[Senate Hearing 113-870]
[From the U.S. Government Publishing Office]
S. Hrg. 113-870
PROPOSALS TO REDUCE GUN VIOLENCE:
PROTECTING OUR COMMUNITIES WHILE
RESPECTING THE SECOND AMENDMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
----------
FEBRUARY 12, 2013
----------
Serial No. J-113-3
----------
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. Hrg. 113-870
PROPOSALS TO REDUCE GUN VIOLENCE:
PROTECTING OUR COMMUNITIES WHILE
RESPECTING THE SECOND AMENDMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 12, 2013
__________
Serial No. J-113-3
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
26-144 PDF WASHINGTON : 2017
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Human Rights
DICK DURBIN, Illinois, Chairman
AL FRANKEN, Minnesota TED CRUZ, Texas, Ranking Member
CHRISTOPHER COONS, Delaware LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut JOHN CORNYN, Texas
MAZIE HIRONO, Hawaii ORRIN HATCH, Utah
Joseph Zogby, Democratic Chief Counsel
Scott Keller, Republican Chief Counsel
C O N T E N T S
----------
FEBRUARY 12, 2013, 10 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Cruz, Hon. Ted, a U.S. Senator from the State of Texas........... 3
prepared statement........................................... 148
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement........................................... 147
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement........................................... 145
WITNESSES
Witness List..................................................... 51
Cooper, Charles J., Partner, Cooper and Kirk, PLLC, Washington,
DC............................................................. 33
prepared statement........................................... 112
Heaphy, Timothy J., U.S. Attorney, Western District of Virginia,
U.S. Department of Justice, Washington, DC..................... 5
prepared statement........................................... 52
Hupp, Suzanna, Lampasas, Texas................................... 31
prepared statement........................................... 141
Tribe, Laurence H., Carl M. Loeb University Professor, Harvard
Law School, Cambridge, Massachusetts........................... 26
prepared statement........................................... 60
Webster, Daniel W., Sc.D., M.P.H., Director and Professor, Johns
Hopkins Center for Gun Policy and Research, Baltimore, Maryland 35
prepared statement........................................... 95
appendix..................................................... 105
Wortham, Sandra J., Chicago, Illinois............................ 28
prepared statement........................................... 109
QUESTIONS
Questions submitted to Timothy J. Heaphy by Senator Grassley..... 156
Questions submitted to Suzanna Hupp by Senator Grassley.......... 159
Questions submitted to Laurence H. Tribe by:
Senator Graham............................................... 154
Senator Grassley............................................. 160
Questions submitted to Daniel W. Webster by:
Senator Graham............................................... 155
Senator Grassley............................................. 162
ANSWERS
[Note: At the time of printing, after several attempts to obtain
responses to the written questions, the Committee had not
received any communication from Timothy J. Heaphy.]
[Note: At the time of printing, after several attempts to obtain
responses to the written questions, the Committee had not
received any communication from Suzanna Hupp.]
Responses of Laurence H. Tribe to questions submitted by:
Senator Graham............................................... 166
Senator Grassley............................................. 163
Responses of Daniel W. Webster to questions submitted by:
Senator Graham............................................... 170
Senator Grassley............................................. 172
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Academic Pediatric Association, McLean, Virginia, statement...... 179
Advancement Project, Washington, DC, statement................... 187
American Academy of Pediatrics, Washington, DC, statement........ 189
American Baptist Home Mission Societies, statement............... 196
American Civil Liberties Union (ACLU), Washington Legislative
Office, Washington, DC, statement.............................. 198
American Federation of Teachers, Washington, DC, statement....... 207
American Nurses Association (ANA), Silver Spring, Maryland,
statement...................................................... 209
appendix..................................................... 212
American Public Health Association, Washington, DC, statement.... 214
Andrinopoulos Mina, Angelike, Esq., Arlington, Virginia,
statement...................................................... 217
Ann and Robert H. Lurie Children's Hospital of Chicago, Chicago,
Illinois, statement............................................ 220
Articles, letters, and statements submitted by Hon. Ted Cruz, a
U.S. Senator from the State of Texas........................... 552
Association of Prosecuting Attorneys (APA), Washington, DC,
statement...................................................... 225
Atwood, James E., Dr., Springfield, Virginia, statement.......... 227
Baimel, Jill, Newtown, Connecticut, statement.................... 229
Baker, Karen D., statement....................................... 231
Baldwin, Larry, statement........................................ 234
Basch, Rachel, Sandy Hook, Connecticut, statement................ 235
Bensinger, Katharine, Chicago, Illinois, statement............... 237
Berger, Lisa, Newtown, Connecticut, statement.................... 239
Berger, Paul, Newtown, Connecticut, statement.................... 243
Bergman, Maura S., Newtown, Connecticut, statement............... 245
Bilgin, Klara, Oakton, Virginia, statement....................... 246
Brady Center to Prevent Gun Violence, Washington, DC, statement.. 247
Brainard, Catherine E., M.A. Special Ed., Bethel, Connecticut,
statement...................................................... 259
Brandon, Gregory H., McLean, Virginia, statement................. 260
Burlakoff, Nikolai, U.S. Army veteran, statement................. 261
Calhoun, John A. ``Jack,'' statement............................. 263
Callery, Jennifer, Sandy Hook, Connecticut, statement............ 264
Cardinal Glennon Children's Medical Center, St. Louis, Missouri,
statement...................................................... 265
Casper, Cindy L., Bridgeport, Connecticut, statement............. 267
Catholic Dioceses of One Spirit, The, Clifton, Virginia,
statement...................................................... 502
Church of the Brethren, Peace Witness Ministries, Washington, DC,
statement...................................................... 268
Cicarelli, Rebecca, Sandy Hook, Connecticut, statement........... 270
City of Charlottesville Police Department, Charlottesville,
Virginia, statement............................................ 271
Cleary, Laura, New Fairfield, Connecticut, statement............. 274
Clements, Abbey, Newtown, Connecticut, statement................. 275
Clements, Brian, Ph.D., Newtown, Connecticut, statement.......... 276
Clements, Sarah, Newtown, Connecticut, statement................. 278
Coalition to Stop Gun Violence (CSGV), Washington, DC, statement. 282
Cramer, Clayton E., February 7, 2013, letter..................... 636
Crandall, Marie, M.D., M.P.H., Chicago, Illinois, statement...... 286
Delgado, Beatriz, Norwalk, Connecticut, statement................ 289
Dessau, Sylvie, statement........................................ 290
Dolzall, Donnette, Newtown, Connecticut, statement............... 293
Episcopal Church, The, New York, New York, statement............. 504
Faiths United to Prevent Gun Violence, Washington, DC, statement. 294
Families Against Mandatory Minimums (FAMM), statement............ 302
Filkins, Andrea, Alexandria, Virginia, statement................. 305
Fronckiewicz, Laura, Denver, Colorado, statement................. 307
Giusti, Ron and Marsha, Springfield, Virginia, statement......... 309
Habtu, Elilta ``Lily,'' M.S., Virginia Tech Injured Survivor,
statement...................................................... 310
Hagmann, Suzanne and Daniel, Wilton, Connecticut, statement...... 315
Haywood, Kim, Newtown, Connecticut, statement.................... 316
Herve, Heather Borden, Wilton, Connecticut, statement............ 317
Hodson, Dee, statement........................................... 320
Hodson, Sophia, statement........................................ 321
Horwatt, Sally Singer, Ph.D., Licensed Clinical Psychologist,
statement...................................................... 322
Hull, Margaret, Newtown, Connecticut, statement.................. 324
Injury and Violence Prevention Network (IVPN), statement......... 326
Institute of Social Medicine and Community Health, McLean,
Virginia, statement............................................ 330
Interfaith Alliance, Washington, DC, statement................... 332
Kassirer, Susan J., Sandy Hook, Connecticut, statement........... 334
Kelly, Anne, Goshen, Connecticut, statement...................... 339
Kenausis, Veronica, Bethel, Connecticut, statement............... 340
Kent, Samantha, Newtown, Connecticut, statement.................. 342
Killin, Hugh E. ``Tripp,'' III, Newtown, Connecticut, statement.. 343
Killin, Jennifer, Newtown, Connecticut, statement................ 345
La Rabida Children's Hospital, Chicago, Illinois, statement...... 349
Law Center to Prevent Gun Violence, San Francisco, California,
statement...................................................... 350
League of Women Voters of the United States, Washington, DC,
statement...................................................... 353
Leon-Gambetta, Wendy, Newtown, Connecticut, statement............ 356
Levinson, Michelle, Connecticut resident, statement.............. 357
Levy, Robert A., February 11, 2013, letter--Redacted............. 649
Loganathan, Uma M., daughter of slain Virginia Tech Professor
G.V. Loganathan, statement..................................... 359
Lucia, Joan Hubbard, Newtown, Connecticut, statement............. 363
Malcolm, Joyce Lee, letter--Redacted............................. 647
Mayors Against Illegal Guns, ``America's Mayors Urge Congress To
Support Making Gun Trafficking a Crime as Part of a Larger
Legislative Package To Reduce Gun Violence,'' statement........ 374
Mayors Against Illegal Guns, ``U.S. Mayors Call on Congress To
Support Assault Weapons Ban,'' statement....................... 364
Mazier, Giselle, Wilton, Connecticut, statement.................. 386
McNabb, Lu Ann Maciulla, Centreville, Virginia, statement........ 387
Million Mom March, Virginia State Chapters, statement............ 539
Misencik, Sally and Paul, Reston, Virginia, et al., statement.... 389
Miwa, Linda J., Burke, Virginia, statement....................... 390
Monaghan, Georgia, Sandy Hook, Connecticut, statement............ 392
Morosky, Andrew M., Newtown, Connecticut, statement.............. 393
Morosky, Katherine, Newtown, Connecticut, statement.............. 395
Murray, Po, Sandy Hook, Connecticut, statement................... 396
Murray, Tom, Sandy Hook, Connecticut, statement.................. 400
Myles, Sandra, Oakton, Virginia, statement....................... 402
Myles, Steven J., Oakton, Virginia, statement.................... 403
Naphen, Sarah, Newtown, Connecticut, statement................... 410
National Association for the Advancement of Colored People
(NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
York, New York, statement...................................... 404
National Association of Public Hospitals and Health Systems
(NAPH), Washington, DC, statement.............................. 411
National Association of School Nurses, Silver Spring, Maryland,
statement...................................................... 415
National Association of School Psychologists (NASP), Bethesda,
Maryland, statement............................................ 417
appendix 1................................................... 418
appendix 2................................................... 423
National Association of Social Workers (NASW), Washington, DC,
statement...................................................... 427
National Council of Churches USA, Washington, DC, statement...... 431
National Education Association, Washington, DC, statement........ 433
National Law Enforcement Partnership To Prevent Gun Violence,
Washington, DC, statement...................................... 437
National Network To End Domestic Violence (NNEDV), Washington,
DC, statement.................................................. 441
National Parent Teacher Association (PTA), Alexandria, Virginia,
statement...................................................... 445
National Urban League (NUL), New York, New York, statement....... 447
Neff, Richard H., Ed.D., Fairfax, Virginia, statement............ 450
Neff, Robert T., Jr., Newtown, Connecticut, statement............ 451
Neuhoff, John, Sandy Hook, Connecticut, statement................ 452
Newtown Action Alliance, The, Newtown, Connecticut, statement.... 454
Nikitchyuk, Andrei, Sandy Hook, Connecticut, statement........... 456
O'Shea, John S., M.D., F.A.A.P., ``Disarming the U.S.,''
statement...................................................... 458
Pacchiana, Miranda, Sandy Hook, Connecticut, statement........... 460
Poje, Gerald V., Ph.D., Vienna, Virginia, statement.............. 461
Police Foundation, Washington, DC, statement..................... 463
Poupon, Eric, Newtown, Connecticut, statement.................... 466
Powers, Pamela S., M.Ed., M.S.W., L.C.S.W., C.A.P., U.S. Navy
retired, statement............................................. 468
Pratt, Larry, February 12, 2013, letter.......................... 640
appendix..................................................... 642
Prevey, Melissa, Redding, Connecticut, statement................. 470
Professors of Constitutional Law, Bruce Ackerman et al.,
statement...................................................... 471
Pumilia, Maria C., Albuquerque, New Mexico, statement............ 477
Rehabilitation Institute of Chicago (RIC), Chicago, Illinois,
statement...................................................... 479
Richardson, Barbara B., Sandy Hook, Connecticut, statement....... 480
Roome, Ethel-Anne, Southbury, Connecticut, statement............. 481
Samples, Diane, New Fairfield, Connecticut, statement............ 482
Schuetz, Jennifer, statement..................................... 485
Schwartz, Lisa, Newtown, Connecticut, statement.................. 487
Scoville, Rebecca, statement..................................... 489
Sentencing Project, The, Washington, DC, statement............... 507
Sivigny, Virginia D., Virginia resident, endorsing Martina Leinz'
statement...................................................... 490
Snyder, Mark, New Fairfield, Connecticut, statement.............. 491
Sriram, Sanjeev K., M.D., M.P.H., ``An Assault Gun Ban, Mr.
Congress Man?'' poem........................................... 492
St. Louis Children's Hospital (SLCH), St. Louis, Missouri,
statement...................................................... 494
Stern, Julia, Newtown, Connecticut, statement.................... 496
Swain, Colleen, Sandy Hook, Connecticut, statement............... 498
Swain, Ken, Sandy Hook, Connecticut, statement................... 499
Swanson, Veronica C., M.D., Philadelphia, Pennsylvania, statement 501
Tripp, Robert L., Reston, Virginia, statement.................... 516
Unitarian Universalist Association of Congregations, Washington,
DC, statement.................................................. 520
United States Conference of Catholic Bishops (USCCB), Washington,
DC, statement.................................................. 517
United States Conference of Mayors, The, Washington, DC,
statement...................................................... 511
Velush, Joan, and Craig Rogers, Sandy Hook, Connecticut,
statement...................................................... 522
Velush-Rogers, Zoe, Sandy Hook, Connecticut, statement........... 527
Violence Policy Center (VPC), Washington, DC, statement.......... 531
Wall, Jennifer, Virginia resident, statement..................... 542
Washington Ethical Society, Washington, DC, statement............ 543
West, Robert C., Jr., Afton, Virginia, statement................. 544
Wilson, Donald, letter........................................... 546
Wilson, Maureen, Newtown, Connecticut, statement................. 547
Win The War! Against Violence, Lexington, Kentucky, statement.... 548
Yergovich, Maryanne, statement................................... 551
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria
determined by the Committee, list.............................. 654
Cramer, Clayton, Professor, ``Reforming Colorado Mental Health
Law,'' issue paper:
http://www.claytoncramer.com/scholarly/
ColoradoMentalHealthReform-1.pdf........................... 654
Pratt, Erich, and Michael Hammond, Gun Owners of America,
``Current Gun Control Proposals Will Endanger the Rights of
Law-Abiding Americans,'' statement:
http://gunowners.org/congress02122013.htm.................... 654
Reynolds, Glenn Harlan, Professor, ``Second Amendment Penumbras:
Some Preliminary Observations,'' research paper:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2002132... 654
PROPOSALS TO REDUCE GUN VIOLENCE:
PROTECTING OUR COMMUNITIES WHILE
RESPECTING THE SECOND AMENDMENT
----------
TUESDAY, FEBRUARY 12, 2013
United States Senate,
Subcommittee on the Constitution, Civil Rights and
Human Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Dick Durbin,
Chairman of the Subcommittee, presiding.
Present: Senators Durbin, Franken, Blumenthal, Hirono,
Cruz, Graham, Cornyn, and Hatch.
Also present: Senators Feinstein, Schumer, Klobuchar, and
Grassley.
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chairman Durbin. This hearing of the Subcommittee on the
Constitution, Civil Rights and Human Rights will come to order.
Today's hearing is entitled, ``Proposals to Reduce Gun
Violence: Protecting Our Communities While Respecting the
Second Amendment.'' This is the first hearing of the
Constitution Subcommittee of the 113th Congress, and I want to
welcome my Ranking Republican Member, Senator Ted Cruz of
Texas. Thank you for joining us at this Committee hearing, as
well as my other colleagues who will be here.
I also want to thank Senator Pat Leahy, Chairman of the
full Committee, for giving this opportunity to us to have this
hearing today. The Chairman held a hearing on January 30th to
begin this conversation on gun violence, and we continue it
today.
We are pleased to have such a large audience for our
hearing. It demonstrates the importance of this issue, and at
the outset I want to note that the rules of the Senate prohibit
outbursts, clapping, or demonstrations of any kind at these
hearings. There was so much interest in today's hearing that we
have had to expand the opportunity for the audience to an
adjoining room. The overflow room is 226 in the Dirksen
Building.
I will make a few opening remarks, give my Ranking Member,
Senator Cruz, the same opportunity, and then welcome our first
witness.
We are here today to discuss a critically important issue,
maybe even a very basic question. We venerate in this country
our commitment to the life, liberty, and pursuit of happiness
of those who live in America. We also guarantee under our Bill
of Rights the right to bear arms. Can we make these two
consistent? Can they work together? Can we protect a person's
right to own a firearm and still say to the rest of America,
``We also need to protect your right to life, to peace, to
freedom from violence from those same firearms'' ?
According to the Centers for Disease Control, over 11,000
Americans--11,000--are murdered with guns every year. That is
more each year than all the American lives that were lost in
the tragedy of 9/11 and the wars in Iraq and Afghanistan
combined. Each year.
Every day more than 30 men, women, and children are killed
in violent shootings; 200 are shot but survive. These are
sobering statistics. But numbers do not really capture the
deeply personal impact of gun violence.
There are too many families who now face an empty seat at a
dinner table, too many parents who walk past an empty bedroom,
too many husbands and wives who have lost the love of their
lives because of gunfire. It is heartbreaking and, sadly, it
has become almost routine in this great Nation--in a park in
Chicago, at a nightclub in East St. Louis, Illinois, at a movie
theater in Aurora, Colorado, at a shopping center in Tucson,
Arizona, in a Sikh temple in Oak Creek, Wisconsin, at a
military base in Texas, in college lecture halls in DeKalb,
Illinois, and Blacksburg, Virginia, and in first grade
classrooms in Newtown, Connecticut. Americans all across the
country are saying, ``Enough.'' We have reached a tipping
point. We need to act. We need to better protect our kids, our
families, our schools, our loved ones from the epidemic of gun
violence.
Some say we should just enforce the laws that are on the
books, but that is not enough. There are so many gaps in those
laws that we know they have created the situation we face
today.
The Senate will take up many proposals that will close
those gaps and help prevent and reduce gun violence. We will
consider universal background checks for gun sales, tougher gun
laws against illegal straw purchasing and gun trafficking,
stopping the flood of new military-style assault weapons onto
our streets, limiting the capacity of new gun magazines to a
level that allows for reasonable self-defense but reduces the
scope of carnage that a mass shooter can cause.
All of these proposals are based on common sense; all of
them have strong support among the American public; and all of
them, I believe, are clearly consistent with our Constitution
and the Second Amendment in the Bill of Rights.
In the landmark Supreme Court decision in Heller in 2008,
the Court held that Americans have an individual right to
possess firearms for lawful purposes such as self-defense. But
Justice Scalia--no liberal, Justice Scalia--writing for the
Court's conservative majority, made clear that the Second
Amendment right is ``not unlimited,'' and that like other
rights, it is subject to reasonable regulation. In fact, the
Heller decision takes pains not to cast any doubt on common-
sense gun laws. Over and over, the Heller Court described gun
regulation as ``permissible,'' supported by historical
tradition and ``presumptively lawful.''
When given the opportunity to retreat from those statements
in the 2010 McDonald case, the Court instead reinforced the
same statements and described them as ``assurances.'' And in
hundreds of cases following Heller, lower courts have upheld
common-sense gun laws as consistent with the Second Amendment.
There are some who continue to challenge the
constitutionality of reasonable gun regulation, even though
history, precedent, and the Supreme Court statements in Heller
and McDonald weigh heavily against them. They do so hoping that
judicial activism will advance their no-compromise ideology
when it comes to guns. But I think we need to be careful. This
is not some abstract, legal debate. Guns have forever changed
the lives of so many people. Let me mention just a few of them.
Hadiya Pendleton, an honor student and inspiration to her
friends. ``A walking angel,'' her cousin called her. She was
taken from us 2 weeks ago. Hadiya's family is here today.
Ryanne Mace, a student at Northern Illinois University,
with a warm heart, a bright future, murdered in her classroom
by a man with a history of mental illness. Ryanne's mother,
Mary Kay, is here today.
Blair Holt, 16 years old and full of promise, killed while
shielding his female friend from a gang member spraying bullets
on a Chicago city bus. Blair's mother, Annette, is here today.
Marcus Norris, who was hit in the face by a bullet that
came through the wall of his house when he was 9 years old.
Thank God Marcus survived, and we are blessed to have him here
today.
Chicago police officer Thomas Wortham IV, a true American
hero who dedicated his life to serving his country and his
community, killed by gang members with a straw-purchased gun. I
attended his funeral service. Officer Wortham's family is here,
and his sister, Sandra, will testify today.
There are many more here in this room today whose lives and
whose families have been changed by gun violence. I would like
to ask those friends and family of the victims of gun violence
to please stand.
Look about this room. Understand that the debate we have
before us has affected so many lives, and thank you all for
being here today. As we conduct this debate and we honor your
loved ones who are no longer with us, we know that we have to
act. Thank you so much for joining us at this hearing.
Senator Cruz.
OPENING STATEMENT OF HON. TED CRUZ,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cruz. Thank you, Mr. Chairman. Let me say it is a
particular honor to serve as Ranking Member on this Committee
with you, and it is also a particularly high honor to serve on
the Committee with two former Ranking Members and Chairmen of
this Committee, Senator Cornyn and Senator Hatch, as well as
the Ranking Member of the entire Committee, Senator Grassley.
All of us were rightly horrified by the tragedy in Newtown,
Connecticut. To see young children senselessly murdered takes
your breath away. Let me say to each of you who has come here
today that are the victims of crimes of violence, my heart goes
out to you. Thank you for coming. Thank you for standing for
your lost loved ones.
I will tell you, I have spent personally much of my
professional career working in law enforcement to, number one,
prevent these horrible crimes of violence; and, number two, to
ensure that anyone that carries them out is subject to the very
strictest punishments. And I am hopeful that the fervor that we
see in this Judiciary Committee hearing for standing up for
victims of crimes of violence will carry over to issues other
than gun control. I am hopeful that that same fervor will be
present with judicial nominees are here who have a record and
history of allowing those who have committed violent crimes to
walk free. I hope that same fervor on a bipartisan basis will
be present when we are talking about how to ensure that the
laws and resources are there to prevent violent criminals from
carrying out their horrific crimes and to ensure that every one
of them receives a fair and just punishment.
In my view, the divide on this issue is fairly
straightforward. The focus of law enforcement should be on
criminals, and we should be unstinting in protecting
communities. Many of the communities that each of you has
suffered losses in are communities that, sadly, law enforcement
has been failing. And we should be working to fix that problem.
At the same time, I think we should continue to respect and
protect the constitutional rights of law-abiding citizens. It
is often lost in the debate over guns that the Second Amendment
is part of our Constitution. It is part of the Bill of Rights.
It is indeed, as Justice Joseph Story put it, the ``palladium
of liberty,'' a fundamental protection of every American. And
in my view, stripping the constitutional rights of law-abiding
citizens does nothing to prevent criminals from carrying out
violent crime. And, indeed, the overwhelming weight of the
empirical evidence demonstrates that when the rights of law-
abiding citizens to protect themselves, to protect their homes,
to protect their families are taken away, that violent crime
increases; that citizens defenseless are more vulnerable to
violent criminals.
For that reason, the two cities with the strictest gun
control policies in the country--Washington, DC, and Chicago--
both of which for years had effectively total bans on firearms
ownership, so it could not be possible to have a stricter
policy, both have, sadly, suffered from some of the highest
crime rates and highest murder rates notwithstanding those laws
and, I would suggest, in significant part because of those
laws.
If you look in contrast to jurisdictions that have
protected the constitutional right to bear arms, you have
consistently seen lower crime rates, lower murder rates, as
individual citizens are able to protect their family.
The Supreme Court's decisions in Heller and McDonald were
landmark decisions. They concern the question whether each of
us is protected by the Bill of Rights, because the position of
the cities of DC and Chicago in that litigation was that no
individual has any right whatsoever under the Second Amendment.
The position of the litigants in those cases, I would suggest,
was quite extreme. Today we are discussing what are the limits
on that right because the Supreme Court made absolutely clear
that the Second Amendment is a constitutional right of every
American. And I would point out that constitutional rights are
designed to be protected not just when they are popular, but
especially when passions are seeking to restrict and limit
those rights.
And so I look forward to this hearing underscoring the
vital protections of the Second Amendment to every American.
Chairman Durbin. Thank you, Senator Cruz.
In keeping with the practice of the Committee, the witness
will please stand and raise his right hand to be sworn. Do you
affirm that the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Heaphy. I do.
Chairman Durbin. Thank you.
Let the record indicate that the witness answered in the
affirmative.
We are pleased to be joined by a witness from the
Department of Justice, U.S. Attorney Timothy Heaphy. I would
note that at our last hearing on gun violence on January 30th,
there was a specific request from the Republican side for the
Justice Department to send a witness to our next hearing to
discuss the enforcement of current gun law. The Department has
responded to this request.
Timothy Heaphy was confirmed by the Senate in 2009 to serve
as the U.S. Attorney for the Western District of Virginia.
Prior to his appointment, he served for 12 years as Assistant
U.S. Attorney in Virginia and the District of Columbia. He has
also worked in private practice and taught at the University of
Virginia School of Law. He received his undergraduate and law
degrees from the University of Virginia as well.
Mr. Heaphy, thanks for joining us today. We will give you 5
minutes for an opening statement. Your complete statement will
be part of the record, and then we will ask some questions.
Please proceed.
STATEMENT OF TIMOTHY J. HEAPHY, UNITED STATES ATTORNEY, WESTERN
DISTRICT OF VIRGINIA, U.S. DEPARTMENT OF JUSTICE, WASHINGTON,
DC
Mr. Heaphy. Thank you very much, Chairman Durbin, Ranking
Member Cruz, and Members of the Subcommittee. I serve as the
United States Attorney for the Western District of Virginia,
and in that capacity, I am pleased and honored, really, to
speak with you about the continuing work of the United States
Attorney community and the Department of Justice to address
gun-related violence.
This is a very personal issue to me, Chairman Durbin. I
have prosecuted literally hundreds of gun cases in my 15 years
as a Federal prosecutor, including a year-long trial of a
violent drug gang right here in Washington, DC. I currently
serve as United States Attorney in a district that has felt the
pain of a mass shooting on the campus of Virginia Tech. I have
spent my career talking to the victims of these awful crimes,
folks much like those in the audience today, and working with
the men and women who investigate them on the street.
Attorney General Eric Holder has consistently emphasized
that combating violent crime and fostering safe communities is
a top priority of the Department of Justice. To that end, he
has tasked the Nation's 93 United States Attorneys with the
responsibility to develop localized strategies to apprehend and
prosecute individuals, street gangs, and other criminal
organizations that engage in gun-related violence.
These local strategies require us to work smarter by
gathering intelligence and targeting our enforcement efforts on
the most dangerous and complicated threats in our communities.
We use that intelligence to vigorously prosecute gun crime,
relying on close coordination with agents from the Bureau of
Alcohol, Tobacco, and Firearms and our other State, Federal,
and local partners.
But we do more than arrest and prosecute. In communities
where violence persists, we are forging partnerships with
prevention organizations and supporting their important work.
Our Violence Prevention Strategy relies upon a nationwide
effort to keep guns out of the hands of prohibited persons.
When licensed gun dealers run a background check on every
potential gun buyer, they ensure that they are not selling
firearms to felons, domestic abusers, drug users, people with
recognized mental health issues, or others who by law cannot
possess a firearm. But the background check system is only
effective if it contains all relevant information from every
source.
The Department of Justice is working to create incentives
and provide assistance to State governments, the prime
contributors to that background check system, to ensure that
they put all relevant criminal and mental health records into
the National Instant Criminal Background Check System, or NICS.
Even if we find a way to get every record into NICS, our
effort to prevent criminals from getting guns is hampered by
current holes in the background check system. Our experience
shows that violent criminals often seek out sellers, whether at
gun shows, on the Internet, or in the Yellow Pages, who are not
licensed dealers and are not required to run the background
check. Extending the background check requirement to all
commercial transactions, absent some limited exceptions, is our
best opportunity to keep firearms out of dangerous hands and
help keep our children and communities safe.
Strategies for enforcement of firearms offenses will vary,
depending on the nature of the problem in particular
communities. We work closely with State prosecutors and local
law enforcement officials to determine if a particular gun case
or gun offender should be charged in Federal or State court.
When cases come to us, we use Federal firearms statutes to
prosecute prohibited persons who obtain and possess firearms,
people who were prevented from obtaining a firearm due to an
interception of the background check. We prosecute individuals
engaged in the business of dealing firearms without a license
or who ignore or disregard the law, preventing gun sales to
prohibited persons. We charge violent criminals with using guns
to commit a range of other crimes, from drug dealing to robbery
to homicide, using statutes which often carry lengthy mandatory
sentences.
Additionally, we do all we can to pursue cases involving
gun trafficking and straw purchases of firearms, despite the
enormous challenges that such cases present. There is currently
no single Federal statute specifically devoted to punishing
firearms trafficking or straw purchasing. This gap in current
law requires prosecutors to try to find other gun-related
criminal statutes, generally paperwork violations, that can be
applied to the facts of a particular trafficking scheme.
Without a stand-alone statute and more meaningful penalties for
those who traffic in firearms, we will continue to find it
difficult to dismantle the criminal networks that exploit these
statutory gaps.
I want to end by reassuring this Committee and the American
people that the Department's commitment to vigorous pursuit of
impactful gun prosecutions is as strong as ever. While the
number of gun defendants charged by United States Attorneys has
declined slightly since 2005, our numbers are significantly
higher than they were back in fiscal years 2000 to 2002. During
the same period of time, the number of murders and other
violent crime has declined nationwide at an even greater rate.
In short, our commitment to gun prosecutions has never wavered
and has helped lead to an overall decrease in violent crime.
Thank you again for the opportunity to appear before you
today. I look forward to answering your specific questions.
[The prepared statement of Mr. Heaphy appears as a
submission for the record.]
Chairman Durbin. Thanks, Mr. Heaphy. Let me say a word
about Chicago. It is a great city, but it is not an island.
Just outside Chicago in a suburb is one gun store that we can
hold responsible for 20 percent of the crime guns that we
confiscate in the city of Chicago. So despite the laws in
Chicago, the fact that you can cross outside the city into the
suburbs, go downstate, to neighboring States--we have even
found in the last 20 years 9 percent of the crime guns in the
city of Chicago could be traced to the State of Mississippi. We
cannot deal with this in isolation community by community.
I want to address the issue of straw purchasing. Straw
purchasing is a dangerous act that supplies many criminals in
the city of Chicago and across the United States and other
prohibited purchasers with guns. Under the current Federal law,
the primary statute used for charging penalizes a person who
``knowingly makes a false statement about a fact material to
the lawfulness of a gun sale.'' This statute is essentially
about document fraud. The crime is tied to lying on sale
paperwork when the straw purchaser checks ``yes'' on the ATF
form that asks, ``Are you the actual buyer of the firearm
listed on this form? ''
Can you talk about the challenge in prosecuting cases that
appear to be paperwork prosecutions?
Mr. Heaphy. Yes, Senator. I appreciate the question, and
you are exactly right, that when someone goes into a gun store,
buys a gun on behalf of someone else, our hands are tied. We
can prosecute that as a paperwork violation but not as what it
is, which is an illegal straw purchase of a gun.
Section 922(a)(6) is the statute which punishes a false
statement on a firearm form. That requires evidence that the
person knew that he was making the false statement, and that
oftentimes just on the misrepresentation is a difficult
threshold for us to meet. Prosecutions under that law carry a
very minimal recommended Sentencing Guideline range. I think
CRS did a study years ago in which they found that fully a
third of the 922(a)(6) charges resulted in a not guilty verdict
largely because of this intent standard; and then another 37
percent resulted in a sentence of less than a year in prison.
So the statute itself, even if we have the evidence of a
specific intent to conduct a straw purchase, does not give us
very much teeth, sir, on the back end in order to get
actionable intelligence about that straw purchase.
Chairman Durbin. So, Mr. Heaphy, those who argue that we
already have laws on the books, we just need to enforce them,
you are telling us that this law is essentially a weak law; it
is a paperwork prosecution which is not taken as seriously as
the ultimate crime or death that might result from this straw
purchase.
Mr. Heaphy. In our business, Senator Durbin, we are
constantly focused on gathering intelligence about more and
more serious patterns of crime. Gun trafficking is no
exception. It is essential for us, when we arrest someone who
is a straw purchaser, to get actionable intelligence about
where that gun was going, who hired him to conduct that straw
purchase. The leverage that we have to gain that intelligence
comes from a significant penalty, and if the penalty
essentially is a paperwork violation that is not intimidating,
it is difficult for us to get that intelligence to work up the
chain of those straw purchasing networks.
Chairman Durbin. I have joined with Chairman Leahy in
cosponsoring legislation relating to straw purchasers. There
are several other bills. Senator Kirk, my colleague from
Illinois, Senator Gillibrand, they have one.
Do you believe that creating a separate Federal offense for
straw purchasing would put a significant dent in the criminal
gun market?
Mr. Heaphy. Yes, Senator, I do. The Department strongly
supports a stand-alone straw purchasing statute. It will give
us those more serious penalties that we need in order to gain
intelligence and buildup the chain of these networks of
individuals that conduct straw purchases.
Chairman Durbin. I have found in my State and we have heard
in other States that there is a cooperation between State and
local prosecutors and Federal prosecutors in allocating these
prosecutions. And many times what could be an offense under
either law is passed along to the local or State prosecutors.
Can you tell me how this affects the statistics on Federal
prosecution of gun laws?
Mr. Heaphy. Yes, Senator. We have to work very closely with
our State and local partners in a collaborative approach to gun
violence. We do that in every single district in the country.
In my district, in Charlottesville, Virginia, when someone is
arrested with a gun, there is a conversation between myself and
my elected Commonwealth's attorney in that jurisdiction. We
talk about whether or not it makes sense for that offender to
be charged federally or under State law. Since the Virginia
Tech shooting in Virginia, there are increased penalties for
being a felon in possession. It is a concurrent jurisdiction
where the State can prosecute the same act as we can. And if
the State penalty is as significant, that case often goes to
State court, and that has contributed to that slight decline in
our overall number of gun defendants.
Chairman Durbin. The last point I will make is that March
1st, unless something else is done, there is going to be a
sequester and a cutback in the Department of Justice in the
resources available for the prosecution of crime. About a
thousand Federal prosecutors may be terminated or at least
reduced in service. I think the impact is obvious, but would
you like to comment on that?
Mr. Heaphy. We are trying our best to do all we can with
the limited resources we have. As those resources diminish,
whether they are prosecutors, whether they are agents, our job
is made more difficult. Those sequester cuts would be very
difficult for us to absorb.
Chairman Durbin. Thank you.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Mr. Heaphy, I want
to thank you for being here. I want to thank you for your
service on the front lines of law enforcement. What you are
focusing on doing, which is bringing the criminal laws to bear,
stopping and punishing violent criminals, is critically
important, and I commend you for that service.
Mr. Heaphy. Thank you, sir.
Senator Cruz. I would like to address two issues that came
up in your testimony. The first is the efficacy of gun control
laws and, second, the question of straw purchases. Let us start
on gun control laws and do they work.
Are you aware of any serious empirical basis for the
proposition that significantly restricting the rights of law-
abiding citizens to keep and bear arms actually results in
reducing violent crime?
Mr. Heaphy. Sir, violent crime is down substantially from
where it was. I think that is due in part to vigorous
enforcement, getting guns out of the hands of violent
criminals. I do not know that we are ever going to stop violent
crime. Unfortunately, the business in which I work will always
be necessary.
What we are trying to do is increase the barriers to the
commission of that violent crime, make it more difficult for
offenders to get the firearms in the first place to----
Senator Cruz. Mr. Heaphy, let me point out a couple of
things. Number one, your statement that violent crime is down
is a statement about national trends, and you are right, and I
agree that vigorous enforcement of criminal laws targeting
violent criminals, that works.
The question about stripping the rights of law-abiding
citizens, however, the only way to ascertain that is to engage
in a comparative analysis of those jurisdictions that have done
so versus those jurisdictions that have not. For example, if
you look at cities, of the top six cities with murder rates,
Detroit, sadly, in 2001 topped the list with 48 murders per
100,000 people. Baltimore, Maryland, was second with 31 murders
per 100,000 people; Philadelphia third with 21 murders per
100,000 people. Memphis, Tennessee, the only one of the top six
without especially vigorous gun control laws, is fourth with 18
murders per 100,000 people. Washington, DC, is fifth with 18
murders per 100,000 people, and Chicago, Illinois, is sixth
with 16 murders per 100,000 people. Five of the six cities with
the highest murder rates are among those cities with the
strictest gun control.
If you contrast that to cities that do not have strict gun
control, for example, my home town of Houston, where there are
9 murders per 100,000 people, that is less than quarter what
Detroit suffers under. Or if you look at other cities in my
home State of Texas, San Antonio has 7 murders per 100,000
people. Austin has 4 murders per 100,000 people. El Paso has 2
murders per 100,000 people. That means Detroit, the murder rate
is 24 times higher than it is in El Paso.
And I would also point out the argument that you and the
Chairman were discussing about cities such as Chicago not being
isolated islands, that there are places elsewhere in the
country where people can legally purchase firearms. None of
those cities I discussed--Houston, Austin, San Antonio, El
Paso--are isolated islands. Indeed, in the entire State you can
purchase firearms, and what we see in terms of the murder rates
is the murder rates are consistently lower.
So my question to you is not your subjective belief, but
are you aware of any empirical data--every one of us wants to
reduce murder rates. My question to you is: Is there any
empirical basis for saying stripping the constitutional rights
of law-abiding citizens would result in decreasing murder rates
rather than increasing them, which, unfortunately, is the
pattern that I think we have seen?
Mr. Heaphy. Senator Cruz, let me start answering your
question by thanking you and this Committee for expanding our
discussion on guns beyond the mass shooting to urban violence.
I have spent my career working on urban violence issues in
relative obscurity, and the fact that we are having this
discussion about urban violence is much appreciated by those of
us who work on the line.
My career of working on this issue has shown me that there
is no single factor that drives this. It is a complicated
problem. It is a factor of educational opportunity, economic
opportunity, health care. It is a comprehensive situation that
breeds violence. So to tie gun ownership or restrictive or
permissive gun laws to a murder rate I think isolates one
factor----
Senator Cruz. Mr. Heaphy, with respect, if I could stop
you, because my time is running out, I will just point out for
the record that twice given the opportunity to answer is there
any empirical basis for the proposition that strict gun control
would reduce violence, twice you have not been able to give an
example of that.
Very briefly on the second point, on straw purchases, you
focused on straw purchases. I think that may actually be an
area of potential bipartisan cooperation. The Chairman brought
it up, and I think all of us agree that if there are those that
with criminal intent are transferring firearms to felons, that
there should be strict punishment for that. So that may be a
productive area of cooperation.
But I would point out that one of the largest straw
purchasers we have seen in recent years was, sadly, the United
States of America in the Fast and Furious program, which sent
thousands of firearms, deliberately allowed them to go into the
hands of violent drug cartels, which in turn were used to
murder hundreds of citizens, innocent citizens in Mexico and at
least one Federal law enforcement officer. In your experience
in law enforcement, has the idea of walking guns, allowing
violent criminals to have illegal guns, is that you have ever
condoned, and would you characterize that as typical law
enforcement practice?
Mr. Heaphy. Senator Cruz, the Fast and Furious Operation
has been the subject of considerable inquiry. Our own Inspector
General issued a very lengthy report and found that mistakes
were made. It was a regrettable incident, and it is one from
which we have learned. We have very carefully now evaluated our
approach to undercover investigations and will continue to
incorporate the lessons learned from that report.
But I want to go back, if I may, just briefly to your
earlier question about empirical evidence. Prediction of
violence or prevention of violent crime is not an exact
science. It is very, very difficult to find data that any
individual factor, be it gun membership, be it poverty, be it
educational opportunity, is tied directly to the murder rate.
So I think--I understand your question. It is a good question,
and I appreciate the focus on these murder rates. But it is a
bit of alchemy to try to come up with a single factor that is
most determinant with respect to reducing levels of violent
crime.
Senator Cruz. Thank you, Mr. Heaphy, and my time has
expired.
Chairman Durbin. Senator Franken.
Senator Franken. Thank you, Mr. Chairman, for holding this
hearing. I want to thank some folks who are here from Minnesota
who have been courageous in sharing their own stories of gun
violence: Mary Johnson, Angela Cradle, Maya and Sam Rahamim,
and Police Sergeant Mike Dezann. I am looking forward to
spending some time with you, with each of you tomorrow
afternoon.
I also want to extend my condolences to the people in
Oakdale, Minnesota, who experienced a horrific shooting last
night.
I spent some time traveling around Minnesota in the
aftermath of the shooting at Sandy Hook, and what I have
learned is that we can honor Minnesota's culture of responsible
gun ownership while taking some reasonable steps to make our
communities safer. Gun control is a central part of this, so I
support a ban on assault weapons and a limit on the size of
magazines.
I also believe that we need to improve and expand our
background check system. Millions of people because of our
background check system have been denied guns. And it seems
like there is a consensus being built around the idea that we
should do a background check on all purchasers of guns.
Part of improving the background check system involves
updating the mental health records in the national data base
and, of course, improving access to mental health is an
important part of this entire discussion, too.
What we cannot do is stigmatize mental illness. What we
must do is improve the way our country helps people who live
with it. If we are going to talk about mental health, let us
make it more than just a talking point. Let us make it a true
national priority.
I would really encourage all my colleagues to take a look
at my Mental Health in Schools Act, which is one of the things
I have been working on in this area. The bill will improve
access to mental health services for our children so that we
can catch this early. I have talked to moms who have gotten
professional help for their children. It has not only change
their children's lives; it has changed their lives. And I would
just encourage my colleagues to look at this piece of
legislation.
Mr. Heaphy, I asked the Vice President's Gun Violence Task
Force to move forward with implementing the Wellstone-Domenici
Mental Health Parity Act, and I want to thank the
administration for agreeing to do that. It is very important.
A vast majority of people with mental illness are not
violent, but there is a very small percentage who can become
violent if they do not get--if they are not diagnosed and they
do not get treatment. And I know that you have put a special
emphasis on community-based crime prevention projects since you
have become U.S. Attorney.
Based on your experience, can you talk a bit about why it
is so important for people to have access to mental health
services in their communities?
Mr. Heaphy. Yes, absolutely, Senator. I can talk about this
issue from the Virginia Tech experience. As I said at the
beginning, I serve just up the road from Blacksburg, and those
wounds linger. They never really heal.
One of the things that we did in Virginia on a bipartisan
basis was change the way in which we capture mental health
adjudications in the National Instant Criminal Background Check
System. Virginia now is really the gold standard for ensuring
that it is respectful of privacy when folks are adjudicated by
a judge or civilly committed with mental health issues. Those
records are put into the National Instant Criminal Background
Check System. The shooter at Virginia Tech had mental health
issues but, unfortunately, those records were not. So we have
focused on this issue, as you said, increasing access to
treatment for those who need it, but ensuring that when people
do, are flagged in the system as having issues, that those
records are in NICS.
Many States, unfortunately, have not followed Virginia's
lead and have not put those records in NICS, so that is one of
the holes in the background check system. The Department has
supported grants to States to help ensure full NICS compliance.
Those records need to be comprehensive. But, Senator, as you
said, it goes all the way back to making sure that the
treatment is available. That is a crucial component of any
public safety strategy.
Senator Franken. Thank you, and my time has run out. Just
let me emphasize this for everyone listening. The vast majority
of people with mental illness are no more violent than the
general population. In fact, they are more often the victim of
violence than the general population. But there is a very, very
small minority of people with mental illness who can become
more violent if they are not diagnosed and if they are not
treated, and we can catch those people earlier, we can identify
them, and we can perhaps prevent some of the types of things
that we have seen lately.
Thank you, Mr. Chairman.
Chairman Durbin. Thanks, Senator Franken.
We have an early bird rule on this Committee, and the
Republican side has informed us that the next in line is
Senator Grassley.
Senator Grassley. Thank you, Mr. Heaphy, for coming. As a
follow-up to Chairman Durbin's questions on straw purchasers,
we have heard that all too often law enforcement presents cases
of suspected straw purchasers to U.S. Attorneys and the cases
are declined for prosecution for one reason or another. How
many cases were presented to U.S. Attorneys for suspected straw
purchasers last year that were declined prosecution?
Mr. Heaphy. Senator, I do not know exactly. I can get that
information for you, but I do not have a specific number. I
know that we did only 44 cases of lie-and-try, so the cases
where someone applied for a firearms--went through the
background check and it bounced back.
Senator Grassley. I will appreciate your answer in writing.
Thank you.
[The information referred to appears as a submission for
the record.]
Senator Grassley. The title of today's hearing obviously
has been known, ``Proposals to Reduce Gun Violence: Protecting
Communities while Respecting the Second Amendment.'' Now, your
testimony makes no mention of the Second Amendment, so the
question: Has the Department of Justice taken any position on
the constitutionality under the Second Amendment of legislation
pending before the Senate that would ban so-called assault
weapons?
Mr. Heaphy. Senator, the Department of Justice and the
administration understand the impact of the Heller decision,
which found that Americans have a fundamental Second Amendment
right to self-defense. But I believe the Heller decision admits
reasonable restriction on that right--time, place, and manner
type restrictions. So without opining on a specific measure of
one of the bills, whether it is or is not constitutional, I
believe that there are ways to regulate guns respectful of the
Second Amendment but provide those reasonable restrictions.
Senator Grassley. So the Department has not taken any
position on specific legislation. Do you know why they have not
taken a position yet?
Mr. Heaphy. The Department supports an assault weapons ban
and will work hard to ensure that whatever comes out, if one
comes out, is constitutional, Senator.
Senator Grassley. The Supreme Court in the Heller decision
applied a form of heightened scrutiny to laws seeking to impede
the Second Amendment. What is your understanding of that
portion of the ruling?
Mr. Heaphy. My understanding of the ruling is that it
allows, recognizes the Second Amendment right to defend oneself
in his home, and the District of Columbia statute at issue in
Heller impinged upon that because it was an absolute
prohibition of firearms in the home. It does not go beyond that
and create a general right to carry firearms anywhere. Again, I
think that Justice Scalia, as the Chairman pointed out, in the
Heller opinion did admit that there would be potential
limitations on the right when time, place, and manner
restrictions are consistent with that overall right to
fundamental self-defense.
Again, there is a sweet spot here, sir, between respecting
the Second Amendment and everybody's right to defend himself
and doing what we can to minimize the public safety threats
that are presented by these dangerous weapons.
Senator Grassley. Well, what level of scrutiny should be
applied to address whether or not an assault weapons ban is
constitutional or not?
Mr. Heaphy. Sir, I am not familiar enough with the Heller
opinion to really give you an opinion on that. I am sorry.
Senator Grassley. Okay. We had Fast and Furious brought up.
Since I started that investigation, I would like to ask you a
question on it. But I want to also state that when you said
that policies have been changed, I have an email here to U.S.
Attorneys: ``As I said on the call, to avoid any potential
confusion, I want to reiterate Department policy. We should not
design or conduct undercover operations which include guns
crossing the border.'' And so the policy has not been changed
about encouraging licensed gun dealers to sell--encouraged by
the Federal Government for licensed gun dealers to sell guns.
It is only that they are ordered not to do it if they know they
are going to cross the border.
So it seems to me to kind of be just a conflict of policy
for people in Government to say we ought to ban certain guns at
the very same time you are having licensed gun dealers
encouraged to sell guns to people illegally.
In regard to Fast and Furious, as U.S. Attorney would you
ever support ATF to encourage Federal firearms licensees to
sell firearms to those they suspect of being straw purchasers?
Mr. Heaphy. Senator Grassley, we learned a lot from Fast
and Furious, and the email that you are referring to encourages
us to carefully monitor all undercover operations. There are
times when those undercover operations involve criminal
activity, and unfortunately, a dirty reality of our business is
that we have to at times, working with our agents, work with
people that are involved in criminal activity. We have to
monitor that closely. Part of the problem with Fast and Furious
was an insufficient level of scrutiny all up the chain. And we
are hoping that since we have learned lessons from that, we
will do a better job of protecting public safety as we work
with undercover investigations.
Senator Grassley. My time is up. Thank you, Mr. Chairman.
Chairman Durbin. Thank you, Senator Grassley.
Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman.
I would like to thank the family and friends of victims of
gun violence who are here with us today. This is a very
critical issue for our country and for our communities.
To our testifier, you mentioned that the Department
supports a stand-alone straw purchaser statute. Do you also
support closing another loophole, which is the purchase of guns
at gun shows where there is no background check? So my question
is: Would you also support a strong closing of the loophole
background check law?
Mr. Heaphy. Yes, Senator Hirono. Currently it is too easy
for prohibited persons--felons, drug users, domestic abusers,
or folks with mental health issues--to evade the background
check requirement. Rather than go into a licensed Federal
firearms dealer, they can walk down the street, go to a gun
show, and with no background check, walk out with a gun. That
is a gaping hole in the system.
So we strongly support increasing to effectively a
universal background check system. It should admit for some
limited exceptions--intra-family transfers or estate passage of
firearms. But commercial transactions ought to be run through
this background check system.
Senator Hirono. And, of course, we need to improve the
information that gets into the system.
We have had a discussion this morning regarding the
correlation between tough gun control laws and violent crimes
in places such as Washington, DC, and Chicago. And I am all for
using facts in evidence to inform our decisions, but it is the
cause-and-effect conclusions we draw from this kind of
information that can be very problematic and questionable.
For example, Hawaii has pretty strict gun control laws, and
yet we have, I would say, very low--knock on wood--gun violence
crimes in Hawaii. So, you know, I do not know of any empirical
evidence showing the cause and effect between weaker gun laws
and fewer gun violence crimes unless you are aware of any such
empirical cause-and-effect studies?
Mr. Heaphy. Senator, I have worked on this issue for 20
years, again, spent time with victims, spent time with killers,
with people who have been involved in these acts of violence
and who are hoping for some leniency by cooperating with us.
And I cannot say that I know what causes gun violence. I wish
we did. There is no more pressing problem to me or my
colleagues in the Department than this. But, unfortunately, it
is a complicated, layered, contextual problem that has so many
different factors.
So I agree with your question, Senator, that it is very,
very difficult to isolate one cause and tie it very
specifically to violent crime rates.
Senator Hirono. Thank you.
Have you had any experience with bullying in our schools
leading to violence? Because we had a police officer or a
police captain, I believe, who testified before the full
Committee saying that he considered bullying in our schools
that could lead to violence, that could lead to the easy
obtainment of guns, and that could lead to tragedy. And he
acknowledged that as a concern.
Have you had experience in this area? And if so, what can
we do to prevent bullying in our schools that could very well
escalate?
Mr. Heaphy. Yes, I appreciate that question because it
gives me an opportunity to talk about a more comprehensive
anti-violence approach. We cannot just arrest people and think
that we are going to have a safer community. We have to do what
we can on the front end to prevent potentially violent
criminals from getting guns and from perpetrating those awful
acts. And bullying is part of that, absolutely. We have to do
what we can to help prevent and provide resources for people
that are bullied.
Every U.S. Attorney is trying to implement a very localized
place-based anti-violence strategy, and in some communities,
our prosecutors, particularly in the Civil Rights Division,
have done a lot of work on anti-bullying programs and have
helped young people appreciate the unfortunate consequences of
school bullying. And, yes, I think there are stories, very
difficult stories, where bullying has prompted someone to
violence.
So our approach to this problem has to be 360 degrees. It
cannot simply be ``let us charge people who commit mass
shootings after the fact.'' It has to also contemplate what we
can do in advance, bullying and other prevention measures, to
try to prevent those things from happening in the first place.
Senator Hirono. Thank you very much.
Thank you, Mr. Chairman.
Chairman Durbin. Thanks, Senator Hirono.
Senator Lindsey Graham.
Senator Graham. Thank you, Mr. Heaphy, for your service to
our country. Do you own a gun?
Mr. Heaphy. I do not.
Senator Graham. Okay. Do any of your close friends own
guns?
Mr. Heaphy. Yes. I live in a State in which guns are held
in high esteem. But I do not. I have young children, Senator.
Senator Graham. No, I understand.
Mr. Heaphy. And I do not feel comfortable having a gun in
our home given the fact that I have young children.
Senator Graham. Well, that is certainly your right to make
that decision.
Under the universal background proposal, if Senator Cornyn
and I--if I wanted to buy a shotgun, could I do so without
having to go through a background check?
Mr. Heaphy. Yes.
Senator Graham. Okay. Because he is a friend?
Mr. Heaphy. I am sorry. If you were actually exchanging a
gun with Senator Cornyn?
Senator Graham. Yes. I would not have to go through a
background check?
Mr. Heaphy. Senator, I think there are a lot of proposals
that would create exceptions between----
Senator Graham. Would you agree with that exception? It
would be a waste of money?
Mr. Heaphy. I think there should be limited intra-family or
intra-community transfers that would be excepted from the
universal background check, yes.
Senator Graham. So you have not answered my question. John
and I went hunting a month or so ago. He has got a better
shotgun than I have, and I actually talked to him about buying
it. Under the regime being proposed, would I have to go through
a background check if I bought Senator Cornyn's shotgun?
Mr. Heaphy. I am just not specifically familiar, sir, with
whether or not the current legislation would require a
background check.
Senator Graham. Size of magazines. Can you envision a
situation where a law-abiding citizen may need more than a 10-
round magazine to protect their family?
Mr. Heaphy. Long and extended clip magazines make it much
easier for people to commit more grievous acts of violence.
Senator Graham. Well, I understand that. Do you agree that
mentally ill individuals and felons should not have one bullet?
Mr. Heaphy. Yes.
Senator Graham. Do you agree there may be times where a
mother protecting her two children may need more than six if
there is more than one perpetrator or the six shots will not
take the guy down?
Mr. Heaphy. Senator, we need to be respectful of people's
right to defend themselves, absolutely.
Senator Graham. Well, the point is I can envision a
situation where, like in Atlanta, the revolver--she had a six-
shot revolver. Someone broke into her home. She shot the guy
five of six times. He was still able to get up and go out the
door. And they tell me that one-third of all assaults involve
more than one perpetrator, so I would just make the point that
I do not think criminals are going to be limited by any
capacity magazine size law. And if you start restricting the
amount of--a 10-shot limit, in some circumstances that may
disadvantage the law-abiding citizens and do not much to the
criminal.
Now, on the number of people who actually are prosecuted,
how many people a year fail the background check?
Mr. Heaphy. I believe in 2012 it was around 80,000.
Senator Graham. Okay. And how many of those were false
positives?
Mr. Heaphy. A small percentage. I am not certain exactly.
Senator Graham. Okay. Of those 80,000----
Mr. Heaphy. I am sorry, Senator. When you say ``false
positive,'' what exactly do you mean?
Senator Graham. That you actually were entitled to buy a
gun, but the system kicked you out.
Mr. Heaphy. Yes. I think there is an appeal process, and
there have been a number of times where someone was bounced
back but then appealed.
Senator Graham. Right. Do you know the percentages?
Mr. Heaphy. I think it is small, but I can get you a
specific figure.
Senator Graham. Sure.
[The information referred to appears as a submission for
the record.]
Senator Graham. Now, let us nail this down, if we can. Do
you believe that the best way to deter somebody from misconduct
is to make sure that prosecution is certain and swift?
Mr. Heaphy. That is part of--needs to be part of a
comprehensive solution. Whether it is best or not----
Senator Graham. No, but in terms of the deterrent aspect of
using criminal law. I agree with Senator Franken we should do
something about mental health. I agree with that. But, you
know, I have been a prosecutor for a while, too, in my older
days--younger days, sorry. And I thought that if you knew you
were going to get caught or likely to get caught and the
punishment was going to be severe, that was a pretty--that was
a good--do you agree with that general concept?
Mr. Heaphy. I absolutely do, yes.
Senator Graham. Okay. Of the 80,000 people who failed
background checks, what percentage wind up getting prosecuted,
those who were not false positives?
Mr. Heaphy. A small percentage.
Senator Graham. Well, let us put a number on it.
Mr. Heaphy. Last year, out of the 80,000, I believe U.S.
Attorneys brought about 44 cases.
Senator Graham. Forty-four is what percentage of 80,000?
Mr. Heaphy. A very small percentage. Lawyers do not do math
very well.
[Laughter.]
Senator Graham. And apparently Members of Congress do not
either. That is why we are $16 trillion in debt. But I think
there are people on my staff that can run the numbers, and I
will present is to the Committee. The truth of the matter is we
are talking about expanding a system where the current system
is 0000-point-something. I think we have got our priorities
wrong. I think we should take the current law and enforce it.
Thank you for your time.
Chairman Durbin. Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman, and
thank you for allowing me to sit with this Subcommittee. As you
know, I am not a Member, and I appreciate it very much. And
thank you, sir, for being here and for your measured responses.
It is very much appreciated.
Mr. Chairman, I would like to put in the record a letter
written yesterday by Mayors Against Illegal Guns, signed by the
mayor of Boston and the mayor of New York City and supported by
850 mayors of both political parties all around this country,
supporting the assault weapons legislation and the ban on high-
capacity ammunition clips.
[The letter appears as a submission for the record.]
Senator Feinstein. I think there are some very good quotes
in this letter. I will not take the time to read them now, but
as a former mayor, mayors see what happens on the streets, and
so I am very grateful for this endorsement and this support.
Mr. United States Attorney, to the best of my knowledge,
the assault weapons legislation which existed from 1994 to 2004
was never struck down by any court in the land. Is that your
information as well?
Mr. Heaphy. Yes, exactly, Senator.
Senator Feinstein. Do you believe it was constitutional?
Mr. Heaphy. Yes.
Senator Feinstein. Do you believe that it is possible to
draft legislation which is reasonable, which exempts over 2,000
weapons but essentially concentrates on weapons that were
designed for military use, generally high-velocity weapons?
Mr. Heaphy. I believe it is possible to craft a law
consistent with the Second Amendment and with the Heller
decision that would be constitutional, yes.
Senator Feinstein. Thank you very much.
Twenty cosponsors and myself have introduced this
legislation. I would just like to ask--it is specific, it is
drafted in bill language--that you take a look at it, and if
you have any problems with it, that you let us know.
Mr. Heaphy. I will, Senator. Thank you.
Senator Feinstein. Thank you very much, and thank you, Mr.
Chairman.
Chairman Durbin. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Mr. Heaphy, thank you for your service as U.S. Attorney and
for being here today, and I want to join the other Members of
the Committee in expressing my gratitude to the family members
who are here today who have lost a loved one as a result of an
act of violence. I believe that we owe it to you not to engage
in tokenism or symbolic acts but, rather, to try the best we
can to address the causes and to come up with solutions and at
the same time respecting the rights of law-abiding citizens to
keep and bear arms, as protected by the Second Amendment. And I
think it is possible for us to do that.
But I also think it is important that we need to look at
the laws that are already on the books, and I know there has
been some discussion of this, Mr. Heaphy, and forgive me if I
am repeating it, since I had to leave briefly to go down to
speak on the floor. But you are aware of the fact that in 2008
Congress passed a provision that required that the States
forward for inclusion in the background check data base people
who were adjudicated mentally ill. You are familiar with that
law, are you not, sir?
Mr. Heaphy. Sir, I believe that is voluntary. I do not know
that States are required to participate in the NICS system and
make that information part of the system. We strongly encourage
them to do so, but I believe, unfortunately, it is still
voluntary.
Senator Cornyn. Why in the world would we make that
optional?
Mr. Heaphy. I do not know, Senator. As I said before, we
really need to ensure that those relevant records are in the
background check system.
Senator Cornyn. Well, my understanding is that it is not
optional, but it is not being complied with. The General
Accounting Office points out that while about 1.2 million
records have been forwarded for inclusion in the NICS criminal
background check system, that is largely a result of about 12
States' efforts. And I am glad to say Texas is one of those
that has the highest--seventh highest rate of sharing of those
records in the Nation.
But do you not agree that it would be important to have
individuals who have been adjudicated mentally ill to have
those records in the NICS background data base?
Mr. Heaphy. Absolutely. I would strongly agree with that.
Senator Cornyn. And if that law is not mandatory now, do
you believe it should be mandatory? And if it is mandatory and
it is not being enforced, do you believe it should be enforced?
Mr. Heaphy. I believe it should be enforced, Senator. I
believe the way it is structured is that the Attorney General
has the authority to withhold aid to State and local law
enforcement in the form of the Byrne and JAG grants,
percentages of that, if States are not complying and putting
their mental health and criminal records into the system. And,
again, there are incentives for States to do that. But as you
said, that is spotty, and not everyone has the Texas approach
and puts those records in.
Senator Cornyn. And would you not think that would be more
reasonably calculated to protect innocent victims of gun crime
than other actions that may be more symbolic in nature?
Mr. Heaphy. I am not sure what would be more or less
reasonably calculated, but I am certain that if we do not have
all relevant records in the background check system, it
undercuts the effectiveness of the background check.
Senator Cornyn. And I know you have been asked about this
before, but I cannot resist asking you about it again. People
who lie on background checks, the record of prosecuting those
individuals is pathetic. Would you not agree?
Mr. Heaphy. Well, I am glad you asked because I did not get
a chance to answer it when Senator Graham asked the question.
As you know from your experience, Senator Cornyn, we need
evidence to prove that a crime was committed. And because
someone applied to get a gun and went through a background
check and there was a misstatement on the form does not in and
of itself constitute evidence that it was an intentional
falsehood.
The common defense in those cases is, ``I did not know that
I was prohibited,'' ``I did not know that I had a conviction
which disqualified me or that I had something in my
background.'' And that is sometimes credible because, again,
they could go down the street to a gun show and get the same
weapon without having had to submit a form. So it is
difficult----
Senator Cornyn. So it is credible for them to say, ``I did
not know I had a conviction,'' but yet to say on the background
check, ``I have no conviction'' ?
Mr. Heaphy. Again, Senator, we have to have evidence that
it was an intentional falsehood. The fact that it was false is
not enough. It is a difficult case to prove. Even if we prove
it, Senator Cornyn, fully a third of those cases result,
unfortunately, in no finding of guilt. Another 37 percent
result in a sentence of a year or less. We are evaluating every
case on a spectrum of danger, and the gun background check
worked there. We focus our resources much more aggressively on
people that actually obtained firearms and used them, not
necessarily on the ones where the background check----
Senator Cornyn. I know the U.S. Attorney's Office and the
Department of Justice have limited resources and you have to
prioritize. My concern is that we not pass additional laws that
will not be enforced and we pat ourselves on the back and say
we have actually solved the problem or contributed to a
solution.
And I see my time is about up. If I could just say for 10
seconds, Mr. Chairman, I appreciate Suzanna Hupp, one of my
constituents here today. She has got a chilling story about her
personal experience of losing her mom and dad in an episode of
mass violence where 23 people lost their lives in 1991. I think
she has got some very important testimony for the Committee,
and I am glad she is here today to share that.
Thank you.
Chairman Durbin. Thanks, Senator Cornyn.
I will recognize Senator Blumenthal, and correct the
record: Newtown, Connecticut. I mentioned it earlier
incorrectly.
Senator Blumenthal. Thank you, Mr. Chairman, and I want to
express my appreciation for your holding this hearing, Senator
Durbin, and to my colleagues for being here today. And I want
to thank you, United States Attorney Heaphy, for your
extraordinary service in one of the busiest Federal districts
in the country. I had your job in Connecticut some years ago,
and I always regarded it as the best job I ever had.
Mr. Heaphy. I have heard that before, Senator.
Senator Blumenthal. So thank you for your excellent
service.
Mr. Heaphy. Thank you.
Senator Blumenthal. I want to really begin by thanking the
Newtown families who are here today. I know that some of them
are. I may not know of all of them. Chris and Lynn McDonnell
are here, and Po Murray and Miranda Pacchiana. And I want to
express my regret at a statement that was made, I think within
the last 24 or 48 hours, by a lobbyist for the National Rifle
Association who said that his group was hoping that the
``Connecticut effect'' would pass so that his group could be
more effective in its lobbying.
Their presence today, the families being here today, and
tonight at the State of the Union I think is a statement and a
picture worth a thousand words that the Connecticut effect will
last and that it will be a call to action.
The NRA lobbyist's comment--it happened to be a lobbyist
for the Wisconsin chapter of the NRA--is callous and offensive,
and I call on the NRA, Wayne LaPierre, to repudiate and reject
it. I think it is an insult to all of us in America, but most
especially to the 26 families in Newtown who directly suffered
this loss.
Your position, sir, is a nonpolitical position. You are a
law enforcer. Is that correct?
Mr. Heaphy. Yes, sir, and I have been a career prosecutor
and served in multiple administrations, yes.
Senator Blumenthal. And I appreciate your coming before us
today in that capacity.
When folks talk about existing laws--and you have just made
refinancing to it--I think many of us on this Committee are
aware, but maybe not most Americans, that you often know that a
crime has been committed, and you know who has committed it,
but you need more than that knowledge on your part. You need
evidence to go into court and prove it. Is that correct?
Mr. Heaphy. Exactly right, yes.
Senator Blumenthal. So when the NRA or any of our witnesses
or Members of this Committee say that there have not been
enough prosecutions, very often the reason is you do not have
enough evidence to make those prosecutions.
Mr. Heaphy. Unfortunately, that is sometimes correct, yes.
Senator Blumenthal. And so my feeling is, my strong belief
is that we ought to do everything possible to enable more
effective prosecutions under existing laws and, as Senator
Cornyn has very aptly just said, under any new laws, but focus
on enforcement. And so let me ask you about the ban that
currently exists on certain categories of people buying
firearms--felons, fugitives, people who are seriously mentally
ill, people under court orders for domestic abuse.
Right now, with respect to a very large number of firearms
purchases, about 40 percent when they are private sales or so-
called gun show sales, you simply have no way of having the
evidence to enforce that existing law. Am I correct in saying
that?
Mr. Heaphy. If there was no background check, sir, and they
obtained the gun end-running that system, then you are exactly
right. We have no evidence.
Senator Blumenthal. And the current law also prohibits
purchases of ammunition to those very same categories of
people. Is that correct?
Mr. Heaphy. Yes.
Senator Blumenthal. Without a background check now, do you
have any effective way of enforcing that law?
Mr. Heaphy. No. Again, it is too easy for those dangerous
persons that you have cited to get around the background check.
That gets guns into their hands too readily, and those guns are
used with dangerous regularity on our streets, making all of
our jobs more difficult.
Senator Blumenthal. And the same is true of ammunition, is
it not? There are simply no checks, no criminal background
checks whatsoever on ammunition purchases, correct?
Mr. Heaphy. That is right.
Senator Blumenthal. So that you have no practical way, with
all due respect to the immense powers that you have as a
Federal prosecutor to enforce that law?
Mr. Heaphy. That is right.
Senator Blumenthal. It is essentially dead letter.
Mr. Heaphy. All too often that is right, yes.
Senator Blumenthal. Let me ask you about the Second
Amendment, and I think you have done a great job of describing
that balance that applies to all constitutional rights. None of
them is absolute. Is that correct?
Mr. Heaphy. That is right, exactly.
Senator Blumenthal. And, very often, constitutional rights
butt against each other. There is a tension between those
constitutional rights.
Mr. Heaphy. That is life in a democracy, exactly.
Senator Blumenthal. And it is one of the geniuses of our
Constitution that it manages to reconcile fundamental rights
that sometimes are in tension.
Mr. Heaphy. That is right.
Senator Blumenthal. So these proposals that have been made
for reasonable regulations are perfectly consistent with
everybody's right to have a gun, go hunting, use it for target
shooting, because reasonable regulation--you used the word
``restriction,'' but ``regulation,'' ``restriction''--are
consistent and, in fact, the genius of our Constitution.
Mr. Heaphy. Just exactly right, Senator. I just cannot
reiterate strongly enough that the President and the Attorney
General and all of us who work in law enforcement respect the
Second Amendment, are not trying to remove the basic right to
self-defense for people to own firearms. We are trying to, as
you said, tinker with the balance and provide reasonable
restrictions that keep dangerous weapons out of the hands of
people that use them, that do grievous things with them.
Senator Blumenthal. And nobody has ever suggested that a
criminal, a convicted felon or a fugitive or a drug addict or
someone seriously mentally ill, dangerous to himself or others,
or a domestic violence abuser has a fundamental Second
Amendment right to have a firearm?
Mr. Heaphy. Those acts from their past remove their Second
Amendment right to possess a firearm.
Senator Blumenthal. Or to buy ammunition.
Mr. Heaphy. Exactly.
Senator Blumenthal. Thank you very much.
Chairman Durbin. Thanks, Senator Blumenthal.
Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. I am happy to
welcome all of you folks here today, and especially you, Mr.
Heaphy, and especially my old friend and debating partner,
Professor Larry Tribe, who I have a lot of respect for. Happy
to have you here.
I just want to make an observation about the
constitutionality of the so-called assault weapons ban. Under
Heller, you said Heller allows what you called ``time, place,
and manner'' restrictions, although you said you did not read
the whole decision. But the assault weapons ban is not a time,
place, or manner restriction. It is an absolute ban, and I just
wanted to make that clear. Plus maybe I can make something else
a little more clear, too. The distinguished Senator from
California, a dear friend of mine, indicated that the assault
weapons ban was never stricken down as unconstitutional. But
the fact of the matter is that that ban expired before the
Heller decision. So who knows what would have happened had it
really been tested? And the distinguished Senator from
California may be right on that.
Now, Mr. Heaphy, I want to congratulate you for your work
here--you have been an excellent witness--and for the work that
you have done, all your professional service and career. But
you also indicate in your testimony that the Department of
Justice focuses on prosecuting people who evade the background
check system and acquire weapons illegally. They do not focus
on those who attempted to purchase the firearm through the
background check system but were unsuccessful.
Now, I think this shows what has been obvious to many
people for a long time, that criminals do not walk into a gun
shop to buy weapons and submit themselves to a background
check. They get them on the street. You know it, I know it.
Mr. Heaphy. That is exactly right, sir.
Senator Hatch. Okay. In other words, the people who we
least want to have a weapon are the least likely to be caught
by a background check. So, you know, some on our side wonder
why then do we raise all this fuss about background checks when
we have them in existence but they are not going to be abided
by, anyway.
Let me ask you this question. I am sure you a familiar with
Project Exile, which was launched by the Department of Justice
in 1997 in Richmond, Virginia. It was a collaborative effort
among State, local, and Federal prosecutors and law enforcement
officers to vigorously enforce existing Federal gun laws.
Richmond residents were put on notice through billboards and
bus advertisements that all violations of the Federal firearms
laws would be prosecuted, and defendants faced 5-year mandatory
minimum sentences. As a result of this collaborative effort,
372 persons were indicted on Federal gun violations and 440
guns were seized.
Now, Richmond realized a 36-percent decrease in homicides
and I think a 41-percent decrease in firearm homicides. Are
there any plans for any similar collaborative efforts to
enforce existing Federal gun laws, to your knowledge?
Mr. Heaphy. Yes, Senator Hatch, thank you for the question.
Exile was very successful, and it is a great model for a
working partnership between Federal authorities and State and
local officials. It was a program in which the Commonwealth's
attorney, the U.S. Attorney, the ATF, and Richmond Police came
together to comprehensively focus on violent crime. At the time
that Exile existed, there was a huge disparity between Federal
law in terms of punishment and State law. That disparity has
changed. So today in Richmond, more of those cases that would
have come Federal are prosecuted at the State level. Mike
Herring, the Commonwealth's attorney, will take those cases and
get every bit as much of a sentence as we could get in Federal
court. And there are Exile-type programs going on around the
country.
East St. Louis, Illinois, Senator Durbin's home town, has
seen a spike in gun prosecutions just since Steve Wigginton,
the U.S. Attorney, has been there, because State and local
authorities came together, decided we have got to do something
about East St. Louis. There are burning fires of violence in
that community, and we have to pool our resources and work
collaboratively, and that has led to an increase. On the
southwest border, in Senator Cornyn's district, a very similar
effect. So we are still doing Exile-type programs, Senator.
Senator Hatch. Good. Let me ask one other question. In each
of the mass killing tragedies in Newtown or Aurora or
Columbine, the killers violated numerous, in some cases
literally dozens of local, State, and Federal laws. They were
able to obtain and use their weapons of choice and either
avoided or actually passed background checks. Each time
politicians say they will ensure that it never happens again,
and, of course, they turn around and they call for passing more
laws.
Now, don't these tragic experiences show that simply
putting more laws on the books will not prevent individuals who
are either ill or evil from harming others?
Mr. Heaphy. Senator, I wish that I could reassure this
Committee and the people sitting here that we could pass a law
that would prevent----
Senator Hatch. I wish we could, too.
Mr. Heaphy. But we cannot do that. There is no question
that no matter what we do, unfortunately, there will be
dangerous people that get access to weapons that continue to
perpetrate acts of violence. We are trying to make that more
difficult. We are trying to create more road blocks, make it
harder for them to commit those acts of violence. It is not
going to be perfect. I wish that it was. We are just trying to
make it more difficult to have to jump over additional hurdles
in order to commit those grievous acts.
Senator Hatch. Well, you have been an excellent witness,
and I want to thank you, Mr. Chairman.
Chairman Durbin. Thanks, Senator Hatch.
Mr. Heaphy, thanks for your testimony. We appreciate it
very much.
Mr. Heaphy. Thank you, Senator.
Chairman Durbin. We may have some follow-up questions sent
to you. I hope you can respond in a prompt manner.
Mr. Heaphy. We will.
Chairman Durbin. Thank you.
Chairman Durbin. I would like to ask the second panel to
please come to the table, and while they are on the way, first,
I ask to put in the record a letter from the Charlottesville,
Virginia, police chief about the productive working
relationship with our witness in the first panel, Mr. Heaphy.
Without objection, it will be entered into the record.
[The letter appears as a submission for the record.]
Chairman Durbin. For those who are wondering why Senators
are moving back and forth here, some have other Subcommittee
meetings that they are attending. In addition, on the floor of
the Senate, starting at 11:30 we have votes on the Violence
Against Women Act. There will be several amendments, and so we
are going to do our best to get the testimony of this panel
here. I hope we are not interrupted or stopped, but that would
be the only reason. We just have floor business that has to be
taken care of before we can proceed.
I am going to ask the witnesses at the table, now that they
have all sat down, to stand up, if they will. It is the custom
of the Committee to administer the following oath. Raise your
right hand, please? Do you affirm that the testimony you are
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Professor Tribe. I do.
Ms. Wortham. I do.
Ms. Hupp. I do.
Mr. Cooper. I do.
Professor Webster. I do.
Chairman Durbin. Thank you.
Let the record indicate that the witnesses have answered in
the affirmative.
Chairman Durbin. I am going to read a brief background of
each of the witnesses and then call on them.
Our first witness is going to be Professor Laurence Tribe,
a well-known friend of this Committee. He is the Carl Loeb
University Professor and Professor of Constitutional Law at
Harvard Law School, where he has taught since 1968. He has
argued 35 cases before the U.S. Supreme Court. He has written
over 100 books and articles, including a treatise, ``American
Constitutional Law.'' He has received his undergraduate and law
degrees from Harvard, clerked for the California Supreme Court
Justice Matthew Tobriner and U.S. Supreme Court Justice Potter
Stewart. And I am going to give him the floor after I introduce
the other witnesses so that each one of them is known before
they speak.
Our next witness after Professor Tribe is Sandra Wortham.
Mrs. Wortham is testifying in her personal capacity today. She
works as deputy director of the Chicago Alternative Policing
Strategy Office of the Chicago Police Department. She is
responsible for the department's domestic violence-related
training, outreach, and services. She worked as a court-
appointed attorney with the Circuit Court of Cook County,
representing indigent clients in contested adoption litigation.
She received her undergraduate degree from Howard University
and her J.D. from Chicago Kent College of Law. Thank you for
being here.
Our next witness will be Suzanna Hupp. Suzanna is the
associate commissioner for Veterans Services for the State of
Texas. She previously served as a member of the Texas House of
Representatives from 1997 to 2007. She is the author of ``From
Luby's to the Legislature: One Woman's Fight Against Gun
Control.'' She attended the University of Texas at El Paso and
Texas Chiropractic College, graduating with a degree in
chiropractic medicine. Ms. Hupp, thank you for being here.
Our next witness will be Charles Cooper. He is the chairman
of the Washington law firm of Cooper and Kirk, previously
served as Assistant Attorney General for the Office of Legal
Counsel under President Reagan, also worked in the Justice
Department's Civil Rights Division and in private practice. He
received his undergraduate and law degrees from the University
of Alabama, clerked for Judge Paul Roney of the Fifth Circuit
and Justice William Rehnquist of the U.S. Supreme Court.
And our final witness will be Professor Daniel Webster,
certainly a suitable name for a Senate witness. He is professor
of health policy and management at Johns Hopkins Bloomberg
School of Public Health, serves as the director of the Center
for Gun Violence Policy and Research. He has published over 70
articles in scientific journals, most of which focused on the
prevention of gun violence, youth violence, or intimate partner
violence. He earned his bachelor's degree from the University
of Northern Colorado, his master's in public health from the
University of Michigan, and his doctorate from the Johns
Hopkins School of Public Health.
I see we are having a changing of the guard from the first
panel audience here, and I hope that they can leave in a quiet
manner, as they are, and we will proceed with the testimony.
Professor Tribe, I know that you have made a great personal
sacrifice to be here with us today, and I appreciate it very,
very much. The floor is yours.
STATEMENT OF LAURENCE H. TRIBE, CARL M. LOEB UNIVERSITY
PROFESSOR, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS
Professor Tribe. Thank you, Mr. Chairman. Nothing like the
sacrifice that many of the people that you have invited have
made, the victims of violence.
Chairman Durbin and Members of the Committee, I am honored
by your invitation that I testify on an issue of such vital
national importance. And it is especially humbling to be here
in the presence of so many victims of senseless gun violence,
and many others who have lost loved ones in a hail of bullets
that should never have been fired.
When we recall the horror that 20 first-grade children had
been slaughtered in Sandy Hook Elementary School, we have to
remember that every 4 days nearly 20 more children and more
than 100 adults die in gun homicides around this country. We
may not know their names or see their faces, but they were not
anonymous or nameless or invisible to those who loved them and
will never hold them in their arms again.
The question before this Subcommittee is whether sensible
measures to reduce rampant gun violence, not necessarily to
stop it--we will never do that--but to reduce it--the violence
that cuts short all these lives--is beyond our reach because of
the Second Amendment, and my answer to that is an emphatic no.
Until the 1990s, nearly every constitutional expert,
including Chief Justice Warren Burger and Judge Robert Bork,
treated the Second Amendment as irrelevant to any personal
right to keep or bear arms on the theory that the amendment
concerned only each State's well-regulated militia. But by the
end of the last century, a different understanding had emerged,
one focusing on individual self-defense independent of the
militia. I supported the emergence of that new understanding,
and the Supreme Court made it the law of the land in the Heller
and McDonald decisions in 2008 and 2010.
That pair of decisions demolishes the slippery slope theory
of those who oppose basically all firearms regulation on the
view that once we permit any new firearms regulation at all, we
will be inviting the Government step by step to come ever
closer to disarming the people, leaving only the police and
military with firearms.
With Heller and McDonald securely on the books, the Supreme
Court, in its own words, took certain policy choices off the
table and thereby cleared the path for reasonable regulations
to be enacted without fear that those policy choices would
either open the door to unlimited Government control or be
imperiled by exaggerated interpretations of the Second
Amendment. As Justice Alito put it in McDonald, ``There is no
longer any basis for such doomsday proclamations.''
Justice Scalia, speaking for the Court in Heller, said it
at the end of his opinion: ``Under our interpretation, the
Constitution leaves open a variety of regulatory tools for
combating the problem of gun violence in this country.''
Now, the Court was explicit in saying what some of those
tools include. They include--and each time I am quoting from
the Court--``conditions and qualifications on the transfer of
firearms to keep them out of dangerous hands, including felons
and the mentally ill.'' They include ``longstanding regulatory
measures to keep firearms out of particularly sensitive
places.'' They include complete bans of firearms that are ``not
typically possessed by law-abiding citizens for lawful
purposes, such as short-barreled shotguns,'' and of firearms
that are ``especially dangerous or unusual, such as M-16 rifles
and the like.'' That was a list that the Court explicitly said
was not meant to be exhaustive.
They include other regulations designed to protect public
safety without cutting into the core right that the Second
Amendment protects, the right of self-defense in the home.
Those legitimate other regulations certainly encompass bans on
illegal straw purchasers and gun trafficking, both of which can
totally frustrate any system of background checks or gun
registration. And the kinds of regulations that do not trigger
close scrutiny under the Second Amendment obviously include
universal background checks or registration systems for the
simple reason that systems with loopholes and less than
universal coverage are calculated to be evaded by the very
people who have no right to bear arms under the Second
Amendment, people we cannot safely entrust with lethal weapons.
Finally, those other obviously valid regulations, ones that
do not trip the Second Amendment's trigger, have to include
bans on high-capacity magazines and especially lethal weapons
that someone can keep firing for ten rounds or even more
without reloading. Banning those weapons gives people a chance
to escape and gives the police a chance to interrupt the
slaughter.
The category of valid regulations under Heller, in my view,
also covers bans on weapons designed for assault or military
use rather than for lawful civilian uses. And the Court did not
merely say that such regulations would ultimately survive
Second Amendment scrutiny. It said that Heller would not even
``cast a shadow of doubt on such measures should they be
considered in the future.''
Now, we should have no illusions that adopting measures
like these nationally will completely solve the epidemic of gun
violence in America. More will be needed. We clearly need to
address mental health issues as well as other potential
contributors to gun violence, such as violent video games,
films that glorify murder and mayhem and other aspects of our
violent culture. But if we do nothing until we can do
everything, we will all have the blood of innocent human beings
on our hands and will besmirch the Constitution in the process.
Just in closing, let me say that our Constitution, as many
have wisely observed, does not make the perfect the enemy of
the good. And whatever else it is, it is not a suicide pact--a
suicide pact that condemns us to paralysis in the face of a
national crisis of domestic bloodshed.
Thank you very much, Mr. Chairman.
[The prepared statement of Professor Tribe appears as a
submission for the record.]
Chairman Durbin. Professor Tribe, thank you.
Sandra Wortham.
STATEMENT OF SANDRA J. WORTHAM, CHICAGO, ILLINOIS
Ms. Wortham. Good morning.
Chairman Durbin. If you would push the button.
Ms. Wortham. There we go. Good morning, Chairman Durbin,
Members of the Committee. Thank you for the opportunity to
speak today. It is really an honor.
We have discussed a lot about law this morning, and I am an
attorney. I love the law. I respect it. I think it is great.
But I would like to talk a little bit about life and the human
impact that this issue has on me, my family, and the families
we have here today. So to do that, I would like to take us back
to May 19, 2010.
On May 19th, I had a good day. I was having a good day. I
went to line-dancing class with my mother. We did it every
Wednesday that spring. As you can imagine, that was quite
entertaining. When we got home, a friend asked me to go scout
birthday party locations with her. It was the big 2-5, so I of
course said yes. We went out and we had a good time.
On my way home, I got a call from my mother, which was not
unusual because we speak a thousand times a day. We still do.
But this call was different. She was crying this time, and she
said, ``Sandy, come home.'' And she continued to cry, and she
said, ``They tried to rob him.'' So the ``him'' she was
speaking of was my older brother, Thomas E. Wortham IV.
Thomas and I were raised in a great family, full of
character but great. Our parents taught us we could do
everything, be everything, the world was ours. But they also
taught us that we had a responsibility to our community and to
people who did not have the opportunities that we had, and that
is how Thomas lived his life. He dedicated his professional
life to service. He served two tours of duty in Iraq with our
National Guard, and he was also a Chicago police officer,
protecting the South Side of Chicago, where we lived.
Earlier that week, Thomas had traveled here to Washington,
DC, to participate in activities for National Police Week
honoring our fallen law enforcement officers and then traveled
to New York City to run in a race in honor of Alex Valadez, a
Chicago police officer who had been killed in the line of duty
the year before. So on that evening of May 19th, Thomas had
gone to our parents house when I left to show them pictures of
Police Week activities. So he finished, they ate dinner, and he
went to leave. And as he went to leave, my father went with him
to the door to watch him out.
Now, I was not there, obviously, but according to reports,
this is what happened. Two men approached Thomas as he went to
get on his motorcycle, pulled a gun on him, and tried to take
his motorcycle. Now, Thomas was a police officer, so he was
armed, told them he was a police officer. My dad, standing at
the porch, saw this happening. My dad was also armed. He had a
gun in the house. He went in the house to get the gun. He came
back out. So there was an exchange of gunfire between the
offenders, my brother, and my father.
Now, when I got the call from my mother, I had no idea how
bad this was. No idea. I just knew she was crying, but she is a
crier sometimes, so I just knew I needed to get home. But
shortly after I got the call, I looked ahead of me, and traffic
was stopped. The police had blocked off all the streets on the
way to our house. So I got out and started to run. I just said,
``Well, let me just run home and see what is going on.'' And as
I ran, an ambulance passed me. And still, you know, in my mind,
I had no idea this had anything to do with Thomas because I had
no idea how bad it was. But I am running down the street, and
in retrospect, it was like a movie, because it is like slow
motion. So an ambulance passes me. But I know now that Thomas
was in the ambulance because he had been shot, and that is why
all the streets were blocked off.
So I go to the house. They rush us to the hospital. We get
there. We waited. We prayed a lot. We waited. But Thomas died.
Strangely, the week before--or a couple weeks before Thomas
died, he did an interview with the Chicago Tribune because
there had been two shootings across the street from our house
just in the couple of months before that, and he was the
president of the Park Advisory Council. And in the interview--I
will read the direct quote--he said, ``When people think of the
South Side of Chicago, they think violence.'' And he went on to
say, ``We are going to fix it so it does not happen again.''
So Thomas is dead, obviously, but I am here today and my
parents are here today, I think all of these families, we are
here today because we still believe that we can fix it. So as I
understand it, this hearing has been called to discuss the ways
we can respect the Second Amendment and protect our
communities. And I have to be very honest--and I am so sorry
that some of the people left because I was very--I am just
confused as to where we are having disagreement about this.
Like I said, I understand the law, I respect our Constitution,
but to me this is not about taking away the lawful right to own
guns. We are not anti-gun people. My family is not an anti-gun
family. My brother and father were Chicago police officers and
carried guns most of the time. That is how I was raised. But
they were trained, and they were law-abiding citizens. I value
and respect the rights that are provided by our Constitution.
However, I find it very hard to believe that our founders
intended those rights to go so unreasonably unchecked.
It is not about the right to take away--it is not about the
right to lawfully own guns. This is about trying our best to
keep guns out of the hands of the people like people who killed
my brother. They did not walk into a gun store and buy a
handgun, because if all the reports are right, they would not
have been able to do so. They got their gun the same way that
many ill-intentioned people receive guns in this country--they
bought it on the street.
It is also a reality that their gun did not arrive in
Chicago on its own. Again, according to reports, it was
trafficked from a pawn shop in Mississippi. And, Chairman, you
spoke about this earlier. According to news reports, a gun
trafficker went to Mississippi, used straw purchasers to buy
multiple handguns from that shop, and then brought those guns
to Chicago to sell to gang members. And you spoke very well
about this earlier, and that is a huge problem that we are
talking about. And for me, as someone who has been personally
affected by this, I cannot accept that we cannot do better than
that. I cannot accept that we cannot fix that problem. If we
know, as everybody here does, that many, many criminals obtain
their guns through street purchases easily, then I feel like we
have a responsibility to address that problem, and we have an
opportunity through this body to do that. The only people who
should be disturbed by common-sense gun laws are people who
should not have guns in the first place. Okay? Law-abiding
citizens should not be disturbed by the proposals here today.
So when we speak about the Constitution and all the rights
afforded by the Constitution, I think we would also be well
served to remember the words of another important document in
our country's history. So we talked earlier about life,
liberty, and the pursuit of happiness. Well, those things were
taken away from Thomas when he was 30, and quite frankly, our
rights to those things have been affected by this situation.
So we talk about lawful gun ownership.
My brother owned a gun. My father owned a gun. But the fact
that they were armed that night did not prevent Thomas' murder.
So we need to do more to keep guns out of the wrong hands in
the first place. And I do not think that makes us anti-gun
people. I think it makes us pro-law-abiding citizens who want
to live life without the constant fear of this violence as a
result of guns.
I am not here to say that any one law would have changed
what happened to Thomas, but I am here to say I think we can do
better.
This is not about me, Thomas, my family, or any one family
in general. This is about our country, and we have a system to
effect change, to do something about this, and I think it is
time that we do that.
Thank you.
[The prepared statement of Ms. Wortham appears as a
submission for the record.]
Chairman Durbin. Ms. Wortham, thank you for your testimony,
and I still remember your brother's service and the comments
that were made by some of his friends in the National Guard and
others in law enforcement. He was an amazing individual, and it
is sad that we have lost him. But I am sure that he is looking
down and smiling at his mom and dad and sister standing up for
him today.
Ms. Wortham. Well, thank you.
Chairman Durbin. Thank you so much.
Ms. Hupp.
STATEMENT OF SUZANNA HUPP, LAMPASAS, TEXAS
Ms. Hupp. Thank you, Mr. Chairman, Members. I am speaking
for myself today and not in any official capacity.
I wanted to mention right off the bat that when you opened
the proceedings here, you asked all of the victims of gun
violence to stand, and I hesitated. But, honestly, I do not
view myself as a victim of gun violence. I view myself as a
victim of a maniac who happened to use a gun as a tool. And I
view myself as a victim of the legislators that we had at the
time that left me defenseless. So that is why I hesitated.
I did not grow up in a house with guns. I am not a hunter.
But when I was 21 and I moved out on my own, I was given a gun
by a friend and taught how to use it. And then I had a patient
when I was in the city of Houston who was the district
attorney--an assistant district attorney in Houston, and he
actually convinced me to carry the gun, which at that time was
illegal in the State of Texas. He said, ``Suzie, you do not see
this stuff. I do. You need to carry your weapon, and nobody is
going to mess with you.''
Several years later, in 1991, my parents and I went to have
lunch at a local cafeteria with a friend of mine who was
managing the cafeteria that day. We had finished eating when
all of a sudden this guy drove up a pick-up truck through the
floor-to-ceiling window and came crashing in and ended up maybe
15 feet from me. Of course, we thought it was an accident, and
I rose up and began to go help the people that he had knocked
over. But then we heard gunshots. And my father and I
immediately got down on the floor. We turned the table up in
front of us. My mom got down behind us. And the shooting
continued.
Now, at that time, in 1991, you know, we were not seeing
these mass shootings that we are seeing now, so I was waiting
for him to say something like, ``All right. Everybody put your
wallets up on the tables,'' or, you know, I thought maybe it
was a hit. Maybe there was somebody important in there. But the
shooting continued.
I am going to tell you, it took a good 45 seconds, which is
an eternity, to realize that the guy was simply going to walk
around, take aim, pull the trigger, go to the next person, take
aim, pull the trigger. He was executing people.
When I did realize it, I thought, ``I have got him. I have
got this guy.'' I reached for my purse that was on the floor
next to me, realized I had a perfect place to prop my arm. He
was up, everybody else in the restaurant was down. And then I
realized that a few months earlier I had made the stupidest
decision of my life. I had begun leaving my gun out in my car
because I did what most normal people would do. I wanted to be
a law-abiding citizen. I did not want to get caught with a gun
and maybe lose my license to practice. I remember looking
around and thinking, ``Well, great. What do I do now? Throw a
salt shaker at him?''
At that point my dad took my attention, and he started to
raise up. He said, ``I have got to do something. I have got to
do something. He is going to kill everybody in here.'' And I
tried to hold him down by the shirt collar. But when he saw
what he thought was a chance, he went at the guy. You have to
understand, though, a man with a gun in a crowded room has
complete control. My dad covered maybe half the distance, and
the guy just turned and shot him in the chest. My dad went down
in the aisle maybe 7 or 8 feet from me, and he was still alive
and still conscious, but as dreadful as this may sound, I saw
the wound and I basically wrote him off at that point.
The good news is that it made the gunman change directions
slightly. Instead of coming directly toward me, he went off to
my left. And at that point, somebody way at the back of the
restaurant broke out another window. And I remember hearing
that crash and thinking, ``My God, here comes another one.''
But instead I saw people getting out that way. So I looked up
over the top of the table. When the gunman had his back to me,
I stood up, I grabbed my mother by the shirt collar, I said,
``Come on, come on, we got to run. We got to get out of here.''
And my feet grew wings.
I made it out that back window, ran into my manager friend
that was coming out a side door, and he said, ``Thank God you
are all right.'' And I said, ``Yes, but dad has been hit and it
is really bad.'' And I turned to say something to my mother and
realized that she had not followed me out.
Now, to wrap the story up, the police officers--several of
them were patients of mine--told me a few days later--they
filled in the gaps. They said that they were actually one
building away in a conference, and in an odd twist of gun
control fate, the hotel where they were having their
conference, the manager there did not want them to be wearing
their guns and potentially offending any of her clients or
customers. So she had asked them to leave their guns in their
cars. So precious minutes were lost while they retrieved their
guns from their locked cars. They said that when they got over
there and worked their way in through the broken window behind
the pick-up truck, they did not know who the gunman was. There
were bodies everywhere. But they said they did see a woman out
in the aisle, on her knees, cradling a mortally wounded man.
They said they watched as the 30-something-year-old man walked
up to her. They said she looked up at him, he put a gun to her
head, she looked down at her husband, and he pulled the
trigger. That is how they knew who the gunman was. They said
all they had to do was fire a shot into the ceiling, and this
guy immediately rabbitted to a back bathroom alcove area. He
exchanged a little gunfire with them and then put a bullet in
his own head.
Twenty-three people were killed that day, including my
parents. It did not occur to me at the time, but mom was not
going anywhere without dad. They had just had their 47th
wedding anniversary.
So you may think that I was angry at the guy that did it.
But the truth is, that is like being mad at a rabid dog. You do
not be mad at a rabid dog. You take it behind the barn and you
kill it, but you do not be mad at it. But I have got to tell
you, I was mad as heck at my legislators because I honestly
believed that they had legislated me out of the right to
protect myself and my family. And I would much rather be
sitting in jail right now with a felony offense on my head and
have my parents alive to know their grandchildren.
With that, I thank you.
[The prepared statement of Ms. Hupp appears as a submission
for the record.]
Chairman Durbin. Thank you very much.
We have 6 minutes left on this roll call, so, Mr. Cooper, I
am going to recognize you. And I cannot believe a Senator is
going to ask Daniel Webster to wait, but if you do not mind,
Mr. Cooper, if you will testify, we will take a recess and then
return soon. We have three votes, so it may be half an hour to
40 minutes. I am sorry. And maybe it is sooner.
Mr. Cooper.
Mr. Cooper. You would like for me to go ahead?
Chairman Durbin. Please.
STATEMENT OF CHARLES J. COOPER, PARTNER,
COOPER AND KIRK, PLLC, WASHINGTON, DC
Mr. Cooper. Thank you very much, Mr. Chairman and Members
of the Subcommittee. I am very honored to be here today to
discuss this important subject matter and to share my thoughts
with you. I am especially humbled to hear the testimony, the
emotional testimony that we have had from the victims of
senseless violence, and it makes it difficult to return to dry
legal subject matters, but that is my task.
The Supreme Court's recent decisions in Heller and McDonald
provide authoritative guidance for interpreting and applying
the Second Amendment. So it is important first to identify the
pertinent principles established by those decisions.
First, the Second Amendment protects an individual right
that belongs to all Americans. Indeed, the Court repeatedly
emphasized in both Heller and McDonald that the inherent and
pre-existing right to self-defense is the core and the central
component of the Second Amendment right itself.
Second, the fundamental Second Amendment right to arms is
entitled to no less respect than other fundamental rights
protected by the Bill of Rights. As the Court emphasized in
McDonald, it is not to be treated as a second-class right or
singled out for special--and specially unfavorably--treatment.
Third, the Second Amendment is enshrined--and these are the
Court's words--``enshrined with the scope [it was] understood
to have when the people adopted [it], whether or not future
legislatures or (yes) even future judges think that scope too
broad.''
Now, this passage from Heller is an express admonition that
all government officials, including Members of this body, of
course, are oath-bound to respect and obey the command of the
Second Amendment as it was understood in 1791.
Fourth, and relatedly, the line between permissible and
impermissible arms regulations is not to be established by
balancing the core individual right protected by the Second
Amendment against purportedly competing government interests.
This balance has already been struck, for the Second Amendment,
as the Court put it, ``is the very product of an interest-
balancing by the people.''
With these principles in mind, let us recall the text of
the Second Amendment. It provides that ``the right of the
people to keep and bear Arms, shall not be infringed.'' The
amendment is thus one of the very few enumerated constitutional
provisions that specifically protects the possession and use of
a particular kind of personal property--``arms.'' It follows
that there are certain arms that law-abiding, responsible adult
citizens have an absolute, inviolable right to acquire,
possess, and use. Indeed, the Heller Court made clear that the
Second Amendment's ``core protection'' is no less absolute than
the First Amendment's protection of the expression of unpopular
opinions. This is what it said: ``The Second Amendment is no
different'' from the First Amendment. ``And whatever else it
leaves to future evaluation, it surely elevates above all other
interests the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.''
Now, let me repeat that. The amendment ``elevates above all
other interests the right of law-abiding, responsible citizens
to use arms in defense of hearth and home.'' The Government, in
other words, may no more prevent a law-abiding, responsible
citizen from keeping an operable firearm in his bedside table
drawer than it may prevent him from keeping a copy of the
collected works of Shakespeare or his Bible or his Koran in
that drawer.
The key question, then, is what arms are protected by the
Second Amendment. Heller and McDonald answer that question.
Those weapons that are, in the Court's words, ``of the kind in
common use . . . for lawful purposes like self-defense.
Conversely, ``the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for
lawful purposes.''
Now, applying that ``common use'' test, Heller flatly and
categorically struck down the District of Columbia's handgun
ban because it amounted to a ``prohibition of an entire class
of `arms' ''--I am quoting--``that is overwhelmingly chosen by
American society for [the] lawful purpose [of self-defense].''
The constitutionality of the pending proposals to ban certain
``arms'' thus turns on whether the banned semiautomatic rifles,
shotguns, and pistols are of the kind that are in common use
for lawful purposes in this Nation. And even as Professor Tribe
concedes, standard magazines holding more than ten rounds and
the firearms outfitted for them are by any reasonable measure
in quite common use in the United States. Because S. 150
outlaws firearms and standard magazines that are of the kind in
common use for lawful purposes, it is unconstitutional. But
even if one were to apply a balancing test, S. 150s ban on
automatic assault firearms and standard magazines could not
pass even intermediate scrutiny.
And, Mr. Chairman, my time is up, and hopefully I will be
able to address these points further in the questions and
answers.
Thank you.
[The prepared statement of Mr. Cooper appears as a
submission for the record.]
Chairman Durbin. Thanks, Mr. Cooper, and thanks for your
patience and understanding, particularly Professor Webster.
We are going to stand in recess. I will return as quickly
as I can.
[Whereupon, at 11:48 p.m., the Committee recessed.]
[Whereupon, at 12:27 p.m., the Committee reconvened.]
Chairman Durbin. This hearing of the Constitution
Subcommittee will reconvene. I thank you for your patience. We
had several votes on the floor, now breaking for lunch, but we
are going to keep working.
Professor Webster, thanks for your patience, and please
proceed.
STATEMENT OF DANIEL W. WEBSTER, PROFESSOR AND
DIRECTOR, JOHNS HOPKINS CENTER FOR GUN POLICY AND RESEARCH,
BALTIMORE, MARYLAND
Professor Webster. Thank you, Mr. Chairman. Thank you for
the opportunity to testify before you today.
In 2010, guns were used in more than 31,000 deaths, 11,000
of which were homicides. Guns were also used in over 300,000
non-fatal crimes. The social cost of gun violence that year was
estimated to be $174 billion, $12 billion of which was directly
absorbed by taxpayers.
Last month, I and more than 20 other leading researchers
and gun policy experts gathered at Johns Hopkins to share our
research at a summit on reducing gun violence in America. I
refer to the Committee the full findings from the summit that
were just published in a book that I edited with Jon Vernick.
This group developed consensus policy recommendations that we
believe would reduce gun violence, including the following:
establishment of a universal background check system,
strengthening laws to reduce firearms trafficking, expanding
incentives for States to provide information about
disqualifying mental health conditions to the NICS system,
banning the future sale and possession of assault weapons and
large-capacity ammunition magazines. These policies enjoy broad
public support and, according to Professor Tribe and
constitutional experts from across the ideological spectrum,
would not violate constitutional rights.
I would like to summarize the evidence that refutes common
arguments against these proposals.
The first is that our Nation's high rate of homicide has
nothing to do with gun availability. Yet when we compare the
United States with other high-income countries, our rate of
homicide is 7 times higher because our rate of homicides with
guns is 20 times higher. This gross disparity cannot be
attributed to the U.S. being more violent or crime-ridden
generally because our rates of non-fatal crime and adolescent
fighting are average among high-income countries. Much of the
difference is likely due to the weaknesses in our laws that
allow dangerous people to have guns.
Another claim is that gun control laws do not work because
criminals will not obey them and will always find a way to get
a gun through theft or the illegal market. This faulty logic
could be used to argue against the need for any type of law
because lawbreakers do not obey laws. The truth is that laws
such as background check requirements for all gun sales and
other laws to combat gun trafficking help law enforcement to
keep guns from prohibited individuals.
Opponents of gun control point to criminals' obtaining guns
from the underground market as proof that regulations are
pointless. But the weaknesses in current Federal firearms laws
are the very reason that criminals are able to obtain firearms
from those underground sources. Data from a national study of
State prison inmates indicates that about 80 percent of gun
offenders acquired their handguns in transactions with
unlicensed private sellers, a category of transactions that
current Federal law exempts from background checks. Only 10
percent of gun offenders report that they stole the guns that
they used in crime.
This argument from opponents of stronger gun laws also
implies that criminals have no difficulty in obtaining guns.
This is also inconsistent with the facts. If guns are so easy
for criminals to get, why is it that only 29 percent of
robberies reported in the National Crime Victimization Survey
did the robber use a gun?
Several studies which I have conducted have shown that laws
that increase gun seller and purchaser accountability,
including universal background checks, lead to fewer guns being
diverted to criminals. Missouri's repeal of its permit
licensing law for handgun sales in August 2007 provides an
example of the value of such laws. Missouri's law had required
prospective handgun purchasers, whether they were purchasing a
handgun from a licensed gun dealer or a private seller, to pass
a background check to obtain a permit. We found that the
diversion of guns to criminals shortly after the retail sale
abruptly doubled and the gun homicide rate increased by 25
percent after Missouri repealed its law. During this same time
period, gun homicide rates nationally dropped 10 percent.
In our new book, researchers reported several examples in
which State laws prohibiting perpetrators of domestic violence,
violent misdemeanants, and the severely mentally ill from
possessing firearms did indeed reduce violence. Such laws would
be even more effective if gaps and weaknesses in Federal laws
were addressed.
Opponents claim that we do not need to pass new gun laws.
We just need to enforce the current ones. The problem, of
course, with this argument is that Federal gun laws are
currently written in ways that make it very difficult to hold
firearm sellers accountable, as was described earlier in
previous testimony. There is no statute defining or outlawing
straw purchases or gun trafficking. Standards of evidence are
high and penalties are weak relative to the seriousness of the
crime of supplying criminals with firearms.
The Tiahrt amendments protect licensed gun dealers who sell
many guns that are subsequently recovered from criminals by
restricting the use of crime gun trace data. I have published
research showing how this law increases the diversion of guns
to criminals from suspect gun dealers.
Opponents also claim that requiring background checks for
all gun sales is too great of a burden on gun purchasers to
justify. We just completed a large national survey in which we
found that 84 percent of gun owners and 74 percent of NRA
members reported that they supported laws requiring a
background check for all gun sales.
In the 14 States that currently require background checks
for all handgun sales, including private sales, 89 percent,
nearly 9 out of 10 gun owners supported universal background
checks. Apparently, the overwhelming majority of gun owners
consider any inconvenience associated with a pre-gun-sale
background check to be acceptable because they want to keep
guns out of the hands of dangerous people.
It has been claimed that the only thing that can stop a bad
guy with a gun, is a good guy with a gun. This call to arms
suggests that the best way to reduce violence is to allow and
even encourage legal gun owners to carry loaded guns in public
places. The best evidence indicates that so-called right to
carry laws do not reduce violent crime and may actually
increase aggravated assaults. Calls to do away with
restrictions on concealed gun carrying suggest everyone who can
legally own a gun is a good guy or gal. But research on people
who are incarcerated for crimes committed with guns in States
where the conditions for legal gun ownership mirror the Federal
standards, 60 percent of those gun offenders were legally
qualified to possess a gun just prior to committing the crime
with a gun that led to their incarceration. Many had prior
convictions for crimes involving violence, guns, drugs, or
alcohol abuse.
Finally, some say that banning the sale of assault weapons
and large-capacity magazines would not enhance public safety.
Assault weapons and guns with large-capacity ammunition feeding
devices are overrepresented in mass shootings, and these mass
shootings involving assault weapons typically involve more
victims per incident than mass shootings with other weapons.
Although mass shootings or shootings in which an assailant
fires more than 10 rounds are relatively uncommon, their
victims and family members of victims of mass shootings here
today who would not have experienced the pain and loss of gun
violence if their assailants had not been able to legally
purchase assault weapons and large-capacity magazines.
[The prepared statement of Professor Webster appears as a
submission for the record.]
Chairman Durbin. Thank you. Thank you for your testimony.
Mr. Cooper, let me address initially the Heller decision as
you saw it and the subsequent decisions, and I am going to ask
Professor Tribe to respond or comment. It strikes me that what
Heller said is the absolute prohibition of gun ownership is
unconstitutional under the Second Amendment. What I hear you
argue on the other side--and you even used the provocative word
``absolute'' in your testimony--is that there is an absolute
right of individuals to own certain arms, common arms.
I am wondering how you square that with the language of
Heller where Justice Scalia went on to specify all of the
regulations that he would find permissible, and he said this is
not an exhaustive list, but he went through a list of
regulations that would limit the right to own arms, certainly
inferring they are not--ownership and use is not absolute. He
included weapons not typically possessed by law-abiding
citizens for lawful purposes, prohibitions on the possession of
firearms by felons and the mentally ill, laws forbidding the
carrying of firearms in sensitive places, laws imposing
conditions and qualifications on the commercial sale of arms,
laws prohibiting the carrying of dangerous and unusual weapons,
laws regulating the storage of firearms to prevent accidents.
If you concede even one of those things, then to say that
the Second Amendment right to bear arms is absolute just kind
of falls on its face. How long has it been since we have had
restrictions on the ownership of machine guns under the Federal
law? It has been quite a few years, if I am not mistaken. It
may go back to the era of the 1930s, if I am not wrong about
that.
So how do you reconcile that? How can you say this is an
absolute right in light Justice Scalia's statement?
Mr. Cooper. Thank you, Mr. Chairman, for that question
because I want to hasten to clear up confusion about my use of
that term. It is not my position that the Second Amendment is
unlimited. It never has been, and it certainly could not be
after Heller makes clear that the kinds of limitations on the
Second Amendment right that you have just articulated
accurately from the decision itself are historically bound
limitations and permissible restrictions that governments can
place upon gun ownership and gun use.
What I tried to be careful to say, though, is that at its
core--and this I believe that Heller does make clear. At its
core, that is--and regardless of what one may argue is the core
of the Second Amendment, it is clear from Heller that it is the
use of arms--``arms'' as that term is used in the Second
Amendment itself--for self-defense within the home, the place
where it is most acute, as the Court said, for the use of arms
to be available.
It is not my position that any arms are protected by the
Second Amendment. You have just mentioned M-16s. I do not think
that an individual has, a law-abiding individual has a right to
an M-16, even in his home. But it is my view that there are--
that within the universe of arms, there are certain arms that
are absolutely protected. And you cannot completely disarm an
individual in his home. Heller, if it stands for nothing else,
it stands for that.
And so the question before the Committee, before you, Mr.
Chairman, and the others, is: What are those protected arms?
Where does that line fall?
Chairman Durbin. Okay----
Mr. Cooper. And it certainly falls at M-16s.
Chairman Durbin. I am going to let the professor respond
here to this argument that we are talking about the instrument,
the weapon, as opposed to many other things. Tell me your
reaction to this.
Professor Tribe. Well, Mr. Chairman----
Chairman Durbin. You need to turn your--thank you.
Professor Tribe. Thank you. Much as I like and respect my
friend Chuck Cooper, I just do not think he answered your
question. The Supreme Court did not suggest in Heller or
McDonald or in any other case that uniquely within the
Constitution the Second Amendment protects a certain fixed set
of objects, that somehow magically the M-16 machine gun floats
from our 1791 history as out of the range of protection. It is
a much more nuanced inquiry. It is an inquiry into how common
the weapon is. It is an inquiry into how essential it is to
self-defense. And it is an inquiry into how unusually dangerous
it is.
Now, the suggestion that I get from Mr. Cooper's written
statement in which he had more of a chance to elaborate is
basically that a regulation of guns is allowed only if that
regulation fits within a kind of specific historical pedigree,
and somehow he gets that pedigree I am not sure quite where--
from the 1930s, from the 1790s. But history has never been the
sole determinant of the meaning of any constitutional
provision, for Justice Scalia or for any other member of the
Court. It certainly is not for the First Amendment. It is not
for the Contract Clause. And more than any other constitutional
provision, the objects addressed by the Second Amendment
inherently evolve with technology. Guns today are exceptionally
different from guns even a hundred years ago, let alone guns at
the time of the framing. And in light of the Second Amendment's
peculiarly close relationship with technology, it would make
even less sense to be bound solely by history.
In his prepared statement, Mr. Cooper quoted from, I think
it was, Chicago v. McDonald where the Court said that the
Second Amendment is like the other amendments. It is subject to
a consideration of competing constitutional claims, like claims
to life, liberty, security, and--here is the language--``it is
not to be singled out for special treatment.''
And what I think Mr. Cooper is doing is the very thing that
the Supreme Court said is not to be done. He is elevating the
Second Amendment above all of the other values. Of course, the
Court does not think that the Second Amendment should be
subject to re-evaluation and rejiggering and rebalancing just
because we live in the 21st century. But he, as all of the
examples that you I think carefully enumerated, is clearly open
to the idea that a whole range of regulations designed not to
strip people of their right of self-defense but to balance that
right, to accommodate that right to the severe dangers that we
have seen these weapons provide, that that is permissible.
Chairman Durbin. So if I can, if Senator Cruz would allow,
I want to ask one more question and then turn over to him. Two
weeks ago when we had this hearing, I asked the head of the
NRA, Mr. LaPierre--I gave him an illustration of something that
had happened to me as a politician back in Illinois. When I sat
down with people who feel--members of his organization who feel
very strongly about the Second Amendment and told them my
views, they said, ``You do not get it. You just do not
understand it. It is not about sporting, hunting. It is not
even about defending my home or self-defense. It is about my
right to bear arms so that I am adequately armed if the
Government turns on me, so that I can suppress tyranny if
someone should turn on me.''
And I asked Mr. LaPierre, is that the standard? I expected
him to say no, but he did not. He said, ``In the historic
context of the Second Amendment, that is what it was about.
This was a brand-new Nation. They had just thrown off the
tyranny of England, and they wanted to preserve,'' in Mr.
LaPierre's words, ``the right to bear arms to protect those
basic freedoms as individuals.''
Now what we are finding is something interesting growing
out of this mind-set. It is a form of nullification which we
are seeing evidence of. In my home State of Illinois, there are
sheriffs, duly elected sheriffs of counties who have publicly
stated that they will not enforce any Federal laws restricting
the Second Amendment. They have taken on the name of ``Oath
Keepers.'' I have some of their literature in front of me.
I would like for you to comment on the history of the
Second Amendment and this view of the right of an individual to
defend himself, herself, against a Government that may be
tyrannical. Is that built into the Second Amendment?
Professor Tribe. Well, Justice Scalia, in a very erudite,
historical discussion in Heller, talked about how part of the
historic origin of the need to codify the Second Amendment was
exactly the sense that shortly after the Revolution and when we
were still a forming Nation, when we really did not have a
Government under a rule of law that had conformed itself to a
new Constitution, that that was one of the elements. But he
makes it clear that to make the Second Amendment serve that
purpose today, we would have to let every individual have his
own rocket launcher, his own tank. I mean, if the Government of
the United States were ever to turn on any of us as
individuals, it would not be enough to have a handgun or even a
semiautomatic weapon.
So, clearly, the purpose has now become one of self-defense
against marauders, against criminals, against errant individual
police officers, but not against the entire Government.
And you mentioned nullification and the Oath Keepers. We
have had a history of claims by States that they could nullify
the operation within their own jurisdiction of Federal laws
that they did not agree with. It was a bloody history. It was
settled, I think, by the Civil War, if I remember my history
correctly, and it is not a history that I would want to relive.
The Oath Keepers, like anybody else, are entirely free to
agitate, litigate, argue for their own view of the law, but as
Justice Scalia said in 1990, ``. . . democratic government must
be preferred to a system in which each conscience is a law unto
itself . . .'' And the Supreme Court of the United States said
in 1960 that nullification and ``interposition is not a
constitutional doctrine. If taken seriously, it is illegal
defiance of constitutional authority.''
Chairman Durbin. Thank you.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. I would like to
thank all of the witnesses for your time and preparation and
being here. I apologize that with votes on the floor of the
Senate and also other Committee hearings that not all of us
were able to be here for this very learned testimony.
I would like to give particular thanks to Ms. Hupp, a
constituent from the State of Texas, whose testimony I think
was moving and powerful, and your personal life experience I
think is very important for this debate. And I would urge
anyone interested in assessing what the proper standard is for
protecting our right to keep and bear arms to watch Ms. Hupp's
testimony, to see her personal experience of the importance of
the right to keep and bear arms to protect ourselves and to
protect our family.
I would also note, in the interest of full disclosure, that
as a law student I took constitutional law from Professor
Tribe, and that my very first employer in private practice was
Chuck Cooper. And with both of you on each end of this table, I
would simply say you are both held harmless.
[Laughter.]
Senator Cruz. Should I make any mistakes of constitutional
law, I will take the brunt of all of that myself rather than
attributing any blame to either one of you.
Mr. Cooper, a lot of discussion today has been had that the
Second Amendment allows what is described as reasonable,
common-sense regulations. And ``reasonableness'' is a term that
encompasses a lot.
I would like to understand the scope of the argument that
was made by Washington, DC, and Chicago in the Heller case and
the McDonald case. As I understand it, both Washington, DC, and
Chicago, with the support of the great many groups who are now
calling for gun control regulation, made the argument that the
Second Amendment right to keep and bear arms does not protect
any individual whatsoever. And if I understand that correctly,
that would mean, under their interpretation, that this Congress
could pass a law that says it is a Federal offense, it is a
crime for any American to own any firearm whatsoever--pistol,
shotgun, rifle--any firearm is hereby criminalized.
Am I correct that the position that was advocated in those
cases is just that radical?
Mr. Cooper. It was just that sweeping, Senator Cruz. The
claim made by the cities in those cases was that the Second
Amendment protects only a collective right, a right relevant
only with respect to the organized militia. It was rejected by
the Supreme Court, and that rejection reiterated and reaffirmed
in McDonald, it rejected initially in Heller.
The Court said--Mr. Chairman, this refers back to your
earlier question. The Court was quite clear that concerns by
the Founders and the framing generation about tyranny and the
notion that a standing army could disarm the populace, disarm
the people, was at the root of the codification in the Bill of
Rights of the Second Amendment.
It was not the core concern, however, of that founding
generation and of the people at the time. The core concern, the
central component, according to the majority in Heller, was
self-defense. And it also recognized the lawful purpose of
hunting. So people had an individual, fundamental right,
Senator Cruz, to keep and bear arms for those lawful purposes,
the core of which--and I have earlier characterized it as
absolute, and I reiterate that--the core of which was to keep
an operable firearm in the home for the purpose of self-
defense.
Senator Cruz. And, Mr. Cooper, am I correct, the first
argument in those cases was that it was not an individual right
at all?
Mr. Cooper. Yes.
Senator Cruz. Or that it was not incorporated against the
States in McDonald?
Mr. Cooper. Just a collective right.
Senator Cruz. But the second argument was that even if it
was, that a total ban on firearms, as Washington, DC, and
Chicago had, constituted reasonable, common-sense gun control,
even if it did protect your right? In other words, it was a
right that could be legislated entirely out of existence?
Mr. Cooper. That is--a right that could include a sweeping
and comprehensive ban on the possession of an operable firearm
in the home.
Senator Cruz. Now, Professor Tribe, many have made
reference to Justice Scalia's opinion in Heller that recognized
that there are some limits on the Second Amendment. Am I
correct, though, that Heller actually went further than that
and enumerated some specific examples: namely, a ban on felons
possession firearms Heller said was permissible under the
Second Amendment; a ban on what Heller characterized as
``dangerous and unusual weapons,'' such as M-16 machine guns,
satisfied the Second Amendment. Heller did not once suggest
that the sort of restrictions here--in terms of when it was
enumerating examples of restrictions, the sort of restrictions
currently being considered by the Senate, Heller did not say
those would be permissible, did it?
Professor Tribe. Well, it certainly, Senator Cruz, did not
have these in front of it. But it said in Footnote 26 that the
examples it gave were only examples. And if there is any
regulation that could survive Second Amendment scrutiny, it is
the kind of regulation that is being considered, namely----
Senator Cruz. Well, but it did say that what was critical
was whether the particular weapons were in common use at the
time. Is that correct?
Professor Tribe. That is not, with all respect, Senator
Cruz, quite correct. It said that if they are not in common use
at the time, as the handgun had been, then they are out of
contention for Second Amendment protection. But being in common
use at the time did not in itself guarantee that they were
within the core. Otherwise, if you flood the market with
machine guns, with M-16s, so that they are suddenly in common
use, then they would get the kind of protection the Court said
they did not have.
Senator Cruz. Although M-16s currently are functionally
illegal for the public to enjoy, fully automatic machine guns--
--
Professor Tribe. That is right. But if you flood the
market, it would no longer be constitutional to outlaw them if
it were true that just being in common use was enough. That is
why the Court had three criteria.
Senator Cruz. But they are not in common use right now, are
they?
Professor Tribe. They are not. But the Court said----
Senator Cruz. Okay. And a final question because my time
has expired. With the Chairman's indulgence, I would like to
ask a final question of Ms. Hupp, which is: If you look at the
Nation of Australia, which in 1997 banned guns, Australia saw
from 1995 to 2007 sexual assaults and rape increase 29.9
percent and violent crime increased 42.2 percent, largely after
they had banned guns altogether.
In contrast, the United States during that same time saw
violent crime decrease 31.8 percent and rape decrease 19.2
percent.
To my mind, that data suggests that allowing law-abiding
citizens to arm themselves, and in particular protecting the
right of women to protect themselves, is an important safeguard
against violent offenses.
Are you aware of any data or any argument to the contrary
that stripping women of the right to defend themselves does not
make them more vulnerable to violent predators?
Ms. Hupp. Well, you are asking me to provide, I believe,
some statistical evidence that I do not have with me. Common
sense, I believe--we have talked about common-sense gun laws,
and saying something is common sense does not necessarily make
it so. But common sense tells me that if my aged grandmother in
a wheelchair is approached by three thugs with baseball bats
wanting her Social Security check, if she pulls out a revolver,
now all of a sudden she is on equal footing.
If I may, I would like to offer a couple of things that I
believe could be done to help eradicate these mass shootings
that seem to be so prevalent in the last couple of decades. One
thing is that we could--that you all could encourage States to
get rid of gun-free zones, because is it not fascinating that
nearly all of these mass shootings that we have seen have
occurred in gun-free zones, places where there are so many
people that are like fish in a barrel? These mass shootings do
not occur at the dreaded gun show. They do not occur at NRA
conventions or skeet and trap shoots. They occur where madmen
want to go and be able to shoot people who are defenseless.
Murder and crimes of passion have been occurring in this world
since the dawn of man, and nothing--nothing--that your
Committee can do will change that, unfortunately.
The second thing I would strongly recommend is I would
encourage--or I would ask you all to encourage the media, not
legislate but encourage the media to quit using the murderers'
names. These people typically come from a background of
bullying or feeling as if they are worthless and have no
ability to change their lives, so they know there is an aspect
of glory to these mass murders. They know they are going to go
down in the history books. And if you can ask the media to stop
using their names after that first day--and, second, if the
person actually does not put a bullet in their own head or they
are not killed in the process, when they go to trial, fuzz out
their faces. Stop encouraging their infamy.
Senator Cruz. Thank you very much, Ms. Hupp, and my time
has expired.
Chairman Durbin. Senator Graham.
Senator Graham. Thank you all. In the last round of
questioning, I asked a question of our first witness: What
percentage of people who fail a background check actually get
prosecuted? And I should have asked actually get convicted,
because it is even less. So you can check our math, but he said
there were about 80,000 background checks, and some of them are
false positives, a small number, so that would definitely
affect the numbers, but not a whole lot. There were 44 people
prosecuted. I do not know exactly how many were convicted. But
in 2010, there were 76,142 FBI denials referred to ATF. There
were 62 charges referred for prosecution, and 13 resulted in a
guilty plea. But when you do the math, it is 0.000055 of a
percent, and that gets to be where I really cannot put my arms
around it.
So the point I guess I am trying to make to the Committee
and the public at large, if you expand background checks and no
one ever suffers the consequences of lying or making a straw
purchase, I do not think it is going to do much good.
Professor Tribe, do you agree with the concept that people,
to obey the law, they have to fear that there will be a
consequence if they break it?
Professor Tribe. I certainly do, and I think that the fear
of a really serious consequence rather than a slap on the wrist
would make a difference. But the key point, to me, is that when
you have so many loopholes so that somebody who thinks he is
going to flunk a background check unless he lies goes to a gun
show or buys on the Internet, of course, the system of
background checks is not going to work. It works only better--
it works better the more universal you make it.
Senator Graham. Well, would you agree that criminals
universally will try to get a gun outside the law?
Professor Tribe. And they will try to violate the law in
every way. I agree.
Senator Graham. Absolutely. So it is never really
universal. It is really about law-abiding citizens, what we
expect of them. And I guess my point is this number to me is
startling. I think if you are looking for some common ground,
Mr. Cooper, it seems to me this would be a good place to start.
Try to find, if it is a resource problem, let us dedicate some
money. If it is an attitude problem, let us adjust attitudes.
But in all honesty, to the panel, I do not think any expansion
of background checks is going to be a deterrent until somebody
in a real way suffers the consequences under the current
system.
So when you say people fall through the cracks, I would say
there is a hole a mile wide in the current system--I mean, it
is just a flood gate--that your chance of being prosecuted for
violating a background check or providing false information is
probably a lot less than being struck by lightning or hit by a
meteor. So I do not know what those numbers are, but I would
say let us focus on that.
Now, Dr. Tribe, when it comes to defining the
constitutional parameters of what you can do up here to
regulate gun ownership, one is common usage. There were two
other----
Professor Tribe. Right. The two others, Senator Graham--
thank you for giving me a chance to get to them--were the
degree of unusual dangerousness, and that was not simply
another way of saying common use; that is, of course, all guns
are dangerous or they would be useless. But a gun that can
spray bullets without being reloaded is more dangerous. And the
third criteria was how vital it is to self-defense.
Now, none of those things can be answered in a kind of
easy, black-and-white way, because in a sense the more
dangerous a gun is, the more useful it also is for self-
defense.
Senator Graham. Well, that is a good point, and I guess
that is what I am trying to tell the public.
Could you put our chart up about the different guns? Do we
have it?
Ms. Hupp, I think we all agree that any weapon--one bullet
in the hands of a mentally unstable person is one too many. Do
you all agree with that concept? Any gun should be denied
someone who is mentally unstable?
Ms. Hupp. Yes.
Senator Graham. Okay, and I think everybody would. And we
do not want felons, because that is already the existing law.
Now, a circumstance you have described very eloquently, the
circumstance you found yourself in, Ms. Hupp, but there is a
case in Atlanta recently, Dr. Tribe, of a lady who was
defending her home against a home invader. She was home with
twin daughters, 9 years old. She ran up to the closet, hid in
the closet. She was on the phone to her husband. The guy
followed up the steps, broke into the closet. She had a six-
shot revolver. She emptied the gun, hit him five of six times--
it was a .38 revolver--and he was still able to get up and
drive away. Now, I have been told that one-third of all attacks
involve more than two people.
So is it unfair for Congress to say that in the hands of a
mother defending her children against a home invader, six
rounds may not be enough, ten rounds may not be enough? In that
situation I wish she would have had 15 or more because six
rounds were not able to do the job. Does that make sense to you
how I could think that way?
Professor Tribe. Well, it makes a certain kind of sense,
Senator Graham, but it is an argument that has no limit,
because if she had a machine gun, she might have been even
safer, or, you know, if she had a hand grenade, better still,
blow them all out of the water.
Senator Graham. But here is where democracy works. I do not
want her to have a machine gun or a hand grenade. I just do not
want her to be limited to ten bullets when the real world--
everything is a balance. She may need more than ten. And the
mentally unstable person does not need more than one.
Now, the second series of weapons, after natural disasters
you have had mobs roam around areas that are lawless. Basically
there is no power or the police cannot get there. Katrina,
Sandy, Haiti, you name it. But you have got three homes: one
home, the homeowner has no gun; the second home has a shotgun;
the third home, they have an AR-15. Mr. Cooper, what home do
you think would be best protected?
Mr. Cooper. I would rather be in the home that has the AR-
15, Senator Graham. But a shotgun would come in very handy as
well. And I think that your comments about the Atlanta episode
really bring into very sharp focus why this magazine ban is so
misguided in addition to being unconstitutional.
Senator Graham. There are over 4 million high-capacity
magazines out on the market, right?
Mr. Cooper. There are, and----
Senator Graham. And criminals are likely to get them no
matter what we do up here.
Mr. Cooper. They will undoubtedly get them.
Senator Graham. And the only person that could be really
affected is the law-abiding person who could be limited. Does
that make sense?
Mr. Cooper. Absolutely.
Senator Graham. Now, we can have great disagreements about
how far the Second Amendment goes, and there are limits, just
like freedom of speech. So I just hope the Committee will
understand a good place to start, Mr. Chairman, is taking the
laws we have and bring about a sense of you better not violate
that law because something bad will happen to you. And when you
are at 55 of one/one hundred thousandths in prosecution, we got
a ways to go.
Thank you all.
Chairman Durbin. Thanks, Senator Graham. I appreciate you
coming back. I know this has been tough on our schedule and
tough on your schedule, but thank you for being part of this
important hearing.
Ms. Hupp, your story about your parents is heartbreaking
and touching, really. I agree with Senator Cruz. It is
something that everyone should hear, even those who were not
here today. I would like to ask you a couple questions about
some things that you have said.
You stated--again, what you said before--that nearly all
mass shootings in recent years have occurred in gun-free zones.
The Mayors Against Illegal Guns did an analysis of every
reported mass shooting, defined by the FBI as involving four or
more people being killed, between January 2009 and January of
this year. Of the 43 mass shootings by FBI definition, 14 of
those mass shootings--about a third--took place in public
places that were considered gun-free zones--one-third, gun-free
zones. The rest took place in private homes or public places
where concealed-carry was permitted.
In light of this analysis, do you still stand by your
statement that ``nearly all mass shootings in recent years have
occurred in gun-free zones'' ?
Ms. Hupp. Yes, I would, and the reason I say that is
because I would like to know what the numbers are--you
mentioned that they said four or more they are calling a mass
shooting?
Chairman Durbin. By FBI definition.
Ms. Hupp. But certainly the ones that you and I hear about
when we turn on the news are more like ten or more or six or
seven or more. And in all of those cases that I can think of,
they have occurred in places where guns were not allowed. And I
believe that the four or five category that you are talking
about, that has a different intent behind it. You mentioned
that they were typically in homes?
Chairman Durbin. No. It said the rest took place in private
homes or public places where concealed-carry was permitted.
Ms. Hupp. Okay. In a private home situation, I am assuming
that most of those are going to be cases where you have some
family member who has gone berserk, and I believe it is a
different scenario. The one thing that I can assure you is that
having a gun is not going to prevent somebody from coming in
and shooting their estranged wife and the person sitting next
to them. It is not.
Chairman Durbin. So let me ask you this question----
Ms. Hupp. But it will prevent the high body bag count.
Chairman Durbin. Illinois has the distinction, my home
State, of the last State in the Union without a concealed-carry
law. They are currently debating it in the General Assembly.
And there are a lot of choices to make in terms of concealed-
carry.
The Violence Policy Center reported that since May 2007
there have been at least 499 people, including 14 law
enforcement officers, shot and killed either by concealed-carry
permit holders or by gunmen in the four States where there is
no permit at all required. These shootings include incidents
such as:
June 6, 2010, the murder of four women in Hialeah, Florida,
by a man who had reportedly served time in a Cuban prison but
had a concealed-carry permit under Florida law;
The April 4, 2009, killing of three Pennsylvania police
officers by a white supremacist who had a concealed-carry
permit even though a former girlfriend had a protection order
against him;
And July 23, 2011, the murder of five people at a roller
rink in Grand Prairie, Texas, your home State, by a gunman who
was a reported domestic abuser and was carrying a concealed
weapon legally under Texas law.
So I would just like to ask you this question: What
standards can we, should we apply to concealed-carry permit
holders to avoid abuses such as these?
Ms. Hupp. That is a weighty question. When you were
referring to the roller rink, I thought of our local roller
rink, and the owner actually requires that all of his employees
carry to prevent just that scenario.
I will have to revert back to what I said earlier. A gun is
not a guarantee. It just changes the odds. And it is a tool
that can be used to kill a family or a tool that can be used to
protect a family, but it seems to me that you all are focusing
on the tool. If I were to take--and I hate to say this out
loud, honestly, because I have children in a public school. But
is there any doubt in anyone's mind that the maniac that went
into the Sandy Hook Elementary could not have murdered as many
children if he had carried a samurai sword?
My contention is that guns are very effective tools and in
the right hands can prevent some dreadful things.
Chairman Durbin. So, Ms. Wortham, your experience with your
brother, a law enforcement officer who was armed, your father
nearby with a gun, and, sadly, despite that, your brother lost
his life. You have heard this argument now on both sides. Where
do you come down on this? How do you--I mean, as reflect on
this----
Ms. Wortham. Right. So perspective is everything, and I
think Ms. Hupp's story is horrible. I was telling her at the
break that I read it and I was traumatized. But I think that
what we know, as I said in my statement, is they were both
armed, and Thomas is dead. And it is true. It betters your odds
sometimes. But I also think that we are kind of not focused on
the big picture here, and I think that is what kind of concerns
me.
It is not about disarming law-abiding people. We are
talking about doing our best to keep the guns away from people
who should never have them in the first place, right? So I feel
like we are going off track a lot here with the focus on people
should have guns, people should have guns. I do not think
anyone is saying that there should not be a right to bear arms.
I do not think anyone is saying that here. I think what we are
saying is that the second amendment does not prevent us, you,
the law-making body here, from looking at ways that we know we
can try and reduce the amount of people who should not have
guns from having them so that the situations like Ms. Hupp's,
like ours, like all the families who are here this weekend, we
will not see them as much. And I think that is what we should
talk about more than saying, oh, well, yes, guns are helpful
sometimes, they sure are, but----
Chairman Durbin. So in your case that I have read about and
you told quite a bit about, there are still some elements that
I would like to put in the record. None of the four suspects
who were involved in your brother's murder was eligible to buy
a handgun from a licensed gun seller. Three of the suspects
were under the legal age to buy a handgun, and the fourth had
served 6 years in prison on a drug charge. As far as we know,
these suspects did not even try to buy a handgun from a
licensed seller. That is just a conclusion we reached. They
bought a trafficked gun from a private seller on the streets.
So, in general, do you think that ineligible buyers are
deterred from trying to get guns from licensed gun dealers
because of the fact that they are going to face a background
check?
Ms. Wortham. I think that is definitely helpful, yes. I
mean, I think they go the way that they know they will not have
to be subjected to that, so yes.
Chairman Durbin. Even getting back to Senator Graham's
prosecution numbers--and we started the hearing talking about
these are paperwork crimes and often do not carry strong
penalties and the prosecutor has limited resources to apply to
enforcing the law and so forth--I think it is fairly obvious
and rational to believe some of these gang bangers are never
going to walk into a gun dealer.
Ms. Wortham. Right, and I think that the part--all due
respect to Senator Graham--that we miss with the chart was
that, yes, maybe the prosecution of those who are flagged as
not eligible for guns is not what we would like it to be. But
we miss the fact that they were flagged as not eligible for
guns. So the tool is still an effective deterrent, and that
part is not displayed in the chart with the numbers of the
maybe not so great prosecution numbers. So I think we miss that
in depicting the numbers that way.
Chairman Durbin. Professor Webster, one of the things I
find interesting is kind of the hands-off attitude that
Congress takes when it comes to many of these gun issues. To
think of the number of Americans who die from violent gun crime
and the like and the fact that we have expressly prohibited
certain agencies of Government from doing any research into gun
violence and how to reduce it, we do not think twice about
calling for research in reducing epidemics and reducing the
incidence of disease.
Can you talk from a public health perspective about the
problem of gunshot deaths in our country and what you think we
need to do to address it?
Professor Webster. Sure. As I indicated in my testimony, I
think from a policy standpoint, really the most important thing
is that we currently make it way too easy for criminals to get
guns, and there are some common-sense ways to address that. We
need comprehensive background checks. We are never going to be
effective without that.
As is indicated by the numbers, it is difficult to
prosecute them, and that is, frankly, by design. The laws are
written in a way to minimize accountability for those who are
buying and selling firearms. I think that is very wrong-headed.
I have several studies that I have conducted that show very
consisted evidence that States that have greater measures to
hold firearms sellers and purchasers accountable have
substantially less diversion of guns to criminals. They also
happen to enjoy some of the lowest rates of firearm mortality
among the 50 States.
So I think there are things that we can do, again, that
focus on really what most of us agree upon. None of us want
dangerous people to have guns, yet Congress has currently given
us a set of laws that make it very difficult for law
enforcement to do what we want them to do, which is keep guns
out of the hands of dangerous people.
Chairman Durbin. Thank you, Professor Webster, and I want
to thank the panel for your patience and forbearance as we
raced around doing our roll calls.
The record will be open for a few days--Professor Tribe,
you know this; you are a regular--and there may be some
questions sent your way, and I hope, if you can, that you will
respond promptly.
There is a lot of interest in this subject and in today's
hearing. More than 120 individuals and organizations submitted
written testimony. I am supposed to be handed a prop now and
show you the big stack of them, but I am going to skip that.
And, without objection, I am going to ask that these statements
be placed in the record.
[The information referred to appears as a submission for
the record.]
Chairman Durbin. We are going to keep the record open for a
week. Written questions for the witnesses may be submitted, as
I mentioned earlier. And if there is no further business to
come before the panel, I am going to ask that this hearing
stand adjourned. Thank you.
[Whereupon, at 1:17 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Additional Submissions for the Record
A list of material and links can be found below for Submissions for the
Record not printed due to voluminous nature, previously printed by an
agency of the Federal Government, or other criteria determined by the
Committee:
Cramer, Clayton, Professor, ``Reforming Colorado Mental Health
Law,'' issue
paper:
http://www.claytoncramer.com/scholarly/
ColoradoMentalHealthReform-
1.pdf.
Pratt, Erich, and Michael Hammond, Gun Owners of America, ``Current
Gun
Control Proposals Will Endanger the Rights of Law-Abiding
Americans,''
statement:
http://gunowners.org/congress02122013.htm.
Reynolds, Glenn Harlan, Professor, ``Second Amendment Penumbras:
Some
Preliminary Observations,'' research paper:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2002132.
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