Thinking About Virginia Tech and Guns
By
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, ÒWhere was
the a lapse among officials?Ó ÒWho
dropped the ball?Ó ÒWhy did this or that E-mail not get sent out sooner, and
why was the campus not shut down immediately?Ó ÒIf officials had acted
correctly, the killing of 33 people could have been avoided!Ó 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 werenÕt there
more tables to stuff in front of classroom doors to keep the shooter out? Why were not students alerted sooner,
better? Why wasnÕt someone or everyone more clairvoyant? It is frustrating for
sure.
It
appears useless to protest that,
Òthere ought to be a law,Ó for there is a law, more than one, and they
were violated. In addition to
that, on a magistrateÕs 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 Òright to bear arms.Ó
When
an applicant for purchase of a firearm is found to be Òmentally defective,Ó by
a Òcourt, board, commission or other lawful authority,Ó and Òis a danger to
himself or others,Ó 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 ÒfixÓ 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, Òa 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.Ó 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. ÒCongress shall make no law. . . . Ó 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, ÒCongressÓ 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, ÒNo 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.Ó 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 ÒincorporatedÓ
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 Òincorporation.Ó The theories include Òselective incorporation,Ó 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 ÒincorporationÓ 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 Òwas not intended to limit the powers of the State governments
in respect to their own citizensÓ and Òhas no other effect than to restrict the
powers of the national government.Ó 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 ÒincorporationÓ 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
ÒincorporatingÓ 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 todayÕs 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 ÒregulationÓ 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.
4/26/07