Gun Laws, Gun Control and Gun Rights

"The Second Amendment in fact does not give individuals a right to own guns, and every federal court that has ever looked at the Second Amendment,with the exception of one recent exception of a trial court in Texas,...has held that the Second Amendment...must be read in relation to state militia, state-sanctioned militia."

[Transcript of a telephone interview conducted by JURIST student editor Steven Serdikoff, 3L University of Pittsburgh; this interview is also available in RealAudio]

Steven Serdikoff: In the last few years, notably again in the last two weeks, high profile incidents of gun violence have been in the forefront of the media. Do such incidents and the intense media scrutiny they spawn help or hinder your organization's policy goals?

Jonathan Lowy: Well, I think that the fact that these events lead people to focus on the problem of gun violence is helpful because the fact is that every day there are a tremendous amount of casualties from guns. Everyday more than eleven kids are killed with guns and many more are injured. Most people ignore that fact and the media ignores that fact. Sometimes it takes an incident such as Columbine, where you have basically an ordinary death toll for young people, as horrible as that sounds, but since it took place in one location, in a high profile event, it focused national attention on this ongoing problem. And people really need to focus on it and get angry about it, and get willing to do something about it.

SS: Does the fact that the recent shooting in Hawaii occurred in a state that has some of the strictest gun laws in the country, in anyway undermine the value of gun control legislation?

JL: Well, I'm sure that the NRA and others like them will argue that. No, it doesn't undermine it. I mean, for one thing the fact is that Hawaii has very low violent crime rates. In fact the crime figures show a positive effect of their gun laws. The fact that they had one high profile incident does not alter that fact. I think it also shows the danger in allowing people who have shown themselves to be prone to violence, to allow them to possess guns. And the fact is that, from the media, I believe that this shooter was stopped from buying his eighteenth gun because of a violent incident. Which sort of suggests that if you had that rule earlier on, maybe he wouldn't have had his first seventeen.

SS: If you can see one piece of gun legislation passed within the next year, what do you think would be the most crucial?

JL: That's a tough question. I think licensing and registration would be extremely helpful. The fact is that—and that should not be very controversial—the polls show a majority of the American people support it. We take it for granted that we have licensing registration for automobiles, both for the cars and for those who wish to drive them. And we have that because of the potential danger to others that cars pose. And it's rather absurd that when we talk about guns, which are much more dangerous that we don't have similar systems. And, this of course, would not prevent responsible people who wish to have guns from having them.

SS: Along those lines, how did there end up being a de facto exception from gun control laws for private dealers at gun shows?

JL: Well, a lot of this happened in what's known as the McClure Volkmure Act, which was passed during the Reagan Administration, which rolled back gun laws in a number of ways. The NRA lobbied hard for and it rolled gun laws back. It also tied the hands of law enforcement in numerous ways, which I think is a point that many people don't know and might be surprised to hear when they hear the NRA and others suggesting that they are for the enforcement of gun laws. The McClure Volkmure Act did such things as greatly limited the ability of law enforcement to inspect gun dealers who are breaking the law. Of course it's absurd to think that law enforcement would be limited in its ability to investigate any sort of crime. But they are in the case of gun dealers.

SS: Going to the Second Amendment - the center of a lot of this debate. What relevance do you think the Second Amendment has today?

JL: Actually the greatest effect is the misconception that people have about the Second Amendment, which colors a lot of debate about gun control. The Second Amendment in fact does not give individuals a right to own guns and every federal court that has ever looked at the Second Amendment, with the exception of one recent exception of a trial court in Texas, but every other court has held that the Second Amendment does not give individuals such a right - that the Second Amendment must be read in relation to state militia, state-sanctioned militia. Yet people have this misconception that the amendment gives individuals an unfettered right to own guns. The former Chief Justice Warren Burger spoke very forcefully about this, in stating that this view was a "fraud that had been perpetuated on the American people." It suggests that the Second Amendment gives them this right, which it simply doesn't. But because people have this misconception about the Second Amendment, many people think it would be great if we had very strong gun laws in this country. However, the Second Amendment in some way prevents us from doing that and so it does color people's view. So that's really the practical view as a—in the courts it's had virtually no effect on preventing gun laws with the one exception of this case in Texas, because judges have generally understood the Second Amendment to be no obstacle to gun laws.

SS: The district court opinion that you touched on, which is currently on appeal to the Fifth Circuit, U.S. v. Emerson - what do you think the fate of this ruling is going to be? Where do you think this case is headed?

JL: Well, I expect it to be reversed by the Fifth Circuit. I honestly don't know what they're going to rule but I do know that the precedent is extraordinarily uniform on the Second Amendment. In fact, every single federal circuit court in this country, including the Fifth Circuit, has recognized that the Second Amendment does not give individuals the right to own guns, and in fact, in the case of Morton Grove, the Seventh Circuit upheld a ban on handguns and the Supreme Court denied cert. in the case. So, I would be surprised if the Fifth Circuit changed its mind and it did not reverse this opinion.

SS: If it were appealed to the Supreme Court, do you think this will be a ripe opportunity for the Supreme Court to issue a definitive ruling on the Second Amendment?

JL: Well, the law is pretty clear. I mean the Supreme Court, and the fact that the gun lobby has a lot of money to engage in a public relations campaign that there is a Second Amendment right does not really make it a legal controversy. It doesn't alter the fact that the federal courts, with the exception of Judge Cummings in Texas, have been remarkably uniform. So, it's not really much of a live controversy in the courts. There's no split of authority in the circuits, there's absolute uniformity in the circuits, as to what the Second Amendment means. So, I don't know if that necessarily is a ripe case for the Supreme Court because it's just not a controversial matter, or hasn't been until this decision.

SS: Is it the lack of genuine legal debate on this issue that has sort of kept the Second Amendment out of heavy litigation over the years? Particularly in comparison with some of our other constitutional rights?

JL: Well, one reason that the Second Amendment has not been litigated in recent years is because the gun lobby likes to keep the false - its false - interpretation of the Second Amendment alive. The NRA, while it engages in a massive PR campaign to suggest that the Second Amendment has nothing to do with militias, where they basically ignore the first half of the Second Amendment—they have refused to bring Second Amendment claims when they've contested gun laws, which is rather remarkable. The NRA fought the Brady Law, for instance, all around the country. They never once raised a Second Amendment argument. There are other examples as well. Of course, if they actually believed what they say in their PR campaign they would have, of course, raised the Second Amendment argument. But, I think that is a telling example that they recognize that it's a legally untenable position, even though it has some popular appeal.

SS: So it's not really a legal issue so much as it is a public relations issue.

JL: Well, that's certainly been true before. Emerson is a real case, and there is Sam Cummings, the trial judge there, did rule the other way. So it does make it something of a live issue. But before then, before the Emerson decision it really has not been a live issue in the courts in the past number of years.

SS: A couple of final questions. Even if gun control legislation could be implemented nationwide, it seems as though guns are woven into the fabric of American culture. Is it really possible to, on a large scale, prevent guns from falling into the hands of criminals?

JL: There's no question that gun laws can do a great deal and can save a lot of lives. We're not suggesting that gun deaths will be reduced to zero with stronger gun laws, but there is no question that many lives will be saved. We've seen even from state measures such as the one-gun-a-month law that was passed in Virginia. When that was passed, gun trafficking from Virginia to cities such as New York and Washington decreased dramatically, and that was just a state law. The Brady Law has prevented hundreds of thousands of criminals from getting guns. So those measures have done a lot of good. The gun industry, we haven't talked about design modifications that can take place that should be implemented into guns. And the government would ordinarily compel manufacturers to put these lifesaving features into guns. But because the guns are the only consumer product in America that are exempt from the Customer Product Safety Act, the federal government has no safety authority over guns. The gun industry will admit that many of these devices which they don't put in their guns would save lives of children and others. So there is no question that if strong gun laws are passed, if manufacturers put safety features into their guns, and if they use reasonable care in distributing their guns, lives will be saved. Another example: if you look at other countries with much stronger gun laws you see very similar rates of crime, but because they don't have the accessibility to guns you don't have the numbers of deaths and injuries.

SS: If you can see all the policy goals of your organization come to fruition, sort of in an ideal world, what would be the state of gun control debate say, ten years from now?

JL: That's a very hard question to answer because there's such a battle over such small changes. I mean, to close the gun show loophole - which is a considerable change, but certainly is not the largest thing that you could imagine - has become a huge battle, and in fact, even in that fight, we had to move—the gun lobby moved the laws at some point in the debate backwards in the course of trying to close the gun show loophole, they opened up, or reopened the pawn shop loophole to enable felons to reclaim their guns without a background check. So, it's such a difficult fight against this lobby, I mean we will continue to fight these battles, both through legislation and through litigation. In a perfect world we would have serious, strong national gun laws in this country; we'd have an industry that was willing to take the responsibility to clean up their act and to do what they can to prevent accidental shootings and criminals from getting their guns. And, ideally, we'd be arguing on the margins to try to make guns and the distribution even more safe.

SS: I thank you very much for your time. —————————————————————————————
JURIST: The Legal Education Network™ is directed by Professor Bernard J. Hibbitts, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA, in consultation with an international Advisory Board. E-mail JURIST at JURIST@law.pitt.edu.

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