[Senate Hearing 118-51]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 118-51

                        PROTECTING PUBLIC SAFETY
                      AFTER NEW YORK STATE RIFLE &
                      PISTOL ASSOCIATION V. BRUEN

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________


                             MARCH 15, 2023

                               __________


                           Serial No. J-118-8

                               __________


         Printed for the use of the Committee on the Judiciary






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                 U.S. GOVERNMENT PUBLISHING OFFICE

52-885 PDF                WASHINGTON : 2024











                       COMMITTEE ON THE JUDICIARY

                   RICHARD J. DURBIN, Illinois, Chair

DIANNE FEINSTEIN, California         LINDSEY O. GRAHAM, South Carolina, 
SHELDON WHITEHOUSE, Rhode Island       Ranking Member
AMY KLOBUCHAR, Minnesota             CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii              TED CRUZ, Texas
CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
ALEX PADILLA, California             TOM COTTON, Arkansas
JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
PETER WELCH, Vermont                 THOM TILLIS, North Carolina
                                     MARSHA BLACKBURN, Tennessee

             Joseph Zogby, Chief Counsel and Staff Director
      Katherine Nikas, Republican Chief Counsel and Staff Director










                            C O N T E N T S

                              ----------                              

                       MARCH 15, 2023, 10:03 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina.......................................................     3

                               WITNESSES

Witness List.....................................................    35
Glenn, Ruth M., president, Public Affairs, National Coalition 
  Against Domestic Violence and National Domestic Violence 
  Hotline, Denver, Colorado......................................     5
    prepared statement...........................................    36
Lindley, Stephen, program manager, Combating Crime Guns 
  Initiative, Brady, Los Angeles, California.....................    12
    prepared statement...........................................    52
Mangual, Rafael, Nick Ohnell Fellow, and head of research, 
  Policing and Public Safety Initiative, Manhattan Institute, New 
  York, New York.................................................    10
    prepared statement...........................................    60
Ruben, Eric, assistant professor of law, Southern Methodist 
  University Dedman School of Law, Dallas, Texas.................     9
    prepared statement...........................................    69
Swearer, Amy, senior legal fellow, Edwin Meese III Center for 
  Legal and Judicial Studies, Heritage Foundation, Washington, DC     7
    prepared statement...........................................    87

                               QUESTIONS

Questions submitted to Ruth M. Glenn by Chair Durbin.............   132
Questions submitted to Rafael Mangual by Senator Graham..........   133
Questions submitted to Eric Ruben by:
    Chair Durbin.................................................   134
    Senator Klobuchar............................................   135
Questions submitted to Amy Swearer by Senator Graham.............   136

                                ANSWERS

Responses of Ruth M. Glenn to questions submitted by Chair Durbin   137
Responses of Rafael Mangual to questions submitted by Senator 
  Graham.........................................................   140
Responses of Eric Ruben to questions submitted by:
    Chair Durbin.................................................   143
    Senator Klobuchar............................................   145
Responses of Amy Swearer to questions submitted by Senator Graham   148

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Submitted by Chair Durbin:

    Everytown for Gun Safety, letter, March 15, 2023.............   153

Submitted by Ranking Member Graham:

    ``Defensive Uses of Firearms: Examples,'' National Firearms 
      Survey, 2021, factsheet....................................   158
    Independent Women's Forum, Independent Women's Voice, and 
      Independent Women's Law Center, statement..................   160









 
                        PROTECTING PUBLIC SAFETY
                      AFTER NEW YORK STATE RIFLE &
                      PISTOL ASSOCIATION V. BRUEN

                              ----------                              


                       WEDNESDAY, MARCH 15, 2023

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
Room 216, Hart Senate Office Building, Hon. Richard J. Durbin, 
Chair of the Committee, presiding.
    Present: Senators Durbin [presiding], Whitehouse, 
Klobuchar, Blumenthal, Hirono, Padilla, Welch, Graham, 
Grassley, Cornyn, Lee, and Blackburn.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. This meeting of the Senate Judiciary 
Committee will come to order. It's my understanding that 
Senator Graham is on the way and has asked us to start. We'll 
of course recognize him when he arrives for any opening 
statement he may have.
    Last week, I went to the Senate floor and paid tribute to a 
fallen Chicago police officer, Andres Vasquez Lasso, 32 years 
old. He was an immigrant to this country, became a U.S. 
citizen, volunteered for the Chicago Police Department, served 
there for 5 years. He was killed protecting the same Southwest 
Side neighborhood he lived in.
    On March 1st, Officer Vasquez Lasso responded to a 911 call 
about a domestic violence incident. When he arrived on the 
scene, the suspect fled, and a chase ensued. The suspect had a 
gun, and when he ran onto an elementary school playground with 
children present, he turned and fired it five times. Kids were 
taking cover under slides and equipment they could find on the 
playground. Officer Vasquez Lasso was killed.
    For his funeral last week at St. Rita's Chapel, his wife, 
Milena, wrote, and I quote, ``I wish I would've hugged you 
stronger that Wednesday morning, given you more goodbye kisses. 
If only I had known it was the last time I would see you 
alive.''
    Every day, millions of Americans like Officer Vasquez Lasso 
dedicate themselves to protecting public safety and keeping our 
communities and our kids safe. Law enforcement officers, 
emergency responders, social service workers, community 
leaders, and teachers--these are increasingly dangerous jobs, 
in part because there are more guns than people in this 
country, and hundreds of Americans are shot every day.
    We owe it to these Americans to enact laws that will help 
protect them from being shot and killed. I believe that well-
regulated firearm ownership, to keep Americans safe, is 
consistent with the Second Amendment. But we're up against a 
gun lobby that wants to strike down the gun laws on the books 
and stop new ones from passing, and that brings us to the Bruen 
case. Here's a brief video.
    [Video is shown.]
    Chair Durbin. For the record, the Bruen decision came down 
the day before the Dobbs decision, which of course drew a lot 
of public attention. The gun lobby got what it wanted in the 
2008 Heller case, a Supreme Court decision, making clear that 
the Second Amendment is an individual right, but the gun lobby 
wasn't happy with more than 1,500 cases that implemented Heller 
in the lower courts. Why? Because those cases largely upheld 
the gun laws on the books from constitutional challenge.
    The Court said those laws passed muster under Heller's 
then-two-step test that looked both at history and considered 
modern-day ends and means. That was just too much for the gun 
lobby to take, so they went to work. They advocated 
aggressively to put Justices on the Supreme Court who supported 
a history-based approach to Second Amendment challenges, so-
called ``originalism,'' ``literalism.'' I discussed this 
approach with both Justice Kavanaugh and Justice Barrett at 
their confirmation hearings, because I was concerned about what 
a conservative majority on the Supreme Court would do to our 
gun laws.
    And then, as I feared, the gun lobby worked to get a case 
before the Supreme Court, the Bruen case. Last year, the 
Court's majority went further than necessary to decide the case 
and established a new, purely historical, test for considering 
the constitutionality of gun laws. The gun lobby was thrilled.
    Wayne LaPierre of the National Rifle Association put out a 
press release. He called the Bruen decision a landmark win for 
the NRA that, quote, ``unequivocally validates the position of 
the NRA.'' That's the same Wayne LaPierre who sat in this room 
10 years ago and testified before this Committee that we, 
quote, ``need to enforce the thousands of gun laws that are 
currently on the books.'' But his Bruen press release didn't 
say that. It said, quote, ``Many unconstitutional gun control 
laws remain in America. The NRA will continue to fight these 
laws.''
    Now, after the Bruen decision, longstanding gun laws on the 
books are being challenged across the country. More than 100 
cases so far. And under the new Bruen historical test, judges 
decide not whether a law reasonably protects public safety, but 
whether the law resembles laws that were in place in 1791 or in 
1868. In the beginning, in 1791, of course, we were talking 
about muzzle-loading muskets. I think about drawing that 
standard, legality, and constitutionality, based on 1791, and I 
think about last Fourth of July in Highland Park, Illinois, 
when a deranged individual went on the roof of a downtown 
business and discharged 83 rounds in 60 seconds, killing 7 
innocent people and injuring dozens of others, including 
paralyzing an 8-year-old little boy, Cooper Roberts.
    So it's no surprise to see decisions like the Fifth 
Circuit's recent Rahimi case. A panel of judges struck down a 
Federal law barring those with domestic violence restraining 
orders from possessing guns. I can't square that decision with 
the actual danger that women and police officers face from 
armed domestic abusers, and I don't believe the Founders of 
this Nation would've wanted courts to simply ignore this danger 
when applying the Constitution they wrote.
    The chaos that the Bruen decision has caused was 
predictable. For 15 years, courts have been steadily applying 
the Heller decision to make reasoned judgments about gun laws 
on the books. Now, the Supreme Court has imposed a radical new 
framework under Judge Thomas' decision, with barely any 
guidance to apply it and plenty of opportunity for judges to 
cherry-pick from history, to engage in judicial activism in the 
name of originalism.
    The gun lobby saw Bruen as a landmark win, but it's a 
significant challenge for police, law enforcement, and the 
population of America when it comes to public safety. That's 
what we'll discuss today. We have a distinguished panel of 
witnesses that will examine where we go as we navigate Bruen's 
unprecedented upheaval of efforts to combat gun violence. I 
look forward to this discussion. I now turn to Ranking Member, 
Senator Graham.

          OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman. Well, number one, 
I think this is an important hearing to have. The role of the 
Second Amendment in average everyday life. Senator Cornyn 
worked in a bipartisan fashion to make some changes to 
background checks, putting money into the system to deal with 
the folks that are a danger to themselves or others, to enhance 
public safety. So there is a bipartisan approach to some of 
these issues. But this, sort of, is the difference between the 
parties here, I would think. That America's Second Amendment 
was passed for a purpose.
    If you live in a kingdom and the king rules, the first 
thing they want to do is make sure nobody can object and that 
you're pretty well defenseless. You have to ask yourself, why 
did we have a Second Amendment to begin with? Well, if you 
understand the history of the country, people fleeing England, 
where you couldn't say bad things about the king, you really 
couldn't express yourself--so the First Amendment allows you to 
speak openly and to worship the way you would choose. Not the 
way the king would choose, and on and on and on, the right to 
assemble.
    The Second Amendment is to be able to bear arms. There are 
millions--1.7 million times per year, people use firearms to 
defend themselves. I have a very long list of people who have 
been able to protect their family, their property, by having a 
firearm to ward off intruders and people who are acting 
aggressively toward them, particularly women. And, Mr. 
Chairman, I'd like unanimous consent to put that in the record.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Graham. And what we're trying to do here, I think, 
is our Democratic friends are trying to make the argument that 
the Bruen, Heller cases--if they could, they would overturn 
those decisions, and I think people on our side are going to be 
unanimous in the idea that responsible gun ownership is part of 
American society. Guns are used every day to defend Americans, 
and people abuse their right to own a weapon. And I would hope 
we could find common ground to go after those who abuse the 
right to own a weapon, who act irresponsibly, and enforce the 
laws on the books.
    So what we will be doing in response to this hearing is 
that I've introduced legislation, Federal law, that would 
basically codify the Heller decision. That the Second Amendment 
right to own a weapon is an individual right, and the Bruen 
decision, having a different legal analysis about efforts to 
regulate guns, more back to the historical perspective of why 
we have the Second Amendment. As you want to overturn these 
decisions, we will want to reinforce these decisions.
    We've found bipartisan support for the idea of background 
checks and trying to get guns out of the hands of people that 
are dangerous, Mr. Chairman, but we haven't had much success in 
finding common ground on increasing punishments for those who 
are involved in crime. We're talking a lot about fentanyl, but 
we haven't done much to deter it. All of us see the laws 
regarding sexual exploitation of children in need of upgrading. 
So what I hope we'll find is some bipartisan support to go 
after the criminal and reinforce America's safety.
    This is a very dangerous time in America, Mr. Chairman. The 
policies being pursued in the major cities in this country are 
not working--on the drug front, on the public safety front. And 
here's the sad news. There's probably never been a more 
important time to be able to own a weapon than now. The threats 
to the average American are going up, not down. And at the end 
of the day, the Second Amendment is part of our Constitution, 
is part of the fabric of this Nation. There is bipartisan 
support to make sure reasonable gun ownership reigns, but there 
will be, on our side of the aisle, Mr. Chairman, a robust 
response to the idea of undoing the legal framework that has 
come out of the Supreme Court, because we believe now is the 
time to reinforce responsible gun ownership, not to undermine 
it. Thank you.
    Chair Durbin. Thank you, Senator Graham. Today we welcome 
five witnesses. Let me introduce them. Our first witness is 
Ruth Glenn, president of public affairs, National Coalition 
Against Domestic Violence. It's a project of the National 
Domestic Violence Hotline. Prior to joining this organization, 
Ms. Glenn had served with the Colorado Department of Human 
Services for 28 years, 9 of which she spent as a director of 
the Domestic Violence Program. She is indeed a survivor of gun 
violence, herself.
    Amy Swearer has appeared before the Committee before. She 
is a senior legal fellow in the Heritage Foundation, Edwin 
Meese Center, where her areas of scholarship include the Second 
Amendment, overcriminalization, school safety, and the 
intersection of mental health and gun violence.
    Eric Ruben, assistant professor of law at the SMU Dedman 
School of Law. His scholarship focuses on exploring the 
regulation of violence and weapons and how that regulation 
intersects with self-defense and Second Amendment.
    Rafael Mangual--did I pronounce it right? Good. Rafael 
Mangual is the Nick Ohnell Fellow and head of research for the 
Policing and Public Safety Initiative of the Manhattan 
Institute for Policy Research, where he writes on topics 
relating to police, crime, and incarceration, among others.
    And Stephen Lindley, who is the program manager for 
Combating Crime Guns Initiative at Brady. Before joining Brady, 
Mr. Lindley served in the National City Police Department in 
San Diego County and at the California Department of Justice. 
He has 27 years of law enforcement experience.
    I thank all of the witnesses for being here today. Each 
Senator will have 5 minutes, after you have 5 minutes for an 
opening statement. Could each of the witnesses please stand at 
this moment to be sworn in?
    [Witnesses are sworn in.]
    Chair Durbin. Let the record reflect that the witnesses 
have answered in the affirmative, and we will recognize you in 
the seating arrangement that you've chosen. Ms. Glenn, you're 
first.

STATEMENT OF RUTH M. GLENN, PRESIDENT, PUBLIC AFFAIRS, NATIONAL 
   COALITION AGAINST DOMESTIC VIOLENCE AND NATIONAL DOMESTIC 
               VIOLENCE HOTLINE, DENVER, COLORADO

    Ms. Glenn. Good morning, Chair Durbin, Ranking Member 
Graham, and distinguished Members of the Senate Judiciary 
Committee. I thank you for the opportunity to testify before 
you today on a critical issue, the impact of the Supreme 
Court's decision in New York State Rifle & Pistol Association 
v. Bruen on victims and survivors of domestic violence.
    As was stated, my name is Ruth Glenn. I am currently the 
public affairs president for the National Coalition Against 
Domestic Violence and the National Domestic Violence Hotline. 
I'm going to take my time to share with you why I do what I do, 
why it is important to speak to this issue, and how I hope to 
enable further understanding of the particular concerns for 
victims, survivors, advocates, and those that care for them 
when there is access to firearms by abusive intimate partners.
    There was always a gun present during my 13 years of 
marriage. It was used as a tool to frighten me and control me. 
In one instance, when my son was 14 years old and he was 
struggling at school, my then-husband aimed the gun at me, 
looked at our son, and said, ``If you bring one more F in this 
house, I will kill your mother.'' I was so traumatized and 
terrified, I could hardly think. My experience was and is far 
from unusual. About 14 percent of women and almost 6 percent of 
men in the U.S. experience firearm threats from an abusive 
intimate partner; 43 percent of those women who have been 
injured by a firearm include being shot, pistol whipped, or 
sexually assaulted.
    I wish I could share with you that that was the extent of 
my experience, but it was not. I am fortunate to be among that 
43 percent--fortunate because I was almost another statistic, 
one of the people murdered every 7 hours by an intimate 
partner, mostly with firearms. An abusive male partner's access 
to firearm increases the risk of intimate partner femicide 
fivefold.
    A gunshot is the most awful sound. The smell is even worse, 
especially up close. I remember those two blasts, each one 
distinctly. The first went under my scalp. The other skipped 
off my forehead. When a bullet hits you, you feel a stinging 
sensation, distinctly metallic, like being burned or getting an 
electric shock. I thought, ``This can't be happening,'' and 
then he shot me again in the arm. He drove away and left me for 
dead.
    This was pre-1994, when Congress passed the law prohibiting 
respondents to final protective orders from possessing 
firearms. I did not have the benefit of legal protections that 
are now afforded to survivors with protection orders almost 
everywhere in the United States. I say, ``almost everywhere,'' 
because those protections are being eroded by courts confused 
by the Supreme Court's ruling in Bruen.
    Bruen threw out the post-Heller, two-part test that courts 
were using to assess the constitutionality of firearms laws and 
now requires courts to rule solely based on the historical 
tradition. To be blunt, the historical tradition, when it comes 
to women, in particular, includes burning women at the stake as 
witches, permitting and even encouraging physical chastisement 
of wives--in other words, domestic violence--and turning a 
blind eye to rape and other forms of gender-based violence.
    Post-Bruen courts across the country have looked at the 
Federal laws disarming adjudicated abusive partners and have 
come to dramatically different conclusions. While most courts 
that have considered the protective order prohibitor have 
upheld it, a three-judge panel of the Fifth Circuit Court of 
Appeals found it unconstitutional in United States v. Rahimi. 
The legal implications of this ruling are limited, as it 
applies only to Texas, Louisiana, and Mississippi, and it does 
not apply to State laws, and it does not apply to the relief 
written directly into protective orders. But it is important to 
realize the confusion and concern that has resulted from the 
ruling.
    It is also important to note that the National Domestic 
Violence Hotline contacts mentioning firearms in Texas, 
Louisiana, and Mississippi between February 2nd, when Rahimi 
was released, and March 9th increased by 56.6 percent compared 
to the same time period last year. Given the general confusion, 
many respondents to final protective orders erroneously believe 
they are allowed to have firearms, and survivors may believe 
they can no longer rely on the courts for protection from 
abusive partners with firearms. The lack of historical laws 
restricting firearms access by domestic abusers is not evidence 
that such laws are unconstitutional. Rather, it is a reflection 
of the legally subordinate status and general disregard for the 
rights and needs of women in early America.
    Ultimately, we expect Federal and State laws restricting 
firearm possession by adjudicated abusive intimate partners to 
be upheld. However, in the interim, some abusive intimate 
partners will legally access firearms they were previously 
forbidden from possessing, and some will use those firearms to 
terrorize or even kill their victims and others. The 
uncertainty created by Bruen has placed victims and their 
children in fear of their lives and created yet another barrier 
to safety. Thank you again for the opportunity to testify 
today, and I look forward to answering your questions.
    [The prepared statement of Ms. Glenn appears as a 
submission for the record.]
    Chair Durbin. Thanks, Ms. Glenn. Ms. Swearer?

STATEMENT OF AMY SWEARER, SENIOR LEGAL FELLOW, EDWIN MEESE III 
  CENTER FOR LEGAL AND JUDICIAL STUDIES, HERITAGE FOUNDATION, 
                         WASHINGTON, DC

    Ms. Swearer. Chairman Durbin, Ranking Member Graham, and 
distinguished Senators, last June, in Bruen, the Supreme Court 
affirmed that ordinary law-abiding Americans have a right to 
bear guns in public for self-defense. It struck down New York's 
restrictive public carry framework, which required applicants 
to prove they had a, quote, ``proper cause'' to exercise their 
constitutional rights outside the home, a burden that was 
usually insurmountable.
    Additionally, Bruen rejected lower courts' use of a 
heightened scrutiny approach, an approach that they, not 
Heller, created. And that, in practice, allowed many courts to 
never meet a gun law that they couldn't find perfectly 
constitutional. Instead, under Bruen, judges must assess 
whether the challenged restriction is consistent with the 
Nation's historical tradition of firearms regulation.
    After Bruen, some pundits and politicians immediately 
responded with hysterical fearmongering about its potentially 
devastating public safety consequences. Even today, the title 
of this hearing presupposes, albeit with fewer theatrics, that 
Bruen is a thing from which the public must be protected. This 
is simply not true. Bruen's immediate impact on public safety 
is positive.
    For too long, States like New York told millions of 
citizens that their right to armed self-defense ended the 
moment they left their homes. Lawful gun owners are not the 
driving force behind criminal gun violence, and this is 
particularly true of concealed-carry permitholders. At the same 
time, as I outline in much greater detail in my written 
submission, they play a significant but underappreciated role 
in crime prevention and crime interruption.
    Yes, good-faith applications of Bruen will likely result in 
some favored gun control laws being struck down. To the extent 
that Bruen threatens certain laws, however, these are generally 
laws that weren't very good at protecting the public in the 
first place. And, at the same time, it's undeniable that Bruen 
does not threaten many of the laws that are most effective at 
protecting the public. But in recent months, as some post-Bruen 
challenges have succeeded in lower courts, the opinions and 
reasonings therein have been grossly mischaracterized in the 
same way we saw after Bruen.
    I cover this handful of successful and still largely 
ongoing challenges in more depth in my written submission, but 
the recent Fifth Circuit decision in U.S. v. Rahimi is worth 
highlighting. As others have noted, the panel struck down a 
Federal statute prohibiting gun possession for individuals 
subjected to certain domestic violence civil restraining 
orders, and the opinion has been widely--and wrongly--denounced 
as in some respects giving domestic violence abusers a license 
to kill and essentially preventing the Government from doing 
anything at all about it.
    But let's review the facts underlying that case. The 
defendant there, Mr. Rahimi, is a despicable cretin that no 
sane, sober, moral, or prudent person truly believes should own 
guns. He violently assaulted his girlfriend, threatened to kill 
her, and shot at a bystander who witnessed the assault. The 
Government quite properly charged him with several crimes, but 
then it released him, apparently believing that a civil 
restraining order instead of pretrial detention was the best 
way of dealing with this violent individual.
    Predictably, Mr. Rahimi soon thought, ``To hell with your 
restraining order,'' and committed aggravated assault with a 
deadly weapon against a different woman, using a gun that he 
wasn't legally allowed to own but obtained anyway. The 
Government appears to have protected the public by releasing 
him again. And, once again, Mr. Rahimi ignored the restraining 
order and its prohibition, on his way to ignoring a lot of 
other gun laws about not shooting people. In a 2-month span, he 
shot at a guy he sold drugs to. He shot at a constable. He shot 
at the driver of a car crash he caused, fled the scene, 
returned in a different car and shot at him again. And then, 
for good measure, fired a couple of rounds into the ceiling of 
a Whataburger restaurant.
    Let's assume, for the sake of argument, that the Fifth 
Circuit's interpretation of Bruen is correct, and the 
Government can't charge Mr. Rahimi for violating his domestic 
violence restraining order because this is historically an 
inappropriate method by which to disarm people. Anyone who 
insists that this result somehow dramatically endangers the 
public either didn't read the case in good faith, does not 
understand the criminal justice system, or is very comfortable 
lying to your face.
    As the judges noted at length in that opinion, the 
Government could have, completely consistent with Bruen, held 
Rahimi for pretrial detention after either time that he 
violently assaulted someone. It could have disarmed him as a 
condition of his pretrial release, a condition which he likely 
would have ignored as flippantly as he did his retraining 
order, but at least it would've been constitutional under 
Bruen. It can prosecute and convict him for at least a dozen 
serious crimes and incarcerate him for a very long time. If and 
when Mr. Rahimi is ever released from prison, every post-Bruen 
court agrees--and Bruen itself indicates--that the Government 
can continue prohibiting him from owning guns in perpetuity as 
a violent felon.
    Senators, do you see the problem here? It's not Bruen that 
will--as some critics have stated--get women killed. Both 
before and after Bruen, it's terrible criminal justice policies 
that get women killed. To any extent that Bruen limits the 
Government's public safety options, it does so in a way that 
forces the Government to use the far more effective tools 
already at its disposal to protect us from violent offenders.
    We are told all the time to respect the rights and needs of 
victims, as we should. We should respect them by detaining, 
arresting, and criminally prosecuting the men who harm them--
and believe in them enough to allow them to defend themselves 
from these violent offenders when the Government won't. I look 
forward to your questions.
    [The prepared statement of Ms. Swearer appears as a 
submission for the record.]
    Chair Durbin. Thank you, Ms. Swearer. Professor Ruben?

 STATEMENT OF ERIC RUBEN, ASSISTANT PROFESSOR OF LAW, SOUTHERN 
    METHODIST UNIVERSITY DEDMAN SCHOOL OF LAW, DALLAS, TEXAS

    Professor Ruben. Chairman Durbin, Ranking Member Graham, 
and Members of the Committee, thank you for inviting me to 
testify. My name is Eric Ruben. I'm a professor of law at SMU 
Dedman School of Law. Today I'm testifying in my personal 
capacity.
    This Committee is considering how to protect public safety 
after the Supreme Court's decision in Bruen, so it is important 
to understand what that decision did and the challenges that it 
presents for the lower courts. You just heard one view on Bruen 
and its aftermath. I've read the opinions, and I'm going to 
provide a different view. I will make four points.
    First, Bruen abandoned a mode of reasoning used for almost 
every other right and inserted a new test for evaluating the 
constitutionality of modern laws addressing modern guns and 
modern problems. In particular, Bruen held that in cases where 
the Second Amendment's text applies, courts must assess whether 
or not a modern restriction is consistent with this country's 
history and tradition. And to do that, the Bruen majority said 
that the Government has to point to analogous regulations from 
the late 1700s or perhaps the 1800s. Litigants in courts, the 
Court said, are to compare how and why modern and historical 
gun laws burden armed self-defense. This is a novel approach. 
It's different than the one that courts were using before the 
Bruen decision came down, and, in fact, it's different from how 
the Court itself usually evaluates constitutional rights 
questions.
    The second point that I'd like to make is that Bruen has 
introduced a substantial amount of uncertainty for Second 
Amendment doctrine with this new test. The lower courts have 
struggled to apply Bruen to modern laws such as those 
regulating 3D-printed guns, large-capacity magazines, or gun 
possession by domestic abusers. Bruen purported to constrain 
judicial decisionmaking through a test of historical analogy, 
but the post-Bruen caselaw highlights the risk that, in fact, 
Bruen has enabled judicial subjectivity and unpredictability. 
In different cases dealing with the same laws--or even within 
the same case dealing with a law--courts have pointed in 
opposite directions about what the Second Amendment means.
    Third, as the issue of keeping guns out of the hands of 
domestic abusers show, courts are struggling with how to 
compare modern laws to historical ones in light of the immense 
changes between the past and the present. What meaningful 
historical comparator can there be for the modern prohibition 
on guns in airplane cabins? Or on automatic weapons? Perhaps 
more fundamentally, what about modern laws that reflect broader 
social change, like prohibitions on gun possession by domestic 
abusers?
    The domestic-violence-focused gun laws highlight the 
challenge of basing today's constitutional decisionmaking on 
the legislative priorities of the distant past. The Fifth 
Circuit, in the recent Rahimi case, applied Bruen to strike 
down the prohibition on gun possession by people subject to 
domestic violence restraining orders. The Court said that the 
record did not contain comparable gun laws from the framing 
era.
    But, of course, there were not robust protections for the 
victims of domestic violence back in the framing era. 
Policymakers back then did not view women as the political or 
legal equals to men, and they did not prioritize protecting the 
victims of domestic violence through legislation. In fact, 
rather than focusing on protecting domestic violence victims, 
historically the law protected the husband's legal prerogative 
to inflict marital chastisement. But it would be absurd to 
think that the Constitution today condemns us to that same 
view.
    Fourth, and finally, despite the initial disruption that 
it's caused, Bruen does not mean the end of reasonable gun 
policy. We have a long tradition of gun regulation in this 
country, and the Justices in the Bruen majority said that, 
properly interpreted, the Second Amendment still allows for a 
variety of gun regulation. The major challenge after Bruen is 
how to compare historical gun laws to modern ones in light of 
changed circumstances. The Rahimi court, for example, 
recognized that historical laws disarmed various groups of 
people viewed to be dangerous, but it then construed those 
historical laws narrowly and concluded that they could not 
serve as analogues for the modern laws regulating gun 
possession by those subject to domestic violence restraining 
orders.
    But other courts have taken a different message from those 
same historical gun laws. In a case called Kanter v. Barr, 
then-Judge Amy Coney Barrett looked at the same laws that were 
considered by the Rahimi court, but she reached a different 
conclusion about their meaning. She wrote, quote, ``History is 
consistent with common sense. It demonstrates that legislatures 
have the power to prohibit dangerous people from possessing 
guns,'' end quote. The central challenge for the Second 
Amendment today is ensuring that history and common sense do 
not part ways. Thank you for the opportunity to testify, and I 
look forward to your questions.
    [The prepared statement of Professor Ruben appears as a 
submission for the record.]
    Chair Durbin. Thank you, Professor. Mr. Mangual?

 STATEMENT OF RAFAEL MANGUAL, NICK OHNELL FELLOW, AND HEAD OF 
  RESEARCH, POLICING AND PUBLIC SAFETY INITIATIVE, MANHATTAN 
                 INSTITUTE, NEW YORK, NEW YORK

    Mr. Mangual. Good morning, Chairman Durbin, Ranking Member 
Graham, and Members of the Committee. I'd like to begin by 
thanking you all for extending to me another invitation to 
testify before this body on what is perhaps the single most 
important policy issue of our time, public safety, especially 
gun violence.
    My overarching point this morning is straightforward. When 
it comes to the important issue of public safety, our most 
pressing problem is not the possibility that more law-abiding 
citizens will now be able to carry firearms for self-defense in 
the small handful of States that didn't already allow them to 
do so prior to Bruen. It's that, in so many parts of the 
country, legislative and administrative policy choices have 
exacerbated the risks associated with failing to arrest, 
prosecute, and meaningfully incapacitate high-risk, high-rate 
criminal offenders.
    As such, the focus of policymakers hoping to stem the tide 
of resurgent violent crime should be on identifying and 
plugging the holes created or made larger by recent depolicing 
and decarceration efforts. Failing to do so will inevitably 
lead to tragedy, as it has in so many cases already--one of 
those cases the shooting death of Keaira Hudson Bennefield in 
upstate New York last year.
    The 40-year-old mother was taking her kids to school when 
police and prosecutors allege she was fatally shot in the head 
by her husband. Her husband was released on his own 
recognizance the day before the shooting. That release came 
after being charged with savagely beating Keaira Hudson, an 
assault that was captured by a home security camera and shared 
with the authorities. And the release occurred despite the 
defendant having been paroled in 2015 after serving time for 
the armed kidnapping of an ex-girlfriend and escaping from a 
correctional facility.
    New York's bail laws required release and prohibited the 
judge from considering the danger that this man posed to his 
wife or the community. Perhaps the most tragic part of this 
story is that Keaira was so certain about the risk that she 
faced that she was reportedly wearing a bulletproof vest at the 
time she was killed. Instead of the safety that she needed, all 
the court would offer Hudson Bennefield was a piece of paper 
containing an order of protection.
    Unfortunately, data from multiple sources suggest that when 
it comes to domestic violence, shootings, homicides, stories 
like the one I just told, are all too common. A report 
published by the Indiana Criminal Justice Institute reported 
that the 3,036 individuals convicted of domestic violence in 
2017 had a combined total of 15,396 prior arrests. A study done 
by the University of Chicago Crime Lab found that, on average, 
those arrested for a shooting or homicide in that city in 2015 
and 2016 had 12 prior arrests. Nearly 1 in 5 had more than 20. 
This measure is in line with recent remarks from Washington, 
DC, Metro Police Chief Robert Contee, who told members of the 
media earlier this month that, quote, ``The average homicide 
suspect has been arrested 11 times prior to them committing a 
homicide.''
    What all of this tells us is that the laws that we have on 
the books regarding firearms restrictions--or any other 
criminal law, for that matter--are no good to us unless we have 
the wherewithal to see to it that those who violate the rules 
are held to account in a way that actually protects public 
safety. And this is where the focus of policymakers should lie. 
We must be seeking to find and, where necessary, create 
opportunities to maximize the incapacitation benefits that 
attend the incarceration of bad actors.
    Actively supporting efforts to cut down on those 
incapacitation benefits is simply incongruous with calls for 
more gun rights restrictions as a means to pursue public safety 
gains, and yet cutting down on incapacitation is precisely what 
recent criminal justice reforms have achieved over the last 
decade plus. And these reforms individually and collectively 
have reduced the likelihood of arrest, prosecution, and/or 
incarceration for many criminal offenders, as evidenced by the 
24-percent decline in the Nation's prison population and 15-
percent decline in the Nation's jail population between 2010 
and 2021, as well as a 25-percent decline in arrests between 
2009 and 2019.
    None of that makes us safer, especially not those stuck 
living in the small slices of the country where crime 
concentrates. The downside risk associated with the push for 
decarceration and depolicing will be borne disproportionately 
by the very same people living in the pockets of concentrated 
gun violence. And this was made crystal clear by a study 
published last year and reported on by The Wall Street Journal, 
showing that the 2021 firearm homicide victimization rate 
approached 60 per 100,000 for Black men, reaching its early 
1990s peak, which is almost double what it was just 10 years 
ago. The white male rate stood in the single digits.
    America's gun violence problem has gotten significantly 
worse in recent years, and that should concern us all. The 
reversal of the progress made over the 1990s and early aughts 
has hit a very small slice of America in a very big way. Now, 
I'm encouraged by this Committee's desire to engage with this 
problem, but I urge its Members to consider that the policies 
most urgently in need of change are those that have lowered the 
transaction costs of committing crime or raised the transaction 
costs of enforcing the law. At the end of the day, rules 
without the means or will to enforce them are little more than 
empty threats. And for those stuck living in America's most 
dangerous neighborhoods, they're broken promises, to boot. 
Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Mangual appears as a 
submission for the record.]
    Chair Durbin. Thank you, Mr. Mangual. Mr. Lindley?

STATEMENT OF STEPHEN LINDLEY, PROGRAM MANAGER, COMBATING CRIME 
        GUNS INITIATIVE, BRADY, LOS ANGELES, CALIFORNIA

    Mr. Lindley. Chairman Durbin, Ranking Member Graham, and 
distinguished Members of the Committee, thank you for the 
opportunity to testify before you today. My name is Steve 
Lindley. I've spent my career in the service of public safety. 
For nearly three decades, it's been my honor to serve in law 
enforcement, starting as a cadet, working my way up to a 
detective, sergeant, and then a special agent. I made it to the 
upper ranks of the California Department of Justice. I spent 
nearly a decade as the chief of the Bureau of Firearms.
    Today, I work at the Combating Crime Guns Initiative at 
Brady, one of the Nation's oldest gun violence prevention 
organizations. I serve as a senior technical advisor on firearm 
issues, California gun laws, and the source of diversion of 
trafficked firearms.
    California was a very different place when I joined the 
police force in 1990. At the National City Police Department, 
we responded to shootings every night. Everyone on the streets 
had a gun, and by 1993, California had a firearm homicide rate 
that was 46 percent higher than the national average. Our 
streets were awash with guns and victims, and every day, my 
colleagues and I put our badges and our vests on and hoped for 
the best.
    Almost every cop has a moment when gun violence really hits 
home. For me, it was in 1992 when I held a 16-year-old boy and 
watched the life drain from his eyes. He'd gotten into a fight 
over a girl, a fight that happens every day in our country, 
sometimes hundreds of times, except during this fight, one of 
the kids had a gun. What should have ended with a bruised ego 
and maybe a black eye ended with that boy coughing up blood all 
over me. He asked if he was going to die, and I wish I could've 
told him he was going to be okay.
    I wish my story was unique, but it represents a bigger 
problem that requires more than thoughts and prayers. Between 
1989 and 1991, California took its initial steps to address gun 
violence, passing an early assault weapons ban, comprehensive 
background checks, and prohibitions for violent offenders. 
Nationally, there was also a reckoning on gun violence, with 
Congress passing the Brady background check bill and assault 
weapons ban. California built on these laws, establishing a 
reasonable framework of gun laws, and it worked.
    In the last three decades, our firearm homicide rate was 
cut in half. Today, California remains the biggest State, with 
many of the country's largest cities, but our gun death rate is 
36 percent lower than the national average and the 7th lowest 
in the country. It could've been much lower, but the most 
recent statistics from ATF shows that tens of thousands of guns 
traced to crime in California come from other States.
    Needless to say, we also share the national burden of mass 
shootings, most recently Monterey Park and Half Moon Bay. 
However, our laws, especially around assault weapons, make it 
much more harder for mass shooters to access the most deadly 
firearms. Californians are 25 percent less likely to die from a 
mass shooting than people in other States.
    We have some of the strongest gun laws in the country, and 
they're working. But rest assured the Second Amendment is alive 
and well in California. We have more civilian-owned firearms 
than most other States, more than a quarter of Californians 
live in a gun-owning home, and Californians purchased almost a 
million firearms last year.
    This past summer, the Supreme Court upended California's 
longstanding framework with the opinion in Bruen, and today 
California's assault weapons ban, high-capacity magazine ban, 
age restrictions, and ammunition background checks are all at 
risk. Federal laws are also at risk, including those passed by 
this body last year. In courts across the country, we're seeing 
confusion and activism in applying the new Bruen standards. 
States are being forced to reconsider every law as if it was 
written in 1791, when muzzle-loaded muskets and pistols were 
the only firearms available to the public.
    Evidence shows that laws protect public safety while 
representing Second Amendment rights. I'm neither a lawyer or a 
historian, but what I can tell you after nearly 30 years in law 
enforcement is that if gun safety laws continue to be struck 
down, it will be harder for law enforcement to protect public 
safety, and it will make their jobs far more dangerous.
    After nearly three decades in law enforcement, I can also 
say that we cannot incarcerate our way out of this problem. We 
tried that, and it didn't work. While we all agree we need to 
enforce the law, we do not devote enough attention to the 
upstream source of guns being trafficked into our communities. 
Guns do not grow on trees, and they do not magically appear on 
our streets.
    In addition to my work at Brady, I'm also a high school 
teacher. My students worry about a million different things 
these days. Near the top of that list: Are they going to be 
shot on the way to school or while at their desks? As I watch 
over my students, I am constantly reminded of that 16-year-old 
kid who died in my arms, a kid who, today, could be in my 
class. He lost everything he was and everything he could've 
been. I look at my students, and I wonder if I will lose one of 
them.
    Will one of them lose their future to senseless gun 
violence? Will my daughter? That's a question that terrifies me 
every day, a question millions of parents ask themselves every 
day. Thoughts and prayers are not enough. Action is needed. 
Thank you for the time today, and I look forward to your 
questions.
    [The prepared statement of Mr. Lindley appears as a 
submission for the record.]
    Chair Durbin. Thank you, Mr. Lindley. We'll start the 
questioning. I want to thank you, personally--27 years in law 
enforcement--and I want to thank all the men and women in law 
enforcement. We know that they are under close scrutiny and 
living lives which subject them to dangerous situations on a 
daily basis, to protect us, our neighborhoods, and our homes.
    But let me ask you this, point blank. We're in mourning in 
Chicago because 2 weeks ago today an officer responded to a 
domestic violence incident, came across a man with a gun, 
chased that man, who turned on him and killed him in a 
playground of a school in Chicago while the children around 
were cringing in fear. How often do domestic violence 
incidents--have you run into domestic violence incidents in 
your practice of law enforcement?
    Mr. Lindley. Thank you for the question. Law enforcement is 
one of the most difficult jobs I think we have in this Nation. 
We ask a lot of our officers, day in and day out. And one of 
the most unpredictable situations that they're called to deal 
with is domestic violence. They're going into a charged, 
emotionally charged situation, not knowing what the basis of it 
is, into a situation that may have taken years to come about. 
Also, you look at the different type of weapons inside the 
house. You have firearms, you have bats, you have knives, you 
have frying pans. It is a very difficult situation, and lots of 
injuries to law enforcement and injuries to the public come 
about from domestic violence situations.
    Chair Durbin. So one of the witnesses here says, ``Well, 
it's okay. Rahimi--if you accept it, that that person would 
have a gun, they'll probably break some other law that they can 
be prosecuted.'' Does the gun--presence of a firearm in a 
domestic violence dispute make it more dangerous for the 
police?
    Mr. Lindley. Absolutely. Firearms in the house when law 
enforcement is there in an emotionally charged situation--you 
know, unless the situation is completely controlled, which is 
difficult for law enforcement to do these days--makes it very 
dangerous for them.
    Chair Durbin. Professor Ruben, let's follow what the Court 
has decided and see if you can help me understand it a little 
better. They've decided that they can't find--in Rahimi, 
they've decided they couldn't find an analogy to removing a 
firearm from a person who was under a domestic violence 
protective order. And so, as a consequence, they struck down 
the applicable law in that situation.
    And yet, when it comes to the firearms themselves, they 
don't go back to 1791 and ask the obvious question, ``What did 
the Founding Fathers have in mind when they used the word 
`arms' ''? They seem to have expanded it to almost anything. I 
used the example before--at Highland Park, at a Fourth of July 
parade, with a man on the roof of a building firing off 83 
rounds in 60 seconds, killing 7 people, injuring dozens of 
others. There wasn't even a weapon imaginable in 1791 that 
could do that. How do they make that leap when it comes to 
arms, to include that type of an assault weapon?
    Professor Ruben. Thank you, Senator. So this is one of the 
challenges and the questions that comes up after Bruen, is how 
can we make sense of our historical gun laws in light of the 
vast changes, including gun technology and also in terms of our 
moral sensibilities? We had blinkered moral sensibilities when 
it came to gendered violence back in 1791. And one of the 
points that I flesh out a bit in my written testimony is that, 
if we're going to be approaching what counts as an arm at a 
high level of generality and allow that to evolve with the 
times, then we certainly need to find ways to likewise allow 
our regulatory frameworks to evolve, as well, to deal with 
modern problems today.
    Chair Durbin. Ms. Glenn, you have a personal experience 
with this, which is chilling to think what you went through, as 
a victim of domestic violence. What do you think about the 
argument that someone with a gun in a domestic violence episode 
is likely to break some other law that they can be prosecuted 
for, and that's good enough?
    Ms. Glenn. Thank you so much for the question. It certainly 
is not good enough. Without understanding the dynamics of 
domestic violence and when there is a domestic violence 
situation in which an abuser has a firearm and the escalation 
that occurs--and if you don't understand the dynamics of 
domestic violence--sometimes that's all that's present, is the 
domestic violence situation. Waiting for prosecution or 
charging in that particular instance is unreasonable. 
Protective orders are built to help the victim provide 
themselves with protection. Removing the firearm is also that 
part of ensuring that safety and that they can be safe.
    Chair Durbin. Thank you. Senator Graham.
    Senator Graham. Thank you. Ms. Swearer, let's revisit--is 
it the Rahimi case? Is that the right name?
    Ms. Swearer. Yes, sir, I believe so.
    Senator Graham. Okay. Let's see what is the most compelling 
thing to learn from that case. How many times was this 
gentleman involved with shooting at people?
    Ms. Swearer. I'm not sure, in total, but it seems like at 
least six or seven.
    Senator Graham. Okay. And he was released based on what 
charge? He was facing a charge and released?
    Ms. Swearer. The first time, he was facing at least one 
felony domestic violence charge and two others. I'm not sure 
whether they were misdemeanors or felonies under Texas law.
    Senator Graham. Okay. Is it pretty fair to say that this 
guy should not have been out on the streets?
    Ms. Swearer. Absolutely not. He was very clearly a danger 
to both specific individuals and the public at large.
    Senator Graham. Mr. Mangual, is this a common problem, 
where our criminal justice system has a revolving door when it 
comes to people who are exhibiting violent behavior?
    Mr. Mangual. It most certainly is a common problem and one 
that is a longstanding problem, as well. I mean, one of the 
statistics I didn't get a chance to get to was that between 
1990 and 2002, the Bureau of Justice Statistics reported that 
over a third of individuals convicted of violent felonies were 
either out on probation, parole, or pretrial release at the 
time of those offenses. As our criminal justice system has 
gotten softer, that problem's only gotten bigger.
    Senator Graham. So when you look at what America's facing, 
would you agree with me the best thing we could do as a nation 
is to make sure that our parole laws and our attitude toward 
violent criminals is changed so that they are not out hurting 
people? They stay in jail?
    Mr. Mangual. I think that's exactly right. I mean, one of 
the biggest challenges that we currently face, as evidenced by 
the data on the role that repeat offenders play in serious gun 
violence, is that we are systematically failing to draw and 
enforce a line as to how much repeated criminal conduct we are 
willing to accept and tolerate.
    Senator Graham. Well, if your proposition is true, America 
would be responding in a certain way. Do you realize, Ms. 
Swearer, that from 1991 to 2019, the number of guns in America 
owned--number of weapons owned by Americans has doubled?
    Ms. Swearer. I am aware of that. Yes, Senator.
    Senator Graham. Are you aware of the fact that the number 
of concealed-carry permits have increased by sevenfold?
    Ms. Swearer. I know it has increased exponentially. I will 
take you at your word that it's roughly sevenfold.
    Senator Graham. Are you aware that, between 2019 and 2020, 
58-percent increase in gun purchases by African Americans, 43-
percent increase by Asians, 46 increase in purchases by Latino 
Americans, 40 percent of those purchases were made by first-
time gun buyers? Are you aware that, from 2005 to 2020, a 77-
percent increase in gun ownership by women and that from 2019 
to 2020, a majority of people buying guns were women? Are you 
aware of all that?
    Ms. Swearer. Yes, Senator, I am.
    Senator Graham. Why do you think that's going on?
    Ms. Swearer. It's because there are a lot of Americans, 
specifically, as you mentioned, women and ethnic minorities, 
who, a lot of them, for the first time in their lives, 
beginning in the last couple of years, looked around at the 
state of reality in this country, with sort of widespread 
issues with policing, with----
    Senator Graham. Well, let's just stop there for a moment. 
Mr. Lindley, you've been a police officer. Thank you for your 
service. How's morale among police in America, generally 
speaking?
    Mr. Lindley. Thank you for the question, Senator. I think 
overall, morale is decreasing.
    Senator Graham. Yes. And there are probably a lot of 
reasons for that, but it's harder to get people into law 
enforcement now, and I'd like to work with people to try to 
change that. Mr. Ruben, do you agree with the Heller decision 
that interpreted the Second Amendment to be an individual 
right? Was that a good legal decision?
    Professor Ruben. Yes, sir.
    Senator Graham. You do?
    Professor Ruben. Yes.
    Senator Graham. Thank you. Ms. Glenn, your experience was 
terrible. Your husband, former husband, had been charged with 
armed robbery. Had he been convicted of armed robbery, or--I 
don't know my--make sure I got----
    Ms. Glenn. Yes, many years before the incident. Yes.
    Senator Graham. Okay. And he had actually been charged with 
kidnapping you, too----
    Ms. Glenn. Yes.
    Senator Graham [continuing]. Before the shooting?
    Ms. Glenn. Months before the incident.
    Senator Graham. Yes. So, I guess, here's my point. Senator 
Cornyn has shown the way to work on responsible gun ownership 
limitations. I don't think there's anything in this case that 
says common sense doesn't prevail. But this Bruen case and 
Heller case are important, in my view. Mr. Chairman, it 
reinforces the idea that the Second Amendment is there for 
individuals and that individuals have a right to defend 
themselves in a responsible way even outside their home.
    So what I would hope this Committee could do is end, to the 
extent possible, the revolving-door policies that allow people, 
time and time again, to come back out on the streets, hurt 
their fellow citizens. In this situation, I would just add, in 
conclusion, the reason so many people are buying guns is 
because they've lost faith in their government to protect them.
    Chair Durbin. Thank you, Senator Graham. Senator 
Whitehouse.
    Senator Whitehouse. Thank you, Chairman. Thank you to the 
witnesses for being here. Professor Ruben, the history and 
tradition of factfinding in the American judicial system is 
that it's done at the trial court level, and where the rare 
successful challenge to the very tough, ``clearly erroneous'' 
standard is made on appeal, then an ordinary way to resolve 
that is to send the case back to the district court for 
factfinding, where factfinding belongs.
    I've had a hearing in my Courts Subcommittee on this 
Supreme Court's recent penchant for appellate factfinding. Some 
of the prominent cases have been Shelby County, where they made 
the finding that nobody had anything to worry about from the 
freed legislatures, that conditions had changed, and then, of 
course, immediately you saw a case come up in which Federal 
judges said, ``This is targeted with surgical precision at 
minority voters,'' completely discrediting the spontaneous 
factfinding by the Court.
    Citizens United was another one. They said, ``Don't worry 
about it. All the unlimited spending we're going to unleash is 
going to be independent of candidates, and it's going to be 
transparent.'' And a couple of billion dollars of dark money, 
nontransparent funding later, we know perfectly well that that 
factfinding was false. So this seems to be an increasing trend, 
and I noticed in the Bruen case there was a lot of factfinding 
done in the context of defining what the true history and 
tradition were.
    A lot of historians took a look at that and said, ``That is 
junk history. That is not real.'' It had not come up through 
any kind of an adversarial process. It was not tested in the 
different layers of review. It was just made up by the Supreme 
Court Justices. Could you talk a little bit about the dangers 
of appellate factfinding in terms of how it permits ambitious 
and activist courts to run a bit wild if they're not 
constrained any longer to facts as found through the 
traditional history and tradition of judicial factfinding in 
lower courts and through adversarial process?
    Professor Ruben. Thank you, Senator. So Bruen has 
transformed the way that litigation looks, transformed from 
before Bruen was decided, when a more conventional approach 
applied. Now, one of the things that we're seeing is that 
historians are getting retained by the parties. In fact, courts 
themselves are asking litigants whether or not they should 
retain their own independent historian, to help them parse the 
historical facts.
    And one of the challenges that comes up, as you mention, is 
what happens on appeal, especially if a court on appeal is 
doing historical factfinding that subsequently is determined to 
be erroneous. Are lower courts then bound by that erroneous 
historical determination, when ordinarily there would be a 
route to appeal and challenge it? So this is transforming the 
way that litigation is looking.
    Senator Whitehouse. I think it needs to transform a good 
deal, because if you have an appellate decision that stands on 
what events have proven to be utterly false facts, and the 
appellate court hasn't gone back and cleaned up its clear 
error, then it becomes incumbent on the lower courts to take a 
look at that and see if it really makes sense, because Marbury 
v. Madison says that it's the job of the Supreme Court to 
decide what the law is. It has no particular expertise with 
respect to the facts. In fact, it's probably the worst part of 
Government to make decisions about the facts, given the 
constraints on briefing and so forth. So thank you for that 
observation.
    The other thing that was notable about Bruen was that 12 
NRA-funded amici showed up, and the funding disclosures at the 
Supreme Court have been a continuing source of frustration. The 
Judicial Conference is now looking at that, and I hope they'll 
be putting out a report fairly soon. But what is the danger if 
other parties and the public and the judges don't have a true 
and accurate description of who is really behind an amicus 
group that shows up in court, particular as regards to 
coordination of multiple amici?
    Professor Ruben. Senator, I think that it's important to 
understand who is filing different briefs, just in terms of 
assessing whether or not there are any particular biases with 
the briefs that are getting filed.
    Senator Whitehouse. Motive matters, right? Thanks, 
Chairman.
    Chair Durbin. Thank you, Senator. Senator Grassley.
    Senator Grassley. Thank you, Mr. Chairman, and thanks to 
all the witnesses for being here to discuss this very important 
issue. I'm going to start with Mr. Mangual. Last year, I held a 
field hearing in Iowa for the Drug Caucus that I co-chair with 
Chairman Whitehouse. At that hearing, the Iowa Department of 
Public Safety commissioner said that 42 percent of the murders 
that occurred in Des Moines in the last 2 years had a tie to 
drug trafficking, so I'm interested in your view. On a national 
basis, how does drug trafficking factor into the increase that 
we've seen in violent crime?
    Mr. Mangual. Well, I think drug enforcement certainly can 
play an important role in the provision of public safety, and 
one of the main reasons for that is that there's a substantial 
overlap between people involved in the drug trade and people 
who are driving the serious kinds of gun violence that we're 
here to talk about today. One of the statistics that always 
comes to mind on this point is a statistic out of the City of 
Baltimore, which in 2018 reported that, of the about 118 
homicide suspects identified from the year 2017, 7 in 10 had at 
least one prior drug arrest in their criminal history.
    If you look at the recidivism data at the national level, 
the Bureau of Justice Statistics often reports on longitudinal 
analyses, looking at the rate of recidivism for people who are 
incarcerated primarily for drug offenses: 75 percent of them 
will be rearrested for at least one nondrug offense, and more 
than a third will be rearrested for a serious violent offense, 
specifically.
    And so, if you talk to law enforcement agencies, I think 
what they'll tell you is that they view drug enforcement as a 
way to pretextually attack violent crime. Taking that tool off 
the table and minimizing it, as has been done through criminal 
justice policymaking over the years, I think can be 
significantly detrimental to our overall strategy to reducing 
gun violence.
    Senator Grassley. Also, to what extent is the rise of 
violent crime connected with gangs or organized criminal 
activity?
    Mr. Mangual. Well, gangs significantly drive violent crime 
numbers, at least gun crime, in the sort of pockets of 
concentrated violence that I talked about in my testimony. If 
you look at places like the South and West Side of Chicago, for 
example, the Southwestern District of Baltimore, certain 
precincts in cities like Detroit and St. Louis, what you'll see 
is that gang members or crew members are significant drivers of 
the violence. That's true in my home City of New York, as well.
    Identifying those individuals and singling them out for 
prosecution can be an effective strategy. There's one study--
done by an individual named Aaron Chalfin, who's a criminology 
professor at the University of Pennsylvania--on precision 
policing in New York City. And what that study found was that 
gang-sweep prosecutions in New York City were responsible for a 
significant--I think almost 30 percent--reduction in shootings 
over the time period of the study, which shows that if you are 
able to target your law enforcement resources at the small 
number of actors and the tightknit social networks that drive 
gun violence, you can have an outsize impact on the safety 
picture.
    Senator Grassley. Yes. Last fall, the FBI released its 2021 
crime statistics. Those statistics showed that the number of 
murders increased, from 2020 to 2021, by 4\3/10\ percent. 
That's on top of the 29-percent increase, 2019 to 2020. So, do 
you, Mr. Mangual--that's a steep increase in violent crime, but 
isn't it true that the rates of violent crime have affected 
some communities more than others, and as an example, the 
African-American community?
    Mr. Mangual. That's exactly right. I mean, the homicide 
victimization rate for African-American males is about 10 times 
the rate for their white male counterparts. And, you know, in 
my home City of New York, the New York City Police Department 
has been keeping data on gun violence and gun violence 
victimization since at least 2008, in a systematic way, and 
every single year for which we have data, a minimum of 95 
percent of all shooting victims in that city are either Black 
or Latino, and I can assure you that Blacks and Latinos do not 
constitute anywhere close to 95 percent of New York City's 
population.
    You know, just to really hit the point home on the 
geographic concentration point, which I think is really 
important to understand, in any given city in America, 
somewhere around 5 percent of street segments will see about 50 
percent of all the violence. In my home City of New York, about 
3\1/2\ percent of street segments see 50 percent of all violent 
crime. About 40 percent of street segments don't see any 
violent crime whatsoever.
    I mean, just to really bring the point home, with an 
example out of the City of Chicago, the 10 most dangerous 
neighborhoods in that city in 2019 had a collective homicide 
rate of 61 per 100,000. Collectively, the population of those 
neighborhoods was, on average, 95 percent Black and Hispanic. 
If you take the 28 safest communities in that city that same 
year, the homicide rate was less than 2 per 100,000.
    So this is a problem that disproportionately affects some 
communities more than others, and we should keep that in mind. 
And it should also be a source of comfort to know that we don't 
have to take a dragnet approach to enforcement to do the job 
well. We can target our approach because data tell us very 
clearly that a small number of individuals drive this problem.
    Senator Grassley. Mr. Chairman, could I ask a very short 
question of Ms. Swearer?
    Chair Durbin. Of course.
    Senator Grassley. Yes. Can you tell us what the fastest-
growing group of gun owners in America is?
    Ms. Swearer. My understanding, Senator, is that that is 
specifically Black women.
    Senator Grassley. Okay. Thank you, Mr. Chairman.
    Chair Durbin. Let me add, since we're displaying our 
expertise on Chicago, that I know a little bit about that, and 
I would say poverty is an important overlay in this question, 
and it applies to Hispanic neighborhoods as well as Black 
neighborhoods. And I also think that if you're looking at the 
general population in the City of Chicago, you'll find that 
violent gun crime is now reaching beyond those areas into other 
neighborhoods because of social media and many other aspects. 
So there's a lot more to the story than what you just said. 
Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman. In 2020, Hawaii 
had the lowest gun death rates and the third-lowest rate of gun 
ownership in the entire country. Prior to Bruen, Hawaii police 
departments had only issued four licenses to carry in the past 
two decades. Following the Court's decision, however, police 
departments across all counties in Hawaii have begun issuing 
licenses. As of December 2022, Hawaii County has issued 89 
concealed gun licenses, and Maui County has issued 18. Between 
50,000 to 60,000 people are expected to apply for a concealed-
carry permit in upcoming years.
    State and local officials have expressed concerns that lax 
gun laws may lead to a rise in violent crime. Consequently, 
county police departments have implemented stronger 
requirements for applicants seeking licenses to carry. State 
and local legislators have also introduced gun safety measures, 
including an enacted law in Hawaii County designating sensitive 
places, such as churches, where firearms are prohibited. 
However, gun owners have stated their intent to challenge these 
gun legislations in court.
    In September 2022, the National Association for Gun Rights, 
NAGR, filed a lawsuit against the State of Hawaii, seeking to 
overturn the State's ban on assault pistols and large-capacity 
magazines. The NAGR is seeking to challenge the 
constitutionality of these laws under the Court's new framework 
in Bruen. The organization had filed six other lawsuits against 
States and cities with assault-rifle or large-capacity magazine 
bans.
    So a question for Mr. Lindley. Do you think that the 
concern over the thousands and thousands of applicants who will 
now apply for licenses in Hawaii--and that this could lead to a 
rise in violent crime? And is that a misplaced concern? Do you 
agree with the concern of law enforcements in Hawaii?
    Mr. Lindley. I do agree with those concerns, Senator. If 
you just looked at more guns equals safety, there's over 400 
million firearms in the United States. If that was the case, we 
should be the safest country in the world. So more guns is not 
the answer to safety.
    Senator Hirono. I agree with you. And the statistics I 
pointed to in Hawaii, where we have some of the strictest gun 
safety laws--and there is a cause and effect as to the use of 
guns in Hawaii in violent situations.
    Ms. Glenn, you have spent almost 30 years as an advocate 
for domestic violence victims and have testified today on the 
impact of Bruen on intimate partner violence. Just last month, 
the Fifth Circuit, in the first major case to apply Bruen, 
found that portion of the Violence Against Women Act that 
prohibited the possession of firearms by those subject to 
certain domestic violence restraining orders violated the 
Second Amendment. This kind of restriction was a commonsense 
kind of restriction on violent abusers. How will 
interpretations of Bruen like this one in the Fifth Circuit 
make it harder to protect victims and survivors of domestic 
violence?
    Ms. Glenn. Thank you so much for the question. I think we 
go back to my written testimony, which is, there has to be some 
type of protection that is allowed before the violence 
escalates. So having a protection order that says that I can 
have a firearm removed from the situation so that I am safer is 
very, very critical.
    Senator Hirono. Well, I'd say under Bruen maybe there's no 
historical basis for removal of a firearm in those kinds of 
circumstances. Professor Ruben, I really found it instructive 
that you said that this decision is transforming the way 
litigation is looking, and historians are being retained in 
cases. Justice Barrett, in Bruen, observed that the flaw of a 
historical approach to the Second Amendment and in the 
interpretation of the Constitution is that originalism is far 
from scientific. I would agree with that. And sadly, though, 
she went ahead and agreed with the majority opinion in that 
case.
    So I wanted to ask you, Professor Ruben. In the wake of 
Bruen, you examine New York's proposed legislation to require 
gun owners to have express permission from property owners to 
carry guns onto their private property, including homes, 
restaurants, offices, and entertainment venues. Do you think a 
law like that would withstand a Bruen challenge?
    Professor Ruben. So, Senator, that law is currently the 
subject of litigation, some adverse decisions currently on 
appeal. There's a fundamental right to keep and bear arms, but 
it's important to recognize that there's also a fundamental 
right to private property, and there's nothing in the 
Constitution that says that the right to keep and bear arms has 
to trump the private property rights of other people.
    And so, one of the things that that law in New York does is 
it switches the default. Private property owners always have 
the ability to exclude people who are carrying a gun if they 
don't want that person on there. All it does is it switches the 
default about who has to ask who about the private property 
owner's preferences.
    Senator Hirono. I applaud New York for their approach. And, 
by the way, you know, before Heller, which is a 2008 decision, 
there was no explicit, in my view, right for individuals to own 
guns and also to own whatever the guns they wanted. Heller is a 
2008 decision. How did we get along with the Second Amendment 
before then, I say? Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Hirono. Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. And I appreciate a 
legal seminar as much as anybody, but what I'd like to see--
whether we can get some agreement on some basic principles. 
First of all, Ms. Swearer, do you believe a law-abiding citizen 
is a threat to public safety because they exercise their Second 
Amendment rights to keep and bear arms?
    Ms. Swearer. Statistically, no, Senator. Law-abiding 
citizens are not a threat to public safety. They are 
overwhelmingly not responsible as a driving force behind 
criminal gun violence.
    Senator Cornyn. Well, one area that we're in this very--
what can be a controversial topic, where I think we've been 
able to find some consensus is on the importance of background 
checks to make sure that people who are prohibited under 
existing law from purchasing or possessing firearms--mainly, 
people with criminal convictions, people with mental health 
commitments, and the like--this has been one area where we have 
been able to find some consensus. A couple of years ago, we 
passed a bill called Fix NICS, which was after the Sutherland 
Springs shooting where the Air Force had failed to upload 
criminal convictions of the shooter into the NICS background 
check system.
    Several of us went recently to Clarksburg, West Virginia, 
to see how the FBI is conducting the background check system, 
and it is pretty impressive. More recently, as the Chairman 
mentioned or others mentioned, we were able to find some common 
ground on the Bipartisan Safer Communities Act, again, in an 
area where it's hard to find much common ground.
    But I just want to update my colleagues on exactly what has 
happened so far with this. For example, the enhanced background 
check for gun purchasers between the age of 18 and 21--
unfortunately, it's a cohort of individuals who are 
disproportionately impacted by this profile or 
disproportionately part of a profile that characterizes 
shooters from Adam Lanza at Sandy Hook through the shooter in 
Uvalde, more recently. Using the enhanced background check 
authority that Congress passed in the Bipartisan Safer 
Communities Act, so far the background check system has 
identified 101 potential transactions where juvenile records, 
which are now subject to the background check system, have 
disclosed individuals that are either convicted felons, drug 
users, or those with mental health adjudications who otherwise, 
had they been an adult previous to that statute, would've 
already been prohibited from purchasing a firearm.
    At the same time, 98.5 percent--98.5 percent--of the 
National Instant Criminal Background Check transactions are 
unaffected by the Bipartisan Safer Communities Act. So it was 
focused on that cohort, that age cohort that was 
disproportionately represented in some of the mass shootings 
that we've seen around the country, and it seems to be working. 
Likewise, some of the additional penalties that we included for 
straw purchasing of firearms and trafficking in firearms has 
led to 30 indictments, so far, just in the brief few months 
it's been in effect--indictments of gang members, cartel 
members, and other violent criminals.
    Mr. Mangual, let me ask you--I thought you made a really 
important point about how--what parts of the communities are 
affected by gun violence and others that are not as affected as 
dramatically and how communities of color and where there's 
lower income levels are disproportionately affected. You're 
familiar, I'm sure, with Project Safe Neighborhoods, are you 
not?
    Mr. Mangual. No, I don't think I am.
    Senator Cornyn. Okay. Well, Project Safe Neighborhoods is a 
targeted effort, which you seemed to allude to there, where you 
go after targeted enforcement of convicted felons and people 
who cannot legally possess firearms, and you prosecute those 
cases using the mandatory minimum standards under Federal law, 
to keep those individuals off the street. Is that a sort of 
targeted effort that you think might address what you 
identified, in terms of where this is a big problem and where 
it's not as big or as urgent a problem?
    Mr. Mangual. I do. The kind of prohibited possessor laws 
that you're talking about that carry those significant 
sentences I think could be a really important tool in a 
targeted approach to addressing the gun violence problem.
    Chair Durbin. Thank you, Senator Cornyn. Senator Welch.
    Senator Welch. Thank you, Mr. Chairman. I thank the 
witnesses. You know, this question of gun violence is really 
being affected by changes in analytic approach by the Supreme 
Court. The changes in the analytic approach by the Supreme 
Court, in my view, has resulted in a significant threat to the 
legislative prerogatives in an imbalance in the checks and 
balances that are so essential to the well-being of our 
democracy.
    The historical approach that the Supreme Court is taking, 
to many--Senator Whitehouse, of course, is the leader of the 
Subcommittee, has been a leader on this--in my mind is creating 
the significant not potential but the significant reality of 
the Court essentially bootstrapping opinions to get to the 
result that it wants and interfering in the legislative 
prerogatives and responsibilities that a legislature has to 
protect the well-being of its citizens. This historical 
approach I want to ask you about, Professor Ruben--you've been 
talking about it, but--is leading to some of these anomalies 
where things that the lower courts are deciding in response to 
this seem to me to make no sense whatsoever.
    I'll just give a specific example. In United States v. 
Price, a district court held that a Federal law prohibiting 
possession of a firearm with an altered or obliterated or 
removed serial number--something essential in law enforcement 
investigation--was unconstitutional. And the reason was, we 
didn't have serial numbers that were in common use in 1791. And 
the way I react to that is, the court is the ultimate 
legislative body, when it has the capacity to essentially waive 
away the rights of the people of this country through their 
elected representatives to address challenges that it faces as 
a society. Could you comment on that?
    Professor Ruben. Sure. Thank you. So you talked about 
legislative prerogatives, and indeed, during this hearing, I've 
heard a lot of comments about policies that, in some people's 
opinions, work or don't work. And traditionally, 
conventionally, that was what legislative bodies focused on. 
And one of the problems and concerns with the Bruen opinion is 
that the Bruen opinion said that, in fact, it's not modern 
legislative priorities that are most important for assessing 
the constitutionality of modern laws addressing modern 
problems. It's the legislative priorities of legislative bodies 
over 200 years ago.
    Now, this still shouldn't cause all gun laws to be struck 
down. The Court set forth some standards, but they're simply 
not specified enough to provide a lot of guidance, and so one 
of the things that we're seeing in the lower courts, including 
the Price case and others, is that courts are emphasizing or 
de-emphasizing different historical facts, they're construing 
the history differently, and then they're reaching different 
results in the same case.
    So with respect to altered serial numbers, for instance, 
one of the things that the Supreme Court said is that modern 
courts have to compare modern and historical laws in light of 
how and why modern laws impact armed self-defense. Well, it's 
unclear how a law that simply restricts somebody from removing 
a serial number has any impact on that person's ability to 
engage in armed self-defense. So there are differences of 
opinions there, and the opinions are coming out and pointing in 
different ways, different directions, about what the Second 
Amendment means.
    Senator Welch. Let me just ask Mr. Lindley. You work in law 
enforcement. How does it affect you? There's discussion about 
law-abiding people aren't the problem. We all agree with that. 
It makes sense. But you deal with a lot of other people who 
aren't so law abiding. And also, law-abiding people who have a 
temper and have a gun and have a domestic partner sometimes, in 
that moment, are not so law abiding. Can you comment?
    Mr. Lindley. So we've talked a lot about individuals and 
all the arrests that they've had. One of the things that we 
have here in the United States is, you are innocent until 
proven guilty. You can have a lot of arrests. But individuals 
with mental health problems, convicted felons, people with a 
history of other types of violence, whether it's a 
misdemeanor--those individuals with firearms is a--it's a 
poisonous cocktail, not only to the community but to law 
enforcement, and they're very difficult and dangerous to deal 
with.
    Senator Welch. My time is up. Thank you. I yield back, Mr. 
Chairman.
    Chair Durbin. Thank you, Senator Welch. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman. I do think it's 
important in this conversation to remember that we're not 
talking about legislative priorities from 200 years ago. We're 
talking about a provision of the Constitution. It is different 
than a legislative priority. When we adopt something into the 
Constitution, we're making a law that's meant to stand the test 
of time. Unless or until that amendment is removed or altered, 
it stands, and it's the job of the Court to interpret what that 
means. And that's exactly what happened here.
    I do think it is important, and I agree with Senator Welch 
that it's very important that we always focus on the rights of 
the law abiding and keep those in mind whenever we consider 
legislation or legislative strategies here. And one of the 
worst things you can do, particularly where a constitutional 
right is involved, but really in any case where you're dealing 
with something that involves public safety is, what are we 
doing that might make it more difficult for the law abiding to 
defend and protect themselves? What is this legislation going 
to do to make us safer or less safe?
    It's important to remember a few dynamics that are well 
known, with respect to the study of criminal offenses, and with 
respect to advice that we've received from seasoned law 
enforcement officers. Just last week, DC Police Chief Robert 
Contee remarked that, quote, ``If we really want to see 
homicides go down, keep bad guys with guns in jail.'' Then he 
went on to say, ``Right now, the average homicide suspect has 
been arrested 11 times prior to them committing a homicide.'' 
That's a problem. Mr. Mangual, do you want to respond to that? 
This--do you share this view, that if we want to keep homicides 
down, we have to arrest, convict, and detain those who are 
violent?
    Mr. Mangual. I do share that view, especially with respect 
to the last part of that, you know, sort of plan, the 
detainment part. I mean, the failure to incapacitate repeat 
offenders is at the core of America's gun violence problem and 
has been for a long time. If you look at the statistics on 
people who are charged with homicides or shootings, you will 
inevitably see long criminal histories that involve multiple 
arrests, multiple convictions, and often active criminal 
justice statuses.
    Until that changes, we are going to continue to deal with 
this problem, especially given the fact that over the last 10 
years we have exacerbated it by enacting all kinds of reform 
efforts that have, again, lowered the transaction costs of 
criminal offending in important ways, whether we're talking 
about bail reforms, discovery reforms, sentencing reforms, 
decriminalization efforts, the electoral success of the 
progressive prosecutor movement. All of these things have come 
together to make it less likely that when individuals come 
before a court of law after being charged with a gun crime or 
some other kind of serious offense, it becomes less likely that 
they will be prosecuted and incarcerated and, if prosecuted and 
incarcerated, less likely that they'll be there for a 
significant period of time.
    Senator Lee. And as a case in point, just recently the 
District of Columbia Council voted to reduce criminal penalties 
for a lot of these same offenses, for the same bad guys 
committing violent crimes with guns. And so, it defies reason 
and logic to say that that is not a problem, when we know that 
is the source of the problem. It's also important for us to 
remember how the Bruen decision reached its conclusion and the 
constitutional reasoning on which it was based.
    I find especially helpful the penultimate paragraph in the 
majority opinion, which reads as follows, quote, ``The 
constitutional right to bear arms in public for self-defense is 
not `a second-class right, subject to an entirely different 
body of rules than the other Bill of Rights guarantees.' We 
know of no other constitutional right that an individual may 
exercise only after demonstrating to government officers some 
special need. That is not how the First Amendment works when it 
comes to unpopular speech or,'' the free exercise clause or 
protections with regard to ``the free exercise of religion. It 
is not how the Sixth Amendment works when it comes to a 
defendant's right to confront the witnesses against him. And it 
is not how the Second Amendment works when it comes to public 
carry for self-defense.''
    Ms. Swearer, do you agree with that assessment, both as a 
matter of constitutional reasoning and as a matter of logic, 
when dealing with crime?
    Ms. Swearer. Senator, I absolutely do. The Second 
Amendment, especially in what we saw with New York's framework, 
was fundamentally treated and held to a different standard. You 
essentially had millions of residents who were told, regardless 
of what the text says, you might have a right to keep, but you 
don't have a right to bear arms the second you leave your 
home--which renders toothless that unalienable natural right to 
self-defense on which the Second Amendment is based. And so, 
certainly for those residents in New York and the seven other 
States with those types of public carry frameworks, their 
rights were being treated and held to a second-class standard.
    Senator Lee. I see my time has expired. As I wrap this up, 
I just want to emphasize, again, that the Second Amendment 
isn't something new. Yes, it is old. It's been in place since 
1791. That's a long time ago. That doesn't make it irrelevant 
to our time. In fact, as we've seen crime increase, I don't 
think it's ever been more relevant, particularly when you look 
at those who are victimized, those who are at a competitive 
disadvantage with regard to size, strength, speed, wealth, 
assets, where they live in proximity to a police station, and 
the availability of police officers who could come, either 
sooner or later, to their home.
    This is, moreover, something that had its roots centuries 
before the American Revolution. These were well understood 
terms. This is not an exaggeration. This is not a modern-day 
rewriting of a piece of the Constitution. This is a correct 
application and one that is right. Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Lee. Next up is Senator 
Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman, and 
thank you--I had other hearings and things going on, but I 
caught up on your testimony, and I just want to thank you all 
for being here in this important hearing and thank the Chair 
for calling it. One of my focuses on guns has been on domestic 
violence. For too long, domestic abuse was considered a family 
affair, and they would say what happened in a house didn't have 
to come into the courthouse.
    We all know times have changed with the passage of the 
domestic violence bill, the reauthorization of it many times. 
But we also know that when a gun is present in the home, women 
in abusive situations are five times more likely to be killed, 
which is why, as part of the gun safety bill, on a bipartisan 
basis, we put in a version of the bill that I have been working 
on with Senator Hirono and others for years to make sure that 
people that are convicted of domestic abuse can't go out and 
buy a gun the next day.
    As a survivor yourself, Ms. Glenn, can you first say more 
about the dangerous connection between domestic violence and 
gun violence? And then I just--you could add onto that just 
your concern about the Bruen decision and what that will mean. 
Go ahead.
    Ms. Glenn. Thank you so much for the question. The concern, 
of course, is that--what I stated earlier, which is that 
victims will feel less safe because there is the idea that, at 
minimum, when and if I felt like I could do something about it, 
now I can't. I cannot get the gun removed. Second, I would say 
that we are also talking about abusive persons feeling a bit 
more freedom to take that few seconds to pull the trigger on a 
gun when there's domestic violence present by them.
    What we're seeing is widespread confusion, widespread 
concern about this particular ruling and what it will mean to 
the future.
    Senator Klobuchar. Mm-mm.
    Ms. Glenn. As we all know, domestic violence victims very 
seldom, if at all, call law enforcement, simply because of the 
already present danger, particularly when there is a firearm in 
the home.
    Senator Klobuchar. Mm-mm.
    Ms. Glenn. The concern is really quite marked right now, 
what this will mean outside of that Fifth----
    Senator Klobuchar. Thank you.
    Ms. Glenn [continuing]. Circuit.
    Senator Klobuchar. Okay. And I know, Mr. Lindley, you 
mentioned this in your testimony. Do you want to add anything?
    Mr. Lindley. Thank you for the question. With domestic 
violence and firearms, it's a lethal cocktail. We already 
stated the statistics that, you know, women are five times more 
likely to be killed when there's a firearm in the home with 
domestic violence. With that, there's also a danger toward law 
enforcement and just the greater community. So we need to 
really look at protecting those domestic violence restraining 
orders, in order to ensure that women or other victims are 
protected and we remove those firearms from an already volatile 
situation.
    Senator Klobuchar. Okay. And I know you also are expert on 
this. So my State has passed a number of commonsense gun safety 
laws to prevent convicted felons, fugitives from justice, and 
convicted stalkers and domestic abusers from getting a gun. And 
we also have this very strong tradition of hunting. It is a big 
part of our life, with legal gun owners and people who are law 
abiding, but yet we've been able to differentiate those that 
shouldn't have a gun, who have broken the law, and those that 
have not. And so, could you talk about how the Bruen decision 
complicates efforts by State and local governments to protect 
public safety?
    Mr. Lindley. Thank you. So California has a program called 
the Armed and Prohibited Persons System, which identifies 
individuals who at one time legally purchased a firearm but, 
subsequent to that purchase, became prohibited due to a mental 
health issue, due to the restraining order, or some type of act 
of violence. That has been a very successful program, 
identifying people who no longer have the ability to possess 
firearms because of an act that they've done or mental health 
issue. It doesn't deal with individuals who are still law 
abiding.
    So with those things combined, if you look at Bruen--and, 
again, I'm not an attorney, I'm looking at this from a law 
enforcement perspective--that could muddy the waters with who 
might be having their restraining orders removed because of 
some Act going back to 1791. Things were far different in 1791 
than they are today.
    Senator Klobuchar. Okay. My very last question. Professor 
Ruben, in your dissent in the Bruen case--in his dissent, you 
didn't have a dissent. You probably were thinking one. In the 
dissent in the Bruen case, which was--Justice Breyer was joined 
by Justices Kagan and Sotomayor. He asked this question. He 
asked, ``Will the Court's approach permit judges to reach the 
outcomes they prefer and then cloak those outcomes in the 
language of history?'' Based on the cases that have recently 
applied Bruen, how would you answer Justice Breyer's question?
    Professor Ruben. History does not speak with one voice when 
it comes to the tradition of firearms regulation. And one of 
the big risks of Bruen that we are seeing right now, in the way 
that lower courts are addressing constitutional questions after 
that opinion came down last June, is that courts are picking 
and choosing different historical laws to emphasize, they're 
construing them differently, they're reading history at 
different levels of generality, and they're pointing in 
opposite directions about what the Constitution means. So 
without more clarification about what--how exactly to do the 
Bruen test, there is a real risk that opinions will, cloaked in 
history, will actually be subjective.
    Senator Klobuchar. All right. Well, I will ask the rest of 
my follow-up questions, many on the ``boyfriend loophole'' 
bills and laws, implications of these cases on that, but I will 
do that on the record, because I know my colleagues are here 
ready to ask. So, thank you.
    Chair Durbin. Thanks, Senator Klobuchar. Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman. We appreciate 
so much that you all are here. It's an important conversation 
to have and we are grateful for your testimony. You know, the 
Chairman said he just couldn't square why some people would 
purchase guns or have guns. What I can't square is why we have 
prosecutors and judges who are letting criminals back out on 
the streets and not holding people who have committed crimes. 
And that's letting people that shouldn't have a gun get a gun. 
So let me ask--Mr. Lindley, let me start with you. Do you know 
who Jack Wilson is?
    Mr. Lindley. Actually, I do not.
    Senator Blackburn. Okay, you don't? Elisjsha Dicken?
    Mr. Lindley. I'm not really a name person, so, no.
    Senator Blackburn. Okay. Well, let me tell you, these are 
both good Samaritans that exercised their right to carry a 
firearm and, as a result, were able to intervene during a mass 
shooting, one in Texas, one in Indiana, and they saved untold 
lives. These are the law-abiding citizens that we want to be 
carrying guns and whose right to do so is protected by the 
Second Amendment. What about Tyree Reynolds? Do you know that 
name? Christian Wingfield. Do you know that name?
    Mr. Lindley. They're familiar to me, but not in detail.
    Senator Blackburn. Not in detail. Well, they should be. 
These are criminals who committed violent crimes using 
firearms, and then they were released back to their communities 
as a result of the radical left's soft-on-crime policies and 
the Soros-backed bail reform. So they got out. They went on to 
participate in shootings. One--one of these individuals left a 
child dead.
    So this is the disparity. It is outrageous, absolutely 
outrageous, instead of prosecuting violent criminals who are 
committing these crimes, that many on the left are focused on 
criminalizing gun ownership for law-abiding citizens. Violent 
crime is raging across this country. We hear about it in 
communities. Every year I visit with each of our 95 counties in 
the State of Tennessee. I visit with law enforcement in those 
counties. And what we hear is, with gangs proliferating, with 
drugs flooding this country, because of the cartels, because of 
that open border, crime is on the rise.
    And there seems to be a penchant, though, from my 
colleagues across the aisle, to restrict self-defense options. 
Senator Graham talked about this at the outset. This is a 
right. The Second Amendment is a right. Senator Lee just 
mentioned it's the only right that you've got to go talk to a 
local official and get a license in order to exercise that 
right.
    But we have plenty of people that are alive today because 
Jack Wilson and Elisjsha Dicken chose to exercise that right 
and, in exercising that right, they saved a lot of lives during 
a time with a mass shooting event. And we ought not to have 
people that try to restrict self-defense options for good 
Samaritans. They should be spending their time trying to get 
violent criminals off the street.
    Ms. Swearer, I'd like to come to you for a moment. I led an 
amicus brief last month to support the lawsuit challenging 
ATF's pistol brace rule. This imposes potential criminal 
liability on millions of Americans for exercising their Second 
Amendment rights. The ATF claims that this rule is necessary 
because arm braces transform a pistol into a short-barreled 
rifle.
    Now, when I'm back at home in Tennessee and I'm talking 
with a lot of our veterans and our disabled combat veterans, 
they talk to me about why they rely on these pistol braces to 
be able to operate a firearm, to operate that gun. So can you 
explain how our disabled combat veterans use pistol braces and 
the devastating impact that the ATF rule would have on their 
ability to exercise their Second Amendment rights?
    Ms. Swearer. Senator, thank you for that question. Pistol 
braces work in such a way--so if you understand a handgun, 
which, generally speaking, you can hold with one hand, a lot of 
these disabled veterans cannot use that second hand, for 
example, as an additional stabilizer. They have trouble using 
that with one hand. The way that the pistol brace works is that 
it extends, a lot of them, down the arm and either allow the 
person with that brace to brace it against their inner arm or 
to even strap it into their forearm to give them additional 
stability when defending themselves.
    Senator Blackburn. So it's a safety mechanism?
    Ms. Swearer. Correct. Yes.
    Senator Blackburn. It stabilizes the handgun?
    Ms. Swearer. Correct. And, to the extent that someone is 
not disabled, they would have a plethora of other options. 
Again, whether this is a criminal, for example, they don't need 
to rely on a stable brace. They can just use a handgun or, for 
example, use a rifle. This exclusively is something that is 
beneficial to law-abiding but disabled citizens. Yes, it might 
be used by people who are not disabled, but that is primarily a 
benefit to them, while, at the same time, again, would-be 
criminals have a plethora of alternatives to accomplish their 
criminal goals.
    Senator Blackburn. Thank you. Thank you, Mr. Chairman.
    Senator Padilla [presiding]. Thank you, Senator Blackburn.
    I want to thank Chair Durbin and Ranking Member Graham for 
holding this hearing. There's no denying that we have a gun 
violence epidemic in the United States of America. When gun 
violence becomes the leading cause of death in America or yet 
another small town becomes a household name across the country 
because of another tragedy, we have a moral obligation to act.
    Just yesterday, I joined President Biden in Monterey Park, 
California, to meet with a community that's still grieving from 
a mass shooting that took the lives of 11 people at a dance 
studio on the eve of Lunar New Year. I was pleased to see 
President Biden announce his Executive actions that will make 
our communities safer and will save lives, but I think we all 
acknowledge, including the President, that these Executive 
actions to address gun violence do not absolve us of our duty 
as legislators.
    Now, last Congress, this Committee held 11 hearings on 
commonsense steps to reduce gun violence, and we know that the 
overwhelming public support these measures have. But as we 
gather here today, just after America surpassed 100 mass 
shootings in this calendar year--that's 100 tragedies by the 
first week of March--and Americans are watching from home, 
asking, ``When will Congress step up and do something?'' So I'm 
committed to finding a path forward. I look forward to working 
with whoever is willing, on the other side of the aisle, to end 
the epidemic of gun violence in our country.
    Now, my first question is for Mr. Lindley. As a program 
manager for Brady's Combating Crime Guns Initiative and as a 
former law enforcement officer, you've spent a good part of 
your career combating gun violence. The Brady Handgun Violence 
Prevention Act created a system requiring background checks for 
gun purchases from licensed dealers. And yesterday President 
Biden announced a new Executive order directing the Attorney 
General to ensure that gun dealers are following existing laws 
concerning background checks, highlighting the role gun dealers 
have in limiting the proliferation of guns in our communities. 
Are you concerned that the Bruen decision will lead to looser 
gun laws, and in particular surrounding the registration of 
firearms, and then undermine our efforts to improve safety?
    Mr. Lindley. Thank you for the question, Senator. 
Absolutely. Again, I'm not an attorney, so I can't see the 
future when it comes to legal issues.
    Senator Padilla. That's okay. I'm not one, either.
    Mr. Lindley. But if you look at some of the things that 
have been put into place, especially with the Brady background 
check process, it didn't go far enough, back in the 1990s, so 
you have to look at universal background checks, something that 
California has put into place and has been very successful 
with. You also look at limiting, if not, you know, outlawing, 
new purchases of assault weapons and high-capacity magazines--
again, something that California has put in and has been 
successful for years.
    Senator Padilla. Thank you. And I don't mean to make light 
of the fact that you're not an attorney, nor am I. Trust me, we 
hear from a lot of attorneys in this Committee. There's a lot 
of attorneys on the Committee. But I do want to uplift your 
perspective, with your law enforcement experience, to this 
conversation.
    Now, as a former law enforcement officer, you've 
experienced the epidemic of gun violence firsthand, and I think 
you'd agree that the Monterey Park shooting was simply a high-
profile example of the epidemic that we have in this country. I 
mean, in a span of 8 days surrounding that one incident, 
California experienced at least two more. In your opinion, what 
role does the availability of large-capacity ammunition 
magazines and semiautomatic assault weapons play in the gun 
violence plaguing our Nation?
    Mr. Lindley. Again, after almost, you know, 30 years in law 
enforcement, seeing far too many victims, far too many mass 
shootings--and when you look at the lethality of semiautomatic 
weapons, especially assault weapons, coupled with the high-
capacity magazines, it makes it very difficult for the 
victimology, if you look at how many people can be shot in that 
timeframe, with a 30-round magazine as compared to a 10-round 
magazine. And we've seen instances here in California that an 
individual who went in, did a mass shooting, but had a lower-
capacity magazine had far fewer victims, but individuals 
usually have to wait until the person reloads until they engage 
in trying to disarm the individual. A lot of different victims 
can take place between 10 rounds and 30 rounds or, let's say in 
Las Vegas, 50 or 100 rounds.
    Senator Padilla. Thank you very much. I'd love to have 
follow-up questions here, but at this point I'll turn it over 
to Senator Blumenthal for his questions.
    Senator Blumenthal. Thank you, thanks very much, Senator 
Padilla. Thank you all for being here. Thank you to the 
advocates who have joined us today. And I want to thank Senator 
Padilla and other Members of the Committee for their steadfast 
support of measures that will stop that epidemic of gun 
violence, these measures made vastly more difficult by the 
Supreme Court's decision in Bruen in ways that we have no way 
of knowing at this point, because Bruen remains an inchoate and 
deeply frightening potential obstacle to commonsense measures.
    I could talk about a great many of them, but I want to 
focus on safe storage laws, known in Connecticut as Ethan's 
Law. Our law is named after a young man who was killed when he 
was accidentally shot by an unsecured firearm. Ethan Song was a 
teenager at the time, and the firearm had been stored in a 
Tupperware box in a closet alongside the ammunition and keys to 
the gun lock. Ethan's Law passed in Connecticut, but we know 
across the country 4.6 million minors live in households with 
at least one loaded and unlocked gun. An estimated 54 percent 
of gun owners don't lock all of their guns securely.
    Ethan's Law simply requires that guns be safely stored. 
Doesn't take away a single gun, doesn't look at who owns the 
gun, doesn't provide any ban on any type of gun. It simply says 
if you have a gun, you should safely store that gun. So I would 
like to ask Professor Ruben, based on the Bruen decision, 
whether that kind of law would be constitutional under the 
Court's apparent reasoning that there has to be some historical 
analogue on which any kind of law is based under the Second 
Amendment.
    Professor Ruben. Thank you, Senator. So as you mentioned, 
there's a lot of uncertainty right now about what Bruen means 
and how it will apply to specific gun laws, including that one. 
Before Bruen, safe storage laws fared very well in the courts. 
And after Bruen, the question will be, first, whether or not 
laws about storage fall within the plain text of the Second 
Amendment. That's an open question.
    And then, the second question that will be asked is whether 
or not they have historical analogues, and it's a challenging 
one. It's a good example of the challenges that courts have 
now, because back in the framing era, the guns were largely 
muzzle-loaded black-powder guns that were not kept loaded or 
carried loaded because of the risk of misfire. There were laws 
about storage, back then. For instance, there were laws in the 
City of Boston and other places about storing gunpowder 
separate from the firearms, but those were because there was a 
risk of fires.
    It was a different time, with different problems, and the 
policymakers back then addressed the problems that existed. 
Today, the problems, as you mentioned, are different than the 
problems back then, and a lot will depend on how flexibly 
courts look to historical laws like the Boston safe storage law 
and how they relate them to today. And it's very much an open 
question, but one thing is for sure, that the Court did say 
that a lot of regulation is still permissible under the Bruen 
standard.
    Senator Blumenthal. I think your point is very important, 
that an analogue means exactly that. That it doesn't have to be 
exactly the same, and the laws, for example, that you've cited 
in Boston, requiring safe storage of some of the materials used 
in firearms or firing weapons, perhaps provide that kind of 
analogue. And today the risks may be different.
    In fact, gun deaths have recently surpassed any other kinds 
of deaths affecting children. Gun violence is the most common 
cause of child death in the United States today. Every day, an 
estimated eight children, teens are killed, unintentionally 
injured or killed due to an unsafely stored firearm. So the 
risk may be different, but the analogue is the same insofar as 
it says risk can be taken into account in requiring safe 
storage.
    Professor Ruben. And that's absolutely correct, in terms of 
how courts are going to have to apply Bruen in light of changed 
circumstances. And one of the problems that I've seen in 
opinions that have come out after the Bruen decision is that 
courts, in effect, are looking for dead ringers. A lot of 
courts are sidestepping the analogical exercise altogether and 
just looking for dead ringers. Well, that's not how analogical 
reasoning works, and, in fact, historical laws are going to 
have to be viewed at a relative high level of generality, 
flexibly, in order to accommodate the reality of change over 
time.
    Senator Blumenthal. Well, thank you very much. Thanks, Mr. 
Chairman, for having this hearing. I'm going to continue to 
advocate Ethan's Law at the Federal level and other measures 
that I've introduced here, trying to encourage the courts to 
interpret Bruen expansively, because it really is a matter of 
life and death. And I commend President Biden for taking the 
action he did yesterday. Thanks.
    Chair Durbin [presiding]. Thanks, Senator Blumenthal. I 
want to apologize, personally and for the Committee. Our coming 
and going has a lot to do with things beyond our control. One 
of them is a roll call vote on the floor, so Members have to 
make the roll call and try to make this Committee hearing and 
others at the same time. It is not a display of disrespect. 
It's the reality of our frantic lives here when we're in 
session. But your testimony has been very important and very 
valuable.
    Professor Ruben, I was just trying to think, if we use the 
same standard in Bruen of historical analogue--we have a 
hearing coming up on social media and the internet. I am trying 
to imagine how we would do such a thing, in light of the First 
Amendment's speech and press, and what we would be guided by. 
What--what really was the state of social media in 1791 or in 
1868? I think it's ridiculous on its face. And you wonder why 
the Court, particularly Justice Thomas, who has his own 
peculiar view of the Constitution--wonder why the Court is 
buying it, in this instance. Do you know what the end goal was, 
the real reason--not the good reason, historical analogue, but 
the real reason?
    Professor Ruben. I don't know about the intentions of 
Justices, obviously. One thing that happened before Bruen was 
that the courts were applying doctrine pulled from First 
Amendment cases. Heller cited First Amendment jurisprudence 
repeatedly, and in the First Amendment context, we do not 
solely decide cases on the basis of history alone. Rather, 
history is one input, but so are contemporary costs and 
benefits.
    So, to your point about social media or other First 
Amendment issues, courts--the Supreme Court has said, for 
instance, that child pornography is not protected expression 
under the First Amendment. And in arriving at that decision, 
they were not looking for analogues in the Founding generation. 
This is a unique test that has been put forward for the Second 
Amendment.
    Chair Durbin. Senator Lee talked about the constitutional 
language standing the test of time. We might engage in an 
exchange as to whether or not the original language of the 
Constitution stood the test of time on the issue of women 
voting, on the issue of slavery, on the issue of property land-
owning males being primarily the voting populace at the time. 
There are a number of things in the Constitution which were 
flawed, some corrected by constitutional amendment and some by 
court ruling. Is that not the case?
    Professor Ruben. That's true, and the Supreme Court in 
Bruen said that the Second Amendment is to withstand the test 
of time and change over time. And the question right now is how 
to do the Bruen analogical exercise in a way that will respect 
the reality of the fact that things were very different back in 
the 1790s than they are today. A lot of the problems that we 
have with respect to firearms and weapons today would've been 
unimaginable at the Founding, so of course they weren't 
legislating on those issues. And, yes, the task of courts and 
litigants today is to draw analogies between that time and now.
    Chair Durbin. And I wonder how our Founding Fathers 
would've reflected on a chilling milestone as we surpassed 100 
mass shootings a little over a week ago. That's more than one a 
day. We ended last year with 647 mass shootings, which means 
four people were shot or killed in an incident. Six hundred, 
forty-seven last year, almost 2 a day, and more than 44,000 
people, overall, killed by gunfire. It appears the 
proliferation of weapons in America has not brought peace to 
our streets but just the opposite. And that's what I've 
witnessed many times over.
    So I thank you all for being here today, and I thank you 
for your testimony. The hearing record will remain open for a 
week for statements and questions. I thank you for 
participating, and the hearing stands adjourned.
    [Whereupon, at 12:04 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

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              Additional Material Submitted for the Record

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