Second Amendment: Post-Sniper Policy

Published in National Law Journal, Nov. 11, 2002, p.A17, and New Jersey Law Journal, Nov. 18, 2002

The terror spread by the Washington, D.C-area snipers has prompted two reactions. One is to enact laws for ballistic “fingerprinting” of all firearms and to ban “sniper” rifles. The other is to focus on how to identify, apprehend and sentence such terrorists to death.

The rampage took place at a unique time in the gun-control debate. The Sept. 11 hijackers proved that terrorists don’t need firearms. The cry “Let’s roll!” on United Flight 93 rendered passé the doctrine of nonresistance to criminality and sparked the widespread call that airline pilots be armed.

Democrats have learned the perils of advocating gun control. The Clinton administration argued that only a “collective” state power to a militia is guaranteed by the Second Amendment. But Al Gore lost key states to unhappy hunters.

Just after Sept. 11, 2001, the Fifth U.S. Circuit Court of Appeals decided U.S. v. Emerson, ruling for the hunters that the Second Amendment “protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons.”

The Department of Justice under Attorney General John Ashcroft has argued that the amendment “broadly protects the rights of individuals [...] to possess and bear their own firearms,” excluding “possession by unfit persons” and firearm types “particularly suited to criminal misuse.”

That brings us to John Allen Muhammad and Lee Malvo. The harshest critics of Ashcroft's views on the amendment blame the sniper attacks on the lack of “common sense" gun control. The Brady Campaign to Prevent Gun Violence has claimed that ballistic fingerprinting would have “solved this crime after the first shooting.” The Violence Policy Center urged that “tougher restrictions must be placed on so-called sniper rifles, such as the .50, .308, and .223 calibers,” and Rep. John Conyers, D-Mich., wrote in a letter to the Federal Trade Commission that sniper rifles “are designed to strike a target from a distance.”

But it is unclear how a “sniper” rifle is different from a “hunting” rifle. Since only one shot was fired in each of the murders, any type of rifle could have been used. In fact, it was a Bushmaster XM15 semiautomatic. While that rifle is not an “assault weapon” as defined by federal law, the killing spree is being used to argue for re-enactment of the federal assault weapon ban which sunsets in 2004.

The serial sniper also revived S. 3096, a bill sponsored by Senator Herb Kohl, D-Wis., that would require ballistics testing of all new firearms. The images of the bullet and cartridge casings would go into a computerized database. The effectiveness of the bill would be largely illusory, however, unless it included the 260 million firearms already out there and their owners’ identities (including those owned by criminals).

Moreover, fingerprints do not change, but bullets deform and shell casings change with normal use and parts replacement – and intentional alteration. While ballistics testing may be useful when limited to actual crime guns, the Bureau of Forensic Services of the California Justice Department has warned that if samples from all firearms are imaged, “this number of candidate cases will be so large as to be impractical.”

Maryland and New York have enacted laws requiring ballistic imaging for all new handguns sold, with no practical results.

More intensive investigation of suspected terrorists would be a more productive place to start. According to reports, John Allen Muhammad praised the Sept. 11 hijackers and made terrorist threats. His friend, Harjett Singh, disclosed these plans in June to police and the FBI, apparently to no avail.

During the killing spree, police searched white vans and knocked on the doors of thousands in Maryland who had bought .223 rifles, to demand them for testing. Meanwhile, the sniper cruised around in a blue Chevy sedan with a rifle from the West Coast. Finally, the old-fashioned gumshoe approach of pinpointing specific suspects paid off.

It is doubtful that hunting rifles will be banned as a result of the sniper case, and it is certain that ballistic-imaging plans will be thoroughly studied. But what drives some to commit heinous murders will probably remain a mystery of the human condition. One thing is certain: Further criminalization of what peaceable firearm owners perceive to be their Second Amendment rights will have no effect on killers, serial or otherwise.