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					                                                                                                       GUN CONTROL   163



FURTHER READINGS                                             cealed handguns. At the other end of the spec-
Appendix E: Letter from Friedrich K. Juenger to Harry C.     trum, three Chicago suburbs—Morton Grove,
   Sigman, Esq., September 16, 1994. 1995. Vanderbilt        Oak Park, and Evanston—ban handgun owner-
   Journal of Transnational Law (May).                       ship outright. Generally, firearms regulations are
                                                             more restrictive in large metropolitan areas.
GUILTY                                                           State and local firearms laws and ordinances
Blameworthy; culpable; having committed a TORT               include outright bans of certain firearms, prohi-
or crime; devoid of innocence.                               bitions on the alteration of certain firearms, and
    An individual is guilty if he or she is respon-          restrictions on the advertising of guns. State
sible for a delinquency or a criminal or civil               gun-control laws also address the theft of hand-
offense. When an accused is willing to accept                guns, the inheritance of firearms, the use of
legal responsibility for a criminal act, he or she           firearms as collateral for loans, the possession of
pleads guilty. Similarly, a jury returns a verdict of        firearms by ALIENS , the discharge of firearms in
guilty upon finding that a defendant has com-                public areas, and the alteration of serial num-
mitted a crime. In the event that a jury is not              bers or other identifying marks on firearms.
convinced that a defendant has committed a                   States generally base their power to control
crime, jurors can return a verdict of not guilty,            firearms on the police-power provisions of their
which does not mean that the individual is inno-             constitutions, which grant to the states the right
cent or that the jurors are so convinced, but                to enact laws for public safety.
rather that they do not believe sufficient evi-                  Congress derives its power to regulate
dence has been presented to prove that the                   firearms in the COMMERCE CLAUSE , in Article I,
defendant is guilty.                                         Section 8, Clause 3, of the U.S. Constitution.
    In civil lawsuits, the term guilty does not              Under the Commerce Clause, Congress may
imply criminal responsibility but refers to mis-             regulate commercial activity between the states
conduct.                                                     and commerce with foreign countries. In
                                                             reviewing federal legislation enacted pursuant to
                                                             the Commerce Clause, the U.S. Supreme Court
GUN CONTROL                                                  has given Congress tremendous leeway. Con-
Government regulation of the manufacture, sale,              gress may enact criminal statutes regarding
and possession of firearms.                                  firearms if the activity at issue relates to inter-
    The SECOND AMENDMENT to the U.S. Con-                    state transactions, affects interstate commerce,
stitution is at the heart of the issue of gun con-           or is such that control is necessary and proper to
trol. The Second Amendment declares that, “A                 carry out the intent of the Commerce Clause.
well regulated Militia, being necessary to the                   In 1927, Congress passed the Mailing of
security of a free State, the right of the people to         Firearms Act, 18 U.S.C.A. § 1715, which banned
keep and bear Arms, shall not be infringed.”                 the shipping of concealable handguns through
    To many, the language of the amendment                   the mail. Congress followed this with the
appears to grant to the people the absolute right            NATIONAL FIREARMS ACT OF 1934 (ch. 757, 48
to bear arms. However, the U.S. Supreme Court                Stat. 1236–1240 [26 U.S.C.A. § 1132 et seq.]),
has held that the amendment merely protects                  which placed heavy taxes on the manufacture
the right of states to form a state militia (United          and distribution of firearms. One year later,
States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83            Congress prohibited unlicensed manufacturers
L. Ed. 1206 [1939]).                                         and dealers from shipping firearms across state
    Even before the Miller opinion interpreted               borders, with the Federal Firearms Act of 1938
the Second Amendment in 1939, Congress,                      (ch. 850, § 2(f), 52 Stat. 1250, 1251).
state legislatures, and local governing bodies                   In 1968, after the assassinations of President
were passing laws that restricted the right to               JOHN F. KENNEDY , CIVIL RIGHTS activists MAL-
bear arms. Kentucky passed the first state legis-            COLM X and MARTIN LUTHER KING JR. , and Sen-
lation prohibiting the carrying of concealed                 ator ROBERT F. KENNEDY , Congress responded
weapons, in 1813. By 1993, firearms were regu-               to the public outcry by passing the Gun Control
lated by approximately 23,000 federal, state, and            Act of 1968 (GCA) (Pub. L. No. 90-615, § 102,
local laws.                                                  82 Stat. 1214 [codified at 18 U.S.C.A. §§ 921–
    State and local firearms laws vary widely.               928]). This act repealed the Federal Firearms Act
Thirteen states prohibit only the carrying of con-           and replaced it with increased federal control


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164    GUN CONTROL




              Take That! And That!
       The Gun Control Debate Continues
       un control motivates one of U.S.        powerful opponent of gun control—             the right of the people to keep and bear
 G     law’s fiercest duels.                   generally fights any restrictive measure.
                                               The NRA has opposed efforts to ban so-
                                                                                             Arms, shall not be infringed.” Does this
                                                                                             mean citizens have a constitutional right
     Arguments favoring control range
 from calls for regulation to support for      called cop-killer bullets, which can pierce   to own guns? The gun lobby says yes.
 total disarmament. At the most moderate       police safety vests. It has supported back-        A minority of legal scholars believe
 point of the spectrum is the idea that        ground checks at the time of purchase,        that the framers of the BILL OF RIGHTS
 government should regulate                               yet only if these are done         meant to include citizens along with “a
 who owns guns and for what                               instantly so as not to inconven-   well regulated Militia” in the right to bear
 purpose, a position held by the                          ience the vast majority of gun     arms. One supporter of this view is Pro-
 lobby Handgun Control Incor-                             buyers. Even more adamant is       fessor Sanford Levinson, of the Univer-
 porated (HGI), which helped                              the group Gun Owners of            sity of Texas, who argues that the Second
 write the Brady law. This kind                           America, which opposes any         Amendment is intended to tie the hands
 of monitoring is far too little                          legal constraints.                 of government in restricting private own-
 for one antigun group, the                                   With so many laws on the       ership of guns. He charges that liberal
 Coalition to Stop Gun Violence, which         books, the question of gun control’s con-     academics who support gun control read
 demands a complete ban on manufactur-         stitutionality would seem already settled.    only the Constitution’s Second Amend-
 ing and selling guns to the general public.   Yet this is where the gun control debate      ment so narrowly.
 The opposition leaves room for only very      begins. The SECOND AMENDMENT                       The majority view is more restrictive
 slight compromise. The NATIONAL               reads, “A well regulated Militia, being       in its reading. It pictures the Second
 RIFLE ASSOCIATION (NRA)—the most              necessary to the security of a free State,    Amendment as tailored to a specific




                       over firearms. Title I of the act requires the               GCA, requiring U.S. attorney general to estab-
                       federal licensing of anyone manufacturing or                 lish a national instant background check system
                       selling guns or ammunition. Title I also pro-                and immediately put into place certain interim
                       hibits the interstate mail-order sale of guns and            provisions until the federal system became oper-
                       ammunition, the sale of guns to minors or per-               ational. Under these interim provisions, a
                       sons with criminal records, and the importation              firearms dealer who sought to transfer a hand-
                       of certain firearms. Title II of the act imposes the         gun was required to obtain from the proposed
                       same restrictions on other destructive devices,              purchaser a statement, known as a Brady Form,
                       such as bombs, grenades, and other explosive                 that contained the name, address, and date of
                       materials.                                                   birth of the purchaser along with a sworn state-
                            Between 1979 and 1987, a total of 693,000               ment that the purchaser was not among those
                       people in the United States were assaulted by                classes of persons prohibited from purchasing a
                       criminals armed with handguns. Statistics such               handgun. The dealer was then required to verify
                       as this, as well as high-profile shootings, such as          the purchaser’s identity and to provide the “chief
                       that of President RONALD REAGAN and his aide,                law enforcement officer” (CLEO) within the
                       James Brady, in 1981, led to pressure for further            jurisdiction with a copy of the Brady Form.
                       gun-control measures.                                        With some exceptions, the dealer was required
                            The congressional enactment in 1993 of the              to wait five business days before completing the
                       Brady Handgun Violence Prevention Act, Pub.                  sale, unless the CLEO notified the dealer that
                       L. No. 103-159, 107 Stat. 1536, marked the first             there was no apparent reason to believe that the
                       significant federal gun-control legislation since            transfer would be illegal.
                       the GCA in 1968. The act was named for James                     A number of CLEOs objected to these
                       Brady, the White House press secretary who was               interim provisions. Jay Printz of Montana and
                       critically and permanently injured in 1981 dur-              Richard Mack of Arizona, both CLEOs, filed
                       ing an assassination attempt on President                    actions in federal court challenging the constitu-
                       Ronald Reagan. The Brady Act amended the                     tionality of the parts of the Brady Act requiring

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                                                                                                           GUN CONTROL                   165




   right, namely, that of states to equip and    to count how many lives are lost to gun        protect their owners from harm. The
   maintain a state NATIONAL GUARD .             violence. Advocates generally claim that       NRA’s chief lobbyist has argued that the
   Harvard law professor Laurence Tribe          the fact that lives are lost to guns and the   SELF-DEFENSE effectiveness of guns is
   argues that “[t]he Second Amendment’s         possibility that even one life may be saved    proved by “the number of crimes
   preamble makes it clear that it is not        through gun control are justification          thwarted, lives protected, injuries pre-
   designed to create an individual right to     enough for legislation. They can quantify      vented, medical costs saved and property
   bear arms outside of the context of a         gains of another sort under the Brady          preserved.”
   state-run militia.”                           law. In early 1995, the JUSTICE DEPART-             Settling the gun control debate is no
        This argument has a leading advan-       MENT estimated that background checks
                                                                                                more likely than solving the problem of
   tage over the minority position: it is what   had kept forty thousand felons from buy-       crime itself. In fact, only the latter could
   the U.S. Supreme Court has consistently       ing handguns, a figure derived from            ever bring about the former. After all, it
   held for over fifty years.                    information provided by the state and          is violent crime, more than accidental
        In the 1939 case of United States v.     local authorities who ran the checks.          gun deaths involving children, that ani-
   Miller, 307 U.S. 174; 59 S. Ct. 816, 83            Opponents say gun control is a gross      mates the gun control movement. On
   L. Ed. 1206 (1939)—the only modern            failure. They argue that it never has kept     this point, the two sides agree briefly and
   Supreme Court case to address the             criminals from buying guns illegally.          then diverge once again. Both want
   issue—a majority of the Court refused to      Instead, they say, prohibition efforts have    tougher action on crime. The key differ-
   find an individual constitutional right to    only been nuisances for law-abiding gun        ence is that gun control opponents want
   bear arms.                                    owners: city ordinances like Chicago’s         such measures to include almost every
        Since the meaning of the Second          that ban handgun sales send buyers to the      traditional means available—more police
   Amendment seems well settled, the dis-        suburbs, and the Brady law’s five-day          officers, more prisons, and longer prison
   pute has turned to pragmatics. How well       waiting period amounts to another              sentences—except the control of guns.
   does gun control work, if it works at all?    unfair penalty. Moreover, opponents            Advocates believe there can be no effec-
   Measuring lives saved by gun control is       rebut arguments about gun violence by          tive anticrime measures without gun
   practically impossible; it is only possible   insisting that guns are actually used to       control.




CLEOs to accept Brady Forms. In both cases, the             tional grounds. For example, in Gillespie v. City
district courts held that the provision requiring           of Indianapolis, 185 F.3d 693 (7th Cir. 1999), a
CLEOs to conduct background checks were                     former police officer challenged the act’s prohi-
unconstitutional. However, the U.S. Court of                bition of persons convicted of DOMESTIC VIO-
Appeals for the Ninth Circuit consolidated the              LENCE offenses from possessing a firearm in or
two cases and reversed these decisions, finding             affecting interstate commerce. Gerald Gillespie,
none of the Brady Act’s interim provisions                  the plaintiff in the suit, was convicted of domes-
unconstitutional.                                           tic violence and, as a result, lost his job as a
     The U.S. Supreme Court, in Printz v. United            police officer. Although the U.S. Court of
States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed.           Appeals for the Seventh Circuit found that Gille-
2d 914 (1997), reversed the Ninth Circuit, ruling           spie had standing to bring the suit challenging
that the interim provisions were unconstitu-                the Brady Act, it noted that the Second Amend-
tional. The Court, per Justice ANTONIN SCALIA ,             ment was intended to ensure protection by a
believed that the interim provisions disturbed              militia for the people as a whole. Because it
the separation and equilibrium of powers                    could not find a reasonable relationship between
among the three branches of the federal govern-             ownership of a particular gun and the preserva-
ment. Under the Constitution, the president is              tion and efficiency of a state militia, Gillespie’s
to administer the laws enacted by Congress. The             claim failed. Other lower federal courts have
Brady Act “effectively transfers this responsibil-          similarly held that the Second Amendment does
ity to thousands of CLEOs in the 50 states,” leav-          not prohibit the federal government from
ing the president with no meaningful way of                 imposing some restrictions on private gun own-
controlling the administration of the law.                  ership.
Accordingly, CLEOs could not be required to                     In August 1994, Congress passed legislation
accept Brady Forms from firearms dealers.                   banning so-called assault weapons under Title
     Other provisions of the Brady Act have also            XI of the Public Safety and Recreational Fire-
come under attack in the courts on constitu-                arms Use Protection Act (Pub. L. No. 103-322,

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166   GUN CONTROL



                                                                         tion as a means to recoup the millions of dollars
              Gun Control                                                that the cities spend each year in coping with
                                                             a
              MURDER, TYPES OF WEAPONS USED, IN 2000                     gun violence. The cities hoped to emulate the
                                                                         success of state governments in winning record
                                                                         settlements from the tobacco industry. In Febru-
              Personal weaponsb
                    7.0%                                                 ary 1999, they were encouraged when a federal
                                                                         jury returned the first-ever verdict holding gun
                                                                         makers liable for damages caused by the use of
                                                                         their products in a crime. But as many more
                        Knives or cutting                                cities considered filing suits, the gun industry
                          instruments                                    fought back with LOBBYING and launched pre-
                             13.5%
                                                                         emptive strikes in state legislatures against
                      Unknown or other                                   future lawsuits.
                     dangerous weapons
                           14.0%                      Firearms                Many of the lawsuits were dismissed. The
                                                       65.6%             gun industry enjoyed two victories in 2000 as
                                                                         judges dismissed suits brought by the cities of
                                                                         Philadelphia and Chicago. Charging the indus-
                                                                         try with a public NUISANCE , both cities sought
                                                                         to recover the public costs of gun violence,
              a
              Due to rounding, numbers may not add to 100.
              b
                                                                         including medical care, police protection, emer-
              Refers to hands, fists, feet, etc.
                                                                         gency services, and prison costs. The cities
              SOURCE: FBI, Crime in the United States, 2000.             argued that gun manufacturers and distributors
                                                                         were responsible for these costs because they
                                                                         knowingly or negligently sold guns to dealers
                                                                         who then supplied them to criminals. A judge
                                                                         in the Cook County Circuit Court dismissed
            108 Stat. 1796 [codified as amended in scattered             Chicago’s claim because Chicago had failed to
            sections of 42 U.S.C.A.]). This act bans the man-            prove that gun manufacturers were responsible
            ufacture, sale, and use of nineteen types of semi-           for public costs resulting from criminal gun
            automatic weapons and facsimiles, as well as                 violence. Likewise, a Pennsylvania judge dis-
            certain high-capacity ammunition magazines.                  missed Philadelphia’s lawsuit because under the
                In 1995, the U.S. Supreme Court set addi-                Pennsylvania Uniform Firearms Act—for which
            tional limits on gun control with its landmark               the gun industry lobbied—the state of Pennsyl-
            decision in United States v. Lopez, 514 U.S. 549,            vania has the sole authority to regulate the
            115 S. Ct. 1624, 131 L. Ed. 2d 626. In Lopez, the            industry.
            Court ruled that Congress had exceeded its                        State and federal appellate courts have gen-
            authority under the Commerce Clause in pass-                 erally held in favor of gun manufacturers as well.
            ing a law that criminalized the possession of                The California Supreme Court, in Merrill v.
            a firearm within 1,000 feet of a school (Gun-                Navegar, Inc., 28 P.3d 116 (Cal. 2001), held that
            Free School Zones Act of 1990 [18 U.S.C.A.                   gun manufacturers cannot be held legally
            § 922(1)(1)(A)]). The Court held that because                responsible when their products are used for
            such gun possession was not an economic activ-               criminal activity. The closely watched case
            ity that significantly affected interstate com-              stemmed from a 1993 shooting rampage in a
            merce, it was beyond Congress’s power to                     San Francisco office tower that left eight people
            regulate.                                                    dead and six wounded. Similarly, the U.S. Court
                The debate over gun control entered a new                of Appeals for the Third Circuit, in Camden
            phase when, beginning in 1998, major U.S. cities             County Board of Chosen Freeholders v. Beretta
            brought lawsuits against the gun industry. Frus-             U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001), upheld
            trated by decades of meager progress in gun                  the dismissal of a suit brought by Camden
            control, as well as mounting costs in law                    County, New Jersey, which had accused several
            enforcement and HEALTH CARE , mayors from                    gun manufacturers of creating a public nuisance
            such cities as New Orleans, Miami, Chicago, San              and acting negligently in its distribution of
            Francisco, Cleveland, and Cincinnati looked                  handguns. The Third Circuit also upheld the
            beyond traditional regulation and tried litiga-              dismissal of the suit brought by the city of

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                                                                                                                      GUN CONTROL                   167



Philadelphia in City of Philadelphia v. Beretta
U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002).
    Some lawsuits involving gun manufacturers
were settled out of court. In March 2000, under
pressure from many lawsuits nationwide, Smith
& Wesson, the nation’s oldest and largest manu-
facturer of handguns, entered into a settlement
to end many of the cases. Under the agreement,
Smith & Wesson agreed to place tamper-proof
serial numbers on handguns to prevent crimi-
nals from scratching them off. It also promised
to manufacture its handguns with trigger locks
to prevent them from being fired by unautho-
rized users.
FURTHER READINGS
American Civil Liberties Union. 1996. The ACLU on Gun
    Control. Available online at <archive.aclu.org/library/
    aaguns.html> (accessed January 15, 2004).
Dolan, Edward F., and Margaret M. Scariano. 1994. Guns in                Crime Prevention and Control, Affiliated with the          A trigger lock in place
    the United States. New York: Watts.                                  United Nations.                                            on a Smith & Wesson
Dunlap, Colonel Charles J., Jr. 1995. “Revolt of the Masses:        Lott, John R., Jr. 2000. More Guns, Less Crime: Understanding   .357 Magnum. In
    Armed Civilians and the Insurrectionary Theory of the                Crime and Gun-Control Laws. 2d ed. Chicago: Univ. of       March 2000 the gun
    Second Amendment.” Tennessee Law Review 62.                          Chicago Press.                                             manufacturer settled
                                                                                                                                    a number of lawsuits
Gasi, Scott. 2002. “Gun Control’s ‘Third Way’: State and            McCoskey, William L. 2002. “The Right of the People to          by agreeing to,
    Local Gun Purchase Preference Plans and the Dormant                  Keep and Bear Arms Shall Not be Litigated Away.” Indi-     among other steps,
    Commerce Clause. Virginia Law Review 88 (March).                     ana Law Journal 77 (fall).                                 supply such locks
Gottfried, Ted. 1993. Gun Control: Public Safety and the Right      National Rifle Association Website. Available online at         with its handguns.
    to Bear Arms. Millbrook Press.                                       <www.nra.org> (accessed January 16, 2004).                 AP/WIDE WORLD
Hook, Donald D. 1993. Gun Control: The Continuing Debate.           Zelman, Aaron, and Richard W. Stevens. 2001. Death by           PHOTOS
    Second Amendment Foundation.                                         “Gun Control”: The Human Cost of Victim Disarma-
Kopel, David B., et al. 2003. Supreme Court Gun Cases.                   ment. Hartford, Wis.: Mazel Freedom Press.
    Phoenix, Ariz: Bloomfield Press.
Lock, Peter. 1999. Pervasive Illicit Small Arms Availability: A     CROSS-REFERENCES
    Global Threat. Helsinki, Finland: European Institute for        Weapons.




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