[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
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
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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