Date: Sat, 20 May 1995 16:07:24 -0700 (PDT)
From: "Edgar A. Suter" <[s--t--r] at [crl.com]>
Subject: Re: Need cites
A brief excerpt from our upcoming article in the June 1995 issue of the
Journal of the Medical Association of Georgia addresses the
constitutional issues related to the RKBA. If Hillel needs more details,
he can contact Jeff Chan <[c--n] at [portal.shell.com]> to locate our "Right to
Keep and Bear Arms - A Primer for physicians" article.
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* Edgar A. Suter, MD [s--t--r] at [crl.com] *
* Chair, DIRPP Doctors for Integrity in Research & Public Policy *
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..
..Constitutional issues
An important nexus exists where public policy touches the constitution.
Television violence has been deemed a cause of violence,[1,2,3] but
outlawing entertainment violence and sensationalized newscasting is
precluded by First Amendment guarantees. The spread of AIDS might be
reduced by draconian measures that, thankfully, are precluded by our
inherent enumerated and unenumerated civil rights guaranteed in the Bill of
Rights. Analogously, even if gun bans could be demonstrated to be
effective in reducing violence, such measures are precluded by our right to
keep and bear arms, our inherent and irrevocable right to protection
against criminals, crazies, and tyrants.
We are alarmed that the constitutional impediments to gun bans, draconian
restrictions, and confiscatory levels of fees and taxation, if discussed at
all, are offhandedly and mistakenly dispatched.[4 ] No "need" must be
demonstrated or license obtained in order to exercise a constitutional
right; such "prior restraint" is a patently unconstitutional denial of
civil rights. To support purportedly "reasonable" restrictions, the claim
is often made that the Right to Keep and Bear Arms is a only a collective
right of states to maintain militias.[4,5,6] Such a claim is incongruous
with Supreme Court case law,[7,8 ] the history of the right,[9,10,11,12]
and legal scholarship.
In fact, the Supreme Court has explicitly acknowledged a pre-existent
("pre-existent," rather than "granted" by the Constitution) individual
right[13,14,15,16,17] to keep and bear military-style17 weapons. The
familiar contention that there is no individual right to arms derives
partly from a common misunderstanding of the constitutional "militia."
Advocates of "broad-based gun control"4 emphasize merely the mention of
"militia," but historians, legal scholars, and Supreme Court Justices
agree that, "The 'militia' was the entire adult male citizenry," so that
"one purpose of the Founders having been to guarantee the arms of the
militia, they accomplished that purpose by guaranteeing the arms of the
individuals who made up the militia."7
Adherents of the "states' right only" theory of the Second Amendment assert
their position without examining the implications of their own theory. A
full understanding of the "states' right only" theory leads to conclusions
that will make its proponents even more uncomfortable than if they accepted
the individual right theory.[18] An honest application of the "states'
right only" theory, according to the rationale advanced by its own
adherents,[4-6] demands not merely armed state militias, but full military
parity for the states. In these times of tension between the states and
the federal government, gun prohibitionists should rethink the advisability
of promoting a theory that would return the US to armed confederacy.
Further, as Reynolds and Kates discuss, citizen disarmament would not
necessarily be an outcome of an honest application of the "states' right
only" theory of the Second Amendment.[18]
That the Supreme Court has acknowledged the individual right, but done
little to protect that right, is reminiscent of the sluggishness of the
Supreme Court in protecting other civil rights before those rights became
politically fashionable. It has taken over a century for the Supreme Court
to meaningfully protect civil rights guaranteed to African-Americans in the
Fourteenth Amendment. The claim that "no court has ever overturned a gun
law on Second Amendment grounds" is not only false (Nunn v. State [19] and
in re: Brickey[20] overturned gun laws on Second Amendment grounds), but is
also the equivalent of a morally indefensible claim in 1950 that "no court
has ever overturned a segregation law."
Supreme Court decisions have been thoroughly reviewed in the legal
literature. Since 1980, of thirty-nine law review articles, thirty-five
note the Supreme Court's acknowledgment of the individual right to keep
and bear arms[21] and only four claim the right is only a collective right
of the states (three of these four are authored or co-authored by employees
of the antiselfdefense lobby).[22 ] One would never guess such a
precedential and scholarly mismatch from the casual misinterpretations of
the right in the medical literature and popular press. The error of the
gun prohibitionist view is also evident from the fact that their "states'
right only" theory is exclusively an invention of the twentieth century
"gun control" debate - a concept of which neither the Founding Fathers nor
any pre-1900 case or commentary seems to have had any inkling.[7-12,23]
Though the gun control debate has focused on the Second Amendment, legal
scholarship also finds support for the Right to Keep and Bear Arms in Ninth
Amendment "unenumerated" rights,[24] Fourteenth Amendment "due process"
and "equal protection" rights,[25,26,27,28 ] and natural rights
theory.[23] Also, in the absence of explicit delegated powers, the Tenth
Amendment guarantees that the powers are reserved to the States and the
people,[29] making several provisions of the Brady Law
unconstitutional.[30]
1 Centerwall BS. "Television and violence: the scale of the problem and
where to go from here." JAMA. 1992; 267: 3059-63.
2 Centerwall BS. "Exposure to television as a risk factor for violence."
Am. J. Epidemiology. 1989; 129: 643-52.
3 Centerwall BS "Young adult suicide and exposure to television." Soc.
Psy. and Psychiatric Epid. 1990; 25:121.
4 Vernick JS and Teret SP. Firearms and health: the right to be armed
with accurate information about the second amendment. Am. J. Public Health.
1993; 83(12):1773-77.
5 Henigan DA. Arms, anarchy and the second amendment. Valparaiso U. Law
Review. Fall 1991; 26: 107-129.
6 Ehrman K and Henigan D. The second amendment in the 20th century: have
you seen your militia lately? Univ. Dayton LawJReview. 1989; 15:5-58.;
7 Van Alstyne W. The second amendment and the personal right to arms.
Duke Law Journal. 1994; 43(6): 1236-55.
8 Kates D. Handgun prohibition and the original meaning of the second
amendment. Michigan Law Review. 1983; 82:203-73.
9 U.S. Senate Subcommittee on the Constitution. The right to keep and
bear arms: report of the Subcommittee on the Constitution of the Committee
on the Judiciary. United States Congress. 97th. Congress. 2nd. Session.
February 1982.
10 Malcolm JL. To keep and bear arms: the origins of an Anglo-American
right. Cambridge MA: Harvard U. Press. 1994.
11 Halbrook SP. That every man be armed - the evolution of a
constitutional right. Albuquerque NM: University of New Mexico Press.
1984.
12 Cramer CE. For the defense of themselves and the state: the original
intent and judicial interpretation of the right to keep and bear arms.
Westport CT & London, England: Praeger. 1994.
13 Presser v. Illinois. 116 U.S. 252 (1886). at 265.
14 U.S. v. Cruickshank. 92 U.S. 542 (1876).
15 Miller v. Texas 153 U.S. 535 (1894).
16 Roberston v. Baldwin 165 U.S. 275 (1897).
17 Miller v. U.S.. 307 U.S. 174 (1938).
18 Reynolds GH and Kates DB. The second amendment and states rights: a
thought experiment. College of William and Mary Law Review. Summer 1995.
19 Nunn v. State. 1Ga. 243 (1846).
20 in re: Brickey. 8 Idaho 597, 70 P. 609 (1902).
21 Articles supportive of the individual rights view include:
Van Alstyne W. The second amendment and the personal right to arms. Duke
Law Journal. 1994; 43(6): 1236-55.; Amar AR. The bill of rights and the
fourteenth amendment. Yale Law Journal. 1992; 101: 1193-1284.; Winter 1992;
9: 87-104.; Scarry E. War and the social contract: the right to bear arms.
Univ. Penn. Law Rev. 1991; 139(5): 1257-1316.; Williams DL. Civic
republicanism and the citizen militia: the terrifying second amendment.
Yale Law Journal. 1991; 101:551-616.; Cottrol RJ and Diamond RT. The second
amendment: toward an Afro-Americanist reconsideration. The Georgetown Law
Journal. December 1991: 80; 309-61.; Amar AR. The bill of rights as a
constitution Yale Law Journal. 1991; 100 (5): 1131-1210.; Levinson S. The
embarrassing second amendment. Yale Law Journal. 1989; 99:637-659.; Kates
D. The second amendment: a dialogue. Law and Contemporary Problems. 1986;
49:143.; Malcolm JL. Essay review. George Washington U. Law Review. 1986;
54: 452-464.; Fussner FS. Essay review. Constitutional Commentary. 1986; 3:
582-8.; Shalhope RE. The armed citizen in the early republic. Law and
Contemporary Problems. 1986; 49:125-141.; Halbrook S. What the framers
intended: a linguistic interpretation of the second amendment. Law and
Contemporary Problems. 1986; 49:151-162.; Kates D. Handgun prohibition and
the original meaning of the second amendment. Michigan Law Review. 1983;
82:203-73. Halbrook S. The right to bear arms in the first state Bills of
Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts. Vermont
Law Review 1985; 10: 255-320.; Halbrook S. The right of the people or the
power of the state: bearing arms, arming militias, and the second
amendment. Valparaiso Law Review. 1991; 26:131-207.; Tahmassebi SB. Gun
control and racism. George Mason Univ. Civil Rights Law Journal. Winter
1991; 2(1):67-99.; Reynolds GH. The right to keep and bear arms under the
Tennessee Constitution. Tennessee Law Review. Winter 1994; 61:2. Bordenet
TM. The right to possess arms: the intent of the Framers of the second
amendment. U.W.L.A. L. Review. 1990; 21:1.-30.; Moncure T. Who is the
militia - the Virginia ratifying convention and the right to bear arms.
Lincoln Law Review. 1990; 19:1-25.; Lund N. The second amendment, political
liberty and the right to self-preservation. Alabama Law Review 1987;
39:103.-130.; Morgan E. Assault rifle legislation: unwise and
unconstitutional. American Journal of Criminal Law. 1990; 17:143-174.;
Dowlut, R. Federal and state constitutional guarantees to arms. Univ.
Dayton Law Review. 1989.; 15(1):59-89.; Halbrook SP. Encroachments of the
crown on the liberty of the subject: pre-revolutionary origins of the
second amendment. Univ. Dayton Law Review. 1989; 15(1):91-124.; Hardy DT.
The second amendment and the historiography of the Bill of Rights. Journal
of Law and Politics. Summer 1987; 4(1):1-62.; Hardy DT. Armed citizens,
citizen armies: toward a jurisprudence of the second amendment. Harvard
Journal of Law and Public Policy. 1986; 9:559-638.; Dowlut R. The current
relevancy of keeping and bearing arms. Univ. Baltimore Law Forum. 1984;
15:30-32.; Malcolm JL. The right of the people to keep and bear arms: The
Common Law Tradition. Hastings Constitutional Law Quarterly. Winter 1983;
10(2):285-314.; Dowlut R. The right to arms: does the Constitution or the
predilection of judges reign? Oklahoma Law Review. 1983; 36:65-105.; Caplan
DI. The right of the individual to keep and bear arms: a recent judicial
trend. Detroit College of Law Review. 1982; 789-823.; Halbrook SP. To keep
and bear 'their private arms' Northern Kentucky Law Review. 1982;
10(1):13-39.; Gottlieb A. Gun ownership: a constitutional right. Northern
Kentucky Law Review 1982; 10:113-40.; Gardiner R. To preserve liberty -- a
look at the right to keep and bear arms. Northern Kentucky Law Review.
1982; 10(1):63-96.; Kluin KF. Note. Gun control: is it a legal and
effective means of controlling firearms in the United States? Washburn Law
Journal 1982; 21:244-264.; Halbrook S. The jurisprudence of the second and
fourteenth amendments. George Mason U. Civil Rights Law Review. 1981;
4:1-69. Wagner JR. Comment: gun control legislation and the intent of the
second amendment: to what extent is there an individual right to keep and
bear arms? Villanova Law Review. 1992; 37:1407-1459.
The following treatments in book form also conclude that the individual
right position is correct:
Malcolm JL. To keep and bear arms: the origins of an Anglo-American right.
Cambridge MA: Harvard U. Press. 1994.; Cottrol R. Gun control and the
Constitution (3 volume set). New York City: Garland. 1993.; Cramer CE. For
the defense of themselves and the state: the original intent and judicial
interpretation of the right to keep and bear arms. Westport CT: Praeger
Publishers. 1994. Cottrol R and Diamond R. Public safety and the right to
bear arms. in Bodenhamer D and Ely J. After 200 years; the Bill of Rights
in modern America. Indiana U. Press. 1993.; Oxford Companion to the United
States Supreme Court. Oxford U. Press. 1992. (entry on the Second
Amendment); Foner E and Garrity J. Reader's companion to American history.
Houghton Mifflin. 1991. 477-78. (entry on "Guns and Gun Control"); Kates D.
"Minimalist interpretation of the second amendment" in E. Hickok, editor.
The Bill of Rights: original meaning and current understanding.
Charlottesville: U. Press of Virginia. 1991.; Halbrook S. The original
understanding of the second amendment. in E. Hickok, editor. The Bill of
Rights: original meaning and current understanding. Charlottesville: U.
Press of Virginia. 1991.; Young DE. The origin of the second amendment.
Golden Oak Books. 1991.; Halbrook S. A right to bear arms: state and
federal Bills of Rights and constitutional guarantees. Greenwood. 1989.;
Levy LW. Original intent and the Framers' constitution. Macmillan. 1988.;
Hardy D. Origins and development of the second amendment. Blacksmith.
1986.; Levy LW, Karst KL, and Mahoney DJ. Encyclopedia of the American
Constitution. New York: Macmillan. 1986. (entry on the Second Amendment);
Halbrook S. That every man be armed: the evolution of a constitutional
right. Albuquerque, NM: U. New Mexico Press. 1984.; Marina. Weapons,
technology and legitimacy: The second amendment in global perspective. and
Halbrook S. The second amendment as a phenomenon of classical political
philosophy. -- both in Kates D (ed.). Firearms and violence. San Francisco:
Pacific Research Institute. 1984.; U.S. Senate Subcommittee on the
Constitution. The right to keep and bear arms: report of the Subcommittee
on the Constitution of the Committee on the Judiciary. United States
Congress. 97th. Congress. 2nd. Session. February 1982.
regarding incorporation of the Second Amendment:
Aynes RL. On misreading John Bingham and the fourteenth amendment. Yale Law
Journal. 1993; 103:57-104.;
22 The minority supporting a collective right only view:
Ehrman K and Henigan D. The second amendment in the 20th century: have you
seen your militia lately? Univ. Dayton LawJReview. 1989; 15:5-58.; Henigan
DA. Arms, anarchy and the second amendment. Valparaiso U. Law Review. Fall
1991; 26: 107-129.; Fields S. Guns, crime and the negligent gun owner.
Northern Kentucky Law Review. 1982; 10(1): 141-162.; and Spannaus W. State
firearms regulation and the second amendment. Hamline Law Review. 1983;
6:383-408.
In addition, see:
Beschle. Reconsidering the second amendment: constitutional protection for
a right of security. Hamline Law Review. 1986; 9:69. (conceding that the
Amendment does guarantee a right of personal security, but arguing that
personal security can constitutionally be implemented by banning and
confiscating all guns).
23 Kates D. The second amendment and the ideology of self-protection.
Constitutional Commentary. Winter 1992; 9: 87-104.
24 Johnson NJ. Beyond the second amendment: an individual right to arms
viewed through the ninth amendment. Rutgers Law Journal. Fall 1992; 24 (1):
1-81.
25 Curtis M. No state shall abridge. Durham NC: Duke. 1986. pp. 52, 53,
56, 72, 88, 140-1 and 164.
26 Amar AR. The Bill of Rights and the fourteenth amendment. The Yale Law
Journal. 1992; 101: 1193-1284.
27 Aynes RL. On misreading John Bingham and the fourteenth amendment.
Yale Law Journal. 1993; 103:57-104.
28 Halbrook S. Freedmen, firearms, and the fourteenth amendment. in That
every man be armed: the evolution of a constitutional right. Albuquerque,
NM: U. of New Mexico Press. 1984. Chap. 5.
29 New York v. United States. 112 Sup.Ct.Rptr. 2408 (1992).
30 18 USC section 922(s) (2), the portion of the Brady Law that orders
State-created chief law enforcement officers to search available records
and to ascertain the legality of handgun transactions, has been held
unconstitutional in Printz v. United States. , 854 F. Supp. 1503 (D. Mont.)
1994), appeal pending (9th Cir. No. 94-36193); Mack v. United States, 856
F. Supp. 1372 (D. Ariz.), appeal pending (9th Cir. No. 94-16940); McGee v.
United States, 863 F. Supp. 321 (S.D. Miss. 1994), appeal pending (5th Cir
No. 94-60518); Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994);
Romero v. United States; Romero v. United States No. 94-0419, W. D. La.
(Dec. 8, 1994). Romero also held that section 922(s) (6) (B) and (C), which
require chief law enforcement officers to destroy records of handgun
transactions and to write letters explaining denials, unconstitutional
under the Tenth Amendment.
Koog v. United States, 852 F. Supp. 1376 (W.D. Tex. 1994), appeal pending
(5th Cir. No. 94-50562), the only district court opinion to uphold all of
section 922(s), argues that the latest US Supreme Court precedent on the
Tenth Amendment is contracdictory and makes logical leap[s]. Id. at 1381,
1386 n. 20. ...