The Most Dangerous Tool

Justice John Paul Stevens recently retired from the U.S. Supreme Court after decades of eloquent, well-reasoned service. He has since written a book, as well as an op-ed that was published this week in the Washington Post. In that op-ed, Stevens proposes that we amend the Second Amendment by adding five words clarifying the private ownership of guns as part of militia service.

Unfortunately, Stevens' op-ed also included a glaring factual error, either purposely or mistakenly used to bolster what is ultimately an emotional argument against guns. (That error was later unceremoniously edited.)

Guns are scary and can hurt people. There is no doubt about that. America has long had a gun violence problem, and the ever-growing number of mass shootings, though a tiny fraction of all gun-related deaths (most of which are suicides, not murders), adds to the collective fear and desire to "do something" about firearms.

Unfortunately in the minds of the reformers, the Second Amendment has been interpreted by the U.S. Supreme Court to protect a fairly broad individual right to gun ownership. State and federal legislatures can't ban handguns or rifles wholesale, no matter how democratically popular (small "d") those restrictions might be. Justice Stevens thinks this interpretation is incorrect, and he blames it on the admittedly confusing language of the Second Amendment. Adding a few words, he argues, can help clarify private gun ownership and allow for stricter state-level regulations.

Adherents to a broader interpretation of the Second Amendment vehemently disagree, of course. Certainly many would prefer stripping the Amendment of its first thirteen words (regarding militias) instead of adding any more. "The right of the people to keep and bear Arms shall not be infringed," and nothing more, would be quite clear indeed.

I tend to fall on the side of a broad interpretation of the Second Amendment. I acknowledge that guns are dangerous and are frequently used to hurt other people. I also acknowledge that knives, automobiles, and baseball bats are dangerous and can hurt other people. I obviously support laws against assault and murder, no matter what tool is used by a perpetrator. Harm caused by intent or recklessness should be prohibited and punished. I also generally support background checks and efforts to keep guns out of the hands of people already known to have hurt others in the past. But I fear government oppression more than I fear my fellow citizens, and though the U.S. military is the most powerful in the world and the risk of a domestic military coup is currently low (depending on who you ask), I know that privately-owned small arms have been a historically powerful force.

Ultimately this becomes a philosophical argument about public safety, personal freedom, and government control. Are guns so inherently dangerous that the government should have broad power to take them from us or deny us from acquiring them? Our Bill of Rights, which sets out specific individual rights that are supposed to be free from government interference, includes guns...but should it? Should we either amend the Second Amendment (as Justice Stevens suggests), strike some of its words, or repeal it altogether?

At the heart of this debate is the unique way in which we think about guns. Guns, first and foremost, are designed to be weapons. They can be used as a tool for both aggression and for self-protection. But they can also used for purely recreational purposes, a gun never once harming a human being during the course of its entire working life. There are over 300 million privately-owned guns in the United States, and the vast, vast majority of them will never, ever be used to harm a human being. They certainly maintain the potential to hurt others, but other tools such as knives, hammers, sling shots, and even automobiles possess this potential.

A gun, sitting on a table, uncontrolled in any way by a human being, cannot cause harm to anyone. A properly operating firearm, without any outside manipulation, will not fire. Generally speaking, for a firearm to harm another person, it requires some sort of human action. Human actions which hurt other people, either with intent or through recklessness, are prohibited, and are well within the government's power to prohibit. But should the government be able to go one step further and actually ban or remove tools which, only in the hands of humans, can cause harm?

This is where our unique conception of guns starts to play out. Automobiles are large, heavy, dangerous weapons in the hands of malicious or reckless people. A single automobile can kill dozens of people at once. But there is not a major political push for the government to ban cars entirely, or even restrict them in more than a cursory way. Despite claims that cars are more regulated than guns because they require licensing, let us remember that those licenses are issued to sixteen year-olds, and are not taken away, without some sort of harmful conduct (and sometimes not even then), no matter how old people become.

Automobiles are not protected by our Constitution in any way. Though the courts have upheld a fundamental right of all Americans to travel freely, this has not been interpreted to mean all Americans may own automobiles free of heavy-handed government interference. And yet, for the most part, they do.

Clearly, automobiles are designed to be tools for movement, rather than to be weapons. But while they differ from guns in that respect, they are the same in that they require human action to become dangerous to others. Otherwise, they are just tools: inanimate objects harmless on their own. And like cars, which enable quick movement and ease of transportation, guns serve additional useful purposes such as food collection, self-protection, and recreational stress relief. They are not only used to harm other people - indeed, most guns are never used for that purpose at all.

Also consider how we think about other individual rights, such as religion. Religious belief can cause all kinds of harm to others. Curiously, some of our most vocal proponents of gun rights are also the most vocal opponents of other people's religious rights. Some believe that Islam is fundamentally violent, and that harmful behavior like suicide bombings and mass shootings are just the natural product of Muslim religious belief. Others would argue that Christianity is inherently violent. Historical examples for both arguments abound.

But would we prohibit religious belief because, in the wrong hands, it can be a tool to harm others? If not, why not? Perhaps we just ban one religion instead of all of them? How would we justify that under the broad protections of the First Amendment? If it's obvious that we cannot ban or significantly restrict religious belief, why is it less obvious that we cannot ban or significantly restrict firearm possession? Again, religion, in the wrong hands, can most certainly lead to great harm to others.

These are complicated questions, many of which I don't have any answers for. The point of this post is to suggest that everyone approach the issue of guns from as many different philosophical directions as possible. Our discourse needs - and our Constitution seems to require - that we do more than take thoughtless, emotional positions. The individual right to bear arms raises difficult questions about public safety, private self-defense, and government power. None of these questions are particularly easy to answer.

Gun Laws Implicate More Than Just the Second Amendment

Today, the Ninth Circuit Court of Appeals ruled on the constitutionality of several San Francisco firearm regulations, which are part of that city's Firearms and Weapons Violence Prevention Ordinance. Writing for a unanimous three-judge panel, Judge Sandra Ikuta upheld the constitutionality of the rules, violations of which are misdemeanors and carry fines of as much as $1000 and jail incarceration as long as six months.

One of the regulations prohibits the sale of certain types of ammunition (such as hollow point bullets), but the prohibition I want to talk about today deals with in-home storage of privately owned firearms. As the court says:

San Francisco Police Code section 4512 provides that "[n]o person shall keep a handgun within a residence owned or controlled by that person unless" (1) "the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice," or (2) "[t]he handgun is carried on the person of an individual over the age of 18." ...Violations of section 4512 are punishable by a fine of up to $1,000 and up to six months in prison.

Six individual plaintiffs along with the National Rifle Association and the San Francisco Veteran Police Officers Association sued the city and county governments of San Francisco, alleging that the above regulation violates the Second Amendment. The Second Amendment, as you may know, somewhat confusingly states:

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.

To say that the wording of this Amendment has been subject to much debate would be to comically understate history. What matters for the purpose of this post is that the Ninth Circuit applied the analysis used by the U.S. Supreme Court in the case of District of Columbia v. Heller, 544 U.S. 570 (2008), a ruling which defeated very strict gun laws in Washington, D.C. Though the Supreme Court in Heller determined that a D.C. law (which mandated "firearms in the home be rendered and kept inoperable at all times") was a violation of the Second Amendment, the Ninth Circuit ruled that the very similar San Francisco regulation is not.

The purpose of this post is not to second-guess the Ninth Circuit's application of Heller or its ruling, though that can certainly be done. The purpose of this post is to consider exactly how gun regulations like San Francisco's are enforced, and what their true effect really is. Rather than consider the restriction on in-home storage under the language of the Second Amendment, we should consider it under the language of the Fourth Amendment. That Amendment reads:

The 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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

With that language in mind, consider for a moment how the San Francisco regulation is enforced. How, exactly, are violators exposed? The regulation specifically dictates proper in-home storage of firearms, not their public display, use, or transport. While all laws serve at least the theoretical purpose of encouraging and incentivizing safe (or "good") behavior simply by existing, they can only be effective at that purpose when they can be enforced sufficiently to deter unsafe behavior through punishment of violations.

So, how is the San Francisco regulation enforced? How do local police officers know that someone is not storing their privately owned handgun in the proper way inside their home? The only way for police to expose violators is through searches of people's homes. And the only way those police can lawfully conduct such searches (under the Fourth Amendment) is by having probable cause to suspect some other type of criminal behavior. After all, there is no public behavior by the owner of the handgun (other than perhaps self-reporting to a sidewalk cop) that would expose the precise method of that person's in-home handgun storage.

Let's consider a hypothetical. Bob is a drug dealer. He sells drugs in hand-to-hand exchanges on street corners. He stores drugs in his home. One day, the police observe Bob acting in a way that strongly suggests he is selling drugs, and then the police arrest one of his customers, who rats on Bob. With that information in hand, the police obtain a search warrant for Bob's home, suspecting (reasonably) that he stores his drug supply there. The police execute the search warrant by raiding Bob's house, discover his drug supply, and the rest is a matter of criminal court procedure.

But what if Bob is just a gun owner who keeps his handgun inside his home when he isn't transporting it to a shooting range for target practice? How do the police gain enough information from his public behavior to reasonably suspect his in-home storage method is insufficient under the regulation? Unless a reliable informant rats on him, the police would never gain the kind of information sufficient to search his home simply because he doesn't store his handgun properly. Nothing Bob could do in public would provide that kind of information.

So if someone in San Francisco is to be charged with the crime of improper handgun storage, the police have to find out about it incidentally. They have to be in the home for some other reason. Let's revisit Bob the Drug Dealer for a moment: the police raid his home looking for drugs, and not only do they find a kilo of cocaine, but they also find two loaded handguns without locks sitting on his dining room table. Even if those guns are legally owned, their open, loaded display in the home would be a violation under San Francisco regulations. So now Bob can be charged not only with federal or state drug crimes (the actual reason the police were searching his home), but also with two counts of violating the local handgun storage regulation, which could tack on $2000 in fines and a year in the local jail.

While the purpose of the San Francisco regulation may be the promotion of gun safety, the effect is cumulatively punitive. It just tacks on additional criminal penalties to people most likely already in trouble for something else. For law-abiding citizens, even those willing to follow San Francisco's gun regulations, it imposes restrictions on their in-home behavior for which the state would have no reasonable purpose to monitor or interfere with under the Fourth Amendment. Again, we're talking actual effects of the law, not the purpose of the law, which may or may not be noble.

San Francisco's gun regulations may indeed be constitutional under the Second Amendment (though the Supreme Court may have the final say). Those regulations may also be smart policy in a country with massive gun ownership and a sizable amount of gun violence. And the Fourth Amendment restricts government action, not the language of its laws, so a facial challenge to these regulations under that Amendment would likely be futile. But these regulations, which control strictly in-home behavior and require police searches to expose violators, should at least be viewed by both proponents and opponents through an additional constitutional lens.


A fellow attorney raised a good point in response to this post: what about situations in which the prohibited storage of Bob's handgun results in actual harm to someone? Suppose Bob leaves his handgun loaded and on the dining room table, where his ten year-old son and a friend discover it. Bob's son then picks up the gun and accidentally shoots his friend, who dies. Is a gun regulation like San Francisco's a good way (or the only way) to ensure Bob is punished for his failure to safely store his gun?

Again, it is my contention that such a regulation is cumulative because such a situation already subjects Bob to criminal penalties. Bob could be found guilty of criminally negligent homicide (a form of "manslaughter" in many jurisdictions). Generally speaking, criminally negligent homicide is a reckless oversight that results in the death of another person. Bob could certainly be found guilty of such a crime if he left a loaded handgun within the reach of a young child. That would be the case with or without the additional San Francisco regulation, which strictly prohibits behavior that is not, without some other action, harmful to anyone else. Similarly, the police would have reason to gain entry to Bob's home because of the shooting, not because of any failure to properly store the handgun.

A post more fully exploring this topic can be found here.