No Constitutional Right to Ownership, Ex-Justice Says in Speech : Powell Calls for Stricter Control on Handguns

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Times Staff Writer

There is no constitutional right to own handguns, as opposed to sporting rifles and shotguns, former Supreme Court Justice Lewis F. Powell Jr. told a Toronto meeting of the American Bar Assn. during a speech Sunday.

Powell--a text of whose remarks was released here--said society’s need to curtail the growing number of crimes committed with firearms is not hampered by the language of the Second Amendment to the U.S. Constitution, which provides: “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.”

While he conceded that the amendment has been the subject of debate, particularly with regard to private ownership of arms, Powell said: “It is not easy to understand why the Second Amendment, or the notion of liberty, should be viewed as creating a right to own and carry a weapon that contributes so directly to the shocking number of murders in our society.”


Focus on Capital Cases

Powell, whose speech focused largely on capital punishment issues, also called on Congress to “give thoughtful consideration” to passing laws that would speed up the federal review of capital cases that have been appealed from state courts. He said these delays have created a huge backlog of cases, which have become a major problem in California, and have “abused” the nation’s criminal justice system. If death penalties cannot be enforced, he suggested, it might be in the public interest to reconsider the authorizing legislation.

In his gun control comments, Powell cited FBI statistics indicating that more than 20,000 murders were recorded in the United States last year, and that almost 60% of them were committed with guns.

“During the Vietnam War, some 58,021 Americans were killed,” he said. “During that same period in the United States, approximately 122,000 Americans were murdered. Of those, over 70,000 were killed by firearms.”

In the United States, there is no federal law tightly restricting the sale and registration of handguns. The Supreme Court has not ruled directly on whether the Second Amendment guarantees the right to own handguns.

Powell noted, however, that private ownership of handguns is strictly controlled in other Western democracies, which have lower murder rates than the United States.

British Regulations

In Britain, for example, would-be gun owners are required to apply for a special license and convince public authorities that their possession of a gun does not pose a risk to public safety. The nation is contemplating even stricter regulations, Powell said, following an incident where a lone gunman killed 16 people.


The former justice linked gun control with the death penalty in a speech that reaffirmed his longstanding support for capital punishment. As the co-author of a key 1976 Supreme Court opinion that upheld a Georgia death penalty statute, Powell said such laws have failed as deterrents, in view of the large number of crimes committed with guns.

“It is not evident that murder has been deterred,” he said, suggesting that one reason for the much higher murder rate in the United States “almost certainly (could be) the availability of handguns.”

Powell, who was recently appointed by Chief Justice William H. Rehnquist to direct a U.S. Judicial Conference study of the capital punishment appeals process, also criticized “malfunctions” in the criminal justice system that have created a large backlog of capital cases and delayed many executions.

As of May 1, 1988, there were 2,048 convicted murderers awaiting execution in prisons across the nation, with the largest numbers in California, Florida and Texas, he said. Yet there have been only 98 executions since the Supreme Court upheld the validity of the Georgia death penalty law in 1976, Powell noted.

‘Dual Collateral’ Review

One reason for the jam is the system of “dual collateral” review, under which defendants can seek help from federal courts after they exhaust their appeals in state courts, he said. And the result of this system, which was created by Congress in 1867, “has been a burdensome increase in . . . litigation that surely Congress did not anticipate.”

Congestion of death penalty cases has also surfaced at the state level. In California, for example, the state Supreme Court has been struggling to reduce a huge backlog of capital cases, some of which go back many years. As a result, there are widespread concerns that it has been neglecting civil cases and delaying important decisions.


On the federal level, Powell said that courts had received 11,354 petitions for dual collateral review in the last year, adding that “most judges, federal and state, would agree that (these) remedies are abused . . . particularly in capital cases.”

Many of the death penalty appeals are strictly procedural, he said, noting that “only rarely is innocence of the crime an issue in collateral review. Not infrequently, a capital case will reach the Supreme Court two or three times over a period of years.”

If the death penalty laws cannot be enforced even where innocence is not an issue, Powell concluded, the nation might well reconsider “whether retention of a punishment that is not being enforced is in the public interest.”