[Rhodes22-list] Circumcision With A .38 Cal.

[Brad Haslett]

Leland,

The whole gun control debate is a "fantasy versus reality" issue.
Everywhere that concealed carry has been permitted, gun crimes have gone
down.  The latest study was in Michigan.  But, the gun control nuts don't
let facts get in the way of their argument.  Here's some "light" reading on
the legal issues just published.

Brad

------------------

THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 389
LEGAL STUDIES RESEARCH PAPER NO. 389
PUBLIC SAFETY AND
THE RIGHT TO BEAR ARMS
ROBERT J. COTTROL
The Bill of Rights in Modern America,
David J. Bodenhamer and James W. Ely, Jr., ed.,
Boomington, Indiana University Press, 2008, forthcoming
This paper can be downloaded free of charge from the
Social Science Research Network at:
http://ssrn.com/abstract=1088728
1
Pre-Publication Final
Public Safety and
the Right to Bear Arms
Robert J. Cottrol and Raymond T. Diamond
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.
(Second Amendment, U.S. Constitution)
On Tuesday November 20th, 2007 the United States Supreme Court granted
certiorari
in a case involving the District of Columbia's ban on handguns. The statute
had been
successfully challenged in the United States Court of Appeals for the
District of Columbia
Circuit on the grounds that it violated the Second Amendment's guarantee of
"the right of the
people to keep and bear arms." With its decision to grant certiorari, the
Supreme Court entered a
constitutional controversy from which it had been largely absent for nearly
seventy years, the
meaning and scope of the Second Amendment. That controversy, the debate over
the Second
Amendment has occupied a somewhat curious place in American constitutional
discourse. It is
the subject of a vast polemical literature in the popular press, part of the
often strident debate
over gun control. Where once the amendment suffered from an unfortunate
scholarly neglect, it
has over the last two decades, become an arena of lively and sometimes
acrimonious debate
among historians, legal scholars and political scientists. The Court's
decision is likely to provide
a definitive legal ruling on the amendment although it is unlikely to end
the controversy over the
2
amendment's original meaning and how it should be applied in modern
America.1
.
Briefly stated, the debate over the Second Amendment is part of the larger
debate over gun
control, and as such it focuses on whether or not the framers intended to
limit the ability of
government to prohibit or severely restrict private ownership of firearms.
It is a debate fueled, in
part, by the fear generated by this nation's high crime rate, including an
average of 10,000
homicides committed annually with firearms. The debate is also fueled by the
existence of broad
public support for firearms ownership for self-defense and the fact that
roughly half the homes in
the country have firearms. ..
Two interpretations, broadly speaking, of the amendment have emerged from
the debate. Some
students of the Second Amendment stress the amendment's militia clause
arguing either that the
constitutional provision was only meant to insure that state militias would
be maintained against
potential federal encroachment or that the individual's right to keep and
bear arms was meant to be
protected only within the context of a highly regulated, regularly drilling
state militia. Adherents
of both variants of what might be called the collective rights view argue
that the Second Amendment
poses little in the way of an impediment to strict, even prohibitory gun
control given the fact that
most Americans at the start of the twenty-first century are not regularly
engaged in the business of
militia training.
Supporters of the individual rights view stress the amendment's second
clause, arguing that
the framers intended a militia of the whole, or at least a militia
consisting of the entire ablebodied
white-male population. For them this militia of the whole was expected to
perform its
duties with privately owned weapons. Advocates of this view also urge that
the militia clause
3
should be read as an amplifying rather than a qualifying clause; that is,
while maintaining a
"well-regulated militia" was a major reason for including the Second
Amendment in the Bill of
Rights, it should not be viewed as a sole or limiting reason. The framers
also had other reasons
for proposing the amendment, including a right to individual self-defense.
The right to keep and bear arms became controversial in the late twentieth
century, yet for
much of American history constitutional commentators extolled the right as a
fundamental
cornerstone of liberty that could not be denied free people. This widespread
agreement occurred in
part because of the frontier conditions that existed from the colonial
period through much of the
nineteenth century. The role of privately owned arms in achieving American
independence,
particularly in the early years of the Revolution, strengthened this
consensus. The often violent and
lawless nature of American society also contributed to the widespread view
that the right to possess
arms for self-defense was fundamental.
But the Second Amendment and the right to keep and bear arms cannot be
understood solely
through an examination of American history. Like other sections of the Bill
of Rights, the Second
Amendment was an attempt to secure what was believed to be a previously
existing right. The
framers of the Bill of Rights did not believe they were creating new rights.
Instead, they were
attempting to prevent the newly formed
federal government from encroaching on rights already considered part of the
English
constitutional heritage.2
To understand what the framers' intended the Second Amendment to accomplish,
it is
necessary to examine their world and their view of the right to bear arms as
one of the traditional
"rights of Englishmen." The English settlers who populated North America in
the seventeenth
4
century were heirs to a tradition over five centuries old governing both the
right and the duty to be
armed. At English law the idea of an armed citizenry responsible for the
security of the community
had long coexisted, perhaps somewhat uneasily, with regulation of the
ownership of arms,
particularly along class lines. The Assize of Arms of 1181 required the
arming of all free men.
Lacking both professional police forces and a standing army, English law and
custom dictated that
the citizenry as a whole, privately equipped, assist in both law enforcement
and military defense.
By law all men ages 16 through 60 were liable to be summoned into the
sheriff's posse comitatus.
All persons were expected to participate in the hot pursuit of criminal
suspects, the "hue and cry,"
supplying their own arms for the occasion. There were legal penalties for
failure to participate. The
maintenance of law and order was a community affair, a duty of all
citizens.3
And all able-bodied men were considered part of the militia and were
required, at least
theoretically, to be prepared to assist in military defense. The law
required citizens to possess arms.
Towns and villages were required to provide target ranges in order to
maintain the martial
proficiency of the yeomanry. Despite this, the English discovered that the
militia of the whole
maintained a rather indifferent proficiency and motivation. By the sixteenth
century the practice was
to rely on select bodies of men intensively trained for militia duty rather
than on the armed
population at large.
Although English law recognized a duty and a right to be armed, both were
highly
circumscribed by English class structure. The law regarded the common people
as participants in
community defense, but it also regarded them as a dangerous class, useful
perhaps in defending
shire and realm but also capable of mischief with their weapons, mischief
toward each other,
their betters, and their betters' game. Restrictions on the type of arms
deemed suitable for
5
common people had also long been part of English law and custom. Game laws
had long been
one tool used to limit the arms of the common people. The fourteenth-century
Statute of
Northampton restricted the ability of people to carry arms in public places.
A sixteenth-century
statute designed as a crime control measure prohibited the carrying of
handguns and crossbows
by those with incomes of less than 100 pounds a year. After the English
Reformation, Catholics
were also often subject to being disarmed as potential subversives.
The need for community security had produced a traditional duty to be armed
at English law,
but it took the religious and political turmoil of seventeenth-century
England to transform that
duty into a notion of a political or constitutional right. Attempts by
Stuart Kings Charles II and
James II to disarm large portions of the population, particularly
Protestants and suspected
political opponents, met with popular resistance and helped implant into
English and later
American constitutional sensibilities the belief that the right to possess
arms was of fundamental
political importance. These efforts led to the adoption of the seventh
provision of the English
Bill of Rights in 1689:
"That the subjects which are Protestants may have arms for their defense
suitable to their conditions
and as allowed by law."4
By the eighteenth century, the right to possess arms, both for personal
protection and as a
counterbalance against state power, had come to be viewed as one of the
fundamental rights of
Englishmen on both sides of the Atlantic. Sir William Blackstone, whose
Commentaries on the Laws
of England greatly influenced American legal thought both before the
Revolution and well into the
nineteenth century, listed the right to possess arms as one of the five
auxiliary rights of English
6
subjects without which their primary rights could not be maintained:
The fifth and last auxiliary right of the subject, that I shall at present
mention, is that of having arms
for their defense, suitable to their condition and degree and such as are
allowed by law. Which is also
declared by the same statute ... and is indeed a public allowance, under due
restrictions, of the natural
right of resistance and self-preservation, when the sanctions of society and
laws are found insufficient
to restrain the violence of oppression.
5
If some five centuries of English experience had transformed the duty to be
armed for the
common defense into a right to be armed, in part, to resist potential
political oppression, a similar
evolution in thought had occurred in the American colonies between the
earliest seventeenthcentury
settlements and the American Revolution. Early English settlement in North
America had
a quasi-military character, an obvious response to harsh frontier
conditions. Governors of
settlements often held the title of militia captain, reflecting both the
civil and military nature of their
office. In order to provide for the defense of often isolated colonies,
special effort was made to
insure that white men, capable of bearing arms, were brought into the
colonies.
Far from the security of Britain and often facing hostile European powers at
their borders,
colonial governments viewed the arming of able-bodied white men and the
requirement for militia
service as essential to a colony's survival. The right and duty to be armed
broadened in colonial
America. If English law qualified the right to own arms by religion and
class, those considerations
were significantly less important in the often insecure colonies. If by the
seventeenth century the
concept of the militia of the whole was largely theoretical in England, in
America it was the chief
instrument of colonial defense. While the English upper classes sought to
restrict the ownership of
arms on the part of the lower classes in part as a means of helping to
enforce game laws, there were
significantly fewer restrictions on hunting in North America with its small
population and abundant
7
game. From the beginning, conditions in colonial America created a very
different attitude toward
arms and the people.
Race provided another reason for the renewed emphasis on the right and duty
to be armed
in America. Britain's American colonies were home to three often
antagonistic races — red, white,
and black. For the settlers of British North America, an armed and
universally deputized white
population was necessary not only to ward off dangers from the armies of
other European powers
but also to ward off attacks from the indigenous Indian population that
feared the encroachment of
English settlers on their lands. And an armed white population was essential
to maintain social
control over blacks and Indians who toiled unwillingly as slaves and
servants in English settlements.
This helped broaden the right to bear arms for whites. The need for white
men to act not only in the
traditional militia and posse capacities but also to keep order over the
slave population helped lessen
class, religious, and ethnic distinctions among whites in colonial America.
That need also helped
extend the right to bear arms to classes traditionally viewed with suspicion
in England, including
indentured servants.
The colonial experience helped strengthen the appreciation of early
Americans for the merits
of an armed citizenry. That appreciation was of course further strengthened
by the experience of the
American Revolution. The Revolution began with acts of rebellion by armed
citizens. And if
sober historical analysis reveals that it was actually American and French
regulars who
ultimately defeated the British and established American independence, the
image of the
privately equipped rag-tag militia successfully challenging the British
empire earned a firm place
in American thought and helped influence American political philosophy. For
the generation that
authored the Constitution, it reinforced the lessons their English ancestors
had learned in the
8
seventeenth century. It revitalized Whiggish notions that standing armies
were dangerous to
liberty. It helped transform the idea that the people should be armed and
security provided by a
militia of the people from a matter of military necessity into a political
notion, one that would
find its way into the new Constitution.
This view that an armed population contributed to political liberty as well
as community security
found its way into the debates over the Constitution and is key to
understanding the Second
Amendment. Like other provisions of the Constitution, the clause that gave
Congress the power to
provide for organizing, arming, and disciplining the militia excited fears
among those who believed
that the proposed Constitution could be used to destroy both state power and
individual rights. It is
interesting, in light of the current debate over the meaning of the Second
Amendment, that both
Federalists and Anti-Federalists assumed that the militia would be one that
enrolled almost the entire
white-male population between the ages of 16 and 60 and that militia members
would supply their
own arms.
But many feared that the militia clause could be used both to do away with
the state's control
over the militia and to disarm the population. Some expressed fear that
Congress would use its
power to establish a select militia. Many viewed a select militia with as
much apprehension as they
did a
standing army. The English experience of the seventeenth century had shown
that a select militia
could be used to disarm the population-at-large. Richard Henry Lee of
Virginia expressed the
fear that a select militia might serve this end.6
In their efforts to answer critics of the Constitution, Alexander Hamilton
and James Madison
addressed the charges of those critics who argued that the new Constitution
could destroy both the
9
independence of the militia and deny arms to the population. Hamilton's
responses are particularly
interesting because he wrote as someone who was openly skeptical concerning
the military value of
the militia of the whole. The former Revolutionary War artillery officer
conceded that the militia had
fought bravely during the Revolution, but he argued it proved no match when
pitted against regular
troops. Hamilton urged the creation of a select militia that would be more
amenable to military
training and discipline than the population as a whole. Despite this he
conceded that the population
as a whole should be armed.
But if Hamilton gave only grudging support to the concept of the militia of
the whole, Madison,
author of the Second Amendment, was a much more vigorous defender of the
concept. In The
Federalist, Number 46, he left little doubt that he saw the armed population
as a potential
counterweight to tyranny:
[L]et a regular army, fully equal to the resources of the country, be
formed; and let it be entirely
at the devotion of the federal government: still it would not be going too
far to say that the State
governments with the people on their side would be able to repel the danger.
The highest number
to which according to the best computation, a standing army can be carried
in any country does
not exceed one hundredth part of the whole number of souls; or one
twenty-fifth part of the
number able to bear arms. This proportion would not yield, in the United
States an army of more than
twenty-five or thirty thousand men. To these would be opposed a militia
amounting to near half a million
citizens with arms in their hands, officered by men chosen among themselves,
fighting for their common
liberties and united and conducted by governments possessing their
affections and confidence. It may well
be doubted whether a militia thus circumstanced could ever be conquered by
such a proportion of regular
troops. Those who are best acquainted with the late successful resistance of
this country against the British
arms will be most indined to deny the possibility of it. Besides the
advantage of being armed, which the
Americans possess over the people of almost every other nation, the
existence of subordinate governments,
to which the people are attached and by which the militia officers are
appointed, forms a barrier against
the enterpnses of ambition, more insurmountable than any which a simple
government of any form can
admit of notwithstanding the military establishments in the several kingdoms
of Europe, which are carried
as far as the public resources will bear, the governments are afraid to
trust the people with arms.7
This desire to maintain a universal militia and an armed population played a
critical part in the adoption
10
of the Second Amendment. The amendment, like other provisions of the Bill of
Rights, was designed to
prevent the newly created federal government from encroaching on rights
already enjoyed by the people. It
is important to remember that firearms ownership, for self-defense and
hunting, was widespread with few
restrictions, at least for the white population. It is also significant that
the universally accepted view of the
militia, at the time, was that militiamen would supply their own arms. One
year after the ratification of the Bill
of Rights Congress passed legislation reaffirming the notion of a privately
equipped militia of the whole. The
act, titled "An Act more effectually to provide for the National Defense by
establishing an Uniform Militia
throughout the United States," called for the enrollment of every free,
able-bodied white-male citizen
between the ages of 18 and 45 into the militia. The act required every
militia member to provide himself with
a musket or firelock, a bayonet, and ammunition.8
The decades between the adoption of the Second Amendment and the Civil War
brought little opportunity
for judicial interpretation of the constitutional provision. While a number
of jurisdictions had laws prohibiting
the carrying of concealed weapons, there were few restrictions concerning
the ownership or the open carrying
of arms in antebellum America. Most laws restricting the possession of
firearms were to be found in the slave
states of the antebellum South. These laws generally prohibited the
possession of firearms on the part of slaves
and free blacks. Outside of the slave states the right to have arms was
generally not impaired, not even for free
Negroes. There was no federal legislation restricting firearms ownership,
and since Barron v. Baltimore
(1833) held that the Bill of Rights only limited the power of the federal
government, there was no
occasion before the Civil War for the federal courts to examine the issue.
If in the antebellum era there was an absence of federal court decisions on
the Second
Amendment, there was nonetheless widespread agreement concerning the scope
and meaning of
the provision among antebellum commentators and in the limited number of
state court decisions
11
that examined the issue. Noted jurist and legal commentator St. George
Tucker contrasted the
Second Amendment's robust guarantee of a right to keep and bear arms with
the more restrictive
English guarantee, noting that class restrictions and game laws had not
limited the American right
in the way that the English right had been limited. Supreme Court Justice
Joseph Story also
regarded the right as fundamental:
The right of the citizens to keep, and bear arms has been justly considered,
as the palladium of the liberties
of a republic; since it offers a strong moral check against the usurpation
and arbitrary power of
rulers; and will generally, even if they are successful in the first
instance, enable the people to resist,
and triumph over them.98
If leading antebellum commentators saw the right as central to a free
people, federal courts
were largely silent on the subject. The only pronouncement from the Supreme
Court on the subject
before the Civil War came m Justice Taney's opinion in Dred Scott v.
Sandford (1857). Taney
indicated that African Americans, slave or free, could be denied the right
to possess arms just as they
could be denied freedom of speech, assembly, and travel. Despite the silence
of the federal courts on
the subject, state courts began developing a jurisprudence of the right to
keep and bear arms,
interpreting relevant provisions of state constitutions. These cases
attempted to balance the right to
bear arms against competing interests in public safety. Generally state
courts upheld prohibitions
against carrying concealed weapons. Some state courts limited the right to
carry arms to those
weapons that were suitable for use in "civilized warfare," an attempt to
prohibit the carrying of
weapons that were thought to be used exclusively for criminal purposes. Most
of these cases involved
restrictions on carrying concealed firearms. In one antebellum case the
Georgia Supreme Court
decided that the Second Amendment applied to that state.109
12
It would take the turmoil of the Civil War and Reconstruction to bring the
Second Amendment
before the Supreme Court. The end of the Civil War brought about a new
conflict over the status
of former slaves and the power of the states. The defeated white South
sought to preserve as much
of the antebellum Southern social order as could survive Northern victory
and national law.
Southern states were not prepared to accord to the newly emancipated black
population the
general liberties enjoyed by white citizens. Indeed, former slaves did not
even have the rights
that Northern states had long given free Negroes.
In 1865 and 1866 Southern states passed a series of statutes known as the
black codes. These
statutes were designed, in part, to insure that traditional Southern labor
arrangements would be
preserved. They often required blacks to sign labor contracts that bound
black agricultural workers
to their employers for a year. Blacks were forbidden from serving on juries
and could not testify or
act as parties against whites. Vagrancy laws were used to force blacks into
labor contracts and to limit
freedom of movement. And as further indication that the former slaves had
not yet joined the ranks
of free citizens, Southern states passed legislation prohibiting blacks from
carrying firearms without
licenses, a requirement to which whites were not subjected. The Mississippi
statute provides a typical
example of restrictions of this kind:
Be it enacted,... that no freedman, free Negro or mulatto, not in the
military service of the United
States government, and not licensed so to do by the board of police of his
or her county, shall keep
or carry firearms of any kind, or any ammunition, dirk or bowie knife, and
on conviction thereof
in the county court shall be punished by fine, not exceeding ten dollars,
and pay the cost of such
proceedings and all such arms or ammunition shall be forfeited to the
informer; and it shall be the
duty of every civil or military officer to arrest any such freedman, free
Negro or mulatto found
with any such arms or ammunition, and shall cause him or her to be committed
to trial in default
of bail. 1110
13
Such measures caused strong concerns among Northern Republicans. Many
charged that the
South was trying to reinstate slavery and deny former slaves those rights
long considered essential
to a free people. The news that the freedmen were being deprived of the
right to keep and bear
arms was of particular concern to champions of Negro citizenship. For them
the right of the black
population to possess weapons went beyond symbolic importance. It was
important both as a
means of maintaining the recently reunited union and as a means of insuring
against the virtual
reenslavement of those formerly in bondage. Faced with a hostile South
determined to preserve
the antebellum social order, Northern Republicans were particularly alarmed
at provisions that
preserved the right to keep and bear arms for former Confederates while
disarming blacks, the
one group in the South with clear unionist sympathies. This helped convince
many Northern
Republicans to seek national enforcement for the Bill of Rights.
The debates over the Fourteenth Amendment and the civil rights legislation
of the
Reconstruction era suggest the determination of Congress to protect the
right to keep and bear arms
and other provisions of the Bill of Rights against state infringement.
Representative Jonathan
Bingham of Ohio, who authored the Fourteenth Amendment's privileges or
immunities clause, and
other Republican supporters of the Fourteenth Amendment expressed the view
that the clause applied
the Bill of Rights to the states. The Southern efforts to disarm the
freedmen and to deny other basic
rights to former slaves played an important role in convincing the 39th
Congress that traditional
notions concerning federalism and individual rights needed to change.12
If the events of Reconstruction persuaded the 39th Congress of the need for
applying the Bill
of Rights to the states, the Supreme Court in its earliest decisions on the
Fourteenth Amendment
moved to maintain the antebellum federal structure. The Supreme Court's
first pronouncements on
14
the Second Amendment came about after the enactment of the Fourteenth
Amendment and concerned
the extent to which the latter amendment extended the protection of the
right to keep and bear arms.
The first case, United States v. Cruikshank (1875), stemmed from charges
brought by federal officials
against William Cruikshank and others for violating the constitutional
rights of a group of black men
who were attempting to vote. The charges included claims that Cruikshank and
his associates
violated the right of the black men to peaceably assemble and that they also
violated their right to
bear arms. The Court in a majority opinion authored by Chief Justice
Morrison R. Waite held that
the federal government had no power to protect citizens against private
action that deprived them of
their constitutional rights. The opinion held that the First and Second
Amendments were limitations
on Congress, not private individuals. For protection against private
criminal action the individual was
required to look to state governments.13
The next case in which the Court examined the Second Amendment, Presser v.
Illinois, more
directly involved the question of whether or not the Second Amendment in
combination with the
Fourteenth set limits on the ability of states to limit the right to bear
arms. That case involved a
challenge to an Illinois statute that prohibited individuals who were not
members of the organized
militia from parading with arms. Justice William Woods' majority opinion
noted that the statute
did not infringe on the right to keep and bear arms. Woods nonetheless used
the case to indicate
that the Second Amendment did not apply to state governments even in light
of the Fourteenth
Amendment. Woods also indicated that because the citizenry at large
constituted a reserve militia
that was a resource for the United States government and hence could not be
disarmed by state
governments, independent of Second Amendment considerations. Presser is
still cited as
15
precedent indicating that the Fourteenth Amendment does not incorporate the
Second
Amendment.14
The nineteenth century would come to an end with legal commentators in
general agreement
that the right to keep and bear arms was an important one for a free people.
Michigan jurist
Thomas M. Cooley discussed the subject in his treatise on constitutional
law. Anticipating some
of the modern debate on the subject, Cooley expressed the view that the
amendment should not be
seen as restricted only to members of the militia. He noted that the purpose
of the Second
Amendment was to allow the people to provide a check against potential
governmental usurpation
of power. Cooley went on to note that a restriction of the right to arms to
members of the militia,
whose membership could be limited by the government, would allow the
government to defeat
the very purpose of the amendment.15
The nineteenth century would end with reasonably broad agreement among those
constitutional commentators who considered the issue that the right to have
arms was an
important safeguard for the freedoms of the American people. It should be
added that that
agreement was a broad agreement in principle that usually did not extend to
the messy details of
what kinds of firearms regulation were and were not consistent with the
principle. Because
firearms regulation was a matter of state and local law, the federal courts,
adhering to the view
that the Second Amendment did not apply to the states, had little to say on
the subject.
State courts did develop a jurisprudence on the right to have arms examining
state firearms
regulation in light of provisions in state constitutions protecting the
right to have arms. These
cases usually provided state and local governments more leeway in regulating
the carrying of
arms, particularly concealed weapons, than in restricting the ownership of
arms. Thus the 1871
16
Tennessee case of Andrews v. State held that the right to bear arms was an
incident of militia
service and subject to reasonably broad state regulation, while the right
own arms was a private
right with limitations on state restriction. 16
The early twentieth century would bring about new efforts at firearms
regulation and with it
new attitudes concerning arms and the Second Amendment. Traditional beliefs
concerning the
importance of arms were frequently being tempered by the view that whole
classes of people were
unfit to exercise this prerogative. In the South, state governments, freed
from the federal scrutiny
that existed in the Reconstruction era, used laws regulating concealed
weapons to accomplish
what had been attempted with the postwar black codes. Discriminatory
enforcement of these
laws often left blacks disarmed in public places while whites remained free
to carry firearms. This
state of affairs helped facilitate lynchings and other forms of racial
violence during the Jim Crow
era.
But the South was not the only region where social prejudice restricted the
right of disfavored
minorities to possess firearms. If the white South saw armed blacks as a
threat, politicians in other
regions saw a similar threat arising from large-scale Southern and Eastern
European immigration.
The new immigrants, like others before them, often met hostile receptions.
They were associated
with crime and anarchy and stereotyped as lazy and mentally unfit. Many
native-born Americans
feared the immigrants would bring anarchist-inspired crime from Europe,
including political
assassinations and politically motivated armed robberies. These fears led in
1911 to passage of
New York's Sullivan Law. This state statute was aimed at New York City, a
place where the
large, foreign-born population was believed to be peculiarly susceptible to
crime and vice. The
Sullivan Law went far beyond typical gun control measures of the day. It
prohibited the
17
unlicensed carrying of weapons and required a permit for the ownership or
purchase of pistols.
Violation of the statute was a felony. The first person convicted under the
statute was a member
of one of the suspect classes, an Italian immigrant. 17
It was in this early twentieth century atmosphere that the collective rights
view of the right to
bear arms first began to attract the attention of the judiciary. In one of
the earliest cases to adopt
this view Salina v. Blaksley, the Supreme Court of Kansas interpreted that
state's constitutional
provision protecting the right to bear arms as a protection that only
applied to the militia and not
for individual purposes.18 In 1911 Maine Chief Justice Lucillius A. Emery
authored an essay
"The Constitutional Right to Keep and Bear Arms" in the Harvard Law Review
urging that the
right to bear or carry arms should be viewed as a right limited to militia
service. He also noted
that legislatures could not prohibit the keeping or ownership of arms,
echoing the distinction
made by the Tennessee Court in Andrews.19
These developments affected relatively few Americans at the beginning of the
twentieth
century. The nation was still largely rural. Firearms ownership for both
self defense and hunting
were fairly commonplace. And statutes regulating firearms ownership were
relatively rare and
unobtrusive. For most citizens access to firearms was largely unimpaired and
there was not too much
occasion for either the courts or constitutional commentators to say much
concerning the Second
Amendment.
This situation would change after the First World War. Prohibition brought
about the rise of
organized gangs engaged in the sale of bootlegged alcohol. Territorial
rivalries among the gangs led
to open warfare on the streets of the nation's major cities. That warfare
was made even more
terrifying by the introduction of a terrifying new weapon, the Thompson
submachine gun. A fully
18
automatic weapon, developed too late for use in World War I, the "Tommy Gun"
was one of the first
submachine guns in widespread use. Used by violent criminals in their wars
on each other, the
Thompson also claimed the lives of a fair number of members of the general
public as well.
The end of the twenties and the end of prohibition did not bring a halt to
notorious misuse of
automatic weapons. The rise in the 1930s of such desperadoes as John
Dillinger, "Pretty Boy" Floyd,
"Ma" Barker, George "Machine Gun" Kelly, and Clyde Barrow and Bonnie Parker
became a part of
American folklore. The exploits of such criminals were made more vivid and
terrifying by the new
medium of talking motion pictures. Thus, the horrors of criminal misuse of
automatic weapons were
forcibly brought home to the public.
These events caused the Roosevelt administration to propose the first
federal gun control
legislation. The National Firearms Act of 1934 required registration, police
permission, and a
prohibitive tax for firearms that were deemed gangster weapons, including
automatic weapons,
sawed-off shotguns, and silencers. It is interesting in light of the current
debate that the Roosevelt
administration deemed the act a revenue measure, conceding that an outright
ban on such weapons
would probably be beyond Congress' powers.
The 1934 act gave rise to the Supreme Court's last decision to date on the
Second
Amendment, United States v. Miller. It was a curious case. Both sides of the
Second Amendment
debate have claimed that the decision authored by Justice James C.
McReynolds supports their views.
Interestingly, the Court only heard arguments by the government. The federal
government appealed
a decision by a federal district court invalidating the National Firearms
Act of 1934 in a case
involving the unlicensed transportation of an unregistered sawed-off
shotgun. The Court focused on
the weapon in question:
19
In the absence of any evidence tending to show that the possession of a
[sawed-off shotgun] at this
time has some reasonable relationship to the preservation or efficiency of a
well regulated militia,
we cannot say that the Second Amendment guarantees the right to keep and
bear such an
instrument. Certainly it is not within judicial notice that this weapon is
any part of the ordinary
military equipment or that its use could contribute to the common defense.
20
Advocates of the collective rights view have emphasized the Miller Court's
focus on the militia,
claiming that it was an indication that the Court saw the Second Amendment
as only being concerned
with the preservation of state militias. But the Miller Court's discussion
of the militia indicates that the
Court saw a clear relationship between the individual right and the
maintenance of the militia:
The signification attributed to the term Militia appears from the debates in
the Convention, the history and
legislation of Colonies and States, and the writings of approved
commentators. These show plainly enough that
the Militia comprises all males physically capable of acting in concert for
the common defense. "A body of
citizens enrolled for military discipline." And further, that ordinarily
when called for service these men were
expected to appear bearing arms supplied by themselves and of the kind in
common use at the time.21
Probably the most accurate way to view what the Court did in Miller is to
see it as an updating of the
nineteenth-century civilized warfare doctrine. McReynolds's decision relied
on the antebellum Tennessee case
Avmette v. State, which allowed the state to restrict the carrying of those
types of weapons which were frequently
used by criminals and not suitable for the common defense. The Supreme Court
in Miller remanded the case to
the lower courts to determine whether or not a sawed-off shotgun was a
weapon appropriate for militia use. That
determination was never made.22
Although Miller was the Court's most comprehensive exploration of the Second
Amendment, it had little
20
effect on either firearms regulation or the general public's view concerning
the right to keep and bear arms. For
nearly three decades after Miller little existed in the way of federal
firearms regulation. State and local legislation
existed, but with few exceptions such as the New York Sullivan Law, these
were usually traditional regulations
governing the manner of carrying weapons, not outright prohibitions. There
was little serious attempt to mount
constitutional challenges to these restrictions. The Second Amendment was
thus bypassed in the postwar
Supreme Court's process of applying most of the provisions of the Bill of
Rights to the states. Justice Hugo
Black, who was an advocate of the view that the Fourteenth Amendment made
all of the Bill of Rights applicable
to the states, argued that the Second Amendment should also apply to the
states, but the Court has not heard a
case on that issue since Presser. It is probably accurate to say that at
least until the 1960s most people, including
attorneys and judges, accepted the view that the Second Amendment protected
an individual right but otherwise
thought very little about the matter because firearms restrictions, even on
the state and local levels, were slight.
It would take the turmoil of the 1960s and the tragedy of three
assassinations to bring about the birth of the
modern gun control movement and create the current debate over the meaning
of the Second Amendment. The
assassination of President John F. Kennedy in 1963 brought calls for
stricter national controls over the sale of
firearms. Urban riots and the assassinations of civil rights leader Martin
Luther King and Senator Robert F.
Kennedy helped lead to the passage of the Gun Control Act of 1968, the first
federal legislation that seriously
affected the purchasing of firearms for large numbers of Americans. This
legislation limited the purchase of
firearms through the mails and also restricted the importation of surplus
military rifles. The act also prohibited
the purchase of firearms by those with felony convictions, even though the
legislation provided no means of
checking a purchaser's record. Some of the provisions of the 1968 act would
later be modified by
legislation passed in 1986.
The 1968 act proved to be something of a watershed. Since then a national
debate over gun control
21
and a subsidiary debate over the meaning of the Second Amendment have become
perennial features
in American politics. The rise of a highly visible national gun control
movement since the sixties during
has been something new in American political life. Some adherents of this
new political movement
have advocated relatively moderate measures. These have included screening
measures designed to
prevent individuals with suspect backgrounds, criminal records or histories
of mental instability from
purchasing firearms. Such measures are essentially extensions of firearms
regulations that have long
existed in many states, attempts to limit firearms use by undesirable
persons. These kinds of regulations
have long existed even in states with state constitutional protection for
the right to bear arms and courts
willing to enforce such guarantees. The more modest measures pose little
threat to the general public's
right to possess firearms.
But since the 1960s, others have argued for more radical measures. Their
view has been that
state and local government and more importantly the federal government can
and should outlaw the
general public's right to possess whole categories of firearms that had
previously been owned by large
numbers of law-abiding citizens. Many in the gun control movement argued
that ownership of guns
for self defense or as part of a universal citizens' militia was dangerous
and atavistic. They claimed
that the only legitimate reason for civilian firearms ownership was for
sporting purposes, usually
hunting, and that even that ownership should be permitted only under
stringent licensing. Efforts were
made to ban firearms that did not meet this "sporting purposes" definition.
In the 1970s and 1980s gun
control advocates urged the banning of handguns, particularly cheap ones
popularly known popularly
as "Saturday Night Specials." In the 1990s many gun control supporters
advocated bans on "assault
weapons," a term employed without great precision to include semiautomatic
rifles with military
features such as bayonet lugs and pistol grips, or virtually all
semiautomatic rifles, depending on the
22
user's definition. The gun control movement scored some success with its
campaign against assault
weapons. A handful of states enacted bans on some semi-automatic firearms.
Congress enacted a ten
year prohibition on the sale of semiautomatic rifles with military style
features in 1994. Congress
refused to renew the ban in 2004.
This advocacy of wholesale restrictions on firearms ownership helped bring
about the modern
debate over the meaning of the Second Amendment. Much of the effort to
reinterpret the Second
Amendment as a collective right has been an attempt to justify proposed
firearms restrictions that at
earlier periods in American history would have been regarded as
unconstitutional. Since the 1960s
a vigorous polemical debate over whether the amendment should be seen as a
broad individual right
or as a right limited to a highly controlled militia context has been waged
in the nation's editorial pages
and broadcast media.
Despite the passion with which the public debate has been waged, the Supreme
Court has kept a
curious silence on the issue. The Court has had opportunity to address the
issue, the lower federal
courts in the 1970s and 1980s upheld gun control legislation either by
citing Miller for the proposition
that the Second Amendment only protected the right to bear arms in a militia
context when addressing
federal legislation or Presser for the proposition that the amendment did
not apply to the states. The
Supreme Court declined to grant certiorari in these cases and provide a
definitive modern ruling on the
issue.
If the Court has been reluctant to directly address the issue of the Second
Amendment and its
applicability to the gun control issue, it has, curiously enough, been
willing to acknowledge the right
to bear arms as dicta in cases extraneous to the gun control issue. Starting
with Justice Harlan's dissent
in the 1961 case Poe v. Ullman involving a Connecticut anti-contraception
statute, the right to bear
23
arms has frequently been noted in privacy cases:
"The full scope of the liberty guaranteed by the Due Process Clause cannot
be found in or limited
by the precise terms of the specific guarantees elsewhere provided in the
Constitution. This `liberty'
is not a series of isolated points priced out in terms of the taking of
property; the freedom of speech,
press and religion; the right to keep and bear arms (italics added)23
Statements by other justices, sometimes in dicta, sometimes in statements to
the press have given heart
to supporters of either the individual or collective rights viewpoints, but
the Court retained its
institutional silence on the subject.
If the Supreme Court in recent decades has been reluctant to address the
controversy, other
important legal actors were making pronouncements on the Second Amendment
and the right to arms
more generally. Forty-four of the fifty states have right to keep and bear
arms provisions in state
constitutions. While the federal jurisprudence on the right is somewhat
thin, state courts have
developed a rather robust jurisprudence, ranging from a fairly restrictive
to fairly expansive views of
the right. Congress has also played a role in Second Amendment
interpretation. In 1982 the Senate
Judiciary Committee's Subcommittee on the Constitution issued a report
supporting the individual
rights view of the amendment. Four years later Congress passed the Firearms
Owners Protection Act
protecting the right of interstate travel with firearms. The state was
prefaced with Congressional
findings declaring the Second Amendment an individual right.
The 1980s would see the rise of the academic debate over the Second
Amendment. At first it was
a debate that mainly engaged independent scholars not affiliated with
universities and usually
connected to groups supporting or opposing stricter gun controls. Because
the subject inherently
24
involves a debate over original intentions or understandings, historians
tended to enter the debate
sooner than scholars in the legal academy. Something of a milestone in the
history of the debate came
in 1989 with the publication of Sanford Levinson's "The Embarrassing Second
Amendment," in the
Yale Law Journal. For the first time since gun control had become a national
issue in the 1960s, a
major constitutional scholar in a leading law journal was arguing that the
Second Amendment deserved
a serious examination and that the individual rights view was likely the
more accurate one. Levinson's
article spurred other scholars in law, history and political science to take
up the issue with such leading
scholars as Akhil Amar, Saul Cornell, Leonard Levy, Jack Rakove, Laurence
Tribe, William Van
Alstyne and Gary Wiilis, among many others.24
The new scholarship probably played a part in reawakening interest on the
part of the judiciary in
the Second Amendment. Supreme Court Justice Clarence Thomas indicated a
favorable disposition
toward the individual rights reading of the amendment in the 1997 case
United States v. Printz.25
Justice Scalia has expressed support for the individual rights view in
scholarly commentary. A major
breakthrough for individual rights advocates came in 2001 with the Fifth
Circuit case United States v.
Emerson.26 In Emerson, which involved a Second Amendment challenge to a
prosecution of an
individual who possessed a firearm in violation of a restraining order, the
Fifth Circuit Court of
Appeals held that the Second Amendment was an individual right but that a
restraining order
prohibiting possession of firearms on the part of an individual suspected of
domestic violence was
reasonable regulation. A 2002 decision by the Ninth Circuit Court of Appeals
in Silveira v. Lockyer
upheld California's ban on assault weapons holding that the Second Amendment
was a collective right
The decision seemed written in part to rebut the Fifth Circuit's opinion in
Emerson..27
National politics would also play a role in issues of Second Amendment
interpretation. The election
25
of George Bush in the very close election of 2000 brought to national office
an administration that had
enjoyed the support of the National Rifle Association which probably tipped
the electoral balance in
a number of states. One result of this was a new attitude in the Justice
Department more supportive
of the individual rights view than had been the case in recent decades. In
2004 the Attorney General's
Office under Attorney General John Ashcroft's direction issued a formal
memorandum on the Second
Amendment. issued The memorandum reflected Ashcroft's longstanding support
for the individual
rights interpretation. As might be expected, the memorandum met with strong
criticism by proponents
of stricter gun control and strong support by opponents. The Ashcroft
memorandum was interesting
for its detailed analysis of the history and meaning of the Second
Amendment, reflecting much of the
new scholarship that had developed since the 1990s.28
The debate continues into the twenty-first century. It continues to be waged
in academic journals
and the popular media. The Supreme Court still retains its institutional
reluctance to enter the fray,
although Chief Justice John Roberts in his 2005 confirmation hearing
indicated that he believed the
proper interpretation of the Second Amendment was still an open issue and
one that the lower federal
courts had not resolved. The political branches of government seem largely
sympathetic to protecting
the right to have arms. During the 1990s and continuing into the first
decade of the twenty-first century
an increasing number of states have passed legislation liberalizing the
right of citizens to carry guns
for self protection, a reflection of both public fears of crime and the
political skill of the National Rifle
Association. Some forty states have statutes permitting almost anyone
eligible to own a firearm to
obtain a license to carry a concealed weapon. In 2006 Congress passed
legislation prohibiting lawsuits
against firearms manufacturers for criminal misuse of firearms. The
legislation contained findings that
the Second Amendment protected a right of individuals regardless of whether
or not they were
26
members of the militia. That same year Congress also passed legislation
prohibiting public officials
from disarming citizens during times of natural disaster. This measure was
enacted in part in response
to actions taken by New Orleans officials during Hurricane Katrina. During
that crisis New Orleans
police confiscated guns from citizens in New Orleans, sometimes in dramatic
confrontations played
out on national television.
The March 2007 decision by the U.S. Court of Appeals for the D.C. Circuit
overturning the District of
Columbia's handgun ban on Second Amendment grounds undoubtedly played a key
role in ending the
Supreme Court's traditional reluctance to consider Second Amendment cases."
In a 2-1 decision in
the case Parker v. District of Columbia, a three judge panel of the D. C.
Circuit declared the District
of Columbia.'s ban on handguns unconstitutional. The majority opinion
authored by Judge Laurence
H. Silberman of the D. C. Circuit held that the Second Amendment was a right
of individuals and that
the District of Columbia's ban contravened that right. It was the first time
that a federal court had held
that a specific piece of gun control legislation violated the Second
Amendment The full D. C. Circuit
denied the District of Columbia's petition for an en banc hearing or hearing
by the full D. C. Circuit,
thus letting the panel opinion stand. The government of the District of
Columbia filed a petition for
certiorari which was granted in November.
This chapter is being completed in early December of 2007. As we are writing
parties and amici
are preparing briefs for what will be the most important Second Amendment
case in United States
history. Oral arguments in the case involving the handgun ban in the
District of Columbia will take
place in the Spring of 2008 with a decision likely in the early summer. We,
of course, do not know
how the Court is going to rule but its decision is not likely to end the
academic and popular debate over
27
the amendment. The debate over arms and rights in contemporary America is
fueled by mixed feelings
and often contradictory impulses on the part of the American people. Times
of crisis, natural disasters
like Hurricane Katrina, or the attacks on 9/11 illustrate one dimension of
the debate. During such
occasions we often see media reports of dramatic increases in sales of guns
an indication that large
numbers of ordinary citizens see a utility in firearms ownership as a means
of protection when public
officials seem powerless to protect the population. Another dimension of the
debate is often seen when
particularly horrible killings occur with firearms, mass shootings in
schools and workplaces are vivid,
albeit rare examples. At that time the public often demands new measures
designed to keep guns out
of the hands of those likely to commit random acts of violence. These highly
visible occurrences
intensify the debate over gun control and the subsidiary debate over the
meaning of the Second
Amendment.
In many ways the time has come for a new debate over the Second Amendment,
its meaning and
how it might be applied in the twenty-first century. The idea that the right
to keep and bear arms was
meant to be tied so closely to membership and participation in a militia
over which the government has
total power to organize or fail to organize is one that can only be
sustained through a highly strained
reading of the history. Like nineteenth century jurist Thomas Cooley we also
believe that such a
reading creates a right that the government can defeat at any time simply by
the way it decides to
organize the militia. We would accept no such reading with any other
provision of the Bill of Rights,
nor should we with the Second Amendment.
But to say that the individual rights reading of the Second Amendment is the
more plausible and
stronger reading of the provision should not end debate on the issue. There
should be a debate over
whether or not the amendment should simply be repealed. Clearly many
advocates of strong gun
28
control measures believe the amendment to be an anachronism, a relic of an
atavistic age of universal
militias, posses, slave patrols, vigilantes and citizens armed against each
other. If so they should make
that case. It is a hard case to make in an America with widespread gun
ownership and some forty-four
states that have enacted or re-enacted right to bear arms provisions in
their state constitutions in the
twentieth century, but in the final analysis radical constitutional change
should be the result of
sustained debate and amendment, not simply ignoring or creatively
reinterpreting key constitutional
provisions.
There is however an even more interesting debate that might be had with
respect to public safety
and the right to bear arms. That debate would involve examining how best to
recognize and protect
the right while also allowing legislatures leeway to develop
criminologically sound measures designed
to limit, in so far as possible, access to weapons on the part of career
criminals and those who are
mentally unstable. Such a debate would involve recognizing that the right to
have arms has been and
remains part of the American Constitutional tradition, that it is valued by
large segments of society and
that the right sets real limits on governmental regulation. It also involves
recognizing that measures
designed to keep weapons out of undesirable hands are not necessarily
inconsistent with this right. In
the second half of the twentieth century, we were unable to develop this
kind of debate on the national
level precisely because of the effort to redefine the Second Amendment into
meaninglessness, perhaps
in the first half of the twenty-first century a greater willingness to
recognize the Second Amendment
will allow the dialogue to begin.
29
1. District of Columbia v. Heller, No 07-290, Supreme Court of the United
States, 2007 U. S.
Lexis 12324
2.Bernard Bailyn, The Ideological Origins of the American Revolution (New
York, 1967)
3. See generally Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an
Anglo-
American Right (Cambridge, Ma., 1994) esp at 1-15
4.1 Wm and Mary Sess 2.c2 (1689)
5. William Blackstone, Commentaries on the Laws of England, Vol 1, Of the
Rights of Persons
(4 vols., London, 1765-1769; 1979 repr.), 139
6. C. M. Kenyon, ed., The Anti-Federalists (New York, 1966), 228
7. The Federalist, No. 46 (rev. ed., New York, 1961), 299
8. 1 Statutes at Large 271 (May 1792)
9. Joseph Story, Commentaries on the Constitution of the United States (2
vols., Boston, 1858;
1987 repr. 1, 708
10. See Nunn v. State, 1 Georgia 243 (1846)
11. See Walter L. Fleming, ed., Documentary History of Reconstruction:
Political, Military,
Social, Religious, Educational and Industrial, 1865-1906 (New York, 1909,
1966 repr.) 290
.
Notes
30
12. The most comprehensive discussion of the incorporation issue is Michael
Kent Curtis' No
State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (New
York, 1986). For
an important discussion of the 39th Congress's views concerning the Second
Amendment , its
applicability to the states through the Fourteenth Amendment and the
importance of
Reconstruction era civil rights legislation to an understanding of this
issue, see Stephen P.
Halbrook, Freedmen, the Fourteenth Amendment and the right to bear arms,
1866-1876
(Westport, Conn., 1998)
13. United States v. Cruikshank, 92 U.S. 542 (1876)
14. Presser v. Illinois 116 U. S. 252 (1886)
15. Thomas M. Cooley, Principles of Constitutional Law (Boston, 1898) 298, A
Treatise on the
Constitutional Limitations, 7th Edition (Boston, 1903) 498-499
16. Andrews v. the State, 50 Tenn 154 (1871)
17. Don B. Kates, "Towards a History of Handgun Prohibition in the United
States," in Don B.
Kates, ed., Restricting Handguns: The Liberal Skeptics Speak Out (Croton-On
Hudson, N.Y.,
1979), 7-30; Lee Kennett and James La Verne Anderson, The Gun in America:
The Origins of a
National Dilemma (Westport, Conn., 1975), 174-80
18. Salina v. Blaksley, 72 Kansas 230 (1905)
19. Lucillius A. Emery, "The Constitutional Right to Keep and Bear Arms,"
Harvard Law
Review, 28 (1915) 473
20. United States v. Miller, 307 U. S. 178 (1939)
21. Ibid
22. Aymette v. State 21 Tenn. 154 (1840)
23. Poe v. Ullman 367 U.S. 497 (1961)
24. Sanford Levinson, "The Embarrassing Second Amendment," Yale Law Journal
99 (1989)
637. For a brief discussion of recent Second Amendment scholarship see our
bibliographic essay
included in this volume.
25. United States v. Printz 521 U.S. 898 (1997)
26. United States v. Emerson 270 F3rd 2003 (2001)
27. Silveira v. Lockyer, 312 F3rd 1052 (2002)
28. "Whether the Second Amendment Secures an Individual Right: Memorandum
Opinion for
the Attorney General." August 24, 2004 found at
31
http://www.usdoj.gov/olc/secondamendment2.htm

On Feb 1, 2008 10:23 PM, Leland <LKUHN at cnmc.org> wrote:

>
> Guns kill (and circumcise), but no matter how you slice the data, guns
> always
> prevent more crimes than they cause.  It would be even more overwhelming
> if
> we knew how many crimes are prevented just because the bad guys might
> think
> you have a gun in the house.  The police can't be everywhere all the time.
>
> http://www.justfacts.com/guncontrol.asp
> http://www.justfacts.com/guncontrol.asp
>
> I don't keep a gun in the house for one reason.  Guns don't kill.
> Menopausal wives with guns kill.
>
>
>
> Hank-5 wrote:
> >
> > This clip is short, funny and worth watching! Click below.
> >
> >
> >
> > Click here: YouTube - Woman Fights Robber, Cops Have to Rescue
> > Him! <http://www.youtube.com/watch?v=rSPQKwEJcn4&feature=related>
> > __________________________________________________
> > Use Rhodes22-list at rhodes22.org, Help? www.rhodes22.org/list
> >
> >
>
> --
> View this message in context:
> http://www.nabble.com/Circumcision-With-A-.38-Cal.-tp15216494p15239606.html
> Sent from the Rhodes 22 mailing list archive at Nabble.com.
>
> __________________________________________________
> Use Rhodes22-list at rhodes22.org, Help? www.rhodes22.org/list
>