HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CRIME,
COMMITTEE ON THE JUDICIARY,
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.
OPENING STATEMENT OF CHAIRMAN McCOLLUM
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
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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.
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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
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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-
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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
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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
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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.
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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.
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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.
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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.
153
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
154
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
155
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.
156
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.
157
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. SCHIFF. OK
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.
158
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
159
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. JOHNSON. Yes.
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.
160
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.