Undue Burdens

 

Much was made of Wednesday’s Senate hearing on guns. While there has already been extensive coverage of emotional moments at the hearing, like the heated exchange between Patrick Leahy (D-Vt.) and National Rifle Association President Wayne LaPierre about universal background checks, or former Congressman Gabrielle Giffords opening statement, the testimony of Gayle Trotter of the Independent Women’s Forum was undoubtedly the most outrageous. She started out her testimony by arguing that guns were the great equalizer for women, because “hand-to-hand combat” favors men. Never mind that there are commercially available non-lethal protection options out there, like mace and tasers. But, that was only the tip of the iceberg for Ms. Trotter, who later said that women like the way that AR-15s look (in fact it’s her gun of choice), and that women need high-capacity magazines for situations where two, three, or four attackers are coming and she needs enough firepower to kill them all. A couple of hours into the hearing, she got to explain her view of Second Amendment constitutional theory.

 

She testified that as a woman, she thought it was important not to put an undue burden on women’s Second Amendment rights to choose to bear arms to defend themselves. Because, that’s what the Second Amendment was about - choice. If Ms. Trotter knew how the undue burden standard from Planned Parenthood v. Casey has actually been applied in the reproductive rights sphere, she wouldn’t be so eager to analogize it to gun rights, which have enjoyed a standard of higher scrutiny since the Heller II decision. In fact, nearly all of the pro-gun witnesses argued that there were already a number of gun-control laws on the books that were already quite burdensome, like having to submit to a background check when purchasing a firearm from a federally-licensed dealer. The pro-gun witnesses added that these laws that are already on the books were simply not being enforced!

 

Taking a closer look at these comments shows that the reality of buying a gun is about as burdensome as having to show photo ID when purchasing alcohol. When asked to talk about the background check process Baltimore Police Chief Jim Johnson said that most background checks can be completed in less time than it takes an officer to write a parking summons. The “I” in NICS – the background check database used by licensed firearms dealers stands for “instant.” When describing his recent purchase of a new hunting rifle at Wal-Mart, former astronaut Mark Kelly said the process wasn’t a problem at all. Plus, as this statement, co-signed by 50 constitutional law professors, shows, having universal background checks would comport with higher scrutiny imposed by the Supreme Court’s ruling in Heller.

 

For all of the regulations that are on the books, which Mr. LaPierre urges Congress to enforce 100% and which he contends are already too burdensome, enforcement is left to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). ATF hasn’t had a director since 2006, when at the NRA’s urging, a requirement that the ATF director face Senate confirmation was slipped into an appropriations bill. Republican Senators have made it clear that they will filibuster anyone who’s serious about enforcing gun laws. When ATF trace the origins of a crime gun, they have to manually sort through thousands of pages of computer printouts because they are prohibited by law from establishing a central computerized database. Another federal law, the Firearm Owners Protection Act, prevents ATF from making more than one unannounced inspection per year of licensed firearms dealers – something that might be helpful in monitoring stores like Chuck’s Gun Shop, outside of Chicago, where more than 20% of crime guns seized in the city were purchased.

 

If gun rights were held to the same level of scrutiny as reproductive rights, passing sweeping gun legislation and even legislation intended to ban gun sales altogether would be dramatically easier for state and local governments. In the context of reproductive rights, the undue burden standard has opened up so many onerous requirements that many states only have a single abortion provider, and even those are under continuing legislative threat. Women who seek reproductive healthcare have to endure mandatory counseling, waiting periods, consent requirements, being shown an ultrasound image of the fetus – all of that before they can exercise a constitutionally protected right. To think that requiring a quick background check and limiting the capacity of magazines poses a greater burden – it’s foolish and ignorant.