March 8, 2013
Dear soloman02:
Thank you for contacting me regarding recent gun control proposals and other efforts to reduce violence. I appreciate hearing from you.
Like all Americans, I was shocked and deeply saddened by the murders of innocent children and educators in Newtown, Connecticut. As the mother of two young children, it is difficult to imagine the pain felt by the parents of the children who were murdered. My thoughts and prayers remain with the victims, their families, and the Newtown community.
As President Obama said, "no single law or set of laws will eliminate evil." In the wake of this horrific tragedy, I welcome a renewed and thoughtful discussion in Washington and across the country about how we can best prevent senseless acts of violence.
Moving forward, we need to be careful to ensure that we do not infringe on the constitutional rights of law-abiding Americans. As a former murder prosecutor, I believe our focus should be on enforcing current federal laws to ensure that criminals and those who are "adjudicated as a mental defective" by reason of being a danger to himself or others (as defined by the Bureau of Alcohol, Tobacco, Firearms and Explosives at 27 C.F.R. Section 478.11 and prohibited from receiving or possessing a firearm under 18 U.S.C. Section 922(g)(4)) do not possess firearms. We also should engage in an honest discussion about improving our mental health system, while working with law enforcement and local community leaders on school safety measures. These are areas where I believe we can achieve bipartisan consensus.
On January 16, 2013, President Obama issued a Presidential Memorandum outlining proposals to reduce gun violence. These proposals include a so-called "assault weapons" ban, universal background checks, prohibiting high-capacity magazines, increasing access to mental health services, and school safety measures. Subsequently, on January 24, 2013, Senator Dianne Feinstein (D-CA) introduced S. 150, a bill that would ban 157 firearm makes and models and also limit magazine capacities to 10 or fewer rounds. Other proposals may be offered, and I will certainly review each carefully.
First, any discussion about reducing violence must begin with our Constitution. Our Bill of Rights clearly protects the right to self-defense. The Second Amendment to the Constitution states: "... the right of the people to keep and bear Arms, shall not be infringed." In 2008, the United States Supreme Court held in District of Columbia v. Heller (554 U.S. 570) that the Second Amendment does, in fact, confer an individual right to keep and bear arms for self-defense.
As well as respecting constitutional limits, I believe that our laws should protect the rights of law-abiding citizens to keep and bear arms. I appreciate that many New Hampshire citizens possess firearms for recreation, hunting, and self-defense. In fact, my husband, who is an Iraq war veteran, often participates in shooting competitions at our local fish and game club. Based on my experience as a prosecutor, I do not believe we will stop criminals or mentally ill individuals intent on illegally obtaining and misusing firearms by restricting the rights of law-abiding citizens.
With those principles as a guide, I do not support a so-called "assault weapons" ban or arbitrary limits on magazine capacities as contained in Senator Feinstein's bill. This legislation is very broad, banning many common models of semi-automatic firearms lawfully owned by citizens, including three very popular models of rifles. While the legislation would grandfather current firearm owners, allowing them to keep the newly banned guns, it would also take the unusual and confiscatory step of requiring the forfeiture of those firearms to the government upon the owner's death.
It is important to understand that there was an "assault weapons" ban in effect from 1994 to 2004. A report submitted in 2004 to the United States Department of Justice (DOJ) and the National Institute of Justice evaluated the effectiveness of the ban. That study, conducted by Christopher S. Koper, Daniel J. Woods, and Jeffrey A. Roth of the Jerry Lee Center of Criminology at the University of Pennsylvania, found no statistically significant evidence that either the "assault weapons" ban or the ban on magazines holding more than 10 rounds had reduced gun murders.
I do believe that there are improvements we should make to our existing background check system to stop criminals and others prohibited from possessing firearms under federal law from obtaining them. For example, all federally licensed firearms dealers are required to contact law enforcement to conduct a National Instant Criminal Background Check System (NICS) search regardless of where they sell the firearms. However, there is a deficiency in what records are being entered into NICS. Although it is illegal to sell or transfer a firearm to an individual who is adjudicated as mentally incompetent, many states, including New Hampshire, are not entering all relevant records into NICS. It also appears that in many states, including New Hampshire, once an individual is in the system as mentally incompetent, there is no way to appropriately petition to be removed from this list if he or she has received treatment and is deemed to have recovered.
Following the Virginia Tech tragedy, the NICS Improvement Amendments Act of 2007 (NIAA; Public Law 110-180) was enacted to, among other things, encourage states to make more records available for use during NICS background checks. However, according to a July 2012 Government Accountability Office report, only 12 states dramatically increased the number of mental health records available for use during NICS background checks, and most states made very little progress in entering these records. As of October 2011, there were four states that had not submitted any mental health records at all, and 17 states that had submitted fewer than 10. New Hampshire had only submitted two records. Some states have not entered these records because of concerns that privacy laws, such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA; Public Law 104-191), prevent them from providing mental health records to NICS.
We must eliminate legal barriers to ensure that records of individuals who are adjudicated as mentally incompetent get included in the NICS index. We also need to more effectively enforce current laws. Astonishingly, according to the U.S. Attorney for the Western District of Virginia, of an estimated 80,000 people who failed background checks under NICS in fiscal year 2012 (e.g., fugitives, domestic abusers, felons, and mentally ill individuals), the DOJ prosecuted only 44 for attempting to purchase a firearm-essentially sending a signal that individuals who are prohibited by law from owning a gun won't be punished for breaking the law by trying to obtain one.
While I believe there is much we can do to improve our background check system and enforce existing laws, I do have concerns with "universal" background check proposals that retain the records of law-abiding citizens in a way that could be used to create a firearms registry that would infringe on privacy rights. I also believe we should respect the current rights of law-abiding citizens to transfer their firearms to family members.
Finally, any discussion of how we stem violence must address the deficiencies in our mental health system. We should re-examine our laws to ensure they are effective. Having worked with law enforcement, I recognize that there are not enough treatment options for mentally ill individuals. A 2006 DOJ study found that 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of local jail inmates suffer from mental health challenges. There appears to be a bipartisan consensus that there is much more we can do to improve our mental health system.
That is why I have joined Senator Al Franken (D-MN) in introducing the Justice and Mental Health Collaboration Act, which would expand mental health services available to inmates. I also worked with Senators Mark Begich (D-AK) and Richard Blumenthal (D-CT) to introduce the Mental Health First Aid Act, which is designed to expand mental health first aid training in communities across the nation.
In the weeks ahead, I am willing to work with any of my colleagues who are serious about finding solutions that will prevent mass shootings without infringing on Americans' Second Amendment rights. With a firm commitment to our Constitution, I will carefully review and evaluate all proposals to reduce violence. While there are no easy answers to address mass gun violence in our society, there are steps we can take right now to ensure our background check system is fully enforced while working to improve early intervention with mentally ill individuals.
Again, thank you for taking the time to contact me. As your Senator, it is important to hear from you regarding the current issues affecting New Hampshire and our nation. Please do not hesitate to be in touch again if I can be of further assistance.
Sincerely,
Signature
Kelly A. Ayotte
U. S. Senator
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