Analysis of the Supreme Court's last decisions of the term and the impact of a vacant seat on the bench.
President Obama plans to attend a memorial service this evening for victims of the weekend shooting rampage at an Arizona supermarket. The gunman killed six people and injured 14. One of the injured, Democratic Congresswoman Gabrielle Giffords, remains in intensive care. The tragedy has led to renewed calls for tougher regulations on guns. But it has also had led some to urge looser gun laws to allow more private citizens to arm themselves for protection. The debate over who should be allowed to possess a gun and whether certain kinds of firearms should be banned.
- Josh Horwitz executive director, the Coalition to Stop Gun Violence.
- Daniel Webster co-director, Center for Gun Policy and Research at the Johns Hopkins Bloomberg School of Public Health.
- Alan Gura partner in the Washington law firm Gura & Possessky; lead counsel for the plaintiffs in the U.S. Supreme Court gun rights case District of Columbia v. Heller.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. For advocates of gun control, the tragic shooting in Arizona presents an opportunity and a responsibility to press for tougher laws. But gun rights advocates view it differently. They say stricter gun laws would not have prevented the shooting, and some argue more people should be allowed to carry concealed weapons to protect themselves and others. Joining me in the studio to talk about gun control, Alan Gura, he argued in support of gun rights in a recent U.S. Supreme Court case, Daniel Webster of Johns Hopkins University's Center for Gun Policy and Research and Josh Horwitz of the Coalition to Stop Gun Violence. Of course, we will take your calls later in the program. I invite you to join us with questions and comments. Good morning to all of you.
MR. DANIEL WEBSTERGood morning, Diane.
MR. ALAN GURAGood morning.
MR. JOSH HORWITZGood morning.
REHMDaniel Webster, if I could start with you, explain the role of the Johns Hopkins Center for Gun Policy and Research.
WEBSTERSure. We are based at the School of Public Health at Johns Hopkins. It -- our center is -- has been set up to conduct research relevant to the issue of guns and gun violence. Our purpose is to do research that can inform policy and public safety.
REHMAnd have you, in the past, made recommendations to members of Congress? What kinds of results come from your research?
WEBSTERYes. I have testified before Congress and in state legislatures as well. When I do that, typically, what I -- I come, again, as a researcher, and what I try to do is provide the best data that we have to inform the discussions. Most recently, this past summer, there was a hearing relevant to closing the gun show loophole. Among the data that I talked about in that testimony was some research that we did at Johns Hopkins that showed that states that regulate private gun sales, including those at gun shows, tended to have significantly less trafficking of guns -- the diversions of gun to criminals. So that is an example of the type of thing that I do when they are considering a policy where there is research that's been done, whether it's by Johns Hopkins or someone else.
REHMAnd Josh Horwitz of the Coalition to Stop Gun Violence, what are you hearing from your own constituents?
HORWITZWell, I mean, our constituents right now are very upset, obviously. A number of people have been involved in the movement for quite a long time. And, you know, these tragedies keep happening, and we take it very personally. On my staff, I have a number of people who were either injured or have -- or their parents were shot or their sisters were shot or daughters were shot. So I have a couple of people who work with me who are survivors. And every time this happens, it affects them so personally.
HORWITZSo, you know, what we want to do is get the facts. We want to pray for the people who are still injured and make sure that they recover fully. And then we want to try to make certain that this never happens again. And that's our priority, especially from my staff and our constituents, and especially for the people who I work with who have lost loved ones to gun violence.
REHMNow, of course, we've heard that same phrase, we want to make sure it never happens again, many times...
REHM...in the last few years. Is this any different?
HORWITZWell, I think this is different for a couple of reasons. You know, you never know what the final results of these things are going to be. And, you know, each tragedy has its own sort of impact, but, because -- as a member of Congress, as part of this, obviously, the focus is very sharp on this. But in my organization, we do two things. We work on policy issues. So we want to make sure that guns don't get into the hands of criminals and other prohibitive purchases, like the mentally ill. But we also look at a lot of the right wing rhetoric out there. And in my book, "Guns, Democracy, and the Insurrectionist Idea," we make the point that things like Second Amendment remedies, when they play out, are actually quite ugly.
HORWITZAnd we're not -- we don't want to blame anybody particularly for this, but I think it's one of the -- what we call a teachable moment, which is it's very important that we think about what it means when we talk about things like Second Amendment remedies and we talk about fighting government tyranny with guns. That's an anti-democratic type of idea. So I think this is a point of time when we can talk about that, and people are actually listening.
REHMAnd turning to you, Alan Gura, as lead counsel for the plaintiffs in the U.S. Supreme Court gun rights case, District of Columbia v. Heller, do you see this as a teachable moment, and if so, how?
GURAOh, this is absolutely a teachable moment. And it's sad that we find teachable moments in tragedies. The lesson to be drawn here is that this incident was completely preventable. And it was preventable, had the police or other authorities taken seriously the mental illness of this shooter. Here's an individual who had numerous contacts with the police. He was kicked off the campus of his community college because, five times, the police were called to interact with him when people felt that he was a threat. In fact, at the conclusion of that saga, he was told not to come back to school until he had a doctor's note that said that he was not a danger to himself or to others. Well, that's very nice for the campus community. But where do they think he was going to go? He was still out in public.
GURAAnd what should have happened, if the police had taken mental illness seriously, is this individual should have been brought before a judge, had a civil commitment hearing, and he should have gotten some help. At the very least, he should have been referred to treatment. But we don't really take mental illness as seriously, perhaps, as we should. And we continuously have problems with unbalanced individuals who commit horrible actions, sometimes with guns, oftentimes without guns. The solution, though, is to not crazy-proof society -- I don't think we can do that -- but when we encounter the dangerous people, to take them seriously and make sure that they are treated and removed from a place where they can do harm.
REHMAlan Gura, he is a partner in the Washington law firm, Gura & Possessky, lead counsel for the plaintiffs in the U.S. Supreme Court gun rights case, D.C. v. Heller. Do join us, 800-433-8850. Send us your e-mail to email@example.com. Join us on Facebook or send us a tweet. Want to get to your point about mental health and just how clear and straightforward federal laws are in regard to individuals trying to buy a gun, what kinds of loopholes there might be for individuals who wish to purchase a gun.
GURAWell, federal law prohibits people who are mentally ill or people who are drug abusers or alcohol abusers from having guns and from acquiring guns. If this individual had been confined to mental treatment, there should have been a record generated in the federal instant background check computer, and, had he tried to purchase a gun, that record would have popped up. And his purchase would have been denied. Additionally, when people seek to buy firearm in the United States, they have to fill out an ATF form that asks a variety of questions. And one of them is, have you ever been declared to be mentally ill, are you currently mentally ill, things like that.
GURAAnd, of course, if you answer, yes, then you're going to be denied. Now, it might be a little bit optimistic to assume that people would answer those things truthfully. I believe that provides the prosecutors with a tool to go after people who are dishonest in responding to that questionnaire. But all the same, if this individual had been dealt with the way that he should have been dealt with, had the police said, you know, this is the fifth time he's been dangerous to people. Maybe we should take him before civil commitment judge. That would have prevented his purchase of the gun.
HORWITZLet me jump in there. I mean, the form actually -- it's pretty specific and actually a high standard. It's involuntary committed or adjudicated a mental incompetent. So some states do ask if you're mentally ill, but the federal forum in Arizona is one of those that goes right back to the base federal level. So, actually, the standard is very high. Not that many people who are mentally ill, for instance, get involuntarily committed. Some states do have, like -- for instance, like New Jersey, ask other questions. And, I think, you know, there's two things. I think Mr. Gura's absolutely right, that we need to take mental illness very seriously. But at the same time, you know, not everybody who is mentally ill gets involuntarily committed, and not everybody who is mentally ill is dangerous.
HORWITZBut I think the states that actually ask more questions, like California or New Jersey or Illinois, do actually do a much better job of screening mental illness. And I think -- dangerous mental illness -- and I -- there's a lesson here, I think, which is that the federal standard is just too -- it's just a one -- it's too high. I think we need to -- if we really want to be serious about keeping guns out of the hands of people who are dangerously mentally ill, we need to lower the standard, do a little bit more investigating and copy some of the states that are more successful in their (word?).
WEBSTERWell, I would agree with Josh's point, that the current standard for federal law and most state laws is a very -- there are very few people who are mentally ill that would meet that standard, okay? And that could be readily identified through the background check system that Alan described. So the other issue that we struggle with when we talk about mental health and guns is getting the records that identify the prohibited individuals into the background system. We've made some headway on that, but we have a ways to go.
REHMSo what you're saying is that the seller -- if the applicant writes, no, I'm not mentally ill, I've never been committed -- that's it. That's all he or she has to do.
WEBSTERWell, that's all he or she has to do. However, they do have to go through a background check. And if there is a mental health flag in the criminal background check system, then they would be prohibited.
REHMShort break. We'll be right back.
REHMAnd we're back, talking about the laws regarding control of, possession and use of guns around the country. We have three guests here in the studio. Josh Horwitz is with the Coalition to Stop Gun Violence. Daniel Webster is a researcher at the Johns Hopkins School of Public Affairs in the Center for Gun Policy and Research. Alan Gura, he was lead counsel for the plaintiffs in the U.S. Supreme Court gun rights case, District of Columbia v. Heller. The phones are open. If you'd like to join us, 800-433-8850. Like -- Josh, I'd like you to talk about the weapon itself that this young man used in Arizona.
HORWITZSo the weapon was a Glock 19. It takes a 9 millimeter shell, which is similar -- it's a little smaller than a .40 caliber to convert to the English system. It was equipped with a 33-round magazine. In the late '80s, law enforcement made a shift from revolvers to semi-automatic pistols. Glock has taken a lot about law enforcement market because it's a very light polymer pistol. People like to carry it. It's easy to carry. There's no external safety on that. And, of course, the civilian market -- it's also sold readily in the civilian market in a number of different configurations. But it can accept this 33-round magazine so that it -- it's semi-automatic. It's one pull, but you can very rapidly, shoot 30 -- in this case, 33 rounds without having to reload. And...
REHMI understand it's used in law enforcement. What is its use in private hands?
HORWITZWell, it can -- I mean, it can be used for self-defense. It can be used as -- for a target weapon. There's a number of other similar semi-automatic weapons on the market, and it's -- in some way, there's been a shift, in other words. So you don't see that many revolvers. You see these types of weapons. Up through 2005, you could only buy them with a 10-round magazine. But after the assault weapons ban expired, you can buy them, now, up -- with -- up to 33, maybe even beyond that. But it's a very lethal weapon. It's not that it's uncommon, but it's very lethal and, obviously, in the wrong hands, can do an amazing amount of damage.
REHMNow, how does the Coalition to Stop Gun Violence feel about the Glock 19?
HORWITZWell, I think, you know, since Mr. Gura's work in the Supreme Court, you know, people -- the Supreme Court has said that people have a right to have them in their home, and so we go along with that. We -- but we, obviously, feel that somebody who -- it's a lethal, dangerous weapon. And so we believe that someone who has that should be -- that their background should be checked thoroughly, that they have some training, that we -- I mean, it -- that -- we look at states like New Jersey and like New York and like California as models for any weapon.
HORWITZIt's not just -- I mean, a weapon in the hand of a criminal or someone who's prohibited purchase or mentally unstable, it's not good -- any weapon. So we think that there should be enhanced background checks right now, that people should have to go through licensing, registration in order to get a weapon like that.
REHMDaniel Webster, does the Glock 19 enter into your research and, if so, how?
WEBSTERWe have not studied that specifically. Long ago, one of the first studies I did on gun violence, actually, was based on data here in the District of Columbia, and I was tracking trends in the number of gunshot wounds per patient. And they seem to track quite closely with the shift that Josh referred to when there was a shift from revolvers to more semi-automatic weapons that held higher capacity of guns, so that they tended to -- the victims tended to have more wounds as the weaponry changed. I think that the -- really, the issue in question here is the capacity of the magazine, ammo magazine, and that is -- you know, for example, there are several states -- I believe six -- that limit the number of rounds that could be in a pistol's magazine. New York, California, New Jersey, I think, all limit it to about 10.
WEBSTERAnd the District of Columbia, Hawaii. So -- and they're for good reasons because, you know, we just saw in the incident in Tucson -- he was able to fire off, what, 31 rounds, probably in less than a minute, 30 seconds. And he was subdued only when he went to change his magazine clip.
REHMAlan Gura, what is the justification? I realize the Supreme Court has ruled on this. What is the justification for a gun like this to be in the hands of a non-law enforcement official?
GURAWell, the Glock is a perfectly fine handgun. I would agree that there's nothing -- aside from the fact that it's a well-made popular model of gun, there's nothing unusual about it. There's nothing inherently dangerous about it that would make it different than any other type of handgun. People are entitled in this country to have the arms that they would expect to have in common use for lawful purposes. And the Glock and other similar handguns have many lawful, useful purposes -- not the least of which is legitimate self-defense -- and handguns are used in self-defense.
GURAMany, many times a year, the social science is somewhat in dispute, but at the low end, some social scientists believe it's in the thousands or hundreds of thousands range. Other people believe it's in the millions as far as defensive gun use is -- oftentimes, the handgun is used defensively, not by even firing it, but merely the display or introduction of a weapon will cause an attacker to back off, perhaps reconsider the crime. So there's nothing wrong with a Glock. We are entitled to perfectly fine defensive arms, and the Glock handgun is one such well-qualified arm.
HORWITZYeah, I mean, I think the issue here is really the magazine capacity. I don't think there's any -- there's just no reason for a civilian to have a 33-round magazine. You can defend your home. You can hunt. You can target shoot with a 10-round magazine just fine. And I think it just doesn't make sense to have that type of firepower in civilian hands. It's -- the opportunity here was actually when they -- when the -- when Loughner tried to reload the weapon, to tackle him. That's when it was stopped. And if your child is the 15th, the 20th or 25th round that was shot, I think you'd feel that there's just no purpose for this.
HORWITZIf -- and there is -- you know, there is, after Heller, a right to have a gun in your home. But that does not include a right for -- to have a 33-round magazine. And I was actually very pleased, Alan, to see that your partner in crime, Mr. Levy, came out and said there's probably no constitutional problem with that as well. So, I think, that's something that we can move on as a policy issue. And there's just no reason for that in civilian hands, and I actually hope that Congress will move quickly to ban those types of magazines.
REHMWell, that was my next question. As a result of this tragedy, Josh, do you expect new laws to come about?
HORWITZWell, I think, today, Carolyn McCarthy will be introducing a magazine ban above 10 rounds, to go back to the standard after -- to where it was up until 2005. And I'm sure there'll be Senate companion language. And I'm -- you know, I'm optimistic that they will be able to do that, but it's also -- it's up to the American people. Are they outraged enough to make this happen? Because that's how people respond when people call and write their Congress people. That's when change happens. And so, you know, we're -- we'll be doing all the advocacy that we can do, and we hope that the people will work with us and get this done.
GURALet me respond to this notion that a magazine limit is something that should be considered. First of all, there's a great difference between what we see in the movies and on television whenever there's a shooting incident. It seems as though, in Hollywood, every bullet finds its mark magically, and the bad guy gets hit. The reality is quite different. Oftentimes, when an incident occurs, some random act of violence happens and a person needs to use his or her gun in self-defense, many, many shots do not find their mark. And if a civilian or a police officer needs that 11th round to stop the attacker -- because many of the other previous 10 either missed or wound up not having enough stopping power against the attack -- then when you take away that 11th round from a person, that person becomes a crime victim.
GURAPolice carry glocks with 15-, 17-round magazines 'cause that's what they come with normally from the factory. The frame of the handgun can accommodate that many rounds. You don't see the police reducing artificially their ability to carry defensive arms because you can pull a number out of your hat. The reality is that one round is too many rounds in the hands of a mentally unstable person. And instead of, again, trying to crazy-proof everything and limit people's access to legitimate tools, we should try to make sure that mentally unstable and dangerous, violent people are excluded from society.
REHMDaniel Webster, do we have any stats on how many crimes have been committed with reloadable guns, with multi-bullet firing guns, committed by mentally ill persons?
WEBSTERNo. I'm afraid that data has not been collected. There is no system in place to record that type of information. The Bureau of Alcohol, Tobacco, Firearms and Explosives does have a tracing system where they do record some information about the guns used that are traced to crime. However, I don't believe there is a reliable data collected on the capacity of the weapon, how many rounds would that weapon hold.
REHMI'm interested in the fact that we did invite the NRA to be on the program this morning. They sent us an e-mail saying that now is not the time to talk about guns. It was simply a time to reflect and to send our sympathy to the family of those injured and killed. Do you see, in this response, any sign at all, Josh Horwitz, that the NRA not only knows that this kind of assault is coming on the assault weapons, but also that public opinion is changing?
HORWITZWell this is a very typical response from the NRA. I've been doing this for 21 years. And after Columbine, after Virginia Tech, and now -- and after this, they don't want to talk about the issue. And there's a very good reason for that. People -- when the issue is in the news, peoples' passions are high. They want something done. And delay is justice denied, right? That justice delayed is justice denied. And I think what happens is that after a while, people go on to the next crisis, and I think it's a typical reaction. And I used to subscribe to that, but I've learned that the best way to honor the victims of these things is try to get something done. And to get something done, we need to do it now.
REHMJosh Horwitz, he is executive director of the Coalition to Stop Gun Violence. And you're listening to "The Diane Rehm Show." President Obama is scheduled to speak out in Arizona today. Do you expect anything from him on this issue, Josh?
HORWITZI do, down the road. I think it -- today, I wouldn't expect that he would say anything. I think that it -- today, it's about mourning. And it's about praying, and it's about healing. But I think, down the road, you know, that Mr. Obama will weigh in on this. I mean, I think that he has done some things that we have not been happy with, but, recently, there had been some -- he's finally nominated an ATF director. They finally started to get tough on some of the dealers on the Mexican border. And I think this will be a debate that he will not be able to avoid.
REHMYou've also talked about the American people's response. How has gun violence or the gun issue affected election outcomes, Josh?
HORWITZWell, I think, you know, there's a method that's affected outcomes a lot. But I think -- if you look at the facts, I actually think that the NRA's electoral power is way overrated, and especially in these days of, you know, $100 million elections, $20 million Senate elections. The NRA has a lot of money, but not that type of money. It's a -- so I think that people are very afraid of the NRA in the election season. I think it's just completely unwarranted. And I think there's been a myth constructed, starting in the 2000 elections, that they were -- that they're all-powerful. That doesn't mean that they don't have a strong grasp in its lobby force -- because they do -- but I think that their electoral strength is way overrated.
REHMAlan Gura, do you want to comment?
GURAWell, the people who are in the business of running for office would not agree with that assessment. They study the polling. They understand what their constituents want. And they know what get themselves elected and keeps them there. And if members of Congress or candidates for office felt that gun control was a winning issue, then they would go ahead and run on it. And I think the proof is in the actual way that they conduct these campaigns.
REHMInteresting, that the Brady Campaign to Prevent Gun Violence points out that only two of the 101 Democratic representatives who co-sponsored a gun control bill in the last Congress lost their seats in the recent midterm elections.
GURAI think, you know, Gerry Connolly in Virginia -- in the Virginia races here is the most -- is really a classic example. You know, there was an anti-incumbent tie this year. But he was one of the candidates that was able to talk about it, felt comfortable talking about it, was knowledgeable about it. His opponent was way out of step with his Northern Virginia sort of suburban district, and Connolly pulled out a win at the end. And, I think, his opponent, Keith Fimian, made a number of mistakes about guns, talking about how Virginia Tech students should have been armed. I think most suburban voters -- most Americans think that's just wrong.
GURAAnd, I think, if politicians took the time to learn about this issue, understood where the fault lines are, most Americans believe that they should be able to have a gun in their home for self-defense. But they also believe that we should be able to do everything we can to keep guns out of the hands of criminals and other prohibited purchasers.
WEBSTERGerry Connolly represents a district that is absolutely chock-full of government workers and people who are employed by government contractors and others who depend on continued largesse of the federal government for their employment. And so it's not surprising that the candidate of government, and of larger government, would prevail on that kind of election. I don't believe that guns, in particular, were an issue in that district. The fact that 100 -- if 100 Democrats sponsoring gun control legislation were re-elected, that's not surprising, too. There is -- there are easily 100 seats that the Democratic Party holds. It would be within its absolute core base. These are people who are not going to lose their seats.
HORWITZWell, here is the interesting thing. It's the Democrats with the NRA A-ratings are lost. I mean, it's just -- it's -- people who try to sort of insulate themselves by getting that A rating, voting the wrong -- in my position -- the wrong -- might view the wrong way. It doesn't serve them very well. The NRA figures out a way to support their appointments anyway.
REHMAlan Gura, do you expect that President Obama will now take the lead and push for new controls on guns?
GURAI have no idea what the president might want to do. The president is probably not friendly to Second Amendment rights, given some of the things he said in the past and his background. I think, the president, however, is a very skilled politician, and he's unlikely to go ahead and try to use this.
REHMAlan Gura, he is, or was, lead counsel for the plaintiffs in the U.S. Supreme Court gun rights case District of Columbia v. Heller. Short break. Right back.
REHMHere is our first e-mail in the discussion we're having this morning in the aftermath of the shooting in Arizona. It's an e-mail from John, who says, "Is it possible to know how many lives have been saved by the use of the firearm for personal protection? Does this data exist anywhere? It would be interesting to know as it would help balance the discussion." Daniel Webster.
WEBSTERWell, there certainly have been surveys that have attempted to measure the frequency and nature of defensive gun use. There have been a number of them. And I have to say, I have been always incredibly skeptical of any such data. It's a very subjective question to ask someone. Did you use a gun in a manner, you know, that truly was defensive? So some of this debate and discussion started with a survey done by a criminologist named Gary Kleck, who did some research and estimated there was -- of the magnitude of about 2.5 million times a year that American choose guns in self-defense.
WEBSTERA subsequent survey trying to study the same thing but expanded how they asked the questions and the type of information they got, and they found far fewer legitimate uses of self-defense and that even from the respondents' own explanation of events, that they were commonly hostile uses of guns against other individuals than there were truly defensive. But my bottom line is that as much as -- that's a very valid question. As much as we would all like to know the answer to that, I personally think it's unknowable.
REHMAll right. Let's go to Jackson, Mich. Good morning, Scott. You're on the air.
SCOTTAs usual, you and your guests are very astute, but I think that the elephant in the room in this discussion, legally speaking, is physician-patient privilege, that, basically, your medical records are private between you and your physician. That's why the Gun Control Act of 1968, the federal act, really -- well, it's been on the books since 1968 -- can't be enforced. Now, this is not word for word, but it's actually pretty succinct. It says, basically, anybody who's been diagnosed clinically mentally ill can't buy guns or ammunition, period. So, really, Mr. Loughner, you know, the assassin, you know, on the recent incident, what he did was illegal under federal law.
HORWITZWell, that's just not the standard. The standard is involuntarily committed or adjudicated a mental incompetent. So it's not whether you're going to a psychiatrist. And we obviously don't want to make going to a psychiatrist a criminal offense. We want to make sure that there's ways to figure out who the dangerously mentally ill are. Not everybody who is mentally ill is dangerous, but that generally means doing some type of enhanced background check or enhanced review. But it's not -- the law is very specific. And it's a very high standard right now, and there's no investigation that's conducted. So that's part of the problem.
REHMAll right. Thanks for calling, Scott. Here's an e-mail from John in Rochester, N.Y., who says, "I grew up in rural America. I've been around guns and gun owners all my life. I worked my way through college as an apprentice gunsmith, became very familiar with the wide variety of people who buy, sell and use guns. The majority of gun owners are good, responsible people, but there is significant number of gun enthusiasts out there who are truly nuts. It was a very unpopular view at the gun shop, but I was convinced that the relatively strict gun laws in New York State actually were making the public safer. In my view, there is no excuse for having the situation in Arizona where a man who was crazy enough to be thrown out of school, rejected by military recruiters as unstable, was able to walk out of a gun store with a concealable handgun." Daniel Webster.
WEBSTERI really appreciate that John shared his thoughts and experiences with guns because whenever this issue gets discussed in the media, it's portrayed as if all gun owners oppose all measures to regulate guns, which is completely nonsense. There's been a number of surveys done over time that show that most gun owners feel precisely as John feels, is that most common sense regulations are perfectly comfortable with. If you ask them whether there should -- we should ban guns, of course, they say no to that question. But most reasonable measures, again, designed to keep guns from dangerous people -- criminals, people who are mentally ill, addicts. Most gun owners are completely comfortable with that.
GURAWell, the e-mail is interesting. I think, as most people readily recognize, Arizona is generally a much safer place to be than New York. Crime rate is somewhat lower. Even after this incident in Tucson, I don't think that one can look at this incident and generalize this to the entire state of Arizona. What popular opinion might hold with respect to gun regulations or speech regulations or any other kind of regulation that impacts a constitutional right is really not all that important.
GURAThere is room for democracy to operate and for the public to enact regulations that are appropriate. However, the bottom line here is that there is a fundamental right at stake of people to be able to access arms for legitimate lawful purposes, including self defense. And so laws that go too far as constitutional standards should be struck down, even if they might be popular, just like any other law should be struck down regardless of its popularity if it actually violates a constitutional right.
HORWITZWell, I think what we're talking about here is just not in that realm. I mean, what the court has decided is that you have a right to a handgun in your home. What we're talking about is, is there a right to carry a 32-round magazine on a public street in Tucson and approach a congresswoman with that. And I think the answer, both constitutionally and popularly, is no. And I think the American people will feel very strongly about that, and I think the courts will feel strongly about that as well. I'd like Daniel to answer the question about safety. I think New York City is the safest big city in America, and they have a very strict gun regulation regime.
WEBSTERYeah, that's very true. And it becomes very difficult to compare one state against another because states are so different demographically, how urban or rural they are and so on. Little easier to compare cities, and the cities in New York tend to have substantially lower rates of, particularly the most lethal forms of violence, homicide. So...
REHMAlan made the point that Arizona is one of the safest states in the country. Is it so?
WEBSTERThat's not my view of it. No.
REHMWhat is your view?
WEBSTERWell, I think that, again, if you look at the cities there and compare it to other cities, they have relatively high rates of homicide.
WEBSTERAgain, compared if you would look to cities in places where there are more comprehensive regulations to make it more difficult for dangerous people to get and carry guns.
REHMAll right. Let's go to Spencer, who's in Charlotte, N.C. Good morning.
SPENCERGood morning. Three quick points. Number one, if Sarah Brady could wave her magic wand and make all the guns in the world go to the moon, a criminal could have a gun by tomorrow afternoon. It's the simplest and oldest technology known to man. A steel pipe, charcoal from your backyard grill, fertilizer from your garden, and a lead weight from a fishing kit -- you got a gun. Number two, the high capacity magazine thing is a ruse. Someone with a Webley .38/200 and a pocket full of speed loaders could have done more damage. And, number three, this thing about modern weapons is also a ruse. My Colt .32 Vest Pocket semi-automatic is over 100 years old and is just as deadly as the Glock 19 and fires just as fast.
REHMAll right. Thanks for your call. Josh?
HORWITZWell, I think that the issue of, you know, can you do something about it, is that the states that have comprehensive firearm regulations have a lower firearm death rate. I think that's pretty clear. And I would much rather, if I was trying to defend a comrade, if I was trying to ensure congressional safety, worry about single-shot homemade firearms than I would about advanced polymer weapon with a 33-round magazine. I think we're not -- you know, we're talking about implements that really don't have any civilian use. And the fact is, yeah, there have been guns -- there have been semi-automatic firearms around for 100 years. But it's the advent of some of the -- it's the advent of these high-capacity magazines and some of these -- and some of the concealability issues that make these weapons particularly lethal.
REHMThe other issue here is where one purchases guns, where one can purchase guns. Would you like to see restrictions put on gun shows, Alan?
GURAWell, gun shows are the popular form of buying and selling guns. The fact is that if you are a federally licensed dealer, the fact that you happen to be at a gun show does not excuse you or exempt you from following all the same rules that would apply in your retail store. There is a question of whether private transfers and private sales should have to go through some sort of a background check system. And there are some ways to implement that that are less intrusive than others. But the idea that you can simply ban gun shows is just a silly idea.
REHMWhat is -- then, Josh?
HORWITZWell, I don't think -- I don't think anybody wants to ban gun shows. I think what we want is just to follow sort of what Colorado or Oregon has done, which is just to make sure that every sale at a gun show goes through a licensed dealer. It just doesn't make sense -- for instance, in Virginia, after the Virginia Tech incident, we had a number of reforms to the mental health laws to make it easier to get people's records into the mental -- into the background check system.
HORWITZBut in Virginia, you can still go to a gun show any weekend of the year and go to an unlicensed dealer and buy firearms. I would commend people to see the new documentary "Living for 32," which depicts one of the actual people shot at Virginia Tech -- Collin Goddard -- going to gun shows and buying assault weapons without background checks. If there's any doubt that that happens, it's all on film. And so it's really...
REHMYou were saying it just doesn't happen.
HORWITZNo. I mean, it does happen all the time. I mean, you can purchase high capacity...
REHMThat's what I mean, yeah.
HORWITZYeah. Yeah. All the time, every weekend in Virginia. It doesn't make sense. We've been -- we have a background check system that works that has mental health reporting. And, actually, if you're a criminal, you don't have to use it. Just go to a gun show and engage a private seller.
REHMWhat about that, Alan?
GURAIf there were some way to implement a background -- an instant background check system at a gun show for everyone who participates in a gun show, I personally would not have a problem with that. But we must allow people to engage in private party transfers. Guns are tools that people buy, sell, trade, and they should be able to maintain their ability to do that.
REHMAll right. Let's go to Dallas, Texas. Good morning, Sheila, you're on the air.
SHEILAGood morning, Diane. I'm wondering what happened, that reasonable people who want reasonable laws about guns have lost the official narrative to the NRA. How is it that the NRA garnered the public voice against -- or at least in my view -- against reasonable gun laws?
HORWITZWell, I think -- look, I think the NRA has a narrative. Their narrative isn't about gun laws. Their narrative is about freedom and liberty, and those are very popular concepts. And I think that they've -- I have to hand it to the NRA on one thing, that they have created a really good narrative about why guns are important in America. But, I think, when you peel -- take a layer off, one of the things they talk about is this sort of idea that we need guns to take on the tyrannical government and that's part of our birthright. But I think our constitutional system -- that's not appropriate. But that's their narrative, and it's a powerful narrative. And people, on first blush, think that's about patriotism. I think if you take the -- peel it back a little bit, it's not patriotic. It's anti-democratic, but it's a compelling message.
REHMJosh Horwitz, the Coalition to Stop Gun Violence. You're listening to The Diane Rehm Show. Daniel Webster, you want to add to that?
WEBSTERWell, I think one reason why the NRA has been effective is there's constantly a back and forth in the dialogue about, it's the guns, it's not the guns. Okay? As if it's an either-or question. And in our society and probably in a lot of societies, we don't want to say that something is due solely to some instrument as opposed to an individual responsibility. But it's a very unproductive type of dialogue and debate that is completely divorced from reality. The reality is that, yes, individual behavior and responsibility is incredibly important. But all the science and, frankly, common sense tells us that the context, environment, availability of lethal weapons matters.
GURAWell, the NRA and other gun rights groups are powerful because these are member-supported organizations. Their message is one that resonates with the American people, and that's why, in a democracy, they tend to prevail.
REHMIf you were to take a poll today on gun ownership and concealed weaponry, and specifically this multi-firing Glock 19, an automatic weapon, what do you think the outcome would be today as opposed to two weeks ago?
GURAWell, I'm not a pollster. I also probably wouldn't much care what the outcome is. As a constitutional matter, we are entitled to have arms of the type that we would expect to find in common use for self-defense. A Glock 19 is an arm that is protected by the Second Amendment to the U.S. Constitution. And we don't put the Bill of Rights up for a poll. Sometimes, the First Amendment is not very popular with people. Oftentimes, due process, jury trials, giving people a right to an attorney are unpopular. They certainly exert a certain amount of social cost, but these are things that are fundamental in our scheme of justice. They are part of our tradition of liberty, and so we respect them and honor them, regardless of what a poll might show in the heat of a moment.
HORWITZWell, I think we have to remember that the constitutional right here is a very narrow right. It's not a right to carry whatever, whenever you want. It's not a right to have machine guns. It's not a right to avoid a background check. It's a right to have a weapon in the home. And that's what we're talking about, and that's what the Supreme Court has found. So, I think, to constitutionalize the whole issue is really a mistake. There is definitely a place for the popular will and what people should -- what people think and what, frankly, law enforcement needs to keep people safe. So, I think, to that degree, let's not constitutionalize the entire issue. We're talking about a relatively narrow right.
HORWITZBut as far as polling goes and what people think, I just noticed a poll just over the weekend from Richmond Times-Dispatch of Virginians. And 85 percent of Virginians -- not a particularly liberal state -- are in favor of closing the gun-show loophole. So I think, again, people want guns in the home for self-defense, but they also believe it should keep them away from prohibited purchasers.
REHMJosh Horwitz of the Coalition to Stop Gun Violence. Daniel Webster, the Center for Gun Policy and Research at the Johns Hopkins School of Public Affairs. Alan Gura, he's a partner in the Washington law firm, Gura & Possessky, lead counsel for the plaintiffs in the U.S. Supreme Court gun rights case, District of Columbia v. Heller. It'll be interesting to see where this discussion goes now. Thank you all so much.
HORWITZThanks for having us.
REHMThanks for listening all. I'm Diane Rehm.
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