Few Volunteers for NRA Agenda

In recent months, the National Rifle Association (NRA) has been pushing state legislatures across the country to legalize the carrying of concealed handguns in sensitive public places—an agenda that hasn’t sat well with the public itself. One key battleground concerning such legislation has been the state of Tennessee.

A new law in Tennessee that went into effect on September 1, SB 1518, allows concealed carry permit holders to take their handguns into parks, natural areas, campgrounds and “similar public places.” Cities and counties are allowed to opt out of the law by passing local legislation, however, and maintain their concealed handgun bans in parks. Approximately 70 municipalities have already exercised this option; ranging from major cities Memphis and Nashville to rural towns with populations under 2,000. Vice Mayor Steve Brown said of his city: "Hendersonville is a fairly conservative community, and I'm a fairly conservative alderman. Four of our aldermen have carry permits—I'm one of them—and all four of us opted out of that law." When told that the sponsor of SB 1518, Sen. Mae Beavers (R-Mt. Juliet), was considering offering new legislation to take away the opt-out provision for local governments, Brown said, "If you make a law that 70 percent of your people don't like, you'd be pretty foolish to bring it up again in an election year. I wouldn't touch that law with a 10-foot pole."

Recently, some Knoxville officials who expressed support for the ban have received threatening emails from concealed carry permit holders. Knoxville City Councilwoman Barbara Pelot received approximately 400 such emails, and said, "It made me think strongly about what kind of training do these permit holders have? ... These people don't have psychological testing. They don't go through what Knoxville Police Department officers and the Sheriff's Office do. The passion and the intensity of these e-mails made me think some very bad choices could be made by these people who have permits."

Another law that went into effect in Tennessee this year, SB 0575, allows “[any] person who has [a] handgun carry permit and is not consuming alcohol to possess [a] handgun in any restaurant that derives more than 60 percent of its revenue from the sale of food .” Tennessee does not differentiate between restaurants and night clubs for liquor licensing purposes, making the Volunteer State the first in the country to allow concealed handguns in bars (Arizona recently became the second). No mechanism has been specified to enforce the law—presumably restaurant owners would have to search everyone they serve alcohol to to see if they are carrying a firearm.

In July, a group of 10 Tennessee restaurant owners and workers filed a lawsuit which alleges that SB 0575 “creates unsafe workplaces, [and] violates federal occupational safety and health laws.” Adam Dread, attorney for the plaintiffs and an NRA member, stated, “How hard is it to have a common-sense awareness that guns and alcohol don’t mix? It’s a deadly mix. Two guys with fists, you have a fistfight. But if one has a gun, you have a tragedy.” The Tennessee Hospitality Association, Nashville Chamber of Commerce, and Nashville Visitors and Convention Bureau are supporting the lawsuit.

Proponents of the law, such as SB 0575 sponsor Sen. Doug Jackson (D-Centerville), claim that concealed carry permit holders are well-vetted and among the most responsible gun owners in America. Several recent developments, however, call these claims into question.

In late 2008, the Tennessee Department of Safety discovered that approximately 200 individuals who held concealed carry permits in the state had active restraining orders against them for domestic abuse. Although this was a clear violation of the law (subjects of restraining orders are prohibited under federal law from possessing or purchasing firearms), the Department of Safety did not notice this oversight until informed by a Nashville television station.

Then, in August of this year, the Tennessean discovered “a persistent group of Tennesseans with violent pasts who carry gun permits through loopholes, administrative mistakes, and the realities of a court system where charges based on violent incidents can be reduced or eliminated in plea bargains.” This group included convicted felons who illegally held permits and others who obtained their permits in accordance with the law despite long criminal histories. As a “shall-issue” state, Tennessee does not give local law enforcement any discretion over whether to issue a permit. If an applicant passes a basic computer background check, police must issue the permit, even if the individual is an obvious threat to public safety. "The circumstances of the cases…brought to our attention can certainly lead one to reasonably question the judgment and character of these individuals, and whether they should have permits to carry guns in public, including bars and restaurants," Nashville Metro Police Chief Ronal Serpas said in a statement. "But again, the law is the law."

In an even more recent incident that occurred in Knoxville on September 3, Luann Keller, 55, was charged with aggravated assault after she allegedly pulled her gun on an off-duty police lieutenant. Authorities say the incident may have been the result of road rage. “She started blowing her horn and then pulled up beside him and pulled a firearm,” says Knoxville Police Department Lt. Kenny Miller. Keller had a valid permit to carry a concealed handgun.

The NRA insists that allowing concealed handguns to be carried everywhere will make us safer. Opposition to their legislation in a “Red State” like Tennessee—hardly a liberal bastion—is convincing evidence that few Americans agree with them.

The Myth of the "Black Market"

The cities of Washington, D.C. and Chicago have been under siege in recent months by the National Rifle Association (NRA), which is attempting to overturn gun laws in both jurisdictions.

The NRA’s battle with Chicago has been in the courts, where the gun lobby is seeking to have the Supreme Court’s Second Amendment ruling in the case of D.C. V. Heller incorporated at the state level. This would have the practical effort of repealing Chicago’s handgun ban. After the 7^th Circuit Court of Appeals rejected the NRA’s lawsuit, it appears headed to the Supreme Court on appeal.

D.C. v. Heller, of course, already repealed the District of Columbia’s handgun ban, but the Supreme Court’s ruling did not go far enough for the NRA. They are now seeking to have the city’s new, constitutional gun laws repealed through an amendment that was initially attached to the “D.C. House Voting Rights Act” by Senator John Ensign (R-NV). That bill has yet to be considered by the House of Representatives, and the amendment’s next likely target is the D.C. appropriations bill, which Congress will likely take up this summer.

Time and time again, the NRA has blamed violence in the two cities on their tough laws, despite evidence that shows that criminals are totally unable to acquire firearms inside Chicago and Washington. So why is it so easy for criminals and gun traffickers to get firearms outside the borders of cities? A fascinating new essay by David Kairys, a professor of Law at Temple University, provides some answers.

The essay, entitled “Why are Handguns So Accessible on Urban Streets?” is a chapter in the new book Against the Wall: Poor, Young, Black and Male. Kairys argues that we need to avoid a “pervasive acceptance and strange sense that the extraordinary level of death and killing is a normal or inevitable aspect of life in urban America,” and that only after understanding why guns are so readily available in cities can we begin to correct the problem.

Kairys explains that “the market makes new handguns so easily available—often for less than one hundred dollars new, right out of the box—that it makes no sense to steal one.” In fact, “anyone who does not have a record can go to a licensed gun store in most states, legally buy as many handguns as he or she wants, and walk out the door with them.” Kairys also points out that there are no “meaningful limits on the resale of handguns,” because private individuals, unlike federally licensed gun dealers, are not required to run Brady background checks on purchasers.

In Kairys’ words: “The bottom line is this. Under federal law and the law of most states, any person so inclined can buy huge quantities of cheap, easily concealed handguns and sell them to others indiscriminately, often without violating any law and usually without having to worry about getting arrested, prosecuted or convicted. Nor are the identities of owners of handguns, or the persons to whom they transfer ownership, registered or maintained by government, unless state law so provides—and most do not.” Capitalizing on this weak regulation, gun manufacturers produce “more guns than could be sold to law-abiding people,” knowing full well their product will be distributed to criminals and other prohibited purchasers downstream.

So what can we do to address this problem? Kairys advocates for registering handguns and licensing handgun owners; adopting strong, clear and specific “straw purchase” laws that make all of the parties to a straw purpose criminally and civilly responsible; limiting multiple purchases of handguns in a given period; and providing large urban areas with the authority to regulate handguns within their borders. All of these measures would help to reduce the flow of handguns to criminals on America’s streets.

But most importantly, we must learn to overcome our own misconceptions of the problem. As Kairys writes, “the common image of an underground, illegal market is largely fictional.” The ability of dangerous people to easily obtain guns is the result of our weak gun laws, which do little to regulate the firearms industry. The good news? Significant progress can be made in reducing gun violence as soon as our elected officials are made to realize that “the loss of life, the economic and social costs, and the undermining of the safety and the quality of life in America are unacceptable.”

A Fine Example

Tragedy was averted on December 9 when police arrested 15-year-old Richard Yanis, who planned to carry out a mass shooting at his high school in Pottstown, Pennsylvania.

Yanis was going to “shoot everyone he did not like” at Pottstown High School. He planned to tell friends to leave the school’s grounds prior to opening fire on teachers and students. Montgomery County District Attorney Risa Vetri Ferman characterized the would-be school shooter as “an outcast, a loner who didn’t have many friends. He was picked on, he felt like he didn’t fit in very well.”

In preparation for the shooting, Yanis stole three handguns and ammunition from his father’s locker and gave them to a friend. The friend was to deliver the weapons to Yanis at the high school on the day of the shooting. However the plot began to unravel when Yanis’ father, Michael Yanis, reported the guns stolen to police, touching off an “intense, month-long investigation.” The friend holding the weapons soon dumped them in a river with the help of his stepmother and alerted school officials. Police intervened and quickly took Richard Yanis into custody. He has been charged with criminal attempt to commit first-degree murder.

The incident touches on a number of hot button issues regarding the role of guns in schools and the responsibilities of firearm owners...

Recent years have seen aggressive efforts by the gun lobby to push concealed weapons into America’s schools. Gun rights organizations have argued that arming teachers and allowing others to carry handguns into schools will enhance children’s safety. The Harrold School District in Texas made national news when it became the first K-12 campus in the country to allow teachers and faculty to carry concealed handguns. Defending the district’s decision, Superintendent David Thweatt stated, “When the federal government started making schools gun-free zones, that’s when all of these shootings started. Why would you put it out there that a group of people can’t defend themselves? That’s like saying ‘Sic ‘em’ to a dog.”

Not only did Thweatt ignore the facts—a recent study showed that youth ages 5-18 are over 50 times more likely to be murdered when they are away from school than at school—he also failed to consider that a better solution might be to prevent active shooter situations before they even happen. The Pottstown case demonstrates that good investigative work by police, and vigilance by school administrators, can forestall a tragedy without the need to inject guns into a learning environment.

The Pottstown incident also highlights the importance of reporting lost and stolen firearms to the police. One can imagine what might have happened had Michael Yanis failed to make that critical call to law enforcement. As District Attorney Ferman noted, Richard Yanis “had the immediate capacity to commit the crime with the guns and arsenal of ammunition waiting to be delivered upon his word.”

One might think that reporting lost and stolen guns is a common-sense thing to do. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has reported, however, that “most gun owners do not report stolen firearms to the police.” In the state of Pennsylvania, Pittsburgh Police recently reported that out of 1,900 firearms recovered on crime scenes in 2007 and 2008, only 231 had been previously reported missing or stolen.

The city of Pottstown recently passed a new ordinance that requires gun owners to report lost or stolen firearms to the police. The National Rifle Association (NRA), remarkably, opposed the ordinance, stating, “It’s not going to end up lowering crime. All it ends up doing is further victimizing someone who’s been a victim of crime.” The NRA, however, has been unable to cite a single instance where a law-abiding gun owner was wrongfully prosecuted under the law in any of the seven states where it has been enacted. At a recent Pottstown City Council hearing, one local gun owner, David Blankenhorn, had a very different view: “[My pistol] turned up in a drug raid in Auburn. Because I reported it in 24 hours, because I cooperated with the law, I was given that gun back. This ordinance can have a major benefit. If you simply follow the law, it works with you.”

Hopefully, municipal officials across the country will look to Pottstown as an example of how to prevent tragedies in their schools without putting students at additional risk of gun violence.

No Small Offense

The Second Amendment—as defined by the Supreme Court in the recent District of Columbia v. Heller decision—provides “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In the same decision, the Court defined certain areas of firearm regulation that are both reasonable and constitutional. For example, the Court said that its opinion “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…”

Such “longstanding prohibitions” were defined in the 1968 Gun Control Act. The Act also prohibited “anyone who is a subject to a court order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such intimate partner” from purchasing or owning a firearm(s). The U.S. Congress took further action in 1996, adopting the Lautenberg Amendment, which made it a felony for anyone convicted of a misdemeanor crime of “domestic violence” to ship, transport, possess or receive firearms or ammunition. The Amendment also made it a felony for anyone to sell or issue a firearm or ammunition to a person with such a conviction.

Unfortunately, this latter category of domestic abusers could find themselves rearmed after an upcoming Supreme Court ruling in the case of U.S. v. Hayes.

The case originated last year in the U.S. Court of Appeals for the 4^th Circuit. The defendant in the case, Randy Hayes of West Virginia, abused his wife and pled guilty to a misdemeanor battery charge in 1994. Ten years later, police responded to a domestic violence call from his home and learned that he had owned or sold five firearms (one was found on the premises). In light of this, he was convicted in 2005 of illegal gun possession under the terms of the Lautenberg Amendment.

Hayes challenged the conviction in the courts, alleging that since the West Virginia statute under which he was originally convicted did not have a domestic relationship between offender and victim as an element, he could not be prosecuted under the Lautenberg Amendment. A District Court upheld Hayes’ conviction, citing the United States v. Ball definition of domestic abuse as “needing only to have one element—the use or attempted use of physical force; the relationship between the perpetrator and the victim need not appear in the formal definition of the predicate offense.” The Court of Appeals, however, overturned this decision and ruled that the Lautenberg Amendment applies only to individuals convicted under state domestic violence laws (only 1/3 of the states currently have such statutes on the books). Exempt were individuals convicted of simple misdemeanor assault or battery (even for offenses that occur inside the home).

The case has now been appealed to the Supreme Court, which heard oral arguments on November 10. The Justices’ comments that day suggest that they are leaning toward upholding the Court of Appeals ruling. In one interesting exchange, Justice Antonin Scalia stated that possessing a gun was “lawful conduct” and the wife-beating charge against Hayes was “not that serious of an offense.” The government’s attorney countered that Hayes “hit his wife all around the face until it swelled out, kicked her all around her body, kicked her in the ribs…” Justice Scalia was unmoved, declaring that Hayes therefore “should have been charged with a felony, but he wasn’t.”

Justice Anthony Kennedy (a critical swing vote on the Court) found fault with the language of the Lautenberg Amendment, stating that it was “a mess.” Justice Ruth Bader Ginsburg countered this notion, however, saying: “Wasn’t the statute responding to just that problem, that domestic abuse tended to be charged as misdemeanors rather than felonies? And it was that fact that the Senator [Lautenberg] was responding to when he included misdemeanor. The whole purpose of this was to make a misdemeanor battery count for the statute’s purpose ... All the circuits that had this question before the floor read it the way the Government is urging.”

There is certainly a great deal at stake in the case. According to the Family Violence Prevention Fund, “Access to firearms increases the risk of intimate partner homicide more than five times than in instances where there are no weapons, according to a [2003 study entitled “Risk Factors for Femicide in Abusive Relationships: Results from a Multi-Site Case Control Study”]. In addition, abusers who possess guns tend to inflict the most severe abuse on their partners.” The Brady Center to Prevent Gun Violence has also pointed out that “about 14% of all police officer deaths occur during a response to domestic violence calls.”

It is disturbing to think that thousands of criminals such as Hayes (who failed to change his spots a full decade after his initial battery conviction) could find themselves rearmed in the near future. Indeed, a High Court ruling in favor of Hayes would force Congress to go back to the drawing table to redraft the language of the Lautenberg Amendment—an uncertain proposition even in an era of Democratic control.

Gun Lobby Lawsuit Denies Self-Determination

We were very disappointed on March 9 when the US Court of Appeals for the D.C. Circuit declared D.C.'s handgun ban and firearm storage laws unconstitutional in its ruling in the case of Parker v. District of Columbia. Not only did this decision counteract the democratic will of DC residents, but the majority opinion of the three-judge panel also endorsed the NRA's insurrectionist view of the Second Amendment, a dangerous precedent.

D.C. Mayor Adrian Fenty and the city's attorney general are currently preparing an appeal and, for the moment, the decision of the court has been stayed. The Ed Fund will stand with DC's residents and elected officials in the coming weeks to affirm their right to determine their own public safety laws. If you are a DC resident, or wish to support DC residents in this effort, please click here to learn more about this issue and see how you can get involved.