If
1968 was the year of the assassination, with both Robert Kennedy and Martin
Luther King, Jr. falling victim to deranged assailants,
then 1981 was the year of the failed assassination. In March of that year, newly elected
President Ronald Reagan was shot by John Hinckley, Jr., but survived after he
was quickly rushed to a hospital. A mere
six weeks later, Pope John Paul II was shot four times while in Vatican City by
Mehmet Ali Ağca. Pope John Paul,
however, also managed to survive this attempt.
Despite the failure of these two assassinations, a wave of fear spread across
the United States that gun violence would spill into the everyday lives of
regular citizens. Anti-gun sentiment
reached a fever pitch, particularly in Chicago where the murder rate stood its
highest point in years. Mayor Jane Byrne
proposed a ban on the possession of handguns, giving citizens who obtained a
license before the ban grandfather-clause immunity. The gun control law passed along with several
similar laws across the nation. It
seemed as though the gun control question was settled until, in 2007, a lawsuit
reached the Supreme Court and once more opened the Pandora’s box of gun control
laws.
Dick Heller, a security guard in
Washington, D.C., which employed a similar ban as Chicago, sued the city
claiming that the restrictive gun control law violated his Second Amendment
rights. In the ensuing Supreme Court
case, known as District of Columbia v.
Heller (2008), the justices ruled in a 5-4 decision that the law violated
Heller’s rights, loosening the Court’s interpretation of the Second Amendment
from one of providing for a state militia to one of providing for personal
self-defense in the home. Despite the
victory for the pro-gun supporters, they faced a momentary setback. Since Washington, D.C. is a federal district,
the ruling in Heller’s case did not apply to the states.
Pro-gun organizations sought individuals
in Chicago to combat the 1982 law and found four, the most notable being Otis
McDonald. McDonald and the others were
represented by Alan Gura, who had argued Heller’s case in front of the Supreme
Court. Gura sought to convince the Court
to expand protection of Second Amendment rights by incorporating gun rights
into the Fourteenth Amendment, making the right to bear arms protected under
the states as well as the federal government.
After hearing oral arguments and
deliberating on the case, known as McDonald
v. City of Chicago (2010), the Supreme Court decided, in a 5-4 decision
along ideological lines, that the Chicago handgun ban violated McDonald’s Second
Amendment rights. The Court used the Fourteenth
Amendment to compel states to respect the right to bear arms among
citizens. Justice Alito, joined by
Justices Roberts, Scalia, and Kennedy, explained in his majority opinion that
throughout the twentieth century the Supreme Court “began to hold that the due process
clause [of the Fourteenth Amendment] fully incorporates particular rights
contained in the first eight Amendments.”
Alito went on to explain how the Court’s decision in Heller cemented the fact that the right
to self-defense “is a basic right” and the “central component of the Second Amendment.”
The due process clause of the Fourteenth
Amendment ensures that the states cannot “deprive any person of life, liberty,
or property, without due process of the law.”
Throughout the twentieth century the Supreme Court found nearly the
entire Bill of Rights incorporated under the due process clause; the First, Fourth,
Sixth, and Eighth all became incorporated in their entirety. Since McDonald
applied to a state, whereas Heller
affected a federal district, Alito and his plurality used the case to
incorporate the Second Amendment as well.
Alito had a plurality instead of a
majority because, while the case was decided 5-4, Justice Thomas disagreed with
Alito’s reasoning and used a different method to come to the decision. In his concurring opinion, Thomas employed
the privileges or immunities clause of the Fourteenth Amendment to strike down
the law. This clause protects citizens’
rights from the states by providing that “[n]o State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United
States.” Thomas interpreted “privileges”
and “immunities” as being synonymous with “rights,” expounding that the
Founders, when outlining the Bill of Rights, did not view the enumerated
freedoms as “new entitlements” but as inalienable rights of all people. Because of this reasoning, states cannot
abridge the guaranteed rights in the Bill of Rights, as that would entail the
state government violating the prerogative of the federal government.
Justice Stevens’ dissenting opinion questioned
whether or not the Constitution can compel states to allow individuals to
possess a handgun in the realm of the home.
He sets out to find if the right to possess a firearm is an aspect of
what the Fourteenth Amendment deems as “liberty.” Stevens used a multitude of reasons in his
explanation of why firearm possession does not meet the standard of liberty;
namely, that while “[g]uns may be useful for self-defense,” they also have the
capacity to “facilitate death” and “destabilize ordered liberty.” Additionally,
the experience of other successful and advanced democracies, primarily in
Europe, which have banned gun possession illustrates that ordered liberty does
not require citizens to have the ability to own weapons.
Another dissenting opinion was
written by Justice Breyer, which Justices Ginsburg and Sotomayor joined. Breyer, in contrast to Stevens’ inquiry
concerning the validity of Alito’s labeling of firearm possession as “liberty,”
sought to establish whether or not the right to bear arms for self-defense is
fundamental. Searching through the
“text, history, [and] underlying rationale” of the Second Amendment, Breyer
could not find anything to defend the classification of the right to possess
and use arms for self-defense as fundamental.
He also feared the incorporation of the right would “alter…the
constitutional relationship between the States and the Federal Government” by
removing an issue from the purview of the states and instead assigning it to
the federal government.
Many pro-gun control groups, in the
aftermath of McDonald, feared that
the precedent established by Heller and
McDonald would be strong enough to
overturn nearly any gun control law; however, that does not seem to be
occurring. In a case decided in 2011 by
the Court of Appeals for the Third Circuit, the judges upheld a law that made
possession of a firearm lacking serial numbers illegal. The reasoning behind the Third Circuit’s
opinion was that the law served “the government’s compelling interest” for law
enforcement to have the capacity to track weapons back to their owner. Additionally, the Heller and McDonald
decisions only concerned possession of a firearm for self-defense within the
home, opening up the possibility of states limiting the ability to carry a gun
in the public realm. While Heller and McDonald ensured that the Second Amendment is alive and well, it
surely has not caused the push for gun control to cease.
Gary
Kleck, Marc Gertz, and Jason Bratton, all criminologists writing an article for
the Journal of Criminal Justice, question whether opinions on gun control are
solely formed by whether or not one believes gun possession reduces crime or
not. They cite a national poll conducted
in 1990 which found that, while the majority of Americans favored gun control
laws, fifty-five percent of those surveyed simultaneously believed that crime would
not cause a decrease in crime.
Accounting for only who actually support gun control, the figure drops to
forty-six percent who believe that crime would not increase or decrease. Even more perplexing, a survey conducted
among gun control supporters in 2007 found that sixty-three percent would
continue to support restrictions on firearms even if these restrictions “would
increase violent crime.” When the same
survey asked citizens who opposed gun control whether or not they would
continue to oppose the position if it was proven to reduce violent crime, they
responded at a very similar rate as those for restrictions, holding firm to
their own beliefs.
Despite the contradictions pointed
out by Kleck, Gertz, and Bratton, the pro-control movement believes that
increasing the amount of guns on the streets will cause the murder and crime
rates to increase dramatically, as it allows for criminals to obtain weapons more
easy. The anti-control lobby refutes
this claim, instead arguing that increased gun possession makes people safer,
as criminals will be less likely to attack individuals whom they fear carry a
weapon of his or her own. A study on whether
easing access to firearms in three states impacted homicide rates, released in
1995, focused on Florida, Mississippi and Oregon, all of which had adopted a “shall
issue” law during the period from 1987 to 1990. A “shall issue” law requires the state to
issue a conceal-carry license to any applicant who meets determined criteria,
as opposed to the more restrictive “may issue” law under which the state grants
licenses only to citizens who can prove a compelling need to carry a firearm.
After
the states passed the more permissive shall issue laws, they saw gun
registration skyrocket. Before the
passage, approximately seventeen thousand people in Florida held permits for
firearms. A mere six years after the shall
issue law passed, the permit roll increased to over one hundred-forty thousand,
an increase of over eight hundred percent.
While Mississippi only saw its registration rolls increase by just over five
thousand, Oregon experienced the most dramatic increase of the three
states. Just a few months prior to the
passage, Oregon played had only five hundred licensed carriers; after, however,
the number reached sixteen thousand, an increase of an astounding three
thousand two hundred percent. McDowall,
Loftin and Wiersema compiled the average murder rate for the largest
metropolitan areas in each state (Miami, Jacksonville and Tampa in Florida;
Jackson in Mississippi; and Portland in Oregon) for the decade leading to the
enactment of shall issue laws and the five years following it, in order to
compare the effects of the laws on homicide, particularly firearm associated
murder. The results of this study skew
in favor of the pro-control lobby, as the firearm homicide rate increased in
every area except Portland. While Portland
actually saw its firearm homicide rate drop twelve percent and Miami’s only
increased by a negligible three percent, the other three cities saw their rates
increase by over twenty-two percent, including Jacksonville, where the rate
jumped seventy-five percent after the conceal-carry restrictions were loosened. While this is only one study, it is clear to
see why the pro-control group turned pessimistic after the Heller and McDonald
decisions struck down restrictive gun laws.
Another
gun control battleground emerging out of McDonald
and events in the past half-decade is the question of concealed firearms on
college campuses. The most notable of
these events was the Virginia Tech massacre, on April 16, 2007, when Seung-Hui
Cho shot and killed thirty-two students and facility members while injuring
twenty-three more, before ultimately killing himself. The tragedy, three years prior to the McDonald decision, sparked two intense
debates: one, how did Cho, who had a history
of anxiety disorders, a category of “prohibited persons” under the Gun Control
Act of 1968, obtain a firearm and two, should universities allow students and
faculty to carry firearms to protect themselves in the event that they find
themselves in a similar situation? With respect
to the first query, interagency non-communication played a prominent role, as
various agencies did not provide the National Instant Criminal Background Check
System (NICS) with the information it required to ensure that prohibited
persons could not purchase firearms. The
government seemly resolved this issue with the passage of the NICS Improvement
Amendments Act of 2007, which strengthened the requirement of information
sharing as well as creating a system to punish states which do not report an
adequate number of records for the NICS database by withholding a predetermined
percentage of that state’s federal money allocation.
McDonald
influences the second question much more than the first. The rationale is that since McDonald incorporates the Second
Amendment to the states through the Fourteenth Amendment, the states cannot
restrict the rights of citizens to carry firearms in state-owned property,
namely public universities. In an
argument which mirrors that of the general gun control debate, Students for
Concealed Carry on Campus (SCCC) states that allowing concealed guns on college
grounds would deter potentially dangerous individuals from launching an attack
like the one Cho carried out, or at the very least enable legally armed
students or facility members to intervene, possibly saving lives. Leaving aside an apparent desire to return to
a Lockean state of nature marked by universal vigilantism, the Brady Campaign
to Prevent Gun Violence (BCPGV) offers a counterpoint to SNCC’s position. The organization explains how college
students frequently engage in “high-risk behaviors” such as excessive drinking
and drug use, as well as their propensity to periods of high stress and
depression. These risk factors,
alongside the legal ability to carry guns on campuses, increase the odds of
drug-induced gun violence, suicide, and crimes of passion. Furthering their point, BCPGV explains how
the fact that “trained police officers…hit their intended targets less than [twenty
percent] of the time,” means that young college students in a high-stress
scenario, which school shootings undoubtedly are, would likely cause more
casualties as opposed to fewer.
While it seems as though BCPGV’s
position carries more weight than SNCC’s, a liberal interpretation of McDonald may compel public universities
to allow firearms on campus. The Supreme
Court’s decision in the McDonald case
plays a large part in this possible inevitability, as does the Civil Rights Act
of 1871. Section 1983 of the Civil
Rights Act, arguably the most important provision of the law, states that any
person who deprives another “of any
rights, privileges, or immunities secured by the Constitution and laws” opens himself
or herself up to legal recourse. While
the Supreme Court used the Fourteenth Amendment to incorporate the right the
bear arms to the states, this provision could provide the means with which a
citizen who feels he or she has been denied a right can sue the offending
party. However, since both Heller and McDonald only discussed the legality of gun restrictions within the
home, a future court would have to expand McDonald’s
incorporation out of the private realm and into the public.
Another
area open to future regulation and potential litigation is the type of weapons
that may be banned. Heller and McDonald
primarily focused on handguns, but there are numerous types of firearms. Despite the recent attempted assassination of
Arizona Representative Gabrielle Giffords; the Aurora, Colorado theater
massacre; and the murder of six Sikhs at their gurdwara in Wisconsin, public
and legislative support for assault weapon bans has remained lukewarm, with
politicians often shifting blame away from guns and towards potential mental
deficiencies in the offenders. A
previous assault weapon ban, named the Federal Assault Weapons Ban, was passed
by a Democrat-controlled Congress and President Clinton in 1994. This ban prohibited civilian purchase of
assault weapons, unless registered before the law went into effect, as well as
certain semi-automatic weapons and high-capacity ammunition magazines. Support for the ban came in the form of
several mass murders, most notably the Waco incident, which involved perpetrators
using assault or semi-automatic weapons.
While the effectiveness of the 1994 ban often comes into question,
Christopher Koper and Jeffrey Roth, both prominent criminologists, point out
that requests from local police departments to the Bureau of Alcohol, Tobacco,
and Firearms to trace confiscated assault weapons, one of the primary methods
the federal government uses to keep assault weapon statistics, dropped by twenty
percent in the years after the ban.
However,
the ban included what is known as a “sunset provision” which stipulates that
the law in question will expire at a certain date unless new legislation
extends the law. Congress did not pass
such an extension, so after a decade the ban came off the books. For the previous eight years, the United
States has not had a ban on assault or high-capacity weapons, despite the
tragedies which have occurred recently. This
expiration and federal disinterest in enacting a new ban has left the matter to
the individual states, although few have taken any action. Only California, Connecticut, Massachusetts,
New Jersey and New York have assault weapons bans, although there is a similar
ban in Cook County, Illinois as the state begins to move towards a
comprehensive ban as well. While this
may please state-rights zealots, McDonald
opens the possibility that a court may strike such a ban.
With Justices Scalia, Kennedy, Ginsburg and
Breyer all approaching their eighties, the ideological balance of the Supreme
Court could swing either direction in the upcoming decade. While this swing will impact many policy
areas, the precedent established by McDonald
has ample room to expand. When the next
gun control case comes before the Supreme Court, which one certainly will, the
nine justices will have the ability to tighten or loosen the flow of arms to
private citizens. As it stands, McDonald, taken in a narrow
interpretation, only prohibits the ban on handguns in one’s home, although a
loose reading could increase the scope of public and private sectors open to
gun possession. The states and federal
government now must make their move as Americans struggle to clarify their
beliefs regarding assault gun bans, allowing concealed weapons on college
campuses, and the overall effectiveness of any form of gun control.
Select information provided by The Journal of Interpersonal
Violence, The Journal of Criminal Justice, The Journal of Quantitative Criminology, the Congressional
Research Service, The Northwestern Law Review, and The Virginia Journal of Social Policy
& the Law
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