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[1] "Urban Murders on the Rise," Newsweek, February 9, 1987, p. 30. The officer's formula does not consider the possibility that gun ownership might be a response and a deterrent to rising crime rates. For gun ownership as a response to crime rate increases, see B. Benson, "Private Sector Responses to Rising Crime," in Firearms and Violence: Issues of Public Policy, ed. Donald B. Kates (Cambridge, Mass.: Ballinger, 1984), pp. 329- 56.

[2] D. Lunde, Murder and Madness (San Francisco: San Francisco Book Co., 1976), p. 1.

[3] Donald B. Kates, Why Handqun Bans Can't Work (Bellevue, Wash.: Second Amendment Foundation, 1982), p. 23. One study of various Illinois counties found no relation between gun ownership and crime, except that female gun ownership appeared to rise in response to a rising crime rate. See David Bordua, "Firearms Ownership and Violent Crime: A Comparison of Illinois Counties," in The Social Ecoloqy of Crime (New York: Springer-Verlag, 1986).

[4] James Wright, Peter Rossi, and Kathleen Daly, Under the Gun: Weapons, Crime and Violence in America (Hawthorne, N.Y.: Aldine, 1983).

[5] James Wright and Peter Rossi, Armed and Considered Dangerous: A Survey of Felons and Their Firearms (New York: Aldine, 1986), pp. 141, 145, 151.

[6] Alan Krug, "The Relationship between Firearms Ownership and Crime: A Statistical Analysis," reprinted in Congressional Record, 99th Cong., 2d sess., January 30, 1968, p. 1496, n. 7; Gary Kleck, "Policy Lessons from Recent Gun Control Research," Journal of Law and Contemporary Problems 49 (Winter 1986): 35-47.

[7] Carol Ruth Silver and Donald B. Kates, "Self-Defense, Handgun Ownership, and the Independence of Women in a Violent, Sexist Society," in Restricting Handguns: The Liberal Skeptics Speak Out, ed. Donald B. Kates (Croton-on-Hudson, N.Y.: North River Press, 1979), p. 152.

[8] "Town to Celebrate Mandatory Arms," New York Times, April 11, 1987, p. 6.

[9]Gary Kleck and David Bordua, "The Factual Foundation for Certain Key Assumptions of Gun Control," Law and Policy Ouarterly 5 (1983): 271-98; Krug, p. 1496, n. 7.

[10]George Rengert and John Wasilchick, Suburban Burglary- A Time and a Place for Everything (Springfield, Ill.: Charles C. Thomas, 1985), p. 30; J. Conklin, Robbery and the Criminal Justice System (Philadelphia: Lippincott, 1972), p. 85.

[11] Wright, Rossi, and Daly, pp. 139-40.

[12] John Kaplan, "Controlling Firearms," Cleveland State Law Review 28 (1979), p. 8.

[13] Donald B. Kates, "Handgun Control: Prohibition Revisited," Inquiry, December 5, 1977, p. 20, n. 1.

[14] David Bordua, Alan Lizotte, and Gary Kleck, Patterns of Firearms Ownership, Use and Registration in Illinois, (Springfield, Ill.: Illinois Law Enforcement Commission, 1979), p. 253.

[15] Kates, Why Handqun Bans Can't Work, p. 43.

[16] David Hardy, "Critiquing the Case for Handgun Prohibition," in Restrictinq Handguns, pp. 87-88. Hardy's article was published in 1979, so it is fair to assume that the actual costs would be considerably higher than the figures quoted here. See also Raymond Kessler, "Enforcement Problems of Gun Control: A Victimless Crimes Analysis," Criminal Law Bulletin 16 (March/April 1980): 131-44.

[17] Wright, Rossi, and Daly, pp. 25-44.

[18] The armed crime ratio is based on an assumption that there are about 100,000 handgun criminals in the United States. About 300,000 handgun crimes are reported annually to the FBI. Since many robbers and burglars carry out several dozen crimes or more a year, it seems safe to divide the total of 300,000 by at least three, allotting three crimes per criminal.

The homicide ratio is based on an assumption of 10,000 handgun homicides annually (and no gun being used in more than one homicide). In 1984 there were 9,819 gun homicides in the United States, of which 7,277 were committed with a handgun. See Department of Commerce (Bureau of Census), Statistical Abstract of the United States 1986 (Washington: Government Printing Office 1985) p. 171.

[19] Wright and Rossi, pp. 189, 211.

[20] "Tribesmen in Pakistan Thrive," New York Times, November 2, 1977, p. 2; Wright, Rossi, and Daly, p. 321.

[21] Kaplan, p. 20.

[22] Bureau of Alcohol, Tobacco, and Firearms, Analysis of Operation CUE (Concentrated Urban Enforcement, interim report (Washington D.C.: February 15, 1977), pp. 133-34, cited in Paul Blackman and Richard Gardiner, Flaws in the Current and Proposed Uniform Crime Reporting Proqrams Regardinq Homicide and WeaPons Use in Violent Crime, paper presented at 38th Annual Meeting of the American Society of Criminology; Atlanta, October 29-November 1, 1986.

[23] Gerald Arenberg, Do the Police Support Gun Control? (Bellevue, Wash.: Second Amendment Foundation, n.d.), p. 10. Arenberg is executive director of the National Association of Chiefs of Police.

In the past several years, Handgun Control Inc. has attempted to create the impression that the police support gun control. It is true that some police organizations, such as the Police Foundation and the International Association of Chiefs of Police, often favor gun control. It is hardly surprising that some police lobbies support a narrow view of the Second Amendment, since police organizations often take a dim view of all constitutional rights, such as search and seizure protections or suspects' right to legal counsel.

The antigun police lobbies, however, can hardly claim the unanimous support of rank-and-file police. The International Association of Police Unions (AFL/CIO), for example, has testified before Congress against gun control legislation. The president of the American Federation of Police, Dennis Ray Martin, appears in print advertisements as a Second Amendment Foundation spokesman (e.g. Gun Week, April 22, 1988, p. 7). After Handgun Control Inc. placed an advertisement in Police magazine, the magazine received mail "unrivaled by any subject in the last two years," most of the writers "saying they didn't like the contents of the ad one bit." Police's editor composed an editorial condemning Handgun Control Inc., defending the NRA, and warning that "HCI is trying to erode" the Second Amendment. F. McKeen Thompson, "Readers Respond to HCI . . . And We Agree," Police (The Law Officer's Magazine), December 1987, p. 4.

[24] W. Allman, "Staying Alive in the 20th Century," Science 85 vol. 6, no. 8 (October 1985) 34, cited in Lance Stell, "Guns, Politics and Reason," Journal of American Culture 9 (Summer 1986): 71-85.

[25] "The Armed Citizen," American Hunter, February 1987, p. 6, citing Miami Herald, December 16. 1986.

[26] Quoted in Wright, Rossi, and Daly, pp. 129-30.

[27] R. P. Narlock, Criminal Homicide in California (Sacramento: California Department of Justice, Bureau of Criminal Statistics, 1967), p. 55, cited in Congressional Record, 90th Cong., 2d sess., January 30, 1968, p. 1497. Even the University of Pennsylvania's Marvin Wolfgang, who favors gun control, agrees (Marvin Wolfgang, Patterns in Criminal Homicide [Philadelphia: University of Pennsylvania Press, 1958], p. 83). The conclusion is strongly disputed by some pro-control scholars, such as Stanford University's Franklin Zimring.

[28]Kates, Why Handgun Bans Can't Work, pp. 25-26. See also Kleck, "Policy Lessons," pp. 40-41, stating that 70-75 percent of domestic homicide offenders have a previous arrest, and about half have a previous conviction.

[29] M. Wilt, G. Marie, J. Bannon, R. K. Breedlove, J. W. Kennish, D. M. Snadker, and R. K. Satwell, Domestic Violence and the Police: Studies in Detroit and Kansas City (Washington: Government Printing Office, 1977), quoted in Wright, Rossi, and Daly, p. 193, n. 3.

[30]Robert Sherrill, The Saturday Niqht Special (New York: Charterhouse, 1975), p. 29, citing "Gun Murder Profile," written by Senate Judiciary Committee's Juvenile Delinquency Subcommittee (Washington: Government Printing Office, n.d.).

[31] Kirkpatrick and Walt, "The High Cost of Gunshot and Stab Wounds," Journal of Surqical Research 14 (1973): 261-62.

[32] M. Daly and M. Wilson, Homicide (New York: Aldine, 1988), pp. 15, 200 (table p.1).

[33] Mark Green, Winning Back America (New York: Bantam, 1982), p. 222.

[34] David Hardy, "Product Liability and Weapons Manufacture," Wake Forest Law Review 20 (Fall 1984), p. 551; Federal Bureau of Investigation, Uniform Crime Report 1982, (Washington: Government Printing Office), p. 10; National Safety Council, Accident Facts 1986 Edition (Washington: Government Printing Office), p. 12. Total deaths from all firearms suicides are about 17,000 annually (Statistical Abstract of the United States 1985, p. 79)

[35] George Newton and Franklin Zimring, Firearms and Violence in American Life, report to the National Commission on the Causes and Prevention of Violence (Washington: Government Printing Office, 1970), ch. 6. See also Bruce Danto, "Firearms and Their Role in Suicide," Life-Threatening Behavior 1 (1971), p. 14 (Study of foreign and American suicide; "[D]ata shows that people will find a way to commit suicide regardless of the availability of firearms."); Herbert Hendin, Suicide in America (New York: W. W. Norton, 1982), pp. 144-46, citing Maurice Taylor and Jerry Wicks, "The Choice of Weapons: A Study in Suicide by Sex, Race, and Region," Suicide and Life-Threatening Behavior 10 (1980): 142-49; Paul Friedman, "Suicide Among the Police," in Essays in Self-Destruction, ed. E. Shneidman (New York: Science House, 1967), pp. 414-49.

[36] National Safety Council, Accident Facts 1986 Edition (Washington: Government Printing Office), p. 12. According to the Council, in 1983 there were 92,488 accidental deaths, and 1,695 accidental firearms deaths.

[37] National Safety Council, p. 12, reporting 1,695 deaths from firearms accidents, and 5,028 deaths from flame or fire accidents.

[38] National Safety Council, p. 12, reporting 1,695 deaths from firearms accidents, and 5,254 deaths from drowning or submersion accidents (not including drowning deaths relating to water transport).

[39] Mark Benenson, "A Controlled Look at Gun Controls," New York Law Forum 14 (Winter 1968): 741.

[40] Philip Cook, "The Role of Firearms in Violent Crime: An Interpretative Review of the Literature," in M. Wolfgang and N. Weiler, eds. Criminal Violence (Beverly Hills, Ca.: Sage, 1982), pp. 236, 269.

[41] Colin Greenwood, "Comparative Statistics," in Restricting Handquns, pp. 58-59.

[42] The trigger on a rifle or shotgun is much easier to pull than is the trigger on a revolver or the slide on an automatic pistol. Rifles or shotguns are also more prone to fire if accidentally dropped. Finally, handguns can be hidden from inquisitive children more easily than long guns can.

[43] Arthur T. Kellerman and Donald T. Reay, "Protection or Peril? An Analysis of Firearm-Related Deaths in the Home," New England Journal of Medicine 24 (June 1986): 1557-60; discussed, for example, in "Sons of Guns," The New Republic, March 2, 1987, p. 12.

[44] Donald B. Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment," Michigan Law Review 82 (1984), p. 269, n. 278, citing 1981 Federal Bureau of Investigation statistics. Sources other than the FBI put justifiable civilian killing of criminals at much higher levels. Although the Bureau estimates that civilians kill 300 criminals annually, Lawrence Sherman of the pro-control Police Foundation puts the figure at 600. Gary Kleck of Florida State University's School of Criminology estimates that 1,500-2,800 criminals are shot to death annually by citizens acting lawfully. The different statistical results may be due to the FBI's reliance exclusively on incidents reported to the police, and the fact that if a homicide is initially labelled a criminal homicide, but later determined to be self-defense, the homicide is still reported to the FBI as a criminal homicide. Gary Kleck, "Crime Control Through the Private Use of Armed Force," Social Problems 35 (February 1988) 4-7.

[45] Silver and Kates, pp. 154-55. The problems police encounter do not necessarily imply that the police are poorer shooters, or that they possess worse judgment. Official guidelines may force the police to intervene in situations that ordinary citizens could avoid, and may prevent an officer from drawing his weapon at the most opportune time.

[46] Kleck, "Crime Control," pp. 7-9.

[47] David J. Shields, "Two Judges Look at Gun Control," Chicago Bar Record (January/February 1976): 182. (The second judge referred to in the title was Marvin E. Aspen, who wrote a pro-control article.)

[48] J. B. Waite, "Public Policy and the Arrest of Felons, "Michigan Law Review 31 (April 1933): 764-66.

[49] A.C.L.U. estimate cited in Kates, "Handgun Control: Prohibition Revisited," p. 23.

[50] Steven Brill, Firearms Abuse: A Research and Policy Report (Washington: Police Foundation, 1977), p. 34.

[51] Malcolm Wilkey, "Why Suppress Valid Evidence?," Wall Street Journal, October 10, 1977. See also Mike Royko, "Magnum Force," San Francisco Examiner, May 14, 1982.

[52] Blackman, "Civil Liberties and Gun-Law Enforcement," p. 27.

[53] James Q. Wilson, "Again, The Gun Question," Washington Post, April 1, 1986; Police Foundation quoted in "Whether It Sharply Reduces Crime or Not, Is a Federal Ban Worth Trying?" New York Times, April 5, 1981, p. IV 3. See also, J. Fyfe, "Enforcement Workshop: Detective McFadden Goes Electronic," Criminal Law Bulletin 19 (March/April 1983): 162-67; N. Morris and G. Hawkins, The Honest Politician's Guide to Crime Control (Chicago: Univer- sity of Chicaqo Press, 1970).

[54] "Berkeley City Attorney Mulls Car Searches for Weapons," Associated Press, December 19, 1987 (available in NEXIS in Wires library).

[55] For New Jersey, see Jonathan Friendly, "Schools Ease Curbs on Drug and Weapons Checks," New York Times, June 17, 1986, p. B2. For Bridgeport, see Richard L. Madden, "Bridgeport Acts to Keep Guns Out of Schools," New York Times, March 20, 1987, p. B2 (locker searches for guns); for Detroit, see "In Detroit, Kids Kill Kids," Newsweek, May 11, 1987, p. 24. The Police Foundation proposal for general "perimeter control" metal detectors in schools is discussed in the National Rifle Association's letter of March 13, 1985, to Alfred Regnery, director of the Justice Department's Office of Juvenile Justice and Delinquency Prevention. The Baltimore city government considered a perimeter-control proposal in 1985.

[56] "5 Schools to Use Detectors for Guns," New York Times, May 5, 1988, B3; Mark Mooney, "Green Wants Weapon Searches in Schools," New York Post, March 25, 1988, p. 7.

[57] A. Mackay-Smith, "Should Schools Permit Searching Students for Weapons, Drugs?" Wall Street Journal, May 30, 1984. Mackay-Smith discussed policy in Detroit, where police searches looked for knives and Mace carried by girls to protect themselves from rapists.

[58] Blackman, "Civil Liberties and Gun Law Enforcement," p. 2.

[59] Wright, Rossi, and Daly, pp. 177-78.

[60] "Deadly Weapons," The Park Slope Paper, October 23, 1986.

[61] Kates, "Civil Liberties Obstacles," pp. 1-2.

[62] BATF abuses are chronicled in detail in David Hardy, The B.A.T.F.'s War on Civil Liberties (Bellevue, Wash.: Second Amendment Foundation, 1979).

[63] United States v. Biswell, 406 U.S. 311 (1972), discussed in Robert Batey, "Strict Construction of Firearms Offenses," Journal of Law and Contemporary Problems 49 (Winter 1986): 184-85.

[64] Batey, p. 163. In Florida, as everywhere else, it is illegal for a felon to possess a gun. One Florida felon discovered this when he wrested a pistol away from someone who was attacking him--and was convicted of illegal possession of a weapon (Thorpe v. State, 377 So.2d 221 [Fla. App., 1979]).

[65] United States v. Freed, 401 U.S. 601 (1974).

[66] Batey, p. 187.

[67] For Tennessee, see J. J. Baker, "Assault on semi-Avtos," American Rifleman, April 1987; 42. For Pennsylvania, United States v. Corcoran, Crim. no. 88-11 (W.D. Pa, April 6, 1988) (Ziegler, J.).

[68] Brill, pp. 134 ff. See also Lawrence Sherman, "Equity Against Truth: Value Choices in Deceptive Investigations," in Police Ethics, ed. Heffernand and Stroup (New York: John Jay Press, 1985), pp. 117-32 (Police Foundation head arguing that random selection of undercover investigation targets is fairer than probable cause selection).

[69]. Hardy, The B.A.T.F.'s War on Civil Liberties, pp. 11-41, 75-86.

[70] Ibid., pp. 53-55.

[71] Senate Committee on the Judiciary, Subcommittee on the Constitution, The Riqht to Keep and Bear Arms, 97th Congress, 2d sess., Senate Doc. 2807 (February 1982): 20-23.

[72] Aryeh Neier, Crime and Punishment: A Radical Solution (New York: Stein & Day, 1976), p. 76.

The Fourth and Fifth Amendments are not the only parts of the Bill of Rights threatened by antigun sentiment. In derogation of the Sixth Amendment's right to jury trial, a Pennsylvania federal district court judge recently tried to categorically bar National Rifle Association members from serving on a jury in a gun law prosecution. The Third Circuit Court of Appeals reversed the lower court (United States v. Salamone, 800 F.2d 1216 [3d Cir. 1986]). If not reversed, the lower court's ruling would have provided precedent for excluding all Sierra Club members from environmental cases, or NAACP members from discrimination suits.

The First Amendment is not safe either. Attempts to censorallegedly violent entertainment are legion. For example, the National Coalition on Television Violence wants the government to ban "Photon Warrior" because the program shows "adolescents fighting 'the forces of evil' with infra-red Photon guns." The coalition insists that "the toy industry's greed for money must not be allowed to trample the moral development of our next generation." Previous generations, which include veterans of foreign wars, might find shooting guns at evil forces like the Wehrmacht to be quite moral.

[73] Lee Kennett and James L. Anderson, The Gun in America: The Oriqins of a National Dilemma (New York: Westport Press, 1975), p. 50.

[74] Donald B. Kates, "Attitudes Toward Slavery in the New Republic," Journal of Negro History 53 (1968): 37.

[75] 60 U.S. (19 How.) 393, 417 (1857).

[76] Quoted in H. Hyman, The Radical Republicans and Reconstruction (New York: Bobbs-Merrill, 1967), p. 217. For the black codes, see Howard Zinn, A People's History of the United States (New York: Harper, 1980), p. 194.

[77] Quoted in David Hardy, "The Constitution as a Restraint on State and Federal Firearm Restrictions," in Restrictinq Handguns, p. 181.

[78] Watson v. Stone, 148 Fla. 516, 450 So.2d 700, 703 (1941) (Buford, J., concurring specially).

[79] John Salter, Social Justice Community Organizing and the Necessity for Protective Firearms, paper presented at the 18th annual meeting of the Popular Culture Association New Orleans March 26, 1988, p. 2.

[80] Salter, p. 3.

[81] Richard Maxwell Brown, "The American Vigilante Tradition," in The History of Violence in America, ed. Hugh Davis Graham and Ted Robert Gurr (New York: Praeger, 1969), pp. 203, 217 n. 150.

[82] Donald B. Kates, "Why a Civil Libertarian Opposes Gun Control," The Great Gun Control Debate (Bellevue, Wash.: Second Amendment Foundation, 1976), p. 4. For more, see J. Weiss, "A Reply to Advocates of Gun Control Laws," Journal of Urban Law 53 (1974): 577. At the time, Weiss was director of the Office of Economic Opportunity's national legal services office for the elderly poor.

[83] "Decade of Change in South Gives Negroes High Hopes," New York Times, August 16, 1970, pp. 1, 54. See also "Panel Told Mississippi Negroes Are Prepared for Self-Defense," New York Times, August 13, 1970, p. 20.

[84] John Salter and Donald B. Kates, "The Necessity of Access to Firearms by Dissenters and Minorities Whom the Government Is Unwilling or Unable to Protect," in Restricting Handguns, p. 187.

[85] Eleanor Blau, "Black Couple in Home Bombing Shot in Accident," New York Times, August 29, 1975, p. 31 (the "accident" was due to Spencer's resisting the officer's attempt to wrest the gun away); Nathaniel Shephard, "Policeman Attacked at Bombed Home," New York Times, January 5, 1975, p. 46; Jill Gerston, "Home of Blacks Struck by Bomb," New York Times, January 1, 1975, p. 21. Half a year later, the charges against Spencer were dropped. Murray Illson, "Harassed Rosedale Black Cleared of Gun Charges," New York Times, April 17, 1976, p. 25.

[86] Donald B. Kates, "A History of Handgun Prohibition," in Restrictinq Handquns, p. 19; Walter White, "The Sweet Trial," Crisis, 31 (January 1926): 125-29. See generally Irving Stone, Clarence Darrow for the Defense (New York: Doubleday, 1941), pp. 529-547.

[87] James Q. Wilson and Richard J. Hernstein, Crime and Human Nature (New York: Simon and Schuster, 1976), p. 463. Other statistics indicate a black is almost three times as likely to be robbed as a white. See Department of Justice (Bureau of Justice Statistics), Report to the Nation on Crime and Justice: The Data (Washington: Government Printing Office, October, 1983), p. 20.

[88] Benson, p. 342.

[89] "We're Mad as Hell and We're Not Going to Take It Anymore," Brooklyn Free Press, November 24, 1986, p. 35.

In one case, citizens called to report that a man outside their apartment building was screaming for help (robbers were stabbing him to death). The 911 operators, however, relayed only a message that the man was unconscious, and the police, thinking that the man was merely a drunk, took their time arriving on the scene. (They stopped to issue a reckless driving ticket.) One of the callers to 911 told a reporter, "They kept asking me stupid questions--what race the victim was, what race I was--can you imagine that? A man's outside hurt and they're asking me things like that." The patrol car took 20 minutes to arrive on the scene, and the ambulance took even longer. The man died. Dennis Turner, "Did 911 Foul-up Kill Gardens Man?" Park Slope Paper, April 2, 1988, p. 1.

[90] Frank Church, foreword to Restrictinq Handquns, p. xiii. Consider also an item in the (New York) Daily News, June 17, 1977, "Where Survival is a Crime." A crippled black middle-aged cab driver was preparing dinner in his Harlem tenement when a junkie broke in, began beating the cab driver on the head with a lead pipe, and demanded money. The cab driver having none, the junkie continued the assault until the cabbie reached for his Saturday night special and killed his attacker. The police arrested him for criminal possession of a weapon. Commented the writer, "Willie [the cab driver], of course had no gun permit. To get one in New York City you need to know somebody. Willie doesn't know anybody. All he knows is he had to defend himself. Our politicians don't give a damn about Willie, anymore than they give a damn about you. They ride in limos and carry guns."

[91] David Shields, p. 184.

[92] David Hardy and Kenneth Chotiner, "The Potential for Civil Liberties Violations in the Enforcement of Handgun Prohibition," in Restricting Handquns, p. 211.

[93] Clark v. Gabriel, civil action no. M-75-581 (D. Md., Dec. 13 1976), cited in Paul Blackman, "Carrying Handguns for Personal Protection," paper presented at the 37th annual meeting of the American Society of Criminology, San Diego, November 13-16, 1985, p. 6.

[94] Sherrill, p. 274.

[95] Quoted in Tricia Lootens and Alice Henry, "Interview: Nikki Craft, Activist and Outlaw," Off Our Backs: A Women's News-journal, vol. 15, no. 7 (July 1985): 3.

[96] Inscription on a Winchester rifle, quoted in Kennett and Anderson, p. 108.

[97] Philip J. Cook, "Gun Availability and Violent Crime," Crime& Justice 4 (1982), p. 61, n. 8, analyzing data in Joan McDermott, Rape Victimization in Twenty-Six American Cities (Washington: Government Printing Office, 1979), pp. 20-21. Rate of firearms use in rape is from Department of Justice, Report to the Nation on Crime and Justice, p. 14.

[98] A feature in the National Rifle Association magazine every month, called "The Armed Citizen," collects such stories from newspapers around the nation. Only incidents that have been verified as legitimate self-defense by the police, grand jury, or other official body are included. See also Silver and Kates, "Self-Defense, Handgun Ownership, and the Independence of Women in a Violent, Sexist Society," p. 139, citing numerous instances of women defending themselves from criminal attack.

[99] Stephen Halbrook, "The Second Amendment as a Phenomenon of Liberal Political Philosophy," in Firearms and Violence, pp. 363- 83.

[100] Quoted in ed. Morton Borden, The Antifederalist Papers, vol. 3 (East Lansing: Michigan State University Press), p. 386.

[101] Thomas Jefferson, "The Virginia Constitution, Third Draft," in The Papers of Thomas Jefferson Vol. I 1760-1776 (Princeton: Princeton University Press, 1950), p. 363. The limitation regarding private property was added in Jefferson's second draft.

[102] Stephen Halbrook, "What the Framers Intended," Journal of Law and Contemporary Problems 49 (Winter 1986): 155; John Adams, A Defence of the Constitutions of the Government of the United States of America against the Attack of M. Turgot (Philadelphia: 1788), p. 471.

[103] A Pennsylvanian (Coxe's pen name), "Remarks on the First Part of the Amendments to the Federal Constitution," The Federal Gazette and Pennsylvania Eveninq Post, June 18, 1789, p. 2, quoted in Stephen Halbrook, That Every Man Be Armed (Albuquerque: University of New Mexico Press, 1984), p. 76.

[104] Donald B. Kates, "Second Amendment," in Encyclopedia of the American Constitution, ed. Leonard Levy (New York: MacMillan, 1986), p. 1639. See also Robert Shalhope, "The Ideological Origins of the Second Amendment," Journal of American History 69 (December 1982): 599-614; Joyce Malcolm, "The Right of the People to Keep and Bear Arms: The Common Law Tradition," Hastinqs Constitutional Law Ouarterly 10 (Winter 1983): 285-314.

[105] Senate Committee on the Judiciary, The Right to Keep and Bear Arms, p. 6. The senators in part may have wished to avoid the implication that a large standing army was acceptable for nondefensive, overseas war.

[106] Quoted in Clinton Rossiter, The Political Thought of the American Revolution (New York: Harcourt, Brace and World, 1953), pp. 126-27.

[107] Quoted in Borden, p. 425.

[108] House Report No. 141, 73d Cong., 1st sess. (1933), pp. 2-5. Congress did so in order that the National Guard could be sent into overseas combat. The National Guard's weapons plainly cannot be the arms protected by the Second Amendment, since Guard weapons are owned by the federal government. (32 United States Code sect. 105[a] [1].)

The most thorough discussion on the political status of the National Guard is John G. Kester, "State Governors and the Federal National Guard," Harvard Journal of Law and Public Policy, 11 (Winter 1988): 177-212. As Kester explains, there are technically two distinct National Guards. State National Guards are created by state governments under their power to raise an organized militia.

[109] Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment," p. 218.

[110] Today, 42 state constitutions guarantee a right to firearms ownership.

[111] Halbrook, That Every Man Be Armed. See, e.g., Nunn v. State, 1 Ga. 243 (1846).

[112] Wright, Rossi, and Daly, p. 229, quoting survey conducted by Decision-Making Information Inc. Decision-Making Information is headed by conservative pollster Richard Wirthlin, and the particular survey was funded by the National Rifle Association. Despite the potential for bias, the survey is probably reliable, Wright and his coauthors concluded. Wright compared the Wirthlin data with data in a contemporaneous poll by Cambridge Research, Patrick Caddell's polling organization. The Caddell poll was sponsored by the Center for the Study and Prevention of Handgun Violence, whose then-director Pete Shields was also the head of Handgun Control Inc. Although the Wirthlin and Caddell polls both could have suffered from their sponsors' biases, "the actual empirical findings from the two surveys are remarkably similar. Results from comparable (even roughly comparable) items rarely differ between the two surveys by more than 10 percentage points.

. . . [O]n virtually all points where a direct comparison is possible, the evidence for each survey says essentially the same thing." Wright, Rossi, and Daly, p. 240.

[113] Peter Feller and Karl Gotting, "The Second Amendment: A Second Look," Northwestern University Law Review 61 (March/April 1967): 46-69. The authors did not address any of the evidence against the collective view discussed in the previous section. Surprisingly, the collective interpretation, lacking support in Supreme Court precedent, academic scholarship, or popular opinion, still abounds in many lower federal courts--generally in an offhand sentence or two in cases where arms smugglers invoke frivolous Second Amendment defenses.

[114] Senate Committee on the Judiciary, The Right to Keep and Bear Arms, pp. 11-12.

[115] Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875).

[116] 307 U.S. 174, 179.

[117] Ouilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill.), affd. 695 F.2d 261 (7th Cir., 1982), cert. denied 464 U.S. 863 (1983).

[118] Hopfman v. Connolly, 471 U.S. 459 (1985).

[119] 431 U.S. 494, 502 (1976). Justice Powell was quoting Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting). The "liberty" that Justice Powell was referring to was the liberty protected by the Fourteenth Amendment's clause "nor shall any State deprive any person of life, liberty, or property without due process of law." That clause has been construed, in the last century, to mean that states must not violate the individual freedoms guaranteed in the Bill of Rights. (The Bill of Rights had originally been held only to limit federal power.)

If the Second Amendment were only a limit on federal power over official state militias, it would have been preposterous for Justice Powell to list the right to bear arms as one of the rights protected by the Fourteenth Amendment's liberty clause; for that clause is explicitly a limit on state powers over individuals

[120] Ramsey Clark, Crime in America (New York: Simon & Schuster, 1970), p. 88.

[121] Alan Gottlieb, "Gun Ownership: A Constitutional Right," Northern Kentucky Law Review 10 (1982): 138.

[122] Governor O'Conor of Maryland delivered a radio address on March 10, 1942, at which he called for volunteers to defend the state: "[T]he volunteers, for the most part, will be expected to furnish their own weapons. For this reason, gunners (of whom there are sixty thousand licensed in Maryland), members of Rod and Gun Clubs, of Trap Shooting and similar organizations will be expected to constitute a part of this new military organization." State Papers and Addresses of Governor O'Conor, vol III, p. 618, quoted in Bob Dowlut, "The Right to Bear Arms: Does the Constitution or the Predilection of Judges Reign?" Oklahoma Law Review 36 (1985): 76-77, n. 52. See also Kates, Why Handgun Bans Can't Work, p. 74, citing Baker, "I Remember 'The Army' with Men from 16 to 79," Baltimore Sun Maqazine, November 16, 1975, p. 46.

[123] M. Schlegel, Virqinia On Guard--Civilian Defense and the State Militia in the Second World War (Richmond: Virginia State Library, 1949), pp. 45, 129, 131. According to Schlegel, the Virginia militia "leaned heavily on sportsmen," because they could provide their own weapons. Ibid., p. 129; quoted in Bob Dowlut, "State Constitutions and the Right to Keep and Bear Arms," Oklahoma City University Law Review 2 (1982): 198.

[124] "To Arms," Time, March 30, 1942, p. 1.

[125] Office of the Assistant Secretary of Defense, U.S. Home Defense Forces Study (March 1981), pp. 32, 34, 58-63, quoted in Dowlut, "State Constitutions," p. 197.

[126] Originally printed as Bert Levy, Guerilla Warfare (New York: Penguin Books, 1942), p. 55; reprinted as B. Levy, Guerilla Warfare (Panther Publications: 1964), p. 56; quoted in Dowlut, "State Constitutions," p. 198, n. 91.

[127] Julian Hatcher, Frank Jury, and Joe Weller, Firearms Investiqation Identification and Evidence (Harrisburg, Pa.: Stackpole, 1957), p. 59.

[128] Mao Zedong, Mao-Tse Tung on Guerilla Warfare, translated by S. Griffith (New York: Praeger, 1961), cited in Raymond Kessler, "Gun Control and Political Power," Law and Policy Ouarterly 5 (1983): 395.

[129] "One Year Later, Analysts Groping for Answers to Afghanistan," Kansas City Times, December 26, 1980, p. B-3, cited in Kessler, p. 395.

[130] Gottlieb, p. 139. Even the pro-control New York Times editorial board sometimes understands the efficacy of lightly armed guerrillas; see, for example, "Who Will Hold the Guns in Rhodesia?" New York Times, August 31, 1977, p. 18. Nor do the guerrillas have to drive the occupier out single-handedly. At the least, guerrillas can tie down the enemy army, weakening the enemy so that he is defeated elsewhere. Although the Nazis faced critical manpower shortages on the Eastern Front against the Soviet Union, a sixth of their forces were deployed fighting Tito and his Yugoslavian partisans.

[131]. For the Philippines, see Sherrill, p. 272. For Uganda, "Uganda Curbs Firearms," New York Times, December 22, 1969, p. 36. For Cuba, see Kessler, p. 382; Crum, "Gun Control Paved Castro's Way, Conservative Digest, April 1976, p. 33 (use of Batista's registration lists to facilitate confiscation); Williams, "The Rise of Castro: 'If only we hadn't given up our guns!"', Medina Countv Gazette, October 15, 1978, p. 5. For Bulgaria, see "Gun Control Laws in Foreign Countries," rev. ed. (Washington: Library of Congress, 1976), p. 33. (Upon coming to power Bulgarian communists immediately confiscated all firearms.)

[132] "Far North Has Militia of Eskimos," New York Times, April 1, 1986, p. A14.

[133] Quoted in David Hardy, "The Second Amendment as a Restraint on State and Federal Firearm Restrictions," in Restricting Handguns, pp. 184-85.

[134] From Aaron Burr to Huey Long, Joseph McCarthy, Douglas MacArthur, and Richard Nixon, American history has seen its share of potential dictators. So far, our other safeguards have succeeded. But in a Constitution and political structure designed to last several hundred years, one cannot always count on the press or Congress to save things at the last minute.

[135] Clark, p. 89.

[136] J. Howard Mathews, Firearms Identification (Springfield, Ill.: Charles C. Thomas, 1962), pp. 77, 80; Hatcher, Jury, and Weller, pp. 177, 180, 184.

[137] Wright, Rossi, and Daly, pp. 236, 241.

[138] B. Bruce-Briggs, "The Great American Gun War," The Public Interest, (Fall 1976): 59. Historians disagree about whether the Nazis used registration lists to carry out confiscations in Denmark and Norway. Gun confiscation in Jamaica was part of a severe government anticrime program, which drastically curtailed civil liberties; the program did little to stop crime in the long run but did imprison many innocent people, particularly from outcast groups such as the Rastafarians. Edward Diener and Rick Crandall, "An Evaluation of the Jamaican Anticrime Program," Journal of Applied Social Psychology (March 1979): 137-48; Dudley Allen, in Crime and Punishment in the Caribbean, eds. R. and G. Brana-Shute [Gainesville, Fl.: Center for Latin American Studies, 1980]: 29-57 [Allen was formerly the Jamaican Commissioner of Corrections]; Kates, Why Handquns Bans Can't Work, p. 16.

[139] "Wilson's Gun Proposal," Washinqton Star-News, February 15, 1975, p. A 12; Lawrence Francis, "Washington Report," Guns & Ammo, December 1976, p. 86.

[140] Blackman, "Civil Liberties and Gun-Law Enforcement," p. 14.

[141] Lamont, DBA Basic Pamphlets v. Postmaster General, 381 U.S. 301 (1965). The U.S. Post Office intercepted "foreign Communist propaganda" before delivery, and required addressees to sign a form before receiving the items. The Court's narrow holding was based on the principle that addressees should not have to go to the trouble of filling out a form to receive particular items of politically oriented mail. Since the Post Office had stopped maintaining lists of propaganda recipients before the case was heard, the Court did not specifically rule on the list-keeping practices. One may infer that the Post Office threw away its lists because it expected the Court would find them unconstitutional.

[142] Wright, Rossi, and Daly, pp. 223-35.

[143] Donald B. Kates, "On Reducing Violence or Liberty," Civil Liberties Review (August/September, 1976): 56.

[144] Slatky v. Murphy, New York Law Journal, October 14, 1971, p. 10.

[145] "Permit 29,000 to Pack Guns," (New York) Daily News, June 22, 1981; Susan Hall, "Nice People Who Carry Guns," New York, December 12, 1977; Kates and Silver, p. 153.

[146] William Bastone, "Born to Gun: 65 Big Shots With Licenses to Carry," Villaqe Voice, September 29, 1987, p. 11.

[147] Pete Shields, Guns Don't Die--People Do (New York: Arbor House, 1981), p. 83.

[148] Statement of Robert F. Mackinnon, on behalf of the Coalition of New Jersey Sportsmen, before the House Committee on the Judiciary, on Legislation to Modify the 1968 Gun Control Act, part 2, serial no. 131, 99th Congress, 1st and 2d sess., Feb. 27,

1986 (Washington: Government Printing Office, 1987), p. 1418.

[149] Blackman, "Carrying Handguns," p. 8. The Florida state legislature recently enacted a statewide gun law, effective November 1987, which supplanted all local fees with a $125 state fee.

[150] Motley v. Kellogg, 409 N.E.2d 1207 (Ind. App. 1980).

[151] For some examples of the New York City Police Department's flagrant abuse of the statutory licensing procedure, see Shapiro v. Cawley, 46 A.D.2d 633, 634, 360 N.Y.S.2d 7, 8 (1st Dept. 1974) (ordering N.Y.C. Police Department to abandon illegal policy of requiring applicants for on-premises pistol license to demonstrate unique "need"); Turner v. Codd, 85 Misc. 2d 483, 484, 378 N.Y.S.2d 888, 889 (Special Term Part 1, N.Y. County, 1975) (ordering N.Y.C. Police Department to obey Shapiro decision); Echtman v. Codd, no. 4062-76 (N.Y. County) (class action lawsuit that finally forced Police Department to obey Shapiro decision).

Also: Bomer v. Murphy, no. 14606-71 (N.Y. County) (to compel Department to issue blank application forms for target shooting licenses); Klapper v. Codd, 78 Misc.2d 377, 356 N.Y.S.2d 431 (Sup. Ct., Spec. Term, N.Y. Cty.) (overturning refusal to issue license because applicant had changed jobs several times); Castelli v. Cawley, New York Law Journal, March 19, 1974, p.2, col. 2 (Applicant suffered from post-nasal drip, and repeatedly cleared his throat during interview. His interviewer "diagnosed" a "nervous condition" and rejected the application. An appeals court overturned the decision, noting that the applicant's employment as a diamond cutter indicated "steady nerves.")

[152] Wright and Rossi, p. 185.

[153] The Attorney General's 1981 Task Force on Violent Crime also offered a waiting period proposal. Recommendation 18 of Report of the Attorney General's Task Force on Violent Crime (Washington: Government Printing Office, August 17, 1981).

[154] Report on the Federal Firearms Owners Protection Act, S. Rep. no. 3476, 97th Cong., 2d sess. (1982), pp. 51-52; Murray, "Handguns, Gun Control Laws and Firearm Violence," Social Problems 23 (October 1975): 81-93. Statistical studies notwithstanding, the Palm Beach, Florida, police credit a 1984 waiting period law with causing a drop in homicides the next year (Congressional Record, February 4, 1987 [Sen. Howard Metzenbaum]).

[155] David Hardy, "Legal Restrictions on Firearms Ownership as an Answer to Violent Crime: What Was the Question?" Hamline Law Review 6 (July 1983): 404.

[156] Isabel Wilkerson, "Urban Homicide Rates in U.S. Up Sharply in 1986," New York Times, January 15, 1987, p. A14.

[157] Wright, Rossi, and Daly, pp. 290-94, 298, 308.

[158] Kenneth Carlson, "Mandatory Sentencing: The Experience of Two States," Department of Justice, National Institute of Justice policy brief (Washington: Abt Associates, May 1982), p. 15. The document analyzes of the Massachusetts gun law and New York drug laws.

[159] "State's Gun Law: Impact and Intent Uncertain," New York Times, April 11, 1982, p. 1.

[160] "Judge Hears Conscience, Not 'Gun Law' Sentence," American Bar Association Journal 67 (November 1981): 1433.

[161] Hardy, "Legal Restrictions on Firearms Ownership as an Answer to Violent Crime," p. 407.

[162] Commonwealth v. Lindsey, (Mass. Supreme Judicial Court, March 5, 1986) (available in LEXIS library, Massachusetts file). Wrote the court, "The threat of physical harm was founded on an earlier assault by Michel with a knife and became a real and direct matter once again when Michel attacked the defendant with a knife at the MBTA station. . . .[D]efendant is a hardworking, family man, without a criminal record, who was respected by his fellow employees (Michel excepted). Michel, on the other hand, appears to have lacked the same redeeming qualities. He was a convicted felon with serious charges pending against him. . It is possible that defendant is alive today only because he carried the gun that day for protection. Before the days of a one-year mandatory sentence, the special circumstances involving the accused could be reflected reasonably in the sentencing or dispositional aspects of the proceeding. That option is no longer available in judicial branch of government in a case of this sort." Eventually, the defendant was pardoned by the Governor.

[163] Brief for Civil Liberties Union of Massachusetts as amicus curiae, Commonwealth v. Jackson, pp. 22-26, cited in James Beha, "And Nobody Can Get You Out," Boston University Law Review 57 (1977): 110, n. 55. The Massachusetts legislature's black caucus had also opposed the bill, because of concern about discriminatory licensing and arrests. Beha, p. 108, n. 45.

[164] Department of Justice, "The Severity of Crime," Bureau of Justice Statistics Bulletin (January 1984): 4.

[165] Wright, Rossi, and Daly, pp. 234-35. Public opinion on this issue has changed rather strongly since the late 1950s, when the Gallup Poll found a majority in favor of a handgun ban.

[166] Wright, Rossi, and Daly, pp. 57-58, citing survey conducted by Decision-Making Information Inc.; Finn Aagard, "Handgun Hunting Today," American Hunter, February 1987, p. 32 ("I doubt if any branch of the shooting sports has grown more phenomenally over the last decade than hunting with a handgun.")

[167] Kleck, "Crime Control," pp. 2-4.

[168] Gary Kleck, "Handgun-Only Control," in Firearms and Violence, p. 193.

[169] David Hardy and Donald B. Kates, "Handgun Availability and the Social Harm of Robbery" in Restrictinq Handquns, p. 127. M-1 information is from the California attorney general's 1965 appearance before the Senate Judiciary Committee's Subcommittee on Juvenile Delinquency, hearings On Amendments of Federal Firearms Act 1965, quoted in Sherrill, p. 63.

[170] Wright and Rossi, p. 220.

[171] Benenson, "A Controlled Look at Gun Controls," p. 720; John Kaplan, "The Wisdom of Gun Prohibition," Annals of the American Academy of Political and Social Sciences 455 (1981): 17.

[172] Pete Shields, the chairman of Handgun Control, writes, "Of the accidental deaths, again it is safe to assume that over 50% were by handguns." (Pete Shields, p. 28.) As noted above, handgun accidents comprise 300 of the 1,700 accidental gun fatalities yearly.

[173] Affidavit of professor of criminology Gary Kleck in amicus curiae memorandum of law by Congress on Racial Equality and Second Amendment Foundation in Kelly v. R.G. Industries, at 20-23 (Md.Ct.App. 1983)

[174] Wright, Rossi, and Daly, pp. 234-35.

[175] Wright, Rossi, and Daly, p. 17.

[176] Wright and Rossi, pp. 167, 233. (As noted above, the survey was part of a National Institute of Justice project.)

[177] Pete Shields, p. 46.

[178] Wright, Rossi, and Daly, p. 58.

[179] Kates, "Toward a History of Handgun Prohibition in the United States," p. 14.

[180] Delahanty v. Hinckley (D.D.C. July 1986)(Penn, J.). Recently, the federal appeals court in Washington certified this case to the District of Columbia Court of Appeals, to have the case decided under Washington, D.C.'s common law. Slip op. no. 87-7055 (April 29, 1988) (Mikva, J.).

[181] Wright and Rossi, p. 238.

[182] The son of the chairman of Handgun Control was slain by San Francisco's "Zebra killer," an insane black man who murdered whites for no reason at all (Pete Shields, p. 12). Had the man been armed with a sawed-off shotgun, he still could have con-cealed it inside his jacket. Any psychopath capable of carrying out so many slayings and evading detection for so long would probably know where to buy a stolen shotgun. Even an effective prohibition on all guns would not stop such maniacs; the man committed his first homicide with a machete (ibid., p. 37).

The founder of Handgun Control was moved to action after he was robbed with what he was told was a gun underneath a robber's jacket. Ibid., p. 22. Again, banning handguns would not eliminate the type of problem that led him into antigun lobby-ing; would robberies be any less terrifying at the point of a sawed-off shotgun or a knife?

[183] Clyde Barrow, of Bonnie and Clyde fame, could "quick draw" his shotgun from a special holster in his pants. Kennett and Anderson, p. 203.



[184] New York Times, May 23, 1913, p. 9; Kennett and Anderson, p. 185.


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