[Congressional Record Volume 145, Number 101 (Friday, July 16, 1999)]
[Extensions of Remarks]
[Pages E1580-E1581]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            THE SECOND AMENDMENT AND GUN CONTROL LEGISLATION

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                         Friday, July 16, 1999

  Mr. CONYERS. Mr. Speaker, today I am pleased to offer for the record 
a memorandum on the Second Amendment and Gun Control Legislation that 
was written by Professor Robert A. Sedler, an outstanding 
constitutional law professor who has taught at the University of 
Kentucky Law School and now teaches at Wayne State University School of 
Law. Professor Sedler previously worked with my Judicial Committee 
staff on constitutional matters during the recent impeachment 
proceedings. Given the current national debate on gun control and gun 
control legislation, his memorandum is particularly enlightening.

            The Second Amendment and Gun Control Legislation

  (By Robert A. Sedler, Professor of Constitutional Law, Wayne State 
                       University School of Law)

       Opponents of gun control legislation, such as the NRA, 
     frequently invoke the Second Amendment to argue that gun 
     control legislation is unconstitutional. Such an argument is 
     completely misplaced for two reasons. First, under current 
     constitutional doctrine, as propounded by the United States 
     Supreme Court, the Second Amendment does not establish an 
     individual right to bear arms. The Second Amendment is a 
     state's rights provision, guaranteeing a collective rather 
     than an individual right. Second, even if the Supreme Court 
     were to hold in the future that the Second Amendment does 
     create an individual right to bear arms, that right, like 
     other constitutional rights, would not be absolute, and would 
     be subject to reasonable regulation that did not impose an 
     ``undue burden'' on that right.
       The Second Amendment starts out by referring to state 
     militias, which were the forerunner of the present National 
     Guard: ``A well-regulated Militia being necessary to the 
     security of a free State,'' and goes on with the more 
     familiar. ``The right of the people to keep and bear arms 
     shall not be infringed.'' At the time of the Constitution 
     every state had a militia, consisting of all able-bodied men. 
     When there was a call to arms to defend the state, each able-
     bodied man was supposed to show up with his own rifle. Every 
     man had a rifle, which he used for hunting and for the 
     legitimate self-defense of his family and his home. The 
     Constitution gave the federal government a lot of power over 
     the state militias. Congress could call them into federal 
     service (Art. I, sec. 8, cl. 15), as units of the Michigan 
     National Guard have been called up for service in Bosnia and 
     Kosovo. When the militias were called into federal service, 
     they were subject to the control of the President as 
     Commander-in-Chief (Art. II, sec. 2, cl. 1). Congress was 
     also given the power to govern the organization and training 
     of the state militias (Art. I, sec. 8, cl. 16), just as today 
     Congress regulates the state National Guard.
       After the Constitution was ratified, there was concern in 
     the states that Congress would use its power over the state 
     militias simply to abolish them. This concern was addressed 
     by the Second Amendment. The language and historical context 
     of the Second Amendment indicates that it was to be a states 
     rights provision, it was intended to prevent Congress from 
     abolishing the state militias. Under this view of the Second 
     Amendment, it would not be the source of an individual right 
     to bear arms, and federal gun control laws could not be 
     challenged as violative of the Second Amendment. \1\
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     \1\ The Supreme Court long ago held that the Second Amendment 
     does not apply to the states. Presser v. Illinois, 116 U.S. 
     252 (1886).
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       The contrary view focuses on the fact that the time of the 
     Second Amendment, all the able-bodied men that made up the 
     state militia were expected to have their own rifles to bring 
     with them whenever there was a call to arms. Under this view, 
     the Second Amendment would be the source of an individual 
     right to bear arms, just as the First Amendment is the source 
     of an individual right to free speech, and federal gun 
     control laws could be challenged as violative of the Second 
     Amendment. Many state constitutions do expressly establish an 
     individual right to bear arms. The Michigan Constitution, 
     Art. I, sec 6, for example, provides that: ``Every person has 
     a right to bear arms for the defense of himself and the 
     state.'' There is much debate today among law professors and 
     others over whether or not the Second Amendment should be 
     seen as establishing an individual right to bear arms.
       Of course, only the United States Supreme Court can say 
     authoritatively what the Second Amendment means. The only 
     Supreme Court case to expressly deal with that subject is the 
     older case of United States v. Miller, 307 U.S. 174 (1939). 
     In that case, the Court rejected a Second Amendment challenge 
     to a federal law banning a number of weapons such as sawed-
     off shotguns and machine guns. The Court seemed to say that 
     the Second Amendment was a state's rights provision intended 
     to prevent Congress from abolishing the state militias, and 
     was not intended to establish an individual right to bear 
     arms. The Court stated: ``With obvious purpose to assure the 
     continuation and render possible the effectiveness of such 
     forces, the declaration and guarantee of the Second Amendment 
     were made. It must be interpreted and applied with that end 
     in view,'' and concluded that, ``[i]n the absence of any 
     evidence tending to show that the possession or use of a 
     `shotgun having a barrel of less than eighteen inches in 
     length' at this time has some reasonable relationship to the 
     preservation or efficiency of a well-regulated militia, we 
     cannot say that the Second Amendment guarantees the right to 
     keep and bear such an instrument.'' 307 U.S. at 178. The 
     Supreme Court has not had a case dealing with the meaning of 
     the Second Amendment since  Miller, except to cite Miller for 
     the proposition that federal restrictions on the use of 
     firearms by individuals do not ``trench upon any 
     constitutionally protected liberties.'' Lewis v. United 
     States, 445 U.S. 55, 65, n.8 (1980).
       Because lower federal courts are bound by United States 
     Supreme Court decisions unless and until they are overruled 
     by the Supreme Court itself, the federal courts of appeal 
     have unanimously held, as the Sixth Circuit has put it, 
     that, ``[i]t is clear that the Second Amendment guarantees 
     a collective rather than an individual right.'' United 
     States v. Warin, 530 F.2d 103, l106 (6th Cir. 1976) 
     (upholding ban on possession of submachine guns). Recent 
     cases holding that the Second Amendment does not establish 
     an individual right to bear arms include Hickman v. Block, 
     81 F.3d 98 (9th Cir. 1996) (person denied a concealed 
     weapon permit has no standing to claim that denial 
     violates his Second Amendment rights); Love v. Pepersack, 
     47 F. 3d 120 (4th Cir. 1995) (denial of application to 
     purchase handgun cannot be challenged as violative of 
     Second Amendment).\2\
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     \2\ In view of this unbroken line of federal appellate 
     decisions, the very recent decision of a federal judge in 
     Texas holding that the Second Amendment establishes an 
     individual right to bear arms and renders unconstitutional a 
     federal law prohibiting possession of a firearm while under a 
     court restraining order, United States  v. Emerson, 1999 U.S. 
     Dist. LEXIS 4700, U.S. Dist. Ct. N.D. Tex., 4/7/99, is 
     puzzling and is likely to be reversed on appeal.
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       The Supreme Court's decision in Miller sets forth the 
     current state of the law, which is why the lower federal 
     courts must reject any claim that the Second Amendment 
     establishes a constitutionally-protected individual right to 
     bear arms. The Supreme Court may change its mind, but unless 
     and until it does, the federal courts cannot properly use the 
     Second Amendment to declare any gun control law 
     unconstitutional.
       Let us assume, however, that the Supreme Court does change 
     its mind and holds that the Second Amendment does protect the 
     individual right to bear arms. This would not have any effect 
     at all on existing and proposed federal gun control laws, 
     such as the ban on assault weapons, the ban on possession of 
     a gun by a convicted felon, a requirement that guns contain 
     safety locks and be kept out of the reach of children, or a 
     background check waiting period. Constitutional rights are 
     not absolute, and are subject to reasonable regulation in the 
     public interest. Guidance on this point can be obtained from 
     the decisions of state courts upholding gun control laws as a 
     reasonable regulation of the right to bear arms. In upholding 
     a ban on

[[Page E1581]]

     dangerous weapons over 60 years ago, for example, the 
     Michigan Supreme Court stated as follows: ``Some weapons are 
     adapted and recognized by the common opinion of good citizens 
     as proper for the private defense of person and property. 
     Other are the peculiar tools of the criminal. The police 
     power of the state to preserve public safety and peace and to 
     regulate the bearing of arms may take account of the 
     character and ordinary use of weapons and interdict those 
     whose customary employment of individuals is to violate the 
     law.'' People v. Brown, 253 Mich. 537, 539, 235 N.W. 245, 246 
     (1931).
       Moreover, since constitutional rights are not absolute, any 
     regulation of a right--even a fundamental one, such as a 
     woman's right to abortion--is not subject to constitutional 
     challenge unless it imposes an undue burden on the exercise 
     of that right. Planned Parenthood of Southeastern 
     Pennsylvania v. Casey, 505 U.S. 833 (1992). Thus, a 24 hour 
     waiting period before a woman can have an abortion was held 
     in Casey to be constitutional because it does not prevent the 
     women from having an abortion. By the same token, a three day 
     waiting period for the sale of a gun at a gun show so that a 
     background check can be run on the purchaser does not impose 
     an undue burden on the right to bear arms, since it does not 
     prevent a qualified purchaser from obtaining the gun. Nor 
     does a requirement that guns be equipped with safety locks 
     impose any burden at all on a person's ability to obtain and 
     use guns. Nor could it possibly be suggested that the 
     Constitution stands as an obstacle to denying a gun to a 
     convicted felon or a mentally unstable person. Likewise, a 
     ban on carrying a concealed weapon would be constitutionally 
     permissible because of the clear danger to public safety that 
     can result from people pulling out guns and engaging in a 
     shootout in the public streets.
       A constitutionally protected right to bear arms would 
     include the right to have a rifle for hunting and for defense 
     of the home. It might also include the right to have a 
     handgun for defense of the home, although this is debatable. 
     A ban on private ownership of handguns would serve the public 
     interest in crime prevention, since so many crimes are 
     committed by the use of handguns. This aside, most assuredly, 
     the right to bear arms would not include the right to have a 
     sub-machine gun or a sawed-off shotgun or an assault weapon, 
     or to carry concealed weapons, or to brandish a gun in the 
     public streets. And again, any right to gun ownership would 
     be subject to reasonable regulation in the public interest.
       In summary, under the current state of the law, the Second 
     Amendment does not establish an individual right to bear 
     arms. But even if the Supreme Court were to subsequently hold 
     that it did, all the present and proposed federal gun control 
     laws would be upheld as constitutional, because they are 
     reasonable and do not impose an undue burden on the right to 
     bear arms.

                               

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