Thinking About Virginia Tech and Guns


Richard W. Crockett



In the questions addressed to officials by the media in the aftermath of the tragedy, there is an appetite to lay the blame on someone other than the shooter in the massacre at Virginia Polytechnic Institute.  The questions seem to ask, “Where was the a lapse among officials?”  “Who dropped the ball?” “Why did this or that E-mail not get sent out sooner, and why was the campus not shut down immediately?” “If officials had acted correctly, the killing of 33 people could have been avoided!”  Answering these questions and angry protestations should help us to fix the blame on someone, right?  Who?  The college president, maybe?   Or the college police?  Or some person in the communications network, or the cell phone company?  Why weren’t there more tables to stuff in front of classroom doors to keep the shooter out?  Why were not students alerted sooner, better? Why wasn’t someone or everyone more clairvoyant? It is frustrating for sure. 


It appears useless to protest that,  “there ought to be a law,” for there is a law, more than one, and they were violated.  In addition to that, on a magistrate’s order on December 13, 2005, the perpetrator was made to submit to a psychiatric exam, which we are told revealed mental illness. The term widely used by the curbside psychologists commenting on the events is that the shooter suffered from paranoid schizophrenia.  Yet the school remained in the dark as to his condition and even to the danger and risk to the community that he apparently posed. Some opinion suggests that paranoid schizophrenics are not always dangerous.  Still, the results of his mental examination were not passed on to school officials, and this is perhaps the result of professional privacy concerns in behalf of the patient.  However, it would seem that once a magistrate ordered an examination, its results would be part of a public record.  But, apparently it is not.  If blame is to be laid, it would appear to be in the inability of the legal system to communicate with those for whom the examination results indicate a measure of risk. Colleges are not in that loop.


Another place where a lapse may have occurred, and perhaps it occurred on ideological and political grounds, involves the failure to place the name of the shooter on the national computerized alert system used for background checks during the sale of firearms.  This should have been done because of the results of his psychiatric examination. This would have been the responsibility of the State of Virginia.  It may be that the climate of opinion in Virginia is hostile toward rules restricting the sale and ownership of firearms, and, consequently, state and local officials may not be eager to participate in this database.  Otherwise the firearms vendor would have been alerted to the potential restriction upon the shooter's “right to bear arms.”


When an applicant for purchase of a firearm is found to be “mentally defective,” by a “court, board, commission or other lawful authority,” and “is a danger to himself or others,” it was illegal for him to purchase a gun according to the Bureau of Alcohol, Tobacco, Firearms and Explosives.  This may be an area where a “fix” is appropriate.  Since it is federal statute that established the national background check database, the repair to the system could come in the form of a mandate, funding for and implementation of the database.  This would eliminate resistance to implementation of the program on the ground that it was an un-funded mandate, and was too expensive. Still, there is another problem.


The second Amendment to the U.S. Constitution provides that, “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.”  As part of the Bill of Rights, the second amendment appears on its face to restrict only the national government from abridging the right to keep and bear arms.  This is recognized as fact among scholars, and the authority usually cited for this view is the beginning words of the first amendment.  “Congress shall make no law. . . . ”  This preface is interpreted to apply to all of the following amendments in the Bill of Rights, and the Bill of Rights is binding upon the Congress and the national government. Emphasis is upon the word, “Congress” and by implication with language so specific, it appeared that states could make laws to abridge the right to keep and bear arms, as well as other rights, but Congress could not.


Following the Civil War, the Congress sought to remedy this situation by adding the Fourteenth Amendment.  In the Fourteenth Amendment, citizenship is defined, which had not been done before, and citizens rights were stated.  In the language of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”  The states were now bound to honor the Bill of Rights. In this manner they fixed the problem of state infringement upon the Bill of Rights.  Or, did they? 


Incorporation is the name given to the method of making the Bill of Rights binding upon the states. It is understood that what is “incorporated” are the provisions of the Bill of Rights and it is said that they are incorporated through the due process clauses of the Fifth and Fourteenth Amendments.  There are several theories of the doctrine of “incorporation.”  The theories include “selective incorporation,” among others, which means some parts of the Bill of Rights are prohibitions against the action of states and some are not. There are other theories of the doctrine of “incorporation” as well.  The process of incorporation comes from Court decisions involving cases that come before the court. On a case-by-case basis, through these court decisions, the language of the Bill of Rights gradually becomes binding upon the state governments. Under this theory, most of the Bill of Rights has been held by the courts to be incorporated, but two amendments have not.  The Seventh Amendment, which guarantees the right to a jury trial in suits at common law, involving more than twenty dollars has not been incorporated as a restriction against the action of the states. The problem here is no doubt the amount of money involved. It is economically out of date, as is the idea of a militia as necessary to the security of a free state somewhat out of date. We now have a standing army.  Accordingly, the other un-incorporated amendment is the Second Amendment.  This means that the states may make rules regulating firearms.  An individual state could theoretically even outlaw firearms.  But the national government could not, because the Second Amendment prohibits that. 


The first case directly addressing the Second Amendment was U.S. v. Cruikshank (1876), and the Court ruled that the Second Amendment “was not intended to limit the powers of the State governments in respect to their own citizens” and “has no other effect than to restrict the powers of the national government.” Although this case was decided in 1876, it is clear that the court did not take account of the Fourteenth Amendment, passed in 1868.  In Presser v. Illinois (1886), the court permitted states to regulate militias as described in the Second Amendment, but permitted the people to keep and bear arms. In United States v. Miller (1939) held that the Second Amendment does not protect the right to possess a sawed off shotgun, with a barrel of less than eighteen inches in length.  In Duncan v. Louisiana (1968), while not addressing the question of “incorporation” per se, the court favorably quoted one of the writers of the Fourteenth Amendment, and the quotation included the right to keep and bear arms as among those rights that the Fourteenth Amendment guarantees as a limitation upon the power of the states.  Unless this case is seen as an “incorporating” case for the second Amendment, and many scholars agree that it has not been incorporated into the individual rights that the states may not abridge, it remains that the Second Amendment is not binding upon the states.


The greatest irony in all of this is that the failure of the Supreme Court to incorporate the Second Amendment through the due process clauses of the Fifth and Fourteenth Amendments as a restriction upon the states power to regulate firearms is consistent with conservative judicial philosophy, because it leaves the issue to the states to regulate as they see fit.  This is of course consistent with states rights doctrine, which in today’s world may be politically obsolete.  Yet, incorporation of the Second Amendment is what gun owners should want to see, in order to minimize regulation of firearms.  Still the idea of regulation of firearms is sure to persist, since the second amendment is the only amendment that explicitly endorses “regulation” in any form.  It may appear to the laymen, as opposed to Constitutional lawyers, that while confiscation of firearms may be unlikely, if not impossible, their regulation, even at the federal level, seem certain.  However, at this point in time it is not politically likely, beyond tweaking the implementation of existing rules. 


There are members of gun-owners organizations who this week have actually advanced the argument that the solution to problems of the sort at Virginia Tech, is to permit everyone to carry a gun.  Can you imagine what kind of world we would live in if rather than the rule of law, we returned to the rule of the fast gun?  Road Rage, Slow to change traffic lights—Wow guys! —how we could keep our girl friend in line—or she could keep us in line.  Maybe we all should take a psychiatric exam.