The Second Amendment

by Michael Waldman

  Elena Kagan: Garance Franke-Rutka, “Justice Kagan and Justice Scalia Are Hunting Buddies—Really,” TheAtlantic.com, June 30, 2013.

  Voters overwhelmingly voted to change their state’s charter: Louisiana Constitution, Article One, Sec. 11, Acts 2012, No. 874, §1, approved November 6, 2012, eff. December 10, 2012.

  A judge overturned Draughter’s conviction: Claire Galofaro, “New Orleans Judge Rules Statute Forbidding Felons from Having Firearms Unconstitutional After ‘Fundamental Right’ Amendment,” New Orleans Times-Picayune, March 20, 2013, www.nola.com/crime/index.ssf/2013/03/new_orleans_judge_rules_statut.html. See also Claire Galofaro, “Gun Rights Amendment Helping Felons Charged with Illegal Gun Possession,” New Orleans Times-Picayune, March 8, 2013, www.nola.com/crime/index.ssf/2013/03/guns_rights_amendment_helping.html; State v. Draughter, Criminal Court for the Parish of Orleans, March 21, 2013, Case No. 512-135. The State Supreme Court will likely rule on an appeal by prosecutors.

  cases swamped the courts: Rick Jervis, “Louisiana Law Floods Courts with Pro Gun Cases,” USA Today, March 20, 2013, http://m.usatoday.com/article/news/2035561. Of course, courts may rule that there must be a tighter link between the previous felonious conduct and the risk of violence. Someone who has been convicted of a nonviolent crime (e.g., possession of marijuana) may pose less risk of violence than someone who has been convicted of assault, for example.

  A proposed law to require guns to be stored safely: Claire Galofaro, “Child Gun Deaths Shake Louisiana Communities,” Associated Press, July 14, 2013, www.sfgate.com/news/crime/article/Child-gun-deaths-shake-Louisiana-communities-4664566.php#page-1.

  referring to “existing law” three times: The White House, “Press Gaggle by Press Secretary Jay Carney en route Aurora CO,” July 22, 2012, www.whitehouse.gov/the-press-office/2012/07/22/press-gaggle-press-secretary-jay-carney-en-route-aurora-co-72212.

  “conspiracy to ensure re-election”: Sean Lengell, “NRA Official: Obama Wants to Outlaw Guns in 2nd Term,” Washington Times, February 10, 2012. For a video and transcript of LaPierre’s speech to the Conservative Political Action Conference (CPAC), see NRA News, www.nranews.com/resources/video/wayne-lapierre-at-cpac-2012/list/lapierre-speeches.

  the worst day of his presidency: Jonathan Alter, The Center Holds: Obama and His Enemies (New York: Simon & Schuster, 2013), 37–3.

  “It’s the first time”: James Warren, “The Worst Day: Newtown Massacre Made Obama Cry Twice,” New York Daily News, April 30, 2013. David Axelrod described the email in a public talk.

  “We will be told”: Remarks by the president at Sandy Hook Interfaith Prayer Vigil, Newtown High School, Newtown, Connecticut. December 16, 2012.

  Biden’s task force reported its recommendations: Remarks by the president and the vice president on Gun Violence, the White House, January 16, 2013, www.whitehouse.gov/the-press-office/2013/01/16/remarks-president-and-vice-president-gun-violence.

  But evidence is debatable at best: Colin Loftin et al., “Mandatory Sentencing and Firearms Violence: Evaluating an Alternative to Gun Control,” Law & Society Review 17 (1983): 287; Paul G. Cassell, “Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums),” Stanford Law Review 56 (2004): 1017.

  risks repeating errors: Inimai Chettiar, “In the War on Guns, Let’s Not Repeat History,” The Nation, January 30, 2013.

  25 percent of its prisoners: Roy Walmsley, World Prison Population List, International Centre for Prison Studies (2013).

  it was blocked by a filibuster: Brad Plumer,” Senate Bill to Extend Background Checks Killed by Filibuster,” “Wonkblog,” Washington Post, April 17, 2013, www.washingtonpost.com/blogs/wonkblog/wp/2013/04/17/senate-bill-to-extend-gun-background-checks-killed-by-filibuster/.

  The AR-15: Natasha Singer, “The Most Wanted Gun in America,” New York Times, February 2, 2013, www.nytimes.com/2013/02/03/business/the-ar-15-the-most-wanted-gun-in-america.html.

  it had shown limited impact: See, e.g., Christopher S. Koper, “An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994–2003,” Report to the National Institute of Justice, United States Department of Justice, Jerry Lee Center of Criminology, University of Pennsylvania, June 2004; Michael Luo and Michael Cooper, “Lessons in Politics and Fine Print in Assault Weapons Ban of ’90s,” New York Times, December 20, 2012, A1.

  “It seems to me”: The confrontation between Senators Cruz and Feinstein is available in David Frum, “Dianne Feinstein Won’t Abide Ted Cruz,” Daily Beast, March 14, 2013, www.thedailybeast.com/articles/2013/03/14/dianne-feinstein-won-t-abide-ted-cruz.html.

  The Fourth Amendment applies: For a discussion of the Fourth Amendment, see Stephen J. Schulhofer, More Essential Than Ever: The Fourth Amendment in the Twenty-First Century (New York: Oxford University Press, 2012).

  “The central message of Heller”: Laurence H. Tribe, “Protecting Communities While Respecting the Second Amendment,” Prepared testimony before the Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights, United States Senate, February 12, 2013, 4, www.judiciary.senate.gov/pdf/2-12-13TribeTestimony.pdf.

  Robert Levy, the Cato Institute chair: “Robert A. Levy on Gun Rights After Newtown Shooting,” Washington Post, January 10, 2013, http://articles.washingtonpost.com/2013-01-10/lifestyle/36272630_1_assault-weapons-high-capacity-magazines-military-style-guns.

  “closing in fast on your Right to Keep and Bear Arms”: Eric Lach, “NRA Warns Members That Confiscation Could Be Next,” Talking Points Memo, January 17, 2013.

  “Justice Scalia”: Morning Joe, MSNBC, transcript, January 9, 2013.

  “The first foundational principle”: Vice President Joseph R. Biden Jr., Remarks to the U.S. Conference of Mayors, January 17, 2013.

  when justices have issued a ruling to limit affirmative action: An example: in 1995, the Supreme Court applied “strict scrutiny” to racial classifications used by the federal government, in that case as they applied to government contractors owned by “socially and economically disadvantaged individuals.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). This came at a time of fierce pressure on the Clinton administration to end minority business preferences altogether, and amid a government-wide review of affirmative action. Clinton keyed off the ruling, announcing his goal on affirmative action was “mend it, don’t end it.” George Stephanopoulos wrote, “We finally came to see our decision had been made by the Court.” George Stephanopoulos, All Too Human (New York: Little, Brown, 1999), 369. See also Christopher Edley, Not All Black and White: Affirmative Action and American Values (New York: Hill & Wang, 2008).

  CHAPTER NINE: FLYING BLIND

  270 million civilian firearms: Aaron Karp, “Estimating Civilian Owned Firearms,” Small Arms Survey Research Notes, no. 9, September 2011, 2, www.smallarmssurvey.org.

  Every decade, gun ownership rates have slid: Sabrina Tavernese and Robert Gebeloff, “Share of Homes with Guns Shows 4-Decade Decline,” New York Times, March 20, 2013, www.nytimes.com/2013/03/10/us/rate-of-gun-ownership-is-down-survey-shows.html?ref=todayspaper&_r=0. The New York Times report relies on the General Social Survey, a biennial survey that asks about gun ownership. The Gallup Organization estimates a higher number of gun owners, but shows a similar drop. See also Philip J. Cook and Jens Ludwig, Guns in America: Results of a National Comprehensive Survey on Firearms Ownership and Use, National Institute of Justice Research Brief, 12, table 2.3 (1996), www.ncjrs.gov/pdffiles/165476.pdf.

  “Although there is little difference”: Daniel Webster et al., The Case for Gun Policy Reforms in America, Johns Hopkins Center for Gun Policy and Research, Johns Hopkins Bloomberg School of Public Health (October 2012), 2; Erin Richardson and David Hemenway, “Homicide, suicide, and unintentional firearm mortality: comparing the United States with other high-income countries, 2003,” Journal of Trauma 70 (2011): 238–243.

  gun violence is declining: D’Vera Cohn, Paul Taylor,
Mark Hugo Lopez, Catherine A. Gallagher, Kim Parker, and Kevin T. Maas, “Gun Homicide Rate Down 49% Since 1993 Peak; Public Unaware,” Pew Research Center, May 7, 2013, www.pewsocialtrends.org/2013/05/07/gun-homicide-rate-down-49-since-1993-peak-public-unaware/; Bureau of Justice Statistics, National Crime Victim Survey, National Institute of Justice, April 4, 2013, www.nij.gov/topics/crime/gun-violence/.

  crime rates are dropping all over the Western world: “Falling Crime: Where Have All the Burglars Gone,” The Economist, July 20, 2013, www.economist.com/news/briefing/21582041-rich-world-seeing-less-and-less-crime-even-face-high-unemployment-and-economic.

  Criminologists and sociologists have studied, and debated: See, e.g., Steven Levitt, “Understanding Why Crime Fell in the 1990s: Four Factors That Explain the Decline and Six That Do Not,” Journal of Economic Perspectives 18 (Winter 2004). Levitt finds that gun control laws have minimal impact on crime rates. The factors that contributed are more police, the rising prison population, the receding crack epidemic, and (controversially) the availability of legal abortion.

  A recent blue-ribbon panel: Charles F. Wellford, John V. Pepper, and Carol V. Petrie, eds., Firearms and Violence: A Critical Review (Washington, D.C.: National Academies Press, 2005).

  Such studies are inconclusive: To give a flavor of the debates: One study, conducted as an analysis of Washington, D.C.’s, restrictive handgun licensing, concluded it caused a prompt decline in homicides and suicides in the capital. Colin Loftin, David McDowall, Brian Wiersma, and Talbert Cottey, “Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia,” New England Journal of Medicine 325 (1991): 1615. Another study refuted that, noting that it had compared D.C. to neighboring states, rather than Baltimore, a city with similar economics and demography. That city’s homicide rate had dropped even more dramatically. Chester Britt, David J. Bordua, and Gary Kleck, “A Reassessment of the D.C. Gun Law: Some Cautionary Notes on the Use of Interrupted Time Series Designs for Policy Impact Assignment,” Law & Society Review 30 (1995): 361. One of the authors of the first study replied: in both cities, crime dropped, but in D.C. gun violence dropped further. David McDowall, Colin Loftin, and Brian Wiersema, “Using Quasi-Experiments to Evaluate Firearms Laws: Comment on Britt et al.’s Reassessment of the D.C. Gun Law,” Law & Society Review 30 (1996): 381.

  The NRA, of course, has a theory: See John R. Lott, Jr., More Guns, Less Crime (Chicago: University of Chicago Press, 1998).

  The book’s thesis proved wildly controversial: The tumult over John Lott’s work is thoroughly discussed in Mark Tushnet, Out of Range: Why the Constitution Can’t End the Battle over Guns (New York: Oxford University Press, 2007), 85–99. See also Chris Mooney, “Double Barreled Double Standards,” Mother Jones, October 12, 2003, www.motherjones.com/politics/2003/10/double-barreled-double-standards.

  found no credible evidence: A National Research Council panel was convened to examine the data. Fifteen of the sixteen panel members concluded it was not possible to draw the conclusions from the data that Lott drew. See Committee to Improve Research Information and Data on Firearms, Firearms and Violence: A Critical Review, Charles F. Wellford, John V. Pepper, and Carol V. Petrie, eds. (Washington, D.C.: National Academies Press, 2004), 2. A later reexamination of the data and the NRC analysis concluded that, if anything, the evidence shows an increase in aggravated assault when concealed carry laws are loosened. Abhay Aneja, John Donohue, and Alexandria Zhang, “The Impact of Right-to-Carry Laws and the NRC Report: Lessons for the Empirical Evaluation of Law and Policy” (June 29, 2010), 5th Annual Conference on Empirical Legal Studies Paper. Available at SSRN, http://ssrn.com/abstract=1632599. A general critique of Lott’s work is found in Ian Ayres and John Donahue III, “Shooting Down the More Guns, Less Crime Hypothesis,” Stanford Law Review 55 (2003): 1193.

  Mary Rosh: Richard Morin, “Scholar Invents Fan to Answer His Critics,” Washington Post, February 1, 2003.

  best known as a Fox News columnist: Lott’s prolific writings are available at his website, http://johnrlott.blogspot.com/, and at www.foxnews.com/archive/author/john-lott/index.html.

  “point person in Congress”: The provision was included in the Omnibus Appropriations Bill of 1996, Public Law 104-208, 104th Congress; Jay Dickey and Mark Rosenberg, “We Won’t Know the Cause of Gun Violence Until We Look for It,” Washington Post, July 27, 2012, http://articles.washingtonpost.com/2012-07-27/opinions/35486709_1_gun-violence-traffic-fatalities-firearm-deaths.

  Research funding: The shameful history of the funding freeze is described by one of the scientists whose work was targeted in Arthur L. Kellerman and Frederick Rivara, “Silencing the Science on Gun Research,” Journal of the American Medical Association 309, no. 6 (2013): 549–50.

  “The centers also ask researchers”: Michael Luo, “N.R.A. Stymies Firearms Research, Scientists Say,” New York Times, January 25, 2011.

  strong punishment for any crime involving a gun: James B. Jacobs, Can Gun Control Work (New York: Oxford University Press, 2002), 219–20.

  Policing practices changed markedly: See Franklin E. Zimring, The City That Became Safe (New York: Oxford University Press, 2012), 100–150.

  “community policing”: See “Community Policing Defined,” Office of Community Oriented Policing Services, U.S. Department of Justice, www.cops.usdoj.gov/Publications/e030917193-CP-Defined.pdf; Anthony A. Braga, “Police Enforcement Strategies to Prevent Crime in Hot Spot Areas,” Office of Community Oriented Policing Services, U.S. Department of Justice, www.cops.usdoj.gov/Publications/e040825133-web.pdf; Michael Powell, “Former Skeptic Now Embraces Divisive Tactic,” New York Times, April 9, 2012, www.nytimes.com/2012/04/10/nyregion/reducing-crime-squandering-good-will.html. There is some controversy over this definition of “community policing.” The Justice Department provides this definition: “Community policing, recognizing that police rarely can solve public safety problems alone, encourages interactive partnerships with relevant stakeholders.” The definition can be extended to include “hot spot” policing, which can include “stop and frisk” and “zero tolerance” policing. However, advocates and citizens sometimes see those tactics in direct opposition to community policing principles.

  controversial “stop and frisk” tactic: Some scholars believe Second Amendment concerns could curb stop and frisk. Lawrence Rosenthal, “Second Amendment Plumbing After Heller,” 34–78; Lawrence Rosenthal, “Second Amendment Plumbing After McDonald: Exploring the Contradiction in the Second Amendment,” Northwestern Law Review 105 (2011): 439; Philip J. Cook, Jens Ludwig, and Adam M. Samaha, “Gun Control After Heller: Threats and Sideshows from a Social Welfare Perspective,” U.C.L.A. Law Review 56 (2009): 1080.

  Evidence suggests: Steven Levitt “Using Electoral Cycles in Police Hiring to Estimate the Effect of Police on Crime,” American Economic Review 87 (1997): 270; Tomislav V. Kovandzic and John J. Sloan, “Police Levels and Crime Rates Revisited: A County-Level Analysis from Florida (1980–1998),” Journal of Criminal Justice 30 (2002): 65–76; Thomas B. Marvell et al., “Specification Problems, Police Levels, and Crime Rates,” Criminology 34 (1996): 609–46.

  “the possibility of constitutional litigation”: Cook et. al., “Gun Control After Heller,” 1089.

  ballistic microstamping: Cal. Penal Code Sec. 12126(b)(7). See Bob Egelko, “California to Enforce ‘Micro-Stamping’ Gun Law,” San Francisco Chronicle, May 18, 2013.

  “the bar mitzvah of the rural WASP”: B. Bruce-Briggs, “The Great American Gun War,” Public Interest (Fall 1976): 41, www.nationalaffairs.com/doclib/20080527_197604503thegreatamericangunwarbbrucebriggs.pdf.

  Franklin Roosevelt said he was calling up a “muster”: His speechwriter recounts that Roosevelt did not campaign for a “draft” in 1940, preferring a term that evoked Lexington and Concord. Samuel I. Rosenman, Working with Roosevelt (New York: Harper & Brothers, 1952), 241–42; Carol Gelderman, All the Presidents’ Words: The Bully Pulpit and the Creation of the Virtual Presidency (New York
: Walker and Company, 1997), 28.

  three million Americans were on active military duty: In 1970, 3,064,760 Americans were on active duty. In 2011, that number had dropped to 1,468,364 (even as the country grew over 50 percent in population during that time). U.S. Department of Defense; Information Please Database, www.infoplease.com/ipa/A0004598.html.

  “The general profile of gun owners”: “Why Own a Gun? Protection Is Now Top Reason,” Pew Research Center, March 12, 2013, www.people-press.org/files/legacy-pdf/03-12-13%20Gun%20Ownership%20Release.pdf.

  What matters is what people fear: Dan M. Kahan, “More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions,” Yale Faculty Scholarship Series, Paper 106 (2003).

  “Whether one is hierarchical”: Ibid., 18.

  “After Hurricane Sandy”: Wayne LaPierre, “Stand and Fight,” Daily Caller, February 13, 2013, http://dailycaller.com/2013/02/13/stand-and-fight/?print=1.

  Coney Island was unusually peaceful: Mark Morales, Erin Durkin, and Corky Siemaszko, “NRA Chief LaPierre Claims ‘Looters Ran Wild in South Brooklyn’ After Sandy, but Coney Island Residents Say He is Full of It,” New York Daily News, February 14, 2013, www.nydailynews.com/new-york/nra-boss-defames-brooklyn-sandy-screed-article-1.1264387. LaPierre might have gotten confused by the dustup between the Brooklyn borough president, Marty Markowitz, and Mayor Bloomberg over whether or not National Guard troops should be brought in to help with the aftermath of the storm. Bloomberg and the NYPD did not want anyone with guns other than New York police on the streets. Eli Rosenberg, “Bloomberg: The National Guard in Coney Is a Bad Idea,” The Brooklyn Paper, November 1, 2012, www.brooklynpaper.com/stories/35/44/all_martysnubbed_2012_11_02_bk.html. NRA officials unfamiliar with New York political folkways may simply have been baffled by the existence of a job called “Borough President.”

  “The only way to stop”: Transcript: NRA Statement from December 21 Press Conference, Hartford Courant, December 21, 2012.