Guns and the JudiciaryINTERVIEW WITH DENNIS HENIGAN
Aletheia Press: Many people believe that the Second Amendment to the United States Constitution provides a fundamental right for private individuals to possess firearms. Perhaps more than any other issue, this notion of Second Amendment rights has prevented the enactment of comprehensive gun-control legislation. Would you review for us how the courts have interpreted the Second Amendment?
Dennis Henigan: There is, perhaps, no constitutional issue on which there is so much public misunderstanding as on the Second Amendment. It is, in fact, appalling how distorted the publics view is of the law of the Second Amendment; how unknown to the public is the judicial consensus on the Second Amendment.
In 1939 the U.S. Supreme Court decided a case, United States v. Miller, in which the Court laid out the basic Second Amendment analysis that has informed judicial decision-making on this issue to this day. In the Miller case, the Supreme Court upheld the indictments of two individuals for transporting an unregistered sawed-off shotgun in interstate commerce. Those indictments had been attacked by the defendants on the grounds that the law under which they were brought, the 1934 National Firearms Act, was unconstitutional because it violated the Second Amendment.To Top
The Court held in that case that the purpose of the Second Amendment was to insure the viability of state militias, and it said that the amendment must be interpreted and applied with that aim in mind. The Courts analysis in the case concentrated on the question of whether possession of a sawed-off shotgun was, in any sense, related to the preservation of a state militia. In no place in that opinion is there any analysis of whether the shotgun could be used for self-defense or for sport. The only relevant inquiry for the Court was the relationship of the gun to the organized militia.
So, the Miller case clearly means that there is no constitutional right to own guns for purposes unrelated to the organized militia, that is, for self-defense or for sport. The Court upheld the National Firearms Act as applied in that case, because it determined that possession of the shotgun, by those defendants, was not related to the organized militia.
The Court went on to explain the nature of the militia that the Second Amendment protects. It explained that the militia back in colonial days was an instrument of state government. It was, in a sense, a form of universal military service. Virtually all able-bodied males between the ages of eighteen and forty-five were enlisted for military discipline in the militia. These men were subject to calls to service, and they were even required to own certain kinds of guns and have a certain supply of ammunition at the ready to use for militia service. Thus, as the Supreme Court understood the militia, the militia was infected with substantial government regulation, and it was government regulation of a military force designed to be used for collective defense.
In the modern era, the only such military force we have, that is, the only such militia we have, is the National Guard. Since the Miller decision, the courts have looked at whatever gun-control law is at issue, and asked: Does enforcement of that gun-control law, in any way, impair the ability to arm the militia? And since gun-control laws typically exempt the National Guard, the Second Amendment has been essentially irrelevant in terms of an actual constitutional barrier to gun-control laws since the Miller decision.
Thus, the Miller decision set out the essential constitutional analysis that every court since Miller has used in evaluating the constitutionality of gun-control laws. And every court that has interpreted Miller has interpreted it the same way; that is, to require a connection between the possession of the gun at issue and the maintenance of an organized militia. And if enforcement of the law against that gun in no way impairs the militia, that is, the National Guard, then there is no substantial constitutional issue.
A.P.: The Miller case is important, then, because it is the foundation of modern jurisprudence on the Second Amendment, and rejects the idea that the amendment provides individuals with a constitutional right to possess firearms. But the National Rifle Association, the NRA, has interpreted the Miller decision differently. The NRA has argued in public, and in the courts, that the Supreme Court in the Miller decision actually established the constitutional right for private possession of firearms since, according to its interpretation of Miller, any gun that is sufficiently military in nature and potentially useful to a militia is constitutionally protected.
D.H.: Well, the NRA presumably would argue that semiautomatic assault weapons are sufficiently military in nature to be appropriate for militia use, although, when it is convenient for them to do so, they deny that these are military-style weapons. But I have a feeling that when they get down to arguing for constitutional protection of semiautomatic assault weapons, they will suddenly decide that these are, in fact, military weapons, and, therefore, entitled to protection as usable in a militia. Of course, the logical extension of such a view is that the Constitution protects the private ownership of bazookas, hand grenades, surface-to-air missiles, tanks, all of which have military uses. So it is not surprising that the courts have rejected that view of the Second Amendment, and have held that simply because a private citizen owns a weapon that could be used for military purposes, that does not confer constitutional protection to that gun when that person is not using the gun in connection with a well regulated militia. That is the link that Miller demands - that there must be a connection between the possession of the gun and a well-regulated militia.
The NRA misreads Miller to mean that all that is required is a demonstration that the gun itself has some theoretical military utility, and that you do not need to show that its possession by the individual defendant is related to a well regulated militia. Thats one of the fundamental errors that the NRA makes in its constitutional analysis.
AP: As you know, each time the NRA has presented this argument before the courts - the argument that Miller provides a right to private individuals to possess military-style firearms - the courts have rejected that interpretation of Miller. In fact, the NRA has never won a Second Amendment case in any federal court.
There were two recent cases where the NRA presented its interpretation of Miller, and another case, the Hale case, where an exact copy of the NRAs interpretation of Miller was argued in court. Not necessarily in chronological order, these cases are United States v. Hale , Farmer v. Higgins , and Fresno Rifle v. van de Kamp .
DH: Well, yes. In the Hale case, even though the NRA was not the plaintiff in the case, Mr. Hale used the NRAs arguments almost word for word, and the U.S. Court of Appeals for the Eighth Circuit rejected that analysis because it found that the mere possession of a machine gun by a private citizen, owning it for person purposes, is not related to the viability of a well regulated militia, and that, in fact, the only well regulated militia we have in 1992 is the National Guard. Mr. Hale made no claim that he was a member of the National Guard or any other well regulated militia.
There is a related concept that the NRA uses and that Mr. Hale also invoked - that everybody is a member of the militia and, therefore, is protected by the Second Amendment. The NRA argues that militia is simply a term that refers to the armed citizenry at large, and that this is what the founding fathers meant by militia. Therefore, when the courts require the possession of a gun as being necessary to the preservation of a militia, the NRA argues that we are all in the militia. So I am a militiaman, and youre a militiaman, and, therefore, our right to own an AK-47, a machine gun, and presumably a bazooka and hand grenades, is protected by the Second Amendment.
That notion of a militia is totally alien to the colonial concept of a militia. As explained in the Miller decision, the colonial concept was a militia as a state army, as a military instrument of state government, and highly regulated by state government. The militia in colonial times were subject to all kinds of legal duties imposed by state government, even extending to the kinds of guns that you could have for militia service, and requiring certain quantities of ammunition to be maintained for militia service. This is a degree of government regulation of private arms ownership that the NRA would categorically reject. The NRA isnt going to support a situation in which the government can dictate the kinds of guns that you are supposed to have. So the NRAs concept of the so-called unorganized militia, some courts have referred to it as the sedentary militia, has no relationship whatsoever to what the militia was in 1791 when the Second Amendment was written.
AP: Similarly, in the Farmer case, Mr. Farmer, who was represented by two NRA attorneys, challenged the constitutionality of a 1986 federal ban on machine guns, including their manufacture and future purchase.
DH: Well, actually, there were a couple of issues in Farmer. One issue was exactly what the machine gun freeze meant - an issue of statutory construction. Mr. Farmer contended that as long as someone had a license to manufacture a machine gun issued under the 1934 National Firearms Act, one could continue to manufacture new machine guns, and that the 1986 ban was an attempt to interfere with the right of current licensees to continue to manufacture machine guns. But, of course, that would have undercut the entire intent of the 1986 law, which was designed to freeze the number of machine guns in general circulation. So the courts did not have a difficult time dismissing Mr. Farmers interpretation of the 1986 ban on machine guns.
But Mr. Farmer went beyond that to argue, similar, to Mr. Hale, that if, in fact, the 1986 act bans the possession of newly-manufactured machine guns, it violates the Second Amendment because the right to own a machine gun is constitutionally protected. Mr. Farmer, like Mr. Hale, argued that a machine gun is theoretically usable for military purposes, and is, therefore, a proper militia-type weapon. The Eleventh Circuit in the Farmer case thought so little of that argument that they dismissed it without further comment. After dealing with Mr. Farmers discussion of the meaning of the statute, the court simply said we reject the remaining arguments made by the plaintiff, which included the constitutional issue.
Mr. Farmer was represented by lawyers for the National Rifle Association, who then filed a petition for certiorari to the U.S. Supreme Court in that case. Incredibly, that petition argued again that the guns entitled to the greatest constitutional protection under the Second Amendment are military-style guns because they are militia weapons. So the NRA took an absurdly extremist position on the Second Amendment in that petition, and it is not surprising that the Supreme Court decided not to hear that case, although, obviously, the Supreme Courts decision not to hear a case is not in any way precedent. Court watchers, of course, are free to speculate as to why the Court did not want to hear a particular case, and I believe that you can make a strong argument that the reason the Court did not hear that case, and the reason the Court generally has been uninterested in Second Amendment cases, is because the law of the Second Amendment is so well settled. There is no conflict in the circuit courts on the meaning of the Second Amendment. There is not even the slightest confusion in the lower courts about the meaning of the Second Amendment. Since the Miller decision, there has been an accepted way of looking at Second Amendment cases that has worked fine. So it is not surprising that the Supreme Court did not see a reason to enter the fray, because the issue is only confusing and controversial as it exists in the gun-control debate; but it is not a confused or controversial issue in the courts. It is not an issue that really exists in the judiciary.
AP: What about the Fresno Rifle case?
DH: In that case, the Fresno Rifle and Pistol Club, along with the NRA, argued that Californias Roberti-Roos Assault Weapons Control Act, which barred the manufacture, possession, and sale of assault weapons, was not constitutional because it violated the Second Amendment. To support this claim, the NRA in Fresno Rifle made an argument that is quite similar to the argument that their lawyers made in Farmer v. Higgins; that, because semiautomatic assault weapons are appropriate militia guns, they should receive constitutional protection. The Ninth Circuit in the Fresno Rifle case did not reach the ultimate meaning of the Second Amendment, because it decided that, whatever the Second Amendment means, by clear Supreme Court precedent, it does not apply as a restraint on legislative action by state governments as opposed to the federal government. The Supreme Court held that, unlike other provisions of the Bill of Rights, the Second Amendment has not been incorporated against the states through the application of the due process clause of the Fourteenth Amendment, and, in fact, Supreme Court decisions of the 1870s and 1880s had established that the Second Amendment does not apply against the states. The Court in Fresno Rifle said that if there is to be any change in the law, it would have to be a change made by the U.S. Supreme Court.
So, essentially, the Ninth Circuit issued an engraved invitation to the NRA to take up to the Supreme Court the question of whether the Second Amendment applies as a restraint against state action as opposed to federal action. To everyones great surprise, the time for filing that petition to the Supreme Court came and went without any petition being filed by the NRA. They decided not to take the issue to the Supreme Court, even though the issue of incorporation of the Second Amendment had not been seriously revisited by the Supreme Court since the 1880s.
Keep in mind that when that decision in the 1880s was made, the Supreme Court took the position that none of the guarantees of the Bill of Rights were incorporated against the states through the due process clause. The position was that the Bill of Rights is simply a restraint on federal power, but not on state power. Since that time the Supreme Court has changed its view, and, one by one, has decided to incorporate certain provisions of the Bill of Rights against the states. It hasnt incorporated all of them, but it has incorporated a number of them, including the First Amendment. So one would have thought that the NRA would have viewed this as an issue in which the Supreme Court might be interested because it had not really reached the question of incorporation of the Second Amendment since the 1880s.
I think it is very difficult for the NRA to explain why it was unwilling to take that particular Second Amendment case up to the Supreme Court, since it was a golden opportunity for the NRA to ask the Court to endorse two propositions that are very dear to the heart of the NRA; one is that the Second Amendment guarantees a broad personal right to own guns, and the other is that the right is enforceable, not only against the federal government, but also against state governments. Yet the NRA walked away from that appeal.
Allow me to make one brief comment about the Lewis case, which you have not mentioned yet. Sometimes you hear it said that the Supreme Court has only once addressed the meaning of the Second Amendment, and that is in the Miller case that weve talked about. But, in fact, there was a Supreme Court case in 1980, Lewis v. United States, in which an equal protection challenge was brought to the 1968 Gun Control Act, specifically, to the provision that banned the possession of guns by convicted felons. The argument was that this provision violated the equal protection clause by infringing upon a fundamental personal right to own guns without adequate justification. The important point here is that in reaching that issue, the Court decided that the proper standard of review of that particular classification was what is called rational basis scrutiny; that is, the issue was whether there was a rational basis for Congress to have distinguished between convicted felons and other people, for purposes of deciding who should own firearms. The Court did not endorse what is called strict scrutiny, which is a much more difficult test, and a much more difficult barrier to overcome to sustain a classification made by a legislature. But the Supreme Court uses rational basis scrutiny only when there is no fundamental constitutional right implicated by the classification at issue. So, implicitly, the Court was saying, by using rational basis scrutiny, that the right to keep and bear arms, was not a fundamental right. And in reaching its conclusion in that case, the Court cited its own decision in Miller and the language in Miller requiring a connection between the gun at issue and a well regulated militia. So I believe that Lewis is a strong reaffirmation of Miller, and also a strong reaffirmation of the lower courts interpretation or Miller up to that point, which clearly required a connection between the gun and a well regulated militia, and just as clearly rejected the notion of the right to keep and bear arms as a fundamental personal right requiring strict scrutiny of legislative classifications affecting that right.
A.P: Given what the courts have ruled in these cases, the disparity between the publics perception of the Second Amendment, and the judicial reality, is really quite astonishing. The NRA claims that the Second Amendment provides a fundamental right for individuals to own firearms. Yet the courts have ruled that the Second Amendment provides no such right. In fact, the NRA has been soundly defeated in the courts on Second Amendment issues. Yet that organization continues to bully people by using the Second Amendment as a legislative and electoral weapon.
DH: Thats right.
AP: And the news media does little to inform the public of the judicial status of the Second Amendment. Let me take that back for a second. For the most part, the editorial boards of the major newspapers are well aware of the judicial record on the Second Amendment, and have often sanely argued on behalf of the constitutionality of gun control by citing the record. However, the news reporters in the field and the news editors are another matter. For example, there were many articles printed during the 1994 congressional elections in which the reporter cited a claim of a Second Amendment right for private individuals to own firearms. There were very few, if any, instances when the reporter cited the judicial record to refute the claim. The candidates opposing gun control on constitutional g rounds were very assertive, and the candidates supporting gun control were either silent or defensive on the constitutional issue. Now the NRA is claiming that they put the Republicans over the top in the House of Representatives by getting their candidates elected. It seems to be a plausible claim.
To cite one arbitrary but typical example of how the Second Amendment is treated, I was watching The MacNeil-Lehrer News Hour on TV one evening when Richard Gardiner, legislative counsel of the NRA was on. At one point in the discussion, Gardiner stated that "the right to bear arms is expressly protected by the Constitution" (January 4, 1994). No one challenged that statement, and the ideal that the Second Amendment confers an individual right was verified, in a sense, by everyones silence.
DH: That is precisely the kind of proposition that should never go unchallenged, and it is particularly interesting because now that the Brady bill has become law, The NRA is financing challenges to it on constitutional grounds, but not on Second Amendment grounds. To me that speaks volumes.
AP: Could you explain the NRAs Tenth Amendment challenge to the Brady law? It took the Congress seven years to pass the Brady bill, and, during that time, the NRA opposed the bill on Second Amendment grounds. Now that the bill is law, the NRA is challenging the law in the courts, not on Second Amendment grounds, but on Tenth Amendment grounds.
DH: The NRA could have decided to challenge the Brady law on a number of grounds. It did finance lawsuits by local law enforcement officials challenging the part of Brady that mandates the background check. But for the NRA to back away from a frontal Second Amendment challenge to the waiting period itself as a violation of a fundamental constitutional right, to me, is the ultimate in hypocrisy. After telling the American people for years that the right to keep and bear arms is a fundamental and personal right which is infringed by a law requiring people to wait in order to exercise that right, and then once that law is passed, not to be willing to go to court and challenge the law on those grounds , essentially reveals that the NRA has been engaged in nothing but empty rhetoric about the Second Amendment and waiting periods for all these years.
AP: A similar thing happened with regard to the ban on military-style assault weapons that passed in 1994 as part of the crime bill. The NRA opposed a ban on assault weapons for many years on Second Amendment grounds, yet the NRA appeared to downgrade its opposition to the ban on Second Amendment grounds during that very public debate on the crime bill. Instead, the NRA hoped to circumvent the ban by calling the crime bill a pork bill for social workers, and this was repeated by legislators who opposed the assault-weapons ban. Given that the NRA is aware of its own litigation record and the rulings in the courts on the Second Amendment, what do you think their position will be in the future regarding the Second Amendment when the Congress begins to consider more comprehensive gun-control legislation?
DH: They are between a rock and a hard place, because they know, as well as we know, that the courts have never adopted their position on the Second Amendment. And yet they keep telling their members and the public at large that gun-control laws, like the Brady law and the assault-weapons ban, violate the Second Amendment. So there really is no easy way out of that dilemma, and they probably figured that it would be even worse to challenge Brady on Second Amendment grounds and lose, than to pick some other amendment and bring some other kind of lawsuit, and try to paper over the fact that they are not challenging the waiting period directly as a violation of the Second Amendment. But I think they will continue to use the rhetoric of constitutional rights in opposing gun-control laws. They will continue to invoke the Second Amendment because, to this day, there is still massive public misunderstanding which they are ready, willing and able to exploit for their political purposes. We are starting to make progress on that, but we are just starting, and we have years of Charlton Heston on national television talking about the fundamental right to keep and bear arms. We have years of that to overcome and its not easy.
AP: So far we have been discussing he Constitution of the United States, that is, the federal Constitution. What is the situation with regard to state constitutions and firearms?
DH: Well, there are, I think, forty-three states that have some kind of right-to-bear-arms provision in their state institutions. Some of those constitutional provisions are worded in a way that is similar to the Second Amendment in that they specifically reference the militia. However, others do not. Others are worded more broadly and have language that more closely parallels the language of the First Amendment to the federal Constitution. So in those states there isnt any question that the right extends to individuals regardless of any connection to the militia. But the question is, how absolute is that right? And the NRA, because it has had such a miserable record in using the Second Amendment as a weapon against gun-control laws, has seized upon those state constitutional provisions as an avenue to attack state and local gun-control laws. And, in fact, in some states the NRA has campaigned successfully to take narrowly-worded state constitutional provisions and actually broaden them through popular referendum, and then used those broadened provisions as a weapon against state and local gun-control laws.
AP: This is through constitutional amendment referendum?
AP: In how many states has that happened?
DH: Just a handful , but it happened in the states of Maine and Nebraska. It has been an important part of the NRAs overall constitutional strategy. Interestingly though, the NRA has been frustrated at every turn in its use of state right-to-bear-arms provisions in this way. The test cases have arisen in the context of state and local assault-weapon bans, which, again, according to the NRA constitutional theory, re anathema because they are bans on a whole class of firearms. But we have seen in two recent state supreme court decisions that, even though these right-to-bear-arms provisions are broadly worded, state courts are unwilling to interpret them to grant an absolute right to own guns.
The two, key test cases are Robertson v. Denver, which went to the Colorado Supreme court, and Arnold v. Cleveland, which went to the Ohio Supreme court. The Colorado decision had to do with the constitutionality of Denvers assault-weapons ban. In both cases, the state supreme courts held that the right to keep and bear arms was subject to the reasonable exercise of the police power, and that as long as the restriction on the right was reasonably related to the public safety, the restriction would be upheld. In both cases the courts held that banning military style assault weapons, which are not sporting guns and which show up disproportionately in crime, is a reasonable exercise of the police power of those cities.
The courts use of a reasonableness standard in both of those cases is a tremendous defeat for the NRA, because it would essentially preserve the constitutionality of virtually any gun-control law that is likely to attract substantial popular support. The NRA argued for a far different constitutional standard, one that would require the showing that the law was justified by a compelling state interest, and that the law was as narrowly crafted as possible to minimize the infringement of the personal right to bear arms. The fact that the courts did not adopt that much stricter constitutional standard has essentially made those states safe for future gun control, and has frustrated the NRAs efforts to try to use these broadly-worded state provisions as barriers to gun-control laws.
So, on the one hand, you have the NRA being unable to overcome years of federal and state precedent on the Second Amendment, and on the other hand, you have the NRA unable to convince state courts to take an absolutist reading of their own state constitutional right to bear arms. The importance of all this for the gun-control movement is that, over and over again, you are seeing courts reject the view that there is some kind of fundamental constitutional right to own guns that stands in the way of elected representatives making reasonable judgments about gun regulation in the interest of public safety.
Let me backtrack for a moment. It wasnt entirely irrational of the NRA to embark upon this strategy of using state constitutional provision to challenge gun-control laws, because there is some case law, earlier precedents in some states, in which gun-control laws were struck down under state right to bear arms provisions. However, what I think we are seeing now is that because gun violence has reached such epidemic proportions in this country, courts are now saying that, even if the right to bear arms is an individual right under state constitutions, it is a right fundamentally different in nature than the right to freedom of expression, for example. The unrestricted exercise of the right to bear arms implicates the public safety so directly and so immediately, whereas the unrestrained exercise of freedom of expression normally does not lead to violence. But, interestingly, in circumstances where there is a threat that certain forms of speech will lead to violence, it has traditionally been subject to greater regulation, according to long-established First Amendment precedent. Given that, and given that we can see the ready connection between violence and easy access to guns, especially handguns and assault weapons, it is easy to understand why courts are making a distinction between the constitutional standards to be applied in freedom of expression cases as opposed to the constitutional standards to be applied in right-to-bear-arms cases. That, I think, is the ultimate meaning of these decisions in Colorado and in Ohio; that this is a right that by its very nature affects the public safety, and the courts are unwilling to stand in the way of elected representatives making reasonable judgments on how to restrict access to guns in the interest of public safety.
There is actually a very recent decision by a lower court in Connecticut, which I should probably just make brief reference to because it is the most recent ruling. A state trial court in Connecticut upheld a state-wide assault-weapons ban that was challenged as a violation of the state right to keep and bear arms in Connecticut - a state provision that did not reference the militia. In that case it was very easy to demonstrate that an individual right was intended but the court held that the proper constitutional test is one of reasonableness. It is a decision that is entirely consistent with the decisions in Robertson v. Denver and Arnold v. Cleveland, and is yet another major setback to the NRAs strategy of using state constitutions to attack state and local gun laws.
AP: This is interesting because we know that the meaning of the Second Amendment hinges on the question of the militia, and the consensus in the federal courts is very clear about assigning the right to bear arms to the regulated state militias. If that was not the case, however, there is this sort of underlying assumption that if the gun lobby won the issue of the definition of militia, that would be it - government regulation of firearms would be unconstitutional. However, would it be reasonable to assume, given the precedent of state court rulings, that even if the militia of the Second Amendment were as the gun lobby claimed, that the reasonableness with regard to public safety standard might arise at the federal level as it has at the state level. Do you se the point? There is an assumption that if the NRA ever won the militia argument in the courts, that they would win the whole thing.
DH: I think you are right. There is that implicit assumption, and its not necessarily a defensible assumption. I believe that even if the U.S. Supreme Court were to hold that somehow the militia clause does not qualify the right to bear arms, the Court would still be faced with a very interesting issue of how absolute and how broad an individual right to bear arms would be. It would be faced with the fundamental issue of whether the constitutional standards for review of laws affecting freedom of speech are appropriate for review of laws affecting the right to bear arms. As I said before, I think a strong argument can be made, in terms of constitutional theory and constitutional policy, that it makes absolutely no sense to apply the same constitutional standards in free speech cases to right-to-bear-arms cases because of the nature of the right, and the effect on the communitys interest of unrestricted exercise of the right. So even if the United States Supreme court were to find that the Second Amendment grants an individual right to own guns unrelated to service in the militia, I think the state supreme court decisions would hold a key lesson for the federal Supreme Court on the breadth of an individuals right to bear arms.
AP: The courts have ruled that "well regulated militia" in the Constitution refers today to the National Guard. But the National Guard did not exist in 1791 when the Second Amendment was written. How did it come about that "well regulated militia" now refers to the National Guard?
DH: Because the militia of 1791in which most of the able-bodied male population were enrolled and were expected to participate in military activitiesturned out, over time, to be totally unworkable. The history of the militia during the nineteenth century was one of gradual disorganization and abandonment. Neither the federal government nor the states showed much interest in adequately funding the militia. Mustering and training became more and more infrequent, and the list of exemptions from militia service grew. Some state militia were more like social clubs than military forces, as the states failed to enforce the obligations imposed on members of the militia.
In an effort to breathe new life into the militia, in 1903 Congress passed legislation to improve the National Guard, as the state militias had become known. This legislation abandoned the concept of the militia as being composed of most able-bodied men, and replaced it with a militia of more limited, but manageable, membership. And, for the first time, Congress took over the burden to arm and equip the militia, although the states retained great power over how the militia is to be used. So, although the National Guard is quite different from the militia of colonial times, it retains the basic nature of a militia; that is, an organized military force composed of ordinary citizens, not professional soldiers.
AP: Can we move on to the constitutional challenges to the Brady law? As you pointed out, it is very significant that the NRA neglected to challenge the Brady law on Second Amendment grounds. The NRA challenged Brady on Tenth Amendment grounds instead. Could you review a bit more thoroughly the Tenth Amendment challenge, and describe for us what that is about?
DH: Let me start by explaining the NRAs strategy in using the Tenth Amendment in this way. Because the NRA has such a low probability of success in attacking the Brady laws waiting period directly as a violation of the Second Amendment, they have recruited local sheriffs, in various rural jurisdictions, to file cases based not on the Second Amendment, but on the Tenth Amendment. The NRA is arguing that the provision of the Brady law that mandates a background check, is a violation of the Tenth Amendment because the federal government does not have the authority under the Constitution to order local officials to execute federal policies.
The second element of this strategy is to argue that, because the mandatory background check provision of the Brady law cannot be severed from the rest of the statute, the entire statute, including the waiting period, must fall. So this is the NRAs back-door way of bringing down the waiting period, which, of course, is the NRAs true concern. The NRA doesnt care about vindicating local interests against the power of the federal government. The NRA simply cares about blocking the enforcement of the waiting period on handgun purchases.
This view of the Tenth Amendment, that it blocks any federal law which in any way requires the participation of state or local officials in the implementation of federal policy, is an extreme view of the Tenth Amendment that has not been adopted by the Supreme Court. The Supreme Court did hold in a 1992 decision that the federal government does not have the power under the Tenth Amendment to, as it put it, "commandeer state legislatures," that is, require that state legislatures enact laws and regulatory programs dictated to them by the federal government. But I do not read that 1992 decision as standing for the proposition that there is no authority to require state personnel to do anything pursuant to federal policy. For example, the Supreme Court has upheld a federal law applying the federal minimum wage to state employees, which is an enormously costly mandate to states. The Supreme Court has upheld a federal law requiring state utility commissions to perform certain limited functions in the implementation of federal energy regulatory policy. And those decisions were not in any way overruled in 1992 in the case relied upon by the NRA, United States v. New York.
So this is a very complicated issue of constitutional law. It is an area of uncertainty. It is not as well established as the Second Amendment, but I believe that the NRA has taken an extreme position on the limits of federal power, which is not justified by the case law.
AP: As you just noted, when you consider the implications of the narrow interpretation of the Tenth Amendment, as the NRA presents it, and if you were to take it to its logical conclusions, it would mean that the federal government would not be able to require state law enforcement agencies to report, for example, cases of missing children. There is a lot of de facto practice that is going on now that arguably could be interrupted if this were to be more broadly applied.
DH: All I can say is I believe that there are very strong constitutional arguments supporting the constitutionality of the Brady law. I think especially in situations in which local officials or state officials can do a job better than federal officials, it ought to be constitutionally permissible for the federal government to enlist those state and local officials in doing that job. The Congress made a very reasonable judgment in crafting the provisions of the Brady law. In the case of background checks of handgun purchasers, it made much more sense, and would be much more effective, for the implementation to be performed by local officials, who, after all, may be personally acquainted with the handgun purchasers in their jurisdiction. Local officials have much easier access to local criminal history records, for example, and yet they may also have access to federal records through computerized data bases.
The Congress looked at the whole question of how effectively to implement a mandatory background check, and concluded that, because, generally speaking, state criminal histories were not adequately computerized to be centralized into one great national database, some of the background checks necessarily would have to be done manually, and that, inevitably, there would be checks of state criminal history records. And the Congress decided that that was more effectively done by local personnel.
There undoubtedly are other kinds of federal regulatory programs where certain limited functions are better performed by state and local personnel; for example, reporting cases of missing children, which will first come to the attention of local and state personnel, not federal personnel. So that in those cases especially, I think it is perfectly reasonable and constitutionally permissible to enforce federal mandates.
AP: Is there reluctance on the part of state officials in some states to be held accountable for the possible failure or unpopularity of a federal program? For example, gun control is less popular in some states than in other states, and the Tenth Amendment challenges to the Brady law have arisen mostly in states where gun control is not very popular. Thus, local sheriffs, many of whom are elected to that post, do not want to be held politically responsible for enforcing a federal law at a local level that may not be that popular with the local people. Is this one of the issues involved in the Tenth Amendment challenges to the Brady law?
DH: Yes. One of the concerns announced by the U.S. Supreme Court in United States v. New York was that the federal government, instead of itself setting up a regulatory program, would command the state to set up a regulatory program, whereupon political accountability would shift, and state officials would be held accountable by their constituents for the success or failure of that program.
With respect to the Brady law, however, this is a federal regulatory program. It is a program in which the federal government is directly regulating private transfers of handguns from gun dealers to individual citizens, and the states are not required to set-up that regulatory program. It is already set up by the federal government. All that the local official does is perform an administrative function pursuant to that program. For the vast majority of handgun buyers, those who have no criminal history, there is no contact between that handgun buyer and the local official. The contact is between the handgun buyer and the gun dealer. So, in our opinion, it is far-fetched to think that criticism of the operation of the Brady law will be visited upon state and local officials, when it is so clearly a federal regulatory program that has been set up. Thats why we think it is fundamentally different than the situation in United States v. New York.
I should also add that, even though a number of early district courts, while ruling on this issue, have held that the mandatory background check provision violates the Tenth Amendment, the courts re split so far on that issue. There are decisions going both ways. Even in those cases in which the background check provision has been struck down, the NRA still has not accomplished its real objective, which is to bring down the waiting period. In every case that has been decided up to this date, the courts have held that the background check provision, the mandatory check provision, is severable from the rest of the statute, and that Brady can be expected to continue to function. The courts have merely ruled that the background check is not mandatory. It then becomes voluntary with the police, but the waiting period remains intact. We believe that in the vast majority of jurisdictions, even if the background check provisions were not mandatory, checks would continue to be done by the local police because there are sufficient incentives for them to do it. The record of the success of the Brady law so far simply reinforces that.
AP: In every case decided to date, the background checks have been declared severable, is that right?
DH: Thats right. So, again, it is important to keep our eye on the ball here. The NRAs ultimate objective in bringing these Tenth Amendment challenges in these various states is to bring down the waiting period, and it has not achieved that objective anywhere yet.
AP: At some point one has to question the NRAs motives in challenging nearly every piece of gun-control legislation. For example, the NRA opposed proposed legislation preventing access to guns by men who have restraining orders placed against them by their wives. They also opposed the bans on machine guns, cop-killer bullets, and undetectable plastic weapons, including plastic handguns that can evade airport detection devices.
DH: Well, the NRA has traditionally taken the view that to agree to any restriction on private ownership of guns is simply to open the floodgates to more and more restrictions leading to the ultimate confiscation of all guns.
I also believe that the NRA effectively functions as a front for the gun industry. It is interesting to contrast the difficulties that the tobacco industry is having right now, answering to the Congress and to the public for its conduct, and contrast that with the total anonymity of the gun industry. The gun industry receives very little direct criticism from the public or from Congress, essentially because the NRA acts as a buffer. The NRA is the lightning rod for all the criticism, and, by taking these extremist ideological positions, effectively protects the interests of the gun industry without the gun industry itself having to do any of the dirty work.
That is not to say that I would discount the degree to which the NRA is populated and controlled by true believers; that is, people who believe that the most fundamental individual liberty that they have is the liberty to own guns for purposes of self-defense against criminals, and, interestingly, against the government. This is where we find the rhetoric of resistance to government creeping into a lot of NRA publications and the speeches given by NRA spokespeople. You will find statements like, "the Second Amendment is not about recreational shooting, it is not about hunting, it is about liberty." And what they mean by that, and theyll say it, is resistance to tyrannical government the right of the people to rise up in revolution against a government that they think has gone too far.
This is a very misguided notion of the Constitution and of the nature of our freedoms and liberties. There is absolutely nothing in the Constitution to suggest a constitutional right on the part of individuals to decide whether their government has overstepped its bounds, and if they decide that it has, to take up arms against it. That notion, in fact, is alien to our Constitution. Our Constitution has a number of provisions that deal specifically with the crime of treason; that is, taking up arms, being disloyal to the government.
When the NRA thinks in terms of a right of revolution, they are really thinking about the Declaration of Independence. But, unlike the Declaration of Independence, the Constitution is not a revolutionary document. The Constitution is a document about establishing the institutions of democratic government, and the protections of liberty in the Constitution are protections that flow from things like the system of checks and balances that we have, the fact that power in the government is superseded among various branches, that we have an independent judiciary, that we have a power of impeachment, and that we have a power of executive veto. This is the system that guarantees freedom from government tyranny, if we preserve it.
In addition, the Second Amendment itself could be understood as having to do with the dispersal of power, but the Second Amendment is not a charter for revolution. The Second Amendment protects an institution, the state militia, an institution of military power, as a counterpoint to the federal standing army, as a way of insuring against encroachments on individual liberty.
If you take the NRAs view to its logical conclusion, there must be, for example, a right to form a private army, that is, an army unconnected to the government. Because only then would people have the practical power to keep the government in check, to resist governmental tyranny.\
AP: In Vietnamese Fishermen v. Knights of the Ku Klux Klan, a federal case in Texas wasnt that the issue involved the constitutional status of private armies and private militias?
DH: That was exactly the issue. And that is a case that should be required reading for everyone who advocates, like the NRA, this right of individual revolution against the government. Because what the Ku Klux Klan was arguing there was that their apparent military operation, which was called the emergency reserve, was constitutionally protected under the Second Amendment because it was a militia. They formed their own private militia, and their theory was that the Second Amendment is about resistance to the tyranny of government. And that is very similar to the NRAs view that the Second Amendment is about the use of arms to check the tyranny of government. The court in the Vietnamese Fishermen case held that, no, under the Second Amendment, the militia that is referenced is an instrument of state governmental authority. It is not a private army, and the court specifically disallowed any notion that the U.S. Constitution guarantees an individual right to take up arms against the government. It recognized that to posit any such right would mean that the Constitution itself contains the seeds of its own destruction. If that is a right that we all have, then the whole nature of constitutional government comes into question.
AP: There was an influential law review article which basically represented this idea that gun possession was an important source of political liberty against government, implying a constitutional right to armed insurrection. This was the Sanford Levinson article in the Yale Law Journal. Would you like to review what Mr. Levinson argued in that article?
DH: Well you find that this argument, which is a dangerous argument in my viewthat the Second Amendment provides a constitutional right to engage in armed revolutionhas found its way into very respectable places, among them the Yale Law Journal. Professor Sanford Levinson has written an article in which he has argued that it is quite plausible to maintain that the Second Amendment guarantees an individual right to own guns for the ultimate purposes of engaging in armed resistance to government tyranny (Levinson 1989).
On a superficial level, there seems to be some appeal to that view because nobody likes tyranny, and we all recognize that the genesis of our government was, in fact, armed resistance to the tyranny of the British Crown. But one must recognize the implications of positing such a right as a principle of constitutional government. And some very serious questions need to be asked of someone like Levinson. For example, if there is this constitutional right, and if it is individual in nature, does it encompass an individuals right to determine when government has gone too far? Who, in fact, is to determine when government has gone too far? Obviously, Levinson would
not want government to determine that because that would defeat the right. So, if it is to be an individual right, in any meaningful sense, then I as an individual must have the constitutional guaranteed right to decide when my government has gone too far and then to take up arms against it.
Well, if thats where we are going with this, does that mean that I have the constitutional right to assassinate public officials if I believe in good faith that they have gone too far? Would the Ku Klux Klan have the constitutional right to attack public school officials who are trying to enforce desegregation because the Klan believed in good faith that that was tantamount to tyranny? I cant imagine any reasonable person taking that view of our Constitution, and yet it seems to me to be a view that is the logical extension of Levinsons theory of the Second Amendment, as well as the NRAs theory of the Second Amendment, and the logical extension of all of the rhetoric we hear about having the right to bear arms in order to resist tyranny.
If this is seriously being suggested as a constitutional right, then these advocates, I believe, are sewing the seeds of anarchy in this country. I believe that, in fact, their position is a prescription for anarchyanarchy that is inconsistent with the protection of the other rights in the Bill of Rights.
It is astonishing that Levinson would make such a case in public, given that the insurrectionist theory he advances in the Yale Law Journal has been explicitly or implicitly rejected by court after court since the Miller decision, just as the courts have rejected the notion that there is a constitutional right to own military guns because everyone is in the militia. I mean, these theories have been rejected time and again by the courts. As you can imagine, courts are appalled by the suggestion that there may be an individual right to use guns against government officials when we disagree with them. Probably the best accepted principle of First Amendment law is that the right to dissent does not include the right to incite violence, and yet this insurrectionist theory is directly contrary to that principle, and, in fact, says that the Second Amendment guarantees a right to armed dissent from the government. It makes almost quaint First Amendment issues that we get excited about, for example, whether there is a right to burn the American flag. There is all kind of heated debate over that, and, yet, you have theorists like Levinson arguing in the Yale Law Journal, of all places, that there is a Second Amendment right to engage in armed revolution. So, I think possibly one of the best ways to argue against this theory is simply to spin-out the common sense implications of the insurrectionist theory, and when you do that, you realize that if we ever came close to adopting it, it would be the end of constitutional government as we know it.
AP: A number of articles have been published recently in the news media about the proliferation of civilian militias. In each of these articles the reporter quotes militia members citing their constitutional right to form private armies. In each case, that is, in each of the articles that I have seen, the reporter makes no effort to establish the legal status of these organizations. Now, the legality issue is obviously a key issue to establish when you are talking about private armies claiming a constitutional right to overthrew the government. In a recent piece in The New York Times, the reporter wrote: "In Michigan, many state and local police say they are not keeping close track of militia organizing, noting that members have the right to assemble peacefully and practice firing weapons" (November 14, 1994). Do militia members, in fact, have the right to assemble and practice firing weapons, when the assembly and firearms practice involves practicing and planning violent confrontation with the government.
DH: If these news reports are correct, then there are some groups who are taking very seriously this perverse notion of the militia as a private military force poised for armed insurrection against the government. I suspect these groups believe that, by forming their own private armies, they receive constitutional protection as "well regulated militias" under the Second Amendment. Of course, this is totally misguided. The "well regulated militia" of the Second Amendment is an instrument of state government, not a privately-organized means of rebellion against government. Many states have statutes prohibiting the formation of private military forces. One such law was upheld in theVietnamese Fishermens case; another was upheld by the U.S. Supreme Court back in the 1880s in Presser v. Illinois.
The point is that the courts have never recognized the formation of private military forces as a constitutionally protected exercise of freedom of assembly. Nor should they be engaging in military exercises, with an implicit threat to use armed force if the government acts contrary to your wishes, has an obvious intimidating effect which is contrary to freedom of expression. Our constitutional system scrupulously protects the freedom to dissent from government policies. It does not recognize, however, the freedom to use violence as a means to a political end.
A.P.: Going back to the newspapers again, the NRA targeted for defeat in the 1994 elections many moderate Democrats who voted for the assault-weapons ban, and sponsored a series of television advertisements that essentially taunted various Democratic incumbents for that vote. The Democrats responded to the NRA ads by drawing a distinction between a vote to ban assault weapons, and their support for hunters and hunting. However, in almost each instance, the Democratic official also tried to provide additional constitutional assurances about protecting so-called gun rights. It is difficult to imagine passage of a comprehensive gun-control bill in the years ahead as long as the Second amendment myth maintains this powerful presence in electoral politics. And it is hard to believe that NRA disinformation about the Second Amendment, and not the long-standing consensus in the federal judiciary on the Second Amendment, is seen as authoritative in the United States Congress.
D.H.: It is unfortunate that politicians who favor sensible gun-control laws feel the need to make statement about the Constitution that simply reinforce the publics misunderstanding about the Second Amendment. I believe such statements are intended to provide reassurance that they do not favor policies which would ban all firearms. Thats fine, but I wish pro-control politicians would not mix the Constitution into it in a way that suggests that private gun ownership is a protected constitutional value, when it is not. Handgun Control, Inc., the organization I represent, believes that comprehensive reform of federal gun laws is urgently needed, but does not endorse a broad gun ban. Instead, in the legislation now commonly known as Brady II, HCI advocates licensing of handgun owners, registration of handgun sales, limitations on the number of handguns individuals may purchase, and other regulatory measures. We believe that the gun violence problem can be successfully attacked short of a ban on private ownership of firearms. But we also believe that the issue of private gun ownership is a policy issue, not a constitutional one.