Thursday, November 8, 2012

Gun Control and the Supreme Court

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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