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The Daily Record (Baltimore, MD)


April 28, 2003 Monday

SECTION: COMMENTARY

LENGTH: 3508 words

HEADLINE: Commentary: Beyond gun control: Preserving freedom and security

BYLINE: The Daily Record Editorial Advisory Board

BODY:
Members of the Editorial Advisory Board have differing views on the controversial and timely topic of gun control, as framed by the recent 5th U.S. Circuit case of Emerson v. U.S. The members of the Board, however, all agree that the conflicting views in a public policy issue of such importance to society should be addressed. The Board invites readers of The Daily Record to reply to the view stated in this editorial and to offer their own.

After the recent Beltway sniper killings, many people concluded that the case for stricter gun control laws became simpler and more compelling. That is not at all clear. This incident demonstrates just how difficult the issue actually is. Gun control is only one part of the larger, and far more complex, issue of how we can provide for our security without losing our basic freedoms. The case for stricter laws

Although law enforcement officials were initially baffled by the sniper, they eventually determined from the markings left on shell cases recovered at the various crime scenes that all the bullets were fired from the same gun. What the police had not been able to do, however, was to match the shell casings to the specific gun that had fired them. If they had a way do this and then match the gun to the owner, an arrest would follow. Predictably, there were calls for stricter and more comprehensive gun control legislation to supply the missing links in this chain of identification.

Maryland, along with New York, is one of only two states that already has a ballistics fingerprinting system, but it is limited to handguns. Legislation was therefore introduced in the Maryland General Assembly to extend the system to all types of guns. This, however, would create only a state-wide system to identify the particular gun used in a crime. To make such a ballistics database effective, it would have to be national in scope and also identify the gun owner. The proposed solution is thus to require gun sellers to keep records of all gun purchasers and to collect this information in a national database that could be accessed by law enforcement officials. While this would make the ballistics database optimally effective, there probably would be meaningful heightening of law enforcement's ability to match guns to criminals even with piecemeal ballistics fingerprinting.

The practical objections

Gun rights advocates insist that the comprehensive system described above would not work. First of all, it would not cover the estimated 240 million unregistered guns that are already in circulation in the United States. Furthermore, they argue, the whole concept of ballistics fingerprinting is faulty. The ballistics readings are inaccurate because the ballistics of a firearm change over time. Criminals can also change the ballistic fingerprint by filing the gun barrel.

Many argue that the gun registration system is faulty because the present laws are incomplete, inadequate and poorly enforced. Even if gun registration laws were strictly enforced and gun sellers kept accurate records of guns sold, critics argue that these laws would not reduce gun violence. Linking a gun used at a crime to the original purchaser would not necessarily identify the actual criminal, because there are many ways to circumvent the background-check process and because criminals are unlikely to use a firearm they know could be easily traced.

The simple fact is that those persons who would comply with gun registration laws are unlikely to commit crimes, while those who are so predisposed could easily circumvent them.

The problem with this objection is that it insists that only a perfect system is acceptable. Public policy should never be premised on letting the best be the enemy of the good, particularly where there are competing social policies at work. In this case, the best in one regard (extreme certainty that a database shows infallibly who possesses each gun) could only be achieved through near-tyrannical measures, which are obviously unacceptable.

Reasonable gun-control measures could never be that effective, and it is unrealistic for gun control opponents to insist on only the best when the best can only be achieved in unacceptable ways.

Philosophical objections

Opponents of stricter gun control laws argue not only that they wouldn't work, but that the entire premise is faulty.

No such laws, they argue, will deter a sniper or a terrorist. It is already illegal to kill people. Sick individuals or terrorists will simply ignore whatever law is passed. There is thus no logical connection between stricter gun control laws and snipers or terrorists.

This argument, however, does not directly address the question whether, in a world where guns were a more carefully regulated and a more easily traceable commodity, the snipers and terrorists would be less prone to resort to guns. If anonymity is hard to achieve, it may in fact deter even madmen who wish to strike anonymously.

Gun control opponents also fault the underlying premise of gun control when it comes to crime in general.

The assumption made by gun control advocates is that limiting gun ownership will reduce crime. Some writers have argued that such beliefs are based on selective comparisons. Much is made, for example, of the fact that the level of violent crime in New York is five times that of London. They assert that this was the case, however, for two centuries, during most of which time neither city had gun control. After virtually all guns were confiscated from Londoners, however, and the only ones left with guns were the criminals, armed crimes reportedly skyrocketed.

In the United States, the combination of stricter gun laws and leniency to criminals produced the same result for a time. More recently, concealed carry laws in such states as Texas and Florida, coupled with the incarceration of more criminals, appear to have significantly reduced crime.

Gun rights advocates insist that people want and need the right to own guns in order to protect themselves. During the recent sniper incident, for example, people were reportedly buying guns in droves. Using the fear created by the sniper incident to pass stricter gun laws, they believe, is an illogical and disingenuous strategy to eviscerate the rights of gun owners.

The broader philosophical objection of gun rights advocates is based on the fear that stricter gun control laws are merely the precursor to outright gun confiscation. Gun control opponents believe, perhaps correctly, that gun control advocates would have no qualms about entirely eliminating the right of private individuals to own firearms. Gun owners find it paradoxical that gun control advocates and civil libertarians are very often the same people. Why, they ask, can't these folks see that the Second Amendment right to bear arms and the First and Fifth Amendment civil liberties are simply two sides of the same coin?

This argument, however, essentially sets up a straw man. Whatever desire gun control advocates might harbor to sweep the nation clean of guns, it is not likely to happen. Even if the Second Amendment were eventually declared not to protect the individual's right of gun ownership, such rights would still exist unless erased by positive acts of the state and/or federal legislatures. It is doubtful that such an erasure would ever occur.

Evolving interpretation of the Second Amendment

It is not clear at present whether, and to what extent, individuals have a constitutional right to own firearms. In 2001, the Fifth Circuit in U.S. v. Emerson extensively analyzed the scope of the Second Amendment. Although the court in that case held against the gun owner on narrow technical grounds, the majority opinion then spent 84 pages considering the intent of the Second Amendment. The amendment itself is a marvel of ambiguity:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The Fifth Circuit noted that there have been three different basic interpretations of the Second Amendment used by the courts over the last few decades. The "states rights" or "collective rights" model, which has been adopted by the Fourth, Sixth, Seventh and Ninth Circuits, states that the Second amendment does not apply to individuals. It merely recognizes the right of a state to arm its militia.

The second interpretation is the so called "sophisticated collective rights model," which recognizes only a limited individual right. In this model, the "individual" right to keep arms applies only to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service. This view has been adopted by the First, Third, Eighth and Eleventh Circuits.

The third interpretation is simply that the Second Amendment recognizes the right of individuals to keep and bear arms. This is known as the "individual rights model" or the "standard model," and is the one adopted by the Fifth Circuit. The Emerson court noted that, although this view has not been adopted by any of its sister circuits, it has acquired considerable academic support over the last few decades. They politely suggested that the other circuits had rejected the individual rights view of the Second Amendment either on their erroneous assumption that certain precedents had conclusively resolved the issue or else "...without sufficient articulated examination of the history and text of the Second Amendment."

Although the Fifth Circuit court concluded that the Second Amendment does protect individual rights, they acknowledged that this does not mean that those rights may never be made subject to limited, narrowly tailored specific restrictions that are reasonable and "not inconsistent with the right of Americans generally to individually keep and bear arms as historically understood in this country." They noted, for example, that criminals, children, and insane persons could be prohibited from owning firearms.

In a specially concurring opinion, Judge Robert Parker objected to the majority's comprehensive analysis of the Second Amendment. He did not necessarily disagree with the conclusion. Rather, he objected to the fact that they performed the analysis at all. It was not necessary to the resolve the actual case and therefore was dicta that was not binding on them in the future or on any other court.

The Supreme Court evidently agreed, as it declined to review the case. This leaves the law among the various circuits in a state of great confusion and the issue still cries out for resolution.

In counseling adherence to strict constructionist principles, Judge Parker noted that a "minimalist path" is called for when a court is dealing with a "constitutional issue of high complexity about which many people feel deeply divided." He nevertheless correctly predicted that great significance would be attached to the fact that a court had finally determined that the Second Amendment bestows an individual right.

Although the U.S. government had steadfastly supported the collective rights model of the Second Amendment in the Emerson case at the Fifth Circuit level, it changed its position at the Supreme Court level and now strongly endorses the individual rights model.

The Ninth Circuit also took note of the Emerson case. In the case of Nordyke v. King, decided earlier this year, the court lamented the fact that they were constrained by their own precedents in that circuit. They admitted that, if they were "writing on a blank slate," they would adopt the individual rights model of the Second Amendment.

In a special concurring opinion in Nordyke, Judge Gould strongly endorsed the individual rights model but he also acknowledged the power of the government, within due bounds, to regulate the ownership or use of weapons for the public good. To this end, he urged the Supreme Court to establish a "doctrine of an individual Second Amendment right subject to reasonable governmental regulation." This strikes us as clearly the right approach.

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Does the Second Amendment have a future?

Judge Gould further noted that the Second Amendment serves at least two key purposes. The first is to protect against external threats of invasion, while the second is to guard against the internal threat that our government could degenerate into tyranny.

He acknowledged that many might find these concerns to be outmoded, believing that in this modern age there seems to be little risk of external invasion or internal tyranny. The events of September 11th, however, taught us that external invasions can take unexpected forms and that they are a continuing danger.

The response to those events, The USA Patriot Act, have led some to question whether we are inadvertently sowing the seeds of tyranny by giving up more power to the government than we can ever get back. For reasons such as these, Judge Gould stressed that we should not lightly give up the fundamental right to participate in the defense of our individual and collective freedom.

In an increasingly perilous world, we are facing ever increasing pressure to give up our individual liberty in exchange for collective security. Some saw this coming. As long ago as 1981, in a book entitled 2081: A Hopeful View of the Human Future, the physicist Gerard K. O'Neill predicted the type of world our technology would produce in the next hundred years.

O'Neill believed we would be driven toward two mutually exclusive societies. Some, such as the elderly, would opt for total security in the Electronic Fortress, where electronic perimeters and ubiquitous electronic monitors would instantly alert the residents to the presence of any unauthorized person. Others would opt for the Frontier Town, where everyone would be armed and would have the right, but also the necessity, of self defense.

In the Electronic Fortress, weapons would be excluded and security would be assured, while in the Frontier Town each individual would be responsible for his or her own security, and weapons would be permitted.

This vision of the future is arriving much faster than expected. Witness the cover story in the New York Times Sunday Magazine on February 23rd of this year, entitled "Fortress America," which states that we now have, or very soon will have, the technology to create genuine homeland security.

The price, of course, would be an enormous loss of personal freedom. Clearly there are limits to the desirability of the Electronic Fortress. We still live, will want to live, and will always live, partly in Frontier Town. The question is whether we will have any choice. If we do have a choice, how can we create a viable society that avoids the extremes of the above two alternatives?

While the danger of new forms of external invasion as well as internal violence are real, the threat of tyranny is perhaps more insidious.

This is not because we cannot trust our leaders. In an editorial shortly after the events of September 11th, (Patriotism and Dissent in the Modern Age, December 10, 2001), we argued that a certain amount of trust is required if we are to give our government the necessary authority to engage in effective clandestine antiterrorism activities.

The real problem is that our technology is becoming so essential to the functioning of our society and so complex that it is getting away from us. Soon only the government may be able to afford and understand it.

Consider the fact that the military is reportedly developing $29,000 electronic rifles that fire smart bullets that track their target, as well as miniature hovering drones that fire laser beams and have the ability to see through walls. (We will consider the privacy aspects of this issue in a future editorial.)

The critical question here is whether, incrementally and by default, we are in fact giving all power to the government. When the average citizen can no longer afford or understand the technology required for personal and collective security, what will be left of individual rights under the Second Amendment?

Balancing freedom and security

The gun control debate reflects the larger tension in our society between the need to provide collective security while preserving our individual rights.

The key to retaining any semblance of individual rights under the Second Amendment must be individual responsibility. This means taking personal responsibility for our own conduct while assuming shared responsibility for matters involving our collective security.

To approach the gun control issue, for example, we must first parse the problem to determine the extent to which individual responsibility is possible. Several different categories of problems are easily identified, such as child deaths from firearms in the home, drug-related gun violence, rampages by crazed fanatics like the Beltway sniper, and threats from terrorists. Each of these requires a different approach.

The way to prevent five-year olds from shooting themselves with guns found in their parents' bedroom is not to outlaw the handguns that responsible adults use to protect themselves from intruders, but rather to educate parents about gun locks and other safety precautions that will keep the guns out of their children's hands. Requiring such education is legitimate.

Any solution to drug-related gun violence should focus on elimination of the drugs that cause the violence. Dealing with snipers and other criminals may or may not require a national ballistics database, but that should not, and we trust will not be a disguised step toward confiscation of guns from hunters and other responsible citizens.

Protecting our society from terrorists will require us to give up some of our freedoms, but the case has not been made that gun ownership should be one of them. Indeed, many believe that September 11th would have ended quite differently if our airliners carried armed guards. (We are not, however, advocating empowering ordinary citizens to carry guns in flight.)

In developing legislative strategies for these and other types of gun-related violence, we must remember that we are balancing competing policies, and that enabling self-defense is one legitimate policy. Reasonable restrictions are constitutionally permissible but, to be deemed reasonable, any restriction must be narrowly focused on the specific problem and should never be so broad as to infringe needlessly on our Second Amendment rights.

To insure that this approach is followed, we must be fully informed and actively involved in the process. We should insist that our legislators take the same minimalist, incremental approach that Judge Parker advocated for the courts.

Any legislation that restricts our individual rights should have strict monitoring procedures as well as sunset provisions so that we can assess the effectiveness of the measure and then be able to make an informed decision about the need to re-authorize it.

We must also be aware that the ever accelerating rate of technological change will make it increasingly difficult to predict the future consequences of our present actions. This makes it critical that we undertake no measures that restrict our individual rights without a thorough assessment of possible alternatives as well as the long term consequences of each.

Gun control must be recognized as part of the larger issue of how we can protect ourselves and our society from violence without undermining our civil liberties. Blindly imposing ever greater restrictions on our personal conduct is not the solution. Nor should we automatically look to the government to protect us from ourselves and others. To provide adequate collective security, a balanced approach is required in which we cede the minimum amount of authority to the government.

It is our government, after all, and we are ultimately responsible only to ourselves.

Editorial Advisory Board members C. Carey Deeley Jr., Paul A. Tiburzi, Rachel A. Wohl and Robert Zarnoch did not participate in the adoption of this opinion.

BOARD MEMBERS

Alison L. Asti, Chair

Andrew D. Levy

Jose Anderson

Michael D. Oliver

Harriet E. Cooperman

Karen Rothenberg

C. Carey Deeley, Jr.

Craig Thompson

Jack L.B. Gohn

Paul A. Tiburzi

Robert Gonzales

David Walsh-Little

Neal M. Janey

Alexander Wright

Robert D. Kalinoski

Rachel Wohl

Robert Zarnoch

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.