Fall 1999 Human Rights Magazine

By Charles L. Blek, Jr.

For too long, our elected officials have hidden behind the phrase "our Second Amendment rights" in order to defend the status quo with regard to guns. Guns are not the root cause of violence; but their widespread usage dramatically increases the lethality of the violence. The news channels overflow with the tragedies: Springfield, Oregon; Littleton, Colorado; Granada Hills, California; poor, inner city communities across the nation, too numerous to mention, and on and on!

Clearly, these issues must be addressed. We must challenge and move beyond the mistaken belief that creating responsible gun laws in some manner offends our constitutional rights.

Misinterpretations of the Second Amendment

The Second Amendment reads, "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." In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court discusses the purpose and the limit of the Second Amendment and tells us that the "obvious purpose" of the Amendment was "to assure the continuation and render possible the effectiveness" of our state militia forces (our present day National Guard). The right to bear arms was not extended to each and every individual, but rather was expressly limited to maintaining effective state militia.The National Rifle Association’s (NRA) continuous omission of the "well-regulated militia" language in its literature speaks volumes. It even prompted former U.S. Supreme Court Chief Justice Warren Burger to comment: It’s the simplest thing: a well-regulated militia. If the militia—which is what we now call the National Guard—essentially has to be well-regulated, in heaven’s name why shouldn’t we regulate 14-, 15-, and 16-year old kids having handguns or hoodlums having machine guns? I was raised on a farm, and we had guns around the house all the time. So I’m not against guns, but the National Rifle Association has done one of the most amazing jobs of misrepresenting and misleading the public." (USA Today, December 16, 1991.)

The NRA uses our First Amendment right of freedom of speech to repeat their misinformed rhetoric. In comparing First and Second Amendment rights that we all recognize that freedom of speech, as broadly as it is interpreted, still has limitations. For example, we are not allowed to yell "fire" in a crowded theater when none exists. However, if we are to believe the NRA, the Second Amendment grants an unconditional right to individuals to possess arms. The NRA’s questionable analysis, prompted Erwin N. Griswold, former dean of Harvard Law School who served as U.S. Solicitor General to comment:

. . . to assert that the Constitution is a barrier to reasonable gun laws, in the face of the unanimous judgment of the federal courts to the contrary, exceeds the limits of principled advocacy. It is time for the NRA and its followers in Congress to stop trying to twist the Second Amendment from a reasoned (if antiquated) empowerment for a militia to a bulletproof personal right for anyone to wield deadly weaponry beyond legislative control. (Washington Post, November 4, 1990.)

History tells us that the Second Amendment is based on the colonist’s fear of the military forces sent by King George III to compel obedience to cruel and burdensome laws and taxes. Federalist James Madison drafted a Bill of Rights for presentation at the first Congress. His draft of the Second Amendment was ultimately restructured into its present form in order to place greater emphasis on the militia purpose in dealing with the right to keep and bear arms. Ironically, the New Hampshire convention suggested far broader language—that being: "Congress shall never disarm any citizen unless such as are or have been in actual rebellion." It is indeed significant that our first Congress rejected this broad language in order to adopt the present version with its more restrictive language.

The Correct Interpretation

Our federal appellate courts, in interpreting the application of our Second Amendment, have created a well-settled principle of law—that the Second Amendment does not guarantee any individual the unconditional right to own a handgun or to bear arms. Beginning with the decision in United States v. Miller, the court held that a firearms statute is unconstitutional only if it adversely affects a state’s ability to maintain a militia. Numerous other cases uphold laws that regulate private ownership of firearms, such as Eckert v. City of Philadelphia, 695 F.2d 261 (7th Cir. 1982) ("The right to keep and bear arms is not a right given by the United States Constitution"); Stevens v. United States, 440 F.2d 144 (6th Cir. 1971) ("There can be no serious claim to any express constitutional right of an individual to possess a firearm"); and Quilici v. The Village of Morton Grove, 477 F.2d 610 (3rd Cir. 1973), wherein the NRA attempted to challenge a handgun ban, and the U.S. Supreme Court, by refusing to hear the case, allowed a lower appellate court ruling to stand that stated "there is no individual right to keep and bear arms under the Second Amendment." The appellate courts agree—the Second Amendment is completely compatible with responsible gun laws affecting the private possession of firearms. The logic involved in these cases is clear and consistent; however, the NRA attempts to distort the true significance and meaning of the Second Amendment. Fortunately, in California, we need look no further than to a court case that arose in 1996 involving the City of West Hollywood and the National Rifle Association/California Rifle and Pistol Association for a local case that upholds the true meaning of the Second Amendment. (See California Rifle and Pistol Ass’n, Inc. v. City of West Hollywood, 66 Cal. App. 4th 1302 (1998).)The City of West Hollywood was the first city in California to create a local ordinance specifically banning the sale of Saturday Night Special handguns. The ordinance created certain guidelines describing what constituted a Saturday Night Special. Based on these guidelines, the city developed a list setting forth specific models of handguns that could no longer be sold within its city limits. If we are to believe the NRA’s rhetoric, then this ordinance would easily be set aside and voided by a Second Amendment challenge.The California Rifle and Pistol Association (CRPA) initiated a lawsuit against the City of West Hollywood requesting the court to find that the city’s ordinance was void because: 1) the State of California had pre-empted this legislative area; 2) the local ordinance was simply a duplicate of current state criminal statutes; 3) the local ordinance violated our First Amendment commercial free speech rights; 4) the local ordinance violated the due process clause; and 5) the local ordinance violated the equal protection clause.Each of these theories was thrown out of court without even reaching trial. The city presented a motion for summary judgment, which was successful. On appeal, the trial judge’s decision to dismiss was upheld. (See Id.) The California Supreme Court issued an order declining to review the court of appeals decision. Accordingly, the decision is now final and binding on all lower California courts. Interestingly, but not surprisingly, the pro-gun lobby did not raise the Second Amendment in their lawsuit against the City of West Hollywood. Their lawyers know that the Second Amendment is not applicable in court; however, this well-funded special interest group continues to argue otherwise and we, the general public, continue to be manipulated.

Conclusion

We must not allow the NRA’s distortion of the Second Amendment to distract us from the health and safety risks associated with gun violence. We experience tragedy upon inexcusable tragedy, but fail to recognize firearms as the lethal consumer products that they are. Unfortunately, there are no federal agencies to which we can turn for regulation of the gun industry. The Bureau of Alcohol, Tobacco, and Firearms has no warrant to regulate firearm safety and is not empowered to protect us from the dangers of firearm use. The Consumer Product Safety Commission, the agency charged with overseeing the use and manufacture of most household products, is specifically prohibited from regulating firearms in any way. Therefore, we must regulate through legislation.It is amazing that although we readily acknowledge that safety measures like automobile seatbelts save lives, we are unable or unwilling to connect this same philosophy with the handgun. We all understand that an automobile not only affects the driver but all who are within close proximity of the car. The same is true of a handgun. Therefore, we should no longer allow any regulatory exceptions when it comes to these weapons.When our policymakers are allowed to misuse the Second Amendment as a shield against supporting responsible gun policy, what are the results? Well, the result is a 15-year old armed with a 50-round magazine, opening fire at his Oregon high school, shooting off the entire magazine in less than one minute in the crowded school cafeteria, and killing four and injuring twenty. Simple math tells us if, at the very least, we had laws limiting the capacity of magazines to ten rounds or less that it would have been physically impossible for more than twenty people to have been injured or killed during his rampage. We now know that the two young men responsible for the carnage in Littleton, Colorado, had no difficulty obtaining the high-capacity assault weapons that were used in their rampage.A few weeks after the Littleton tragedy, I had an opportunity to talk with Tom Mauser, the father of Daniel Mauser, one of the victims in the Littleton shootings. Tom described what happened to his son: "Daniel was in the school library during the lunch period and was confronted with a Tek DC9 semi-automatic assault weapon with a 30-round magazine. The assault weapon was pointed into Daniel’s face and then exploded into action."

When will we say "Enough?" We must focus on policies that will reduce the lethality of gun violence rather than continuously lament its deadly results.

Charles L. Blek, Jr., is an attorney and Western Regional Director of The Bell Campaign, a national grassroots organization whose mission is to prevent gun death and injury and to support victims of gun violence.