On January 16th, President Obama unveiled a sweeping plan to curb gun violence. As part of the agenda, he signed executive orders ddesigned to give law enforcement, schools, mental health professionals and the public health community additional tools they need to develop emergency and preparedness plans. He also called upon on Congress to approve an assault weapons ban and universal background checks for all gun buyers. Congress is now considering legislation.
Melissa Hamilton is a visiting assistant professor at the University of Houston Law Center and brings a unique perspective to her specialty of criminal law. She earned a J.D. from the University of Texas School of Law and a Ph.D. in the fields of criminology and criminal justice from that university's graduate program. In addition, she also has years of prior experience as a police and corrections officer in Clearwater, FL. Hamilton's research interests are oriented toward interdisciplinary scholarship involving interpersonal violence, sex crimes, mental health and the law, sentencing, and civil commitment. Her scholarship includes traditional legal analysis as well as empirical studies, and she regularly publishes in law reviews, policy journals, and social science periodicals. Hamilton is well-versed on gun control and took a few minutes to answer questions about the controversial issues.
Q.) The debate over stricter gun control laws has raged from Washington to the Town Square for years. It would seem to be a federal issue, but states and municipalities enact their own measures or threaten to ignore federal law. Please explain jurisdictional issues.
For a long period of time it was true that states and local authorities were relatively free to regulate guns, unless the particular enactment was less restrictive than an applicable federal statute. But the U.S. Supreme Court's rulings in the cases of Heller and McDonald have changed the landscape substantially. In District of Columbia v. Heller (2008) the Supreme Court for the first time ruled that the Second Amendment's right to bear arms was not limited to the context of maintaining a "well-regulated militia." Instead, it ruled that the right of the people to bear arms applied to individuals. Then in McDonald v. City of Chicago (2010), the court finally directly answered the question whether the Second Amendment's right to bear arms was applicable to the states. A majority ruled that it did. This meant that states (or local governments) cannot restrict individuals from owning and carrying guns if such restriction would violate their Second Amendment rights.
The court in both opinions conceded that the right to bear arms was not absolute. It posited that some regulations and restrictions would be constitutional. Justice Scalia in Heller mentioned that gun ownership could be restricted for felons and the mentally ill and that the commercial sale of arms might be regulated. The Court in McDonald again warned that it did not mean that no limits would ever be permissible, giving as examples the prospect that states could prohibit carrying concealed weapons in places such as schools and government buildings. In sum, these cases stand for the proposition that while individuals have a constitutional right to bear arms, this right is not unconditional. Other than some of the foregoing suggestions, the Supreme Court has generally left unresolved exactly where the lines should be drawn in determining the constitutionality of any limitations. Legal objections to a variety of state and locally enacted restrictions have already been working through the courts, and it is likely any newly enacted regulations will be challenged, too.
Q.) Where do Texas and other states stand on gun control measures? Is there evidence controls in those states or cities such as Chicago or Washington, D.C., have had any effect on gun violence?
Texas is one of the weakest in terms of having few laws restricting gun purchases or ownership. There is wide diversity among the states in terms of their gun control laws. Even recently, states are inconsistent with the direction they are taking. California and New York, already with some of the most restrictions, are looking to strengthen gun control laws. On the other hand, various state legislators and law enforcement personnel have made recent pronouncements about such things as passing local laws that would block any federal gun control laws and/or make it illegal for federal officers to enforce those laws. These efforts are, at least from a legal perspective, merely grandstanding as federal law trumps state or local laws here.
In order to appropriately study whether a particular regulation has an impact on gun violence, researchers would have to develop extremely sophisticated methods to control for a host of other, quite relevant factors. The mere fact that gun violence may increase or decrease following the implementation of a particular regulation does not automatically mean the regulation is presumptively a cause of the change. It may not even be correlated since the increase or reduction may be related entirely to other factors or just be a matter of chance. Researchers studying violence, for example, have long recognized that trends in violence, even gun violence, are related to many different factors involving individual factors, contextual characteristics, local conditions, social norms, economic indicators, and even weather conditions. I do not believe any such empirically sound studies exist.
Q.) Why are some measures implemented through executive order while others require congressional approval?
Executive orders are essentially instructions given by the president to officials in the executive branch. Any action by the president that requires Congressional approval is not really an executive order, but more of a recommendation. The question of whether the president has the legal power to demand what is in an executive order or not is one that involves the broader debate of the separation of powers.
Q.) There is talk that "this time is different" for meaningful weapon controls. What's your overall assessment and which areas of President Obama's proposal would seem to have the best chance?
I will respond to this mostly from a constitutional perspective. There appear no Second Amendment issues with the funding efforts. The real threat to them is merely a normal fiscal question about the federal budget, particularly in light of the broader fiscal debate. Still, the idea that "this time is different" appears most relevant to why the aid measures will be viewed as the most palatable. The requirement of mandatory background checks on all gun purchases (i.e., including private sales) has a decent chance of being held constitutional. I can envision a strong argument that background checks are reasonably related to preventing guns from getting into the hands of individuals to whom they might constitutionally be prohibited, such as felons and the mentally ill that Justice Scalia mentioned. The ban on armor-piercing bullets is quite likely constitutional. The proposals with the weakest chances are the bans on high-capacity magazines and certain assault-style weapons. On the one hand, the Supreme Court in the landmark decisions of Heller and McDonald highlighted the importance of a right to have handguns for self-defense in the home. This type of weapon or equipment does not seem to be highly relevant to home self-defense. On the other hand, we have little precedent to date for what types of weapons are or are not covered by the Second Amendment.
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