[Congressional Record (Bound Edition), Volume 145 (1999), Part 12] [Extensions of Remarks] [Pages 16500-16501] [From the U.S. 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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 [[Page 16501]] 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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 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. ____________________