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Senate Subcommittee Holds Hearing on Second Amendment

Friday, February 15, 2013

On Tuesday, February 12, career gun control advocate Sen. Richard Durbin (D-Ill.) held a Senate Judiciary Committee hearing inappropriately titled, "Protecting Our Communities While Respecting the Second Amendment."  Much of the hearing featured a severe lack of respect for the Second Amendment, though, as the panel was stocked with several gun control supporters and was presumably aimed at invigorating the country's waning appetite for anti-gun legislation.

The attack on guns began at the outset of the hearing, with Sen. Durbin's opening remarks. In his statement, Sen. Durbin endorsed all manner of federal gun control proposals, including legislation criminalizing the private sales of firearms, a ban on popular semi-automatic rifles and shotguns, and a magazine capacity limit. Showing his disdain for gun ownership, the senator seemed to set gun owners apart from other Americans when he asked rhetorically, "Can we protect a person's right to own a firearm and still say to the rest of America, we also need to protect your right to life, to peace, to freedom from violence from those same firearms?"

Following Sen. Durbin, the subcommittee's ranking Republican, Sen. Ted Cruz (R-Texas), issued a staunch defense of the Second Amendment, citing Supreme Court Justice Joseph Story's remarks that it is the "palladium of liberty."  Sen. Cruz went on to make clear that, in his view, "the divide on this issue is fairly straight forward, the focus of law enforcement should be on criminals… At the same time, I think we should continue to respect and protect the constitutional rights of law abiding citizens."

The first panel consisted of only one witness, United States Attorney for the Western District of Virginia Timothy J. Heaphy. Toeing the line for his boss, Attorney General Eric Holder, Heaphy endorsed several of the gun control proposals under consideration. However, when Sen. Cruz asked if there was any empirical data that restricting the rights of law-abiding citizens reduces crime, Heaphy could not provide a definitive answer and admitted there is lack of correlation between gun control and murder: "It's very, very difficult to find data that any individual factor, be it gun membership, be it poverty, be it educational opportunity is tied directly to the murder rate."

Later on, Sen. Orrin Hatch (R-Utah) questioned Heaphy on his testimony that the Heller decision allowed for "time, place, and manner" restrictions on the right to keep and bear arms, pointing out that a ban on semi-automatics would be more than just a "time, place, and manner" regulation. Sen. Hatch also pressed Heaphy on his testimony that the Department of Justice prioritizes prosecution of those who evade background checks rather than those who try to purchase a firearm and fail. Sen. Hatch noted, "Now I think this shows what has been obvious to many people for a long time, that criminals don't walk into a gun shop to buy weapons and submit themselves to a background check. They get them off the street. You know it. I know it." To which Heaphy responded, "That's exactly right, sir." Exposing the false logic of "universal" background checks, Sen. Hatch then replied, "In other words, the people who we least want to have a weapon…  are least likely to be caught by a background check. So, you know, some on our side wonder why, then, do we raise all this fuss about background checks when we have them in existence but they're not going to be abided by anyway?"

Leading the second panel of witnesses was Harvard Law Professor Laurence Tribe, who famously drew the anger of anti-gun activists following the 1999 publication of a revised edition of his book, "American Constitutional Law," which stated that the Second Amendment protects an individual right. However, Tribe is admittedly anti-gun, having told a New York Times reporter in 2007, "'My [individual right] conclusion came as something of a surprise to me, and an unwelcome surprise… I have always supported as a matter of policy very comprehensive gun control." Tribe did not upset anti-gun activists with his testimony this week, arguing for the constitutionality of nearly every federal gun control proposal offered in Congress. (Joining Tribe in this effort was Prof. Daniel Webster of the Johns Hopkins Bloomberg School of Public Health, who summarized the material from a Bloomberg-sponsored anti-gun summit in mid-January.)

In contrast to Tribe was the testimony offered by former Assistant Attorney General Charles J. Cooper, who has long represented NRA in major constitutional litigation. Cooper defended an interpretation of the Second Amendment that broadly protects individual rights. Citing Heller and McDonald, Cooper stated, "The fundamental Second Amendment right to arms is entitled to no less respect than other fundamental rights protected by the Bill of Rights… it is not to be treated as a second class right or singled out for special and specially unfavorable treatment." Following on this point, Cooper noted, "The government… may no more prevent a law-abiding, responsible citizen from keeping an operable firearm in his bedside table drawer, then it may prevent him from keeping a copy of 'The Collected Works of Shakespeare' or his Bible or his Koran, in that drawer." On the topic of proposed semi-automatic bans, Cooper explained that the Second Amendment protects the kinds of arms "in common use," and went on to say, "standard magazines, holding more than 10 rounds, and the firearms outfitted for them, are by any reasonable measure, in quite common use in the United States."

Lending a human face to the costs of civilian disarmament was former Texas state representative and Luby's massacre survivor Suzanna Hupp. Rep. Hupp shared the story of the murder of her parents and 21 others at the hands of a deranged gunman inside a Killeen, Texas cafeteria. Because the crime occurred before the passage of Texas' Right-to-Carry law, Rep. Hupp had been forced to leave her pistol in her car while eating. In powerful testimony, she explained to the senators the target of her anger following the murders, stating, "You don't be mad at the rabid dog… But I've got to tell you, I was mad as heck at my legislators because I honestly believe that they legislated me out of the right to protect myself and family."

In the coming weeks and months there will be more hearings like this one, aimed at drumming up support for bills to curb your rights. To ensure lawmakers know you will hold them accountable if they support such legislation, contact your legislators by using's "Write Your Representatives" tool or contact Congress by phone at (202) 224-3121.


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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.