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Thompson: Laws to reduce gun violence are Constitutional

Posted By Sun News On February 12, 2013 @ 9:37 am In News | Comments Disabled

House Gun Violence Prevention Task Force Chair Rep. Mike Thompson (CA-05) today released a letter signed by more than 50 constitutional law experts which says that laws aimed at reducing gun violence and respect for the Second Amendment are not mutually exclusive.

The document is being released in conjunction today’s Senate Judiciary Subcommittee hearing on the constitutionality of gun violence prevention legislation.

“As a hunter and gun owner, I believe that we should protect the Second Amendment right of law-abiding individuals to own firearms. I will never give up my guns and I will never ask law-abiding individuals without a history of dangerous mental illness to give up theirs. Not only am I personally against this, but the Constitution wouldn’t allow it. In District of Columbia v. Heller, the Supreme Court affirmed once and for all that Americans have an individual right to keep and bear arms,” said Thompson. “As a dad and grandfather, I also believe that we have a responsibility to make our schools, streets and communities safe. Constitutional experts agree: we can do both.”

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 lawabiding 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 oflaw-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
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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

University affiliation provided for identification purposes only.


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