Gun Control

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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 <> (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 <> (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.



West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
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