Brian Siebel Discusses Implications of D.C. v. Heller

On October 7, Brian Siebel, a 12-year veteran attorney at the Brady Center, spoke to the ACS about the implications of the recent U.S. Supreme Court decision in D.C. v. Heller.  In Heller, the Court ruled 5-4 that handguns may be legally kept inside the home for purposes of self-defense, striking down what it found to be an overbroad D.C. statute that prohibited handgun ownership regardless of purpose.  By interpreting the Second Amendment in this fashion, the Court established a clear, constitutional right to handgun ownership; the ruling indicates that in D.C., it still will be illegal to carry handguns outside the home, and all pistols must be registered with police.

With that framework in mind, Mr. Siebel discussed what the Heller decision will mean to gun ownership, gun regulation, and concealed carry laws.  Siebel characterized the ruling as a narrow one, drawing attention to the numerous uses of the phrase “handguns for self defense in the home.”  According to the text of the decision, all gun laws, other than those banning hand guns kept in the home for self defense, are “presumptively lawful.”  In other words, the Court makes no ruling on the validity of regulations pertaining to dangerous or unusual guns, guns at sensitive locations (e.g. schools, government buildings, etc.), or guns used for hunting.  In fact, said Siebel, the Court seems to assert that these regulations are entirely lawful, and that the thrust of their ruling goes to the necessity of defending oneself at home, rather than to the ownership of any gun for any purpose.

So what does this mean for the future of gun control legislation and litigation?  According to Siebel, the ruling effectively nullifies the gun lobby’s “slippery slope” argument – after Heller, any gun legislation that prohibits handgun ownership for law-abiding citizens must be deemed unconstitutional.  This, Siebel hopes, will direct Second Amendment dialogue to more practical matters, preventing gun violence, preventing felons and the mentally ill from circumventing background checks, and preventing illegal gun ownership through the establishment of universal background check standards.

“Prevention works,” he said: 1.6 million people have been denied a gun based on background checks under the Brady Law since 1993, and deaths from gun violence have plateaued.  This progress, however, is being thwarted by public reactions to the tragic shootings at Virginia Tech and on other college campuses around the country.  Rather than seeking to crack down on gun ownership in the aftermath of the shootings, 17 states – including Virginia – have introduced legislation to allow guns on campus; eight states have introduced guns in the workplace legislation.  A vast majority of the latter measures have failed, and all of the former have failed.

The reason for their failure, Siebel says, is a practical one.  The Virginia Tech shooter, for example, was adjudicated mentally defective long before he attempted to purchase the guns he used in his attack.  However, prior to the attack, only 10% of mentally ill gun buyers were successfully screened by the background check system because its reporting standards varied so greatly from state to state.  If the background check system operated as it should have, he would not have been able to obtain a gun.  In the wake of the tragedy, the Brady Center worked in conjunction with NRA to make sure that mental health adjudication records were made available to state agencies who conduct background checks, in order to prevent the recurrence of such an event.

In a lengthy Q&A period, a participant asked how one would reconcile medical records privacy with a state’s need to check for a history of adjudicated mental illness.

Siebel responded that gun retailers do not see medical records, but rather receive a “yes” or “no” regarding the buyer’s background check from the state agency.  Because the law pertains to those that have been adjudicated mentally ill, their status as such is something the state has a right to know.

Another particpant wondered why property entry rights (e.g. bringing a concealed weapon onto a school campus) should be denied in the context of mandatory background checks.  Won’t criminals simply violate property entry laws, leaving law-abiding, licensed, gun-owning citizens unarmed and unable to respond to a threat to their person outside their home?

Siebel responded that although the current background check system is imperfect, and many felons are capable of obtaining a concealed carry license, there are simple steps that can be taken to prevent gun violence where it can actually be prevented (such as violence perpetrated by known felons).  A recent computer cross-check of Florida’s concealed carry licenses with the state’s felony registry, he noted, revealed 1400 felons who were able to purchase guns because of flaws in the current background check system.  A nation-wide standard for background checks would address this issue head-on.  He went on to say that where some guns are allowed, gun violence exists.  For example, airports and airplanes (where a 100%, no gun policy applies) have little or no gun violence whatsoever.

In conclusion, Siebel again asserted that the Heller decision is a narrow one.  The only right announced by the decision is the right to have a gun in the home for self defense, and soit remains to be seen how the ruling will be applied to future cases.  The Brady Center’s position is that prevention of illegal gun ownership saves lives.  Simply because there is a method to skirt the law (e.g. gun show sales) does not mean that the law should not exist or should not attempt to regulate gun ownership.

So where do we start?  There must be some effort, Siebel said, to prevent dangerous people from obtaining dangerous guns.  To accomplish this, he suggests that universal background checks needs to become law, so that transfer of a gun is recorded at every transaction.  Right now, guns can only be traced to the first retail sale.  Siebel also recommends going after the 1% of gun dealers that sell 60% of the guns involved in gun crimes.  Sounds like a start to me.

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Published in: on October 8, 2008 at 7:38 am Comments Off on Brian Siebel Discusses Implications of D.C. v. Heller

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