“What’s Wrong With Gun Registration?”: Impeded By Gun Proponents Stirred Up And Financed By A Cynical Commercial Gun Lobby
I live in Maryland, whose nickname is the “Free State,” and I am no less free because of the laws in my state require registration of handguns and prohibit the more dangerous varieties of firearms, magazines and ammunition. In fact, I feel more free because I have less fear of being blown away, freedom and all, than I would have if guns were less regulated.
Very few people have serious objections to registration of activities in many other contexts; we register our cars, dogs, bicycles, burglar alarms, births, deaths, marriages and our kids into schools every day. Even with no military draft, we have draft registration. Many people have totally given up on privacy in giving any information to businesses. But guns are treated differently. Why? One reason is that we are inundated by demands that we do so from loud gun proponents stirred up and financed by a cynical commercial gun lobby. Another is we all have at least a little bit of rebellion in us and we can dream of throwing off the restraints of civilization and of running wild.
But we should not forget that this dream is a dream of going back to the state of nature and, as every one knows, the state of nature is where life is “nasty, brutish and short.” It certainly was short for the twenty children and six teachers who died at Sandy Hook Elementary School and the thirty thousand or so who died from gun incidents last year.
The slogan or talking point “registration always leads to confiscation” has been taken up and repeated so many times that it seems impossible to trace its origin. Of course, law enforcement agencies, whether tyrannical or benign, have seized illegal items as part of their duties throughout history; but the picture being painted by gun zealots is of “jack-booted thugs” from the federal government taking the tools of liberty from true patriots. An example of this is currently happening in New York State where the SAFE Act requires registration of assault weapons. Many owners are being reported as unwilling to comply.
Seizure of weapons that are illegal, held by prohibited persons or not brought into compliance with licensing requirements is being presented as a sinister conspiracy rather than normal law enforcement. A U.S. congressman, Steve Stockman (R-TX), has just introduced a bill to cut off federal funds to states engaging in “registration” or “confiscation” of guns.
The NRA expresses fear of government tracking in amazing detail. For example, it filed a Friend of the Court brief against National Security Administration data collection on the grounds that such data could identify firearm ownership, siding with the ACLU.
Lots of people have frustrations about the current state of society and it’s easy to project these frustrations onto the government, but we don’t live in a tyranny and President Obama isn’t a totalitarian dictator. We have an amazing array of freedoms which would be severely put in jeopardy if we did have a revolution. The existence or even the perception of armed angry people hiding their identity among us and waiting to spring forth diminishes our ability to find happy, productive and unmolested lives. In our society, the vast majority of our citizens stand for enforcement of the law as it is adopted by our representatives in legislatures or Congress, and even the NRA calls for the enforcement of laws while they work to make that enforcement impossible.
So those of us who don’t live our lives in paranoid fear and can sleep without having a gun under our beds can ask why we would want to insist that guns be registered with the government. The most important reason is to keep guns out of dangerous hands. Our existing system for that purpose is to background check some sales of guns, but there is an immense loophole for private sales in most states. Anyone with an interest in getting a gun knows where to buy one without a check being performed. The background check system also is dependent on identifying from the entire population, not just those wanting to acquire guns, those who are prohibited and keeping that list in databases. A registration and permit system would apply to all sales and require determining the suitability of only those wanting to buy a gun at the current moment.
Another limitation of background checking is that it assumes that a person passing the check will remain a legal gun possessor indefinitely. Many of the situations that are denounced as confiscation consist of a government moving to seize guns already in the hands of people who are later convicted of crimes that make their continued gun possession illegal. Getting these guns out of the hands of their now illegal owners is critical to protecting the public but is slowed and blocked by resistance from legislatures and pro-gun forces.
A gun registration system can also serve the goals of preventing legal owners from letting their guns get into illegal hands in secondary ways. It can include a requirement that gun transfers, losses and thefts be reported. This will help greatly in investigation of illegal guns seized on the street and of incidents of gun violence.
If firearm registration remains politically infeasible, there is another way to accomplish most of these goals. That is to have insurance, starting at manufacture and requiring continuance of insurer responsibility through all transfers unless replaced by new insurance. Readers who know my writing know I spend most of my time advocating such insurance in the face of massive resistance from both the gun and the insurance industry.
By: Tom Harvey, The Huffington Post Blog, April 22, 2014
“An Industry Stands In The Way”: Today’s NRA, A Gun Industry Trade Association Masquerading As A Shooting Sports Foundation
When the National Rifle Association holds its annual meeting next week in Indianapolis, it is inevitable that its leaders will demonize Michael Bloomberg and decry his $50 million investment in support of gun violence prevention. Yet throughout the convention there will be signs of the N.R.A.’s own multimillion-dollar donors: America’s gun industry. And that’s because today’s N.R.A. is, in reality, nothing more than a gun industry trade association masquerading as a shooting sports foundation. The organization’s agenda is increasingly focused on one goal: selling more guns.
Since 2005, as detailed in the Violence Policy Center’s 2013 study “Blood Money II: How Gun Industry Dollars Fund the NRA,” contributions from gun industry “corporate partners” to the N.R.A. have reached between $19.3 million and $60.2 million (the range is due to the giving levels defined within the N.R.A. donor program).
One of the N.R.A.’s corporate partners is Freedom Group, now rebranded as Remington Outdoor Company, manufacturer of the Bushmaster assault rifle used in the Sandy Hook Elementary School shooting. Another is Smith & Wesson, manufacturer of the semiautomatic assault rifle used in the July 2012 mass shooting at an Aurora, Colo., movie theater and the pistol used in the recent Fort Hood shooting.
Just last month, during a visit to the company’s headquarters, Wayne LaPierre, the N.R.A. executive vice president, was presented with a $600,000 check from Smith & Wesson’s chief executive, James Debney, who, in a company press release extolling the gift and lauding the N.R.A., stated: “Through its various programs, pro-gun reform legislation, and grass-roots efforts, the existence of the N.R.A. is crucial to the preservation of the shooting sports and to the entire firearms industry.”
The N.R.A. relies on these “corporate partners” for financial and ideological support. The victims of this lethal partnership are the businesses and institutions where shootings take place almost routinely — workplaces, shopping malls, theaters, schools and universities. Instead of, for the most part, remaining on the sidelines, these commercial and institutional entities should take a stand on preventing gun violence.
By: Josh Sugarman, Executive Director, Violence Policy Center; The New York Times, April 17, 2014
“When Serving In The Militia”: Justice Stevens, The Five Extra Words That Can Fix The Second Amendment
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.
The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.
The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.
Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters’ elected representatives, not by federal judges.
In my dissent in the McDonald case, I pointed out that the court’s decision was unique in the extent to which the court had exacted a heavy toll “in terms of state sovereignty. . . . Even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.”
“Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use. . . . The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not.”
In response to the massacre of grammar-school students at Sandy Hook Elementary School, some legislators have advocated stringent controls on the sale of assault weapons and more complete background checks on purchasers of firearms. It is important to note that nothing in either the Heller or the McDonald opinion poses any obstacle to the adoption of such preventive measures.
First, the court did not overrule Miller. Instead, it “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” On the preceding page of its opinion, the court made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes such as self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the “common use” requirement.
Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.
A second virtue of the opinion in Heller is that Justice Antonin Scalia went out of his way to limit the court’s holding not only to a subset of weapons that might be used for self-defense but also to a subset of conduct that is protected. The specific holding of the case covers only the possession of handguns in the home for purposes of self-defense, while a later part of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, or on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.
Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.
There is an intriguing similarity between the court’s sovereign immunity jurisprudence, which began with a misinterpretation of the 11th Amendment, and its more recent misinterpretation of the Second Amendment. The procedural amendment limiting federal courts’ jurisdiction over private actions against states eventually blossomed into a substantive rule that treats the common-law doctrine of sovereign immunity as though it were part of the Constitution itself. Of course, in England common-law rules fashioned by judges may always be repealed or amended by Parliament. And when the United States became an independent nation, Congress and every state legislature had the power to accept, to reject or to modify common-law rules that prevailed prior to 1776, except, of course, any rule that might have been included in the Constitution.
The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.
As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.
It is true, of course, that the public’s reaction to the massacre of schoolchildren, such as the Newtown killings, and the 2013 murder of government employees at the Navy Yard in Washington, may also introduce a strong emotional element into the debate. That aspect of the debate is, however, based entirely on facts rather than fiction. The law should encourage intelligent discussion of possible remedies for what every American can recognize as an ongoing national tragedy.
By: John Paul Stevens, Associate Justice of The Supreme Court from 1975 to 2010. This essay is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.”; The Washington Post, April 11, 2014
“It’s A Whole Different Issue”: John Boehner, Willfull Ignorance Or Willful Lying?
The day after this week’s mass shooting at Fort Hood, Army Secretary John McHugh said the gunman lived off post and was therefore not required to register his weapon with the military.
McHugh told senators yesterday, “We try to do everything we can to encourage soldiers to register their personal weapons, even when they live off post. We are not legally able to compel them to register weapons when they reside off post.”
Soon after, during House Speaker John Boehner’s (R-Ohio) press conference, a reporter noted McHugh’s comments and asked the House leader whether this is an issue Congress should address. Boehner replied:
“Well, there’s no question that those with mental health issues should be prevented from owning weapons or being able to purchase weapons. In the so-called ‘doc fix’ that passed here, there was funding for a pilot project dealing with mental health issues and weapons from both the Senate side and the House side. There are two programs that are being funded in there. The bill went to the president yesterday. This issue we need to continue to look at to find a way to keep weapons out of the hands of people who should not have them.”
The “doc fix” bill related to Medicare reimbursement rates for physicians, but it’s always a pretty big bill with plenty of unrelated provisions. This year, there was quite a bit of controversy surrounding how the bill passed – House GOP leaders played a fast one on their own members and conservatives were right to be annoyed – but I never heard a word about funding for a pilot project dealing with mental health issues and firearms.
And that’s surprising. Usually, any federal measure related in any way to gun ownership is the subject of considerable scrutiny. But there was the House Speaker yesterday, assuring the public in the wake of another mass shooting that lawmakers just acted on a policy related to gun violence and mental health.
It’s enough to make one wonder: does the provision Boehner referenced actually exist?
Roll Call reports this morning that according to the lawmaker who wrote the measure, no, it doesn’t.
Speaker John A. Boehner Thursday morning said that Congress had recently passed a provision to address whether people with mental health issues have access to weapons, but the measure’s Republican author said his bill actually does nothing of the sort.
Rep. Tim Murphy, R-Pa., told CQ-Roll Call that despite Boehner’s assertion, his measure to incentivize outpatient treatment for mental health issues has nothing to do with keeping guns out of the hands of the severely mentally ill.
“Not our bill, no. It’s a whole different issue,” Murphy told Roll Call. “I think he confused that. When he said that it dealt with it, I think he confused that.”
I checked the text of the legislation itself and it includes no references to gun, weapons, or firearms.
Murphy went on to say, “What this provision that I had in there allows in states is an outpatient treatment for patients who have a risk of past incarceration or past multiple hospitalizations where they were a safety risk, to work to say, ‘We need to get you back in treatment, get your life back together.’ That does not necessarily preclude or affect anything about a person’s ability to own a gun, unless they also have a history of being put in against their will.”
When Boehner says Congress just approved a project “dealing with mental health issues and weapons,” he appears to be wrong.
By: Steve Benen, The Maddow Blog, April 3, 2014
“Are Guns A Public Health Issue?”: Let Us Count The Ways…
Is calling guns a public health issue a political statement? That’s become the underlying issue in the nomination of the White House’s pick for surgeon general, Vivek Murthy. In 2012, Murthy sent out a tweet: “Tired of politicians playing politics w/ guns, putting lives at risk b/c they’re scared of NRA. Guns are a health care issue.” The NRA got Senators to hurl the words back at him during a confirmation hearing, and seems to have convinced not just Republicans but some Democrats to vote against him. Now nobody is talking about bringing his nomination to the floor.
Let’s leave aside the issue of whether a Tweet should be the grounds for an opposition campaign, and of whether Murthy, best known for running an advocacy organization to support Obamacare’s launch, is the most qualified person for the job. If the question at hand is whether it’s partisan to believe that gun violence should be under the purview of the nation’s top doctor, it seems the answer is no. As Lucia Graves at National Journal chronicled last week, Ronald Reagan and George H.W. Bush’s surgeon generals, C. Everett Koop and Louis W. Sullivan, have professed the same view as Murthy without ruffling feathers. “Promoting reasonable gun policies does not make [public health professionals] ‘antigun’ any more than the Insurance Institute for Highway Safety is ‘anticar,’” wrote David Hemenway of the Harvard School of Public Health in his 2004 book Private Guns, Public Health.
Gun violence impacts health in all kinds of ways. There are the more obvious ones, like death and injury. As Olga Khazan pointed out at The Atlantic, suicide rates are higher in states where gun ownership is more common. In 2010, 19,392 people took their own lives with guns, while “justifiable homicides”—self-defense shootings that may have saved a life—numbered only 230. Over two-thirds of homicides and over half of successful suicides involve the use of a gun, and accidental gun deaths average about two a day. The U.S. spends $2 billion a year on medical care for victims of gun injuries; one out of three people hospitalized after shootings is uninsured, according to The Huffington Post.
Then there are the less obvious health effects of gun violence: Lead in the ground from ammunition. Loss of hearing from gunshots. Widespread PTSD that effects everyone from shooters, to victims, to bystanders. “Gun violence traumatizes whole communities,” Hemenway told me. This creates a cycle: “People with PTSD in inner cities often don’t have good access to mental health care, and it makes them more likely to be aggressive.”
Public health experts have a list of possible solutions that fall outside the most fractious debates over firearms. Stephen Teret, a public health expert at Johns Hopkins University, has pushed for the engineering of “smart guns,” which could only be fired by their owners: No more weapons finding their way into the black market, or becoming deadly playthings in the hands of children. (The NRA has fought the new technology.) Teret’s idea would address both intentional and accidental gun hazards, but there are lots of ways to approach the latter—from mandated child safety locks, to features that would make it more obvious if a weapon was loaded.
Hemenway also suggested changing the culture around some aspects of gun use, as a sustained campaign did for drunk driving in the 20th century. “One of the social norms should be that it’s your responsibility, if you’re a gun owner, to make sure your gun is not stolen,” he said.
The power of the surgeon general lies mostly in the ability to shape public conversation, and to do so he or she needs to maintain a high degree of trust, on both ends of the political spectrum. But sometimes advocating for public health means wading into controversial issues, like AIDS or smoking, because people’s lives are at stake. That means a surgeon general must be ready and willing to speak out on all kinds of hazards, even ones with powerful constituencies behind them. Those can include carcinogens from cigarettes, poisons from pollution, and, yes, bullets from guns.
By: Nora Caplan-Bricker, The New Republic, April 3, 2014
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