Following quick passage of gun-control legislation in New York State this week, President Barack Obama on Wednesday will be joined by children who wrote to him after last month’s mass shooting at Sandy Hook Elementary School in Newtown, CT as he rolls out his national gun-control agenda.
Vice President Joe Biden, who headed Obama’s gun-violence task force, this week submitted recommendations to the president to reduce gun violence in the United States. The president’s plan is expected to include mental health and school-safety initiatives, enhanced background checking and restrictions on military-style assault weapons and high-capacity ammunition magazines.
The president’s framework also reportedly includes a number of executive orders (possibly numbering in the teens), enhanced federal scientific research on gun violence, a modernized federal database system to track guns, the mentally ill and criminals, and aggressive prosecution of existing laws.
Bruce Reed, Biden’s chief of staff, on Tuesday said the package would also include a federal gun-trafficking measure to stop straw-man purchases – guns purchased by one person and transferred to another, as illegal interstate commerce – and crack down on gun trafficking rings.
It is not clear to what degree the president’s plan will include initiatives to address violence in the media and video games. Attempts to curb depictions of “objectionable” material in the entertainment industry, including graphically violent video games, would prompt position stakeouts on the first amendment guarantee of freedom of expression.
In 2011, the US Supreme Court ruled 7-2 in Brown v EMA/ESA in favor of the Entertainment Software Association and declared “unconstitutional” a 2005 California law signed by violent-action-movie star and then-Governor Arnold Schwarzenegger preventing the sale to minors of games involving “killing, maiming, dismembering or sexually assaulting an image of a human being.”
Protecting children “does not include a free-floating power to restrict the ideas to which children may be exposed,” wrote Justice Antonin Scalia for the majority.
On the second amendment enshrinement of “the right of the people to keep and bear arm” Scalia in 2008 wrote in the landmark DC v Heller case that certain “limitations” are permissible – leaving open the possibility of “reasonable” gun restrictions.
“Some undoubtedly are [permissible] because there were some that were acknowledged at the time” by the framers of the Constitution, said Scalia in 2012 to Fox News.
There was a practice in that era called “frighting,” where people “carried around a really horrible weapon just to scare people, like a head axe or something. That was, I believe, a misdemeanor,” added Scalia.
“So yes, there are some limitations that can be imposed,” Scalia said.
“My starting point and probably my ending point will be what limitations are within the understood limitations that the society had at the time,” he said. “They had some limitations on the nature of arms that could be borne. So we’ll see what those limitations are as applied to modern weapons,” Scalia added.
But gun-rights advocates say Scalia is wrong. “The amendment does provide its own degree of scrutiny: It says, ‘shall not be infringed,'” said Larry Pratt executive director of the Gun Owners of America this week on Fox News.
“He was not speaking from a constitutional perspective,” Pratt added.
“Once the discussion takes place and people think about the substance of it, I’m confident that the judgment of the American people is going to be as it was before. And that is that Second Amendment rights should be protected. Criminals should be prosecuted. And we should strengthen the ways we keep guns out of the hands of people who have no business buying them,” said NRA President David Keene on Tuesday on PBS.
After the 2008 Heller ruling, Washington, DC city officials quickly codified some of the nation’s most stringent gun laws which required residents to have trigger locks, make multiple trips downtown to register the weapons, and forbad certain categories of firearms.
US District Judge Ricardo Urbina upheld DC’s revised gun laws in 2010 finding that the new regulations were designed to make DC safer and did not violate the Second Amendment guarantee of a person’s right to own a gun for self-defense.
“It is beyond dispute that public safety is an important – indeed, a compelling – governmental interest,” Urbina opined.
Contemplating some of the mental health-related aspects of this nationally expansive conundrum might begin with the fifth-amendment guarantees that: “No person… shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The High Court held 5-4 in Miranda v Arizona (1966) that “there can be no doubt that the fifth amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”
Even if a person’s public or privately observed tendencies “profile” them to be a potential ticking time bomb seemingly primed to perpetrate heinous acts of violence on their community, would not a potential assailant have an enduring Miranda right to remain silent during a court-ordered mental examination?
What would be the parameters of a “competency” assessment and impact when no crime has been committed?
In a 6-3 opinion in the landmark Sell v. United States (2003) the high court held that the Fifth Amendment Due Process Clause allowed for the involuntary administration of antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but does not establish a precedent for a pre-crime scenario.
Furthermore, the fourteenth amendment says: “…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Could a compelling community interest be established and legally upheld regarding the disposition and/or detention of a presumed or clinically documented mentally ill person suspected of contemplating mayhem, when there is no imminent danger?
There is also the Writ of Habeas Corpus, Article I, Section 9, Clause 2, where there must be a demonstrated legal and jurisdictional basis for continuing to hold a prisoner which is constitutionally expressed as “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Shortly after the start of the American Civil War, President Abraham Lincoln executive ordered the suspension of habeas corpus. Of course, no one expects President Obama to suspend habeas corpus, but might the president issue an executive order on background checks for gun purchases?
Some on the political right say they fear a tyrannical bent in the president on the second amendment and have promised to block any attempt by him to place any restrictions on guns.
“I will seek to thwart this action by any means necessary, including but not limited to eliminating funding for implementation, defunding the White House, and even filing articles of impeachment,” said Rep Steve Stockman (R-TX) Monday in written statement.
“The president’s actions are an existential threat to this nation. The right of the people to keep and bear arms is what has kept this nation free and secure for over 200 years. The very purpose of the Second Amendment is to stop the government from disallowing people the means to defend themselves against tyranny. Any proposal to abuse executive power and infringe upon gun rights must be repelled with the stiffest legislative force possible,” wrote Stockman.
As a former law professor, the president knows better than most that constitutional battles of epic proportion are likely ahead – in addition to the expense of precious, but limited, political capital available to a second-term president whose party controls only half of Congress.
The president acknowledges the political heavy lift, but appears to be undaunted.
“My starting point is not to worry about the politics. My starting point is to focus on what makes sense, what works, what should we be doing to make sure that our children are safe and that we’re reducing the incidence of gun violence. I think we can do that in a sensible way that comports with the Second Amendment,” said the president earlier this week.