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THE CONSTITUTIONAL IMPLICATIONS OF GUN CONTROL AND SEVERAL REALISTIC GUN CONTROL PROPOSALS*
Mark Udulutch
INTRODUCTION
The public is polarized on the issue of gun control. Anti-gun control activists believe that it is each and every American's individual right to bear arms.[1] Various pro-gun control organizations disagree and propose different methods of gun control.[2] For example, there are individuals who would ban all handguns; [3] as well as those who take a less radical stand and who would simply increase the controls on firearms. Moderate gun control groups propose measures such as requiring an individual to successfully complete a firearms safety course before possession of a gun is allowed, [4] or to wait for a mandatory period of time before taking possession of a gun. [5]
Today, there are approximately 20,000 different gun control laws in existence, ranging from those enacted by municipalities and states, to those enacted by the federal government. [6] Individuals opposed to gun control point to this fact, and assert that gun control is a failure.[7] The truth is that, for the most part, these laws are ineffective because they lack scope, breadth and enforcement.[8] [Page 20]
This Note will consider the issue of gun control in five steps. First, it will discuss why it is necessary that we have gun control laws. Second, it will show that any constitutional misgivings on gun control legislation are unfounded. Third, it will analyze the constitutional basis for federal firearms regulation. Fourth, this Note will explore the constitutional implications of the fourth and fifth amendments in relation to gun control. Finally, a number of realistic gun control proposals will be suggested.
II. SHOULD THERE BE GUN CONTROL?
In a democratic society, such as the United States, two things need consideration prior to the enactment of legislation for the purpose of solving a social problem. The first concern is whether there is a problem that can, in fact, be controlled through legislation. The second is whether the majority of Americans would support governmental intervention to provide a solution to that problem. Both of these questions must be answered affirmatively or further discussion of gun control legislation would be senseless.
Firearms are used to murder nearly 12,000 people annually; [9] [Page 21] another 1,750 persons suffer death by accident; [10] and an estimated 200,000 people are injured. [11] In addition, more than 16,000 people use firearms to take their own lives each year. [12] Although they constitute only a third of all firearms, handguns are used in three-fourths of all firearm murders and one-half of all murders. [13] Even in light of these statistics, the pro-gun advocates continue to herald the "virtues"' of gun ownership.[14] [Page 22]
Over the years, both sides of the gun control debate have used statistics in attempts to make their arguments.
Statisticians, however, point out that the persuasiveness of a statistic lies in its ability to be factually verified. [15] Here, the pro-gun control forces have had an advantage over the anti-gun control activists. They present the corpses and shattered limbs that result from the misuse of firearms as the evidence needed to successfully state their position. [16] The pro-gun activists, however, argue that firearms actually prevent murders, rapes and burglaries. [17] The problem with this argument is that it lacks credible statistical verification.[18]
Returning to the central question, should additional legislative action be taken to regulate the nearly 70,000,000 handguns and [Page 23] 140,000,000 long guns now in the United States? [19] The answer is yes. Firearms are certainly needed for national defense and law enforcement, but they are not needed by individual citizens to serve as the tools for social violence. Rational, workable federal legislation is the appropriate means to stop the misuse of firearms.[20]
More aggressive gun control laws are needed to reduce the problem. However, legislative measures will work only to the extent they are supported by the majority of the people. [21] While the public has not given its support to every form of increased gun control legislation, it has supported the less intrusive proposals. [22]
Based on the analysis of public opinion polls from 1938 through 1972, one author wrote that "[t]he vast majority of Americans have favored some kind of action for the control of civilian firearms at least as long as modern polling has been in existence."'[23] It should be noted [Page 24] that, depending upon how a question is phrased, public opinion polls on gun control generate different responses. [24] For example, one Gallup Poll posed the question, "'Would you favor or oppose a law which would require a person to obtain a police permit before he or she could buy a gun?" [25] The first response given was 75% in favor of the law; that response has subsequently fluctuated from 68% to 78% in follow-up polls. [26] In contrast, another poll asked, "'Do you think that people like yourself have to be prepared to defend their home against crime and violence, or can the police take care of that?" [27] Some 52% of the people felt that they needed to be prepared. [28] The difference in these questions was that the first dealt with other persons, while the second was concerned with the person responding directly to the question.
Professor James Wright compared two extensive gun control surveys in order to eliminate many of the misleading linguistic factors associated with public opinion polling. He compared a polling report prepared by Decision Making Information, Inc. (DMI), for the National Rifle Association, with a report prepared by the Caddell Political Polling Firm (Caddell), for the Center for the Study and Prevention of Handgun Violence. [29]
Professor Wright arrived at several conclusions regarding gun control. He first concluded that a significant number of people favor the licensing or registering of handguns. [30] Second, he indicated there is general agreement that gun control legislation will be effective only if it is the same throughout the country.[31] This requires enacting federal or uniform state legislation. Finally, he found that the general public does not believe that gun controls violate basic American freedoms. [32]
It should be noted that Professor Wright's comparison does not address all the salient issues. This is because the polls did not address [Page 25], identical topics. [33] The DMI poll dealt with long guns and handguns, while the Caddell poll dealt exclusively with public opinion regarding handguns. [34] Nevertheless, it can be concluded that the general public is in favor of at least some increased gun controls. [35]
III. THE SECOND AMENDMENT: DOES IT GUARANTEE AN INDIVIDUAL THE RIGHT TO HAVE FIREARMS?
The second amendment to the United States Constitution states 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."' [36] It is a common perception, especially among pro-gun advocates, that this amendment guarantees an individual the right to possess firearms. Actually, English common law, the original intent of the second amendment and its subsequent judicial interpretation offer a substantially different picture.[37]
Common Law and the Original Intent of the Second Amendment
English common law does not support the notion that an individual has an absolute right to have and to make use of firearms.[38] As far back as 1328, the English government passed a statute saying that no one should "go nor ride armed by night or by day in fairs, markets, nor in the presence of the justices or other ministers."' [39] In 1670, another law was enacted which held that no one could keep guns who was lower in rank than the son or heir of an esquire, unless he [Page 26] possessed lands that earned at least one hundred pounds per year. [40] Finally, "[t]here was no attempt in the English Bill of Rights to create an absolute right to bear arms."' [41] The court in the case of Burton v. Sills [42] noted that although the: English Bill of Rights of 1689 was aimed at certain abuses which included the disarming of Protestants while others remained armed, its history and terms make it clear that its reference to the right of Protestants to have arms was "a class right rather than an individual right"' and that "individual self defense was not within its protective purpose."' [43]
The "right"' given by the English Bill of Rights was for a class of persons to have arms within the context of the rest of the law.[44] Hence, no absolute right to bear arms was ever intended by the English Bill of Rights.
Since there appears to be no absolute right for an individual to possess arms under the English common law, an investigation of the second amendment itself is necessary in order to ascertain whether such a right was intended by the framers of the United States Constitution. The congressional debates of the First Congress show that "the intent of Congress in passing the second amendment was to prevent the federal government from destroying the state militia."' [45] In these debates, Representative Gerry stated that the purpose of the militia was "to prevent the establishment of a standing army, the bane of liberty."' [46]
It would be wrong to think that the founding fathers failed to consider whether the individual citizen should have the right to bear arms. [Page .27] Several proposed amendments favoring this right were made, but none was adopted. [47] This alone suggests that no individual right to bear arms was intended in the Constitution. In United States v. Miller, [48] the Supreme Court intimated that the purpose of the second amendment was "to assure the continuation and render possible the effectiveness of [the militia] . ." [49] Thus, there was no intent by the founding fathers to give individuals the right to possess arms.
B. Judicial Interpretation of the Second Amendment
To date, the Supreme Court has specifically dealt with the second amendment on only four occasions. The first was in 1876, in the case of United States v. Cruikshank.[50]
The Court did not fully examine the breadth of the second amendment, but it did conclude that there was no absolute constitutional right to "bear arms for [even] a lawful purpose."[51] [Page 28] In addition, this Court announced that the non-infringement language of the amendment pertained solely to the Congress.[52] No individual right to bear arms was noted.
Ten years later, the Court reviewed Presser v. Illinois,[53] and reaffirmed the position taken in United States v. Cruikshank. The Court stated: The right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this as has been seen, means no more than that it should not be infringed by Congress. This is one of the amendments that has no other effect than to resist the powers of the National government . . . ."'[54]
Furthermore, the Court concluded that the states could control firearms to the extent that control is needed for the common good.[55]
Miller v. Texas [56] was the third Supreme Court case in which the constitutionality of a state firearms control law was brought into question. Following a trial, Miller was convicted of murder. He claimed that his second amendment rights were violated by a Texas law prohibiting the carrying of a gun in public. The Court affirmed Miller's conviction and again restated the Cruikshank holding by writing that the amendment applies "only upon the Federal power, and the restrictions of these amendments have no reference whatever to proceedings in state courts."' [57]
United States v. Miller [58] is the most recent case that the Supreme Court has heard directly concerning the second amendment. This case is also the only twentieth-century opinion. Miller involved the indictment [Page 29 ] of two men, Jack Miller and Frank Layton, for violating the National Firearms Act of 1934 [59] by transporting a sawed-off shotgun across state lines. [60] The district court quashed the indictment, holding that section eleven of the act under which indictment was brought violated the second amendment. [61] The Supreme Court reversed, finding the federal law constitutional. [62]
In United States v. Miller, the Supreme Court looked to the original intent of the framers of the second amendment [63] and concluded that "[i]n the absence of any evidence tending to show [that a weapon has a] 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."' [64] This opinion was favorably cited in Lewis v. United States, [65] when Justice Blackmun, writing for the majority, noted that "'these [federal] legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties."' [66] Since 1939, Miller has consistently been used by the [Page 30] federal courts to interpret the second amendment. [67]
An Individual or a Collective Right?
Not one of the Supreme Court cases addressing the second amendment clearly responded to whether the amendment guarantees an "individual"' or a "collective right"' to possess firearms. [68] The "individual right"' theory holds that under the second amendment "the federal government could not prohibit all gun ownership and the right protected might be deemed so fundamental to the Anglo-American political system that it would place some restrictions on state or local laws prohibiting gun ownership."' [69] In contrast the "collective right"' approach [Page 31] provides that the second amendment only prohibits the federal government from restricting access to firearms in such a way that it would seriously inhibit the states from raising a militia or carrying out effective police actions. [70] The amendment has no application to state legislation. [71] This is the view espoused by the majority of legal scholars, [72] and the view that is sanctioned by the American Bar Association. [73]
A strong argument can be made that United States v. Miller implied that there was only a "collective right"' to have guns and that no individual right existed. The Miller Court found that the "obvious purpose"' of the second amendment was to "provide for organizing, arming, and disciplining, the militia . . . ."' [74] Therefore, the amendment, by implication, was not for the purpose of allowing citizens the right to possess firearms while acting in their private capacity. [75]
Following Miller, the "collective right"' approach was further developed by the lower federal courts. [76] For example, in [Page 32] Stevens v. United States, [77] the Sixth Circuit Court of Appeals held that "[s]ince the Second Amendment right 'to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right to possess a firearm."' [78] The holding in United States v. Warin [79] was even more succinct, stating "[i]t is clear that the Second Amendment guarantees a collective rather than an individual right."' [80] It is clear that there are no bars upon the federal regulation of firearms in the private sector. Technically, this means that Congress could prohibit private ownership of all firearms without violating the second amendment. Whether such actions would be realistic, given the likely problems involved in enforcing the law, is a question that is outside the scope of this note. [81] [Page 33]
IV. A CONSTITUTIONAL BASIS FOR FEDERAL FIREARMS RESTRICTIONS
This note has demonstrated that the second amendment is not a limitation upon the states' right to control firearms, [82] and that the federal government is only prohibited from infringing upon the "collective right"' of the states to raise a militia or to carry out effective police functions. [83] The constitutional basis for such federal restrictions remains to be shown.
Congress generally uses the commerce clause [84] to justify firearm control statutes. Such statutes fall under the rubric of criminal statutes [85] and can be justified in three ways: (1) the activity involved relates to interstate transactions; [86] (2) the activity has an effect on interstate commerce; [87] or, (3) the activity is such that control is necessary and proper so as to effectuate the commerce power. [88]
Commerce-based criminal statutes to date have received a large amount of deference from the Supreme Court as evidenced by Perez v. United States. [89] In Perez, the Court dealt with a federal "loan sharking"' statute and found that it was not necessary for the Congress to make "particularized findings in order to legislate."' [90] Congress need only have a rational argument demonstrating a link between the regulated activity and commerce. [91] Hence, the threshold for the regulation of some aspect of society, including the possession of firearms, is not difficult to meet. [92] [Page 34]
Of course, the Constitution itself must be obeyed when enacting commerce-based legislation. As far as the second amendment is concerned, however, the only violation Congress could make would be to infringe upon the collective right of the people to bear arms. [93] Such an infringement is quite unlikely given the legislation proposed at all levels of government today.[94]
V. THE IMPLICATIONS OF THE FOURTH AND FIFTH AMENDMENTS ON GUN CONTROL Presenting gun control proposals without first considering the fourth [95] and fifth [96] amendments to the United States Constitution would show a lack of forethought. Neither amendment prohibits the enactment of gun control legislation. However, these amendments have to be considered when discussing the specific requirements of any such legislation as well as its enforcement.
The Fourth Amendment
The fourth amendment provides "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . ." [97] This amendment in no way prohibits either local, state or federal firearm legislation, but the amendment does become important when considering enforcement. Practical concerns must be taken into account. For instance, a ban on all 210,000,000 civilian firearms, [98] or simply a ban on the 70,000,000 handguns in private hands today, [99] would create insurmountable law [Page 35] enforcement problems. Some gun control ideologues still argue that a ban would be ideal, [100] but a ban would be completely unrealistic in today's society. The general populous is not willing to support a ban on all handguns, let alone all firearms. [101]
The purpose of the fourth amendment is to prevent the government from conducting an unreasonable search and seizure of a person or that person's belongings. [102] Without the presence of exigent circumstances, [103] a law enforcement officer must obtain a warrant from a magistrate to search an individual's property [104] without permission. This procedure requires the officer to show "probable cause"' to believe that a contraband is on the premise in question. [105] If "probable cause"' is shown, then a warrant is issued and the officer may legally conduct a search and seizure. In recent years the Supreme Court has weakened the warrant requirement as it pertains to vehicles and to the individual in public places. If an officer has a "reasonable suspicion"' that a person is carrying a weapon in public in violation of a gun control law that officer could stop and frisk the suspect for the weapon. [106] As to vehicles, a warrantless search is often upheld as [Page 36] lawful because, by its nature, an automobile is mobile [107] and has not been deemed by the Supreme Court to warrant the same protection as one's home.[108]
The home is given the greatest protection under the fourth amendment. [109] Most firearms are kept in the home. [110] Therefore, a law enforcement officer will rarely be in a situation where he or she will not have to obtain a warrant in order to investigate a possible firearm control violation. By chance, an officer may come across a person who is carrying a gun in public or has one in his or her car and is also suspected of being in violation of a gun control law, but these situations will be the exceptions to the norm. In general, an officer will have to find "probable cause"' that an individual has a firearm in his or her home in violation of a firearm control before he or she may search the home and seize the weapon. The procedure creates a significant barrier for an officer to clear.
Fourth amendment concerns will be raised when firearm controls are increased because increased controls will logically lead to more violations which require the showing of "probable cause"' and the attainment of a proper warrant. Fourth amendment requirements must [Page 37] not fall prey to an officer's increased workload. Additional officers may have to be employed to ensure that the integrity of the fourth amendment is protected as gun controls are enforced. [111]
B. The Fifth Amendment Right Against Self-Incrimination Requiring a felon to register a firearm when it is illegal for him to possess one arguably violates his fifth amendment right against self-incrimination. In Haynes v. United States, [112] the Supreme Court reversed the lower court on just this issue. [113] The case dealt with the National Firearms Act, which was worded in such a way as to force the individual to release information that might be used against him. [114] Furthermore, as the law read at the time, the information acquired could be shared with other law enforcement officials. [115]
Following the Haynes decision, Congress amended the act to counter the Court's objections. [116] The law was changed in two ways. First, the transferor of the firearm was made to provide the incriminating information, and not the transferee. [117] Thus, the transferee would [Page 38] not provide self-incriminating information. Second, the law was altered to guarantee that no information given would be shared with other authorities, [118] thereby preventing such information from being used as evidence against the applicant in a criminal proceeding for violations of the law that occurred before or at the same time as the filing. [119] This alteration in the law was upheld as nonviolative of an individual's right against self-incrimination in United States v. Freed. [120] Thus, gun control laws can be structured so that people accused of a crime will not be forced to incriminate themselves. [121] It is the registration and transfer of firearms that will pose some of the greatest problems when increasing the controls on firearms. If one is to advocate that all guns be registered, and each transfer recorded, the laws must be such that they do not violate the right against self incrimination. [122] [Page 39] C. Would Increased Gun Controls Require Financial Compensation Under the Fifth Amendment? The fifth amendment states, in part, "nor shall private property be taken for public use, without just compensation.[123]
Over the years, the Supreme Court has used various tests to interpret this clause. Regrettably, these tests are neither consistent nor complementary. The tests lack direction and result in confusion. [124]
Depending upon the Court's interpretation of a gun control statute, the court may deem compensation constitutionally necessary. The more rigid the control, the more likely such a control would be labeled a taking requiring compensation.
One author has described four main tests to categorize the Supreme Court's decisions in this regard. [125]
These are the physical invasion test, [126] the diminution in value test, [127] the police power test [128] and the noxious use test. [129] The same author presented a hypothetical ban on firearms followed by a speculative analysis with respect to each of the tests in order to determine whether compensation would be required. The analysis revealed that under the physical invasion test, one would have to be compensated for his weapons. [130] Within the confines of this test, if a person's property rights are terminated by governmental decree, that person must receive compensation.
As to the diminution in value test, the premise is that as controls on a piece of property increase, its value decreases. [131] In Quilici v. Village of Morton Grove, [132] the district court found that no compensation was needed even though there was a city-wide ban on handguns. [133] [Page 40] The court's reasoning was that owners could still shoot their guns at gun clubs outside the village as well as sell their guns outside the village. [134] The Supreme Court, however, might consider a federal ban on the possession of firearms sufficient to require compensation [135] because there would no longer be any place to own, sell or shoot a weapon within the United States. [136] As for controls that fall short of a ban, how much the value of a firearm must diminish before the Court would find a taking is not certain.
At the state level, the police power test would not require compensation. [137] The seminal decision in this area of the law is Mugler v. Kansas. [138] In that case the state of Kansas prohibited the making and selling of liquor. Mugler's brewery was destroyed, and no compensation was paid. [139] The Court stated: The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use . . . . In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner.[140]
As to firearms, it has been found that no compensation has to be paid when guns are surrendered pursuant to a firearm's registration law. [141] It would thus be easy for a state to justify increased controls, or even a ban on firearms, through its police power.
The federal government, though having no police power, would support the increased controls on the basis of one of its other powers. [142] [Page 41]
In Hamilton v. Kentucky Distilleries & Warehouse Co. [143] the Supreme Court said: [T]he United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power, or that it may tend to accomplish a similar purpose. [144]
To control firearms Congress could use the commerce clause, [145] or the taxing power. [146] If firearms were banned pursuant to one of these other powers, it is doubtful the federal government would have to pay compensation. [147]
Lastly, the noxious use test allows the state to take action in order to avoid some "evil,"' like firearms, without paying compensation. [148] The federal government could regulate and even ban firearms under this test for the "public good."' No compensation would be needed. [149]
One can only speculate as to how the Supreme Court would actually rule if a pervasive ban on firearms were enacted. However, it is safe to assume, pursuant to the fifth amendment, that controls which fall short of a complete ban would be found not to require compensation. A legislature, passing a ban on firearms, might decide to pay compensation without being instructed to do so by the Court. Such a legislative decision might be made with the expectation that payment of compensation would decrease both enforcement problems and the expenses that result from the need for increased enforcement. [150]
VI. SEVERAL REALISTIC GUN CONTROL PROPOSALS
When more than 30,000 people are killed annually by firearms [151] [Page 42] and another 200,00 are injured, [152] it is clear to most individuals that a serious problem exists. [153]
Recognizing the problem is the first step toward a solution. Finding a solution is not easy, nor is it achieved quickly, but this should not obviate gun control. [154]
Given American society and its attraction to firearms, [155] legislation must not be so restrictive that, at its outset, it fails to enlist the cooperation of the American public. [156] At this time, it would be unrealistic to ban all firearms from the private sector. Many pro-gun activists try to attack the pro-control position by arguing that one control will lead to another, and eventually guns will be outlawed all together. Although such a result is conceivable, a complete ban will never be successful unless it is supported by the people. Only public disinterest in firearms would truly result in eliminating them from the social environment.
Neither the approach of a total ban on firearms, as some gun control advocates propose, nor the do-nothing attitude of the anti-gun control activists, are realistic at this time. Yet firearms are a serious problem to the American society. Their destructive misuse cannot be allowed to continue. Some increases in regulations are definitely needed. These regulations will require a realistic compromise between the two extremes in the gun control debate. [157]
When constructing these controls, two goals must remain constant. First, and most importantly, it is necessary to decrease as much as possible the victimization of individuals through the misuse of firearms.
Second, it is important to structure legislation in ways that accomplish the intended purposes while not being overly intrusive upon the individual. In essence, a utilitarian approach must be taken toward gun [Page 43] control. The benefits to society must be maximized, while the possible intrusions to individuals must be minimized.
Federal Legislation: the Only Realistic Answer
Even with 20,000 gun control laws already in existence, [158] the serious problems due to firearm misuse continue. [159] Obviously, the controls that have been designed have not been sufficiently effective. There are three identifiable reasons for this problem: 1) the lack of uniform legislation; 2) the fact that most controls do not go far enough in their attempt to prevent the problems of firearm misuse; and, 3) the controls in place are not effectively enforced.
Sweeping federal legislation would go a long way toward resolving all three of these problems. [160] Such legislation could offer a coherent, orderly means of addressing the gun problem, unlike the present hodgepodge of local, state and federal legislation.
One of the most significant problems resulting from the discrepancy in local, state and federal firearm laws is the transportation of firearms from one state to another. [161] If every state had uniformly strict firearm control laws, interstate transport would not be a major problem. [162] No longer would an individual like John Hinckley be able to purchase a firearm in a state with weak gun control laws, transport his weapon across state lines, and then use it to shoot the President of the United States. [163] However, going to the legislatures of the fifty states to achieve uniformly strict firearm controls is not the most efficient course of action. The failure of even one state to adopt the uniform controls would severely weaken the entire chain of controls. Federal legislation would be far more effective; only one body of lawmakers would have to deal with the increased controls instead of fifty. [164] Furthermore, [Page 44] once established, the controls could not be weakened by the efforts of one state legislature.
The Proposals
Having concluded that federal legislation is the best way to effectively control firearm possession and use, the next question is what kind of legislation? Some intelligently drafted controls are already in place, [165] but they have not proven sufficient. Controls that go further than present federal legislation in preventing the problems of firearm misuse and that are more rigorously enforced are needed.
1. Licensing and Education--A nationwide licensing program would be an effective first step. Such a program already exists for sellers, manufacturers and importers of firearms, [166] but it does not extend to private citizens who buy and use the guns. Not every person who wants to own a firearm should be trusted with it.
To obtain a license, a person would have to meet three criteria. First, he or she could not belong to any of the classes of persons denied the privilege of possessing firearms. [167] Section 922 of the Firearms Owners' Protection Act denies felons, fugitives from justice, drug addicts, illegal aliens, individuals dishonorably discharged from the military, individuals who have renounced their United States citizenship, and mental incompetents the privilege of owning guns. [168] It would be wise to add to this list persons under eighteen years of age.[169]
A second criteria for obtaining a firearm license would be to pass a firearm safety course. Drivers are required to pass a drivers' training [Page 45] course, so why shouldn't a comparable test be administered to license potential gun owners? [170] A firearm's safety course would reinforce student awareness of the danger involved in firearm use and misuse. A course of this nature could, at a minimum, be expected to decrease the number of accidental killings and injuries occurring from gun misuse.
The third criteria would require an extensive background check on a prospective licensee to make sure he or she did not belong to one of the classes of persons prohibited from owning firearms. This check would be made by the police department where the applicant resided. Additionally, this investigate program would be overseen by the Bureau of Alcohol, Tobacco and Firearms.
The cost of such a licensing program would not be insignificant, and, initially, some federal monies would be needed to organize it. Federal dollars, however, should not be used to keep the system running. Instead of being funded by general tax dollars, the licensing program should be funded by persons wanting to own firearms. These funds would be classified as special federal monies, to be used by the Bureau of Alcohol, Tobacco and Firearms to administer the licensing program and to subsidize local police forces for the costs involved in investigating applicants. Training programs would be conducted by federally regulated private businesses that charge for their services. Once a person acquired a firearm license, he or she would be allowed to possess a firearm within the limits imposed by other firearm controls. If after receiving a license to own a firearm the licensee fell into a disallowed class, the license would be revoked on a permanent basis.
2. Firearm Registration--With nearly 210,000,000 firearms already present in the United States [171] it is foolish to believe that a licensing program by itself will keep firearms out of the hands of people who should not have them. Another step toward keeping firearms from untrustworthy people is to require that all firearms be registered. [172] Federal law already requires that "'each manufacturer, importer and maker shall register each firearm that he manufactures, imports, or makes."' [173] However, because of the proposed licensing requirements [174] [Page 46] and the uncertainty of who currently owns what firearm, all firearms in the United States must be registered by their current owners. Each licensed firearm owner would pay for the costs involved in registering his or her own firearms.
Registration need not be a bothersome proposition to law abiding citizens. To keep a gun a citizen would only be expected to successfully complete the licensing process. Following the passage of legislation, all persons not licensed within a designated time, and still possessing a gun, would be required to sell the gun to a licensed owner. Failing to comply with this regulation would subject the person to harsh penalties. Suggested penalties include permanently losing the ability to become a licensed owner, a mandatory jail term, and forfeiture of a significant amount of money. [175] The purpose of these penalties would be to make noncompliance with registration laws so risky that people would be forced to comply. Enforcement would take place in conjunction with normal police procedures. If during an investigation a person is found to be an unlicensed gun possessor, he or she would be prosecuted.
Realistically, not every individual now owning a firearm will comply with this firearm control. Some criminals will still have guns; this cannot be denied. However, with every gun removed from the hands of unqualified possessors, it is expected that the misuse of firearms will decrease.
3. Mandatory Investigation of All Firearm Transferees--A system whereby transferees are automatically investigated for fitness as a gun owner prior to any actual transfer of the weapon is needed to keep track of firearm ownership. Presently, section 5812 of the National Firearms Act requires transferors to file applications for the transfer of their firearms with the Secretary of the Treasury. [176] The transferor provides some information about the transferee in the application. [177] In addition, section 922 of the Firearms Owners' Protection Act provides that it is a crime for anyone "to sell or otherwise dispose of any firearm . . . to any person knowing or having reasonable cause to believe that such a person"' is a member of one of [Page 47] the groups of people not allowed to possess firearms. [178] Unfortunately, neither of these requirements is sufficient since each fails to provide for actual investigation of the transferee.
Because the only lawful transferee of a firearm is one who possesses a valid firearm's license, the investigation required need not be extensive. The person would already have been investigated prior to obtaining his or her firearm's license. [179] The transferee's history, dating from the time the license was received or from the time a firearm was last transferred to the transferee, is all that must be investigated.
None of the transfer costs would be assumed by the federal or local governments. They would instead be paid by the transferor.[180] Unlike the original licensing investigation where the transferee paid the fee, the transferor would pay for the cost of the transfer investigation. In this way any possibility of violating the transferee's fifth amendment right against self-incrimination would be avoided. [181] The failure of the transferor to comply with the transfer laws would subject him or her to the same penalties applicable to persons who fail to register firearms. [182]
4. A Waiting Period--Intricately related to the formalities of a firearm transfer is a mandatory waiting period.
Though the idea of a waiting period is not new [183] it is critical that it be established on the federal level. In 1988 Congress considered the "Brady Amendment,"' which required a one week waiting period before a transferee could possess a transferred handgun. [184] During this time the police could conduct a thorough background check of the transferee. [185] In the scheme presented here, the transfer investigation would take place during the waiting period. [186]
Unfortunately, the "Brady Amendment"' was defeated in Congress. [187] Much of the blame for its defeat must be attributed to the [Page 48] National Rifle Association. [188] The organization produced a mass mailing urging its members to contact their congressmen and to tell them to vote against the bill. [189] The mailing contained substantial factual distortions; for example, that the Brady Amendment would devise "a system where firearm ownership is no longer be a guaranteed right but one controlled by a government bureaucrat who has dictatorial powers and you have no right of appeal on his decision."' [190] The letter went on to say that Congress could "call the bill whatever they want to, but it sets up a system that will eventually take away all your firearm rights and ban gun ownership in America."' [191] In reality the Brady Amendment had no intentions of banning guns, [192] and, as discussed above, there exists no individual constitutional right to bear arms. All that this bill was attempting to do was to add a degree of sanity to the nation's handling of firearms.
A waiting period would not only allow time for the police to verify a prospective transferee's status, but it would also serve as a "cooling off"' period. The otherwise reasonable person who, in the heat of the moment, wants to buy a gun to commit a crime will have to wait to get it. The expectation is that such a person will reconsider his or her plans while waiting.
Anti-gun control organizations are quick to point out that the majority of persons going through the legal channels to purchase a firearm are not in need of any "cooling off"' period. Furthermore, they say that anyone who wants a gun badly enough can find a way around the law. [193] These arguments are valid in many situations, but not in all. It is doubtful that a waiting period would stop a hard-core criminal in the quest for a gun. However, some individuals with criminal aspirations or designs will be thwarted. The inconvenience to prospective gun owners of waiting one, two or three weeks to obtain a firearm is minor when compared to the significance of the tragedies that could be avoided. A waiting period is needed.
5. Taxing Measure for Keeping Firearms Out of City Limits--It seems unlikely that most Americans would accept a ban on all firearms [Page 49]) within the limits of their communities. [194] This, together with the fact that most cases of firearm misuse occur in heavily populated areas, produces a serious dilemma. [195] One of the principal reasons for owning a firearm within a city is for self-protection. [196] Some people believe that if they have a firearm they will be able to ward off anyone wishing to do them harm. Although this reasoning is questionable, it has many adherents. [197] The proposed solution is a combination tax burden-tax incentive scheme.
Those persons licensed to own guns and living in a city may still keep their guns at home, but will be subject to a federal tax for doing so. This tax should be progressive to avoid inflicting a disproportionate hardship on those least capable of paying. Even so, the tax would apply to everyone wishing to keep firearms at a private residence within city limits, and it must be relatively high in order to discourage people from exercising this privilege. Furthermore, the tax would double for every firearm over the first one kept at a private residence.[198]
All collected taxes would be used for increased law enforcement. Although the federal government would allow licensed individuals to keep their guns in their city residences, there is nothing that would prevent a community from banning firearm possession within its city limits.
Those persons licensed to possess a firearm who do not wish to keep them at their city residence may store their guns under lock and key at a gun club. The adoption of such proposals would no doubt [Page 50]) encourage the growth of gun clubs. Guns stored at these clubs would not be subject to the federal taxes imposed on privately housed guns. Only club membership fees would have to be paid. This plan should create a migration of firearms from city residences. Gun clubs could be located either in the country or within city limits. Their main purpose would be to create a centralized secure place where firearms could be kept.
For enforcement purposes, guns would have to returned nightly to the gun club. Exceptions would be made for hunters wishing to take their guns on hunting trips. To take their guns with them, the hunters would register removal with the club, which, in turn, would report those firearms not returned on time. To ensure that each gun club complies with the law, it would be subject to periodic, unannounced investigations by the Bureau of Alcohol, Tobacco and Firearms or the Internal Revenue Service. It would be presumed that those licensed gun owners not returning their guns to the gun clubs had opted to keep their guns at home, and would, therefore, be subject to the gun tax.
6. Banning All Automatic and Military Style Semi-Automatic Weapons--A semi-automatic weapon is one which requires a separate pull of the trigger for each shot. [199] The weapons differ from automatic weapon which fire more than one shot at the pull of the trigger. [200] When addressing the need for increased controls on semi-automatic weapons, one must make a distinction between the types of semi-automatic weapons. There are two general categories of these weapons: the hunting style semi-automatic weapon and the military style semi-automatic weapon. [201] The military style weapons are those semi-automatic weapons designed as assault weapons. [202] They are designed and marketed with large capacity magazines, which allow them to fire [Page 51] many rounds without reloading. [203] Senator Howard Metzenbaum has introduced legislation into Congress that would ban these weapons. [204] Semi-automatic hunting weapons would remain unaffected by this legislation. [205]
Unaltered, a military style semi-automatic weapon is quite formidable; however, its destructive potential can be increased even further by transforming it into a fully automatic weapon. [206] Such a conversion is generally not a difficult operation for a knowledgeable gunsmith. [207] As of 1985, it was estimated that 125,000 of the then existing 500,000 military style semi-automatic weapons had been converted to fully-automatic weapons.[208]
Actual statistics on the number of military style semi-automatic weapons in private hands do not exist because, unless the gun is technically considered an automatic weapon, the buyer need not be licensed.[209]
Even if owners of both automatic and military style semi-automatic weapons were licensed, the primary problem would still remain: namely, the possibility that the considerable firepower of these weapons could find its way into the hands of a disturbed individual. [210]
There are numerous examples of semi-automatic and converted semi-automatics used in slayings. One such instance is the January 19, [Page 52] 1989, slaying of five school children in Stockton, California by a distraught gunman. The killer used an unconverted AKM-56S military style semi-automatic weapon. [211] Also, in January of 1989, a member of the Los Angeles Crips Gang was indicted for possession of a converted M-11 with a silencer that had been used to commit murder. [212] In December of 1988, six members of an Algona, Iowa family were killed by a Mini-14 semi-automatic rifle. [213] Yet another incident took place in March of 1988, when nine people were killed in a crack house by an AR-15 semi-automatic rifle. [214] In light of such occurrences, and the comparatively inconsequential benefits to society in allowing private citizens to possess these weapons, [215] it is apparent that greater controls must be placed upon both automatic and military style semi-automatic weapons. These weapons were designed for one primary reason, to kill people quickly and in large numbers. [216]
While Americans do not seem willing to accept a total ban on firearms, [217] they might accept a ban on automatic and military style semi- automatic weapons. There will be some resistance to a ban on automatic and military style semi-automatic weapons, but its enforcement [Page 53] will be relatively easy compared to a ban on all firearms, or a ban just on handguns, in that there are far fewer of these weapons in the market place. [218] The sale of new automatic weapons, to persons not having specific governmental authorization, was halted May 19, 1986. [219] In addition, all transfers of those weapons, lawfully possessed before that date, are now required to have specific governmental authorization. [220] The result of these measures is that the identity of a significant number of people owning automatic weapons is known. If needed, this information will help apprehend them. As for the military style semi-automatic and the converted military style semi-automatic weapons, no provisions have been made by the federal government to keep track of their whereabouts.
The average owner of a military style semi-automatic weapon, or an automatic weapon, is not a criminal, and substantial compliance with a ban on these weapons could be expected. This would be especially true if the federal government offered to buy these weapons. [221] After a reasonable period of time given to comply, persons still in possession of automatic and military style semi-automatic weapons would be subject to harsh penalties. [222] A ban on military style semi-automatic and automatic weapons is especially needed now, because these weapons have become the weapons of choice for the drug gangs in the United States. [223]
Congress made a good start when it required an additional mandatory ten year imprisonment for those individuals involved in a violent or drug trafficking crime in which an automatic weapon was used. [224]
Nevertheless, the law, as applied to automatic weapons, is not yet broad enough, and it does not address the problem of military style semi- automatic weapons. The ten year mandatory penalty is sufficiently stern, but it should be extended to all persons [Page 54] in possession of an automatic or a military style semi-automatic weapon after the expiration of a buy back date. The potential for disaster that these weapons present is simply too great to allow them in the hands of the general public.
VII. CONCLUSION
The need for strong, realistic gun control legislation becomes obvious whenever another life is taken or an injury inflicted as the result of the misuse of a firearm. This note has presented a number of proposals for increasing gun control nationwide. To be most effective, these proposals should be adopted together and they should be addressed by the federal government. The time to pass increased firearm controls is now. Too many lives have been lost because of firearm misuse.
* The author wishes to acknowledge, with deep gratitude, the insightful comments of Professor Christine M. Wiseman on the earlier drafts of this note.
1. See infra notes 36-81 and accompanying text.
2. The most recognized groups representing the pro-gun faction are the Citizens Committee for the Right to Keep and Bear Arms and the National Rifle Association of America. See 1 ENCYCLOPEDIA OF ASSOCIATIONS 1384, 1836-37 (K. Koek, S. Martin & A. Novello 23d Ed. 1989). The advocates of gun control are represented by Handgun Control, Inc., the Foundation for Handgun Education, and the National Coalition to Ban Handguns. See id. at 1384.
3. Kates, Handgun Banning in Light of the Prohibition Experience, in FIREARMS AND VIOLENCE 139 (D. Kates ed. 1984).
4. D. LESTER, GUN CONTROL: ISSUES AND ANSWERS 125 (1984).
5. See infra notes 183-93 and accompanying text.
6. J. WRIGHT, P. ROSSI & K. DALY, UNDER THE GUN 244 (1983); F. ZIMRING & G. HAWKINS, THE CITIZEN'S GUIDE TO GUN CONTROL 121 (1987).
7. INSTITUTE FOR LEGISLATIVE ACTION, NATIONAL RIFLE ASSOCIATION, TEN MYTHS ABOUT GUN Control 18-21 (1988).
8. Kleck, Policy Lessons from Recent Gun Control Research, 49 LAW & CONTEMP. PROBS. 35, 50 (1986); see also TASK FORCE ON FIREARMS, NATIONAL COMMITTEE ON THE CAUSES AND PREVENTION OF VIOLENCE, FIREARMS AND VIOLENCE IN AMERICAN LIFE 87-95 (1969); J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 244. "Political jurisdictions with rather restrictive regulations often abut jurisdictions with barely any controls at all, [thus creating] an invitation to widespread law evasions."' Id. Some pro-gun control advocates blame the National Rifle Association for the lack of unified legislation. The National Rifle Association is often referred to as the most effective lobby in Washington D.C. Note, A Shot at Stricter Controls: Strict Liability for Gun Manufacturers, 15 PAC. L.J. 171, 192 (1983) (authored by Rose Safarian).
9. This figure was derived by taking the average number of murders committed with firearms from 1980 through 1987.
Year Total Murder-Victims Murders From All Types Of Murders From Handguns Firearms Alone 1980 21,860 13,650 10,056 1981 20,053 12,523 9,224 1982 19,485 11,721 8,379 1983 18,673 10,895 8,216 1984 17,260 10,183 7,560 1985 17,545 10,299 7,544 1986 19,257 11,381 8,454 1987 17,859 10,573 7,804 Average 18,999 11,403 8,403 Hence, 11,403 persons on average are murdered by firearms each year. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, NATIONAL DATA BOOK AND GUIDE TO SOURCES: STATISTICAL ABSTRACT OF THE UNITED STATES 1989 at 168 (109th ed. 1989) (graph no. 281); BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, NATIONAL DATA BOOK AND GUIDE TO SOURCES: STATISTICAL ABSTRACT OF THE UNITED STATES 1986, at 171 (106th ed. 1986) (graph no. 290); see Note, Quilici and Skylar: Alternative Models for Handgun Control Ordinances, 31 WASH U.J. URB. & CONTEMP. L. 341, 341-42 n.2 (1987) (authored by Peter Carlson). Murder is "the 11th leading cause of death and the 6th leading cause of the loss of potential years of life before age 65."' Sloan, Kellerman, Reay, Ferris, Koepsell, Rivara, Rice, Gray & LoGerfo, Handgun Regulations, Crime, Assaults, and Homicide: A Tale of Two Cities, 319 NEW ENG. J. OF MED. 1256, 1256 (1988) [hereinafter Sloan & Kellerman] From 1960 to 1980, the number of firearm homicides increased 160%, while the overall rate of homicides increased only 85% for the same period. Id.
10. This figure is an average of the accidental deaths attributable to firearms from 1979 through 1986.
NATIONAL CENTER FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE U.S.: MORTALITY VOL. 2 PT. A § 1, at 230 (1986) (Table 1-23 of General Mortality section); NATIONAL CENTER FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE U.S.: MORTALITY VOL. 2 PT. A § 1, at 230 (1985) (Table 1-23 of General Mortality section); NATIONAL CENTER FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE U.S.: MORTALITY VOL. 2 PT. A § 1, at 230 (1984) (Table 1-23 of General Mortality section); NATIONAL CENTER FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE U.S: MORTALITY VOL. 2 PT. A § 1, at 230 (1983) (Table 1-23 of General Mortality section); NATIONAL CENTER FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE U.S.: MORTALITY VOL. 2 PT. A § 1, at 230 (1982) (Table 1-23 of General Mortality section); NATIONAL CENTER FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE U.S.: MORTALITY VOL. 2 PT. A § 1, at 230 (1981) (Table 1-23 of General Mortality section); NATIONAL CENTER FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE U.S.: MORTALITY VOL. 2 PT. A § 1, at 228 (1980) (Table 1-23 of General Mortality section); NATIONAL CENTER FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE U.S.: MORTALITY VOL. 2 PT. A § 1, at 228 (1979) (Table 1-23 of General Mortality section). See also Turley, Manufacturers' and Suppliers' Liability to Handgun Victims 10 N. KY. L. REV. 41, 42 (1982).
11. E. DOLAN, GUN CONTROL 8 (2d ed. 1982). As demonstrated previously, handguns are involved in a disproportionately larger number of murders in comparison to long guns. See supra note 9. Other disturbing statistics are associated with handguns. For example, "Someone is injured by a handgun every two and a half minutes;" $500,000,000 is spent annually to treat people shot by handguns; and, on the average, one child under fourteen, is killed daily by a handgun. Smith, The Burdens of Bearing Arms, ESQUIRE, July 1986, at 55, 56.
12. NATIONAL SAFETY COUNCIL, ACCIDENT FACTS 13 (1988). The suicide figures for the years 1983-1985 break down as follows: Firearms 1983 1984 1985 16,600 17,113 17,363 Id.
13. See, supra chart at note 9 and J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 42.
14. The National Rifle Association is the chief producer of this pro-gun literature that is designed to capitalize on the fears of society. For example, both the New York Times and the Washington Post have carried full-page advertisements paid for by the National Rifle Association. One advertisement depicts a woman's mangled locket. The headline states, "Your mother just surprised two burglars who don't like surprises."' Another ad shows a high-heel shoe with the heel torn off. Its headline is, "He's followed you for two weeks. He'll rape you in two minutes."' A third advertisement features a picture of broke eyeglasses and the words, "You were beaten to death last night . . . who cares?" These advertisements convey several messages to the public: that people may not be adequately protecting their families; that without a gun, a woman is not safe; and that people need guns to protect themselves because society does not care. Go Ahead, Make Our Day, THE NEW REPUBLIC, Feb. 22, 1988, at 7 (editorial).
15. See, e.g., W. FEDERER, STATISTICS AND SOCIETY 1, 52-57 (1973). "'If valid and meaningful conclusions are to be drawn from numbers, the numbers must be obtained from a carefully planned and carefully executed investigation."' Id. at 1.
16. See supra notes 9-13 and accompanying text. The pro-gun control forces have compared the number of Americans killed during the years of the Vietnam War to those murdered at home during the same period. "'From 1963 to 1973, 46,121 Americans were killed in the Vietnam War. Over the same period, 84,644 Americans were murdered by firearms within the United States."' NATIONAL COALITION TO BAN HANDGUNS 20 QUESTIONS AND ANSWER (n.d.) (question and answer 2 of pamphlet).
17. One anti-gun control writer has computed that there are "about 645,000 defensive uses of handguns"' each year, excluding police and military uses. Kleck, Crime Control Through the Private Use of Armed Force, 35 SOC. PROBS. 1 (1988). If, in fact, 645,000 murders, rapes, burglaries and other crimes were prevented each year by handguns, the anti-gun control activists would have a very sound platform from which to argue. However, this article and its conclusions are seriously flawed. First, Kleck simply re-examined old surveys that asked 1,000 respondents if they had ever used a handgun for self- protection. Go Ahead, Make Our Day, supra note 14, at 9. From the phrasing of this question, one cannot arrive at a yearly figure, nor can one reasonably extrapolate a nationwide figure from a base figure as small as 1,000 people. Id. In addition, "self-protection"' is defined by Kleck to include a respondent taking his gun with him while investigating a noise in his basement. Id.
18. It was recently estimated by one anti-gun control advocate that the presence of guns in the hands of private citizens has actually saved a total of 61,541,548 lives throughout the history of the United States. This figure was computed by adding two factors: first, the actual number of lives he claims were saved by the use of firearms, 37,659,948; and second, the number of lives not taken by the United States government, 23,881,600. Regarding the second factor, the author assumes that private ownership of firearms has prevented the United States government from becoming tyrannical and purging the population. J. Gazori, Firearms in America: The Costs and Benefits Associated with the Private Citizen Ownership of Firearms 6-7 (March 1987) (an independent report created by Mr. Gazori while serving as an intern to Senator Pullen). Upon reading Gazori's report, one will note so many tenuous assumptions as to render the report completely without worth. For instance, Gazori took a one-time survey of 314 people and extended his findings to the entire population of the United States throughout its history, dubiously asserting that 37,659,948 lives had been saved by the used of firearms. Id. at 6.
19. No one is sure of the exact number of firearms in the United States. "'Many of the estimates that appear in print are better described rough guesses or wild surmise."' J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 25 n.1. Strategically, it is in the interest of both sides of the gun control debate to overestimate the number of firearms in the private sector. Gun control advocates use large numbers to demonstrate the urgency of the problem, while the anti-gun control proponents utilize the large numbers to show the vast number of people whose "rights"' would be violated by gun control. Id. at 43. A four step process was used to produce the figure of 210,000,000 firearms in the United States. First, a base figure of 140,000,000 firearms was derived from the work of Wright, Rossi and Daly for the year 1978. Id. at 41. Second, the average number of firearms produced in the United States and imported here was computed to be 6,052,000 per year. This computation was based on domestic production and import statistics for the years 1976 through 1980. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, NATIONAL DATA BOOK AND GUIDE TO SOURCES: STATISTICAL ABSTRACT OF THE UNITED STATES 1981, at 803 (102d. ed. 1981) (graph no. 1453). Third, the figure of 6,052,000 was multiplied by 11 (the number of years between 1978 and 1989), and the product was 66,572,000. This number is a rough estimate of the additional firearms placed into the private sector since 1978. Fourth, the number 140,000,000 (base figure of firearms in 1978) was added to the figure 66,572,000 (additional firearms since 1978) to produce a total of 206,572,000 firearms in the private sector. For purposes of discussion the number is rounded to 210,000,000 firearms. Handguns represent about a third of all firearms. J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 42. Therefore based on the above calculations, there are about 70,000,000 handguns owned privately. The remaining 140,000,000 privately owned firearms are comprised of varying types of long guns.
20. See infra notes 151-224 and accompanying text.
21. The eighteenth amendment to the United States Constitution is a good example of legislation that the general population failed to support. U.S. CONST. amend. XVIII. (1919, repealed 1933). The amendment failed miserably the years in which it was in effect, 1920 to 1933, because many people wanted to drink alcohol. In 1933, the eighteenth amendment was repealed by the twenty-first amendment. U.S. CONST. amend. XXI. For an anti-gun control perspective comparing a ban on handguns to the alcohol prohibition experience, see Kates, supra note 3, at 139-65.
22. See infra notes 24-35 and accompanying text.
23. Erskine, The Polls: Gun Control, 36 PUB. OPINION Q. 455 (1972); see Wright, Public Opinion and Gun Control: A Comparison of Results from Two Recent National Surveys, 455 ANNALS 24, 31 (1981). The following are representative examples of gun control polls. First, a 1975 Gallup Poll found that 66% of all Americans living in cities of more than one million people favored a ban on handguns. Drinan, Gun Control: The Good Outweighs the Evil, in THE GREAT GUN CONTROL DEBATE 12 (1976) (Second Amendment Foundation Monograph Series). Second, an October 1987 Gallup Poll found that "'60 percent [of the adult population surveyed] favored stricter laws on handguns sales,"' and 42% favored a ban on handgun possession. N.Y. Times, Oct. 25, 1987, § 4, at 5, col. 2. Lastly, a 1981 Gallup Poll showed that nine out of ten people favored a waiting period for the purchase of a handgun. N.Y. Times, Apr. 15, 1987, at A27, col. 3. For a discussion of the waiting period, see infra notes 183-93 and accompanying text.
24. Wright, supra note 23, at 31-32.
25. Id. at 31; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 221.
26. Wright, supra note 23, at 31; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 221.
27. Wright, supra note 23, at 31; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 221.
28. Wright, supra note 23, at 31; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 221.
29. Wright, supra note 23, at 24-39.
30. Wright, supra note 23, at 38; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 240.
31. Wright, supra note 23, at 38; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 241.
32. Wright, supra note 23, at 39; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 241.
33. Wright, supra note 23, at 39; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 217.
34. Wright, supra note 23, at 26; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 220.
35. Wright, supra note 23, at 38-39; see J. WRIGHT, P. ROSSI & K. DALY, supra note 6, at 240-41. For a look at how anti-gun control advocates interpret public opinion polls on gun control, see Bordua, Gun Control and Opinion Measurement: Adversary Polling and the Construction of Social Meaning, in FIREARMS AND VIOLENCE 51-70 (D. Kates ed. 1984).
36. U.S. CONST. amend. II. See generally Annotation, Federal Constitutional Right to Bear Arms, 37 A.L.R. Fed 696 (1978); 79 AM. JUR. 2D Weapons and Firearms § 4 (1975); 94 C.J.S. Weapons § 2 (1956).
37. Ashman, Handgun Control by Local Government, 10 N. KY. L. REV. 97, 104-05 (1982).
38. Id. See, e.g., Caplan, The Right of the Individual to Bear Arms: A Recent Judicial Trend, 1982 DET. C.L. REV. 789, 797-800 (1982); Gottlieb; Gun Ownership: A Constitutional Right, 10 N. KY. L. REV. 113, 127-28 (1982).
39. Statute of Northampton, 1328, 2Edw. 3, Ch. 3, quoted in Burton v. Sills, 53 N.J. 86, 96, 248 A.2d 521, 526 (1968), appeal dismissed, 394 U.S. 812 (1969); Ashman, supra note 37, at 105; Comment, The Constitutional Right to Keep and Bear Arms, 28 HARV. L. REV. 473 (1915).
40. 22 Car. 2, ch. 25, sec. 3 (1670), noted in Aymette v. State, 21 Tenn. (2 Hum.) 154, 156 (1840); Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 CATH. U.L. REV. 53, 62 (1966); Comment, supra note 39, at 473.
41. Ashman, supra note 37, at 105.
42. 53 N.J. 86, 248 A.2d 521 (1968).
43. Id. at 96, 248 A.2d at 526 (quoting Feller & Gotting, The Second Amendment: A Second Look, 61 NW. U.L. REV. 46, 48 (1966)).
44. Ashman, supra note 37, at 105.
45. Levin, The Right to Bear Arms: The Development of the American Experience, 48 CHI.[-]KENT L. REV. 148, 159 (1971), reprinted in SENATE SUBCOMM. ON THE CONSTITUTION OF THE COMM. ON THE JUDICIARY, 97TH CONG., 2D SESS., THE RIGHT TO KEEP AND BEAR ARMS 121 (Comm. Print 1982) [hereinafter SENATE SUBCOMM. ON THE CONSTITUTION] But see D. KATES, THE SECOND AMENDMENT: SECOND TO NONE 1-5 (1982) (Second Amendment Foundation Monograph Series). Here Kates cites excerpts from the writing of a few of the founding fathers, but he fails to note the actual proceedings of the First Congress as it pertained to the second amendment. See generally Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms,"' 49 LAW & CONTEMP. PROBS. 151 (1986).
46. 1 ANNALS OF CONG. 778 (J. Gales ed. 1789). Professor Tribe comments that: [T]he sole concern of the second amendment framers was to prevent such federal interferences with the state militia as would permit the establishment of a standing national army and the consequent destruction of local autonomy. Thus the inapplicability of the second amendment to purely private conduct, to state action, and to congressional firearms controls not shown to interfere with the preservation of state militia comports with the narrowly limited aim of the amendment as merely ancillary to other constitutional guarantees of state sovereignty. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 226 n.6 (1978) (citations omitted). Other authors have similarly noted that the purpose of the second amendment was to ensure that the citizen militia was stronger than standing armies. See COOLEY'S, CONSTITUTIONAL LIMITATIONS 729-30 (8th ed. 1927); E. DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 62 (1963).
47. At the Massachusetts ratifying convention for the United States Constitution, Samuel Adams presented an amendment which proposed, among other things, that the "Constitution be never construed to authorized Congress to . . . prevent the people of the United States, who are peaceable citizens from keeping their own arms."' PIERCE & HALE, DEBATES OF THE MASSACHUSETTS CONVENTION OF 1788, at 86-87 (1856) quoted in Feller & Gotting, supra note 43, at 58-59; see Levin, supra, note 45, at 159, reprinted in SENATE SUBCOMM. ON THE CONSTITUTION, supra note 45, at 121. It is interesting to note that Adams eventually voted against his own proposal, and it never made it out of the Massachusetts convention. Feller & Gotting, supra note 43, at 59. A second proposal that came from New Hampshire would have guaranteed individuals the right to possess firearms. It was also not adopted. It stated that "Congress shall never disarm any Citizen unless such are or have been in Actual Rebellion."' DUMBAULD, supra note 46, at 182, quoted in Feller & Gotting, supra note 43, at 59; Levin supra, note 45, at 159, reprinted in SENATE SUBCOMM. ON THE CONSTITUTION, supra note 45, at 121.
48. 307 U.S. 174 (1939).
49. Id. at 178. The Congressional power that the Court spoke of is for the Congress: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. U.S. CONST. art. I, § 8, cls. 15 & 16, quoted in United States v. Miller, 307 U.S. at 178.
50. 92 U.S. 542 (1875). The case involved several white men who were convicted of crimes, including conspiring to deprive blacks of their constitutional right to bear arms. The Supreme Court reversed the lower court, finding that the constitutional limitations applied only to the power of the federal government.
Since there was no constitutional right for an individual to bear arms for a lawful purpose, it could not have been violated. Id. at 553; see Beschle, Reconsidering the Second Amendment: Constitutional Protection for a Right of Security 9 HAMLINE L. REV. 69, 72-73 (1986); Note, Second Amendment Survey, 10 N. KY. L. REV. 155, 158 (1982) (authored by Darell R. Pierce).
51. 92 U.S. at 553. "'This is not a right granted by the Constitution."' Id.
52. Id.
53. 116 U.S. 252 (1886). Presser was a member of the "Lehr and Wehr Verein"' society, which roughly translated means "Weapons Instruction Society."' Note, supra note 49, at 158 n.32. He was convicted under an Illinois statute that prohibits private military assemblies without a permit. The Court upheld the conviction and, thus, the state regulation. Presser, 116 U.S. at 252; see Beschle, supra note 50, at 73; Note, supra note 50, at 158-59.
54. Presser, 116 U.S. at 265.
55. Id. at 265-66.
56. 153 U.S. 535 (1894); see Beschle, supra note 50, at 73; Note, supra note 50, at 159.
57. Miller v. Texas, 153 U.S. 535, 538 (1894).
58. 307 U.S. 174 (1939).
59. Id. at 175 n.1.
60. United States v. Miller, 307 U.S. 174, 175 (1939).
61. Id. at 177. Section eleven of this statute reads: It shall be unlawful for any person who is required to register as provided in section 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in section 4 hereof, to ship, carry, or deliver any firearm in interstate commerce. National Firearms Act, ch.15A, sec. 1132j, 48 Stat. 1239 (1934).
62. United States v. Miller, 307 U.S. at 183.
63. See supra notes 45-49 and accompanying text.
64. United States v. Miller, 307 U.S. at 178.
65. 445 U.S. 55 (1980).
66. Id. at 65 n.8. The major issue in this case was not the second amendment, but rather whether Lewis could defend his prosecution under 18 U.S.C. app. § 1202 (a)(1) by collaterally attacking a prior conviction. Id. at 58. Section 1202 (a)(1) dealt with a convicted felon receiving, possessing or transporting a firearm "in commerce or affecting commerce."' Id. at 56 n.1. The court held that such a defense was not valid. Id. at 65. Adams v. Williams, 407 U.S. (1972) was a fourth amendment search and seizure case. In this case, a policeman who had a reasonable belief that the defendant had a handgun reached into defendant's car and took the gun away. The majority held that the seizure did not violate the defendant's constitutional rights. Id.. at 149. In his dissenting opinion, Justice Douglas sympathized with the policeman's problem of confronting a suspect who might be armed. Justice Douglas, however, said that the solution to the problem did not lie in weakening the fourth amendment. Rather he wrote that: The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby [National Rifle Association] dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment . . . . There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test.
There is no reason why all pistols should not be barred to everyone except the police . . . . Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. Id. at 150-51 (Douglas, J., dissenting).
67. United States v. Oakes, 564 F.2d at 384, 386-87 (10th Cir. 1977); cert. denied, 435 U.S. 926 (1978), where appellant Oakes argued that his circuit court conviction for knowingly possessing an unregistered machine gun violated his second amendment rights because, under the Kansas Constitution, he was technically a member of the state militia. The Court responded by stating that: The purpose of the second amendment as stated by the Supreme Court in United States v. Miller was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view. To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. Id. at 387 (citations omitted). See, e.g., Witherspoon v. United States, 633 F.2d 1247 (6th Cir. 1980), cert. denied, 450 U.S. 933 (1981); United States v. Birmley, 529 F.2d 103 (6th Cir. 1976); United States v. Tomlin, 454 F.2d 176 (9th Cir. 1972), cert. denied, 406 U.S. 924 (1971); United States v. Decker, 446 F.2d 164 (8th Cir. 1971); United States v. McCutcheon, 446 F.2d 133 (7th Cir. 1971); United States v. Williams, 446 F.2d 486 (5th Cir. 1971); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Forgett, 349 F.2d 601 (6th Cir. 1965) cert. denied, 383 U.S. 926 (1966), vacated, 390 U.S. 203 (1968). See also Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968), appeal dismissed, 394 U.S. 812 (1969), from which it has been argued that, since the Supreme Court dismissed the appeal, it was sanctioning the New Jersey Supreme Court's action in upholding a New Jersey firearm purchasers' law based on United States v. Miller. When the Supreme Court dismisses an appeal, it necessarily constitutes a decision on the merits. See Hicks v. Miranda, 422 U.S. 332, 344 (1975); see also Ashman, supra note 37, at 104.
68. See J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 316 n.4 (3d ed. 1986) [hereinafter CONSTITUTIONAL LAW]; Comment, The Individual Right to Bear Arms: An Illusory Public Pacifier?, 1986 UTAH L. REV. 751, 756-57.
69. CONSTITUTIONAL LAW, supra note 68, at 316 n.4. For a discussion of both "collective"' and "individual right"' theories, see Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983).
70. See CONSTITUTIONAL LAW, supra note 68, at 316 n.4. The terms "'collective rights"' and "state's right"' are used interchangeably to refer to the same theory. Comment, supra note 68, at 755.
71. See supra notes 50-57 and accompanying text; CONSTITUTIONAL LAW, supra note 68, at 316 n.4.
72. See, e.g., Feller & Gotting, supra note 43, at 67-70; Jackson, Handgun Control: Constitutional and Critically Needed, 8 N.C. CENT. L.J. 189, 197 (1977); Levin, supra note 45, at 166-67; Rohner, supra note 40, at 77- 80; Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L.Q. 961, 1000-01 (1975); Note, The Right to Keep and Bear Arms, 26 DRAKE L. REV. 423, 444 (1977).
But see Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 OKLA. L. REV. 65 (1983).
73. AMERICAN BAR ASSOCIATION, POLICY BOOK (August 1975), noted in Kates, supra note 69, at 207; Comment, supra note 68, at 756.
74. United States v. Miller, 307 U.S. at 178 (quoting U.S. CONST. art. I, § 16).
75. United States v. Miller defines the militia as those individuals acting as "civilians primarily, [and.
soldiers on occasion."' Id. at 179. A similar distinction has been made by Congress, where the militia has been divided into two groups: the organized militia (the national guard) and the unorganized militia (civilians). 10 U.S.C. § 311 (1982). While acting in the capacity of a soldier, a citizen most certainly would need to be armed with a weapon. It was expected during the early days of the American Republic that those individuals called to serve in the military would supply their own weapon. United States v. Miller, 307 U.S. at 179; see also Act of July 6, 1798, ch. 65, 1 Stat 576 (1798), where Congress decided to buy 30,000 rifles and in turn to sell them to the states or the militia. Today soldiers from the militia are provided with weapons by the government so they need not purchase their own. 32 U.S.C. § 701 (1982).
76. Although the vast majority of federal cases have read United States v. Miller in a "collective right"' manner (see infra notes 76-80 and accompanying text) there have been other readings of the case. Most notable of these is Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943). In that case, the court saw two problems with United States v. Miller that forced it to narrowly interpret that precedent. Id. at 922. As the Cases court viewed United States v. Miller, as long as a weapon had a "'reasonable relationship"' to the military, a citizen could own it. Id. Secondly, the Cases court interpreted United States v. Miller as making no differentiation between individuals and the militia regarding weapons possession. Id. If the weapon had a military link, it could be possessed by both an individual and the military. This conclusion was unacceptable to the Cases court which stated that the United States v. Miller reasoning was not meant to be applied to all cases, but was only applicable in that case. Id. Cases said the facts of each case had to be studied to determine whether the individual case violated the second amendment. Id. In retrospect, it seems the Cases court read United States v. Miller poorly. If United States v. Miller is read in conjunction with the "collective right"' approach to the second amendment adopted by other federal courts, it makes perfect sense. For a reading of United States v. Miller in conjunction with the "collective right"' approach, see United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976).
77. 440 F.2d 144 (6th Cir. 1971).
78. Id. at 149 (citations omitted).
79. 530 F.2d at 106.
80. Id.; see also United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) ("The Second Amendment only confers a collective right of keeping and bearing arms . . . ."'); Eckert v. City of Philadelphia, 477 F.2d 610, 610 (3rd Cir. 1973) ("Appellant's theory . . . is that by the Second Amendment to the United States Constitution he is entitled to bear arms. Appellant is completely wrong about that . . . . It must be remembered that the right [of an individual] to keep and bear arms is not a right given by the United States Constitution"'), cert. denied, 414 U.S. 839 (1973); United States v. Day, 476 F.2d 562, 568 (6th Cir. 1973)("There is no absolute constitutional right of an individual to possess a firearm."'); Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198, 210 (S.D. Tex. 1982) ("[T]he Second Amendment does not imply any general constitutional right for individuals to bear arms . . . ."'); United States v. Kozerski, 518 F.
Supp. 1082, 1090 (D.N.H. 1981) ("[T]he Second Amendment is a collective right to bear arms rather than an individual right, and has applications only to the right of the state to maintain a militia and not to the individual's right to bear arms."'), cert. denied, 469 U.S. 842 (1984); United States v. Tot. 28 F. Supp. 900, 903 (D.N.J. 1939) (The second amendment only "refers to the militia, a protective force of government; to the collective body and not individual rights."'), rev'd on other grounds, 319 U.S. 463 (1943). Case law does exist which supports the "individual right"' theory. However, such cases are rare, and they are concerned more with state constitutions than the second amendment to the United States Constitution. See, e.g., Shettle v. Shearer, 425 N.E.2d 739 (Ind. Ct. App. 1981); State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980); Schubert v. DeBard, 398 N.E.2d 1339 (Ind. Ct. App. 1980). To view these cases in their proper context, see Beschle, supra note 50, at 77-78; Caplan, supra note 38, at 789.
81. See supra notes 21-23 and accompanying text.
82. See supra notes 52-57 and accompanying text.
83. See supra notes 68-81 and accompanying text.
84. U.S. CONST. art. I, § 8, cl. 3.
85. See, e.g., Firearm Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986) (amending 18 U.S.C. §§ 921-929 (1988) ("It shall be unlawful for any person who has been convicted in any court of, [sic] a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition . . . ."' 18 U.S.C. § 922(g) (1988)); Unlawful Possession or Receipt of Firearms, Pub. L. No. 90-351, 82 Stat. 236 (1968) (codified as 18 U.S.C. app. §§ 1201-1202 (1968) (repealed by Pub. L. No. 99-308, § 104(b), 100 Stat. 459 (1986)). See Stevens v. United States, 440 F.2d 144, 149 (1971) ("'[W]e hold that Congress has this authority under the commerce clause"' to prevent convicted felons from having firearms); Cases v. United States, 131 F.2d 916, 923 (1942) ("[I]t is clear that in enacting the Federal Firearms Act [1938] Congress was exercising the power conferred upon it by the commerce clause . . . ."'); see also Kates, supra note 3, at 16-17. See generally 79 AM. JUR. 2D Weapons and Firearms § 6 (1975).
86. See CONSTITUTIONAL LAW, supra note 68, at 158-59.
87. Id. at 158.
88. Id.
89. 402 U.S. 146 (1970); see CONSTITUTIONAL LAW, supra note 68, at 158- 59.
90. Perez, 402 U.S. at 156.
91. Id. at 156-57; see CONSTITUTIONAL LAW, supra note 68, at 159.
92. See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964) (The Court held Congress could regulate restaurants like "Ollie's Barbecue,"' even though they served no interstate travelers, because the restaurant's supplies came through interstate commerce.); Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964) (Local activities are not exempt from federal control. "[I]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze . . . ."' Congress may regulate it. (quoting United States v. Women's Sportswear Mfrs. Ass'n, 336 U.S. 460, 464 (1949)); Wickard v. Filburn, 317 U.S. 111 (1942) (Supreme Court upheld federal regulation of a farmer's wheat crop through the use of an aggregate effects test.); see also CONSTITUTIONAL LAW, supra note 68, at 153, 157-58.)
93. See supra notes 68-81 and accompanying text.
94. See Beschle, supra note 50, at 69, 75.
95. U.S. CONST. amend. IV.
96. U.S. CONST. amend. V.
97. See supra note 95.
98. See supra note 19.
99. See supra note 19.
100. See supra note 3 and accompanying text.
101. At the present time, more than 50% of the American people oppose a ban on handguns, according to public opinion polls. See E. DOLAN, supra note 11, at 104.
102. 1 W. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 1.1(b) (2d. ed. 1987); see Clark, Reducing Firearms Availability: Constitutional Impediments to Effective Legislation and an Agenda for Research, in FIREARMS AND VIOLENCE 18-21 (D. Kates ed. 1984).
103. Exigent circumstances typically exist in two situations. The first arises when an individual is in danger. See 2 W. LAFAVE, supra note 102, at §§ 4.8(e), 6.5(d), 6.6(a). The second situation which will allow a law enforcement officer to enter one's home without permission or a warrant occurs when he or she has a reasonable belief that evidence will either be destroyed or removed. Id. at §§ 4.8(d), 6.5(b).
104. The warrant process "'interposes an orderly procedure' involving 'judicial impartiality' whereby a 'neutral and detached magistrate' can make 'informed and deliberate determinations' on the issue of probable cause. To leave such decisions to the police is to allow 'hurried actions' by those 'engaged in the often competitive enterprise of ferreting out crime."DD" Id. at 151 (footnotes omitted).
105. Probable cause can be said to exist when "known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that an offense has been or is being committed."' United States v. Davis, 458 F.2d 819, 821 (D.C. Cir. 1972). Even with a definition of this nature, "probable cause"' is difficult to objectify. In Illinois v. Gates, 462, U.S. 213, 232 (1983), the Supreme Court remarked that "probable cause is a fluid concept-- turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules."' For an in-depth discussion of the various aspects of "probable cause,"' see 1 W. LAFAVE, supra note 102, at §§ 3.1-.7.
106. The constitutionality of a police officer stopping and frisking a suspect for weapons was announced in Terry v. Ohio, 392 U.S. 1 (1968). A stop and frisk does not require that the officer be able to show "probable cause."' Id. at 20. For an analysis of the Terry stop and frisk and its judicial offspring, see 3 W. LAFAVE, supra note 102, at §§ 9.1-.4.
107. Carroll v. United States, 267 U.S. 132 (1925) was the first Supreme Court case to uphold the legality of a warrantless search of an automobile. The Court more clearly addressed the issue of moveability in Chambers v. Moroney, 399 U.S. 42 (1970). It stated that: [T]he circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable . .
. . [I]f an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search . . . . Id. at 50-51. See generally 3 W. LAFAVE, supra note 102, at § 7.1.
108. The central issue here is one's expectation of privacy with regard to one's car. The Supreme Court noted in Cardwell v. Lewis, 417 U.S. 583, 590 (1974) that "[o]ne has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves an one's residence or as the repository of personal effects . . . . It travels public thoroughfares where both its occupants and its contents are in plain view."' "'Simply speaking, the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office."' South Dakota v. Opperman, 428 U.S. 364, 367 (1976). See generally 3 W. LAFAVE, supra note 102, at § 9.2(b).
109. "The fourth amendment protects people not places."' Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). However, as Justice Harlan points out, "a man's home is, for most purposes, a place where he expects privacy . . . ."' Id. See generally 1 LAFAVE, supra note 102, at § 2.1 (c), (d).
110. Baer, Gest & Carle, Guns, U.S. NEWS AND WORLD REPORT, May 8, 1989, at 20, 22 (approximately half of all homes have firearms).
111. Additional police officers could be salaried through the monies collected when a violator of a gun control law is made to pay a penalty. For instance, when one fails to register one's firearm or comply with transfer requirements (see infra text accompanying notes 171-182) the penalty would go toward law enforcement. This would also be true for the penalty paid by an individual for being found in the possession of an automatic or a military style semi-automatic weapon (see infra text accompanying notes 199-224). Lastly, the revenues raised by taxing firearms kept in one's home within a city would be used to supplement the nation's police forces (see infra note 198 and accompanying text).
112. 390 U.S. 85 (1968); see United States v. Freed, 401 U.S. 601 (1971), reh'g. denied, 403 U.S. 912 (1971); E. KRUSCHKE, THE RIGHT TO KEEP AND BEAR ARMS: A CONTINUING AMERICAN DILEMMA 148 (1985).
113. Haynes, 390 U.S. at 101.
114. Id. at 90-95. The statute read: It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812(b), 5813, 5814, 5844, or 5846, or which has at any time been made in violation of section 5821, or to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such a firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury. Id. at 87, n.3.
115. Haynes, 390 U.S. at 100 n.14.
116. Freed, 401 U.S. at 602.
117. The new law reads that: A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary; (2) any tax payable on the transfer is paid as evidenced by the proper stamp affixed to the original application form; (3) the transferee is identified in the application form in such manner as the Secretary may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; (5) the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; and (6) the application form shows that the Secretary has approved the transfer and the registration of the firearm to the transferee.
Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law. 26 U.S.C. § 5812 (1982).
118. The law presently reads: (a) General rule No information or evidence obtained from an application, registration, or records required to be submitted or retained by a natural person in order to comply with any provision of this chapter or regulations issued thereunder, shall, except as provided in subsection (b) of this section, be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence. (b) Furnishing false information Subsection (a) of this section shall not preclude the use of any such information or evidence in the prosecution or other action under any applicable provision of law with respect to the furnishing of false information. 26 U.S.C. § 5848 (1982).
119. Freed, 401 U.S. at 604.
120. Id. at 605.
121. See E. KRUSCHKE, supra note 112, at 148.
122. For a discussion of how Congress reworked the National Firearms Act to avoid violating the fifth amendment, see Freed, 401 U.S. at 605-07.
123. U.S. CONST. amend. V.
124. Sax, Takings and the Police Power, 74 YALE L.J. 36, 37 (1964); see also, CONSTITUTIONAL LAW, supra note 68, at 401-20.
125. Note, The Public Use Test: Would a Ban on the Possession of Firearms Require Just Compensation?, 49 LAW & CONTEMP. PROBS. 223 (Winter 1986). These four tests were drawn from the works of other commentators in this area. See infra, notes 126-29 and accompanying text.
126. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation"' Law, 80 HARV. L. REV. 1165, 1184-90; Sax, supra note 124, at 46-48.
127. See Michelman, supra note 126, at 1190-93; Sax supra note 124, at 50- 60.
128. See Michelman, supra note 126, at 1196-213.
129. See, supra note 124, at 48-50.
130. See Note, supra note 125, at 226-27, 246; See also CONSTITUTIONAL LAW, supra note 68, at 408.
131. See Note, supra note 125, at 227-30, 246.
132. 532 F. Supp. 1169 (N.D. Ill. 1981), aff'd 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
133. Morton Grove, Ill., Ordinance Regulating the Possession of Firearms and Other Dangerous Weapons, Ordinance 81-11 (June 8, 1981), reprinted in Quilici, 532 F.Supp. at 1185-88.
134. Quilici, 532 F. Supp. at 1183-84; see E. KRUSCHKE, supra note 112, at 148-49; see also Ashman, supra note 37, at 97 (Mr. Ashman is the attorney for the village of Morton Grove, Illinois).
135. See Note, supra note 125, at 246.
136. Id.
137 Id. at 246-47. See generally 79 AM. JUR. 2D Weapons and Firearms § 5 (1975).
138. 123 U.S. 623 (1887).
139. Id.
140. Id. at 669. See also Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1986) (A Pennsylvania law requiring 50% of the coal beneath certain buildings to remain in the ground was not found to be a taking because of the police power); Walls v. Midland Carbon Co., 254 U.S. 300 (1920) (Wyoming was allowed to use its police power to prevent the owner of natural gas deposits from wasting them); Reinman v. City of Little Rock, 237 U.S. 171 (1915) (The state had granted the city sufficient police power to prevent the building of a livery stable, and the court found no taking).
141. Fesjian v. Jefferson, 399 A.2d 861 (D.C. 1979).
142. See Note, supra note 125, at 238-40, 247.
143. 251 U.S. 146 (1919).
144. Id. at 156.
145. See, e.g., 18 U.S.C. §§ 922, 926A (1988) (firearms in interstate commerce); see also Note, supra note 125, at 238-39, 247. See generally CONSTITUTIONAL LAW, supra note 68, at 260-93.
146. See, e.g., 26 U.S.C. §§ 5801-5872 (1982 & Supp. V 1987) (taxes on firearms); see also Note, supra note 125, at 239, 247. See generally CONSTITUTIONAL LAW, supra note 68, at 180-84.
147. See Sax, supra note 124, at 36-37 n.6; Note supra note 125, at 247.
148. See Note, supra note 125, at 233-34, 247. Often the noxious use test is paired with the police powers test. Id. at 247; see, e.g., Lawton v. Steel, 152 U.S. 133 (1984) (Fishing nets used illegally were declared a nuisance and destroyed without compensation).
149. See Note, supra note 125, at 247.
150. See supra notes 97-111 and accompanying text.
151. See supra notes 9, 10, 12 and accompanying text.
152. See supra note 11 and accompanying text.
153. The mentality of anti-gun control organizations like the National Rifle Association is dangerously self-perpetuated. This is evidenced by a report commissioned by The Remington Arms Company. Columnist Jack Anderson commented in an article based on the Remington Arms Study that the zealous supporters of the National Rifle Association live "in a make-believe world of sacred rights, ancient skills and coonskins . . . like the inhabitants of Hitler's bunker in 1945, they talk only to themselves, reinforcing their own views."' UNITED STATES CONFERENCE OF MAYORS, ORGANIZING FOR HANDGUN CONTROL 4 (1977).
154. See generally E. DOLAN, supra note 11; Drinan, supra note 23, at 8; D. LESTER supra note 4.
155. The fact that there are approximately 210,000,000 firearms in the United States is enough to demonstrate this infatuation. See supra note 19.
156. See supra notes 98-101 and accompanying text; Kates, supra note 3, at 147-55.
157. One author contends that increased controls on firearms may have little effect on the overall rate of robberies and assaults but that the homicide rate at the minimum would be decreased. Cook, The Effect of Gun Availability on Violent Crime Patterns, 455 ANNALS 63, 78 (1981). A decrease in the homicide rate alone would be enough to justify increased gun control measures. See generally 7 Deadly Days, TIME, July 17, 1989, at 30.
158. See supra note 6.
159. See supra note 9-13 and accompanying text.
160. See generally F. ZIMRING & G. HAWKINS, supra note 6, at 131-38.
161. See Lacayo, Running Guns Up the Interstate, TIME, Feb. 6, 1989, at 24.
162. See D. LESTER, supra, note 4, 128.
163. See Smith, supra note 11, at 56; N. Y. Times, Apr. 15, 1987, § I, at 9, col. 1. Hinckley bought his gun at a pawn shop in Dallas, Texas, where no questions were asked and where he was allowed to immediately walk out with the gun. Smith, supra note 11, at 56.
164. This is not to say that federal legislation will automatically pass Congress. The National Rifle Association has a very powerful lobby. In working to defeat the "Brady Amendment"' (see infra notes 184-92 and accompanying text), in 1988, it spent four million dollars. See Magnuson, Why Wait a Week to Kill?, TIME, Sept. 26, 1988, at 26. During the five years previous to the vote, the National Rifle Association had also contributed $1,167,908 to the Congressmen who voted against the amendment. Id. It has been estimated that the National Rifle Association spends $60,000,000 per year on its lobbying activities nationwide. See Smith, supra note 11, at 56.
165. See, e.g., 18 U.S.C. § 922(d) (1988) (It is illegal to sell a firearm to a felon, a fugitive from justice, a drug addict, a mental incompetent, an illegal alien, one who has renounced his or her U.S. citizenship one who was dishonorably discharged from the military); 18 U.S.C. § 922(g) (1988) (It is illegal for a felon, drug addict, fugitive from justice, mental incompetent, illegal alien, one who was dishonorably discharged from the military, or one has renounced his or her U.S. citizenship to possess or transport a firearm); 18 U.S.C. § 924(c)(1) (1988) (A mandatory sentence is imposed when a firearm is used in a crime of violence or a drug-trafficking crime).
166. 18 U.S.C. § 923 (1988). See generally Annotation, Meaning of "Engage in Business"' Under 18 USCS sec. 923(a), Providing that No Person Shall Engage in Business as a Firearm or Ammunition Importer, Manufacturer, or Dealer without a Federal License, 53 A.L.R. FED. 932 (1981).
167. 18 U.S.C. § 922(g) (1988). See generally 79 AM. JUR. 2D Weapons and Firearms §§ 24-25 (1975).
168. 18 U.S.C. § 922(g) (1988).
169. 18 U.S.C. § 922(b)(1) (1988) prohibits licensed importers, manufacturers, dealers and collectors from selling or delivering firearms to persons under 18 years of age, but no provision prohibits private parties from selling to people under 18 years of age.
170. See D. LESTER, supra note 4, at 125.
171. See supra note 19 and accompanying text.
172. See E. DOLAN, supra note 11, at 81-82; D. LESTER, supra note 4, at 124; F. ZIMRING & G. HAWKINS, supra note 6, at 116-17.
173. 26 U.S.C. § 5841(b)(1982). See generally Annotation, Validity, Construction, and Application of Provisions of Gun Control Act of 1968 (18 USCS §§ 922(m) and 923(g)) and Implementing Regulations Relating to Firearms. Registration and Recording Requirements Imposed Upon Federally Licensed Firearms Dealers, 33 A.L.R. FED. 824 (1977); 79 AM. JUR. 2D Weapons and Firearms §§ 31-32 (1975).
174. See supra notes 165-70 and accompanying text.
175. Those individuals violating chapter 53 of the Internal Revenue Code, which pertains in part to the registration and transfer of firearms, may be fined not more than $10,000 and may also be imprisoned for not more than ten years. 26 U.S.C. § 5871 (Supp. V 1987).
176. 26 U.S.C. § 5812(a)(1) (1982).
177. 26 U.S.C. § 5812(a)(3) (1982).
178. 18 U.S.C. § 922(d) (1988).
179. See supra text following note 170.
180. The transferor under federal law is already paying a transfer tax on the firearm he or she transfers. 26 U.S.C. § 5811 (1982).
181. See supra notes 112-22 and accompanying text.
182. See supra note 175 and accompanying text.
183. See Magaddino & Medoff, An Empirical Analysis of Federal and State Firearm Controls, in FIREARMS AND VIOLENCE 231 (D. Kates ed. 1984); FIREARMS AND VIOLENCE 535 (D. Kates ed. 1984).
184. H. R. 975, 100th Cong., 2d Sess., 134 CONG. REC. H6859-60 (daily ed. Aug. 11, 1988).
185. Id.
186. See supra notes 176-82 and accompanying text.
187. H.R. 975, 100th Cong., 2d Sess., 134 CONG. REC. H7654-55 (daily ed. Sept. 15, 1988).
188. See supra note 164.
189. See 134 CONG. REC. H6860-61 (daily ed. Aug. 11, 1988).
190. Id.
191. Id. at H6861.
192. Id.
193. For an insight into how criminals acquire their firearms, see J. WRIGHT, THE ARMED CRIMINAL IN AMERICA 35-39 (1985) (published by the National Institute of Justice, United States Department of Justice); Kleck, supra note 8, at 55-59.
194. See supra note 101. See generally 94 C.J.S. Weapons § 7 (1956).
195. For a comparison of the rate of murder per capita in metropolitan areas to the rate in rural areas, see BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, NATIONAL DATA BOOK AND GUIDE TO SOURCES: STATISTICAL ABSTRACT OF THE UNITED STATES 1989, at 166 (109th ed. 1989) (graph No. 278.)
196. See F. ZIMRING & G. HAWKINS, supra note 6, at 28-35.
197. See, e.g., NATIONAL COALITION TO BAN HANDGUNS, supra note 16, questions 10-11; Go Ahead, Make Our Day, supra note 14, at 9. An interesting study conducted comparing the approach taken by Seattle, Washington and Vancouver, British Columbia on handgun controls was recently done.
In Vancouver, where "'self-defense is not considered a valid or legal reason to purchase a handgun,"' it is 480% less likely that one will be murdered by a handgun. See Sloan & Kellerman, supra note 9, at 1256-57.
198. The following graph is one example of how such a tax might work: Percentage of Gross Yearly Income Gross Income One Firearm Two Firearms Three Firearms $1-$20,000/year .5% 1.0% 2.0% $20,001-$40,000/year 1.0% 1.5% 3.0% $40,001-$60,000/year 1.5% 2.0% 4.0% $60,001-up/year/2.0% 2.5% 5.0% In this example, a person earning $40,000 in gross income per year and keeping two firearms within city limits would owe $800 in yearly taxes, and, if he owned three firearms, he would owe $1,600 per year.
199. Morganthau, Sonda, Cohn, Carrol & Agrest, Machine Gun U.S.A., NEWSWEEK, Oct. 14, 1985, at 46, 48 [hereinafter Machine Gun]
200. 27 C.F.R. § 178.11 (1988). An automatic weapon is a synonym for machine-gun which is defined as: Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine-gun, and any combination of parts from which a machine-gun can be assembled or such parts are in the possession or under the control of a person. Id.
201. 135 CONG. REC. S1361 (daily ed. Feb. 8, 1989).
202. Id.
203. Id.
204. S. 386, 101st Cong., 1st Sess., 135 CONG. REC. 1361-62 (1989). If this bill becomes law it would specifically ban the Uzi, the Mac 10 and Mac 11, the AK 47, the Tec 9 and Tec 22, the Ruger Mini 14, the AR-15, the FN-FNC, the FN-FAL, the Steyr Aug. and the Beretta AR 70. Id. at 1362. In addition, all similar weapons would be banned. The bill clearly states that "any other semi-automatic firearm with a fixed magazine capacity exceeding ten rounds . . ."' will be banned. Id.
205. 135 CONG. REC. S1361 (daily ed. Feb. 8, 1989).
206. Without federal or state authority to possess, make or transfer a machine gun, one violates the law in converting a semi-automatic weapon into a fully-automatic weapon. 27 C.F.R. § 179.105(a), (e) (1988).
207. Church, The Other Arms Race, TIME, Feb. 6, 1989, at 20, 22-23. Conversion kits are available today through some gun dealers, and until recently, through many gun magazines. Machine Gun, supra note 199, at 48. The buying and selling of conversion kits is of questionable legality since it is illegal for an unlicensed person to possess a fully automatic weapon. 18 U.S.C. § 922(o) (1988).
208. Machine Gun, supra note 199, at 49. Since 1985, the number of semi- automatic weapons has increased dramatically. Sales of the AKS semi-automatic rifle (a Chinese copy of the AK-47, a Soviet automatic military weapon) grew from 4,000 in 1985-86 to more than 40,000 in 1988. Church, supra note 207, at 20, 22. This weapon is only one of many military style semi-automatic weapons that has experienced increased sales since 1985-86. Id. at 22.
209. 18 U.S.C. § 922(o) (1988).
210. See generally Church, supra note 207, at 20. The following are examples of military style semi-automatic weapons paired with their respective top firing capacity as automatic weapons and the degree of effort required to convert them into automatic weapons: Weapon Firing Ease of conversion to automatic weapon Rate rounds per minute HK91 rifle 600 requires knowledge of firearms to convert UZI Model B 600 easily converted, if parts can be obtained AR-15 650 easily converted with eight drop in parts Ruger Mini 750 quite difficult to convert 14 KG-9 850 More easily converted than is its newer version, the SM-10 MAC-10 1100 Could be converted in less than a minute Machine Gun, supra note 199, at 48; see also Church, supra note 207, at 25.
211. This weapon is modeled after the fully automatic Soviet AK-47 machine gun. Church, supra note 207, at 23; see also N.Y. Times, Jan. 20, 1989, at A8, col. 4. For other examples of killings and shootings with semi-automatic and converted semi-automatic weapons, see Church, supra note 207; Machine Gun, supra note 199.
212. 135 CONG. REC. S1865 (daily ed. Feb. 28, 1989).
213. Id. at 1864-65.
214. Id. at 1864.
215. Some of the so-called benefits to owning these military style semi- automatic weapons are that they make a good hobby, are exciting to shoot, or are needed to fulfill their owner's "fascination with paramilitary survival training."' Machine Gun, supra note 199, at 46-47.
216. Id. at 46.
217. See supra note 101 and accompanying text.
218. Currently the Bureau of Alcohol, Tobacco and Firearms estimates that there are between two and three million semi-automatic assault weapons in the United States today. See Baer, Gest & Carle, supra note 110, at 22.
219. 18 U.S.C. § 922(o) (1988).
220. 18 U.S.C. § 922(o)(2)(A) (1988).
221. See supra notes 123-50 and accompanying text.
222. The penalties would be similar to those imposed on a person who fails to register his firearm.
They would include losing permanently the possibility of becoming licensed for firearm possession, a mandatory jail term, and a forfeiture of a significant amount of money. The jail term and the amount of money forfeited would, however, be greater than those imposed for a failure to register a firearm because of the nature of the instruments involved.
223. See Church, supra note 207, at 23; Stengel, Weapon of Choice: Hoodlums Love the Mighty MAC, TIME, Sept. 9, 1985, at 42.
224. 18 U.S.C. § 924(c)(1) (1988).