10. Gun Control

The state laws controlling the purchase of firearms are varied and constantly changing. The laws reviewed here are current, but there is still a great amount of legislation pending before state governments designed primarily to make the legal purchase of guns more difficult. Each state has some form of restriction on the buying of guns, though rural states tend to be less restrictive in controlling guns than highly urban states due to the greater numbers of hunters and sportsmen in their populations. Nonetheless, in most states convicted felons and minors cannot purchase guns; in some, aliens and individuals with mental disabilities cannot. Machine guns, automatic weapons, sawed-off shotguns, and guns with silencers are banned in many.

One of the more controversial restrictions applied to the purchase of guns is a waiting period, in which a certain amount of time must pass between the time an individual purchases a gun and is able to take possession of the gun. With the rise in gun-related crimes, a number of states already have instituted waiting periods to discourage rash actions.

A recent controversial restriction on gun ownership surrounds possession of guns in schools. The controversy arose when the Supreme Court struck down, in 1995, the Federal Gun-Free School Zone Act as an unlawful federal interference with states’ abilities to govern themselves. Forty-nine states have legislation directly or indirectly affecting possession of guns in and around schools. Some of the states have enacted their legislation since the federal act was overturned, some have had such laws on their books for some time. In any case all states now specifically ban possession of firearms on school grounds.

GUN CONTROL

GUN CONTROL laws impose restrictions, limitations, or prohibitions on the ownership and use of firearms.

Colonial Era

The first American gun control laws were mandates that families own firearms, that they carry firearms on certain occasions (such as when going to church), and that they train with firearms periodically. These laws sometimes overlapped with militia laws, which required most able-bodied males to participate collectively in the military defense of their communities, using firearms supplied by themselves. However, the state gun control laws tended to go further, requiring gun ownership of people who were not part of the militia (for example, female heads of household).

In England gun control laws had frequently been imposed to disarm religious dissidents or the lower classes, especially during the restoration of the Stuart kings from 1660 to 1688. Colonial America had no analogous laws, although the Massachusetts Bay Colony in the 1630s did disarm the supporters of the religious dissident Anne Hutchinson, whose antinomian heresy favored a less rigid interpretation of the Bible.

Unlike religion, race has been a long-standing concern of American gun control laws. In 1640 Virginia's first recorded legislation about blacks barred them from owning guns. Fear of slave revolts led other southern colonies to enact similar laws. Southern militias enforced the laws preventing blacks from bearing arms, although this was far from the only function of the militia. Many colonial governments attempted to forbid trading firearms with Indians, but these laws were frequently evaded. Similar state and territorial laws in the nineteenth century also had little success.

Nineteenth Century

In antebellum nineteenth-century America, there were very few gun control laws of any kind that applied to white people. The major exception was a restriction on carrying concealed weapons, which was especially common in the South and which may have been an effort to suppress dueling.

An 1822 Kentucky decision, Bliss v. Commonwealth, interpreted the state constitution to declare a concealed handgun ban unconstitutional. Most courts, however, ruled that concealed handguns were an exception to the general right to bear arms under the Second Amendment and its many state constitutional analogues.

In 1846 with its Nunn v. State decision, the Georgia Supreme Court ruled that a ban on the sale of most handguns violated the Second Amendment of the Constitution. During the nineteenth century, several states enacted special restrictions on edged weapons that were considered suitable only for criminal use (especially bowie knives and dirks). State courts often but not always upheld these laws against constitutional challenges. Usually courts interpreted the state constitution to parallel the federal Second Amendment, and ruled that both state and federal constitutions protected an individual's right to bear arms—primarily the type of arms useful for "civilized warfare," such as rifles, shotguns, muskets, handguns, and swords, but not billy clubs or bowie knives. A minority of courts went further, and extended protection to arms that were useful for personal protection, even if not useful for militia-type service.

In the 1857 Dred Scott v. Sandford case, U.S. Supreme Court chief justice Roger B. Taney defended his holding that free blacks could not be citizens, for if blacks were citizens, they would have the right to "the full liberty of speech in public and private upon all subjects upon which its [a state's] own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." As with most other laws regarding free blacks, state-based restrictions on gun ownership by free blacks grew more severe in the decades leading up to the Civil War. In the early republic North Carolina had enrolled free blacks in its militia, but such a policy had become unthinkable by the 1850s.

Immediately after the Civil War several southern states enacted "black codes," which were designed to keep former slaves in de facto slavery and submission. To provide practical protection for defensive gun ownership by the freedmen, the Republican Congress passed the Freedmen's Bureau Acts (1866 and 1868) and the Civil Rights Act of 1871, and sent the Fourteenth Amendment to the states for ratification. Many southern states, however, reacted by passing gun control laws that were facially neutral, but designed to disarm only blacks. For example, Tennessee in 1871 banned all handguns except the "Army and Navy" models. Former confederate soldiers already owned their high-quality service pistols. Freedmen were precluded from obtaining the inexpensive pistols that were beginning to proliferate in the American market. Other southern states enacted licensing and registration laws. Class violence was the main motive for gun control in the North. For example, an 1879 Illinois law forbade mass armed parades, a measure targeted at fraternal labor organizations. In Presser v. Illinois (1886), the U.S. Supreme Court ruled that such parade bans did not violate the Second Amendment.

Twentieth Century

Concerns about anarchists, immigrants, and labor unrest became a powerful basis for gun control in the early twentieth century. South Carolina banned handgun sales and carrying in 1902, allowing only sales to and carrying by sheriffs and their special deputies (company "goons"). The ban was repealed in the 1960s. In 1911 Timothy Sullivan, a state senator from New York, authored the state's Sullivan Law, making a license a requirement for owning handguns and a separate, difficult-to-obtain license a requirement for carrying handguns. The law was sparked by concerns about gun crimes being perpetrated by immigrants, especially Italians and Jews. The Sullivan Law has usually been enforced with great stringency by the New York City Police Department, making it nearly impossible for New Yorkers to obtain a permit to own a handgun.

Oregon (1913) and Hawaii (1934) enacted handgun controls because of labor unrest tied to immigrant radicals. In 1934 California enacted a one-day waiting period (later expanded to fifteen days) for handgun purchases because of concerns about communism, as exemplified by San Francisco's "Red Raids." Many states enacted restrictions or prohibitions on gun possession by aliens.

Racial tension remained an important motive for gun control. Although blacks had been disarmed by the police and did not fight back against white mobs in the East St. Louis riot of 1917, the Missouri legislature still enacted a law requiring a police permit to obtain a handgun. In Michigan handgun permit laws were enacted after Dr. Ossian Sweet, a black man, shot and killed a person in a mob that was attacking his house because he had just moved into an all-white neighborhood. The Detroit police stood nearby, refusing to restrain the angry crowd. Defended by the civil rights attorney Clarence Darrow, Sweet was acquitted in a sensational 1925 trial.

Nationwide alcohol prohibition and the resulting gangster violence led to demands for additional gun control. The first federal law, banning the mail-order delivery of handguns, was enacted in this period. A number of states enacted licensing laws for the carrying of concealed weapons. Based on the model Uniform Pistol and Revolver Act, the laws were usually supported by gun rights advocates as a successful tactic to defuse calls for handgun prohibition. Federally, the National Firearms Act of 1934 imposed a $200 tax and a registration requirement on the ownership of machine guns, short-barreled shotguns, and other weapons thought to be favored by gangsters. A 1938 federal law required firearms dealers to possess federal licenses.

Gun confiscation laws in fascist and communist countries were widely reviled in the United States, and almost no gun control laws were enacted in the 1940s and 1950s. In 1941 Congress amended the Property Requisition Act (allowing the president to seize material needed for war) with specific language to protect the Second Amendment and to prevent the confiscation of personal firearms.

President John F. Kennedy's assassination in 1963 did not immediately lead to more gun control laws, but the urban riots of 1965–1968, sharply rising violent crime rates, and the 1968 assassinations of Martin Luther King Jr. and Robert Kennedy spurred a massive wave of gun controls. Illinois and New Jersey enacted statewide gun licensing; California, aiming at the Black Panthers, restricted the unconcealed carrying of firearms. New York City required the registration of long guns; and many other states and localities enacted laws, especially restrictions on gun carrying.

The federal Gun Control Act (GCA) of 1968 greatly tightened restrictions on firearms dealers, and created a federal list of "prohibited persons" (including convicted felons, persons dishonorably discharged from the military, and drug users) who were barred by federal law from possessing firearms. Concerns about abusive enforcement of the GCA led Congress in 1986 to pass the Firearms Owners' Protection Act, which invoked the Second, Fourth, and Fifth Amendments and restricted search and seizure powers of the federal Bureau of Alcohol, Tobacco and Firearms. The 1986 law also eased the 1968 restrictions on interstate sales of long guns and ammunition.

During this time the first enduring national gun control groups were founded. After a series of name changes, the groups became known as the Brady Campaign and the Coalition to Stop Gun Violence. Several other national groups were formed in the 1980s and 1990s, as well as many state or local affiliates of the national groups. Some celebrities became public advocates for gun control, including the comedian Rosie O'Donnell.

The two terms of the Clinton administration saw an explosion of gun control activity, with the enactment in 1993 of the Brady Act (imposing a waiting period that sunset in 1998) and the requirement that gun sellers use the "National Instant Check System" (a Federal Bureau of Investigations database of convicted felons) before selling guns to a customer at retail. The manufacture of so-called "assault weapons" (guns with a military appearance) was banned in 1994, as was the manufacture of magazines holding more than ten rounds. About a half dozen states have some kind of "assault weapon" law. The administration imposed many other restrictions, especially on gun dealers. According to President Bill Clinton, an antigun control backlash delivered the U.S. House and Senate to the Republicans in the 1994 elections and cost Al Gore the presidency in the 2000 election.

By the early twenty-first century almost all states adopted some kind of "preemption" law to limit or abolish local-level gun controls, thus reserving gun control legislation exclusively to the state legislature; preemption laws became especially popular after handguns were banned by the city of Washington, D.C., and by two Chicago suburbs, Morton Grove and Oak Park.

In 1988 Florida started a trend which by 2002 had led 33 states to adopt "shall issue" laws, requiring authorities to issue concealed handgun carry permits to all adult applicants who pass background checks and (in most states) a safety training class. During the early and mid-1990s when concern about youth violence was especially intense, many states enacted restrictions on juvenile gun (especially handgun) possession.

Over the years, about two dozen court cases have found a local, state, or federal gun control law to violate the Second Amendment or the right to bear arms clause that is contained in forty-four state constitutions. Most gun control laws, however, have withstood legal challenge.

BIBLIOGRAPHY

Carter, Gregg. The Gun Control Movement. New York: Twayne, 1997.

Cottrol, Robert, ed. Gun Control and the Constitution. New York: Garland, 1993.

Cramer, Clayton. For the Defense of Themselves and the State: The Original Intent and the Judicial Interpretation of the Right to Keep and Bear Arms. Westport, Conn.: Praeger, 1994.

Halbrook, Stephen P. Freedmen, The Fourteenth Amendment, and the Right to Bear Arms, 1866–1876. Westport, Conn.: Praeger, 1988.

Kopel, David B. The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies?. Buffalo, N.Y.: Prometheus, 1992.

Young, David, ed. The Origin of the Second Amendment. Ontonagon, Mich.: Golden Oak, 1995.

David B. Kopel

See also Brady Bill .

[T]his is one of the fundamental principles, upon which rests the great fabric of civil liberty, reared by the fathers of the Revolution and of the country. And the Constitution of the United States, in declaring that the right of the people to keep and bear arms, should not be infringed, only reiterated a truth announced a century before, in the act of 1689, 'to extend and secure the rights and liberties of English subjects'—Whether living 3,000 or 300 miles from the royal palace. …

If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the General Assembly to take away this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defence? In solemnly affirming that a well-regulated militia is necessary to the security of a free State, and that, in order to train properly that militia, the unlimited right of the people to keep and bear arms shall not be impaired, are not the sovereign people of the State committed by this pledge to preserve this right inviolate…

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.

—Excerpt from Nunn v. State, 1846

GUN CONTROL

Government regulation of the manufacture, sale, and possession of firearms.

The second amendment to the U.S. Constitution is at the heart of the issue of gun control. The Second Amendment declares that, "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."

To many, the language of the amendment appears to grant to the people the absolute right to bear arms. However, the U.S. Supreme Court has held that the amendment merely protects the right of states to form a state militia (United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 [1939]).

Even before the Miller opinion interpreted the Second Amendment in 1939, Congress, state legislatures, and local governing bodies were passing laws that restricted the right to bear arms. Kentucky passed the first state legislation prohibiting the carrying of concealed weapons, in 1813. By 1993, firearms were regulated by approximately 23,000 federal, state, and local laws.

State and local firearms laws vary widely. Thirteen states prohibit only the carrying of concealed handguns. At the other end of the spectrum, three Chicago suburbs—Morton Grove, Oak Park, and Evanston—ban handgun ownership outright. Generally, firearms regulations are more restrictive in large metropolitan areas.

State and local firearms laws and ordinances include outright bans of certain firearms, prohibitions on the alteration of certain firearms, and restrictions on the advertising of guns. State gun-control laws also address the theft of handguns, the inheritance of firearms, the use of firearms as collateral for loans, the possession of firearms by aliens, the discharge of firearms in public areas, and the alteration of serial numbers or other identifying marks on firearms. States generally base their power to control firearms on the police-power provisions of their constitutions, which grant to the states the right to enact laws for public safety.

Congress derives its power to regulate firearms in the commerce clause, in Article I, Section 8, Clause 3, of the U.S. Constitution. Under the Commerce Clause, Congress may regulate commercial activity between the states and commerce with foreign countries. In reviewing federal legislation enacted pursuant to the Commerce Clause, the U.S. Supreme Court has given Congress tremendous leeway. Congress may enact criminal statutes regarding firearms if the activity at issue relates to interstate transactions, affects interstate commerce, or is such that control is necessary and proper to carry out the intent of the Commerce Clause.

In 1927, Congress passed the Mailing of Firearms Act, 18 U.S.C.A. § 1715, which banned the shipping of concealable handguns through the mail. Congress followed this with the national firearms act of 1934 (ch. 757, 48 Stat. 1236–1240 [26 U.S.C.A. § 1132 et seq.]), which placed heavy taxes on the manufacture and distribution of firearms. One year later, Congress prohibited unlicensed manufacturers and dealers from shipping firearms across state borders, with the Federal Firearms Act of 1938 (ch. 850, § 2(f), 52 Stat. 1250, 1251).

In 1968, after the assassinations of President john f. kennedy, civil rights activists malcolm x and martin luther king jr., and Senator robert f. kennedy, Congress responded to the public outcry by passing the Gun Control Act of 1968 (GCA) (Pub. L. No. 90-615, § 102, 82 Stat. 1214 [codified at 18 U.S.C.A. §§ 921– 928]). This act repealed the Federal Firearms Act and replaced it with increased federal control over firearms. Title I of the act requires the federal licensing of anyone manufacturing or selling guns or ammunition. Title I also prohibits the interstate mail-order sale of guns and ammunition, the sale of guns to minors or persons with criminal records, and the importation of certain firearms. Title II of the act imposes the same restrictions on other destructive devices, such as bombs, grenades, and other explosive materials.

Between 1979 and 1987, a total of 693,000 people in the United States were assaulted by criminals armed with handguns. Statistics such as this, as well as high-profile shootings, such as that of President ronald reagan and his aide, James Brady, in 1981, led to pressure for further gun-control measures.

The congressional enactment in 1993 of the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536, marked the first significant federal gun-control legislation since the GCA in 1968. The act was named for James Brady, the White House press secretary who was critically and permanently injured in 1981 during an assassination attempt on President Ronald Reagan. The Brady Act amended the GCA, requiring U.S. attorney general to establish a national instant background check system and immediately put into place certain interim provisions until the federal system became operational. Under these interim provisions, a firearms dealer who sought to transfer a handgun was required to obtain from the proposed purchaser a statement, known as a Brady Form, that contained the name, address, and date of birth of the purchaser along with a sworn statement that the purchaser was not among those classes of persons prohibited from purchasing a handgun. The dealer was then required to verify the purchaser's identity and to provide the "chief law enforcement officer" (CLEO) within the jurisdiction with a copy of the Brady Form. With some exceptions, the dealer was required to wait five business days before completing the sale, unless the CLEO notified the dealer that there was no apparent reason to believe that the transfer would be illegal.

Take That! And That! The Gun Control Debate Continues

Gun control motivates one of U.S. law's fiercest duels.

Arguments favoring control range from calls for regulation to support for total disarmament. At the most moderate point of the spectrum is the idea that government should regulate who owns guns and for what purpose, a position held by the lobby Handgun Control Incorporated (HGI), which helped write the Brady law. This kind of monitoring is far too little for one antigun group, the Coalition to Stop Gun Violence, which demands a complete ban on manufacturing and selling guns to the general public. The opposition leaves room for only very slight compromise. The national rifle association (NRA)—the most powerful opponent of gun control—generally fights any restrictive measure. The NRA has opposed efforts to ban socalled cop-killer bullets, which can pierce police safety vests. It has supported background checks at the time of purchase, yet only if these are done instantly so as not to inconvenience the vast majority of gun buyers. Even more adamant is the group Gun Owners of America, which opposes any legal constraints.

With so many laws on the books, the question of gun control's constitutionality would seem already settled. Yet this is where the gun control debate begins. 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." Does this mean citizens have a constitutional right to own guns? The gun lobby says yes.

A minority of legal scholars believe that the framers of the bill of rights meant to include citizens along with "a well regulated Militia" in the right to bear arms. One supporter of this view is Professor Sanford Levinson, of the University of Texas, who argues that the Second Amendment is intended to tie the hands of government in restricting private ownership of guns. He charges that liberal academics who support gun control read only the Constitution's Second Amendment so narrowly.

The majority view is more restrictive in its reading. It pictures the Second Amendment as tailored to a specific right, namely, that of states to equip and maintain a state national guard. Harvard law professor Laurence Tribe argues that "[t]he Second Amendment's preamble makes it clear that it is not designed to create an individual right to bear arms outside of the context of a state-run militia."

This argument has a leading advantage over the minority position: it is what the U.S. Supreme Court has consistently held for over fifty years.

In the 1939 case of United States v. Miller, 307 U.S. 174; 59 S. Ct. 816, 83 L. Ed. 1206 (1939)—the only modern Supreme Court case to address the issue—a majority of the Court refused to find an individual constitutional right to bear arms.

Since the meaning of the Second Amendment seems well settled, the dispute has turned to pragmatics. How well does gun control work, if it works at all? Measuring lives saved by gun control is practically impossible; it is only possible to count how many lives are lost to gun violence. Advocates generally claim that the fact that lives are lost to guns and the possibility that even one life may be saved through gun control are justification enough for legislation. They can quantify gains of another sort under the Brady law. In early 1995, the justice department estimated that background checks had kept forty thousand felons from buying handguns, a figure derived from information provided by the state and local authorities who ran the checks.

Opponents say gun control is a gross failure. They argue that it never has kept criminals from buying guns illegally. Instead, they say, prohibition efforts have only been nuisances for law-abiding gun owners: city ordinances like Chicago's that ban handgun sales send buyers to the suburbs, and the Brady law's five-day waiting period amounts to another unfair penalty. Moreover, opponents rebut arguments about gun violence by insisting that guns are actually used to protect their owners from harm. The NRA's chief lobbyist has argued that the self-defense effectiveness of guns is proved by "the number of crimes thwarted, lives protected, injuries prevented, medical costs saved and property preserved."

Settling the gun control debate is no more likely than solving the problem of crime itself. In fact, only the latter could ever bring about the former. After all, it is violent crime, more than accidental gun deaths involving children, that animates the gun control movement. On this point, the two sides agree briefly and then diverge once again. Both want tougher action on crime. The key difference is that gun control opponents want such measures to include almost every traditional means available—more police officers, more prisons, and longer prison sentences—except the control of guns. Advocates believe there can be no effective anticrime measures without gun control.

A number of CLEOs objected to these interim provisions. Jay Printz of Montana and Richard Mack of Arizona, both CLEOs, filed actions in federal court challenging the constitutionality of the parts of the Brady Act requiring CLEOs to accept Brady Forms. In both cases, the district courts held that the provision requiring CLEOs to conduct background checks were unconstitutional. However, the U.S. Court of Appeals for the Ninth Circuit consolidated the two cases and reversed these decisions, finding none of the Brady Act's interim provisions unconstitutional.

The U.S. Supreme Court, in Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997), reversed the Ninth Circuit, ruling that the interim provisions were unconstitutional. The Court, per Justice antonin scalia, believed that the interim provisions disturbed the separation and equilibrium of powers among the three branches of the federal government. Under the Constitution, the president is to administer the laws enacted by Congress. The Brady Act "effectively transfers this responsibility to thousands of CLEOs in the 50 states," leaving the president with no meaningful way of controlling the administration of the law. Accordingly, CLEOs could not be required to accept Brady Forms from firearms dealers.

Other provisions of the Brady Act have also come under attack in the courts on constitutional grounds. For example, in Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), a former police officer challenged the act's prohibition of persons convicted of domestic violence offenses from possessing a firearm in or affecting interstate commerce. Gerald Gillespie, the plaintiff in the suit, was convicted of domestic violence and, as a result, lost his job as a police officer. Although the U.S. Court of Appeals for the Seventh Circuit found that Gillespie had standing to bring the suit challenging the Brady Act, it noted that the Second Amendment was intended to ensure protection by a militia for the people as a whole. Because it could not find a reasonable relationship between ownership of a particular gun and the preservation and efficiency of a state militia, Gillespie's claim failed. Other lower federal courts have similarly held that the Second Amendment does not prohibit the federal government from imposing some restrictions on private gun ownership.

In August 1994, Congress passed legislation banning so-called assault weapons under Title XI of the Public Safety and Recreational Firearms Use Protection Act (Pub. L. No. 103-322,

108 Stat. 1796 [codified as amended in scattered sections of 42 U.S.C.A.]). This act bans the manufacture, sale, and use of nineteen types of semi-automatic weapons and facsimiles, as well as certain high-capacity ammunition magazines.

In 1995, the U.S. Supreme Court set additional limits on gun control with its landmark decision in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626. In Lopez, the Court ruled that Congress had exceeded its authority under the Commerce Clause in passing a law that criminalized the possession of a firearm within 1,000 feet of a school (Gun-Free School Zones Act of 1990 [18 U.S.C.A. § 922(1)(1)(A)]). The Court held that because such gun possession was not an economic activity that significantly affected interstate commerce, it was beyond Congress's power to regulate.

The debate over gun control entered a new phase when, beginning in 1998, major U.S. cities brought lawsuits against the gun industry. Frustrated by decades of meager progress in gun control, as well as mounting costs in law enforcement and health care, mayors from such cities as New Orleans, Miami, Chicago, San Francisco, Cleveland, and Cincinnati looked beyond traditional regulation and tried litigation as a means to recoup the millions of dollars that the cities spend each year in coping with gun violence. The cities hoped to emulate the success of state governments in winning record settlements from the tobacco industry. In February 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 cities considered filing suits, the gun industry fought back with lobbying and launched preemptive strikes in state legislatures against future lawsuits.

Many of the lawsuits were dismissed. The gun industry enjoyed two victories in 2000 as judges dismissed suits brought by the cities of Philadelphia and Chicago. Charging the industry with a public nuisance, both cities sought to recover the public costs of gun violence, including medical care, police protection, emergency services, and prison costs. The cities 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 Chicago's claim because Chicago had failed to prove that gun manufacturers were responsible for public costs resulting from criminal gun violence. Likewise, a Pennsylvania judge dismissed Philadelphia's lawsuit because under the Pennsylvania Uniform Firearms Act—for which the gun industry lobbied—the state of Pennsylvania has the sole authority to regulate the industry.

State and federal appellate courts have generally held in favor of gun manufacturers as well. The California Supreme Court, in Merrill v. Navegar, Inc., 28 P.3d 116 (Cal. 2001), held that gun manufacturers cannot be held legally responsible when their products are used for criminal activity. The closely watched case stemmed from a 1993 shooting rampage in a San Francisco office tower that left eight people dead and six wounded. Similarly, the U.S. Court of Appeals for the Third Circuit, in Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001), upheld the dismissal of a suit brought by Camden County, New Jersey, which had accused several gun manufacturers of creating a public nuisance and acting negligently in its distribution of handguns. The Third Circuit also upheld the dismissal of the suit brought by the city of 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 manufacturer 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 criminals from scratching them off. It also promised to manufacture its handguns with trigger locks to prevent them from being fired by unauthorized 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 the United States. New York: Watts.

Dunlap, Colonel Charles J., Jr. 1995. "Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment." Tennessee Law Review 62.

Gasi, Scott. 2002. "Gun Control's 'Third Way': State and Local Gun Purchase Preference Plans and the Dormant Commerce Clause. Virginia Law Review 88 (March).

Gottfried, Ted. 1993. Gun Control: Public Safety and the Right to Bear Arms. Millbrook Press.

Hook, Donald D. 1993. Gun Control: The Continuing Debate. Second Amendment Foundation.

Kopel, David B., et al. 2003. Supreme Court Gun Cases. Phoenix, Ariz: Bloomfield Press.

Lock, Peter. 1999. Pervasive Illicit Small Arms Availability: A Global Threat. Helsinki, Finland: European Institute for Crime Prevention and Control, Affiliated with the United Nations.

Lott, John R., Jr. 2000. More Guns, Less Crime: Understanding Crime and Gun-Control Laws. 2d ed. Chicago: Univ. of Chicago Press.

McCoskey, William L. 2002. "The Right of the People to Keep and Bear Arms Shall Not be Litigated Away." Indiana Law Journal 77 (fall).

National Rifle Association Website. Available online at <www.nra.org> (accessed January 16, 2004).

Zelman, Aaron, and Richard W. Stevens. 2001. Death by "Gun Control": The Human Cost of Victim Disarmament. Hartford, Wis.: Mazel Freedom Press.

cross-references

Weapons.

GUN CONTROL

Every year, more than two thousand people die in the United States from gun-related injuries. The population groups most affected by these avoidable deaths are children and young adolescents. The misuse of firearms is a problem worldwide, of course. However, the incidence of firearm use does vary from country to country. According to the United Nations Report on Firearm Regulation, Crime Prevention, and Criminal Justice (1997), the United States has "weaker firearm regulations and higher numbers of deaths involving firearms than all other industrialised—and even most developing —nations." The study also noted that the total firearm death rate in the United States in 1995 was 13.7 per 100,000 people, "three times the average rate among other responding countries and the third highest, after Brazil and Jamaica."

More than half the homes in the United States possess firearms, so it is hardly surprising that they rank among the "ten leading causes of death … accounting for more than 30,000 deaths annually" (Wintermute 1987, p. 3107). While most people have guns primarily for sporting activities, many owners also have them for personal protection and security purposes.

The public health approach to violence prevention attempts not only to reduce the occurrence of violence, but also to limit the numbers of fatal and nonfatal injuries when such events occur. To prevent gun-related violence, indeed any type of violence, it is important to understand the dynamics of violence as well as the role of different kinds of weapons in both fatal and nonfatal injuries. Research from around the world indicates that sociostructural factors such as high unemployment rates, ethnic and religious hostilities, political instability, financial inequalities, lack of resources, and economic deprivation increase the likelihood of violence. When guns are readily available in such settings, or where legislation to curb their illegitimate use is lax or inappropriate, injuries are more likely to occur, intentional or otherwise. Individual factors can also precipitate violence, including the use of firearms. Substance and alcohol abuse, mental disorders, feelings of personal inadequacy and social isolation, and an individual's experience with violence in the home are among some of the factors that have been associated with violence. One thing is certain: The more guns there are in circulation, the greater the likelihood that they will be misused. Hence, from a public health perspective, it is important to devise strategies which aim to ensure that those in possession of arms use them for legitimate purposes and not for violent or criminal acts.

There are a variety of ways of dealing with the problems caused by guns in society, and legislation is one of the methods most commonly used. Franklin Zimring has noted that laws that regulate gun use fall into three categories: those that limit the place and the manner of firearm use, those that keep guns out of the hands of high-risk users, and those that ban high risk firearms. Place and manner legislation sets out to do as it suggests, to limit certain uses of firearms in certain locations. Examples include banning the use of firearms in public places and prohibiting the carrying of a firearm (except for those carried by security personnel and police). This legislation is difficult to implement, however, without the active support of the police force, and that support requires additional funding to make sure that police monitor potentially violent events.

Successful place and manner legislation has been implemented in the country of Columbia, where firearms are involved in 80 percent of homicides. Here, an innovative gun control intervention was implemented by the Program for Development, Security, and Peace (DESEPAZ), in collaboration with the Mayor of Cali, Colombia's third largest city. A police-enforced ban was introduced in Cali that prohibited carrying firearms on weekends, public paydays, public holidays, and election days because "such periods were historically associated with higher rates of homicide" (Villaveces 2000, p. 1206). Media-led information campaigns informed the public of the new gun control measure. On the days when the ban was in operation, police set up strategically located checkpoints in areas of the city where criminal activities were commonplace, and they conducted random searches of individuals. "During the ban, police policy directed that if a legally acquired firearm was found on an individual, the weapon was to be temporarily taken from the individual and the individual fined. Individuals without proof of legally acquiring the firearm were to be arrested and the firearm permanently confiscated" (Villaveces, p. 1206). The aggressive intervention program operated in Cali during 1993 and 1994. A similar intervention was applied in Bogota from 1995 to 1997. The researchers studying the preventive effects of these measures reported that the "rate of homicide (in Cali) was 14 percent lower than expected during periods when the ban on carrying firearms was in effect" while it was "13 percent lower than expected (in Bogota) during intervention periods" (Villaveces, p. 1209). Whether such a program would work in areas where homicide rates are not as high is debatable. However, the researchers of this study suggest that this initiative could be replicated in places where similar conditions exist.

Denying high-risk users access to firearms is the second type of legislative tool to control gun misuse. In order for this approach to work, the law has to define clearly who falls into the category of "high-risk user." The term is usually applied to convicted criminals, those deemed "mentally unfit," and to drug addicts. It also applies to minors. Such legislation attempts to make it difficult for members of these groups to possess a firearm.

Every year, in developed and developing countries across the globe, thousands of children and young adolescents die while playing with loaded guns. Additionally, studies have shown that adolescents are vulnerable in terms of firearm misuse and successful suicide attempts. In the United States between 1965 and 1985 "the rate of suicide involving firearms increased 36 percent, whereas the rate of suicide involving other methods remained constant. Among adolescents and young adults, rates of suicide by firearms doubled during the same period" (Kellermann 1992, p. 467). Restricting the access minors have to weapons can help to reduce these events. Many states now attempt to prevent high-risk groups from obtaining firearms by identifying "ineligible" individuals before they can acquire a gun. Minors would obviously fall into this category. "The screening system included in U.S. legislation known as the Brady Bill permits police to determine whether a prospective gun purchaser has a criminal record. If the check turns up nothing … the purchaser can obtain the gun" (Zimring 1991, p. 53).

There are limitations to legislation that denies high-risk users access to firearms. Again, this kind of a law is difficult to enforce because it needs continuous police surveillance and relies heavily on the "ineligible person" actually being caught in possession of a firearm. It assumes that the potential outcome of being caught and punished will dissuade such persons from obtaining firearms. Moreover, there will always be alternative ways of obtaining a weapon, whether it be through the black market, theft, or getting another person to purchase the weapon. Screening systems also carry a cost and imply delays. However, even with these limitations, such legislation is a step in the right direction, as it can help to ensure that firearms are not sold directly to convicted felons or to minors. To overcome some of these difficulties, many states now require gun owners to register their weapons. However, many crimes are committed with stolen weapons that are used by someone other than the registered legal owner.

The third legislative strategy used to combat the misuse of firearms is to introduce legislation regulating the use of very dangerous weapons. Such "laws … limit the supply of high risk weapons" and "can complement the strategy of decreasing high risk uses and users" (Zimring, p. 53). Such supply reduction laws "strive to make the most dangerous guns so scarce that potential criminals cannot obtain them easily" (Zimring, p. 52). They also set out rigid requirements that must be met to prove that possession of such a weapon is necessary. Sawed-off shotguns, machine guns, and certain military devices are the kinds of weapons covered by this type of legislation. Research into this area in the United States has shown that states in which such strict laws operate have lower levels of violent crime than states that do not.

Another means of legislating for firearm misuse is to introduce stiff penalties for criminals caught using firearms. "More than half of the states in the USA have passed such laws. This approach is popular with gun owners because the penalties concern only gun related crime and place no restrictions on firearm ownership" (Zimring, p. 52).

Attempting to legislate for the complex realities of gun-related violence is a daunting task. The ideal gun control measure would be one that would "prevent all crime and violence involving guns without interfering with their legitimate use in contemporary life." In reality, the best we are likely to achieve is to reduce the problems caused by the illegitimate use of firearms while "minimizing the restraints on the legitimate uses of guns" (Zimring, p. 52). The strategy, or combination of strategies, employed in any given context will depend on the nature and severity of the problem.

Pamela Hartigan

Elaine Lammas

(see also: Adolescent Violence; Community Health; Legislation and Regulation; Suicide; Terrorism; Violence )

Bibliography

Kellermann, A. L.; Rivara, F. P.; Somes, G.; Reay; D. T.; Francisco, J.; Banton, G.; Prodzinski, J.; Fligner, C.; and Hackman, B. B. (1992). "Suicide in the Home in Relation to Gun Ownership." New England Journal of Medicine 327(7).

Villaveces, A.; Cummings, P.; Espitia, V. E.; Koepsell, T. D.; McKnight, B.; and Kellermann, A. L. (2000). "Effect of a Ban on Carrying Firearms on Homicide Rates in 2 Colombian Cities." Journal of the American Medical Association 283(9).

Wintermute, G. J.; Teret, S. P.; Kraus, J. F.; Wright, M. A.; and Bradfield, G. (1987). "When Children Shoot Children." Journal of American Medical Association 257(22).

Zimring, F. E. (1991). "Firearms, Violence and Public Policy." Scientific American (November).

GUN CONTROL

Government regulation of the manufacture, sale, and possession of firearms.

Assault Weapons Ban Expires

In September 2004, the federal government's ban on the sale and distribution of certain classes of assault weapons ended. Gun-control advocates and those opposed to gun control viewed the law, which went into effect in 1994, as being so porous as to be ineffective. Nevertheless, the issue continues to draw heated debate as both sides argue over whether to reinstate the ban.

The National Rifle Association (NRA), which called the ban "misguided," cheered its demise. Other groups predicted that allowing the ban to expire would have tragic consequences for the country.

The ban took effect in September 1994, under the signature of President Bill Clinton. The law contained a provision that it would expire in ten years unless Congress specifically reauthorized its extension.

The 1994 ban outlawed 19 weapons by name, including TEC-9s, Uzis, and AK-47s. Some of the banned weapons had already been banned by a 1989 firearms-importation law. That law made it illegal to possess semiautomatic weapons that had been manufactured after the ban went into effect if they accepted detachable magazines and had at least two features from a list of banned items.

Manufacturers increased production prior to the ban's implementation. When the ban went into effect, it exempted more than 1.5 million privately owned assault weapons. Moreover, throughout the duration of the ban, manufacturers legally produced more than 1 million assault weapons, and they were able to do so because of various loopholes in the law. For example, they made non-collapsible stocks rather than collapsible ones. They added muzzle brakes and sawed off bayonet lugs. The changes turned the weapons from illegal military-style weapons to legal sports weapons, but these so-called post-ban assault weapons were not significantly different from their now-illegal predecessors.

Since expiration of the ban, many gun manufacturers and sellers claimed that they saw a slight, temporary spike in sales but that they had seen no sustained surge in sales of the weapons. Gun-control advocates question the gun industry's self-reported information.

The use of assault weapons in gun crimes is estimated to be between two and eight percent of the total, but the weapons make widespread headlines when they are used, such as in the 2002 Washington, D.C., sniper attacks. Since the early 1990s, gun crime in the United States has dropped dramatically. Some observers credit the ban; others cite stiffer criminal sentences.

On March 14, 2005, Senators Diane Fein-stein (D-CA.), John W. Warner (R-VA), Charles Schumer (D-NY), and Mike DeWine (R-OH) introduced legislation to reestablish the assault

weapons ban. In a congressional press release, Feinstein said the expiration of the ban has brought "open season for criminals who want the most dangerous types of military-style assault weapons" and that the weapons are valued by "terrorists, gang members, and grievance killers."

Senator Schumer credited the drop in gun crime in the United States during the 1990s in part to the ban. He stated, "There is no legitimate use for these weapons, period. They are designed to kill people in great numbers and have been used to target our police officers around the country. The Second Amendment can thrive while we take limited and reasonable measures to protect American families from gun violence."

The 2005 version is identical to the 1994 version. Feinstein has said that she would like to toughen the assault weapons ban. She has not done so because she believes that doing so would make congressional approval even more difficult to obtain.

The Senate's proposed ban exempts 670 hunting and recreational rifles by name. It also exempts certain other types of weapons, such as antique and bolt-action weapons.

Feinstein's proposed ban retains the 19 specifically named weapons that originally were banned in 1994. It also "bans the importation of large capacity ammunition feeding devices" and "all semiautomatic pistols that can accept a detachable magazine and have at least two listed features, including a pistol grip or thumbhole stock; folding stock or telescopic stock; flash suppressor or a threaded barrel capable of accepting a flash suppressor; bayonet mount; or grenade launcher." Other semiautomatic pistols that are banned include those that "…have at least two listed features, including an ammunition magazine that attaches outside of the pistol grip; a threaded barrel; a shroud that permits the shooter to hold the firearm with the nontrigger hand without being burned; or a manufactured weight of at least 50 ounces (unloaded)."

As many as 70 per cent of Americans support the ban, according to many polls. President Bush has said that he would approve the renewal of the assault weapons ban if Congress were to pass it. He has been criticized, however, for not encouraging Congress to reinstate the ban. In 2004, when asked why Congress has not reinstated the assault weapons ban, Senator John McCain (R-AZ) stated, "The NRA rules here." According to Senator Schumer, the problem stems from the fact that those who support the ban do not base their voting decisions on the issue, but those who oppose the ban do, and thus the latter have a powerful voice.

Several states, including California, Massachusetts, Hawaii, and New York, have enacted their own bans on assault weapons. National police organizations have typically endorsed these bans.

Small v. United States

In April 2005, the U.S. Supreme Court rendered a decision that limited the application of a federal gun-control law. The case focused on the prosecution of Gary Sherwood Small, who had been convicted by a Japanese court on charges of smuggling firearms into Japan. After he returned to the United States, he was charged with possessing a firearm in violation of a federal statute that forbids anyone with a criminal conviction from possessing a firearm or ammunition. The Court held that the Japanese conviction did not count for purposes of the federal statute. The ruling resolved a split of opinion among the lower federal courts .

On April 12, 1994, a Japanese district court convicted Small of violating the Japanese Act Controlling the Possession of Firearms and Swords, the Gunpowder Control Act, and the Customs Act. These convictions were punishable by terms of imprisonment of more than one year each. The court in Japan sentenced Small to prison for five years, of which he served two. After Small served time in Japan, he returned to the U.S. In June 1998, he purchased a pistol at a gun shop in Pennsylvania but did not disclose the history of his Japanese conviction on the federal form. He purchased the gun from a federally licensed firearms dealer.

A federal statute forbids any person "who has been convicted in any court of…a crime punishable by imprisonment for a term exceeding one year" to possess a firearm or ammunition. 18 U.S.C. §922(g)(1) (2000). The statute also forbids anyone from making a false statement to a federally licensed firearms dealer. 18 U.S.C. §922(a)(6). Small was indicted by a federal grand jury on August 30, 2000 on four counts related to these statutes.

Small, a decorated Vietnam combat veteran and former police officer, filed a motion with the U.S. District Court for the Western District of Pennsylvania to dismiss the indictment against him. He argued that his conviction by a Japanese court should not count as a predicate offense under 18 U.S.C. §922(g)(1). The court, in an opinion by U.S. District Judge Robert Cindrich, reviewed the meaning of the language "any court" in the statute. After reviewing precedent from other jurisdictions, the court held that the Japanese conviction should count for purposes of the statute. "'Any' court means any court and there is nothing in the plain and unambiguous language of Section 922 indicating that Congress intended to exclude foreign convictions from such a broad term," Cindrich wrote. United States v. Small, 183 F. Supp. 2d 755 (W.D. Penn. 2002).

Small also argued that even if a foreign conviction should count under the statute, the Japanese conviction should not count because the court in Japan had deprived him of a fundamentally fair trial. He alleged numerous violations of rights that he would have had in a domestic court, including: denial of the right to bail, interrogation for a period of 25 consecutive days, denial of a right to a speedy trial, replacement of a judge in the middle of the proceedings, and numerous other allegations. The district court reviewed each of these contentions but found that the trial in Japan had been fundamentally fair. Thus, the court denied Small's motion. United States v. Small, 183 F. Supp. 2d 755 (W.D. Penn. 2002).

Small entered a conditional guilty plea with the district court on March 14, 2002. The district court sentenced Small to eight months in prison, pending an appeal of his motion to dismiss. Small appealed the district court's decision on the motion to the U.S. Court of Appeals for the Third Circuit. In a relatively short opinion, the appellate court affirmed the district court's ruling. According to the Third Circuit, the district court did not err in holding that convictions in foreign courts should count for purposes of 18 U.S.C. §922(g)(1). It also held that the district court had properly reviewed the Japanese conviction to determine that the process had been fundamentally fair. United States v. Small, 333 F.3d 425 (3d Cir. 2003).

The Third Circuit ruled consistently with the Fourth Circuit and the Sixth Circuit, each of which found that foreign convictions should count for purposes of Section 922(g)(1). United States v. Atkins, 872 F.2d 94 (4th Cir. 1989); United States v. Winston, 793 F.2d 754 (6th Cir. 1986). However, the Second Circuit and the Tenth Circuit reached the opposite conclusion. United States v. Gayle, 342 F.3d 89 (2d Cir. 2003); United States v. Concha, 233 F.3d 1249 (10th Cir. 2000).

The Supreme Court granted certiorari to resolve the split in the lower courts. In an opinion by Justice Stephen Breyer, the Court disagreed that the term "any court" was unambiguous. The Court instead investigated whether Congress could have intended to include both foreign and domestic convictions when it drafted the statute. According to Breyer's opinion, "The statute's language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute's language creates anomalies." After citing numerous instances in which the inclusion of foreign convictions would render the application of the statute difficult, the Court held that the statute should only apply to domestic convictions. Accordingly, the Court reversed the Third Circuit's decision. Small v. United States, No. 03-750, 2005 WL 946620 (U.S. 2005).

Justice Clarence Thomas dissented, admonishing the majority for its method of statutory construction. "The Court never convincingly explains its departure from the natural meaning of §922(g)(1)," Thomas wrote. "Instead it institutes the troubling rule that 'any' does not really mean 'any'…"