The Second Amendment

Floor Speech

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Mr. RASKIN. Mr. Speaker, I wanted to bring the good news to Congress about where we are on the gun violence debate because I know there have been a lot of accusations flying back and forth. I want us to look for the common ground. I want to bring the good news today.

The good news is that we actually have an overwhelming policy consensus in America as to what we need to do about gun violence, and we have an overwhelming--indeed, a unanimous--judicial consensus about what is constitutional to do.

I want us to focus on that, and then that will allow us to isolate what the problem is in dislodging the paralysis in Washington today. But let's start with the overwhelming policy consensus that has emerged in the wake of a sequence of massacres, and it is enough to invoke their names to remind people of the bloodshed that is engulfing our society in Parkland, Florida; in San Bernardino, California; in Las Vegas; in Texas; at Virginia Tech; at Sandy Hook in Newtown, Connecticut; and so on. In the wake of all these massacres, America is demanding action.

But here is the good news. Everybody has agreed. As close to a unanimous agreement as you are ever going to find in the United States of America has emerged: 97 percent of the American people favor a universal criminal and mental background check on all firearm purchases in America.

That is the overwhelming majority of Democrats, the overwhelming majority of Republicans, the overwhelming majority of Independents, the overwhelming majority of gun owners, and the overwhelming majority of non-gun owners. Almost everyone in America, 97 out of 100 people--and if you take the margin of error, it might be 99 out of 100 people-- agree that firearms should not be sold without a background check so that criminals, gang members, and terrorists can't go to a gun show and acquire a weapon of war and then use it in our schools, in our movie theaters, in our churches, and in the public square.

So we have got virtually unanimous public consensus on that. Every public opinion poll is showing the same thing, except the numbers continue to go up.

Now, some people will say in response to this: Aha, but the Second Amendment won't allow us to do anything.

There are a lot of people in this debate who are now wrapping themselves in the flag of the Second Amendment and saying that the Second Amendment prohibits us from implementing this overwhelming public mandate for a universal criminal and mental background check; but they are wrong, and we know that they are wrong.

The Supreme Court, in 2008, in the District of Columbia v. Heller case, interpreted the Second Amendment definitively for us, at least sufficiently for us to understand that a background check is perfectly constitutional.

In the Heller case, the Supreme Court first divided over the question of whether or not the Second Amendment confers a collective militia- based right or an individual right. Four Justices said that the text of the Second Amendment means that you only have a right to a firearm in connection with militia service, which today we would call National Guard service.

You will recall the language of the Second Amendment is: ``A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.''

Four Justices suggested that your right to bear and keep an arm is tethered to service in the militia. But that view lost. Five Justices took the individual rights view that the so-called prefatory clause just announces the purpose of the Second Amendment, but it defines an individual right.

But nine Justices, the entire Supreme Court, agreed that, whether the right was collective or individual in nature, that right is subject to reasonable regulation by Congress and by the States. Of course, that has got to be right. Every right, all fundamental rights, are subject to reasonable regulation by the government.

Think about the First Amendment, which guarantees the right of free speech. It gives you the right to go out and march in front of the White House, but does it give you the right to march in front of the White House at 2 o'clock in the morning with bullhorns and to wake up the President's family? Of course not.

The First Amendment is conditioned on reasonable time, place, and manner restrictions the Supreme Court held in a case called Ward v. Rock Against Racism, where the Court said it was perfectly fine for New York City to turn the sound down when they have a concert in Central Park because there are other social activities taking place.

The Second Amendment is the exact same way, said the Supreme Court. You have the right to possess a handgun for self-defense. You have a right to possess a rifle for purposes of hunting and recreation. You don't have a right to a machine gun. There is no constitutional right to carry a sawed-off shotgun.

There is no constitutional right to carry weapons of war in public places. There is no right to carry a firearm in public buildings, said Justice Scalia, into public schools and into the U.S. Congress. There is no constitutional right for that, and there is certainly no constitutional right for anybody to access a weapon without passing through the regulatory screen that the government sets up.

That is the common sense of the American people, too. Thomas Paine, who wrote the pamphlet ``Common Sense,'' said that common sense is essential in a democracy because it is the sense that we have in common. The sense that we have in common today about guns that we need a universal criminal and mental background check is something that is nearly unanimously held, and it is something that clearly passes constitutional muster according to the Supreme Court's decision in the District of Columbia v. Heller in 2008.

So we have got a public policy consensus, a popular consensus, and a constitutional juridical consensus about the right thing to do and the constitutional thing to do. Yet what do we have here in Congress? We have got paralysis. We have got absolute inaction in defiance of the public will.

Why? Nobody really says. The GOP leaders, Mr. Speaker, simply refuse to bring a universal background check bill to the floor of Congress. They won't even permit a hearing in the House Judiciary Committee about it, despite the fact that that is what everybody wants and that is what the times demand right now.

Why? Have we become a failed state?

Are we unable to govern?

Does democracy not work anymore?

Is that what we are saying?

I hope not. I hope we have not become a failed State. I hope we are able to address the public safety needs of the people. I hope we are able to address the democratic will of the American public. I hope we are able to effectuate the majority will of Congress, because we know that, forced to a vote, a majority of Congress would support this.

So what is going on?

Well, James Madison, in Federalist Paper No. 10, predicted it well when he talked about the problem of faction. He talked about a minority of people animated by some passion or some common interest that goes against the rights of the rest of the public and against the common good, against the general interest of the people.

But our institutions have got to be set up to legislate over the demands of one small faction, the 2 or 3 percent of the people who don't want to see a universal background check because they spread the mythology that any gun safety regulation will lead to a confiscation of people's firearms, which is utterly absurd and ridiculous and demonstrably false.

Yet, that tiny group of people, that tiny faction, has been allowed in this Congress to control the public agenda and to dictate to everybody else, when we have tens of thousands, and soon, on Saturday, March 24th, hundreds of thousands of young people marching for the most elementary rights of life in a civil society.

And what is that?

The right to security and safety--the whole reason we have got a social contract. If you read your Thomas Hobbes, you read your John Locke, you read your Jean-Jacques Rousseau, the whole basis of civil society is that we will be safer entering into the social contract than we would be if we stuck it out in the state of nature, which John Locke and Thomas Hobbes described as a war of all against all, where life is nasty, poor, brutish, and short.

So we are asking for the leadership in Congress simply to act. Let us bring this bill to the floor of Congress, and stop with the distractions and the deflections and the diversions. They can bring up 50 other things. The people of America know, with our common sense, that we need a universal criminal and mental background check for everyone.

Mr. Speaker, I would love it if someone could explain why that legislation is not allowed to see the light of day on the floor of the House with not even a hearing or a vote in the House Judiciary Committee. This is a public emergency. The young people of America, beginning with the heroic kids, the survivors in Parkland, Florida, will not let us off the hook.

One of them was asked the question: Well, why suddenly have you unleashed this revolution across the country against one minor faction control of all of Congress? Why did it happen now, but it didn't happen back at Sandy Hook?

One of the young leaders said: ``At Sandy Hook, they assassinated first graders with an AR-15 at pointblank range; but in Parkland, Florida, they assassinated high school students. We are more educated and we have a voice and we know how social media works.''

There is no putting the genie back in the bottle. There is going to be no avoiding this question. At the very least, we must have a vote on a universal criminal and mental background check for all firearm purchases in the United States of America. The people want it. The Supreme Court has made it clear that such legislation is constitutional.

In Maryland, in 2013, we passed not only fingerprint licensing and universal background checks, we passed a ban on military-style assault weapons, a ban on high-capacity magazines. These are bans that are, again, favored by more than two-thirds of the American people.

It was challenged in Federal district court in Maryland and it was upheld against Second Amendment attack. They appealed to the Fourth Circuit of Appeals. It was upheld against Second Amendment attack. They went to the Supreme Court, and the Supreme Court let it stand.

So within the Fourth Circuit Court of Appeals, within our circuit, we have already got all of the legislation upheld as constitutional, which some people are saying you can't do because of the Second Amendment.

Stop hiding behind the Second Amendment. Stop hiding behind it. The Second Amendment is just like every other amendment. You can pass a reasonable regulation, as long as you don't destroy the underlying right itself.

Nobody is trying to take away anyone's handgun for self-defense. No one is trying to take away anyone's rifle for hunting and recreational purposes. But you don't need an AR-15 in order to go hunting. Any real hunter will tell you.

You certainly don't need to allow the sale of firearms in the United States of America to criminals and terrorists and gang members in order to support the Second Amendment. That is ludicrous. It is absurd. We should stop spreading that propaganda. I think it is just so important that we get this message out to the American public.

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