The Potowmack Institute

DEFENSE (Part 2)


Washington, DC.

The subcommittee met, pursuant to notice, at 9:34 am., in room 2141, Rayburn House Office Building, Hon. Bill McCollum (chairman of the subcommittee) presiding.

Present: Representatives Bill McCollum, Steven Schiff, Stephen E. Buyer, Fred Heineman, Ed Bryant of Tennessee, Steve Chabot, Bob Barr, Charles E. Schumer, Robert C. Scott, Zoe Lofgren, and Sheila Jackson Lee.

Also present: Representatives Roscoe G. Bartlett and John Conyers, Jr.

Staff present: Paul J. McNulty, chief counsel; Glenn R. Schmitt, counsel; Daniel J. Bryant, assistant counsel; Aerin D. Dunkle, research assistant; Audray Clement, secretary; and Tom Diaz, minority counsel.


Mr. MCCOLLUM. The hearing of the Subcommittee on Crime is called to order.

Today we hold the second hearing in this subcommittee's series of hearings on Federal gun laws. These hearings mark a new chapter in the work of this subcommittee. Too often Congress has relied on gun control as a response to violent crime. We're now shifting attention where it really should be focused: on holding the violent criminal responsible.

The decades of gun control experimentation, combined with reduced accountability for lawbreakers, have produced disastrous results. The violent crime rate has skyrocketed by more than 500 percent since the early 1960's. The number of crimes against persons has soared to 10 million per year. Even though the juvenile population has been declining in recent years, violent juvenile crime has jumped dramatically. Meanwhile, violent criminals ignore gun control laws. Indeed, the highest crime areas around the country where the drug crime and violence are worst, are the areas of the most gun control.

Today, we're privileged to hear from those on the front line, America s police. In my view, there's no profession that is more


consistently exposed to life-threatening dangers and which fulfills its mission with greater dedication than that of law enforcement. I know I speak for all of my colleagues on this subcommittee when I express my gratitude to law enforcement officers for the risks you take on a daily basis in protecting our communities and for the good-faith efforts to enforce the laws of the land.

It is all too easy for we [sic] as policymakers to debate these issues while men and women in law enforcement are out on their streets confronting the predators. These officers and their families must live with the fact that they are constantly at risk, and we are grievously reminded by the Law Enforcement Officers' Memorial just a few blocks away from this room that risks often end in tragedy.

You come from different communities and you often come from different perspectives when it comes to recommending solutions to the problems you face in the line of duty. In the past when it came to guns, we heard generally only from law enforcement officers favoring gun control. While I may disagree with their view on this one issue, it was important that their opinions be considered. I'm pleased this morning that we have the opportunity to consider a viewpoint not often given in a hearing in these corridors, and one that is held, I might add, by many who daily police our streets. This viewpoint does not see gun ownership by law-abiding citizens so much as a threat, but rather as an asset in the struggle to keep our communities safe.

As we hear these differing views, we must remember that there are issues besides gun control that the law enforcement community deeply cares about. At the top of the list is convicting and punishing violent criminals, so that we put an end to the revolving door of justice which too often leaves police arresting and rearresting the same lawbreakers. The one violent criminal a law enforcement officer doesn't have to worry about is the one that's locked up and doing real time. To that end, this subcommittee has already worked on truth-in-sentencing legislation to help slow the revolving door of justice and to ensure the punishment fits the crime. An I might add parenthetically that we are beginning to hear from State leaders that they intend to enact truth-in-sentencing reforms to qualify for prison construction grants.

I'm dedicated to doing all that I can to make our criminal justice system in America work, so that police do not continue to suffer from the frustration of watching their hard work wasted as violent criminals go free. By strengthening the rule of law, we support police officers. My hope is that the testimony we hear today will remind us of the importance of guaranteeing the right to bear arms for law-abiding citizens, another requirement of the rule of law.

The second amendment plays a vital role in making our streets safer. Our job in Congress is to do all we can to make sure that the law enforcement officers before us today are not left with a brokendown criminal justice system that slaps violent predators on the wrists and returns them to the streets. I look forward to hearing from today's witnesses, both from the law enforcement community and some from the academic community, and those that have the experience with the second amendment.

And I now yield to my friend from New York, Mr. Schumer.

Mr. SCHUMER. Well, thank you, Mr. Chairman.


Today's hearing on the second amendment comes the day after the National Rifle Association Conference on the same topic. Is that a coincidence? In fact, one of the professors we'll hear from today was billed as a discussion leader at that NRA Conference. Is that another coincidence? Of course not.

Newt Gingrich and the Republican leadership are working hand in hand with the NRA and the gun lobby to use this committee to stage yet another pep rally for guns. But the intellectual content of this hearing is so far off the edge that we ought to declare this an official meetmg of the Flat Earth Society because the pro-gun arguments we'll hear today are as flaky as the arguments of the tiny few who still insist that the earth is flat. Like flat earth fanatics, second amendment fanatics just don't get it. Facts are facts; the earth is not flat, and constitional law is constitutional law.

The second amendment is not absolute. Neither is any other amendment, and I'm amazed that my colleagues from the other side who believe that the first amendment has gone too far and the fourth amendment has gone too far and the fifth amendment has gone too far, but not the second amendment; that is absolute. There is no room for any interpretation on the second amendment.

But they, of course, are wrong by every constitutional decision that has come up. The second amendment does not guarantee the mythical individual right to bear arms we'll hear argued for today. The gun lobby and its friends in Congress can line up all the professors of history and law from here to NRA headquarters and back. They can all swear what they think the second amendment means and how many angels can dance on a pin bead, but the settled law is flatly against them.

The courts have uniformly, consistently, and unanimously ruled against them. There is no room to argue with the leading Supreme Court cases: United States v. Miller, United States v. Cruikshank, and Pressler v. Illinois, and tens of lower Federal court and State court cases following their precedent.

Now some of you will say, oh, that's Chuck Schumer, leading advocate of gun control, talking. So don't take my word for it. I'd like to take a moment here, Mr. Chairman, to play a very brief excerpt from a television interview of a distinguished American on this subject. It's over there on the TV screen.

Mr. McCOLLUM. Without objection, the tape will be run.

[Video viewed.]

Mr. SCHUMER. Well, for anyone who may not have known, that was former Chief Justice Warren Burger, not exactly a raving liberal, not exactly a gun grabber; as I recall, a conservative Republican appointment to the Supreme Court, the Chief Justice. And in case you couldn't understand the audio part of this video, the Chief Justice said that the NRA and its leaders have "trained themselves and their people to lie, and I can't use any word less than 'lie'." That's what Chief Justice Warren Burger said. That's not me. That's a distinguished American jurist calling these arguments lies.

He has also said "There is no constitutional question here. The NRA has convinced a lot of people that the right to bear arms is an absolute right; it is not, any more than the right to have an automobile is an absolute right." So there it is. If anyone tried to sell the baloney we'll hear today, they'd be arrested for consumer


fraud. The NRA's second amendment is an empty cereal box in the marketplace of ideas.

I note also, Mr. Chairman, that the fans of an absolute reading of the second amendment do not extend their absolute reading to the other parts of the Bill of Rights. They're among the first to carve the edges off the right to free speech, guaranteed in the first amendment; to shave the fourth amendment's protection against unreasonable search and seizure, or restrict the sixth amendment's guarantees of due process. For the NRA Flat Earth Society, the Constitution consists of the second amendment, and the second amendment only.

Now one might say, so what? The NRA and its friends in academia and in Congress are entitled to their opinions, certainly that. What harm can come from peddling these phony opinions? The answer is that plenty of harm comes from it.

The first and most serious harm is the poisoning of our political dialog. The NRA and its friends, some of whom serve here in this body, have planted a poisonous weed of political paranoia in the minds of hundreds of thousands of Americans. This barrage of cynical, fundraising NRA propaganda about the second amendment has convinced many people that there's a vast plot to seize their guns and take away their rights. The sickening fruit of this poisonous lie are obvious in our society. Hate groups are arming themselves to answer a purely imaginary plot with real gun violence, and every day Members of this body receive in the mail the most vicious, hate-filled mail imaginable inspired by this biggest of NRA lies. This is dangerous sickness. The NRA is sowing the seeds that will bear the bitterest of fruit.

The second harm is that decent Americans are bamboozled into opposing even modest laws designed to keep guns away from violent criminals, children, and the mentally dangerous. I certainly agree with Mr. McCollum that we must be tougher on violent criminals. I've stood for that in my period in the Congress. But that and gun control are not opposites. Half of the speeches here are given about the violent criminals and how we must do more. We must. That has nothing to do with the opposition to gun control. You can do both. We should do both. They are not opposites, and that is another smokescreen.

Americans, average Americans, are stampeded even into opposing simple gun safety laws that would protect gun owners from the kind of accidents that every year cost the lives and limbs of hunters and recreational shooters. Now let's just, if we could have the other chart, let's just look at what the American people— the first one is the quote from Warren Burger. Let's just look at what the American people do for recreation to make this point.

According to a Roper poll published last week in the New York Times, 40 percent of Americans relax by driving for pleasure; another 26 percent go fishing; 8 percent, only 8 percent, go hunting and 8 percent engage in target-shooting, which are fine recreational activities. I have many friends and relatives who do just those.

But what's wrong with this picture? Well, the 40 percent who drive put up gladly with a little inconvenience in exchange for our common safety. Their cars are titled and registered; they get driv-


er's licenses. And 26 percent who fish endure the minor inconvenience of getting fishing licenses. But the NRA and the gun lobby go nuts when society seeks to impose even the slightest inconvenience by way of licensing or registration on the minority who own and use guns. This is madness. A tiny minority of people fascinated with guns and something they call the gun ethic is bullying a much bigger majority on the vital issues of health and safety.

Well, Mr. Chairman, I will listen to the flat earth arguments we'll hear today with as much interest as I can. But I say to the NRA and those who push the gun lobby's absolute view of the second amendment: get over it. The earth is not flat and the second amendment is not absolute. You're wrong.

Mr. McCOLLUM. Thank you, Mr. Schumer.

I'd just like to make the point that the witness panel that's coming up in a few minutes, after the police who are here, from academia are not in any way affiliated with the National Rifle Association, and they have independent views. In fact, they have been very careful to tell us, and tell the chairman, that they do not want to be affiliated with the NRA, and they probably wouldn't have appeared here today if they felt that they will be.

At this time, does anyone else wish to make an opening statement? Anyone desiring to do so? Mr. Heineman.

Mr. HE1NEMAN. Thank you, Mr. Chairman.

I hadn't planned on an opening statement. I didn't write it out. I was still abiding by your statement at the beginning of last meeting as to hold them down, but I certainly hope none of the witnesses today are disheartened by what my friend from New York, Mr. Schumer, had to say about phony opinions. He needs to realize that we have three panels today. One perhaps could be characterized as the gun panel, and one could be characterized as the gun control panel, so to speak. I'm not sure which one he referred to, but he did refer to "poisoning political dialog." I think that gives us a bad start for a hearing where, hopefully, we're trying to "do the right thing."

Yes, the NRA did have a convention. I don't know how that fits in, the day after their convention, to what we're doing here today. Now certainly we have a schedule for our hearings, and the schedule happened to have been put out earlier, and we do have— We scheduled two meetings before our break, and our break starts Friday and this is Wednesday. And I like to think that we're not characterized as guided missiles for the NRA.

I do know that during my two elections I received no assistance from the NRA. There was money put into my first election, but it was put in there for my opponent. In the second election there was no money in my campaign as it relates to receiving any benefits from the NRA. In fact, I was characterized as a "pick him with a liberal."

So I have no ax to grind with or without the NRA or gun control. I just stated at the last meeting, I think, that for 20 years we've been chasing that gun control rabbit and still haven't caught it. I think if we had gotten our act together back 20 years ago and decided that it was people that we have to control, we perhaps could have been controlling people today, and we're not. We haven't been, and, hopefully, as I said at the last meeting, that we will initiate


something here out of this panel, out of this committee, to get a handle on people control.

But I don't know where that cereal box fits in. That's not the first time I heard about a cereal box. That may be an inside joke, but what I heard in the opening statement from my friend from New York, if you're going to characterize it in cereal box terms, was nothing but a lot of puffed wheat and perhaps puffed rice. [Laughter.]

Mr. Schumer, I'm sure, is sincere in his opinions, and I think the first amendment gives you the right for your opinion, just as it gives the NRA a right to theirs, and those people that are going to testify today have a right to theirs.

And, certainly, I'm listening with about as objective an ear, or both ears, as I can. And I'm going to make my judgments based on that, but I sure wouldn't want to poison this panel or the next panel we have after the break with predetermined opinions. So I just wanted to bring that out. Like I said, I didn't anticipate making an opening statement, but I sure hope we haven't poisoned this hearing today, and we can get something from it.

Thank you, Mr. Chairman.

Mr. SCHUMER. Will the gentleman yield just for a minute?

Mr. HEINEMAN. Yes, I'll yield.

Mr. SCHUMER. Yes my remarks are not directed at this panel. They are not directed at any of the specific witnesses here, and I want to assure you of that and them of that.

Mr. HEINEMAN. Thank you, Mr. Schumer.

Mr. McCOLLUM. Someone else? Mr. Bryant, would you like to make opening comments?

Mr. BRYANT. Thank you, Mr. Chairman.

Like Mr. Heineman, I did not come prepared to make a statement. I was prepared the other day when we had a shortage of time and had a great 11-page statement I couldn't read. [Laughter.]

But coming in late, after having to go to another meeting today, I was able to hear the ending remarks of our colleague from New York, a man that I respect a great deal. We philosophically disagree on many things, but he certainly is an articulate advocate for issues, even though we may disagree on some of those.

He's right that there are very few absolutes in this country. The second amendment is an amendment to our Constitution, part of the original Bill of Rights. It is a part of our Constitution, a very important part of our Constitution. And being a student of history, I learned that that amendment was placed in our Constitution not to protect necessarily the rights of our frontiersman to carry guns to hunt with, and so forth, because that was pretty much the way of life in many areas back in those days, but was placed in our Constitution more out of a fear of a Government that might become oppressive. And I'm certainly not a right wing radical, but I think that that is a valid purpose for the second amendment to be intact, that it is the ultimate protection and guard against an oppressive Government.

One only has to look back to the forties, and maybe the late thirties, when Hitler was making the rise in Germany. As they moved into power, they disarmed that country, and there is nothing more


vulnerable, even in today's society, in today's world, 200 years later from the forming of our Constitution, than a disarmed country.

And I think its those aspects that bother a lot of the gun owners. Unlike a driver's license or a fishing license, if it ever got to that point in this country— and I hope we're not near that, but if it ever did— the people that would come out and hope to disarm our citizenry to do that would not be taking your car away or they wouldn't be coming after your fishing pole. It's something very different; they'd be looking for the guns to disarm the country. And I think, ultimately, that is the core of these strong philosophical beliefs that so many people have that believe very strongly in the second amendment rights, and I think those are legitimate, honest, correct beliefs.

There are differences, there are philosophical differences here, and maybe that's what the issue's about. I gave a short statement the other day that my folks back— I guess the majority of the people I represent in Tennessee feel that we need more criminal control and not gun control, and I think that's ultimately it. To me, it boils down to an issue that it's not the gun; it's the person who uses the gun, and we have to become more efficient and more effective and more aggressive, something I think this administration has not been, in enforcing gun laws against the people who use those guns to commit violent crimes. And, to me, that's where the focus ought to be, rather than taking away the rights of law-abiding citizens or limiting unreasonably the rights of law-abiding citizens to own guns.

And I think this panel today, from reviewing their proposed testimony— I know one of them already, and I know them to be sincere advocates, people who have been on the front lines, on the streets, risking their lives, knowing people who have been killed, who have been hurt in enforcing this law, and I think they have an awful lot of good information that I'm sure they will share with us today. And I thank the panel for coming today.

Mr. McCOLLUM. Mr. Chabot.

Mr. CHABOT. Thank you, Mr. Chairman. I'll be very brief. Our goal is to allow our citizens not only to feel safer, but to actually be safer. And I believe that much of our gun control legislation, it may sometimes make some people feel safer when in reality that type of legislation does not really bring about a safer society. I think that the real answer to reducing crime is to crack down on criminals, much as Mr. Bryant of Tennessee just said. We need to lock them up, keep them off our streets.

What we have now, I'm sorry to say, is oftentimes a revolving door justice system. Criminals commit violent offenses. They get long sentences, but then they only serve on average a third of those sentences, and they're back out on our streets, and they continue to prey on the public. So I believe that the true solution to actually allowing us and our families to live in a safer society is to finally get serious about being tough on the criminals, keeping the violent criminals locked up. Let's not just pass more and more gun legislation which really doesn't do anything.

Thank you, Mr. Chairman.

Mr. McCOLLUM. You're welcome.

Mr. Barr.


Mr. Barr. Thank you, Mr. Chairman.

Mr. Chairman, it's an honor to be a part of this hearing today, both as a member of the subcommittee and as a chairman of the farms legislation task force. I must say, though, that the cute sound bites of the gentleman from New York really focused the debate where it ought not to be, and that is on cute sound bites. The debate ought to be right where it will be with this panel of witnesses today, and that is with law enforcement officials who have vastly more experience in the real world than the gentleman from New York, who know what works in our communities, who know what the second amendment is because they are aware of it; they work it; they work the Constitution; they support the Constitution. They have taken an oath to support that Constitution and to put their lives on the line, if necessary, in support of that Constitution, all of that Constitution.

And I suspect if there were an emergency in this hearing room this instant and the life of the gentleman from New York were in danger, every one of these police officers here today would, without hesitation, step forward and put their lives on the line to protect him. And for him to denigrate them and to call them pawns of the NRA is shameful. It is absolutely shameless, and I resent it.

These are men and women that we have here today, as the panel that we had here last week, Mr. Chairman, who have a deep belief in protecting our citizens, who have a deep belief and a deep understanding of our Constitution, and they are here today because they believe very strongly in it. They have a story to tell. They have examples to tell. They have real-life experiences to tell, and they have vast experience in interpreting the Constitution and understanding the Constitution. And I don't think that any one of them thinks, or would take the position, as the gentleman from New York does, that simply because others disagree with their interpretation or disagree with the way things are in the real world, or disagree with their interpretation of the way things ought to be, that they cast aspersions on those other people and call them pawns of Handgun Control, Inc., or any other organization.

And I, Mr. Chairman, would hope that we would rise above this, rise above the sound bites, rise above labeling everybody who disagrees with the gentleman from New York a pawn of the NRA, and look at our Constitution, look at all of our Constitution, look at the 2nd amendment, look at the 9th amendment, look at the 10th amendment, and see what it says, and see how it works in the real world. And I think that once we get down to the real debate, the real substance debate, and not the cute sound bites that the gentleman from New York is so flip with, then we will, in fact, Mr. Chairman, I think, have a very real dialog, look at real laws, look at how they need to be changed to protect our citizens in the real world, and I look forward to that process and I'm happy to be a part of it.

And I yield back the balance of my time.

Mr. SCHUMER. Would the gentleman yield? I ask unanimous consent for 1 minute since my name was invoked several times.

Mr. McCOLLUM. So granted, without objection.

Mr. SCHUMER. Thank you.


I'd make two points. No. 1, I did not direct any specific comment at any of the witnesses, and I have tremendous respect for the job they do. I have been a friend of law enforcement all along, and I resent the gentleman using the witnesses as strawmen against my argument. I did not direct a single comment— and I'll give the gentleman a copy of my statement— at the witnesses.

Second, in terms of cute sound bites, I'd like the gentleman~ or anyone else on this panel, to answer the Chief Justice's cute sound bite. That's the issue here.

Mr. MCCOLLUM. Well, now that we've had our opening statements, I want to recognize the fact that Mr. Bartlett, Roscoe Bartlett of Maryland, is here with us today. He's not a member of the subcommittee, but we want to welcome you as a participant. Because of the general rules of the subcommittee, we don't give you the privilege of making an opening statement, but you're certainly welcome to participate in the questioning.

At this time, I'd like to introduce our first panel. We have three panels today, and our first panel is a police panel. As I call your name and introduce you, I'd like for you to come up, if you would, and take seats. You'll be seated in the order in which I call you from my left, or your right, over here on the far end of the table moving over to the other side.

Our first witness today is police Lt. Dennis Tueller. Lieutenant Tueller is a 21-year veteran of the Salt Lake City Police Department and an instructor in firearms, officer survival training, and defensive tactics. He has helped train firearms instructors, police officers, security agents, SWAT teams, and military personnel. Lieutenant Tueller is also a court-recognized firearms expert and a self-defense consultant.

Lieutenant Tueller, if you'd go ahead and be seated right there in that chair, and then we'll proceed, as I say, with each one of you can come up and go ahead and sit while I'm introducing you.

Our next witness is Chief Dwaine Wilson of the Kennesaw Police Department in Georgia. Chief Wilson has served in law enforcement for 25 years, beginning his career as a patrolman in 1971 and rising through the ranks to become detective and eventually chief of the department. He serves on the board of executives at the Georgia Association of Chiefs of Police, as the fourth vice president, and on the board of advisers for the North Carolina— Or, excuse me, the North Central Georgia Police Academy.

Our third witness is Master Police Officer William Craig Roberts from Tulsa, OK. A 25-year veteran in law enforcement, Officer Roberts is currently a helicopter pilot and has held positions with the department's fugitive squad, SWAT team, bomb squad, and police community relations division.

Welcome, Master Police Officer Roberts.

Our next witness is Office Bryant Jennings from Memphis, TN. Officer Jennings is currently president of the Memphis Police Association, representing 1,400 law enforcement officers. As a 15-year veteran with the Memphis Police Department he has held positions in the uniform patrol division, on the hostage negotiation team, and the crisis intervention team. As a member of the crisis intervention team, Officer Jennings was awarded the lifesavings medal from the city of Memphis.


Our next witness is Officer Steve Rodriguez from Albuquerque, NM. Officer Rodriguez is a 14-year veteran with the Albuquerque Police Department. He has served on the specialized units division, the SWAT team, and two pilot programs which have effectively targeted career criminals and increased the department's tracking of criminals in Albuquerque.

And our sixth and final witness on this panel is Sgt. William Hinz from Minneapolis, MN. Sergeant Hinz is currently a homicide investigator and daytime supervisor for the Minneapolis Police Department. A 24-year veteran in law enforcement, Sergeant Hinz has held positions in the department's crime lab, identification division, the street crime division, and the emergency response team.

Gentlemen, we're honored to have you with us today. Each of you has been in the front lines of the battle against crime and together represent more than a century's worth of law enforcement evidence. I want to welcome each of you again, as I have before.

I've got to do one thing. I promised Mr. Schiff, who's not able to be with us today, that I would recognize Officer Rodriguez and tell him that he really appreciates your coming.

I also know, I believe, that a couple of you are from districts of other members of the panel, and they want to acknowledge that fact. Mr. Bryant, I know you have somebody here from your neighborhood.

Mr. BRYANT of Tennessee. That's correct. I'm pleased to— I mentioned I knew one of the panelist in my opening statement, but Bryant Jennings is a friend of ours. And, of course, as former U.S. attorney, I worked very closely with him and his comrades in arms in the Memphis Police Department, a very outstanding group of people down there.

Mr. MCCOLLUM. And, Mr. Barr, I believe you have a constituent or somebody from your area today?

Mr. BARR. Thank you, Mr. Chairman.

I'm very happy to welcome Chief Dwaine Wilson here today from Kennesaw of Cobb County, GA, a law enforcement official of the highest stature that I've known personally and professionally during my time as U.S. attorney for the Northern District of Georgia. I know that his department is among the finest in the Nation, and I'm very happy to welcome him here today to provide some insights into this important topic, based on his many years of community service as a law enforcement official.

Welcome, Chief.

Mr. McCOLLUM. Well, we're ready— thank you very much, Mr. Barr.

We're ready to proceed now. We'll go in the order in which you were introduced. We have your full statements in the record, and while you certainly may present whatever you wish of them, the degree to which you can summarize them and give us the basic thrust of what you want to say will allow us more time for questioning.

Mr. Tueller, Lieutenant Tueller.
Statement of Lt. Dennis Tueller, Salt Lake City Police Department, Salt Lake City, UT:
Urges repeal of gun and magazine restrictions from 1994 crime bill.
Statement of Chief Dwaine J. Wilson, Kennesaw Police Department, Kennesaw, GA:
Trust the public to do the right thing with firearms.
Statement of Master Officer William Craig Roberts, Tulsa Police Department, Tulsa, OK:
Introduced petition for repeal of assault weapon ban.
Statement of Officer Bryant Jennings, President, Memphis Police Association, Memphis, TN:
Requests repeal of restrictive legislation.
Statement of Officer Steve Rodriguez, Albuquerque Police Department, Albuquerque, NM:
Urges tough sentencing and an intimidating judicial system rather than limiting second amendment rights.
Statement of Sgt. William J. "Pickles" Hinz, Minneapolis Police Department, Minneapolis, MN:
Does not support the ban on assault weapons or pistols with high-capacity magazines. Supports law-abiding citizens who own firearms an are willing to use them.
Three pages of questions to the witness ending with:
Mr. SSHUMER: Thank you very much, Mr. Chairman. I appreciate the testimony of the officers here. I respect the job they do. I would submit that they are a small, small, small minority of police officers. We can probably find six offiers, to say just about anything. But the largest police organizations are strongly for assault weapons ban— the FOP will testify later. It has far more members than are represented in all the police departments here today. If everyone in your police department agree with everyone here, the FOP would dwarf it probably by 10 times.
I'd like to submit for the record a statement from NAPO, the National Association of Police Officers. That is the second largest police organization.
Statement of National Association of Police Organizations, Inc.:
Give public safety laws a chance to work.
Eighteen pages of questioning of witnesses and one page prepared statement of Hon. John Conyers, Jr. (D-MI).
Oral statement of Robert Cottrol, Professor of Law, Rutgers School of Law, Camden, N. J. [subsequently moved to Geo. Wash. U., Wash., DC]
Oral state of Joyce Lee Malcolm, Professor of History, Bentley College, Waltham, MA.
Oral state of Daniel Polsby, Kirkland and Ellis Professor of Law, Northwestern University, Chicago, IL.
Oral statement of Dennis A. Henigan, Genenal Counsel, Handgun Control, Inc., Washington DC.


Mr. MCCOLLUM. Thank you, Mr. Henigan.

I'll yield myself 5 minutes to ask a few questions. In fact, we ought to start the timer on me, I reckon, in that case.

Professor Malcolm, I'm going to turn the first question to you because I think Mr. Henigan makes one point that seems relatively indisputable, and that is that the Supreme Court in all Court decisions that I think have come down on this issue has said that the second amendment does not apply to individuals; it applies only to a well-regulated militia, a State militia. Yet, your testimony and that of Dr. Cottrol and Mr. Polsby seems to be that that's— these Court decisions are not correct. What do you say to explain why the Court's Chief Justice— former Chief Justice Burger and others in the judiciary system have made the statements that they've made in their interpretation that's so different from what you're interpreting?

Ms. MALCOLM. As I understand it, the Supreme Court has never really decided on this issue of whether the second amendment is just a right for militia or not. There have been some State court decisions, but not the Supreme Court.

As for the former Chief Justice, even being a former Chief Justice doesn't make one an expert on all our liberties, and I think there really had not been a great deal of serious examination of the original intent of this particular amendment until quite recently. So he would not have had access to, and presumably didn't know, some of the more recent scholarship about it. I'd like to say you can't just look at court opinions from the past to understand the Constitution and what the original intent is. I think you really have to look at the debates at the time, the comments that were made by the people that were debating and by the press and by others, the whole political milieu in which they were operating to understand I think that the former Chief Justice was simply wrong.

Mr. MCCOLLUM. Yes, Dr. Cottrol.

Mr. COTTROL. Yes, Mr. Chairman, if I could add to that, first of all, there has never been a fully litigated— that is, both sides represented— case before the U.S. Supreme Court squarely on the second amendment. There were 19th century cases which basically involved the incorporation question: to what extent does the Bill of Rights apply to the States and to what extent does the second amendment apply to the States.

In the United States v. Miller, only the Federal Government was represented, and I would disagree with Mr. Henigan. I think that Court, in fact, did recognize an individual right to own militia-style weapons. However, if I may also say, nothing could be more dangerous than a kind of legal positivism that says our rights are solely defined by the state of current court doctrine. I will concede that since Miller modern lower courts have been hostile to the 2d amendment and have essentially tried to read that guarantee out of the Constitution, but I think we also have to remember that, for nearly 50 years, separate but equal was the extent of the equal protection clause of the 14th amendment. We also have to remember that the Supreme Court sanctioned the imprisonment of Japanese-Americans solely because of their ancestry and said that that was consonant with the equal protection principle and the due


process principle. Courts are composed of human beings, and like human beings, they have their prejudices and their blind sides. It's incredibly dangerous to simply take the current state of court doctrine and say that that is all the ConstitUti01~1 is and can ever be. Mr. MCCOLLUM Mr. Polsby.

Mr. POLSBY. We shouldn't be discussing— we shouldn't seriously be arguing the question whether the second amendment is an operative part of the Bill of Rights, and it seems to me that in decency we should defer to the unanimous view, essentially, of historians that have looked at what the Founders' intentions were rather than attempting to "Philadelphia lawyer" our way around that issue.

This leaves us with the question of what constitutes reasonable regulation. All constitutional rights can be reasonably regulated. I disagree with Mr. Henigan that the first amendment is obviously more sweepingly phrased than the second amendment. The first amendment protects for example, "the freedom of speech." It doesn't protect "speech." Well, what is "the freedom of speech?" Aha, that gives us an opportunity to "Philadelphia-lawyer" our way around anybody having the freedom to speak, if we choose to do so.

But it is an obligation, it seems to me, of public officials that are sworn to uphold the Constitution to approach and legislate these questions with respect to these questions in a nontendentious, constructive light. And let me also add, Mr. McCollum, Mr. Chairman, this Congress does have the power under the 14th amendment to offer interpretations of the Bill of Rights.

Mr. McCOLLUM. Well, I can see that I could ask a lot of questions and elicit long answers; all of us could, but I'm going to abide at least in the first round— we may or may not have time for a second round, depending on how long it takes. And I will yield, then, to the gentleman from Virginia, Mr. Scott, if you have questions you'd like to ask for 5 minutes.

Mr. SCOTT. Thank you.

Just very briefly, Mr. Chairman, the statement has been made that the Supreme Court hasn't ruled on this issue. Let me just read portions of a couple of cases, and then ask at least the lawyer members of the panel to comment.

Lewis v. United States, 1980, "These legislative restrictions on the use of firearms are neither based on constitutionly-suspect criteria, nor do they trench upon any liberties. The second amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation of efficiency of a well-regulated militia."

U.S. v. Hale, a circuit, eighth circuit case, 1992, "The purpose of the second amendment is to restrain the Federal Government from regulating the possession of arms where such regulation would interfere with the preservation of efficiency of the militia."

And Burton v. Sills, a New Jersey Supreme Court case where the appeal was dismissed in the Supreme Court, 1969, "As the language of the U.S. Constitution second amendment itself indicates, it was not framed with individual rights in mind. Thus, it refers to the collective right of the people to keep and bear arms in connection with a well- regulated militia. Most agree this term must be taken to mean the active organized militia of each state, which


today is characterized as the State National Guard. Reasonable gun control legislation is clearly within the police power of the State and must be accepted by the individual, though it may impose a restraint or burden on him?"

My question is whether or not there are any Supreme Court cases or other cases that take issue with the idea in these cases that the collective right is what we're talking about, not the individual right?

Mr. COTTROL. If I might start, Congressman, as I under— if I recall Burton v. Sills correctly, the language you're quoting is from the New Jersey Supreme Court, which is affirmed by the U.S. Supreme Court, not in— my statement was there's never been a fully-litigated case on the central issue of the second amendment before—

Mr. SCOTT. But do you have any cases? I mean, these seem to be on one side. Do you have anything on the other side—

Mr. COTTROL. Well, sir, if I asked you in 1950, were there any cases that contradicted the separate but equal principle or that stated that the 14th amendment's equal protection clause prohibited segregation would you have been able to give me any?

Mr. SCOTT. Well, my— so the state of the law, according to the interpretations of the Supreme Court at this time, are clearly on the gun control side of the argument?

Mr. COTTROL. No, I would disagree with that. It seems to me that the last statement that was made by the Supreme Court squarely addressing that issue is Miller, which is 1939, and my reading of Miller is that they were making a distinction between weapons which are useful for militia purposes and a sawed-off shotgun, which they didn't take judicial notice as having that kind of purpose.

Mr. HENIGAN. Mr. Scott, might I comment on that? First of all, you pointed to the Lewis case. It's an extremely important case. It was fully litigated. It was an equal protection case in which the Court held that restrictions on firearms should be assessed under the equal protection doctrine with rational basis scrutiny, which is a low level of scrutiny by courts of legislation that courts do not use when there is a fundamental right involved. So what Lewis says is that the right to bear arms is not a fundamental right, and, in fact, you quoted the very phrase from that opinion that stands for that proposition.

Mr. Cottrol's mystery about the Miller opinion is curious. He may be confused about what Miller means; the lower courts are not. There are over 30 Federal and State court decisions interpreting the Miller decision, and they all say the same thing, which is the second amendment guarantees the people's right to be armed only in service to a well-regulated militia. Miller does not mean that the possession of a military weapon by anyone is constitutionally protected, which is what Mr. Cottrol would have you believe. Imagine if that is what the Court meant in Miller. it would mean that all of us would have a constitutional right to possess machineguns, as the NRA has, indeed, contended, bazookas, and grenades, nuclear weapons. Where does it end? Surely, we've got to give the Supreme Court more credit than that. That's not what it meant.


Mr. MCCOLLUM. Mr. Scott, your time is up, and I know that others want to comment on it and rebut it, but we've got other questioners, and, Dr. Cottrol, I'm sure you'll have a chance to respond.

Mr. Schiff?

Mr. SCHIFF. Thank you, Mr. Chairman.

You said at the conclusion of your testimony words to the, effect, let's set aside the debate on the second amendment and look at policy decisions in terms of firearms legislation. While recognizing there is the constitutional debate going on, I would like to invite you to discuss policy with me for a moment here. The Brady Act, which Handgun Control, which you represent— I mention them because your statement is on their stationery, I see— strongly supports. It's my understanding that the Brady Act has been found unconstitutional in several district courts where it has been challenged not under the 2d amendment, but under the 10th amendment, States' rights. And it's been found unconstitutional on the grounds that the way it was written was essentially Congress saying it's a wonderful idea to have a 5-day waiting period and a background check on those seeking to buy handguns at retail establishments. You, the localities, are required by our legislation to do it, and you're required to do it at your own expense. And that is what has been held unconstitutional.

The one case where it is still at issue, I've been shown a copy of the Justice Department brief, and the Justice Department brief seeks to escape that result by arguing that the Brady bill really isn't mandatory on local government, which is the exact reverse of, of course, what they told Congress.

Now I'd like to say as a policy matter, even if we agree with the idea that it would be productive for law enforcement to have a background check, by setting it up to require the States to do it and localities to do as an unfunded mandate, isn't that a policy error? Shouldn't we— shouldn't Congress— say a Federal agency should do the check. Shouldn't Congress at least say the Federal Government will pay for it?

Mr. HENIGAN. The important policy point, of course, is that when Brady was passed there was no viable way to do systematic background checks at the Federal level. We didn't have the degree of computerization of criminal records that would make it possible to do some kind of instantaneous background check. The records were at the local level, and many of them had to be searched manually, and still do. That's why the 5-day waiting period is so important, and that is why it is important that local officials be involved in doing the background checks.

Mr. SCHIFF. Could I ask you a question? Why— true, records have to be searched by hand, and then a lot of telephoning has to be done when you use an FBI rapsheet to determine whether an arrest was a conviction anywhere in the country. Couldn't Federal officials do that just as easily?

Mr. HENIGAN. It was the judgment of Congress— and I think it was a very wise judgment— that local officials are in the best position to do the checks as of the present time because they're more likely to know the people who are wanting to buy the handguns; they have access, better access, to the local records, and they also have access to Federal records.


Mr. SCHIFF. Even—

Mr. HENIGAN. Moreover, most— many of the most vehement supporters of Brady were local law enforcement officials who said to this Congress: "We want the power to do these checks. We are the right people to do them. It's important to the safety of our communities that we do them." And they told this Congress to pass that bill for that reason.

Mr. SCHIFF. But it's local law enforcement officers that brought the constitutional challenges.

Mr. HENIGAN. Well, I would venture to guess, Mr. Schiff, that that represents a very small minority of local law enforcement officers. These were sheriffs who have very strong views against gun control laws. They were basic— these law suits are not funded by the localities themselves. They're being funded by the National Rifle Association. They've admitted that. So this is not at all an expression of opposition by local law enforcement to doing these background checks. Local law enforcement was telling this Congress for 7 years: give us the power to do these background checks.

Mr. SCHIFF. I assume the Federal judges who have found the Brady Act unconstitutional are not funded by the National Rifle Association?

Mr. HENIGAN. Well, let me comment on that, Mr. Schiff. I believe that, ultimately, the view that is going to prevail in the Federal courts is that the mandatory background check provision is consistent with the 10th amendment. One Federal judge did hold that, and various cases are now on appeal. So the final chapter hasn't been written on that.

Mr. SCHIFF. Are you aware that this—

Mr. HENIGAN. Let me also add isn't it interesting that when the NRA decided to go court to challenge the Brady Act, they didn't challenge the waiting period as a violation of the second amendment. They recruited these sheriffs to bring these lawsuits against the mandatory background check provision when we all thought that the NRA was in favor of background checks.

Mr. SCHIFF. One quick followup question—

Mr. HENIGAN. Now what better—

Mr. SCHIFF. I have to reclaim the time because I'm out—

Mr. HENIGAN. I'm sorry.

Mr. SCHIFF [continuing]. But one quick question: Are you aware the Justice Department, as I understand it, filed a brief that said the act is not mandatory on local law enforcement? Are you aware of—

Mr. HENIGAN. Actually, I would disagree with your interpretation of their position.


Mr. HENIGAN. That is not their position. Their position is the check is mandatory, but there is a great deal of discretion given local law enforcement as to the contours of each check, given each handgun purchaser. What is required is a reasonable effort. The Brady bill was designed to give a great deal of discretion to local law enforcement, so that this wouldn't be unduly burdensome, and most local law enforcement doesn't believe it is.

Mr. SCHIFF. Thank you Mr. Henigan.

Mr. McCOLLUM. Mr. Schiff, your time has expired.


The gentleman from Michigan has reminded me that he is an ex officio member of all the subcommittees as the ranking minority member of the full committee, which is true, and I'm going to recognize him, but I want to be sure everybody understands, as a general policy matter, other members of the full committee will be able a sit in on our panels, but will not be able to question until the full slate of our subcommittee has finished their questions. However, he's correct, and I believe if the chairman sat in here, he'd have the same right, if Mr. Hyde did. So I yield 5 minutes to the distinguished gentleman from Michigan.

Mr. CONYERS. Well, I'm glad that you're observing the rules of the committee, Mr. Chairman. I appreciate this time.

Also, comity might suggest that, with only Bobby Scott here on his side and about six other members on that side, it would make for a little bit more balanced discussion, unlike the makeup of the witness list here.

But let me just say, Mr. Henigan, you've helped bring the balance here more than your numbers today. I would have liked to have seen two people on that side and two on this, but, hey—

Mr. HENIIGAN. So would I. It's a little lonely down here.

Mr. CONYERS [continuing]. That's the prerogatives of the majority.

But let just raise a couple of questions here in the few minutes that I have. The first thing is that the whole idea to make an application for a gun an unfunded mandate, a cost that States shouldn't be forced to bear, sort of borders on the ludicrous. Here we're trying to figure out ways to keep more civilians alive, and we're talking about who's going to pay for it, something like the Voter Rights Act, the motor/voter law. Let's register more people to vote; the States say, "Wait a minute. Who's going to pay for putting more applications in the employment security offices or public places? If you're not going to pay for it, then we don't care if our people get access to the polls or not."

It's a kind of petty argument really. Here we have the society really being challenged by a tremendous influx of weapons, and then I have my brothers and distinguished members of the bar— they didn't say it out here today, but I've been reading, Dr. Cottrol, where black people need to keep guns because, hey, we're going to need our right to guns before this thing is over, without ever observing who the gun victims are in this country, an incredible argument that goes on within the African-American community.

And our distinguished historian, wonderful, and it was very interesting, but, ma'am, has anybody else ever researched the important work that you've contributed to this hearing before? Might not any other courts or judges or clerks or other historians ever taken a look at the same thing that you did? I mean, I'm sure much of your work is original, but somebody must have thought about this, or maybe they haven't, and that's why I ask the question.

Let me begin with Mr. Henigan's responses, and then Dr. Cottrol, and then the professor. Do you have any comments, Mr. Henigan?

Mr. HENIGAN. Congressman, I think you said it far more eloquently than I ever could. This debate isn't about whether to ban


all guns. My organization doesn't believe in banning all guns or banning handguns. It's a debate about whether part of our strategy against guns and violence must include reasonable regulation of firearms, and there is a cost— there is a cost to this constitutional distortion that's going on. It is that it persuades people that somehow regulation of the most dangerous consumer product we know of, guns, involves some kind of fundamental constitutional issue, creates a presumption against reasonable regulation that is absolutely devoid of legal reality. And it's got to stop.

As I said in my statement, this debate has to focus on the dimensions of the problem and what is likely to effectively deal with it and let's stop this nonsense about some fundamental second amendment right that is abridged by a ban on military-style assault weapons.

You know, the best indication that this is an insignificant legal debate is the NRA's own litigation record, because when they went to court to challenge the Federal assault weapon ban recently, they filed a lawsuit that doesn't make one mention of the second amendment. Here the great, passionate defender of second amendment rights will not even seek to vindicate those rights in court. And why? Because they know they would lose. They know their position is totally devoid of legal validity. So let's stop this pretense and let's talk about how to stop the killing.

Mr. CONYERS. Mr. Cottrol or your associate?


Mr. CONYERS. Tell me your name again sir.

Mr. JOHNSON. My name is Nicholas Johnson. I'm an associate professor of law at Fordham Law School in New York.

I have a number of responses, but I will cut them short. In response to Mr. Henigan's argument that the HCI organization is not interested in banning all guns and that regulation is reasonable, I want to try and just very quickly suggest to you what the sticking point is. The sticking point is the bad gun formula of regulation. As Mr. Cottrol already explained, there is no limiting principle that stops us from spinning out the definition of bad guns, and I can't believe that any one of us here sincerely is more concerned about deaths from particular types of firearms than they are from other types of firearms that we think are good guns. Therefore, absent some limiting principle on the ability to spin out the definition, we are at impasse.

Now the second amendment is, in fact, that barrier. The trivialization of the second amendment, particularly by Mr. Henigan's organization and by Warren Burger as well, would, in fact, eliminate what is the only serious barrier to the continuing expansion of the definition of bad guns, and that is why, frankly, individuals who are hunters, individuals who think that because they live in rural areas that dependency on the police is not sensible stand up and say, listen, this worries me and I cannot join with you to talk about ways to make things more difficult for criminals.

Mr. CONYERS. Do you have any idea how many thousands of times we have pled that we have nothing against hunters, sportsmen, collectors? I mean every time we bring the subject up we assure people repeatedly that that's not what we want to do.


Mr. JOHNSON. Representative, I trust you, but I don't the person who comes after you.

Mr. SCHIFF [presiding]. I have to ask for a very brief, a very brief— I have to ask for a very brief response at this time.

Mr. JOHNSON. I can trust you, but I may not be wilting to trust the person that comes after you.

And, lastly, if we get to the result that people like me fear from the bad gun formula, it creates a state of dependency that is a very, very sad thing, particularly for minority communities that have a reason to, in fact, distrust the State. It's Federal legislation, but it is dependency on State and local governments, and we have historically been very, very legitimately distrustful of State and local enforcement of our individual rights.

Mr. SCHIFF. The gentleman from Michigan's time has expired.

Mr. CONYERS. May I point out to the chairman that the professor had not had a chance to respond, sir?

Mr. SCHIFF. I will extend the gentleman another 2 minutes to allow the professor to respond, allow the gentleman from Michigan to finish that 2 minutes.

Mr. CONYERS. It wasn't a requirement for additional time. It was just that the question had been lodged within the 5 minutes, sir.

Mr. SCHIFF. All right, Professor Cottrol, if you desire to respond, please do so.

Mr. COTTROL Yes, I feel like there's so many things—

Mr. CONYERS. No, it's not— it was the professor, not— Professor Malcolm, excuse me.

Ms. MALCOLM. It's the historian.

Mr. CONYERS. The historian, not the lawyer.

Ms. MALCOLM. Right.

Mr. SCHIFF. I'm sorry. OK. Well, let me just say I think we have previously, where a member asked the question at the end of the 5 minutes, and even then some, we allowed each member of the panel to respond. So let me— allow me to do that.

Professor Malcolm.

Ms. MALCOLM. I'll be very brief, but I appreciate the opportunity to respond.

First of all, there really has not been very much research done, surprising as that may seem. Much of what was done earlier was done by attorneys who were arguing from a particular point of view, rather than a historian who was just looking at the origins of the right. The fact is that mine was the first book that really looked seriously at the origins and did thorough research on it.

But it also goes back to your comment about how lopsided our panel is because, if there were historians on the other side, they would be here. There are a lot of historians who agree with me now—

Mr. CONYERS. Why do you think that?

Ms. MALCOLM. Because it is very hard, sir, to find a historian who now believes that it is only a collective right; that as it has become more thoroughly researched, there is a general consensus that, in fact, it is an individual right. That's why this is so lopsided. There's no one for me to argue against anymore. They have to bring in the director of Handgun Control to simply tell us what his belief is.


Mr. SCHIFF. Mr. Henigan.

Mr. HENIGAN. Yes let me make a brief comment. There's an advertisement that's blown up over here that appeared in Roll Call this week. It was an advertisement put in there by my organization. It contains the names of 28 professors of constitutional law who are saying that the history and meaning of the second amendment support the judicial consensus that I have described. So this panel, is not at all representative of constitutional historians or scholars.

Mr. POLSBY. Sir, could I just put in—

Mr. SCHIFF. Go ahead, please.

Mr. POLSBY. Several of those signatories are my colleagues. They are not professors of constitutional law in point of fact. They're professors of anything but. Not one person who is a signatory of that advertisement, sir, has ever published research on the subject of the second amendment— zero.

Now I'm not here representing the NRA and it's difficult to become the foil of, or to be made the foil of, the argument in that way. We are independent scholars. I don't believe that Professor Malcolm is a member of the NRA. We can't— I'm not representing their views here, but it is simply not the case that there exists at present a legal historian or a historian of constitutional history that is prepared to defend the proposition that the second amendment is a triviality, is obsolete, does not grant an individual right, and this runs right across the political spectrum, Republicans and Democrats even one old-fashioned pacifist. So just to correct what is evidently your misimpression, Professor Malcolm's statement here, to my knowledge, is essentially true, and those professors, with some exceptions but most of them, are not professors of constitutional law.

Mr. SCHIFF. Mr. Henigan, I'll allow your response, but brief, please.

Mr. HENIGAN. That's very kind, Mr. Chairman.

The record should not reflect that there is not a single constitutional historian who would endorse the militia interpretation of the Constitution, simply because there are not a lot of law review articles supporting that interpretation. There are some, but it is very easy to explain why there aren't more, and that is this is such a settled issue of constitutional law. It is uninteresting to most constitutional law professors. You don't get it when you take constitutional law. They don't even teach it. It is simply established that this is the meaning of the second amendment, and that explains the fact that there aren't more-more of these people haven't written on it, but they certainly believe what they endorse in the ad.

Mr. SCHIFF. The Chair has received a request. I'm going to move on to other members and allow them to join the questioning. You'll have more of an opportunity to answer. But I believe the Chair has received a request to hold the record open for a period of 10 days, I would suggest, to allow other individuals who might be expert in this issue to submit written testimony.

Mr. CONYERS. Mr. Chairman—

Mr. SCHIFF. The gentleman from Michigan.

Mr. CONYERS. Not 10 days. It might— I don't want to keep— some reasonable period of time, but we wanted to make sure that the


record also reflected that we on the Democratic side have asked for additional witnesses and were denied, and perhaps the professor might understand that it wasn't because we couldn't find anybody.

Mr. SCHIFF. Well, the record will remain open and it will be most welcome additional testimony.

Mr. CONYERS. I thank the Chair.

Mr. SCHIFF. I thank the gentleman from Michigan.

Mr. Buyer.

Mr. BUYER. Thank you, Mr. Chairman. I do want to clarify this real quickly, and we can do it real quick.

Dr. Cottrol, who pays your salary?

Mr. COTTROL Rutgers Law School.

Mr. BUYER. Dr. Malcolm, who pays your salary?

Ms. MALCOLM. Bentley College.

Mr. BUYER. Dr. Polsby, who pays your salary?

Mr. POLSBY. I'm still not a doctor, Mr. Buyer, but a professor of law at Northwestern University.

Mr. BUYER. I said, Dr. Polsby, who pays your salary?

Mr. POLSBY. It's just "Mr."

Mr. BUYER. Oh, it's "Mr?" They've got "Dr." there.

Mr. POLSBY. I know they do; it's in error, but I never did go to dental school.

Mr. BUYER. Shall I call you "Dr." or "Mr. Henigan?" Mr. Henigan, who pays your salary?

Mr. HENIGAN. I'm "Mr.," I'm afraid.

Mr. BUYER. Who pays your salary?

Mr. HENIGAN. My salary is paid by Handgun Control, Inc., and the Center to Prevent Handgun Violence.

Mr. BUYER. And the Center to Prevent Handgun Violence?

Mr. HENIGAN. Right.

Mr. BUYER. Well, I think it's pretty clear here. So the three professors are not paid by the NRA, are you not? None of you are?


Mr. BUYER. Nor the gentleman on the end?


Mr. BUYER. And who pays your salary, sir?

Mr. JOHNSON. Fordham University School of Law.

Mr. BUYER. You know, I think it's pretty clear that we've got some paid advocacies here. We have the paid expert testimony, I guess is what I would say with regard to Mr. Henigan. So I'll accept it under the color and flavor for which it is presented and under the jaundiced view of how it's presented.

You caught my attention, sir, when you mentioned that, thank God for the Brady bill for it saved 40,000 felons from getting handguns. Would you, please, now clarify your testimony and say to this committee how many of that 40,000 were prosecuted?

Mr. HENIGAN. Well, it certainly wasn't 40,000.

Mr. BUYER. Ten.

Mr. HENIGAN. Mr. Buyer—

Mr. BUYER. Ten.

Mr. HENIGAN [continuing]. I wish it had been more.

Mr. BUYER. Ten.

Mr. HENIGAN. I wish it had been—


Mr. BUYER. So I just wanted to let you know, when you say these exaggeration things, it begins to affect what's called credibility.

Mr. HENIGAN. My— my—

Mr. BUYER. Then— then it's pointed out that you bragged about an advertisement about all your professors here, and then it comes out that Dr. Cottrol says none of them have been— that any— none, zero writings on the second amendment. It begins to affect your credibility.

Mr. HENIGAN. Does that mean that they're not qualified to have voiced an opinion—

Mr. BUYER. I'm just— sir, what I'm saying is, it affects your credibility—

Mr. HENIGAN. [continuing]. Because they have an opinion on it—

Mr. BUYER. Well, if you want to quibble, we can quibble. What I'm saying here, it affects the credibility of your testimony. So let me ask you this—

Mr. HENIGAN. My testimony was not false or misleading in any way—

Mr. BUYER. When you said the issue is how to stop the killing, I agree with you; that's what the real issue is: how do we stop the killing? You see, when I got upset was in the last crime bill with those that buy into the notion that gun control is crime control. And what bothers me most, and as a former prosecutor what bothered me a lot, is that notion because I submit to you, sir, I'll put a screwdriver on the table there in front of you, and I'll put a handgun, which you want to ban, on the table, and you tell me which is the defensive weapon and which is the assault weapon. Can you tell me which, the screwdriver or the handgun? Can you tell me?

Mr. HENIGAN. It's very difficult for me to—

Mr. BUYER. That's right; it's difficult for you to tell.

Mr. HENIGAN. It would be difficult—

Mr. BUYER. If I picked up—

Mr. HENIGAN. Could I please answer the question, Mr. Chairman?

Mr. BUYER. If I picked up the screwdriver— if I picked up the screwdriver and moved toward you with the intent to hurt you, maim you, kill you, and you picked up the gun, all of a sudden, that handgun which you tell Americans is an assault weapon isn't the assault weapon; it becomes a defensive weapon, and the screwdriver, which looked harmless, now becomes a weapon. So the real assault weapon isn't the gun or the screwdriver; it's the thug. So what we ought to be going after is the thug in our society, not the particular gun.

See, what I wanted to do do, when you say, "Sir, how do we stop the killing," it's— we're going to take up that issue pretty soon in this committee, and that is increasing the penalties for the use of a firearm in the commission of a crime. And I wish we had more prosecutors out there and more U.S. attorneys that use the statutes and slam-dunk these guys behind bars.

Mr. CONYERS. Mr. Chairman, can the gentleman be given additional time?

Mr. BUYER. Oh, I'd love to. I'd appreciate that.

Mr. SCHIFF. The gentleman's time has not yet expired.


Mr. BUYER. Let me ask Mr. Polsby a question. Sir, you— there was a comment that was made about the— Mr. Henigan made reference about the tyranny, about the individual right to bear arms— something that was a sarcasm— "Surely in our society we shouldn't give right to individuals to raise up their arms against the country, no different than Mr. Duran did at the White House," or something like that. I'm sure you have a comment on—

Mr. POLSBY. I take it, Mr. Buyer that Mr. Henigan— Mr. Henigan's point reconstructed is something like this: in a democratic society people should not be given a unilateral power to oppose democratic decisions. It's a serious point. It's one that, in effect, argues with the premise of the Bill of Rights. It certainly is one that is tendentious with respect to the second amendment as it was conceived of by the drafters.

Mr. Henigan and I, I think, have common ground on the proposition that reasonable regulation of firearms is permissible under the Constitution, but what is reasonable and what is not reasonable is a factual issue and one not in any way likely to be advanced by quoting numbers like 40,000—

Mr. BUYER. Right.

Mr. POLSBY [continuing]. Felons prevented from buying handguns, that sort of thing. That's just propaganda.

Mr. BUYER. Right. Thank you.

Mr. SCHIFF. Mr. Henigan, I believe you wanted to respond also, sir?

Mr. HENIGAN. Thank you. I'd like to respond to some of Mr. Buyer's comments.

First of all, not all handguns are assault weapons. Second, the comparison between a screwdriver and a handgun makes a very important point. It would be, as I was about to say, very difficult for me to kill you with a screwdriver from here to there. It would be easy for me to do it with a handgun. Handguns are designed to kill. They do it very efficiently, and that is a very good policy reason why there ought to be different rules and regulations with respect to handguns.

Mr. BUYER. The point is an assault weapon is based on the intent of the user.

Mr. HENIGAN. Not at all.

Mr. BUYER. It could be a tire iron.

Mr. HENIGAN. Not at all—

Mr. BUYER. I could kill you with a tire iron or a—

Mr. HENIGAN. It's based on the concept of fire power. The fact that you can kill a lot of people very quickly with an assault weapon, that's what it was designed to do, and that's why it was totally rational for this Congress to distinguish those kinds of guns for special treatment. And we hope and pray that this Congress will maintain that statute in effect—

Mr. BUYER. Thank you, Mr. Chairman.

Mr. HENIGAN [continuing]. Because it's very important to the public safety.

Mr. COTTROL Mr. Chairman. Mr. Chairman.

Mr. SCHIFF. Who's seeking recognition?

Mr. COTTROL. Here, sir.

Mr. SCHIFF. I'm sorry. Oh, over—



Mr. SCHIFF. I was looking for my colleagues. Mr. Cottrol, briefly, if you would—

Mr. COTTROL. Very briefly. Mr. Henigan mentions the issue of firepower with respect to an assault weapon. The weapons that were banned by last year's statute are semiautomatic weapons and they all fire at the same rate. Let me give you one example.

One weapon is specifically— one firearm, one rifle, is specifically protected by last year's legislation, the Ruger Mini-14. One other rifle is specifically banned, the Colt AR— 15. Both fire the same cartridge, the .223 cartridge. Both will take detachable box magazines ranging from 5 to 30 rounds. Indeed, there is a magazine which is built to fit into both of them. Both have the same rate of fire. What are the differences? The Colt AR— 15 has a bayonet lug and a pistol grip. The Ruger Mini-14 has no bayonet lug and has no pistol grip. Why is one specifically protected by the legislation and the other specifically banned? I am not afraid of pistol grips, and as my sergeant told me in basic training, if you have to use the bayonet, you're too close. [Laughter.]

Mr. SCHIFF. Thank you, Dr. Cottrol. On that, I have to interrupt, sir, so we can move on.

Mr. Heineman.

Mr. HEINEMAN. I wasn't here during the presentation, Mr. Chairman. I'll pass.

Mr. SCHIFFS. Thank you, Mr. Heineman.

Mr. Bryant.

Mr. BRYANT of Tennessee. Thank you, Mr. Chairman.

Mr. Henigan, I have a question for you also. I think you've done a good job articulating the position that you represent. However, I must respectfully disagree with you on that. I believe that the second amendment to our Constitution does provide for more than just a well-equipped militia, but it allows by constitutional amendment a person to— an individual to possess a firearm for self-defense, for hunting, for target practice, and whatever. But as I hear what you're saying and as I read your report, you say that the intent of the amendment is to prevent the Federal Government from passing laws that would disarm the State militia, and you said in your testimony— and I wrote it down— that it was limited to a well-regulated militia. And, again, I must respectfully disagree with you on that.

You quote some numbers in here and with your testimony, that every day 103 people are killed, and then you said that roughly 1 percent, or maybe 8 to 10 percent, of these are related to these assault weapons that have been banned.

Mr. HENIGAN. I said that approximately 8 to 10 percent of the guns traced to criminal activity by the Bureau of Alcohol, Tobacco and Firearms are assault weapons.

Mr. BRYANT of Tennessee. OK. I've heard other figures from law enforcement that about 1 percent of the homicides nationally are caused by these types of weapons that are banned.

Mr. HENIGAN. Yes, they're—

Mr. BRYANT of Tennessee. If you're killing 103 people a day and we're trying to ban the guns that kill 1 percent of those of about 100, why are we quibbling about that? Why are you out there— if


you're sincere in your beliefs, why aren't you out there trying to take all the handguns that kill the other 99 percent of the people out there every day, the 100, the other 102 people every day that are killed? If you're really sincere and you truly believe that the second amendment is limited only to a well-regulated militia, why are we talking about simply semiautomatic weapons? Why don't you take away all of the handguns?

Mr. HENIGAN. Because we don't think that's necessary and—

Mr. BRYANT of Tennessee. Well, we're killing 99 percent of the people with them; why isn't it necessary under your logic?

Mr. HENIGAN. We believe that the handgun problem can be brought under control by a system which is comparable to the regulation of automobiles; that is, we ought to license handgun owners and we ought to register handgun transfers. The Brady bill was an enormous step forward. It stopped the sale of handguns by the retailer to the convicted felon. The problem is now you can have private transactions between people who are not licensed dealers and convicted felons. We've got to close that loophole. That's just a reasonable regulation, and it would help keep—

Mr. BRYANT of Tennessee. I think you folks are quibbling over this when you're talking about the guns that kill 1 percent and not doing anything about the ones that kill 99 percent. I think, ultimately—

Mr. HENIGAN. We are prepared to do a lot about the handguns.

Mr. BRYANT of Tennessee. Well, no, I think the real reason is your logic fails there. Your logic fails. You cannot distinguish between semiautomatic weapons and the regular handguns that, by figures, kill 99 people a day.

Mr. HENIGAN. The distinction has been drawn by all the police organizations that have supported an assault weapon ban, and that is that you can make an argument that there are legitimate uses for ordinary handguns. You cannot make that argument about assault weapons.

Mr. BRYANT of Tennessee. But how do you square that, though, with your interpretation that under the second amendment you only have a right if you're in a well-regulated militia to have a gun?

Mr. HENIGAN. Mr. Bryant, the constitutional point is not that banning handguns is a good idea. The constitutional point is that this Congress has the constitutional power to do it, if it wants to. We don't ask you to do it. We don't favor that step, but the constitutional point is you do have that power. This is not a constitutional issue. It is a question about what the dimensions of the problem are and what the best steps are to alleviate the problem. And we will— we can have a discussion about whether licensing and registration of handguns would help to deal with this terrible problem of violence, but let's leave out this notion that there is a fundamental constitutional right—

Mr. BRYANT of Tennessee. If you had one law, if you could pass one law through this Congress dealing with guns, what would that law be?

Mr. HENIGAN. The law has become known as Brady II.

Mr. BRYANT of Tennessee. What is that?


Mr. HENIGAN. It would be a comprehensive reform of Federal firearms laws and its core is a system of licensing and registration very similar to what we have with respect to automobiles. That ought to— there are other aspects to Brady II, but the point is some kind of rational control of the distribution of these very dangerous guns. We don't have to move to a total—

Mr. BRYANT of Tennessee. One quick question, how do you square that type of regulation of guns with those who say that we need to keep our firearms against a tyrannical government?

Mr. HENIGAN. Well, as I mentioned in response to another question, the best response to the prospect of tyrannical government is to perfect the democratic institutions that we have in this country, to zealously protect freedom of expression, the independence of the Federal judiciary in enforcing rights, the separation of powers, the power to vote, and get that power to vote distributed to as many citizens as possible. It's these democratic institutions that insure against tyranny. We cannot take the step of interpreting our Constitution to give each and every one of us the right to choose what laws to obey, and if we disagree, to start shooting.

Mr. BRYANT of Tennessee. If I might reclaim my time, our forefathers had those very same thoughts as they set up the separation of powers under our Constitution and our democracy, but, yet, they still saw fit to add this second amendment to give the people the right to possess those weapons.


Mr. BRYANT of Tennessee. And I submit to you it's that logic against a tyrannical government—

Mr. SCHIFF. The gentleman's time has expired.

Mr. BRYANT of Tennessee. But we just have to disagree, I guess.

Mr. SCHIFF. Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman.

Mr. Henigan, you certainly, I would hope, would not view it as against public policy or improper in any way for an organization that represents a grassroots group of citizens who believe in a particular point of view should not be able to participate in challenging laws or filing amicus or other sorts of briefs with courts—

Mr. HENIGAN. Not at all.

Mr. BARR [continuing]. On behalf of the points of view of their members, would you?

Mr. HENIGAN. Not at all. In fact, we have invited the National Rifle Association—

Mr. BARR. Well, HCI files such briefs and participates, too, don't they?

Mr. HENIGAN. Pardon me?

Mr. BARR. HCI, Inc., or Handgun Control, Inc., participates in court cases, files amicus briefs, and the whole range of participation in court cases involving—

Mr. HENIGAN. We certainly do.

Mr. BARR [continuing]. Certain firearms, don't they?

Mr. HENIGAN. We certainly do, and we do not begrudge the—

Mr. BARR. So you certainly didn't mean to earlier cast any aspersions or say there's anything wrong with the National Rifle Association participating in cases such as challenge to the Brady laws, would you?


Mr. HENIGAN. No, not at all.

Mr. BARR. OK. Well, then forgive me, but I thought you had implied that there was something wrong with that.

Mr. HENIGAN. There's nothing wrong with it.


Mr. HENIGAN. I was just Commenting that it is curious that when they go to court to challenge gun control laws, they leave the second amendment outside the courthouse door.

Mr. BARR. Well, it is— it is kind of interesting what people leave out. And along those lines, I was rather intrigued by some of the material that you left out of your paper, and your paper is very well reasoned based on the sources that you cite. It's very eloquent, and it represents a certain point of view. When other organizations similarly wish to present a point of view, based on their research, based on their interpretation of the law, based on the views of their members, as an advocate, isn't their job to present their argument based on their sources in the best light, the most favorable light for their argument, as you have done? Is that not accurate?

Mr. HENIGAN. Of course.


Mr. HENIGAN. We don't begrudge them—

Mr. BARR. It— I did notice, though, and I was wondering if you could address this: some of the material you left out were references to what I think were some very explicit references to the meaning of the second amendment by some of the Federalists in some of the Federalist Papers. Also, I didn't see any reference at all to two other important amendments to our Constitution, the 9th and the 10th. I know you cited George Mason in yours, but I'm talking about some of the other documents that explicitly address it. You also didn't mention the 9th or 10th amendments. Do you think that they're relevant at all or completely irrelevant to a discussion of whether or not there is enjoyed by the citizens of the United States a very fundamental right to self- protection?

Mr. HEN1GAN. I believe that those amendments are generally considered by the courts to be irrelevant to that. To the extent that there is a right to keep and bear arms, it is clearly addressed by the second amendment and it is so limited.

Mr. BARR. Are the only rights that the people enjoy in this country those that are explicitly reference somewhere in the constitutional document itself?

Mr. HENIGAN. That has been the holding of the Supreme Court for many years.

Mr. BARR. Mr. Henigan, now come on. Let's— I mean, the basic tenet of our Constitution is that it does not represent the full panoply of rights enjoyed by the people of this country. As a matter of fact, doesn't the 9th and 10th amendments explicitly say that?

Mr. HENIGAN. Mr. Barr, that point of view has never been accepted by the Supreme Court. The—

Mr. BARR. No, no, no, no,. I did not preface my question speaking just about the second amendment—

Mr. HENIGAN. I understand, but what I'm saying is that the Supreme Court has long held that the existence of a right must be tethered to some language in the Bill of Rights, that—

Mr. BARR. Mr. Henigan, I—


Mr. HENIGAN [continuing]. Instead of making up rights that are not somehow expressed in the Bill of Rights.

Mr. BARR. You just— I was going to give you some credit, but I'm not now. I mean, that is the most absurd and most pinched and most unrealistic and most inaccurate view of our Constitution that I have ever heard.

Mr. HENIGAN. Well, perhaps you could give me an example of a right which the court has held does not need to be in some way connected to an expressed right in the—

Mr. BARR. Let me— let me go back, Mr. Henigan, to the court challenges, and it's my understanding that there was a challenge in 19— after 1986 to the 1986 machinegun ban out of Georgia brought against the U. S. Government by J.D. Farmer, and that the trial court struck down that law. Later an appellate decision reversed it. And it's my understanding, as I recall— and I was down in Georgia at the time— that the plaintiff, J.D. Farmer, applied for cert. to the Supreme Court.

I also recall— and this was just what I wanted to check on to see if my recollection is faulty or not— that HCI filed an amicus brief requesting the Supreme Court not hear the case?

Mr. HENIGAN. Yes, sir, that's correct. It's consistent with our view that these cases do not meet the standards for Supreme Court review because there is no—

Mr. BARR. OK So simply the fact that there may be an important issue there and the fact that an organization chooses not to file a brief or not to file a— ask for a court to hear a case, we shouldn't read anything into that, should we?

Mr. HENIGAN. Well, I think you should read something into the fact that an organization which says that there is an absolute right to be armed in this country and says that an assault weapon ban violates that right, then refuses to go to court to try to vindicate that—

Mr. BARR. But we certainly shouldn't read anything into HCI's decision similarly?

Mr. HENIGAN. Our amicus brief is totally—

Mr. BARR. That's— that's all, Mr. Chairman.

Mr. HENIGAN [continuing]. Consistent with our position. We argued to the Supreme Court that this is a settled issue of law, so there's no reason for the Supreme Court to hear that case.

Mr. BARR. I'm not saying that you're inconsistent. HCI is very consistent. They want to ban handguns. They're very consistent. All I'm saying is—

Mr. HENIGAN. We do not want to ban handguns—

Mr. BARR [continuing] Is I think it's inconsist to say that we should read something into what the NRA does or does not do, or an argument that they bring or don't bring, but we shouldn't do the same with HCI.

Mr. HENIGAN. We ought to at least get an explanation from the NRA of why they didn't sue on second amendment grounds.

Mr. McCOLLUM [presiding]. Your time has expired.

Mr. Bartlett is here today with us and wishes to be allowed to ask some questions and you'll be recognized now, since the subcommittee members have finished, for 5 minutes, if you'd like.


Mr. BARTLETT. Thank you very much. I really appreciate this privilege. I'm not a member of this committee. I'm a member of the Firearms Task Force, and I'm very privileged that you let me sit in on these hearings and ask some questions.

Mr. Henigan, has there been an amendment that nullified the 10th amendment that I've missed?

Mr. HENIGAN. No, the 10th amendment is—

Mr. BARTLETT. All right. Well, let me read the 10th amendment then. Let me read it to you.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." That seems to be most implicit and explicit, that any power that's not delegated to the United States belongs to the States and to the people, and that would seem to mean all rights.

Mr. HENIGAN. Well, the— it talks about powers not rights, and the question— the issue, according to the Supreme Court, under the 10th amendment is whether the Federal Government has the power to command a State to enact legislation. The Brady bill did not command any State to enact any legislation. That's why I believe ultimately the courts are going to uphold the mandatory background check provision of the Brady law. That's basically the 10th amendment issue that is before the Court—

Mr. BARTLETT. I was not so much concerned about the Brady Law as I was about your statement that we have no rights in this country unless they are explicitly set forth in the Constitution. I think the Constitution explicitly says that we have all the rights, all the power. A right is a power, sir. We have all the rights all the power, that are not specifically delegated to the Federal Government and to the States.

You indicated that you think that the second amendment says that people can only have guns if they're a part of a militia. Does that mean that you're OK with our citizens having their second amendment right if they buy a set of KMO's and if they organize and go out and practice wargames on the weekend? Does that make it OK for them to have a gun?

Mr. HENlGAN. Of course not. That is a total distortion of the militia—

Mr. BARTLETT. Well, then, you didn't really mean what you said about the militia, did you?

Mr. HENIGAN. I did mean what I said—

Mr. BARTLETT. Do you think the militia's the army and the navy?

Mr. HENIGAN. What I made clear was that the militia, by its nature, is an instrument of State government. This doesn't give all of us the right to form our own little private militia and start training in the woods, if we don't like gun control laws or any other kind of laws. That stands the—

Mr. BARTLETT. If you read the Federalist—

Mr. HENIGAN. [continuing] the Militia concept on its head.

Mr. BARTLETT. If you read the Federalist Papers and put in the milieu of that time the Constitution, and what our forefathers meant to do when they came back in 1791 with 12 amendments, 10 of which were ratified and became the Bill of Rights, I think that you would have to agree that the intent of the 2d amendment


was to permit the citizens to protect themselves against an oppressive central government and to protect themselves against other citizens that would threaten them.

Mr. HENIGAN. Mr. Bartlett, I would refer you to my written statement on the question of the Federalist Papers I do address the Federalist Papers and how they are distorted by those who would advocate this individual rights view. It's at page 4, footnote 7. I take a specific quotation from James Madison that is distorted again and again and again because he was talking about the importance of being armed, but he was talking about it in the context of the organized State militia, and that is what is often left out of the quotations advanced by the NRA and its friends.

Mr. BARTLETT. There's an old saying that the thinnest sheet of paper has two sides, and I think that this is a good evidence of that. I'm sure you are convinced that these so-called gun control laws affect crime. By the way, that is an oxymoron; of course, you can't control a gun; it's an inanimate object. You control people.

But if that's true, sir, if it were really true that gun control, restrictive gun control legislation would affect crime, then the District of Columbia should be the safest place on this planet. it obviously is not, sir. What additional— what additional restrictive gun control laws do we need to make the District of Columbia the safest place on the planet?

Mr. HENIGAN. As has been well established in study after study, the lack of a rational Federal gun control policy undercuts the effectiveness of local gun control laws. The guns that are being used in crime in the District of Columbia don't come from the District of Columbia. They originate in States that don't have gun control laws, and that is why we need a comprehensive Federal policy.

Gun control laws at the local level are better than nothing, but you've got to stop that interstate gun trafficking, and that's what Brady II would do.

Mr. BARTLETT. My time is up. I'd just like, Mr. Chairman, to ask one more question, kind of a rhetorical question.

You talk about licensing and regulating guns. Tell me, sir, why would a criminal want his gun registered?

Mr. HENIGAN. Well, the point is that if a criminal does not register his gun, we have grounds to arrest him and get him off the street.

Mr. BARTLETT. By definition, sir, by definition, sir, he is a criminal.

McCOLLUM. Mr. Bartlett, your time is up.

Mr. BARTLETT. My time is up? Thank you very much, Mr. Chairman.

Mr. MCCOLLUM. Mr. Schumer has returned, and I'll recognize you for 5 minutes.

Mr. SCHUMER. Thank you, Mr. Henigan.

And I just— sometimes the opponents of this just— you know, they don't listen to logic. They bring up D.C. and New York all the time. The facts are that those guns come from out of New York State and out of D.C. Get with it. Make some arguments that argue the issue, not something that has nothing to do with the issue. We don't have a barbed wire fence around D.C. or around New York State, so if a gun is bought in Georgia or Florida, we


can check if it comes into our State. There may be other arguments. There are arguments about the balance of people's rights and things, but there is no argument— none— that D.C. or New York, which have tough laws, have high crime rates when it's established beyond any doubt that 90 or 95 percent of those guns come from other States with no gun control laws. So let's get with it and let's stop all this.

I sometimes think the opponents of this don't want to argue the issue. They want to argue every other issue, every other issue. They want to argue whether we should have mandatory sentences. They want to argue whether we should have tough punishment. But they don't want to argue the issue of gun control, because they come up with these kinds of things that just aren't reality. That's not what's happening.

So you stick with it, Mr. Henigan.

Mr. HENIGAN. Thank you.

Mr. SCHUMER. And I would say one other thing. I heard in my absence Mr. Buyer was saying, well, you're from Handgun Control. You are.

Mr. HENIGAN. Yes, I am.

Mr. SCHUMER. You make no pretense about it.

Mr. HENIGAN. That's right.

Mr. SCHUMER. Unlike the NRA, you're not setting up front groups like the Law Enforcement Association and groups like that which are truly funded and work hand in glove with the NRA, but they don't want to say it.

Mr. HENIGAN. That's right.

Mr. SCHUMER. I commend you for being forthright about where you come from, and it's not another group that would be called Safety in America, that would be funded, work hand in glove with Handgun, and you not say who it is. So good for you. And I think some of the LEAA people should learn that lesson.

Mr. HENIGAN. Congressman Schumer, might I add that the Federal courts that have consistently upheld gun control laws and endorsed the militia interpretation of the Constitution are not on the salary of Handgun Control.

Mr. SCHUMER. Right. I don't think Warren Burger was a big advocate of handgun control, and he said on the second amendment the NRA lies.

Mr. HENIGAN. Right.

Mr. SCHUMER. He didn't qualify it. He said they lie. And, you know, every court has ruled against them. Now I know what these fine people will say they didn't rule on point. Bring some more cases. I hope you do. Bring as many cases as you can. You will find that every court— my guess is the Supreme Court will be nine to nothing in terms of any case you bring that says the second amendment means you can't have a Brady law, you can't have an assault weapons ban, et cetera, because right now the cases from 1866, Cruikshank on forward, say that the second amendment does not vitiate rational gun regulation.

If there were a ban on handguns, total ban, who knows? Maybe it would happen. I doubt it. I wonder what your opinion would be, Mr. Henigan, but I'm not for a ban on handguns. I'm not for that. I'm for licensing. I'm for registration.


And I would simply say to my colleagues from different districts, I was quite interested that Chief Wilson said what would work in Kennesaw, GA, requiring every household to have a gun, he was for it in New York and Chicago and Los Angeles. I'd like him to talk to the New York City Police Chief, Mr. Bratton. I'd like to talk to the head of the PBA, the Patrolmen's Benevolent Association, Mr. Caruso.

I want to ask— let's ask Dr. Cottrol and Dr. Malcolm and Dr. Polsby— do you think it's a good idea to require every household to have gun, as they did in Kennesaw, GA, throughout America?

Mr. Cottrol. No, I would not require. I would certainly say that the right of people to have a gun should be protected.

But, also, Congressman Schumer, if I might say something, you have misstated what the Court did with Cruikshank. Cruikshank did not involve the question of the extent to which Government, State or Federal, may or may not regulate gun ownership. Cruikshank involved the issue of the extent to which Congress was authorized under the 14th amendment to extend the protections of the 2d amendment against individual deprivations of the 2d amendment. And if you read Cruikshank again, it says the same thing about the first amendment that it does about the second amendment; namely, that it does not protect against private action—

Mr. SCHUMER. I have to reclaim my time because it's limited. All I said is none of the cases have said that gun control is against the second amendment— not a one.

Mr. COTTROL. Cruikshank did not involve an issue of governmental gun control.

Mr. SCHUMER. All I said is none of the cases that involve guns from second amendment on have said— any of them have even a scintilla of a hint that gun control laws such as we have on the books or such as we want to pass are unconstitutional.

Mr. COTTROL. Would you have been willing to let the extent of equal protection rest with Plessey in 1896? In 1896, the Supreme—

Mr. SCHUMER. Bring a case.

Mr. COTTROL. Wait. In 1896, the Supreme Court was perfectly willing to say—

Mr. SCHUMER. Dr. Cottrol, please—

Mr. COTTROL [continuing]. That's a separate but equal—

Mr. SCHUMER. Please, we don't have to argue the Supreme Court doctrine—

Mr. COTTROL [continuing]. Was OK and that this—

Mr. SCHUMER. Please, it's my time, Dr. Cottrol. Please, we don't have to argue that Supreme Court precedents change. Of course they do. But I have a Brown v. Board of Education that I can cite that's been on the books for 41 years that overturned Plessey. You have no equivalent Brown yet. Bring a case.

Mr. COTTROL. In 1910.—

Mr. SCHUMER. Bring a case.

Mr. COTTROL. In 1910, you would not have had Brown.

Mr. MCCOLLUM. Mr. Schumer—

Mr. SCHUMER. But we're not in 1910, sir. We're in 1995.

Mr. COTTROL. With respect to the second amendment we are, sir.


Mr. SCHUMER. Sir, let me just say— well, that was a brilliant argument, Dr. Cottol. [Laughter].

Let me just say I would welcome somebody to bring a case head-on— head -on: is Brady unconstitional? I know they've sort of nibbled around the edges talking about locals paying for it. Is the assault weapon ban unconstitutional? I hope the NRA will, or some of its allies. I welcome that case.

Mr. MCCOLLUM. The gentleman—

Mr. SCHUMER. Until that point, it's constitutional.

Mr. MCCOLLUM. The gentleman's time has expired.

I understand, Mr. Heineman, you did not get a chance to question, and I would yield to you if you would desire 5 minutes.

Mr. HEINEMAN. Thank you, Mr. Chairman. I did get a question, but I passed on it. Being I wasn't here during the presentations, I can only comment on the debate subsequent to the presentations.

And I'm not going to yell at you, Mr. Henigan. You've earned your money today so far. But your statement about Brady II and registration of guns, do you believe or does your organization believe that the criminals will register their guns?

Mr. HENIGAN. The point of registration is to make sure that every transaction in a handgun is documented. To the extent that people violate the registration laws, we should arrest them and prosecu1te them. We don't#151 It's not enough to pass these laws; we must enforce them. We agree with you on that.

Mr. HEINEMAN. Well, do you think—

Mr. HENIGAN. But the basic legal structure to regulate handguns is not in place right now. Now we've got it half in place—

Mr. HEINEMAN. Excuse me, Dr. Henigan. Excuse me. Do you think that would have a sobering effect on the criminals, that because they could be arrested for not registering their guns, that they would register them?

Mr. HENIGAN. It gives us another tool to deal with people who want to—

Mr. HEIMAN. To deal with the honest people—

Mr. HENIGAN. [continuing] Operate outside the law.

Mr. HEINEMAN. That's like locks are on doors to keep the honest people out. Those regulations are to deal with the law-abiding citizens. Now I've been in the business a long time, and criminals are outlaws. Of course we have in-laws, too, but I'm talking about outlaws in the sense of the 19th century where you were the criminals; yet, they called you outlaws. Criminals today are outlaws because they don't believe in the law, because they violate the law, and I don't think we can have any effect on criminals by initiating a registration initiative. I really don't

Mr. HENIGAN. Well, the California Chiefs of Police just issued a statement not long ago which endorsed registration of handguns, and one of the points they made is that it's going to be a very important law enforcement tool because it's going to allow us to trace guns to the point where they went into the hands of a criminal. So we can find out who transferred them into the hands of a criminal.

Mr. HEINEMAN. That's a nice exercise, but it doesn't— it doesn't— it doesn't stop the criminals from getting the guns. And in that regard, l'd just like to mention something that my colleaue, Mr.


Schumer, said across the aisle, and he's right. Those guns are not purchased in Washington, DC. They're not purchased in New York. Well, there's a secondary market to that. There's a subculture that does sell guns in Washington, New York, and Detroit, or any other place, Raleigh, NC, guns in the black market.

Mr. HENIGAN. That's right.

Mr. HEINEMAN. If the people here want guns, I would be very surprised— if you went on the street in some of the high-risk neighbors and tried to purchase a gun, you could do that, if they were sure you were not law.

So I've heard the debate here, and. we're going to be arguing this for another 20 years. Until the Supreme Court gets enough guts to get in that ring between the two boxers, you're not going to get a decision.

Mr. HENIGAN. Well, why doesn't the NRA have enough guts to bring a case? That's what I want to know.

Mr. HEINEMAN. Well, I'm not talking about NRA. I'm just talking about the practicalities of the argument. We've been arguing the legality of the second amendment for as long as I can remember. We have gotten no resolution to that. We have gotten the Supreme Court to come forward and interpret the second amendment. They certainly have no— they certainly have no concern about interpreting the first amendment.

Mr. HENIGAN. Mr. Heineman, I think the Supreme Court interpreted the second amendment in 1939.

Mr. HEINEMAN. Well, then—

Mr. HENIGAN. And the lower courts are not confused about it. They're not conflicted about it. They say the same thing over and over again. The problem is people don't understand what the second amendment means. It's not that the Supreme Court hasn't told the American people what it means. It's that you have this constant barrage of gun lobby propaganda that is misleading people. Courts don't issue press releases, unfortunately—

Mr. HEINEMAN. Well, then, who's doing—

Mr. HENIGAN [continuing] But the NRA does.

Mr. HEINEMAN Who's not doing their job in this country? If the Supreme Court has stated the law of the land, then how come there's so much confusion? Who's not doing the job in this country, because people do have guns. You're differentiating between what's an assault weapon or what's not an assault weapon. Why are we engaged in this if the Supreme Court has made a decision? Somebody's not doing their job?

Mr. HEINEMAN. Well, I think Chief Justice Burger thought somebody really did need to speak out on this because people really were being misled.

Mr. HEINEMAN. Burger's not there anymore.

Mr. HENIGAN. Well, he— he was Chair of the Bicentennial Commission of the Bill of Rights at the time he made these statement, and he was simply appalled—

Mr. HEINEMM4. Well—

Mr. HENIGAN [continuing]. At the public ignorance of the case law of the second amendment, and be spoke—

Mr. HEINEMAN. Either that argument fails or we fail in not doing something about it. I submit to you that it is not clear, and it was


clear, then there should be some enforcement. And if there's no enforcement, it's because it's not clear or there's no law. And I've been chasing this thing for 20 years, and I've heard exactly the arguments we've had here today, and we'll be doing the same arguments 20 years from now unless we come to some practical—

Mr. McCOLLOUM. Mr. Heineman, your time is up and we do have a vote on.

Mr. HEINEMAN. Thank you, Mr. Chairman.

Mr. McCOLLUM. Thank you very much.

Mr. Scott wanted to ask one brief question. Boy, it's got to be brief because we've got to get out of here.

Mr. SCOTT. It's very brief. We've gone through the history and whether you think the Supreme Court should have decided one way or another or not, what your wishes are, but I think we have established that there are several Supreme Court cases clearly establishing that the second amendment doesn't give an individual right to bear arms, and I ask for any case to the contrary. And subsequent to that, Mr. Chairman, I think the Brady cases came up, and my question is whether or not the challenges to Brady had anything to do with the second amendment, or was it a Federal mandate general-type issue?

Mr. HENIGAN. Mr. Scott, the challenges to Brady have nothing to do with the second amendment, and this panel could not cite this committee a single case on their side of the issue, not a single one. They've been asked several times. We've got a whole bunch of professors here. Not a single case comes to mind.

Mr. McCOLLUM. Dr. Cottrol— Mr. Cottrol, would you like to respond? And then we've got to close this out.

Mr. COTTROL. Yes, I would. The right, the constitutional rights of the American people are not limited by the litigation strategy of a private organization. Would that the— if that were the case, then the scope of equal protection in the 1930's, the meaning of the 14th amendment's equal protection clause would have had to have been limited by the fact that the NAACP did not want to directly challenge separate but equal, but nibbled around the edges trying to create the right judicial atmosphere for an ultimate challenge. I think it's incredibly disingenuous to say, simply because the NRA or some other organization has not squarely brought a second amendment case, that, therefore, the second amendment cannot mean the protection of an individual right. Again, I would make that analogy to the NAACP's litigation strategy in the thirties and forties—

Mr. SCHUMER Would the gentleman yield?

Mr. SCOTT. Mr. Chairman, I would point out that he— we asked for a case and he didn't give a case.

Mr. McCOLLUM. Well, you have— we—

Mr. SCOTT. I yield the remainder of my time to the gentleman from New York.

Mr. MCCOLLUM. Well, we really don't have any more time at all, and we're going to have to go vote, and I want to close the panel out and thank them for coming here today. I'm not trying to cut anybody off, but the truth is we've got a whole other panel left, Mr. Schumer, and you've said quite a bit today.


I think the bottom line of all of this is that there is an open question about this issue. There is—

Mr. SCHUMER. Wait, wait—

Mr. McCOLLUM. There is a body of thought that the Supreme Court has ruled—

Mr. SCHUMER. Would the gentleman yield?

Mr. McCOLLUM [continuing]. And there is a group of distinguished professors who are here today—

Mr. SCHUMER. Who can't cite a case.

Mr. McCOLLUM [continuing]. Two of them, in particular, and a professor— I mean an attorney of some repute in the area of this law— who believe that, indeed, individuals have a right to bear arms. And I think you've expressed that based upon your views about the common law, and so forth, and simply don't believe that there has been a ripe issue before the Court. We've heard both perspectives today. We're not going to get to any more clear resolution of this at all.

One final comment, I want to reiterate the fact that none of the three that were here on the there's-a-right-to-bear-arms side of this are here because of the NRA; they're here because you are representing and you are professors or you are lawyers practicing private law, or whatever, at various universities. So while there may be arguments about—

Mr. SCHUMER. May I just have a one-sentence rebuttal?

Mr. McCOLLUM. One sentence.

Mr. SCHUMER. One sentence, I would say to Dr. Cottrol, the NRA professes all over America what the second amendment means, and then doesn't bring a case. That's quite different than the analogy he was making.

Mr. MCCOLLUM. At any rate—

Mr. COTTROL. Not at all, sir. The NAACP in the thirties and forties also had very firm views as to what the equal protection clause meant and they waited until the proper time to bring the case.

Mr. McCOLLUM. Well, the committee is in recess for 10, 15 minutes, I guess. We'll be back at a quarter of, and we'll proceed with the next panel.

Thank you very much for coming.


Mr. MCCOLLUM. The Subcommittee on Crime will come to order.

We have a third panel here today, and I'd like to introduce them and ask them, when I do that, to come forward.

We are technically, I guess, in compliance, and I hope that now that this vote is essentially completed we'll get some more members to wander back in here. I don't want to keep everybody all day long over here.

Our first witness is Sgt. Walter Staples, supervisor in the homicide branch of the Metropolitan Washington, DC, Police Department. He spent more than 21 years with the D.C. Police Department and has served in the homicide division for 5 years.

You can go ahead and have a seat right there, Mr. Staples. Our next witness is Gerald Hensley, a drug enforcement officer with the Baltimore City Police Department. A veteran of 13 years with the department, Officer Hensley spent the first 8 years of his career as a patrol officer.


Our third witness is Sgt. Don Cahill, chairman of the Legislative Committee of the Fraternal Order of Police, which represents over 270,000 officers nationwide.

And our last witness on this panel is Sgt. Simon Risk, a 19-year veteran of the St. Louis Police Department. He has spent all of those years working on the street, and he is currently the coordinator of a specialized 20-officer gun suppression unit for the St. Louis Police Department. Organized 2 years ago, the sole purpose of the gun suppression unit is to illegal guns off the streets of St. Louis.

Well, we want to welcome all of you today. We appreciate your spending the time coming and being with us. One or two of you I've met before, and I've known like Don Cahill whom I've known for a long time, but others I haven't. So we really look forward to your testimonies and thank you for coming.

Sergeant Staples, we re going to start with the people the way we introduced them. So you'd be the first to testify. The microphone is open there, but you need to pull it over to you. And you may proceed to make your statement to whatever degree you feel comfortable. Summarizing it, that would be fine; your whole statement t will be submitted for the record, or if you wish to excerpt parts of it, that's your choice. Please proceed.

Statement of Sgt. Walter Staples, Metropolitian Washington, DC, Police Department.
Doesn't thing the country would be served by repeal of a sensitive and reasonable gun law.

Statement o Gerald Hensley, Officer, Baltimore City Police Department
Wants to resist any temptation to appeal the assault weapon law.

Statement of Sgt. Donald Cahill, Chairman, Legislative Committee Fraternal Order of Police.
Supports Brady Law and Assault weapons ban.

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