 California Street: A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of “Assault Weapons,” 8 STAN. L. & POL’Y REV. 41, 44 (1997) (noting that “artificial distinctions” were made in 1989 and that drafters of the legislation lacked firearms knowledge).

6. See, e.g., JEFFREY A. ROTH & CHRISTOPHER S. KOPER, NAT’L INST. OF JUSTICE, IMPACTS OF THE 1994 ASSAULT WEAPONS BAN: 1994-96, 10 (1999), available at https://www.ncjrs.gov/pdffiles1/173405.pdf (“The public safety benefits of the 1994 ban have not yet been demonstrated.”); CHRISTOPHER S. KOPER ET AL., JERRY LEE CTR. FOR CRIMINOLOGY, AN UPDATED ASSESSMENT OF THE FEDERAL ASSAULT WEAPONS BAN: IMPACTS ON GUN MARKETS AND GUN VIOLENCE, 1994-2003 (2004), available at http://www.feinstein.senate.gov/ public/index.cfm/files/serve/?File_id=b531daeb-a954-41f8-a21c-268cceccb4c4.

2014]GUN OWNERS, GUN LEGISLATION, & COMPROMISE 37 offered by such “commonsense” groups. As the Brady Campaign changed its position over the years, it similarly changed its name.

At its inception, this gun-control-proponent group was known as the National Council to Control Handguns (NCCH). It was a small, little-known group at first. Former vice president of DuPont, Nelson “Pete” Shields7 used his organizational and public-relations experience—which the NCCH’s founders lacked—to develop the group into the more prominent, centrist organization that it is known as today.8 Although the NCCH initially supported federal legislation that would entirely ban handguns, the organization learned that accomplishing its goals required a different long-term strategy.

In 1976, the NCCH continued to advocate a total handgun ban instead of supporting a bill that would have merely imposed licensing requirements, registration, and increased penalties. Shields summarized the House Judiciary Committee’s criticism of his group’s efforts: “In effect they said . . . ‘Now, for the first time in history, we have a chance to pass some form of handgun control legislation, and you threaten the whole thing by holding out for a 9 position that is unwinnable because it is politically unrealistic.”

Shields consoled himself with the hope that lesser measures would be a means to an end—stopping points on the way to a ban.

Five months after backing off from the handgun ban, Shields candidly described the NCCH’s long-term game plan. He hoped that a modest approach to gun control in the present would lead to complete control in the future.

Our ultimate goal—total control of handguns in the United States—is going to take time. My estimate is from seven to ten years. The first problem is to slow down the increasing number of handguns sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition—except for the military, policemen,

7. See Obituary of Nelson Shields, N.Y. TIMES, Jan. 27, 1993, http://www.nytimes.com/1993/01/27/obituaries/nelson-shields-3d-69-gun-controladvocate.html; KRISTIN A. GOSS, DISARMED: THE MISSING MOVEMENT FOR GUN CONTROL IN AMERICA 157–58 (2006).

8. PETE SHIELDS WITH JOHN GREENYA, GUNS DON’T DIE—PEOPLE DO 22– 23 (1981).

9. Id. at 103.

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licensed security guards, licensed sporting clubs, and licensed gun collectors—totally illegal.10 In short, registration was a means to an end—that of being able to enforce a nearly complete ban. The NCCH considered this no secret; it reprinted and distributed Shields’ interview in The New Yorker with the organization’s logo.11 One of its pamphlets described the battle against handguns, echoing Shields’ sentiments about the way to achieve a total handgun ban. It mentioned that federal registration, banning sales of multiple guns to individuals, and careful screening of gun purchasers were only interim steps. “Ultimately, we want strict Federal laws that will effectively restrict the possession of handguns to only the police, the military, licensed security guards, licensed pistol clubs, and registered collectors. (This, we know, will take time. But we hope and believe it will come.)”12 This extreme example came from the most centrist of the major advocates for gun control at the time; at least fellow gun-control group the National Coalition to Ban Handguns had a more transparent title.

But the goal of a near-total civilian handgun ban in seven to ten years soon appeared too optimistic, so the NCCH, while not entirely forsaking that eventual goal, felt it necessary at least to equivocate on the issue. In late 1978, the organization announced a name change to Handgun Control, Inc. (HCI). “Even more important than eliminating this confusion over name, we feel it is important that our name clearly reflect our goal—the control of the unfettered use of handguns.”13 The announcement also described new legislation, targeting the Saturday Night Special, and other tactics the organization supposed would ensure accountability and responsibility 14 for handgun owners, manufacturers, and sellers. Although the organization still preferred an outright ban as the ultimate control measure, it found this new approach more realistic.15

10. Richard Harris, A Reporter at Large, THE NEW YORKER, July 26, 1976, at 53, 57–58.

11. THE NATIONAL COUNCIL TO CONTROL HANDGUNS, A REPORTER AT LARGE: HANDGUNS (July 26, 1976) (flyer distributed to members, on file with author).

12. THE NATIONAL COUNCIL TO CONTROL HANDGUNS, CONTROL HANDGUNS (n.d.) (pamphlet distributed to members, on file with author).

13. Letter from Nelson T. Shields, Chairman, Nat’l Council to Control Handguns, to members (Nov. 15, 1978) (on file with author).

14. Id. 15. Id.

2014]GUN OWNERS, GUN LEGISLATION, & COMPROMISE 39 The short-term agenda varied as targets of opportunity appeared.

In January 1982, Shields described “the perfect bill” that would increase punishment for gun crime and “get rid of the Saturday [N]ight [S]pecial. Because of its concealability, its cheapness, it’s the weapon of the street crime. I’d have restrictive licensing rather than permissive licensing. You would have to prove a need. All we have to prove (now) is that we’re not baddies.”16 Four months later, Shields took the position that inexpensive Saturday Night Specials were not the problem but rather all small handguns must be the target. He reasoned that criminals were using expensive but equally small pistols, so the new emphasis should be size—in his own words, “Concealability is the key.”17 When broader targets of opportunity appeared, HCI quickly abandoned its supposed restraint and returned to supporting outright handgun bans. It endorsed and defended a handgun ban in Washington, D.C.,18 which the Supreme Court struck down decades later.19 And it supported a similar ban in Chicago,20 which was likewise later struck down.21 Further, it lent considerable aid to an unsuccessful 1982 California initiative that would have banned handgun sales.22 Observant gun owners learned their lesson: even ostensibly moderate and centrist groups would support handgun bans whenever they became politically feasible and seek whatever measures they could to that end. Gun-control proponents’ only limitation was their focus on handguns rather than on rifles or shotguns.

By the early 1990s, though, gun-control proponents faced the simple and depressing fact that, at the national level, they had little to show for nearly two decades of work. Indeed, they appeared to have

16. Robert Benjamin, Handgun Opponent: “Morton Grove Law Could Hurt,” CHI. TRIB., Jan. 23, 1982, § 1, at 7.

17. Uphill Effort Reopens to Register Handguns, KAN. CITY TIMES, May 6, 1982, at A16.

18. Shields, supra note 13 (stating that HCI sided with a Washington, D.C. Court of Appeals decision to uphold the handgun ban); NCCH Deals Blow to NRA in D.C. Effort, 8 WASH. REP. 3, Jan.-Feb. 1977, at 1 (announcing that the NCCH helped reinstate D.C.’s handgun ban).

19. District of Columbia v. Heller, 554 U.S. 570 (2008).

20. National Rifle Association Fails to Pass Gun Decontrol Bill, 7 WASH. REP. 1, Jan.-Feb. 1982, at 5 (discussing the similarity between Chicago and D.C.’s handgun bans).

21. Chicago v. McDonald, 561 U.S. 3025 (2010).

22. Showdown in California, 8 WASH. REP. 3, Sept.-Oct. 1982, at 2.

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lost ground. Their sole victory of the 1980s involved requiring Glock, a gun manufacturer that makes handguns with polymer frames, to add barium to its polymer to make its firearms stand out on x-ray security scanners.23 And they lost further ground when pro-gun forces influenced major revisions of the Gun Control Act of 1968 by inserting numerous protections for firearms owners.24 These revisions effectively overruled no fewer than six Supreme Court cases and about one-third of the case law construing the Gun Control Act.25 Back in 1976, Shields predicted a national handgun ban in 7–10 years; but by 1990, 14 years later, there was not even national handgun registration. Handgun restriction became an organizational dead end.

Another gun-control-proponent group, the Violence Policy Center (VPC), suggested a new direction. Financed almost entirely by the nonprofit Joyce Foundation,26 the VPC was free to stake out more extreme positions than other gun-control-proponent organizations. Its research papers included calls for reducing the number of licensed firearms dealers; restricting gun shows; banning sales of “sniper rifles,” which in most cases were actually civilian target and hunting rifles with telescope sights; and portraying shooting ranges as toxic waste producers due to lead bullets.27 In the late 1980s and early 1990s, the VPC urged gun-control proponents to shift their emphasis from handguns to “assault rifles.”

It recognized that the public was no longer very concerned with handguns. Although the VPC noted that “handguns claim more than 20,000 lives a year,” there was a need to move on to a newer, more

23. Undetectable Firearms Act of 1988, Pub. L. No. 100-649, 102 Stat. 3816 (1988).

24. See Firearms Owners Protection Act, Pub. L No. 90-351, 82 Stat. 225 (1986) (changing many offenses from strict liability to a willful state of mind, restricting forfeitures and dealer license revocations, allowing recovery of attorneys’ fees in some cases, and protecting interstate travel with a firearm through jurisdictions with restrictive firearms laws).

25. See David T. Hardy, The Firearm Owners’ Protection Act: A Historical and Legal Perspective, 17 CUMB. L. REV. 585 (1986).

26. See 2011 Grants, JOYCE FOUND. 2011 ANNUAL REPORT, http://ar2011. joycefdn.org/grants/ (last visited July 28, 2014).

27. See, e.g., VIOLENCE POL’Y CENTER, POISONOUS PASTIME: THE HEALTH RISKS OF SHOOTING RANGES AND LEAD TO CHILDREN, FAMILIES AND THE ENVIORNMENT (2001), available at http://www.vpc.org/graphics/poison.pdf.

2014]GUN OWNERS, GUN LEGISLATION, & COMPROMISE 41 engaging focus.28 Assault weapons were the perfect target. “The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons.”29 Further, by focusing on assault-rifle restrictions, the VPC could garner police organizations’ support. “If police continue to call for assault-weapons restrictions, and the NRA continues to fight such measures, the result can only be a further tarnishing of the NRA’s image in the eyes of the public, the police, and NRA members.”30 It was a rather cynical approach but had strategic merit. The fact that rifles of all types were involved in about 300 homicides a year— half the number of homicides committed with bare hands and feet— was beside the point.31 The VPC wanted a target of opportunity, not necessarily a focus that would measurably impact crime.

The major gun-control organizations bought the idea, to the point of yet again changing their names—this time to replace handgun with gun. Thus Handgun Control, Inc. became the Brady Center to Prevent Gun Violence. The National Coalition to Ban Handguns became the Coalition To Stop Gun Violence. And new organizations followed suit as they emerged, such as Mayors Against Illegal Guns and Americans for Gun Safety.

The Brady Campaign’s “scorecard” for evaluating state firearms laws is another example that shows how gun-control-proponent groups began shifting their focus from handguns to firearms generally.32 A state gets a higher score for stronger gun-control laws, and that score is most often reduced when state laws are limited to handguns. For example, a law requiring background checks on

28. VIOLENCE POL’Y CENTER, ASSAULT WEAPONS AND ACCESSORIES IN AMERICA (1988), available at http://www.vpc.org/studies/awaconc.htm.

29. Id. 30. Id. 31. Crime in the United States 2012, Expanded Homicide Data Table 8, FBI, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/ offenses-known-to-law-enforcement/expanded-homicide/expanded_homicide_data_ table_8_murder_victims_by_weapon_2008-2012.xls (last visited July 28, 2014) (stating that there were 322 homicides by rifle and 678 homicides by personal weapon, including hands and feet).

32. 2013 State Scorecard: Why Gun Laws Matter, BRADY CAMPAIGN TO PREVENT GUN VIOLENCE 1, 3 (2013), available at http://bradycampaign.org/sites/ default/files/2013-scorecard.pdf.

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private firearm sales would win 11 points—reduced to 6 if it covers only select firearms.33 Requiring a centralized database on gun sales earns 6 points—cut to 2 if it only applies to handguns.34 And scores for firearm registration, prohibiting open carry, and imposing waiting periods are halved if the requirements are applied to only handguns.35 This change underscored a lesson gun owners learned years before. Their opponents would go for any target of opportunity (e.g., if handgun restrictions fail, try to restrict rifles) and use that as a foundation to take more in the future. Any “reasonable compromise” would simply be a first step in a long campaign to make firearm ownership as difficult, expensive, and legally risky as possible.

IV.

GUN OWNERS’ EXPERIENCE WITH EVER-EXPANDING LEGAL RESTRICTIONS

Gun owners also have a shared experience dealing with legal restrictions that start out modest but rapidly expand to impose considerable, and often utterly irrational, burdens. This experience can be exemplified in three states’ legislation: California, New Jersey, and New York.

A.

California

California began with limited legislation. A 1917 statute required licenses for concealed carry of arms and required handgun dealers to report sales to the police.36 First offenses were misdemeanors.37 A 1923 statute expressly recognized that carrying in a belt holster was not restricted, arranged for licensing of handgun dealers, and imposed a one-day waiting period for handgun sales.38 Possession, sale, and carrying of long arms were unrestricted. A one-day waiting period was meant to impede impulsive crimes of passion, but in 1955 the legislature increased it to three days, in 1965 to five days, and in 1975 to ten days.39 Open carry of a firearm was initially unrestricted, following the predominant Western view that a person carrying openly, where all

33.

34.

35.

36.

37.

38.

39.

Id. at 9.

Id. Id. at 10.

1915 Cal. Stat. 651, 652 (Supp. 1917).

Id. 1923 Cal. Stat. 664, 666, 668.

CAL. PENAL CODE § 27540(a) (Westlaw 2014).

2014]GUN OWNERS, GUN LEGISLATION, & COMPROMISE 43 including police could see it, was unlikely to be planning a crime.

Then in 1967, the Black Panthers demonstrated with rifles outside the State Capitol.40 The legislature responded by making open carrying of loaded guns a felony.41 And in 2011, open carrying of unloaded handguns was forbidden in incorporated areas.42 The mere sight of an empty handgun is apparently too much for some Californians to tolerate.

In 2001, dealers were forbidden to sell handguns that were not approved by the government. This approval depended on rigorous laboratory testing paid for by the gun manufacturer.43 The requirement supposedly ensured that the firearms were safe. But it had nothing to do with safety; the statute exempted guns being purchased by law-enforcement officers and state prosecutors.44 So it was simply one more burden and expense for private gun owners.

And in 2014, a requirement that handguns microstamp fired cartridge cases became effective, causing two of the three largest handgun manufacturers to leave the California market.45 Along the way, the state banned “assault weapons,” magazines holding more than ten rounds, and private gun sales that didn’t go through dealers.46 In 1999, the legislature enacted “one gun a month”47 for no discernible reason. “One gun a month” bills were meant to hinder interstate gun-running—but why would a gun runner pick the most tightly regulated state in the West as his source?

Today, the weapons regulation portion of the California Penal Code spans over 1,050 pages with annotations—a California attorney has published a 273-page book for the guidance of California gun

40. See ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA 244–45 (2011).

41. CAL. PENAL CODE § 25850(a)–(c) (Westlaw 2014).

42. CAL. PENAL CODE § 26350(a) (Westlaw 2014). Most populous California counties are incorporated. See CAL. STATE DATA CTR. DEMOGRAPHIC RESEARCH UNIT, HISTORICAL CENSUS POPULATIONS OF COUNTIES AND INCORPORATED CITIES IN CALIFORNIA, 1850–2010 (2013), available at http://www.dof.ca.gov/research/ demographic/state_census_data_center/historical_census_1850-2010/view.php.

43. CAL. PENAL CODE § 32000 (Westlaw 2014).

44. CAL. PENAL CODE § 32000(b)(4) (Westlaw 2014).

45. See Dave Workman, Gun Control Initiative Qualifies; “Revolt” Against Cal Microstamping, EXAMINER (Jan. 23, 2014) http://www.examiner.com/article/ gun-control-initiative-qualifies-revolt-against-cal-microstamping.

46. CAL. PENAL CODE §27545 (Westlaw 2014).

47. CAL. PENAL CODE § 27540(f) (Westlaw 2014).

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owners.48 Yet more and more gun control measures are still pending in the legislature.

B.

New Jersey

New Jersey requires a license to own guns plus a separate permit for each handgun.49 Carrying is generally forbidden,50 and magazines are limited to 15 rounds.51 Although most gun owners would not consider this a modest starting point, the legislature apparently thought these were deficient restriction. In 2013, the legislature passed 22 more gun restrictions.

Some examples include reducing magazine size to ten rounds, increasing the punishment for failing to report a stolen firearm, and requiring background checks for private firearm sales (even though the state already had a requirement that gun owners must secure a permit to own, which was issued after a background check).52 And although it was ultimately vetoed, the legislature passed a bill that would have confiscated .50-caliber rifles, none of which have been used or are likely to be used in a crime.53 Gun owners could hardly be surprised to hear three legislators with an embarrassing hot-mic problem after a gun-bill hearing, in which someone proclaimed, “We needed a bill that was going to confiscate, confiscate, confiscate.”54 C.

New York

For decades, New York has been considered to have the strictest gun laws in the country, including requiring pistol-possession

48. See C.D. MICHEL, CALIFORNIA GUN LAWS STATE AND FEDERAL FIREARM REGULATIONS (1st ed. 2012).

49. N.J. STAT. ANN. § 2C:58-3 (Westlaw 2014).

50. See N.J. ADMIN. CODE § 13:54-2.4 (2014) (placing an extremely heavy burden on applicants that wish to obtain a permit to carry a handgun).

51. N.J. STAT. ANN. §§ 2C:39-1, 3 (Westlaw 2014).

52. Robert Farago, BREAKING: New Jersey House Passes 22 Gun Control Bills, TRUTHABOUTGUNS.COM (Feb. 22, 2013), http://www.thetruthaboutguns. com/2013/02/robert-farago/breaking-new-jersey-house-passes-22-gun-controlbills/.

53. David Jones, New Jersey Governor Vetoes Proposed Ban on .50 Caliber Rifles, REUTERS (Aug. 17, 2013, 12:17 AM), http://www.reuters.com/article/ 2013/08/17/us-usa-guns-newjersey-idUSBRE97G01M20130817.

54. Darryl R. Isherwood, Senators Caught on Tape: “Confiscate, Confiscate, Confiscate,” POLITICKER NJ (May 10, 2013, 4:27 PM), http://www.politickemj. com/back_room/confiscate-confiscate-confiscate.

2014]GUN OWNERS, GUN LEGISLATION, & COMPROMISE 45 permits, issued in the sole discretion of police, with application fees as high as $340;55 carry permits, limited in some jurisdictions to government officials and celebrities; and a ten-round-magazine limit.56 In 2013, the New York Legislature reduced the allowed magazine capacity to seven rounds (existing ten-round magazines could be kept, but only if loaded with no more than seven rounds),57 required background checks to buy ammunition (at a charge of ten dollars per purchase), and greatly broadened its “assault-rifle” ban.58 Its Attorney General described this as a “modest first step.”59 More stringent still, New York City recently mailed about 500 notices to registered owners of such firearms, instructing, “Immediately surrender your [r]ifle and/or [s]hotgun to your local police precinct . . . .”60 V.

“REASONABLE” RESTRICTIONS BECOME EVER-GROWING RESTRICTIONS

Gun owners have, in short, learned to distrust calls for compromise or “reasonable” restrictions. Part of this distrust stems directly from the gun-control proponents’ avowed purposes and part from gun owners’ shared experience, in which their opponents use every successful restriction as a building block for the next restriction. For gun-control proponents, there is simply never enough.

Again, the Brady Campaign’s scorecard for gun restrictions is demonstrative. On a scale of 1–100, California (the highest-scoring state) got only 75, New Jersey only 68, and New York only 65.61 The organization obviously considers the most restrictive states in the nation to fall far short of its goals. To approach the Brady Campaign’s goals, a state must, for example, prohibit open carry of all firearms, bar guns from state parks, require a permit to purchase ammunition,

55. N.Y. PENAL LAW § 400.00 (McKinney 2013).

56. N.Y. PENAL LAW §§ 265.02(8), 265.36 (McKinney 2013).

57. N.Y. PENAL LAW § 265.02(8) (McKinney 2013).

58. See NYSAFE, http://www.governor.ny.gov/nysafeact/gun-reform (last visited July 28, 2014).

59. NY AG Calls Gun Efforts a Good First Step, NEWSLOOK (Apr. 11, 2013), http://www.newslook.com/videos/561311-ny-ag-calls-gun-efforts-a-good-firststep.

60. Edmund DeMarche, NYPD Cracks Down on Long Guns that Hold More than Five Rounds, FOX NEWS (Dec. 5, 2013), http://www.foxnews.com/us/ 2013/12/05/nypd-targets-owners- multi-clip-shotguns-rifles/.

61. BRADY CAMPAIGN TO PREVENT GUN VIOLENCE, supra note 32, at 8.

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and require technology that allows only the owner or other authorized user to fire the gun—a technology that does not exist.62 When this is the obvious goal of gun-control proponents’ “compromise,” it is not surprising that gun owners refuse to accept even reasonable restrictions.

VI.

GUN CONTROL AS A CULTURE WAR

Over a century ago, Otto von Bismarck termed his conflict with the Roman Catholic Church a Kulturkampf, or Culture War.63 The term is aptly applied here.64 Nearly 40 years ago, Barry Bruce-Briggs perceptively wrote: [U]nderlying the gun control struggle is a fundamental division in our nation. The intensity of passion on this issue suggests to me that we are experiencing a sort of low-grade war going on between two alternative views of what America is and ought to be. On the one side there are those who take bourgeois Europe as a model of a civilized society: a society just, equitable, and democratic; but well ordered, with the lines of responsibility and authority clearly drawn, and with decisions made rationally and correctly by intelligent men for the entire nation. To such people, hunting is atavistic, personal violence is shameful, and uncontrolled gun ownership is a blot upon civilization.

On the other side is a group of people who do not tend to be especially articulate or literate, and whose worldview is rarely expressed in print. Their model is that of the independent frontiersman who takes care of himself and his family with no interference from the state. They are “conservative” in the sense that they cling to American’s unique premodern tradition – a nonfeudal society with a sort of medieval liberty writ large for every man . . .

62. Id. at 11.

63. KIMBERLY COWELL-MEYERS, RELIGION AND POLITICS IN THE NINETEENTH CENTURY: THE PARTY FAITHFUL IN IRELAND AND GERMANY 45–46 (2002) (noting that Bismarck was not particularly religious; he just found the issue politically useful because it divided and distracted Germany’s parliament, leaving it unable to interfere with his ministry).

64. See LEE NISBET, THE GUN CONTROL DEBATE 23 (2d ed. 2001) (showing that scholars already view the gun-control issue as a Kulturkampf).

2014]GUN OWNERS, GUN LEGISLATION, & COMPROMISE 47 They ask, because they do not understand the other side, “Why do these people want to disarm us?” They consider themselves no threat to anyone; they are not criminals, not revolutionaries. But slowly, as they become politicized, they find an analysis that fits the phenomenon they experience: Someone fears their having guns, someone is afraid of their defending their families, property, and liberty.65 The evidence of the culture war is sometimes obvious. For example, one generally hostile appraisal of the gun culture sees it as a “pariah group,” “paternal and anachronistic,” comparable to “cockfighters and Neoconfederates.”66 Its members “venerate more or less uncritically elders of the past,” “come from patriarchal families,” and may find guns “a way for an impotent, self-doubting individual to reaffirm his masculinity.”67 This is how one who sees himself as elite might describe his social and intellectual inferiors: antiquated, incapable of critical thinking, and given to (well-deserved) selfdoubt.68 Conversely, during the 2004 Presidential campaign, one National Rifle Association (NRA) political ad featured a be-ribboned French poodle, symbolizing John Kerry, captioned, “That Dog Won’t Hunt.”69 It reflected how a member of the “bedrock” would perceive a member of the elite—effete, useless, and un-American.70 The two sides’ internal functions illustrate this conflict. In 2013, the Brady Campaign held a gala at Cipriani, an upscale venue in the heart of Manhattan, and tickets started at $1,000 for an individual— for $100,000, a corporation could get a prominent table featuring

65. Barry Bruce-Briggs, The Great American Gun War, 45 PUB. INT. 37 (1976), reprinted in THE GUN CONTROL DEBATE 55, supra note 64, at 73–74 (predicting that gun owners would become politicized).

66. FRANCIS FREDERICK HAWLEY, Gun Culture, in 2 GUNS IN AMERICAN SOCIETY: AN ENCYCLOPEDIA OF HISTORY, POLITICS, CULTURE AND THE LAW 341, 343 (Gregg Lee Carter ed., 2d ed. 2012).

67. Id. at 343–45.

68. See id. at 343–46.

69. NRA Ad Portrays Kerry as Poodle, BOS. GLOBE, Sept. 30, 2004, http://www.boston.com/news/politics/president/articles/2004/09/30/nra_ad_portray s_kerry_as_poodle/.

70. See HAWLEY, supra note 66, at 343–46.

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media acknowledgement.71 Meanwhile, the NRA held its annual meeting in the George R. Brown Convention Center in Houston, which was free to members and servicemen, drawing 86,000 attendees.72 Another example stems from the way the two sides finance their operations. The NRA draws 69% of its funding from its members paying their $35 annual dues.73 The Brady Campaign, in contrast, draws 97% from grants and contributions.74 The VPC is 100% financed by grants,75 the majority coming from the Joyce Foundation, which in 2011 funded it with half a million dollars while giving $650,000 to Mayors Against Illegal Guns.76 One side draws its resources from its members, the other from foundations.

Gun-control proponents’ tools likewise reflect an elite’s disdain for the masses. One of their most important allies is the national mass media, which tends to see itself as a subclass of the elite.

Professor Brian Anse Patrick attempted to quantify media treatment of the NRA and its chief opponent, the Brady Campaign.

He began by devising objective standards for measuring bias. For example, are spokespeople for an organization quoted rather than paraphrased, and if quoted, at what length?77 Is the spokesman

71. 2013 Gala Invitation, BRADY CENTER TO PREVENT GUN VIOLENCE, http://www.bradycampaign.org/sites/default/files/Brady-Evite.pdf (last visited July 28, 2014).

72. Jason Howerton, Guess How Many People Attended This Year’s Annual NRA Convention (Hint: It’s a New Record), BLAZE (May 6, 2013, 6:15 PM), http://www.theblaze.com/stories/2013/05/06/annual-nra-conventionshattersprevious-attendance-record/.

73. National Rifle Association Of America in Fairfax, Virginia (VA), FAQS.ORG, http://www.faqs.org/tax-exempt/VA/National-Rifle-Association-OfAmerica.html#b (last visited July 28, 2014); Official NRA Membership Application, NRAMEMBERSHIP, https://membership.nrahq.org/forms/signup.asp (last visited July 28, 2014).

74. Brady Campaign To Prevent Gun Violence in Washington, District of Columbia (DC), FAQS.ORG, http://www.faqs.org/tax-exempt/DC/Brady-CampaighTo-Prevent-Gun-Violence.html#b (last visited July 28, 2014).

75. See Violence Policy Center in Washington, District of Columbia, NONPROFITFACTS.COM, http://www.nonprofitfacts.com/DC/Violency-PolicyCenter.html (last visited July 28, 2014).

76. 2011 Grants, supra note 26.

77. BRIAN ANSE PATRICK, THE NATIONAL RIFLE ASSOCIATION AND THE MEDIA: THE MOTIVATING FORCE OF NEGATIVE COVERAGE 67–70(Arktos Media Ltd., 2d ed. 2013).

2014]GUN OWNERS, GUN LEGISLATION, & COMPROMISE 49 correctly identified (e.g., chairman vs. chief lobbyist)?78 Is the headline based on a pun or otherwise derisive?79 And how often do articles claim that an organization is growing versus dwindling? 80 He chose five interest groups and analyzed their treatment in five elite newspapers. He found that, on scales where higher numbers meant more favorable coverage, the NRA not only always scored lowest, but that it generally came in at one-third the score of its major opponent.81 So on the whole, NRA is systematically marginalized in the elite newspapers that set the national standards.

As the comparisons show, it is an object of discourse rather than a participant; it is shown in opposition to important cultural values such as Democracy and Science; it is derogatorily labeled and mocked; its representatives are not accorded the same level of titular dignity as the representatives of other organizations; and when its representatives or positions are quoted, they tend to be qualified as tentative.82 Importantly, Professor Patrick also documented the pushback in this culture war: NRA membership rose and fell in direct proportion to negative media coverage.83 More media attacks led more people to join the organization under attack. So the media became a setting for offensive and counter-offensive moves in the firearms culture war.

VII.

CONCLUSION

Gun owners have been seen as stubborn and unyielding, even when the proposed gun-control measures seem to have little effect on their interests, or are essentially symbolic. But this apparent stubbornness is actually reasonable once their shared experiences are understood. For nearly four decades, anything that gun owners yielded in a supposed compromise was used as a bridgehead to attempt to take more. They have heard opponents describe their purpose to eliminate handgun ownership, with any lesser measures

78.

79.

80.

81.

82.

83.

Id. at 78–79.

Id. at 86–89.

Id. at 100–03.

Id. at 68.

Id. at 103.

Id. at 149.

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simply a means to that end. And they have seen their issue evolve into a culture war between the elite and the non-elite, or the effete and bedrock citizens. Under these conditions, opposition even to modest restrictions is both logical and natural.

THOMAS M. COOLEY LAW REVIEW SPECIAL PATRONS Frederick M. Baker, Jr. Mike Korn Jon L. Sandler James Vlasic

Duane A. Carr Russell J. Russler Daniel M. Stefaniuk David C. Whipple

LAW FIRM BENEFACTORS Bailey, Smith & Bailey, P.C. Honorable Avern Cohn E. John Daugs Krause, Moorhead & Draisen, P.A. Strother Law Firm, PLC Veschio Law Group, LLC 2014 DISTINGUISHED BRIEF REVIEW PANEL Professor Jamie Baker Professor Eileen Kavanagh Professor Otto Stockmeyer, Jr. Dean Charles Toy Professor Ann Wing Professor John Zevalking

Professor David Finnegan Professor Toree Randall Professor David Tarrien Dean Joan Vestrand Professor Kara Zech Thelen