Proposed Gun Control Legislation Does Not Violate Second Amendment - Say 52 US Law Profs

[Wetcoaster]

Here is what Geoffrey R. Stone (Edward H. Levi Distinguished Service Professor of Law, University of Chicago) and UCLA law professor Adam Winkler have to say and they are joined by 50 of the most distinguished US constitutional law professors. In their opinion the proposed changes are constitutional and in line with the SCOC case law set out in the 2008 case of District of Columbia v. Heller, 554 U.S. __, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).

http://www.huffingtonpost.com/geoffrey-r-stone/the-second-amendment_b_2581625.html

The following statement, which UCLA law professor Adam Winkler and I crafted, was signed by more than fifty of the nation's most distinguished constitutional law professors. The statement refutes unfounded claims that the Second Amendment precludes Congress from enacting legislation to reduce gun violence in the United States. Although these scholars hold widely divergent views on constitutional interpretation, and often fiercely disagree on a broad range of constitutional issues, they all agree on this question. The statement was submitted today to Congress in anticipation of the beginning of hearings on the proposed legislation.

Statement of Professors of Constitutional Law: The Second Amendment and the Constitutionality of the Proposed Gun Violence Prevention Legislation

Several proposed reforms to the nation's gun laws, including universal background checks and restrictions on high-capacity ammunition magazines and assault weapons, are now pending before Congress. Concerns have been raised that these measures might violate the Second Amendment. We, the undersigned professors with expertise in constitutional law, write to address those concerns.

In 2008, the U.S. Supreme Court held that the Second Amendment, which provides, "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," guarantees an individual's right to have a functional firearm in the home for self-defense. The Court's decision in that case, District of Columbia v. Heller, struck down a D.C. law that effectively barred the use of any firearm for self-defense. The law is now clear that the government may not completely disarm law-abiding, responsible citizens. The Court also made clear, however, that many gun regulations remain constitutionally permissible. "Like most rights," the Court explained, "the right secured by the Second Amendment is not unlimited." Writing for the Court, Justice Antonin Scalia explained that restrictions on "dangerous and unusual" weapons are constitutional and that "nothing in our opinion should be taken to cast doubt" on laws that prohibit "the possession of firearms by felons or the mentally ill" or laws that impose "conditions and qualifications on the commercial sale of arms."

In this sense, Justice Scalia recognized in Heller that, like other constitutional rights, the Second Amendment is not an absolute. The First Amendment, for example, provides that "Congress shall make no law... abridging the freedom of speech," but the Supreme Court has long and consistently held that some types of speech -- for example, defamation, obscenity and threats -- can be regulated; that some people -- for example, public employees, members of the military, students and prisoners -- are subject to greater restrictions on their speech than others; and that the government can reasonably regulate the time, place and manner of speech. As Justice Scalia explained in Heller, the rights guaranteed by the Second Amendment are likewise subject to appropriate regulation in order to enhance public safety.

In acknowledging the presumptive constitutionality of laws designed to prevent gun violence, including restrictions on who has access to firearms and what types of firearms they may have, Heller is consistent with the history of the right to keep and bear arms. The founding fathers who wrote and ratified the Second Amendment also had laws to keep guns out of the hands of people thought to be untrustworthy. Such laws were necessary to ensure that the citizen militia referenced in the Second Amendment was "well regulated." In the 1800s, many states restricted the sale or public possession of concealable firearms. In the early twentieth century, the federal government restricted access to unusually dangerous weapons, such as machine guns, and states barred people convicted of certain felonies from possessing firearms. Laws such as these were routinely upheld by the courts, which recognized the legitimacy of legislative efforts to keep the most dangerous weapons out of the hands of the most dangerous people.

While the permissibility of any particular reform depends on its details, the reforms currently being considered by Congress are clearly consistent with the Second Amendment. We express no view on the effectiveness or desirability of the policies reflected in the various proposals, but we all agree that none infringes the core right identified by the Court in Heller.

Universal background checks, especially those conducted instantaneously through the National Instant Background Check System, do not impose a significant burden on law-abiding citizens. Yet background checks may provide an important safeguard against easy access to guns by members of criminal street gangs, other felons and the mentally ill. As with other rights that have eligibility criteria, such as the right to vote, the right to keep and bear arms is not offended by neutral measures designed to ensure that only eligible, law-abiding citizens exercise the right. Moreover, background checks imposed at the point of sale are typical of the "conditions and qualifications on the commercial sale of arms" recognized by the Supreme Court in Heller.

Restrictions on the manufacture and sale of high-capacity ammunition magazines and assault weapons are also consistent with the Second Amendment. In a recent opinion authored by Judge Douglas Ginsburg and joined by Judge Karen Henderson, the U.S. Court of Appeals for the District of Columbia Circuit held that such regulations are consistent with the Second Amendment and with the Supreme Court's decision in Heller. The court of appeals recognized such weapons and magazines are not necessary for individual self-defense -- what Heller called the "core lawful purpose" of the Second Amendment. Restrictions on high-capacity magazines and assault weapons, the court of appeals held, do "not effectively disarm individuals or substantially affect their ability to defend themselves." The Second Amendment, like the First Amendment, does not prevent lawmakers from enacting reasonable regulations that do not seriously interfere with the core right guaranteed by the Constitution.

The Supreme Court has clearly held that the Second Amendment preserves the right of law-abiding citizens to have a firearm in the home for self-defense. As both the historical tradition of the right to bear arms and the Court's decision suggest, reasonable and limited measures to enhance public safety that do not unduly burden that right are consistent with the Second Amendment.

Signed,

Bruce Ackerman

Sterling Professor of Law and Political Science, Yale Law School

Albert W. Alschuler

Julius Kreeger Professor Emeritus, The University of Chicago Law School

Mitchell N. Berman

Richard Dale Endowed Chair in Law, The University of Texas School of Law

Ashutosh Bhagwat, Professor of Law

UC Davis School of Law

Joseph Blocher

Associate Professor of Law, Duke Law School

Lee C. Bollinger

President, Columbia University

Rebecca L. Brown

Newton Professor of Constitutional Law, USC Gould School of Law

Alan Brownstein

Professor of Law, Boochever and Bird Chair, UC Davis School of Law

Erwin Chemerinsky

Dean and Distinguished Professor of Law, UC Irvine School of Law

Dan T. Coenen

University Professor and Harmon W. Caldwell Chair, University of Georgia Law

Walter E. Dellinger III

Douglas B. Maggs Emeritus Professor of Law, Duke Law School

Michael C. Dorf

Robert S. Stevens Professor of Law, Cornell University Law School

Lee Epstein

Provost Professor and Rader Family Trustee Chair in Law, USC Gould School of Law

Richard A. Epstein

Laurence A. Tisch Professor of Law, New York University School of Law

Daniel A. Farber

Sho Sato Professor of Law, UC Berkeley School of Law

Owen M. Fiss

Sterling Professor Emeritus of Law and Professorial Lecturer in Law, Yale Law School

Charles Fried

Beneficial Professor of Law, Harvard Law School

Barry Friedman

Jacob D. Fuchsberg Professor of Law, New York University School of Law

Risa Goluboff

Justice Thurgood Marshall Professor of Law, The University of Virginia School of Law

Jamal Greene

Professor of Law, Columbia Law School

H. Kent Greenfield

Professor of Law and Law Fund Research Scholar, Boston College Law School

Ariela Gross

John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law

Roderick M. Hills, Jr.,

William T. Comfort, III Professor of Law, New York University School of Law

Samuel Issacharoff

Bonnie and Richard Reiss Professor, New York University School of Law

John C. Jeffries, Jr.

David and Mary Harrison Distinguished Professor and former Dean, University of Virginia

Dawn Johnsen

Walter W. Foskett Professor of Law, Indiana University Maurer School of Law

Mark R. Killenbeck

Wylie H. Davis Distinguished Professor of Law, University of Arkansas School of Law

Ronald J. Krotoszynski, Jr.

John S. Stone Chair, Professor of Law, University of Alabama

Carlton F.W. Larson

Professor of Law, UC Davis School of Law

Lawrence Lessig

Roy L. Furman Professor of Law, Harvard Law School

Sanford V. Levinson

W. St. John Garwood and W. St. John Garwood, Jr., Centennial Chair, University of Texas

William P. Marshall

William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina

Frank I. Michelman

Robert Walmsley University Professor, Emeritus, Harvard Law School

Darrell Miller

Professor of Law, University of Cincinnati College of Law

Alan B. Morrison

Lerner Family Associate Dean, The George Washington University Law School

Gene R. Nichol

Boyd Tinsley Distinguished Professor of Law, UNC School of Law

Spencer A. Overton

Professor of Law, The George Washington University Law School

Eric Posner

Kirkland & Ellis Distinguished Service Professor, The University of Chicago Law School

Lawrence Rosenthal

Professor of Law, Chapman University School of Law

Theodore Ruger

Professor of Law, University of Pennsylvania Law School

Jane S. Schacter

William Nelson Cromwell Professor of Law, Stanford Law School

Stephen J. Schulhofer

Robert B. McKay Professor of Law, New York University School of Law

Neil S. Siegel

Professor of Law and Political Science, Duke Law School

Reva Siegel

Nicholas deB. Katzenbach Professor of Law, Yale Law School

Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor and former Dean, The University of Chicago

David A. Strauss

Gerald Ratner Distinguished Service Professor of Law, The University of Chicago

Laurence H. Tribe

Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School

Mark Tushnet

William Nelson Cromwell Professor of Law, Harvard Law School

Jonathan D. Varat

Professor of Law and former Dean, UCLA School of Law

Keith Wehran

Ashton Phelps Chair of Constitutional Law, Tulane University School of Law

Adam Winkler

Professor of Law, UCLA School of Law

http://www.huffingto..._b_2581625.html

[Wetcoaster]

And a considered response from the NRA's CEO Wayne Lapierre.

When Will These Senseless Gun Debates Come To An End? By Wayne LaPierre

We live in a great country. Between our democratic values, constitutional freedoms, and rich traditions, Americans enjoy immense privileges and benefits that allow us to enjoy the highest standard of living in the world. But, my friends, there is one area where I would like to say “Enough is enough.” For all our pride and progressivism, America still has a well-documented history of gun debates spanning back centuries—shocking and horrific debates that, despite our best efforts, show no signs of abating.

So, as a concerned American living in the 21st century, I must ask: What will it take for these senseless gun debates to end?

The answer is not a simple one. Sadly, the United States is a culture in which gun debates are deeply embedded and ingrained, with American children witnessing thousands and thousands of discussions on gun control and regulation by the time they are grown. For countless numbers of youths, these discourses on proper policing of handguns and rifles have become simply a fact of life. Why, it seems like everytime I turn on the television I see that some crazed reformer in Washington has unleashed yet another horrific gun debate, presenting their legislative arguments to dozens of colleagues.

It’s truly tragic.

Nearly every incident is the same: some progressive madman, having convinced himself that gun debates are the solution to some problem or another—God only knows what—devises a plan to present a meticulously researched plan on gun reform to a group of innocent citizens or pro-gun advocates, often at a large party, town hall, or congressional hearing. When the time comes, he lays out his arguments as comprehensively and coherently as possible and to as many audience members as he can. God, just talking about it now makes my blood run cold.

What we need to do now is come together as a nation and agree on a plan to prevent these civil discussions from ever happening again. Personally, I believe the mental health of the legislators involved needs to be assessed. I also believe we need to make it harder for Congress to have access to gun debate platforms in the first place. After all, if we keep allowing the average member of Congress off the street to freely legislate in our nation’s capitol then these harrowing, senseless debates on gun control will continue to happen and we will be powerless to stop them.

How many more gun control debates do we need to stand by and idly witness in horror before we put a stop to them altogether?

I, for one, am confident that by working together, one step at a time, we can eliminate gun debates in America entirely. Yes, you heard me right. Now it may take some time before we are able to ban discussions altogether; after all, the right to discuss reform is in our constitution, whether we like it not. But by taking small actions every day, like pushing hard in Congress and cracking down on reformers now, I’m confident we can create a nation where every man, woman, and child can live without fear of gun reform.

Please help me in this fight. The lives of our existing gun laws are too precious not to.

NOTE: This satire from The Onion

[DonLever]

Well, you could probably find 52 law professors that say the opposite.

Banning assault type weapons will do little to stop gun violence because most gun deaths are caused by handguns.

The 1994 ban on assault weapons did nothing to stop gun violence.

So what happens next if the ban on assault weapons fail? A ban on handguns? That will never fly.

[Wetcoaster]

Well, you could probably find 52 law professors that say the opposite.

Banning assault type weapons will do little to stop gun violence because most gun deaths are caused by handguns.

The 1994 ban on assault weapons did nothing to stop gun violence.

So what happens next if the ban on assault weapons fail? A ban on handguns? That will never fly.

[Aladeen]

But, but how will I be able to hunt deer with out my fully automatic high powered mounted .50cal with cyanide tipped armoured piercing rounds?!?!?!??!

[thepedestrian]

Wetcoaster, you're still blinded from the truth.

[Wetcoaster]

Wetcoaster, you're still blinded from the truth.

[Dazzle]

Wetcoaster, you're still blinded from the truth.

[Mr. Ambien]

Well, some 52 hand-picked professors, largely members of political advocacy groups like American Constitution Society (that filed briefings on the Heller case, and logically were ignored) that regularly have Democrats with a gun control agenda speaking at their events, regurgitate typical anti-gun nut belief in gun control banning high capacity magazines and assault weapons. I guess the nation should comply now.

[Scott Hartnell's Mane]

Well, some 52 hand-picked professors, largely members of political advocacy groups like American Constitution Society (that filed briefings on the Heller case, and logically were ignored) that regularly have Democrats with a gun control agenda speaking at their events, regurgitate typical anti-gun nut belief in gun control banning high capacity magazines and assault weapons. I guess the nation should comply now.

[literaphile]

Well, you could probably find 52 law professors that say the opposite.

[Tearloch7]

Wetcoaster, you're still blinded from the truth.

[Electro Rock]

OK - find 52 law professors that say the opposite then.

[Heretic]

Well, you could probably find 52 law professors that say the opposite.

Banning assault type weapons will do little to stop gun violence because most gun deaths are caused by handguns.

The 1994 ban on assault weapons did nothing to stop gun violence.

So what happens next if the ban on assault weapons fail? A ban on handguns? That will never fly.

[Electro Rock]

If you want to play with assault weapons, join the armed forces.

An 8000 rounds per minute assault weapon was designed for one thing only - killing people.

[Mr. Ambien]

If you want to play with assault weapons, join the armed forces.

An 8000 rounds per minute assault weapon was designed for one thing only - killing people.

[Electro Rock]

It doesn't look like Lanza even used an AR-15, he did however follow Joe Biden's advice and brought a shotgun along, though he did't use that either.

[Scott Hartnell's Mane]

What would be ideal: For the fanatical pro-gun lunatics and the fanatical anti-gun lunatics to actually read the Constitution, especially the Bill of Rights...in the context in which it was written. Far as I am aware, we are far from being in danger of invasion...by the English or anyone else. Then...a compromise everyone can live with. And then I woke up.

[Wetcoaster]

Well, some 52 hand-picked professors, largely members of political advocacy groups like American Constitution Society (that filed briefings on the Heller case, and logically were ignored) that regularly have Democrats with a gun control agenda speaking at their events, regurgitate typical anti-gun nut belief in gun control banning high capacity magazines and assault weapons. I guess the nation should comply now.

[Wetcoaster]

Agreed. This is such a small number it doesn't merit consideration as well. 5200, I would care, even 520...52? Who cares. And you're absolutely right (as difficult as this is for me to say ) the anti gunners are guilty of the same kind of crap as the pro gunners are. In some cases the anti-gunners are even MORE radical. There either has to be middle ground here or this debate will continue ad infinitum.