Last week, 20 young children, in the prime of their innocence, were mercilessly cut down by a deranged gunman. In stark contrast to the Christmas season--a time of hope and joy--the unspeakable horror has wrought deep mourning and inconsolable grief. Upon hearing the news, parents hugged their children tighter; siblings held their brothers and sisters closer; and everyone sympathetically tried to imagine the unimaginable: the pain and suffering of the bereaved. Most also asked the simplest, yet most difficult of questions: "why?"
Those of us who operate in the criminal justice system are familiar with this question. Why do people do what they do? Every day, someone commits a crime that hurts another person; every day, someone falsely accuses another person of committing a crime that person didn't commit. Sometimes there are answers, though they are as unsatisfying as they are direct. It was drugs. It was money. It was jealousy. It was mental illness. Evil men do evil things; it is in their nature. In the case of the Newtown massacre, indications are that mental illness drove the gunman to open fire.
The next question, which now consumes the airwaves and editorials across the country, is perhaps more difficult still: what are we going to do about it? The question isn't only political; it is also a legal question. What we may want to do isn't necessarily what we may do, under the law. As the Supreme Court stated in Heller v. District of Columbia, "...the enshrinement of constitutional rights necessarily takes certain policy choices off the table." Thus, when discussing what measures may be taken to dampen the disturbing trend of mass murders in America, we must look to what laws already exist on the books, as well as to what legal limits exist when regulating the possession of firearms.
Obviously, there are policy choices beyond those that simply rely on gun-control. The role of mental illness is noticeably consistent among instances of mass murder. Early indications are that Adam Lanza, the perpetrator of last week's massacre, suffered from mental illness and was of the belief that his mother was going to commit him to a psyche ward. James Holmes, who murdered 12 people in Colorado last summer, also suffered from mental illness. So too did Jared Loughner, who killed 6 people in Tuscon, Arizona; and so too did Seung-Hui Cho, who killed 32 people at Virginia Tech. Certainly, the state of mental health services across the country is in serious need of reform. All too often, the mentally ill only receive treatment after committing a crime. For example, the single largest mental health institution in the State of Florida is the Miami-Dade County Jail.
However, whereas a focus on early diagnosis and treatment of mental illness will require a gargantuan effort and depend upon significant reform undertaken by 50 independent states, federal gun-control legislation provides a quick response to a complex issue. Thus, unsurprisingly, talk of gun-control legislation dominates the national discourse.
Before discussing the wisdom of proposed gun-control legislation, including a renewal of the so-called "Assault Weapons Ban," it is paramount to first establish the limits of the Second Amendment. Just last week, the 7th Circuit Court of Appeals struck down an Illinois gun-control statute that forbade the carrying of firearms outside of the home. Much of the 7th Circuit's analysis was informed by the United States Supreme Court's ruling in Heller, in which the Supreme Court established that the Second Amendment protects an individual and fundamental right to self-defense.
While the Court in Heller did not outline the precise limits of Second Amendment protection, it did establish some minimum guarantees.
First, the Court stated: "We start...with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans." The basis of the presumption that the Second Amendment protects an "individual right," as opposed to a "collective right," enjoyed only by a subset of individuals belonging to a militia, is the Second Amendment's use of the words: "the right of the people." In no constitutional context does reference to "the people" ever indicate reference only to a subset of the population. Where the First Amendment guarantees the "right of the people" to peacefully assemble and petition the government, the First Amendment protects the rights of all of the people; not just a subset of people who join a special interest organization, such as the NRA or PETA or the ACLU. Likewise, the right "to keep and bear arms" belongs to all Americans individually, and does not belong only to the subset of people who join a militia.
Second, the Court concluded that the Second Amendment not only protects the individual right of Americans to "possess" arms, but also the right of Americans to "carry" arms. This conclusion was based upon the plain meaning of the words in the Amendment's text: "the right of the people to keep and bear arms."
Third, the Court concluded that the Second Amendment's guaranty of an individual right to possess and carry arms was closely associated with the "inherent right of self-defense." In other words, the Court held that the individual right to possess and carry arms does not only serve the purpose of providing for a "well-regulated militia," but that it also serves the purpose of protecting the individual right to defend one's self and one's family.
Fourth, the Court concluded that gun-control legislation banning the possession of all handguns, regardless of type, violated the individual right to possess and carry arms for the purpose of self-defense.
Fifth, the Court concluded that gun-control legislation, which required that lawfully possessed firearms remain locked and disassembled when in the home, violated the individual right to possess and carry arms for the purpose of self-defense.
The Court did, however, establish certain limits to the Second Amendment's guarantees. The Court stated:
"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions of the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing condition and qualifications on the commercial sale of arms."
Thus, as the Court recognized, there is ample room for constitutionally permissible gun-control legislation. Such gun-control legislation may limit the manner in which a firearm is carried, so long as the regulation does not negate the fundamental right of self-defense. Thus, while a regulation that forbade the carrying of loaded firearms would likely violate the Second Amendment (as forbidding the carriage of a loaded firearm would negate the right of self-defense), it is also likely that licensing regulations that limit the right to carry a concealed firearm (such as those that exist in Florida) are constitutionally permissible.
More important still, the Court recognized that the Second Amendment does not protect the right to carry any weapon whatsoever. As the court stated: "the sorts of weapons protected [by the Second Amendment] [are] those 'in common use at the time.'" The Court suggested that "unusual and dangerous" weapons are not necessarily protected by the Second Amendment. For instance, the Court made no objection whatsoever to current gun-control legislation that effectively "bans" fully-automatic weapons and "sawed-off shotguns."
How, then, does the Court's holding in Heller relate to calls for the renewal of the 1994 "Assault Weapons Ban," which severely regulated the possession of certain semi-automatic rifles? Certainly, it appears as though the Court left open the door for such legislation, assuming that semi-automatic rifles are not "in common use," but are rather considered "dangerous and unusual."
In Heller, the Court held that a complete ban of all handguns was unconstitutional, based upon a determination that handguns are weapons "in common use." However, the Court was unclear as to what factors speak to the commonality of a weapon. Do we measure the commonality of handguns based upon the number of legally possessed handguns in the country? Do we measure it by the percentage of gun owners who own handguns? Perhaps we measure it by the percentage of overall Americans who own handguns? The Court didn't say. Instead, the Court provided various reasons as to why an American might prefer a handgun to a rifle for purposes of self-defense. The Court also observed that: "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home."
According to the blog Crime, which is Slate's new "crime blog," the precise number of assault weapons in America is hard to pin down. Suffice it to say, conservative estimates place the number somewhere in the millions; which, as Crime puts it, "is a whole hell of a lot of assault weapons in America." No doubt, the NRA and other gun rights advocates will cite these numbers to argue that semi-automatic rifles--like handguns--are "in common use," and thus constitutionally protected.
On the contrary, gun-control advocates will argue that semi-automatic rifles are not as common as handguns and don't deserve the same constitutional protection. In support of this argument, they may convincingly cite the very reasons listed in the Heller decision as to why Americans prefer handguns over rifles for purposes of self-defense.
Assuming that a renewal of the "assault weapons" ban would not violate the Second Amendment, it is hardly clear that such legislation would appreciably impact homicide rates in America, or would impact the number of mass-murder incidents. As ABC News correctly observes, the very weapon used by Adam Lanza, a Bushmaster .223, wasn't even prohibited under the 1994 "assault weapon's" ban! In fact, much of the legislation was focused on the aesthetics of weapons, as opposed to the functionality of the weapon.
The 1994 "assault weapons" ban also included a prohibition on the possession of "high capacity magazines," which the law defined as magazines that held more than 10 rounds of ammunition. The theory behind calls for prohibitions on "high capacity magazines" is that with smaller magazines, a mass murderer like Adam Lanza would have to reload more often, and thus perhaps kill fewer victims. While in theory this may be true, in real-world shooting incidents, it is questionable whether the need to reload appreciably diminishes a shooter's killing efficiency. For instance, Seung-Hui Cho, who committed the deadliest school-shooting in American history, reloaded numerous times throughout his rampage. Indeed, investigators discovered 17 used magazines at the site of Norris Hall, where Cho murdered 30 people in the span of 10-12 minutes. What's more, he did so without the use of a semi-automatic rifle.
Of course, it is entirely possible that Cho may have killed even more people, had he not had to reload 17 times. From a policy perspective, the question is whether the potential danger of "high capacity magazines" outweigh the interest of law abiding citizens to rely upon such magazines for purposes of self-defense. From a legal perspective, the constitutionality of such a ban will hinge upon the Court's determination of whether banning "high capacity magazines" impermissibly deprives an individual to the right of self-defense, as a matter of law.
Other proposed gun-control legislation includes prohibiting the private sale of firearms, as such private sales do not require background checks. In the State of Florida, for instance, Florida Statutes 790.065 and 790.0655 regulate the sale of firearms by "licensed dealers," as well as at retail, but they don't address private sales. At a minimum, private sales in Florida are prohibited to the extent that the purchaser is a convicted felon or juvenile delinquent and/or a minor without parental consent. However, without any regulatory oversight, these minimum requirements are mostly unenforceable.
Nevertheless, there are numerous gun-control laws in the State of Florida that regulate the lawful possession and carriage of firearms. These regulations include, but are not limited to, the prohibition of Carrying a Concealed Firearm without a permit; Violation of a Concealed Firearm Permit (which is committed by carrying a firearm into certain sterile areas, such as police stations, courthouses, schools, bars, and professional sporting events); Possession of a Short-Barreled Rifle, Shotgun, or Machine Gun; and Selling or Possessing a Firearm with Altered/Removed Serial Number. It is also unlawful to Discharge a Weapon on School Property or to Improperly Exhibit a Firearm.
While these laws are enforced throughout the State of Florida, no combination of laws will ever blot out the insufferable existence of violent crime or mass murder. Gun-control laws, no matter how well-intentioned, are unlikely to affect the behavior of the criminally inclined or the mentally ill. Nevertheless, it is incumbent upon our society to take measures to staunch the disturbing trend of mass murder as much as possible. Whatever we do, it is imperative that we do not take action simply for the sake of taking action. We don't just need answers, we need real, effective answers. What is more, we cannot afford to sacrifice the rule of law and the fundamental liberties of which we are entitled. Perhaps, this Christmas, our political leadership will give us the gift of sober, reasoned judgment. That would be a Christmas Miracle, indeed.