Particularly regarding the rights, duties and responsibilities of the Citizen to forestall the rise of tyrants, & disputing the validity of the matter of gun prohibition, together with an inquiry into the apparent enmity between the champions of the First and Second Amendments.
David Lance Goines
Work in Progress, begin November 12, 1992
Version of September 10, 1993
For my Grandfather
William Odus Burch
Who taught me how to shoot
Warren Charles Goines
Who taught me how to think
"Tyranny, like Hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly; it is dearness only that gives everything its value." - Thomas Paine (1)
THE WORLD changes constantly; so much so that a lesson learned in the past isn't necessarily a useful lesson now. I'm not sure we can apply the errors of the past to enable us to act better. An understanding of the past might even cause paralysis. You see that nothing's simple; everything's interconnected; it's all relative; there is nothing that can be called truth. There is no truth at all, of any kind, about anything.
You start out as a child with exposure to a narrow environment, and the concept that there are right and wrong ways to live and act. You ask questions and you get answers. You ask, "Why is the sky blue?" and the teacher answers, "Because it reflects the sea." That's the answer. That is the truth. When you hear another answer, you're tempted to reject it as false, because, after all, how can there be two truths? Then you find out that your teacher was somewhat mistaken and you get confused. This is the beginning of wisdom.
By studying history you become aware that there are many explanations for everything and that they all are, if not precisely true, at least equally true. Even though one explanation may not be much good, is not therefore invalid. The "because it reflects the sea," answer may not tell you much about the sky, but it tells you a lot about your teacher. Even though one answer may be a good one, it does not invalidate the others.
In debates going on now about, say, the First Amendment, many of those who argue in favor of it tend to reject the other arguments in favor of it, not realizing that both can be perfectly true.
A fairly vigorous debate has arisen surrounding the Second Amendment, as well, and how it should be interpreted at the close of the millennium. People come up with "an" answer to these questions, rejecting all the other answers. They deny the other answer a voice. They won't listen to what the other person has to say. This is dimwitted.
The Framers of the Constitution and Bill of Rights had a lot of things in mind. They tried to include as many of them as possible, without excluding things that they hadn't thought of, or that hadn't happened yet, but might. They were inclusive, rather than exclusive.
The Framers recognized one great truth, and left all the little truths to look after themselves: the Bill of Rights did not create the rights that it outlines. The Bill of Rights recognizes and discusses, guarantees and protects certain rights, but it did not call them into being. Even if the Bill of Rights did not exist, or if it were repealed, or if it were so circumscribed by law and judicial opinion as to become meaningless, the rights would nonetheless exist undiminished. They would merely be accorded no official protection.
The First Amendment guarantees that the government will not interfere with your right to speak out against injustice or to worship God. That right existed long before there was a First Amendment, or even a State. Without that right, there could be no just government. Government is just in direct proportion to the amount of free speech people have, and the lack of official interference with matters of conscience.
The Second Amendment does not create the private right to keep and bear arms. It recognizes the pre-existing right and enumerates one good reason for it, without implying in any way that other such good reasons do not exist. You have a right to protect yourself from criminals, both public and private, and you have a right to the means of protection. You have a right and an obligation to come to the need of the State, risking your life and property if necessary. You have a right to purge the State of tyrants, by force if necessary. That is, after all, what the Founders of our nation actually did, and they did not do it with hard words or their naked fists. All these reasons are good reasons, and two, or three, or four good reasons do not ever add up to only one good reason.
There are a lot of reasons why people should have privacy. There are a lot of reasons why people must be able to speak and write and read whatever they want to. There are a lot of reasons why your sexual affairs are nobody's business but your own; what; with whom, when or where. There are a lot of reasons and they're all correct, and none of the reasons excludes the others.
There are many explanations for everything. I guess that's the main thing I've learned so far-that there are myriad right answers, and they're all right.
I enjoy target shooting, which is the pleasant pursuit of turning money into noise. It's not quite as much fun as shooting tin cans off a fence post, but we do live in the big city. I'm not as good a shot as my dear mother, nor yet as good as her father, who was a paragon, but with time I may improve. We Goines' have a long tradition of keeping the means for resistance within easy reach. In 1717 the Crown took away my first American ancestor's land, with the excuse that he was "a Negro, and consequently not a citizen." By 1834 the Free Colored citizens of most Southern and many Northern states had lost all their civil rights, including the right to keep and bear arms. My ancestors did not agree that they should become second-class citizens, and went into the hills, guns, dogs, children and all. It then became a simple matter of just how serious the State was in its desire to enslave them. You will not be surprised to hear that representatives of the State found themselves in some doubt on the matter when vigilantes, militia-men and soldiers went into the hills and did not come out again. We used them for fertilizer. If you think it can't happen here and now, you've got another think coming. Look at Waco. My ancestors did not fight and shed their life's blood for my rights so that I might blandly surrender them to fools and demagogues.
"Who's going to catch us? We're the police. We're in charge." - Bernard Cawley, New York Police Force (2)
PEOPLE go to church because they already believe what the preacher is saying. Their attendance is more along the line of reinforcing a conviction that what they already think correct are opinions shared by others. Not too many go in the front door as heathens and come out when the service is over as Episcopalians.
The American Civil Liberties Union Newsletter reaches an audience of people who have joined the ACLU because they already agree with its goals. Members of the National Rifle Association get monthly comfort from American Rifleman magazine, which is addressing an audience already persuaded and doesn't really need much beyond the occasional refresher course in the basic ideology. These publications are preaching to the choir.
Think of me more as a streetcorner evangelist. This essay is not aimed at those who already agree with my contention that the Second Amendment of the Constitution guarantees individual citizens the right to keep and bear arms. I'm after the ones who don't agree, or who have no clear opinions on the subject, but feel a vague sense of unease when the matter comes up.
The Second Amendment to the Constitution is part of a fabric of rights that depend utterly, each on the next, for the integrity of the whole. Weaken one, and you weaken all. Strengthen one, and all gain vigor.
Our system of government depends upon a balance of powers, not only among the tripartite administration, not only between the several states and the federal authority, but between the governed and the government. Its bulwarks are in the First and Second Amendments. The people have a right to criticize their government, and to replace it-severally or collectively-if necessary. This makes the government responsive to the needs of the people. In non-democratic political systems, the rulers are isolated from the citizenry. The pain of the people is rarely the pain of the ruler, and since the ruler does not starve in the famine, or get shot in the war, or suffer abuse at the hands of the police, the ruler has no incentive to care about the needs and desires of the people. In a democracy, the people can take the government to task, thus providing it with a genuine incentive to accede to their demands; to listen to their needs; to follow their suggestions.
The ballot is the strength behind our free press. The press keeps us informed of government activity, and if the people are displeased with their elected and appointed officials, when election time rolls around, they can replace them. But what, you might ask, is the strength behind the ballot? Ballots are only made of paper, and if the government really, truly, chooses to ignore them-to break the law-then what?
We live in a society of law. Few, if any, nations have a written constitution that binds all parties in the manner of our Constitution. The Constitution outlines the duties and responsibilities of all parties-federal government, states and private citizens-to one another, and spells out how the balance is to be maintained. This ultimate law was intentionally made exceedingly difficult to change.
Most laws contain an "enabling clause." That's the part of the law that isn't the law itself, but which says, "we have the ability to enforce this law." As far as we private citizens are concerned, the "enabling clause" of the Bill of Rights is the Second Amendment. The Second Amendment provides for a right of the people themselves to do three main things. First, to defend their lives and property from those who would do them harm. Second, to come to the assistance of the State in time of need, and third-and this is the "enabling clause," to throw off, by force of arms if necessary, a tyrannous government.
Those who would weaken the right of Americans to posses, carry and use guns should appreciate that if they succeed, they will in the same act diminish a vital safeguard of citizen rights.
Those who believe that America will be a safer, pleasanter place if that right is diminished should carefully examine the actual causes of crime and violence, and appreciate that these causes are in no meaningful way connected with the presence or absence of arms among the people.
Those who believe that other nations-England, Canada, or Japan-have a program of gun prohibition that we might profitably emulate, should also understand that all other citizen rights in these nations are weak in direct proportion. They might keep in mind that if First Amendment rights, or the right to trial by jury, or the right to counsel, or freedom of religion, were being discussed, they would likely find the policies of these nations reprehensible. They would not be pleased to hear that these nations either do not have a constitution in any proper sense, or do not pay any attention to its provisions. They would not caper with joy to find that every single right that they hold precious has been nibbled away, or did not exist in the first place, or is in the process of erosion to the same, exact degree as the right of the citizen to keep and bear arms. (3)
The future of our nation is not certain. Paths diverge in ways that we cannot foresee. Actions have consequences that we cannot predict. We have the oldest Constitutional democracy in the world. It provides for a tremendous degree of freedom, and accepts a tremendous degree of risk. It entrusts the people with power that no other government will tolerate.
Let those who would trifle with the magnificent machinery of our Republic take care that, by their ignorant meddling, they do not destroy the whole.
You Say You Want a Revolution?
ON October 26, 1774, the First Continental Congress met in Philadelphia to consider its response to "Intolerable Acts," imposed by the British colonial authority. The fifty-six delegates, representing every shade of political thought to be found among the American colonies-from the utmost conservatism to those of the radical firebrand-passed ten resolutions enumerating the rights of the colonists and their assemblies. But, the colonial reaction was not confined to empty talk:
This is the most magnificent movement of all! There is a dignity, a majesty, a sublimity, in this last effort of the patriots that I greatly admire. The people should never rise without doing something to be remembered-something notable and striking. This destruction of the tea is so bold, so daring, so firm, intrepid and inflexible, and it must have so important consequences, and so lasting, that I can't but consider it as an epocha in history! - John Adams, Diary [on the Boston Tea Party, December 17, 1773]
In response to the Boston Tea Party the British Parliament dispatched General Thomas Gage, together with 4,000 troops, to the New World. General Gage was made Governor of Massachusetts, and his troops were quartered on the populace.
Anticipating armed rebellion, the first move that General Gage made was to capture or destroy hidden stores of patriot guns and powder, and to arrest John Hancock and Samuel Adams. On the night of April 18, 1775, Paul Revere, Billy Dawes and Samuel Prescott rode to warn the Lexington Minutemen that seven hundred British troopers were crossing the Lexington River, headed for Concord, to capture a rebel arsenal. On their way to Concord, Revere and Dawes were arrested and held, but Prescott managed to escape. In Lexington, seventy-seven Americans gathered on the village green to confront ten times their number. As the British approached, the Minutemen opened fire; the British responded, and in the resulting skirmish eight Americans were killed. Meanwhile, Prescott had managed to carry the warning to Concord, where ringing churchbells called farmers and townspeople from their homes. The Concord militia attacked a troop of British soldiers holding a bridge leading into the town, and from positions behind trees, stone walls, houses, barns and hillocks of earth, poured a withering fire into the British ranks. The British retreated to Lexington, where they were met by reinforcements. On their return to Boston, the British troops were harassed constantly by colonial snipers and suffered heavy losses.
The purpose of these hidden munitions, arsenals and secret hordes of powder and shot that General Thomas Gage so urgently sought, was to enable the American colonists to throw off the intolerable yoke of an unjust, incompetent, rapacious and punitive government.
What is a Right?
Inalienable rights are those of which a man cannot divest himself by contract; which he may not, under any circumstances, lawfully demit; but he may forfeit them by crime, and be wrongfully deprived of them by others - Mark Hopkins, lecture, Lowell Institute, Boston, 1862
THE Constitution outlines two kinds of citizen rights, one natural and the other arising from society. Natural rights are those that come with the condition of being human. These are the rights to life, liberty and the pursuit of happiness. All people have a right to these things, and by implication, a right to resist infringement upon them.
A natural right, as it is understood in the Constitutional sense, can neither be conferred nor withdrawn. It is innate, axiomatic, a thing that can only be recognized or ignored. The Framers of the Constitution and Bill of Rights did not conceive of themselves as creating, but rather as guaranteeing, natural rights which they derived from the English tradition of Common Law. The two most important rights, considered the cornerstones of a free people, were the right to own property and the right to keep and bear arms.
Political rights are those which do not come with the condition of humanity, but which are a function of living in human society. These rights are more problematic, and the Constitution spent a good deal of time outlining them.
The right to vote, or have a trial by a jury, or to be able to post bail, or to bring a suit at law-these are not rights that are innate. These are rights which have been established over a period of time, and which the Framers of the Constitution believed would make for a just and healthy nation.
Therefore, when we talk about rights, we are actually talking about two kinds of rights, which over time have become somewhat intermixed. However, when push comes to shove, we get back to the basics: we have a right to live, and a right to defend ourselves against anyone who would take our life from us. We have a right to freedom, and a right to resist anyone or any institution that would enslave us. We have a right to own property, and to enjoy the fruits of our labor. We have a right to protect our property and to keep it if someone tries to take it away unjustly or illegally. These are the natural rights that are protected by the Second Amendment.
The political rights that are enumerated throughout the Constitution were deemed by the Founders to be essential for the protection of the natural rights. The right to vote is a simple, non-violent weapon which in the hands of a well-informed, free electorate will prevent most injustice. Our whole Republican form of government is a weapon against tyranny. Freedom of speech will keep the electorate aware of what the government is doing. Freedom from a State religion is a right that will prevent a terrible amount of social friction. All the political rights are calculated to protect the natural rights, and to forestall the rise of tyranny and the consequent destruction of our nation. Once political rights are acquired, they become part of the underpinnings of natural rights.
Since the first ten amendments to the Bill of rights were added to the Constitution, we have continually enlarged the concept of political rights. Rights can expand, but they cannot contract. With rights, as with living things, it's grow or die. Or, as Gibbon said, "All that is human must retrograde if it does not advance." (4)
At the time of the American Revolution, the American of Black African ancestry existed in some doubt as to his rights to full citizenship. (5) When the Fourteenth Amendment was passed, he cast off forever any doubt that he was a full citizen with all rights, duties and privileges of that condition. Even though these rights were not acknowledged within the original Constitution, they exist now, and Black Americans are not going to lose the right to vote, to own property, to resist enslavement. If anyone were to attempt to infringe upon or withdraw any of these rights, Americans of Black African ancestry-even though their grandfathers and great grandfathers did not enjoy any of the rights of citizenship-would have a right to appeal to all possible resources under the law and, those failing, to resort to force of arms.
The concept of both natural and political rights as inalienable is contained in the Pennsylvania Declaration of Rights of 1776, which enumerates "certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." And a real effort was made to carve these rights in stone. Section 46 of the Pennsylvania Constitution provided: "The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretense whatever." (6)
Much of what American Colonial thinkers conceived of as "natural rights," and "natural law," derives from De Iure Belli ac Pacis, a comprehensive work on the law published in 1625 in Paris by Hugo Grotius.
Another important source for the concept of rights is found in the seminal thinking of In The Leviathan, Thomas Hobbes outlined significant legal concepts, and discussed the concept of rights at length. Hobbes posits a state in which the welfare of society-safety and civil order-are paramount. The only right that Hobbes concedes is the right to self-defense, which he argues cannot be given, bargained or taken away.
Rights, therefore, can be divided into the two classes of natural and social. A further definition of rights can be made according to the means by which they are obtained.
A natural right is inborn. It can be recognized or unrecognized, but it exists and may be appealed to regardless of other circumstances. A natural right can neither be taken or bestowed, nor can it be surrendered voluntarily or unwillingly. A natural right is inalienable.
A right can be granted, but by the same measure, so can it be withdrawn. The right to own property, for example, exists at the sufferance of the State and may be restricted, altered or taken away entirely as it serves or impedes the welfare of the State. If an individual is said to own property, this is a semantic distinction which does not actually explain the relationship of the owner to the rest of society. The State may tax the property and take it away if the tax is not paid. The State may define who may and may not own property, and closely legislate what may be done on and with it. The State may narrowly control the buying and selling of property, and prohibit some transactions and require others. Thus, it might be said that there exists-and in this Hobbes fully agrees-no actual right to own property at all, but that the citizen holds property in trust for the good of the State. If the good of the State conflicts with the desires of the citizen, the State takes precedence.
A right may be won, or lost. Such rights as are won require unceasing vigilance for their preservation, as by their very existence they are a continual challenge to the sovereignty of the State. The First Amendment enumerates rights that were created and maintained by conflict between the citizen and the State. Such rights wax and wane, according to the times and the circumstances. Hobbes did not accept the validity of such rights, as they threatened public safety.
The simplest definition of a right is that it is no more than what you can get and hang onto. There are in reality no such things as inalienable rights, as demonstrated by the simple fact that they are alienated all the time all over the place. Might, in no small sense, makes right, and the prudent citizen is well advised to be sure that he retains as much might-both political and physical-as he possibly can. No person or institution takes anything away if it entails more risk than the confiscation justifies.
The concept of certain rights as axiomatic, that is, a universally recognized, self-evident truth, for which no proof is necessary, does not originate with political thinkers like Thomas Hobbes or John Locke, but they do find themselves in the position of having to find some inalienable attribute of even the most primitive human, within or outside society. The rights that they at length conclude are axiomatic are those that they feel can neither be conferred nor withdrawn. They cannot be given up, and even the meanest slave or most backward savage possesses and enjoys them to the same degree as the monarch or wealthy citizen. Thomas Hobbes, who concedes absolutely nothing in the way of rights or liberties of the individual, nonetheless admits of the right to self-defense:
For not every fear justifies the action it produceth, but the fear only of corporeal hurt, which we call bodily fear, and from which a man cannot see how to be delivered, but by the action. A man is assaulted, fears present death, from which he sees not how to escape, but by wounding him that assaulteth him; if he wound him to death, this is no crime; because no man is supposed at the making of a commonwealth, to have abandoned the defense of his life, or limbes, where the law cannot arrive time enough to his assistance. (7)
Hobbes qualifies this with the caveat of obligation to seek assistance and not to take the law into one's own hands,
But to kill a man, because from his actions, or his threatenings, I may argue he will kill me when he can, (seeing I have time, and means to demand protection, from the Sovereign Power,) is a crime. (8)
John Locke finds that freedom of conscience and the freedom to worship God as one sees fit, are axiomatic:
... no man can give another man power (and it would be to no purpose if God should) over that over which he had no power himself. Now that a man cannot command his own understanding, or positively determine today what opinion he will be of tomorrow, is evident from experience and the nature of the understanding, which can no more apprehend things otherwise than they appear to it than the eye see other colors of the rainbow than it doth, whether those colors be really there or not. (9)
Religious worship being that homage which I pay to that God I adore in a way I judge acceptable to him, and so being an action or commerce passing only between God and myself, hath in its own nature no reference at all to my governor, or to my neighbor, and so necessarily produces no action which disturbs the community. (10)
From what is premised I think will follow:
1. That in speculations and religious worship every man hath a perfect, uncontrollable liberty which he may freely use, without, or contrary to the magistrate's command, without any guilt or sin at all ... (11)
What we have here presented as axiomatic, inalienable rights are, of course, the very foundation stones of the First and Second Amendments.
What is the Distinction Between a Right and a Power?
Governments are instituted among Men, deriving their just powers from the consent of the governed.
The government has powers. Citizens have rights. The government may confer powers on specific citizens, such as policemen to act as its agent. The government may not, however, confer rights. Citizens grant powers to the government, but government has no rights, except against other branches of itself.
What is the Law?
MY understanding of Anglo-Saxon law is that at its center, it is not capricious. It is based on three profound traditions: precedent, written rules, and rhetorical conflict.
It derives, ultimately, from the Babylonian tradition of formal legal contracts-a system of the utmost antiquity, antedating writing itself by a good five thousand years. (12) The concept of written laws arose from these contracts and disputes concerning them. From this tradition, in turn, springs the Judeo-Christian tradition of encoded law, to which all who would do right refer, and by which actions are judged as correct or incorrect. The third leg upon which our system of laws rests is the adversarial concept. This is the very center of our own legal system. It pits champions against one another before an impartial judge, and derives from the rhetorical devices of the ancient Greeks.
Written Law and Judgment are Based on Precedent
THE code of Hammurabi marks the departure from tribal custom administered by the headman. The Babylonians relied on an actual written set of rules, to which all, without regard for class or status, were compelled to turn for justice. It was the law of the State, not the family or tribe, arising out of the ancient concept of the written contract. The center of the written law was precedent: tens of thousands of contracts and litigations stored in the temples over thousands of years. The law was administered by judges and appeal was allowed.
The Bible, that cornerstone of American thought, presents the identical transition from headman administering tribal justice to formal judge administering written law. As tribal leader, Moses handed down judgments among the people, each verbal case tried individually, based upon oral tradition and custom alone:
Exodus 18: 13-20 And it came to pass on the morrow, that Moses sat to judge the people: and the people stood by Moses from the morning unto the evening
And when Moses' father in law saw all that he did to the people, he said, What is this thing that thou doest to the people? why sittest thou thyself alone, and all the people stand by thee from morning unto even?
And Moses said unto his father in law, Because the people come unto me to enquire of God:
When they have a matter, they come unto me; and I judge between one and another, and I do make them know the statutes of God, and his laws.
And Moses' father in law said unto him, The thing that thou doest is not good.
Thou wilt surely wear away, both thou, and this people that is with thee: for this thing is too heavy for thee; thou art not able to perform it thyself alone.
Hearken now unto my voice, I will give thee counsel, and God shall be with thee: Be thou for the people to God-ward, that thou mayest bring the causes unto God:
And thou shalt teach them ordinances and laws, and shalt shew them the way wherein they must walk, and the work that they must do.
Moses listened to his father in law, and at his earliest opportunity went up to Mount Sinai where he got clear, simple, written laws from God, conveniently carved in stone for future reference:
Exodus 24: 12 And the Lord said unto Moses, Come up to me into the mount, and be there: and I will give thee tables of stone, and a law, and commandments that I have written: that thou mayest teach them.
Absolutely none of this was lost on the Framers of the Constitution. The original ten Amendments to the Constitution are the verso of the tablets handed down to Moses from Mount Sinai: the ten "Thou Shalt Nots" from God to the people are mitigated by the ten "Thou Shalt Nots" from the people to the State.
The Oresteia of Aeschylus (525-456 BC) is a tale of the transition from the family as the fundamental social structure, and private revenge as a means of redress, to the ascendance of the State and submission to formal law. The build-up is contained in the first two plays of the tragic trilogy, Agamemnon and Choephorae, and is resolved in the Eumenides, in which the Furies are transformed from private gods, avengers of family wrong, into public gods and protectors of the State.
The real lesson of the Eumenides is clearly that the old law of blood incessantly crying for more blood, which hitherto had been thought inescapable, must be superseded, and that Athens, mother of civilization, is the natural sponsor of the higher code. Converted by Athena, the avenging Furies change their nature and become well-disposed. (13)
. . . with their ancient office (the protection of the sacredness of the blood tie) not abrogated . . . but enhanced, since thenceforth they will punish violence within the polis, not only within the family. (14)
The Adversarial Tradition
THE Western adversarial tradition stems from the Ancient Greeks, who discovered the power of language as creator of reality. They had trouble with the idea at first, as we still do. The charge against Socrates, for which he was sentenced to death, was that he made the weaker argument appear the stronger, and corrupted the youth.
Roman law was based on the Greek tradition of two skilled orators publicly arguing a case before judges. The speaker with the best argument won. Similarly, "the American criminal justice system, like the American political system, expects that justice will arise out of the conflict between various independent authorities." (15)
Two contending attorneys duke it out under the watchful eye of a judge. A jury decides who made the better case, and the stronger argument carries the day.
Our entire system of government is based on the adversarial concept. Each part of the government is pitted against the others, all keeping watch over all. The executive, legislative and judicial vie for power, each kept from taking over by the jealousy of the other two. The people and the government itself are also at constant odds, each trying to wrest the most power from the other.
This adversarial tradition is central to the way we thrash out how our society is to operate. The Second Amendment is a vital buttress of this tradition, giving the people real power against the State.
Our nation has a long history of bitter dispute over basic legal, political and social issues. Most of the time we've managed to work it out through public debate. The current dispute over interpretation of the Second Amendment falls within this fine old tradition, and this paper is part of the bloodless fray.
This is how our society works, and we like it that way. Other societies are different, and their ways work fine for them. When we look at other cultures and admire or dislike one part or another, we must be careful to remember that we can't take one aspect out and examine it in isolation, any more than one part of our own culture can be praised or condemned without considering the whole.
The Constitution is a Written Contract
THE Constitution is a written contract between the State and the citizen. The actual blackletter of a contract is not generally set aside in favor of later or different interpretations. The Constitution is not a suggestion of how things might be under ideal circumstances, or a starting-point for negotiation.
Contending parties may agree to re-write the contract, but one side may not do so unilaterally and expect the other party to continue to abide by its conditions. Usually, when one party violates the letter and spirit of a contract, the other party may consider the bargain void, and negotiate for a new and better contract. This is exactly what the Declaration if Independence is: the formal refusal to abide by a contract that has been abrogated by the other party, and a demand for a new relationship. Just listen to the language:
When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. . . . But when a long train of abuses and usurpations, pursuing inevitably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
This is the aggrieved party saying, "you broke your side of the contract." Then, the various transgressions are enumerated:
To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good. . . .
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. . . .
He has affected to render the Military independent of and superior to the Civil Power.
And so on and so forth. The Declaration goes on to indicate that the injured party has made a bona fide effort to come to the table, but has been snubbed:
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.
It ends with the statement, "the deal is off."
We, therefore, . . . solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be dissolved . . .
There. Now that's the way to dissolve a contract.
By 1790 a contract between the original colonies and their new government had been drawn up and agreed to. All that remained was to append the theretofore neglected contractual statement that outlined the relationship of the private individuals who made up the States to their government. What is expected of the citizen? What can the citizen expect from the State? What happens if there is a disagreement? What happens if there is a really serious disagreement? What guarantee does the citizen have if the State violates any part of its bargain? What powers does the citizen retain to ensure the fidelity of the State?
This enumeration of citizen rights was added to the Constitution in 1791.
Why do We Have a Written Constitution?
It has been often doubted too, whether a written constitution has any superiority over one unwritten. This is a point of comparison between the English constitution, and that of Virginia. An unwritten constitution can, upon the appearance of a defect, be amended, without agitating the people. A written one is a standing ark, to which first principles can be brought on to a test. Whatever merit is due to either opinion, it should not be forgotten, that the sprit of a people will in construction frequently bend words seemingly inflexible, and derange the organization of power. - Edmund Randolph, "Essay on the Revolutionary History of Virginia" (circa 1809-1811) (16)
THE precept of democracy is that of individual accountability within the framework of law. The Framers of the Constitution were well-educated men. They were steeped in the Classics, from which they derived an ideal of society.
The citizens of Athens devised a new system of government that looked to the citizens themselves. Democracy, or "rule of the people," worked reasonably well in the small city-states, but eventually broke down into "ochlocracy" or "rule of the mob." The flaw of the Athenian system lay in the ability of the assembly to make or change the very structure of law on a whim. (17)
In the Republic Plato warned, "Democracy passes into despotism." (18) What Plato meant by this was that if the people were all-powerful, the whim of the moment could persuade them to unjust, ill-considered acts which would in short order create chaos. The resulting anarchy would cause the citizens to demand safety and order, to effect which they would elect or create a dictator. The dictator would make it his first order of business to destroy his only real enemy, the aristocracy. This accomplished, he would created and maintain a standing army, by which to enforce his will. Once in the hands of the dictator, there would be no escape. This, in short, is exactly what happened to Rome.
The democracy of our fledgling Republic recognized this danger, and compelled all democratically-arrived-at decisions to the scrutiny of a higher law-the Constitution-which was intentionally made extraordinarily hostile to tampering.
The English "constitution," on the other hand, is largely unwritten. It depends upon precedent modified by a constant process of interpretation. Much of the constitution is no more than legal history, that is to say, it has been developed by the courts as part of the general body of common law. Though this flexibility may be considered a virtue, the fact that there is no written reference allows the British parliament to commit the errors of the ancient Greeks. Parliament is supreme, with no check or limitation save what can be found in precedent.
What Can and Cannot be Done by Those Who Disagree with the Law
INTERPRETATION of the law relies on precedent: how has the law been applied in the past? What were the intentions of the lawmakers themselves?
Americans who dislike guns, for whatever reasons, are welcome to dislike guns as much as they please. They may not, however, entertain the conceit that their dislike of guns provides a sound basis for infringement of a fundamental Constitutional right. They may not cite the way things are done elsewhere as a sound basis for interpretation of the Bill of Rights. They may not pick out one part of the Second Amendment that they like and let the rest go where it may.
Those who most strongly favor gun prohibition must reconcile the legal precedent for the Second Amendment, as well as the legislative intent of the Framers of the Constitution, with their desire to see the American people deprived of arms. I do not believe this is possible. Their only recourse is the repeal or re-writing of the Second Amendment, in which I wish them the joy of their endeavor.
"As Mr. Justice Frankfurter noted in reference to criticism of the privilege against self-incrimination as an obstacle to the needs of law enforcement in an era of rampant crime: 'If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.' " (19)
Arma virumque cano.-Virgil, The Aeneid, Book One, line 1. (20)
OUR Founding Fathers based many of their decisions on how to organize the new nation's government on the examples of Ancient Greece and Rome, and the historical example-provided to the Colonial citizen by Edward Gibbon's (1737-1794) Decline and Fall of the Roman Empire-of gradual destruction of the Roman Republic. When discussing the intent underlying the Constitution and Bill of Rights, we must consider the examples of Athens and Rome, and realize that the loss of freedom and rise of dictators were of the utmost concern to the classically-educated framers of our early government. Our Founding Fathers took pains to avoid repeating the errors of the Ancient Greek and Roman Republics. They believed that with the fall of the Roman Empire, mankind slipped into a slough of darkness, only gradually to emerge into the daytime of the Enlightenment. They intended to do everything in their power to prevent such another decline of Western civilization.
Aristotle-the author of the Athenian Constitution-warned, in Politics, that a characteristic of tyrants was "mistrust of the people; hence they deprive them of arms." (21)
The Founding Fathers were familiar with the myth of Prometheus, creator and friend of Mankind. When Zeus, the king of the gods, resolved upon destroying the human race and replacing them with other beings, Prometheus alone concerned himself with their fate. He stole fire from Olympus and brought it in a hollow reed to Mankind, thus conferring on his creatures the power to resist the tyrant Zeus.
The parallel between fire in a hollow reed and firearms in the Second Amendment is so obvious that I scarcely need draw it. The framers of the Constitution knew that the people needed a defense against an otherwise all-powerful State. Not merely a bulwark of words, as provided for in the First Amendment, but one of action, as well. Without the Second, the First is "bricks without straw." (22) Weak, liable to crumble, likely to wash away.
English Antecedents for the Second Amendment to the Bill of Rights
DURING and after the Revolution, the loosely allied States were governed by the Continental Congress under the Articles of Confederation, which delegated severely limited powers to the central government, and reserved the rest to the states. The lack of central authority, combined with economic chaos and political confusion, spurred the call for a convention to consider a new form of government. On September 17, 1787, a new Constitution was drawn up, and was ratified by all the States of the Union by May 29, 1790. The Constitution outlined the machinery of government, defining the relationship of the central government to the Several States, and of the States to each other, but did not address the issues defining the relationship of those governments to their individual citizens. To remedy this, the first Ten Amendments to the Constitution were adopted in 1791. They were patterned on the British "Bill of Rights," of 1689, which we should examine before proceeding.
The Declaration of Right
A cornerstone of English Constitutional history, the Declaration of Right-known also in England as the Bill of Rights-is not as well known as it might be. On the 13th of February, 1689, a committee of the Commons presented these fundamental principles of Constitution to the prince and princess of Orange, afterwards William III and Mary. This "Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown, for the vindicating and asserting their ancient rights and liberties" is remarkably similar to the American Bill of Rights, for which indeed it provided the model. Its seventh provision-heavily circumscribed and religiously biased though it may be-is undoubtedly the immediate ancestor of our own Second Amendment, and the strong foreshadowing of other elements of our Bill of Rights is plain to see.
The first part of the statute listed the abuses of Charles II and James II:
(5) By raising and keeping a standing army within this kingdom in time of peace, without the consent of parliament, and quartering soldiers contrary to law.
(6) By causing several good subjects, being Protestants, to be disarmed at the same time when papists were both armed and employed contrary to law.
The second part of the Bill of Rights "created laws to prevent recurrence of the abuses. It affirmed that the right to bear arms (like other rights) was not being created or granted by government, but had always been a traditional right of Englishmen:" (23)
(1) That the pretended power of suspending of laws or the execution of laws by regal authority without consent of parliament is illegal.
(2) That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.
(3) That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.
(4) That levying money for or to the use of the crown, by pretense of prerogative, without grant of parliament, for longer time or in other manner than the same is or shall be granted, is illegal.
(5) That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.
(6) That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
(7) That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law.
(8) That elections of members of parliament ought to be free.
(9) That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.
(10) That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
(11) That jurors ought to be duly impaneled and returned and jurors which pass upon men in trials for high treason ought to be freeholders.
(12) That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.
(13) And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliament ought to be held frequently. And they do claim, demand and insist upon all and singular the premises, as their undoubted rights and liberties.
The Magna Carta
ANTICIPATING this document, and of equal if not greater importance in the history of rights of individuals as against the State, is the Magna Carta, granted on the 15th of June, 1215 at Runnimede by King John, surnamed "Lackland" (1167-1216), to the English people. These are laws that the king himself must obey. The king signed them at sword's point, not at all happy about it. The king reneged on his bargain, and by force of arms was compelled again to treat with his subjects. He died-tradition has it that the cause was a surfeit of peaches-on the 19th of October, 1216. In the main, the Magna Carta is concerned with money, and the various rotten ways that Bad King John was squeezing the people to get it. Incidentally, it delves into matters of administration of justice, and outlines the ideals of good government.
The Magna Carta contains three significant contributions to our concept of government: first, that the king could not levy taxes without the consent of a representative of the people. Second, that he could not imprison a free man or deprive him of his property except by the judgment of that man's peers or the law of the land. Third, it contains the exceedingly important idea that the king is not above the law, and may be compelled to obey it by the same means that any other person is compelled to obey the law: by force.
This third concept is contained in Chapter LXI, which provides for the execution of the royal promises, and what is to happen if the king does not abide by them.
LXI: Inasmuch as, for the sake of God, and for the bettering of our realm, and for the more ready healing of the discord which has arisen between us and our barons, we have made all these aforesaid concessions,-wishing them to enjoy for ever entire and firm stability, we make and grant to them the following security: that the barons, namely, may elect at their pleasure twenty five barons from the realm, who ought, in all their strength, to observe, maintain and cause to be observed, the peace and privileges which we have granted to them and confirmed by this our present charter. In such wise, namely, that if we, or our justice, or our bailiffs, or any one of our servants shall have transgressed against any one in any respect, or shall have broken some one of the articles of peace or security, and our transgression shall have been shown to four barons of the aforesaid twenty five: those four barons shall come to us, or, if we are abroad, to our justice, showing to us our error; and they shall ask us to cause that error to be amended without delay. And if we do not amend that error, or, we being abroad, if our justice do not amend it within a term of forty days from the time when it was shown to us, or, we being abroad, to our justice: the aforesaid four barons shall refer the matter to the remainder of the twenty five barons, and those twenty five barons, with the whole land in common, shall distrain and oppress us every way in their power,-namely, by taking our castles, lands and possessions, and in every other way that they can, until amends shall have been made according to their judgment. Saving the persons of ourselves, our queen and our children. And when amends shall have been made they shall be in accord with us as they had been previously. And whoever of the land wishes to do so, shall swear that in carrying out all the aforesaid measures he will obey the mandates of the aforesaid twenty five barons, and that, with them, he will oppress us to the extent of his power. And, to any one who wishes to do so, we publicly and freely give permission to swear; and we will never prevent any one from swearing. Moreover, all those in the land who shall be unwilling, themselves and of their own accord, to swear to the twenty five barons as to distraining and oppressing us with them: such ones we shall make to swear by our mandate, as has been said. And if any one of the twenty five barons shall die, or leave the country, or in any other way be prevented from carrying out the aforesaid measures,-the remainder of the aforesaid twenty five barons shall choose another in his place, according to their judgment, who shall be sworn in the same way as the others. Moreover, in all things entrusted to those twenty five barons to be carried out, if those twenty five shall be present and chance to disagree among themselves with regard to some matter, or if some of them, having been summoned, shall be unwilling or unable to be present: that which the majority of those present shall decide or decree shall be considered binding and valid, just as if all of the twenty five had consented to it. And the aforesaid twenty five shall swear that they will faithfully observe all the foregoing, and will cause them to be observed to the extent of their power. And we shall obtain nothing from any one, either through ourselves or through another, by which any of those concessions and liberties may be revoked or diminished. And if any such thing shall have been obtained, it shall be vain and invalid, and we shall never make use of it either through ourselves or through another. (24)
This chapter creates a committee of barons, to which, if the king or any of his servants do something wrong, complaint may be made. The barons, in turn, are to make complaint to the king. If within forty days the wrong is not redressed, the committee of barons has the power to seize land and property of the king, or to obtain justice in any other way possible. They must not, however, kill the king, the queen, or their children. As it happened, this clause was required immediately.
In granting the citizenry the right to force the king to respect and obey the law, Chapter LXI comes very close indeed to our Second Amendment. There is a reason that this clause is in the Magna Carta: without it-without the underpinning of force of arms-the entire document would be "a scrap of paper." (25) The Second Amendment is in the Constitution for a similar reason.
Blackstone as Interpreter of English Common Law
WILLIAM Blackstone (1723-1780), through his Commentaries on the Laws of England (1765), became the arbiter of English common law. His work was intimately familiar to every Colonial jurist. He was a great admirer of the Magna Carta, and through him its principles were elucidated and discussed in Revolutionary times. (26)
Blackstone conceded that the rights that the barons claimed for themselves, they claimed for the nation at large. Thus, the Magna Carta was regarded by the Framers of the Constitution as giving equal rights to all Englishmen. At the time of the American Revolutionary War, we were Englishmen, too.
Blackstone specifically discussed the right of "the subject," by which he meant any Englishman, to have arms for his personal defense as well as to resist "the violence of oppression."
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 1 W. & M. st. 2 c. 2. and is indeed a public allowance, under due restriction, of the natural right of resistance and self-preservation, when the sanctions of society are found insufficient to restrain the violence of oppression. (27)
In his May 13-15, 1776, notes of the debates of the Continental Congress John Adams quoted a Mr. Wilson citing the precise section of the Magna Carta as justifying the rebellion:
In Magna Charta, there is a Clause, which authorizes the People to seize the K[ing]'s Castles, and opposes his Arms when he exceeds his duty.
The appeal-all else failing-contained within the Magna Carta to force majeure is exactly what the Second Amendment is all about. Lacking this ultimate resource-the physical capacity to compel a wayward government to hearken and act as the people demand-the balance of the Bill of Rights means nothing.
Legislative Intent Behind the Second Amendment
DEBATE surrounding the adoption of the Second Amendment is noteworthy for its scarcity. Two quite contrary conclusions may be drawn from this: one, that it was of no great importance, added as an afterthought, just something to be gotten through. Another, and more likely explanation, is that the Framers were in such profound accord on this matter that debate was entirely unnecessary.
But, a reliable index of intent can be gleaned from what the Founding Fathers said and wrote about guns.
Amateur gunsmith Thomas Jefferson had a handsome collection of pistols and long guns, and wrote to his fifteen-year-old nephew, "A strong body makes the mind strong. As to the species of exercise, I advise the gun. While this gives moderate exercise to the Body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion on your walks." (28)
I must say that it pleases me no end to imagine the reaction that the anti-gun thinker must have when he is compelled to accept that the men who framed the Constitution were near to religious in their reverence for firearms. They thought guns were swell, and went on and on about the contrast between America and degenerate Europe and England where the leaders were "afraid to trust the people with arms," and that Americans need have no fear of their own government because of "the advantage of being armed, which the Americans possess over the people of almost every other nation." (29)
As Jefferson said in a letter to George Washington, "One loves to possess arms." (30) George Washington seems also to have loved to possess arms, for he had a collection of fifty, and in his own writings he talks about them frequently in the most laudatory terms. (31)
James Monroe believed that "the right to keep and bear arms" was a "basic human right" that he proposed be amended into the Constitution. (32)
Patrick Henry said, "the great object is, that every man be armed. . . . Everyone who is able may have a gun." (33) Patrick Henry and George Mason were appointed co-chairmen of a committee to draft a Bill of Rights to be added to the Constitution. Mason was selected because he and Richard Henry Lee kicked up a fuss because a Bill of Rights had not been part of the original Constitution, and the two of them are responsible for a compromise which allowed the Constitution to be ratified by the Several States on the condition that a Bill of Rights would follow immediately. George Mason felt that the English monarch's intention to "disarm the people; . . . was the best and most effectual way to enslave them." (34) Lee, no less concerned with the individual right to arms, wrote in Letters From the Federal Farmer, that "to preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them." (35)
To secure ratification of the Constitution, the Federalists had committed themselves to the addition of "further guards for private rights." (36) To this end, the Federalists put forward Madison, the leading and most ardent supporter of the original Constitution in Congress, to draft the proposed amendments. Madison's own notes on his proposal reflect the ultimate organization of the Bill of Rights; his notes on the amendments, in which the right to arms appears very early, state that the amendments "relate first to private rights." (37) Equally corrosive of the exclusively state's right view is the original organizational scheme revealed by Madison's notes. Not conceiving the idea of simply appending the whole set of amendments to the Constitution as a separate document (today's "Bill of Rights"), Madison intended to attach them to, or after, each section of the original Constitution to which they related. Had he viewed the right to arms as merely a limitation on article I, section 8's provisions concerning congressional control over the militia, he would have inserted in section 8 immediately after clauses 15 and 16. Instead, he planned to insert it with freedom or religion, of the press and various other personal rights in section 9, immediately following clause 3, which establishes the rights against bills of attainder and ex post facto laws.
Surely the amendment was understood by Madison's congressional colleagues as guaranteeing an individual right. For instance, Madison's proposals that "the rights of conscience, of bearing arms [etc.] . . ., are declared to be inherent in the people." (38) In addition, two written interpretations on the proposed amendments were available to the members of the first Congress. The first, and more authoritative-by virtue of having received Madison's imprimatur-was a widely reprinted article by his ally and correspondent Tench Coxe. Having discussed the first amendment, Coxe moved on to describe the second in unmistakably individual rights terms: As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms. (39)
A similar interpretation appears from Anti-Federalist editorials. Samuel Adams, who had taken the modified Anti-Federalist position of conditioning ratification upon the addition of a guarantee of personal rights, had proposed in the Massachusetts Convention that "the said constitution be never construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms. (40)
Though this is telling, the wealth of debate that reveals the inner workings of other Constitutional provisions is lacking.
We may therefore successfully consult legislation that immediately preceded, as well as legislation that immediately followed the enactment of the Second Amendment.
The Pennsylvania Declaration of Rights enumerates sixteen rights of citizens, and is immediately followed by the Plan or Frame of Government for Commonwealth or State of Pennsylvania, which enumerates 46 provisions for the structure of the state. Passed in Convention on September 28, 1776, and signed by Benjamin Franklin, as president of the Convention, it anticipates the Constitution and Bill of Rights of the United States. In this document, article XII contains provisions incorporated into the First Amendment:
That the people have a right to freedom of speech, and of writing and publishing their sentiments: therefore the freedom of the press ought not to be restrained. (41)
Immediately following this, as is also the case with the Bill of Rights, is article XIII:
That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power. (42)
As if to emphasize the acceptance of the armed citizen as good and normal, Article VIII, which states "That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto . . . "makes particular provision for one who because of conscience, cannot be a part of the militia: " . . . Nor any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent . . . " (43)
Just as Articles XII and XVI found themselves combined into the First Amendment, so did Article XIII and the concept of militia service find themselves combined in the Second. As I discuss below (Origins of Liberal Anti-gun Sentiment), the idea of exempting conscientious objectors was discussed in the process of framing the Bill of Rights, but was dismissed as a possible ploy for disarming citizens who had no such objection. The provision that a citizen could pay someone else to serve for him if his conscience forbade bearing arms also did not make it into the Bill of Rights, though it was proposed.
An examination of this document reveals much of the original hashing-out of the Constitution and Bill of Rights. It is much wordier and legalistic than its successor, but makes abundantly plain what such men as Thomas Paine-one of its framers-intended when they pared it down to the more elegant form which followed. Not only do the Constitution and Bill of Rights contain whole phrases taken bodily from the Pennsylvania document, but the telling phrase "the people have a right" and other specific references to individual rights, recurs throughout, and particularly when there might be any doubt that these are rights reserved to individual citizens as against incursion by the State.
When the Constitution came up for ratification, both Pennsylvania and New Hampshire kicked up a big fuss about the absence of a Bill of Rights. On December 12, 1787, Pennsylvania proposed 15 amendments containing guarantees for individual rights:
The amendments proposed by the Pennsylvania minority bear a direct relation to those ultimately adopted as the federal Bill of Rights. Indeed, eight of the first 10 amendments were first suggested as amendments in the proposals of the Pennsylvania minority. These include the following Amendments ultimately adopted: the First (freedom of conscience, speech, and press-Pennsylvania's proposed amendments 1 and 6); Second (Pennsylvania's proposed amendment 7); Fourth (Pennsylvania's proposed amendment 5); Fifth (privilege against self-incrimination and right not to be deprived of life, liberty or property 'except by the law of the land or the judgment of his peers'-Pennsylvania's proposed amendment 3); Sixth (right to speedy and public jury trial, to accusation and confrontation, and counsel-Pennsylvania's proposed amendment 3); Seventh (Pennsylvania's proposed amendment 2); Eighth (Pennsylvania's proposed amendment 4); and Tenth (Pennsylvania's proposed amendment 15). (44)
New Hampshire ratified the Constitution on June 21, 1788, thus bringing it into effect. Though the ratification occurred without a successful demand that a Bill of Rights be included, the New Hampshire Ratifying Convention had recommended 12 proposed amendments.
The first nine were taken almost verbatim from those proposed by Massachusetts. The last three were added by the New Hampshire drafting committee: 10) No standing army without a three-fourths vote and a ban on troop quartering (the latter the first official state recommendation of what became the Third Amendment); 11) 'Congress shall make no laws touching Religion, or to infringe the rights of Conscience' (the first official state recommendation of the freedom of conscience guaranteed by the First Amendment and, most important, the first use of the actual prohibitory language with which the First Amendment starts-a vast improvement, from a legal point of view, in the language of the freedom of religion guarantee); 12) right to bear arms (the first official state recommendation to protect the right guaranteed by the Second Amendment). (45)
On June 27, 1788, the Virginia ratifying committee also insisted upon amendments protecting basic individual rights as a condition for ratification." (46) Article 17, later adopted as the Second Amendment, is as follows:
That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power. (47)
The Virginia Declaration of Rights of 1776 forms a precedent for all succeeding "Bills of Rights," and holds the singular distinction, followed by the Constitution and Bill of Rights of the United States, of being superior to all other laws within the state. It went through a number of drafts, but the first version in the handwriting of George Mason, stood substantially unchanged. In it, the antecedent of the Second Amendment finds an early form:
Article 12: That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power. (48)
Thomas Jefferson's draft of the Virginia Constitution makes clear that he considered an individual right to keep and bear arms an indispensable mark of freedom. Under "Rights Private and Public," he enumerates:
No freeman shall be debarred the use of arms [within his own lands or tenements] (49)
The First Militia Act (1792) opens a further window to the legislative intent of Congress. In this Act, the "militia" spoken of in the Second Amendment is clearly defined to include the entire able-bodied military-age male citizenry of the United States, and required each of them to own a personal firearm. Richard Henry Lee in Additional Letters From The Federal Farmer (1788) made it abundantly clear that no mistake should be made: "A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . . To preserve liberty it is essential that the whole body of people always possess arms. . . "
Cut it any way you want to, you still end up with a Constitution and Bill of Rights which was framed by men who unequivocally felt that every American citizen had the right, the privilege, the honor and the obligation to possess pistols, rifles and shotguns-all weapons which were fully current at the time. The opponents of the plain meaning of the Second Amendment may wriggle and squirm as much as they wish, but there's no way around it.
English common law, and its descendant, American common law, make much of legal precedence and legislative intent. Unless some way can be contrived to make an exception of the Second Amendment, its plain meaning must be honored in law and in spirit.
THE SECOND AMENDMENT ITSELF
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.
THERE are many good and sufficient reasons why the citizenry of a healthy Republic should be armed, all of which are expressly contained within, implied by, or beneath the penumbra of, the Second Amendment. None of these excludes the others. Indeed, they work together to make a strong fabric of legal purpose.
The Framers of the Constitution recognized the necessity of an armed populace, and incorporated that fundamental right into the Bill of Rights. The Second Amendment recognizes that:
The citizen has a natural and inalienable right to self defense and to the means of self defense.
The possession of arms distinguishes the free man from the slave.
The possession of arms breeds independence, self-respect and civic responsibility.
An armed citizenry reduces the incidence of criminal activity.
The armed citizen is not compelled to rely upon the assistance of the State for all protection.
The armed citizen forestalls the rise of a tyrant from within the State.
A citizenry accustomed to the use of arms and provided with their own personal weapons can come to the assistance of the State as a militia, either to subdue domestic turmoil or to repel a foreign invader.
The Second Amendment is not an Archaism
I am unprepared to accept that parts of the Constitution may be dismissed as vestigial archaisms, perhaps valid in the eighteenth century, but no longer of any relevance to our modern day.
The first ten amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties. The people wanted and demanded a Bill of Rights written into their Constitution. The amendments embodying the Bill of Rights were intended to curb all branches of the Federal Government in the fields touched by the amendments-Legislative, Executive, and Judicial. . . . In construing other constitutional provisions, this Court has almost uniformly followed the precept . . . 'It is never to be forgotten that, in the construction of the language of the Constitution . . ., as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument. . . . I cannot consider the Bill of Rights to be an outworn 18th century 'straight jacket' as the Twining opinion did. Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights. . . . To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution. - Justice Black, expressing a dissenting opinion in Adamson v California 332 us 46 (1947)
The whole trend of The Enlightenment was toward recognizing the significance of the individual as a valid participant in the political process. Individual responsibility for action and belief is the heart of the Protestant faith; a logical consequence of these concepts is that the citizen becomes the monitor of the State.
The Third Amendment, Though Infrequently Invoked, is not by that Standard Obsolete
THE Third Amendment provides that
No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
The Third Amendment is sometimes cited-in company with the Second-as an old-fashioned garment which we could easily discard. This is a dreadful misunderstanding. The reason that soldiers do not come into our houses, eat up our food, insult our womenfolk and spy on our daily activities is because it is forbidden by the Constitution, by the Congress, and by the people.
People tend to forget pain when the pain is no longer with them. They forget what caused the pain, and may even lightly dismiss the dangers that surround them simply because they are not at that moment suffering. They take chances that they shouldn't, get hurt, and wish they'd been more careful. But, by then it's too late.
Nothing would be more convenient for a repressive regime than to have soldiers living among-living in the very homes of-a suspect group. If the government could do so without fear of censure or retribution, you may be sure that soldiers would be quartered among and upon people in potential trouble spots.
Think of the Third Amendment as a kind of lightning rod that we all have on our houses. Should we tear it off just because we haven't been struck by lightning recently? If we dismiss the lightning rod as useless, have we not completely failed to grasp the function of a lightning rod? A lightning rod safeguards your house from destruction by lightning: if your house has not been destroyed by lighting, it means that either 1) there hasn't been any lightning around for a while or 2) the lightning rod has been doing its job. In either case, you'd have to be some sort of lunatic to take off the lightning rod simply because your house hasn't been demolished by lightning. I fail to see the virtue in the "it's old so lets toss it in the trash" line.
The Third Amendment follows the Second with good reason, just as-for equally good reason-the Second follows the First.
No less a menace than rioters or outlaws was the pillaging soldier, loosed not only on foreign populations but in his own country for political, religious, or social reasons or because of the King's inability to pay and thus to control him. Generally speaking, there was no difference in character among rioters, felons and soldiers-who were often one and the same. Often the soldier was a common criminal inducted directly out of jail and unleashed on the King's enemies, whether foreign or domestic. The perpetration of such outrages upon his critics by Charles I engendered the Petition of Right of 1628 and helped eventually to bring him to the headsman. But of innumerable such examples that might be cited from European history in this period, probably the one most remembered by eighteenth century Englishmen and Americans would have been the persecution that drove the Huguenots to their shores by the thousands. As a modern historian has noted, among the numerous tribulations visited in the 1690s upon the Huguenots in order to compel them to convert,
'. . . the most atrocious-and effective-were the dragonnades, or billeting of dragoons on Huguenot families with encouragement to behave as viciously as they wished. Notoriously rough and undisciplined, the enlisted troops of the dragoons spread carnage, beating and robbing the householders, raping the women, smashing and wrecking and leaving filth . . . [Barbara W. Tuchman, The March of Folly, 21 (Alfred A. Knopf, 1984)]
As Englishmen and Americans were well aware from their readings of Bodin, Beccaria and Montesquieu, the Huguenots had been rendered incapable of resisting either individually or as a group by the Continental policy of disarming all but the Catholic nobility." (50)
The Third Amendment is one of those rare examples of a law that everybody agrees is a good one, and that everybody obeys. (51) Scarce as hen's teeth.
The Fourth Amendment, against unreasonable search and seizure, flows inevitably from the Third:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
These same soldiers, so obnoxiously quartered on the citizens, were also the means by which the Crown sought to police the increasingly rebellious populace.
During the 1760s and early 1770s England dispatched ever-increasing numbers of troops as the Stamp Act was added to the Navigation Acts, and then succeeded by the Townshend Acts, the Tea Tax, etc. These soldiers (eventually operating under a specially appointed British Customs Board) executed both ordinary warrants and the notorious Writs of Assistance under which they made wholesale searches of vessels, homes, vehicles, and warehouses, perusing goods, documents and records, all in a tumultuous process in which even those things not seized were often destroyed along with the surrounding furnishings. (52)
In short, not only are these rights phrased in substantially identical terms (the first, second and fourth amendments all speak in terms of "rights of the people"), but their roots, and the situations in which they were visualized as operating, are closely identified. (53)
Despite Antique References, the Seventh Amendment Is not Obsolete
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
ANYONE who tried to seize upon the archaic "where the value in controversy shall exceed twenty dollars," and from that construct an edifice which denied the validity of the Seventh Amendment, would not get too far. The courts look at the literal wording, the original spirit and intent, and continue to enforce its clear dictate with no palaver about "twenty dollars" cluttering up the issue at hand.
Though courts sometimes give constitutional rights additional scope in order to effectuate what is deemed to be their original intent, courts have no authority to reduce or eliminate the plain terms of a constitutional guarantee because they disagree with that intent or view it as obsolete. (54)
This refusal to arrogate to itself the power to delete the provisions of the Constitution is clearly expressed in the case of State of Oregon v. Kessler (1980) in which the court acknowledged its responsibility to accept the intent of the drafters of the Constitution:
We are not unmindful that there is current controversy over the wisdom of a right to bear arms, and that the original motivations for such a provision may not seem compelling if debated as a new issue. Our task, however, in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment. (55)
In this the court bowed to the dictate of Alexander Hamilton who firmly stated in the Federalist Papers, Number 78, what courts may and may not do regarding legislation:
[T]he right of the courts to pronounce legislative acts void . . . [does not] by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. (56)
An Armed Populace Demands the Respect of its Government, and Intimidates the Aspiring Tyrant
I am not here to argue that guns are not dangerous, though indeed they are not so dangerous as many would like to think. Guns are dangerous, and that is their purpose. In the hands of the American public, guns are an inexpensive, highly effective form of insurance against the excesses of government, and against the rise of a tyrant. They serve, from time to time, to chasten an overweening authority and dish out a generally tonic lesson in humility, something that all governments profit from when they lose sight of their proper function.
The Second Amendment is a vital part of the system of checks and balances that has made our system of government so durable. Just as an armed citizenry discourages violent crime, so does it discourage the greatest enemy of Democracy, a rapacious government.
Among other evils which being unarmed brings you, it causes you to be despised. -Niccolò Machiavelli (1469-1527) The Prince (1532), chapter 14 (57)
Immediately after the disarming of the Japanese peasantry, the sword-wielding Samurai class was given the right to "kill and depart." To complete the humiliation and terror of the upstart peasant, any who failed to render appropriate subservience to his social better could be struck down on the spot and left to welter in his gore. This technique worked very well indeed. The neck of the Japanese people has grown to love the yoke for which it was fitted it in the sixteenth century. (58)
Government respects strength and despises weakness. Nothing illustrates this so well as Harry Hopkins' account of the "Big Three" meeting at Yalta toward the end of the Second World War. Churchill is reported to have told the other heads of state that the Pope had suggested that a certain course of action would be right. Stalin is reputed to have indicated his disagreement by asking, "And how many divisions did you say the Pope had available for combat duty?" (59)
The right of revolution is an inherent one. When people are oppressed by their government, it is a natural right they enjoy to relieve themselves of the oppression, if they are strong enough, either by withdrawal from it, or by overthrowing it and substituting a government more acceptable. - Ulysses S. Grant, Personal Memoirs, I
If they are strong enough. There you have it. If the people are weak, in resolve, in expression or in arms, they must endure oppression.
The logical response when the First Amendment rights are outlined is, "Where's the beef?" Right there in the Second Amendment.
The Second Amendment is the "enabling clause" of the original ten amendments to the Constitution. In order for a law to work, it must be enforceable. Within the structure of a body of law there is contained, either implicitly or explicitly, something that gives the law some teeth. The enabling clause of the Magna Carta was Chapter lxi, which provided the Barons with the right to use physical force against the king or his representatives if they disobeyed the law. When a policeman arrests a suspected criminal, the force employed is a legal use of force. What the framers of the Constitution provided with the Second Amendment was the legal use of force to compel the State to obey the law.
Succeeding amendments are "self enabling." The Thirteenth Amendment, for example, is in two sections. Section one is the amendment itself, followed by section two, which states, "Congress shall have power to enforce this article by appropriate legislation." This gist of this clause is repeated in the Fourteenth, Fifteenth, Eighteenth, Nineteenth, Twenty-third, Twenty-fourth and Twenty-sixth Amendments.
The Second Amendment exists to forestall the rise of tyranny. The balance of power between the government and the governed should be equal. All the might should not be on one side. Power corrupts, and an all-powerful government will become corrupt. If the citizen can confront his government with force of arms, it is that much more difficult for the government to become corrupt and tyrannous. The Founding Fathers regarded occasional "challenge from below," as good for a government. As Thomas Jefferson wrote in a letter to James Madison on January 30, 1787,
I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical.
And in a letter to William Stevens Smith on November 13, 1787,
The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.
To paraphrase William Safire, those in authority should occasionally be taught a lesson in humility. Government must not view itself as god-like, omnipotent, omniscient, omnipresent and eternal, because it isn't. Occasional suffering teaches an arrogant government to respect its constituency, and refreshes the collective mind that though government is not perfect, it is perfectible.
If citizens are at the mercy of their government, they strive to protect themselves when injustice is perceived by creating, from among themselves, tyrants and demagogues. A secure citizenry is much less influenced by rabble-rousers.
The operative word within the Second Amendment is "free." If the Second Amendment were to have been framed without that word, thus:
A well-regulated militia being necessary to the security of the State, the right of the people to keep and bear arms, shall not be infringed.
It would clearly outline a responsibility of the citizen to the State, similar to the obligation expressed and defined in Chapter xvi of the Magna Carta.
XVI: No one shall be forced to do more service for a knight's fee, or for another free holding, than is due from it.
Chapter XVI declares that those who owe military service for their lands shall not be called upon to perform more than the due amount of that service. This provision, protecting the citizen against a punitive or excessive military obligation, is quite distinct from Chapter LXI, which empowers the citizen to compel the king to honor his agreements, by force of arms if necessary.
Since, however, the Second Amendment indeed contains the word "free," two things become inescapable: first, that the Second Amendment was intended to reserve a right of citizens to protect themselves against possible incursions by the State itself and second, that the purpose of this Amendment was to keep the State itself free. Free from foreign aggression, no doubt; free from domestic insurrection, probably; but free from the most dangerous eventuality likely to confront the fledgling Republic-the rise of internal demagogues and despots-certainly. To entrust the welfare of the State to the State itself is, on its face, nonsense. To safeguard the State by entrusting its welfare within the body of the people themselves is plainly the legislative intent.
Caesar had his Brutus; Charles the First his Cromwell; and George the Third ["Treason!" cried the Speaker]-may profit from his example. If this be treason, make the most of it. - Patrick Henry, Speech on the Stamp Act, House of Burgesses, Williamsburg, Virginia, May 29, 1765.
Citizens should be armed in order to counter the dangers of a professional, king-making army, unresponsive to any branch of government (see clause 6 of the Declaration of Right, above). The interests of the military and the interests of a democracy are often in conflict. If one side has all the words and the other side has all the guns, in the event of controversy the well-organized, armed party will probably prevail. This happened in Ancient Rome, and it could happen here. The professional army, particularly the Praetorian Guard, became the kingmakers of Rome, even going so far as to elect a dictator from among their number. Therefore, the framers of the Constitution provided for a citizen army, as in the early days of the Roman Republic.
What the Second Amendment says is this: in order to throw off the yoke of tyranny, we need a citizenry that's able to form an army. In order to do that, we have to make sure that the guns aren't all on one side (the tyrant's) but evenly distributed among the populace. This will serve two useful ends: first, we'll have citizens who can, on short notice, become competent soldiers if we need them. Second, they'll have enough clout to intimidate the potential tyrant so that we might not even need to bring out the militia in the first place. An armed citizenry is its own best excuse, if you follow my drift. (60)
If we go beyond the models provided by Britain, and examine the broad Classical foundation of the Constitution, we can make a good case that the intent of the Second Amendment was not so much to resist an aggressor, or to topple a tyrant, as to prevent the rise of a tyrant in the first place. We see therefore that the "well-regulated militia, being necessary to the security of a free State," is not so much designed to prevent the invasion of King George as to forestall the rise of King George Washington. This interpretation is entirely valid in the light of the model of ancient Rome and its decay and the thorough understanding of the problems of a new Republic in the light of the old.
Nothing is in the Constitution for No Reason
ANY contention that the Second Amendment is present in the Bill of Rights by random accident, and is not there because it enumerates rights of the citizen vis-a-vis the State is deeply unconvincing. The right of the citizen to keep and bear arms is enumerated in the Bill of Rights, immediately after freedom of speech and religious worship, because it is of the greatest importance, and its precepts were elemental to earlier English documents with similar aims. I am unprepared to accept that the framers of the Constitution, so perspicacious in other regards, took a casual attitude toward these first ten amendments to the Constitution.
In Richfield Oil Corp. v State Bd. of Equalization, Justice Douglas, recounting a dictum of Chief Justice Marshall, stated, "it would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of [the Constitution] expressly provide, shall be exempted from its operation." (61)
The Second Amendment Applies to Both the Federal Authority and to the States
THE argument that the Second Amendment is applicable only to federal authority, and not to the states, is exactly the sort of weasel wording used in bygone times to slip around the demonstrable intent of the framers of the Constitution. This is the argument that in times past was also leveled against the First Amendment, and is as invalid now as it was then. The Fourteenth Amendment clearly states,
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fifteenth Amendment, which has been found so elastic as to stretch the First Amendment to cover the Several States and all localities within them, extends the strictures binding the Federal Authority to bind the States, as well.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Should, therefore, the Federal Authority recognize the fundamental right to self-defense expressed by Thomas Hobbes and recapitulated in the Federalist Papers, the sundry restrictions imposed by the various States, counties and municipalities would be swept away with one breath.
The celebrated case of Heart of Atlanta Motel, Inc. v United States (1964) which outlawed private discrimination in public accommodations held that Congress had "ample power" to overturn state and local laws when they came into conflict with the precepts of the Fourteenth and Fifteenth Amendments. In a similar case, the State of South Carolina held that the reserved powers of the state were encroached upon by the 1965 Voting Rights Act. In South Carolina v Katzenbach (1966) the Court held that the Fifteenth Amendment gave Congress broad powers to "use any rational means to effectuate the constitutional prohibition of racial discrimination in voting."
What's sauce for the goose is sauce for the gander. I would like to see the logic of these cases applied to the Second Amendment.
The Second Amendment Reserves a Right of the People as Individuals
FROM the founding of our nation through the middle of this century, the general legal understanding of the Second Amendment has been that it guaranteed every law-abiding citizen the right to possess most ordinary weapons. (62)
Coincident with the Warren Supreme Court (1953-1969), a period distinguished by otherwise sweeping liberalization of the rights of the individual, somehow the Second Amendment ran afoul of an anti-gun mentality which sought to divest the individual of his arms in favor of an interpretation that guaranteed the right as extending only to the Several State's right to arm formal military units. (63) Contrary to the general trend, this States' Rights, anti-Second Amendment stance was eagerly embraced by those who should have most been outraged by it-the American Civil Liberties Union and the American Bar Association.
The measure that the Second Amendment exists solely "in furtherance of a well-regulated militia," i.e., whether it serves the State, not whether it serves the individual citizen is the official position of the American Civil Liberties Union, as outlined in a letter to me on June 11, 1993. (64)
The Framers of the Constitution did not differentiate between the citizens right to bear arms for the purpose of self defense and for the purpose of serving the needs of the State, and it is a flight of legal fancy to distinguish between them on Constitutional grounds.
It is absurd to construe the Second Amendment as having no relevance outside of service to the welfare of the state, since a central function of the Second Amendment is forestall the extermination, enslavement and abuse of citizens by their own government.
Furthermore, the Second Amendment contains the telling words, "right of the people." The Constitution makes careful use of these words, and any reading which interprets them other than contained in the plain legislative intent is wrong on its face. When the Bill of Rights uses the phrase "the people," or "the right of the people," it refers to the right of the people as distinct from the right of the States. No slight-of-hand can separate the identical phrase in the First Amendment, the Fourth Amendment and the Ninth Amendment from that found in the Second. No legerdemain can pretend that the Tenth Amendment does not clearly outline a separation of powers among the United States, the States themselves and the people. I cannot imagine the logical process that contrives to construe that the phrase "right of the people" actually means "right of the States" in this Amendment only, while freely admitting that any such reading, if applied to the First Amendment or to the Fourth would be utterly grotesque.
I encountered this same pitiful logic in a book that was kicking around the house when I was a boy. In it, the author strained to prove that every time the Bible used the word "wine," it actually meant "grape juice." (65) Even at the age of seven I was unconvinced. Even a child can see through this sort of shabby rhetoric, and I find myself astonished and ashamed that any responsible, well-educated American-such as members of the American Bar Association or the American Civil Liberties Union-could seriously expect such a painfully contrived conclusion to pass unremarked. If the matter were not so serious, it would be comic.
The Second Amendment does not Secure a Collective Right to the Exclusion of an Individual Right
MANY otherwise staunch defenders of the Constitution and Bill of Rights support an interpretation of the Second Amendment which "guarantees nothing to individuals, [and] protects only the state's right to maintain organized military units." (66)
The American Civil Liberties Union was founded by Roger Baldwin in 1920 as a primary defender of the First Amendment. In no time flat, it became the champion of the whole Bill of Rights, with the notable exception of the Second Amendment. To be sure of the ACLU's position, in April of 1993 I wrote them and asked them to tell my what the ACLU official position actually was. On June 8, 1993, I received a reply from Rita Buland, speaking for ACLU Public Education:
As you know, the amendment states that "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."
The ACLU agrees with the Supreme Court's longstanding interpretation of the Second Amendment as set forth in the 1939 case, U.S. v Miller: that the right to bear arms applies only to the preservation of a "well-regulated militia." Except for police and military purposes, we believe that the possession of weapons by individuals is not constitutionally protected. (67)
I have enclosed a copy of our policy on gun control. (68) As you can see, there was a period of time just after the adoption of this polity when the ACLU affirmatively supported gun control legislation. That portion of the policy was reconsidered and corrected in 1980 so that now the ACLU takes a neutral position on the gun control issue.
Our neutrality on this issue means that we neither favor nor oppose gun control laws. Rather, we believe that there is no constitutional objection to gun control laws in general. At the same time, however, we are mindful of regulation, licensing, and registration schemes which may involve violations of civil liberties, because they may involve invasions of privacy or may engender illegal searches and seizures.
It is true, many hold a different view of the Second Amendment. And its "true" meaning, of course, has perplexed constitutional scholars for quite some time. Reasonable people can, and do, disagree over whether or not the amendment confers an individual civil liberty to bear arms, or instead recognizes the right of the states to maintain militia capable of resisting tyranny by the federal government.
Many people have argued that the right to own guns is textually manifest in the Constitution. This, in itself, is far from clear. However, even if such an interpretation were clear, it is still unclear whether the Constitution was meant to be understood and followed literally. The ACLU believes that in analyzing any civil liberties policy, one must begin prior to and independent of the existence of any given constitutional or other legal protection. (69) We must put ourselves in the position of the framers of the Constitution and ask what rights we believe should exist. (70) The Constitution then provides enforceable legal protection for those rights.
For example, we support free speech not because there is a First Amendment; rather, we support the First Amendment because we believe in free speech and need strong legal protection for it. If the First Amendment were abolished tomorrow, our policies supporting freedom of expression would remain unaltered, although it would be much more difficult to implement them. (71)
So, what was the liberty interest that the framers were trying to protect when they adopted the Second Amendment? It was not the interest in arming citizens against one another [emphasis in original]. (72) Rather, it was the interest in preventing the government [emphasis in original] from enjoying a monopoly of weapons sufficient to destroy the liberty of the citizenry. (73) The desire of some people to defend themselves against criminals rather than cede that responsibility to a public police force is not a civil liberty against the state. In short, the ACLU believes the liberty interest the framers had in mind when they adopted the Second Amendment was the maintenance of state militia (which at that time was made up of armed citizens) in order to be able to resist national government tyranny. (74) And the framers' very great concern over national government tyranny was based on their own very recent experience with the British monarchy. (75)
Two hundred years ago, the only way to maintain the states' collective capacity to resist national armed might was to maintain state militia; and the only way to do that was to allow citizens to remain armed. (76) Is that still true today? If we regard private citizens as our protectors against national repression, then we must provide them with adequate arms to do the job. Muskets may have been sufficient in the 18th century, but today we're talking tanks, bazookas, missile launchers and helicopters. Any meaningful arming of individual citizens today against government repression would raise powerful countervailing public interests in not permitting individuals to own such weapons. (77)
I have briefly commented in footnotes on some of the major points of disagreement with this interpretation of the Constitution and Second Amendment. These arguments are expanded upon throughout the text. I wish here to discuss the actual wording, per se, and two deeply differing readings of the same sentence.
The reading that the ACLU, among others, gives to the Second Amendment is, at the very least, one which betrays a singular inability to parse an English sentence. Their semantic interpretation is this: since the state needs a militia, the people may be armed. Furthermore, the people may be armed only to the degree that the state requires a militia, and then only with weapons that are appropriate to the actions of a state militia. If the state no longer requires a militia made up of armed citizens, there is no longer any justification for citizens to possess arms. Since we have a volunteer militia, armed by the state rather than by the individual members, and since we have a police force at the state, county and local level, there is no longer any Constitutional justification for any citizen to have any weapon. The Second Amendment secures a collective, rather than an individual right.
Leaving aside for the moment that the notion of "collectivity" has been used to exclude citizens from their individual freedoms in the past, and that this is no exception, let us concentrate on the actual structure of this not terribly complex English sentence.
The schoolmarms who have parsed the Second Amendment in this manner have parsed it wrong. Let us return to the blackboard.
"The right of the people to keep and bear arms," is an independent clause. This phrase recognizes that the people already had the right; that it was a pre-existing right, and that it was not to be infringed upon. Clearly, a right that does not already exist cannot be infringed upon, and the use of the word "shall not be infringed" plainly acknowledges that the right already existed and was recognized as such, even before there was such a thing as a State. The Second Amendment is not calling the right into existence, but is acknowledging the reality that the people already possessed the right to keep and bear arms. That they had a right to self-defense and to the means of self-defense; that they had a right to possess weapons for the purpose of securing food for themselves and their families; that they were expected to come to the common defense in the event of necessity; all these were fully recognized by the Framers of the Constitution as already in existence. When the Second Amendment says, "A well-regulated militia being necessary to the security of a free State," this is a dependent clause which adds to the reasons why the right of citizens to be individually armed should not be infringed. It does not define the reason why they should be armed, nor does in constrain the reason why the people have this right. The Second Amendment adds to pre-existing rights the additional justification that the armed citizen has the right and obligation to serve in the militia for the purpose of ensuring the domestic tranquillity, to come to the defense of the individual state in the event that the federal authority should attempt to treat it unjustly, and to prevent the rise of tyrants on both the local and federal levels.
There is nothing in the Constitution that states or implies that the inclusion of one right diminishes another. Indeed, the Ninth Amendment clearly states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Any reading of the Second Amendment which contrives to parse its structure in such a manner that it actually infringes upon a clearly understood right of the people which was specifically not to be infringed by the addition of another right-that of serving in the militia in order to keep the state free from tyranny-is contrary to both the spirit and the letter of the legislative intent, the blackletter of the Amendment itself, and the clear meaning of the Ninth Amendment.
Any interpretation that the Second Amendment secures a collective right to the exclusion of a personal right is nonsense on its face. People do not suffer collectively, they suffer as individuals. The Second Amendment admits their natural right to protect themselves, qua individuals, against oppression and assault. The State offers protection only on the average. The specific must be left up to the individual. A collective right must, necessarily be an individual right, as well. If it is not an individual right, it is a right of the whole people only, and thus is in actuality a right of the State. If the people have a collective right to defense, they may have a police force, a state militia and an army to protect them. However, if they are individually denied the right to keep and bear arms, or if that right is so circumscribed as to be essentially without substance, it is a right of the State only. This is contrary to the meaning and intent of the Second Amendment, which recognizes the individual's natural right to self-defense, as well as the necessity of an armed citizenry per se as a safeguard against corrupt and tyrannous government.
How much help can a citizen demand from his government when he opposes his government? - William Safire, Job, The First Dissident, Random House, 1992, page xxv
How else indeed, could the Declaration of Independence presume to declare:
That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.
It is difficult to imagine a people altering or abolishing a government when they possess arms collectively only-that is, when the government is armed and the citizen is not. One might even go so far as to say that a collective right is no right at all.
Can you imagine this perversion applied to other civil rights?
Let us suppose that the First Amendment phrase, "right of the people peaceably to assemble, and to petition the government for redress of grievance," were interpreted as implying only a collective right. Using the logic of the American Civil Liberties Union and the American Bar Association as applied to the Second Amendment, you do not have an individual right to freedom of speech, but "assemble" and "petition" mean that you have the collective right to do so. That is to say, a government agency intercedes between you and your elected representatives, and speaks for you if you have a gripe. Here's how it works: you fill out a form and submit it to the Ministry of Truth, or to your union representative, or your local police station. In turn, your suitably edited comment-together with the comments and observations of other Americans-is published in the official government newspaper. We'll call it "Truth," or perhaps "Information." You yourself are not permitted to speak out, as this would threaten the stability of the State and the safety of other citizens. Does this sound like a good interpretation of the First Amendment? Uncle Joe thought that the people had a collective right to speak and to keep and bear arms. What a great guy he was. Right?
How about a collective right only to a fair and speedy trial? To bring a suit at law? To be free from cruel and unusual punishments? To be secure in your person and papers? To be represented by counsel? Gibberish, isn't it.
I don't really think I need to go on.
The Possession of One Right Does Not Imply the Exclusion of Other Rights
THOSE who maintain that the needs of the State should entirely circumscribe and define the rights outlined in the Second Amendment are making at least one serious logical error. That is, that one right precludes another. This true neither in logic nor in law. A personal right may exist for personal reasons, and societal rights may exist for societal reasons, both expressed in the same legal clause and in the same words. There are all kinds of reasons for having rights, and they need not be mutually exclusive. A right can be something that enhances the life, pleasure or welfare of an individual without doing any harm to society. A right can also be something that directly benefits society.
For example, the citizen has the right to privacy, which extends to the right to use a condom for the prevention of unwanted pregnancy. Society is neither helped nor harmed by this choice on the part of an individual to engage in sexual activity for fun rather than procreation. The use of a condom also prevents the spread of sexually transmitted disease. This benefits both the individual and society. The prevention of an unwanted pregnancy benefits society because an unplanned and unwanted child might become a burden on the State. All of these reasons are independently grounds for the right. None excludes the others, and indeed, they all work to enhance the right.
The Second Amendment Admits the Natural Right to Self-defense as Well as the Means
He who accepts protection, stipulates obedience. - Samuel Johnson (1709 - 1784) Address to the Electors of Great Britain
CITIZENS should themselves be armed so as to forestall absolute reliance on the government for protection, and the inevitable paternalism, so abrasive to a Republic, which would result.
Those who would "forbid or severely restrict the sale of guns ignore [the] facts. Worse, they adopt a position that is politically absurd. In effect, they say, 'Your government, having failed to protect your person and your property from criminal assault, now intends to deprive you of the opportunity to protect yourself." (78)
On March 24, 1994, three young teenagers walked through my neighborhood on their way to King Junior High School, a few blocks away. My neighbor was in her front yard with her three small daughters, playing as she gardened. One of the boys picked up a bottle and threw it at the youngest girl, narrowly missing her and scattering shards of glass on the others. Another neighbor confronted them, and they threw another bottle. This with no provocation of any kind. The three were pursued, and one was identified to the school principle. The other two returned later, and continued hassling and antagonizing neighborhood residents. When the police were called, the response was that all officers were engaged in a shoot-out in a parking garage on Center Street, and no response could be made.
During times of civil disturbance, when things are much worse than might occur as a result of one teenage boy with a pistol shooting at an enemy in the BART station, there will be no police protection of any kind for anybody. There will be no law. The citizen will be thrust upon his own resources, to protect his life, family and property as best he can. To be unarmed is to invite disaster.
I mean to disagree vehemently with those who do not interpret the Second Amendment as expressing a fundamental right. The citizen has an absolute and logical right to self-protection, well-understood by the framers of the Constitution. In The Leviathan, his monumental work on the nature of government, the English philosopher Thomas Hobbes (1588-1679) wrote:
Whensoever a man transferreth his right, or renounceth it; it is either in consideration of some right reciprocally transferred to himself, or for some other good he hopeth for thereby. For it is a voluntary act; and of the voluntary acts of every man, the object is some good to himself. And therefore there be some rights which no man can be understood by any words or other signs, to have abandoned or transferred. At first a man cannot lay down the right of resisting them that assault him by force, to take away his life; because he cannot be understood to aim thereby, at any good to himself.
Hobbes thus expresses what was undoubtedly an opinion shared by the framers of the Constitution: that citizens have a natural right to self-protection, and that this right is inalienable-it can't be taken away and you can't give it away. By this we may conclude that, though the State was expected to provide a certain amount of general protection for the citizen, the citizen was understood to preserve to himself the immediate right and therefore the immediate means of self-protection.
Both the citizen and the state have a right to self-defense, though the need of the citizen is more urgent, as he has the lesser ability to defend himself.
The word "free" contains another important clue to the intent of the Framers of the Constitution. Blackstone maintained that the right to keep and bear arms was among the "absolute rights of individuals at common law," vital both to the preservation of a free government and to the liberties of the citizen. Like Hobbes, he described the right to bear arms as being "for self-preservation and defense," by which he meant "the primary law of nature [which cannot be] taken away by the law of society." It was not only a personal right but a political right. It was "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." In this, Blackstone not only echoes Thomas Hobbes but incorporates into the rejection of State paternalism the notion explicit in the Magna Carta that the citizen has both a right and a duty to reject, by force of arms if no other recourse is available, a government that will not subordinate itself to the law.
In these several rights consist the rights, or, as they are frequently termed, the liberties of Englishmen. . . . So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. . . . And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular and free course of justice in the courts of law; next, to the right of petitioning the King and parliament for redress of grievances; and lastly, to the right of having and using arms for self-preservation and defense.
In the classical view, expressed by both Hobbes and Blackstone, and inevitably the intent of the Framers of the Constitution,
Arms possession for protection of self, family and polity was both the hallmark of the individual's freedom and one of the two primary factors in his developing the independent, self-reliant, responsible character which classical political philosophers deemed necessary to the citizenry of a free state. The symbolic significance of arms as epitomizing the status of the free citizen represented ancient law. From Anglo-Saxon times 'the ceremony of freeing a slave included the placing in his hands of arms "as a symbol of his new rank.'"[A. V. B. Norman, The Medieval Soldier 73 (Thomas Y. Crowell Co., 1971)]
Anglo-Saxon law forbade anyone to disarm a free man and Henry I's laws applied this even to a man's own lord [The Assize of Arms (1181), reprinted in David C. Douglas & George W. Greenaway, eds., 2 English Historical Documents at 416 (Eyre & Spottiswoode, 1953).
Such precedents were particularly important to theorists like Blackstone and Jefferson, to whom the concept of '"natural rights" had a strongly juridical tinge relating to the English legal heritage.
The Anglo-American legal distinction between free/armed and unfree/disarmed flowed naturally into the classical republican view that the survival of free and popular government required citizens of a special character-and that the possession of arms was one of two keys in the development of character. From Machiavelli and Harrington classical republican philosophy derived the idea that arms possession and property ownership were the keys to civic virtue. In the Greek and Roman republics from whose example they took so many lessons, every free man had been armed so as to be prepared both to defend his family against outlaws and to man the city walls in immediate response to the tocsin warning of approaching enemies. Thus did each citizen commit himself to the fulfillment of both his private and his public responsibilities. (79)
Supreme Court Decisions Concerning the Second Amendment
IN all Constitutional disputes, we begin by consulting the Delphic Oracle of Supreme Court decisions. Unlike other provisions of the Constitution and Bill of Rights, which consume whole yards of shelf space, there are very few Supreme Court decisions that can be considered peripheral, and still fewer that can be cited as directly addressing the matter at hand.
The ACLU and other anti-gun groups generally cite United States v Miller, a 1939 case which decides that the 1934 National Firearms Act is constitutional. The Court found that the Act was not an attempt on the part of the Federal Authority to usurp the police powers reserved to the states, on the grounds that, though regulations were applied to the transfer and taxation of firearms, strictly circumscribing possession of certain kinds of firearms vis-a-vis private citizens-notably sawed-off shotguns and other "gangster-type" weapons-the right of citizens to keep and bear arms in the narrow context of the need of the Several States to have and maintain a militia was not thereby infringed.
This case does not refer to any other right of citizens, and does not imply-as is indeed prohibited by the Ninth Amendment-that the affirmation of one right impinges upon any other right. Though often cited, this case has nothing to do with the Constitutionally defined ability of any governmental body to deny citizens the right to arms that fall within a "militia-type" definition. Specifically enumerated in this legal case are pistols, revolvers, rifles and ordinary shotguns as appropriate to citizens. Furthermore, as is quite plain within the context of the case, as the matter under dispute is between the Several States and the Federal Authority, it does not, properly speaking, have any bearing on the rights of citizens per se. Any contention that this case can be used to deprive citizens of a contextually uncontested Constitutional right is deeply in error.
Furthermore, if the state has the right to a militia, to the exclusion of the individual right to keep and bear arms, then the state can define who can and cannot be a member of the militia. By this means, an individual state could, if it so chose, decide that nobody could be a member of the militia, thereby entirely eliminating the Second Amendment. This is identical to the proviso that was discarded when it was proposed in argument preceding acceptance of the wording of the Second Amendment that conscientious objectors should not be required to keep and bear arms. The objection was simply that if any loophole was created, the government might seize upon it and use it as a reason to disarm the people.
Since it is absolutely clear from both the legislative record, preceding and succeeding legislation and the constitutions of Virginia and New Hampshire, that the term "militia" means the whole body of the people, including all citizens capable of bearing arms, legislative effort on the part of any state or local authority to disarm the law-abiding citizen is unconstitutional on its face.
Closer to our own time, in the 1977 case Moore v East Cleveland, the Supreme Court talks about "specific guarantees . . . provided in the Constitution," and lists the rights as "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on." Expressing several rights in one breath, this case seems to view all these enumerated rights as of equal significance.
The Origins of and Motives for Gun Prohibition Reside in Racism, Class Discrimination and Religious Persecution
HISTORICALLY, there have been three great reasons why official bodies have denied private citizens the right to keep and bear arms: religion, social class and race. An entire fat book could be written on each, but to spare the reader I will allude to only a few select events.
Arms Denied Because of Faith
THE history of the modern world is a tale of religious persecution. John Foxe's Book of Martyrs (1570), an account of the glorious deaths of Christians, is luridly illustrated with all variety of chained and toothsome maidens rolling their eyes heavenward as the flames lick about their feet. It was tremendously influential, being used practically as a companion volume to the Bible in English and American churches and households well into this century. (80) Horrific as its subject matter might be, if anything, it fell short of actual truth.
The Protestants of France, known as the Huguenots, were deprived of their arms, and troops were quartered in their houses. On Saint Bartholemew's Day, 1572, some fifty thousand of the Huguenot faith were massacred. In celebration of this signal freeing of France from the scourge of religious dissidence, Catherine de' Medici received the congratulations of all the Catholic powers, and Pope Gregory XIII commanded bonfires to be lighted and a medal to be struck.
More than 400,000 Protestants fled France, many of them coming to America to continue in their faith.
In England, Catholics were similarly persecuted, and denied the use of arms. Many Catholics fled to America, where the Old World battles between Catholic and Protestant continued, each side alternately denying the other rights of citizenship.
Catholics were (and to some degree still are) considered enemies of the State, and by being denied arms were made the helpless objects of terrorist attack.
"Probably the most obvious political ramification of the right to defensive arms is the deterrent effect of the power to disarm dissenters in a violence-ridden society. Until the early nineteenth century England was an enormously violent country overrun with cutthroats, cutpurses, burglars, and highwaymen, in which rioting over social and political matters was endemic. Moreover, until 1829 it had no police. So when the seventeenth century Stuart Kings began selectively disarming their enemies the effect was not simply to safeguard the throne, but to severely penalize dissent. Those who had opposed the King were left helpless against either felons or rioters-who, by the very fact, were encouraged to attack them. The in terrorrem effect upon dissent of knowing that to speak out might render one's family defenseless while targeting them for every felon, and every enemy who might want to whip up riotous public sentiment against them, is obvious.
"The disarming of minorities or dissenters in a climate in which they may be subject to private violence (often encouraged by government) has been a well-established policy in many countries including Nazi Germany and the Soviet Union. The leading example is the Kristallnacht, in which thousands of Jews were beaten, raped and/or murdered and a billion reichsmarks of Jewish property was looted or destroyed in nationwide riots orchestrated by the Nazi Party after the Jews had been excluded from gun ownership under German law." (81)
Jews were specifically targeted by the first limitation in England on the right of law-abiding citizens to keep and bear arms. The Statute of Assize of Arms of 1182 forbade the possession and ordered the disposition of all coats of mail or breastplates in the hands of Jews. (82)
All this was firmly in the minds of the Framers of the Constitution when they made provision in the First Amendment against the establishment of an official religion, and in the Second, made sure that the religion in power could not take away the guns of the adherents to the religion that was on the outs and then try to kill them all.
Do I need to remind the reader that this is not precisely ancient history? That even as we speak, millions of people all over the world are doing their level best to exterminate others because of religious affiliation? I thought not.
Arms Denied Because of Class
ENGLAND, so often cited as the ultimate example of the virtues of gun prohibition, established the Firearms Act of 1920 not, as might be supposed, to protect the people from themselves, but to protect the government from the people. Gun prohibition was enacted in a move expressly intended to suppress the entirely imaginary threat of violent revolution at home, and the genuine threat posed by the Irish Republican Army across the Irish Sea. (83)
The homicide rate in England and Wales was incredibly low during a time when the ordinary citizen had free access to firearms-a condition that was at that time also true of the United States. (84) From 1883 to 1887 there were 68 homicides in England and Wales (0.59 per 100,000 of population); from 1888 to 1892 there were 63 homicides (0.54 per hundred thousand); from 1893 to 1897, sixty-five (0.47); from 1898 to 1902, 63 (0.44); from 1903 to 1907 sixty-four (0.43) and in the year 1907-the last for which I have been able to get reliable figures until the present-there were 45 murders, that is, 0.38 per hundred thousand of population. (85) It is difficult to believe that the incidence of murder in the intervening years-not including, of course, the stunning percentage of the world's population slaughtered in military conflicts during that same stretch of time-increased to such an alarming degree that a proliferation of weapons threatened the average man. (86) No. The motive, purpose and intent of the Firearms Act of 1920 was to stifle popular unrest, and to forestall the threat of armed revolution. (87)
This abrogation of the Englishman's right to arms was preceded by a host of similar efforts, all for exactly the same reason. Rooted in class prejudice, the "rural aristocracy accepted the right of the people to bear arms to overthrow a monarch, but had little use for peasants hunting game on aristocrat's property. The Black Act of 1722 created fifty new capital offenses, mostly dealing with poaching and related trespass, and with the unauthorized carrying of arms." (88) The "on-again, off-again" attitude of the English Crown and gentry to the right of the people to be armed, forcing them to spend their Sundays in archery practice and then, when the threat of war had passed, forcing them to surrender their arms, had a strong influence on the attitude of the Framers of the Constitution concerning the ultimate trustworthiness of government.
At the beginning of the Industrial Revolution, hard on the heels of the American and French revolutions, the British government rightly feared the dangers of popular rebellion at home. Rampaging Luddites, more Irish troubles, the War of 1812 all added to a feeling of aristocratic unease. "Parliament responded with the Six Acts, which banned seditious libel and seditious meetings, and outlawed drilling and training in the use of arms. The Seizure of Arms Act of 1820 authorized magistrates to confiscate arms that might be used by revolutionaries, and to conduct searches in private houses. The Duke of Wellington hoped the measure would prevent, "the universal revolution which seems to menace us all." The Seizure of Arms Act expired by its own terms in two years, and for all practical purposes gun prohibition disappeared from Britain for over half a century." (89)
There remains an intentional policy of the British government to create a people utterly dependent upon their rulers for defense, and absolutely incapable of rising against them, for any reason, at any time. A still secret (as of 1989) report, prepared for the Home Office and police chiefs of Great Britain emphasized, on page 38, that "a reduction in the number of firearms in private hands is a desirable end in itself." (90)
The central government of Great Britain is made up of the majority party, the leader of which is the prime minister. The administration is made up of government departments staffed by a permanent civil service, nominally under the control of an elected member of parliament, who is appointed to ministerial office by the prime minister. The Home Office controls the police, gun laws and related matters. England, Scotland and Wales have fifty-one different police forces, each financed in the greater part by the central government and in consequence under its control. The combination of the Association of Chief Police officers, the Police Federation and the administrators at the Home Office all but constitute a separate government, and potentially pose a genuine threat to democracy in Great Britain.
The homicide rate per hundred thousand in the United Kingdom in 1981 was still an amazingly low 1.37 (91) and the 1990 Economist Book of Vital World Statistics reported it to be 1.33 in England and Wales, combined. Only a fool would argue that gun prohibition has exerted any measurable effect on homicide in Great Britain. The Britishers didn't kill each other much before there was gun prohibition of any kind, and they continued to not kill each other very much afterward. The government, however, sleeps more soundly for knowing that it is unthreatened by its own people.
Amended by the Draconic Firearms (Amendment) Act of 1988, prohibiting self-loading rifles and shotguns, rigid gun prohibition in Great Britain creates a self-fulfilling prophesy, further justifying those who oppose private ownership of firearms. "Hard cases make bad law," as the saying has it, and when a nation is galvanized at some dreadful outrage committed by a madman with a firearm, it becomes that much the harder to argue that private citizens should possess the means of self-defense when the only people who use firearms for any purpose are criminals, the pathologically disaffected and the insane. Rather a poor collection of role models, one might say.
"British gun control occurs in a context of diminished civil liberties and greater government authority than many Americans would find acceptable. The results of the British experiment with gun control provide little evidence in favor of stricter American controls. Instead, they offer a caution to proponents of moderate control who expect that their proposals will not lead to stringent control and prohibition." (92)
In Japan, another exemplar of gun prohibition, the people were deprived of their arms for similar reasons:
. . . Lord Hideyoshi, the regent of Japan at the time, took the first step toward the control of firearms. It was a very small step, and it was not taken simply to protect feudal lords from being shot at by peasants but to get all weapons out of the hands of civilians. What Lord Hideyoshi did was characteristically Japanese. He said nothing about arms control. Instead, he announced that he was going to build a statue of Buddha that would make all existing statues look like midgets. It would be of wood, braced and bolted with iron. And it would be so enormous (the figure was about twice the scale of the Statue of Liberty), that many tons of iron would be needed just for the braces and bolts.
Still more was required to erect the accompanying temple, which was to cover a piece of ground something over an eighth of a mile square. All farmers, ji-samurai, and monks were invited to contribute their swords and guns to the cause. They were, in fact, required to. As a result, anyone visiting Kyoto in 1587 would have seen a curious scene of disarmament. He would have seen scores of blacksmiths busily hammering matchlocks into religious hardware. The Jesuit Annual Letter for that year reported rather bitterly that Lord Hideyoshi was 'planning to possess himself of all the iron in Japan,' and added, 'He is crafty and cunning beyond belief. Now he is depriving the people of their arms under pretext of devotion to Religion.'
No one was depriving the armies of their arms, of course, and the production of guns continued to rise for another twenty years. (93)
Beginning in 1603, the powerful Tokugawa shoguns began a slow, steady program of national disarmament. In 1607 guns could only be made under license from the central government (94) By 1625 the government's monopoly was well established. (95)
The National Firearms Act of 1934, which was upheld by the Supreme Court in the case of United States v Miller (1939), removed what were classified as "gangster-type weapons" from the hands of the citizen. In this case, the Supreme Court reaffirmed that the citizen had the continuing right to "militia-type weapons." Somehow in all the fracas of the "Saturday Night Special," the cheap handgun, got lumped together with "gangster weapons." The only rationale that holds water is that this was a piece of legislation specifically designed to get firearms out of the hands of poor people, while reserving them to their social betters who could afford well-made, expensive weapons. This elitist legislation is unseemly and anti-democratic and should be repealed.
Arms Denied Because of Race
I come from a long line of Americans to whom firearms were an ordinary part of their daily lives. From a tender age, I was taught to respect firearms and use them with care-indeed, my earliest memory, from the age of eighteen months, was of my grandfather showing me why I should not play with his guns. He set up a cucumber on a post and shot it with his grandfather's Civil War Colt .36 cap-and-ball revolver. The cucumber blew all to flinders, and I was impressed.
This may be a good time to tell you why I personally think guns are the legitimate resource of every American.
My ancestors hail from widely diverse origins. Dutchmen, seeking economic opportunity, came here in 1620. Englishmen, fleeing religious persecution, came here a hundred years later. Irishmen, fleeing English genocide, came in 1835. The ultimate American bearer of my patronymic, one Mihil (Michael) Goen or Gowen, was a Black man who came to Virginia in about 1650 as an indentured servant to a White man named Robert Stafford. Michael Goen fulfilled the terms of his indenture in 1654, and married a Negro woman named Prossa, by whom he had a child while she was still a servant herself. In 1668 he bought 37 acres of James City County, Virginia, land from Captain Richard Barnhouse. When Michael Goen died, in 1717, he left his land to his children. On the 11th of September, 1718, the land was taken away from his children, escheated to the Crown and sold to Hubbard and Francis Moreland. The reasons were threefold: first, he was held not to be legally married; second, his children were held to be illegitimate, but most important, "he was a Negroe and by consequence an alien."
This was a commonplace. The Goins people mixed with the indigenous population and with Europeans, and by the end of the seventeenth century, Michael's children and grandchildren were "about an eighth," Negro blood. In consequence of this admixture they were punitively taxed.
When they were told to appear at militia muster without their arms, they disregarded the order and continued to appear armed. I'm very proud of them for this act of defiance, and find in it a continual inspiration. We intend to retain our arms in the future. Once burned, twice shy, as they say.
Descendants of the Virginia Goins family served in the colonial militia, along with other free men of color. They fought as soldiers in the French and Indian wars and in the American Revolution in Virginia and the Carolinas. They bought property, paid taxes, left estates, suffered wartime losses, and were still free (if sometimes unwelcome) citizens at the time of the Civil War.
If I am Black, I am free born American and a revolutionary soldier.-John Chavis, speaking in 1835 (born circa 1763 near Oxford, in Granville County, North Carolina) (96)
Throughout the nineteenth century the passage of many racially-motivated laws effectively stripped my ancestors, and other "free persons of color" of their land and their civil rights. They were compelled to have White sponsors, could not own land, serve on juries or hold public office. They could not marry Whites, could not testify in court and could not possess arms. They were compelled to pay heavy, punitive, discriminatory annual taxes at the courthouse. Minors were subjected to a system of compulsory indenture which differed from actual slavery only in that the master did not hold over them the legal power of life and death. The punishment for the most trivial crime was two years enslavement for the first offense and permanent enslavement for the second.
Most of my ancestors reacted to this by simply disappearing into the mountains. By 1835, many of them ended up in Washington, D.C.'s free colored community.
The District of Columbia, capital of the United States, was created along the Potomac out of the bodies of Maryland and Virginia. The seat of government from December 1, 1800, it was intentionally situated far away from established cities. The pernicious examples of Ancient Rome, Paris and London confirmed the Founders in their belief that the locus of political activity should not coincide with the acknowledged centers of American commerce and cultural power. Rome, overrun by the mob, ran the empire. London and Paris, at once the centers of all matters of national importance, overshadowed all the rest of their nations' inhabitants, rendering the majority of citizens irrelevant to political, cultural and commercial decisions.
The city was chartered in 1802, with a mayor appointed annually by the president of the United States, and an elective council of two chambers. The mayor was elected by the council from 1812 to 1820, and by the people from 1820 to 1871.
Though the institution of slavery was not prohibited, the slave trade per se was not legal in the District of Columbia, which was entirely contained within the slave states Virginia and Maryland. As neighboring states enacted increasingly harsh legislation against their own free colored populations, many such Americans fled to the nearest "city of refuge," swelling Washington's Black population far out of proportion to surrounding areas. (97) From 1860 to 1870, the period encompassing the Civil War, the population of Washington, D. C. swelled some 79 percent, from 61,122 to 109,199. Again many of the emigrants were Black. (98)
The Fifteenth Amendment-adopted March 30, 1870, prohibiting any state from denying its citizens the right to vote on account of race, color or previous condition of servitude-presented the District of Columbia with the very real possibility that the nation's capital would be run by Negroes. As a response, in 1871 the Federal Congress repealed the charters of Washington and Georgetown, and established a new government for the entire district, altered in 1874 to a government by commissioners. In 1878, Home Rule was permanently ended. From that time until 1967, Congress ran the capital through a three-man board of commissioners-a unique government in that it provided at once the equivalent of local, county, and state services. Residents had no voice in local government and no elected representative in Congress. The Twenty-Third Amendment, ratified March 29, 1961, established the right to vote for president to the predominantly Black population. On August 9, 1967, the House of Representatives passed legislation providing for a city government, the majority of which was Black.
When people that you don't want to have political power seem on the verge of actually getting it, change the rules. In the identical spirit that had, one hundred years before, disenfranchised the citizens of Washington, D.C., one of the nation's harshest gun prohibition laws stripped the predominantly Black population of their right to keep and bear arms.
On my mother's side, my great-grandfather Blue Eagle (also called George Carpintier) was killed defending his land and loved ones in Northern Wyoming, on June 25, 1876. Those of you who are up on American history will know that this was the Battle of the Little Big Horn. As with Negroes, the right to keep and bear arms was routinely denied the indigenous population. Though some of the Sioux had guns, most of them had bows and arrows. They won the battle, but lost the war.
The Indians eventually lost all their land and were forcibly exported to worthless land elsewhere, many of them dying of cold and privation on the way.
The truth is, that I would like very much to have the love and esteem of my fellow citizens but, failing that, I will be content with their respect of my rights to own property, to vote and hold public office, to trial by jury, to testify in court, to freedom to express my political and religious views, to security in my person and papers. You understand me, I'm sure. If you are armed, you will be accorded a surprising modicum of respect, no matter how others may feel about you in their hearts.
I could go on, but I feel that my point is clear: without arms you are a slave, and the first act of those who would enslave you is to take away your right to keep in your home or business, and bear on your person, the right and the means for private and civic defense. To reinforce the idea that the free citizen had access to arms, and the unfree-the second-class citizen-had no right to arms, we may look at the earliest efforts at gun prohibition in the United States. Our first laws controlling concealed weapons date from 1813; handgun permit systems were extensively applied to free Blacks in the antebellum South; our first handgun ban came in Georgia in 1837. (99)
In early Virginia, free nonwhite males were expected to do militia duty. For example, in Accomack County in 1685, James Longo was fined for not appearing for militia muster. (100) It was not until 1738 that Virginia statutes limited their participation by requiring free mulattoes, Negroes, and Indian militiamen to appear without arms. (101) The statute, which is actually dated 1723, limited their militia service to the position of drummer or trumpeter except in case of 'Invasion, Insurrection, or Rebellion,' when they would be 'obliged to attend and march with the Militia, and do the Duty of Pioneers, or such other servile Labor as they shall be directed to perform.' (102)
Whatever the law may have prescribed, these families apparently continued to appear armed. (103)
In North Carolina, the same ambiguities existed. '"in the colonial period, free Negroes served in the militia . . . with no apparent discrimination against them,'" according to Franklin, who presumably included mulattoes and tri-racial individuals in this catchall phrase free Negroes. By 1815, the sons and grandsons of men who had served as soldiers in the Revolution were legally relegated to musician status in the North Carolina militia. (104)
Nothing could more clearly underscore the relationship in the American mind of the concepts free/armed and unfree/unarmed than these racially-motivated infringements of the civil rights of Black Americans. (105)
Commitment, duty and responsibility are also viewed as positive rights because to the virtuous citizen the carrying out of responsibilities to family and duties to country are a right. The right of arms is one of the first to be taken away by tyrants, not only for the physical security despotism gains in monopolizing armed power in the hands of the state, but also for its moral effects. The tyrant disarms his citizens in order to degrade them; he knows that being unarmed . . . "palsies the hand and brutalizes the mind: an habitual disuse of physical forces totally destroys the moral; and men lose at once the power of protecting themselves, and of discerning the cause of their oppression." (106)
When we look back at clause seven of the Declaration of Right and read "according to their condition" in the light of free/unfree, we see a plausible rationale for finding in it an exemplar for our own Second Amendment. The "condition" of English subjects was to be commoner or aristocrat, ruler or ruled. No such condition existed in the United States. The "condition" of Americans was to be free, equal, and endowed by their Creator with certain unalienable Rights, among which are Life, Liberty and the pursuit of Happiness. If the citizen is forced to rely absolutely upon the State for protection, he will then lack both the means and the will to reject a government that will not submit itself to law.
The State Does Not Have a Compelling Interest to Restrict or Abrogate Second Amendment Rights
It is often argued that, in the arena of Second Amendment rights, the State has a "compelling interest" to restrict the use of weapons that were fully acknowledged by the Founders to be within the lawful purview of individual citizens, and that this public good outweighs even a Constitutionally protected right.
In order to restrict or abrogate a right, the compelling State interest must first be legal. That is to say, that the State actually has the right to interfere with the thing in question. Secondly, the State must have a legitimate interest, and the restriction must be narrowly tailored and specific.
The State may, for example, restrict the right of citizens to vote. People under the age of eighteen may be prohibited from voting without any transgression of a Constitutionally guaranteed right. Age is not considered in the Constitution as a factor in voting. However, the State may not prevent a person from voting because of race, color, creed, previous condition of servitude or gender. If the State were to attempt to prevent anyone from voting, it would not have a legal right to do so unless there were a clear and present danger presented, and the restriction would have to be narrowly defined, specific and temporary. I can imagine a scenario which includes the danger of a great civil disturbance attendant upon the going to the polls by a specific person, and I can imagine a court order preventing that person from going to the polls. But, I cannot imagine a court order that did not include allowing him to vote elsewhere, or in another manner. I cannot imagine the prohibition extending beyond a single instance.
The State may prevent, say, a speaker from addressing an audience if there is a clear and present danger of great civic and physical harm. Suppose that the person, by speaking, were almost certainly to be lynched be the crowd, and the police were entirely unable to protect him. The police could legitimately forbid him from speaking until they assembled enough power to both allow him to speak and protect him from death. They could not, however, forbid him from ever speaking, or from ever speaking on the controversial subject, or from ever addressing a crowd. The only way to do that would be to repeal the First Amendment.
If those who feel that the rights guaranteed citizens by the Second Amendment are so dangerous as to constitute a permanent "clear and present danger'" then they must repeal it. They cannot be allowed to imagine that the compelling interest of the State allows the erosion or destruction of a Constitutionally guaranteed right on the grounds of expediency. Either live with it or get rid of it.
The 1919 First Amendment decision Schenck v United States emphasizes the "clear and present danger" of freedom of speech, in terms that would warm the heart of a gun-prohibition advocate were they directed at the Second Amendment. From the founding of this nation, elected and appointed officials, states, municipalities and courts routinely prohibited forms of speech that they found distasteful, including not only speech deemed offensive to the public morality, but the expression of unpopular political opinions as well; in this, they were commonly backed up by the primary defender of the Constitution, the United States Supreme Court, which-construing the First Amendment to apply to the Federal Authority only and not to the Several States-had before the founding of the ACLU failed to uphold a single free speech claim under the First Amendment. The renowned jurist Oliver Wendell Holmes, Jr. proclaimed for a unanimous court what has since become the watchword of all who would muzzle inconvenient expression:
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it was done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured as long as men fight and no court could regard them as protected by any constitutional right.
The point concealed in this pre-ACLU decision is that-with a little imagination-any form of speech can be interpreted to constitute "a clear and present danger," and what actually emerged from this decision was a prohibition against shouting "Fire!" in a burning theater. In this celebrated suit, Charles T. Schenck and Elizabeth Baer, two New York Socialists, were on trial for "seditious libel:" opposing Selective Service law and distributing pacifist literature decrying military conscription as "despotism arranged in the interest of Wall Street" to draftees and members of the armed forces. If the same measure had been extended fifty years later to protesters of the Vietnam conflict, many Americans honestly opposed to what they felt to be an unjust, illegal war would by the same logic have been convicted of "conspiring to cause insubordination in the Armed Forces."
Please remember that the State always has a compelling interest to abrogate civil liberties, and if you stand idly by while one is devoured, you will be next.
Freedom Predicates Risk
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty-so dear to men, so dear to the enlightened legislator-and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.-Caesare Beccaria, An Essay on Crimes and Punishments, copied by Thomas Jefferson into his personal compilation of great quotations. (107)
IF comfort and safety are what is wanted, democracy is not really the way to get them. The compromising, and ultimately weak, point of view is well expressed by a quotation of the arch-conservative Senator John C. Calhoun in A Disquisition on Government (1851):
Liberty, indeed, though among the greatest of blessings, is not so great as that of protection, inasmuch as the end of the former is the progress and improvement of the race, while that of the latter is its preservation and perpetuation. And hence, when the two come into conflict, liberty must, and ever ought, to yield to protection, as the existence of the race is of greater moment that its improvement.
You may bear in mind that Calhoun was a dear friend of slavery, and it is a great pity that he did not live to see its destruction.
As our society becomes more "lawyer driven," its focus increasingly shifts away from possible gains to possible risks. Columbus, the darling of our industrializing nation, in this post-industrial age is pilloried for all his culture's faults as revisionists pick apart his carcass. In 1950, the discoverer of America, all frailties shoved into the background, was a genuine hero. Columbus day, 1993 was a moment of wrangling over just exactly how many legal cases could have been made by the Indians had they hailed Columbus into court. Legal and cultural "demotivators" barricade what were, only a short while ago, reasonable-if somewhat risky-ways of doing things. The lawyer "looks not upon the donut, but upon the hole." Indeed, his job is to stir up trouble: "Let's you and him fight," while he holds the contestants' coats, going through the pockets as they are otherwise engaged.
Part of denying the reality of risk, and as a function of a society dominated to no small degree by litigation, the legal system has taken on the aspect of a lottery, rather than one designed to promote the public weal. The fantasy that everything that goes wrong is somebody's fault, and that blame can be affixed on somebody else and that somebody can be found to pay for it, fuels a determination to eliminate all possible risks even at the expense of freedom, liberty, or simply getting a job done. (108)
The increasing emphasis on gun prohibition mirrors this trend. We are encouraged only to see the personal dangers and discouraged from counting the possible political virtues.
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. - Benjamin Franklin, Historical Review of Pennsylvania (1759)
Despite what may seem desirable, we cannot live in a world free of risk. We must measure the risk against the gain, and act nonetheless. Gains and risks exist in inverse proportion: quiet, safe places are often also dull. Exciting places are often also dangerous. The great American idiom of jazz originated in the fleshpots of New Orleans, Chicago's speakeasies and the slums of Kansas City. Five hundred years of safe, civilized existence in Switzerland have given us the cuckoo clock.
The people never give up their liberties but under some delusion. - Edmund Burke, Speech at County Meeting of Buckinghamshire, 1784
When we are discussing such matters as the possession of firearms by private citizens, we are confronting real risks. Real risk, however, is not the issue. The actual risks of being bumped off by a criminal armed with a handgun in San Francisco, a city that is on the high side of homicides in the United States, is something on the order of one in twelve thousand. Your chances of being killed in a mishap in your own home are about quadruple that; of being killed in an automobile accident ten times greater; and of being killed in a commercial airplane disaster, one in a million. (109) If, however, we rank these risks in order of what people are most frightened by, we find that in terms of real risk, we are most afraid of the things that are least likely to harm us. Why is this so? Some risks are perceived as greater than others, generally related to the amount of control that we think we have over the situation. Very few people are afraid of stairways or bathtubs, yet the actual risk we accept each time we use one is quite high. (110) Almost everyone is afraid of flying, yet the real risk is extraordinarily low. The difference is in the perceived degree of control. (111)
People do not define risk solely as the expected number of deaths or injuries per unit time. Experimental psychologists Baruch Fischoff of Carnegie Mellon University and Paul Slovic and Sarah Lichtenstein of Decision Research in Eugene, Ore., have shown that people also rank risks based on how well the process in question is understood, how equitably the danger is distributed, how well individuals can control their exposure and whether risk is assumed voluntarily.
Slovic and his colleagues have found that these factors can be combined into three major groups. The first is basically an event's degree of dreadfulness (as determined by such features as the scale of its effects and the degree to which it affects "innocent "bystanders). The second is a measure of how well the risk is understood, and the third is the number of people exposed. These groups of characteristics can be used to define a "risk space." Where a hazard falls within this space says quite a lot about how people are likely to respond to it. Risks carrying a high level of "dread," for example, provoke more calls for government intervention than do some more workaday risks that actually cause more deaths or injuries.
In making judgments about uncertainty, including ones about risk, experimental psychologists have found that people unconsciously use a number of heuristics. Usually these rules of thumb work well, but under some circumstances they can lead to systematic bias or other errors. As a result, people tend to underestimate the frequency of very common causes of death-stroke, cancer, accidents-by roughly a factor of 10. They also overestimate the frequency of very uncommon causes of death (botulism poisoning, for example) by as much as several orders of magnitude.
These mistakes apparently result from the so-called heuristic of availability. Daniel Kahneman of the University of California at Berkeley, Amos N. Tversky of Stanford University and others have found that people often judge the likelihood of an event in terms of how easily they can recall (or imagine) examples. In this case, stroke is a very common cause of death, but most people learn about it only when a close friend or relative or famous person dies; in contrast, virtually every time someone dies of botulism, people are likely to hear about it on the evening news. This heuristic and others are not limited to the general public. Even experts sometimes employ them in making judgments about uncertainty (35).
Implicit in the process of risk analysis and management is the crucial role of communication. If public bodies are to make good decisions about regulating potential hazards, citizens must be well informed. The alternative of entrusting policy to panels of experts working behind closed doors has proved a failure, both because the resulting policy may ignore important social considerations and because it may prove impossible to implement in the face of grass-roots resistance (40). (112)
When making decisions, especially those which trifle with the Constitution and Bill of Rights, we should be careful not to confuse perceived risk with real risk. Real risk versus perceived risk is what lawyers feed on. This carping, fault-finding, nit-picking mentality is the enemy of progress and the natural ally of the coward.
The expansionist, entrepreneurial spirit that drove the emerging nation to greatness is its exact opposite. Not, "what can I lose if I take this chance," but "what can I gain if I accept this challenge."
All freedoms entail risk. We accept the risk of an automobile accident whenever we drive or walk across the road. We accept the risk of clumsy, inefficient government in return for the tether on authority provided by a democratic decision-making process. Nazi Germany and Fascist Italy were more efficient (the trains ran on time) but this efficiency culminated in the massive inefficiency of war. An armed citizenry entails the risk of individuals misusing their weaponry, but to disarm the people entails a much greater risk.
The people have always some champion whom they set over them and nurse into greatness. . . . This and no other is the root from which a tyrant springs; when he first appears he is a protector. . . . In the early days of his power, he is full of smiles, and he salutes everyone whom he meets. . . . When the tyrant has disposed of foreign enemies by conquest or treaty, and there is nothing to fear from them, then he is always stirring up some war or other, in order that the people may require a leader.- Plato, The Republic
The fear of risk also translates into a demand for safety. When we accept that the government can enforce safety matters that perhaps should be left up to the individual, we also surrender a degree of freedom in all matters, related or unrelated. If you carry it far enough, the price of absolute safety is complete loss of freedom. When we ask the State to oversee our safety, we simultaneously bow our heads for the yoke of slavery, gradually getting a better and better fit until we, imperceptibly, have become the creatures of the State. In ancient Rome, those who had traded the uncertainty of the countryside for the certainty of the dole became the mobile populi-the mob. They depended upon the State for sustenance, for entertainment, for their very existence and in return they created for themselves demagogues who destroyed the very State that suckled them.
There is a trend, much on the rise of late, to go whining to the State every time something is not exactly to our liking. "Daddy! Make him stop!" The citizen should not appeal to the State as though it were a parent. The task of the State is not, and should not be, to make everything peachy-keen for everybody. When you ask the State to do something for you, quid pro quo the State gets something from you in return: a little piece of your freedom.
The only question at this point is: Which may we better trust, the play of free social forces or legislative and administrative interference? This question is as pertinent for those who expect to win by interference as for others, for whenever we try to get paternalized we only succeed in getting policed. - William Graham Sumner, State Interference, 1887
There is no more fertile ground for demagoguery than State Socialism. When we ask the State to act in loco parentis-in the place of a parent-the State will gladly do so, absorbing in the process our freedoms, rights and privileges-as well as our money-doling out again what it deems safe and proper. I don't know about you, but the reason I left home was to get away from my parents, and become an adult on my own. Risks and all.
The Constitution Trusts the Average Man to Do Right.
THOSE opposed to the right of the average citizen to posses a weapon seem to presume that he is guilty of homicidal tendencies until the contrary has been demonstrated-a difficult thing to do. Proving a negative is not only difficult, but when applied to Constitutional rights, it violates the spirit if not the actual letter of the basic law of the land.
This suspicion is not at all how the Framers of the Constitution felt about their fellow citizens. From the earliest Colonial times, private citizens were required to have guns in their homes and to carry them on their persons. It was presumed that the average man was without evil intent, and that his desire for public peace and private tranquillity underlay his intent and would lead him to just acts. Not only could this armed citizenry protect itself without demanding help from the government, but the whole body of the people, together with their personally owned arms, also constituted the militia.
The Average Joe is not a murderer, and availability of weapons, no matter how lavish, does not turn him into a killer. After World War Two and the Korean Police Action hundreds of thousands of GIs brought back souvenirs of the most deadly nature, and millions of military surplus weapons came onto the market at bargain basement prices. Despite the surge in weaponry-and this in the hands of skilled users of all kinds of killing devices-the homicide rate continued to drop. It's been said before, but it bears saying again: murderers are highly atypical citizens. Murderers generally have a history of anti-social behavior that is entirely absent from the lives of law-abiding citizens. If the availability of the means to kill created the desire to kill we'd all be dead. But, we're not.
Anyone who doubts that Americans can be trusted with lethal devices need only look at the daily miracle of automobile transportation. Millions and millions of Americans do not smash into each other, do not get into fist fights, do not run each other down, even though it would be amazingly easy to do so. We all gripe about it, and indeed the fatalities connected with cars are two-and-a-half times the homicide rate, but the astonishing thing is not how many people get into accidents, or kill each other, but rather-considering the almost total anarchy of the American highway-how many do not get killed.
There are indeed "gun nuts" out there, but if I may say so, the operative word is "nut," and no amount of legislation is going to do anything about that. John Hinckley can perhaps be better classified as a nut, and less successfully as an assassin. You might as well try to sweep back the sea as to try to erect a barrier of law against insanity. Millions of Americans-perhaps half of all American households-have firearms. They do not, however, therefore run out and kill anyone. Those who murder their fellows are aberrant in many other respects, as well. The recent spate of tourist murders in Florida serves to illustrate: the killers generally are young, disaffected, poor, minority males with long violent criminal records. These are not typical Americans, and it is the height of foolishness to suppose that they should be used as a lever to pry up the rights of the responsible majority, or that the 99.5% of Americans who do not fall into this category should be deprived of a basic right because of them. The Constitution trusts the average man to do right, to obey the law, and to see to it that just laws are respected and evil laws repealed. This trust is well-founded, and should not be abrogated because of a small group of professional criminals, "abusus non tollit usum," as Roman law recommends, "misuse does not nullify proper use." The value of a right is not destroyed by improper use, nor should a right be withheld because some people abuse it.
This segment of the American population is responsible for almost half the crime. Repeat offenders are released again and again until they finally kill, and kill repeatedly. (113) Often they are involved with drugs, but to some degree the problem of crime has become endemic and has taken on the trappings of a social disease. None of the people who cry out for gun control seem to have considered the situation in terms of who is actually committing the crimes, and how or even whether this small, disruptive population should be dealt with. The only solution they can imagine is to take guns away from everybody, equally, so that the uncomfortable problem of who is actually creating the epidemic of crime does not have to be addressed. Other factors are at work beyond the presence of guns in our society. To ignore them in favor of simplistic, anti-Constitutional arguments is to dig a deep pit into which we may all eventually fall. To paraphrase Albert Shanker, President of the American Federation of Teachers, it's time to rethink a notion of fairness that disregards the interests of the majority when there is no evidence that it helps the few.
No Harm has Ever Come of Entrusting the People with Power: Democracy is a Good Thing in Itself
Ours is the only country deliberately founded on a good idea. - John Gunther, Inside U. S. A.
I quote William Safire, who in his book Job: The First Dissident (page 62), says, "The human spirit yearns for freedom, and democracy is the best way we have found to secure a free society."
Two hundred years ago we made a bet: we bet that the people could be trusted, and we put all our money on it. Well, so far, so good. The entire trend of our Republic has been toward democracy-a democracy that the Founding Fathers could not even have imagined. Theoretically, we could dispense with the Republican principle entirely, and have a giant Athens, with every citizen able to participate fully in every decision. This is probably not going to happen, at least for a while, but it's certainly the direction in which we've been headed.
It is significant that no democratic country with a relatively free press has ever experienced a major famine (although some have managed prevention more efficiently than others). This generalization applies to poor democracies as well as to rich ones. A famine may wipe out millions of people, but it rarely reaches the rulers. If leaders must seek reelection and the press is free to report starvation and to criticize policies, then the rulers have an incentive to take preemptive action. In India, for instance, famine ceased with independence. A multiparty democratic system and a relatively unfettered press made it obligatory for the government to act. In contrast, even though postrevolutionary China has been much more successful than India in economic expansion and in health care, it has not been able to stave off famine. One occurred between 1958 and 1951, after the agricultural program of the Great Leap Forward failed. The lack of political opposition and a free press allowed the disastrous policies to continue for three more years. The death toll consequently climbed to between 23 million and 30 million people.
Many countries in sub-Saharan Africa, among them Somalia, Ethiopia and Sudan, have paid a heavy price for military rule. Conflicts and wars are conducive to famine not only because they are economically destructive but also because they encourage dictatorship and censorship. Relatively democratic sub-Saharan countries, such as Botswana and Zimbabwe have, in general, been able to forestall famine. Of course, even an undemocratic country can avoid famine through luck: a crisis might not arise or some benevolent despot might implement effective famine-relief policies. But a democracy is a more effective guarantee of timely action. (114)
Democracy is a matter of balance: nothing all on one side. It's a play of light and shadow; of risk accepted in hope of gain; of trust of the people, and trust in the government. Don't let anything get too far out in front; keep it all together. John Adams said it as well as it can be said: "Liberty depends upon an exact Balance, a nice Counterpoise of all the Powers of the state." (115)
The goal of a healthy nation is to entrust the people with more authority, more freedom, more democracy. The original framers of the Constitution did not envision anything like the democracy that we now have, and certainly did not entertain the possibility of anything like a "Global Village," in which each citizen could, theoretically, vote on every issue much as had the citizens of Athens, the cradle of democracy.
When this nation was founded, the franchise-though in terms of specifics left up to the Several States-was generally granted to every male citizen of good character, who owned property, was White, and over the age of twenty-one. Manhood suffrage expanded the franchise to White males over twenty-one, regardless of financial status. Americans of Black African ancestry were brought in after the Civil War; women in 1919; during World War II the army got the vote; in 1960 the residents of Washington, D.C. could vote; and in 1972 the voting age for all citizens was dropped to eighteen. As a result of spreading out the franchise, what has happened? Not much, except that more people have been brought into the decision-making process. No upheavals, no turmoil, no chaos. It would be difficult, in fact, to find much real change at all. Desperately expressed fears of anarchy have proved entirely unfounded.
Citizens who could vote feared the dilution of power that extension of the franchise proposed. But, when the power was spread out, America was the better for it.
In addition to making the leaders accountable to the people, thereby providing some degree of insurance against excesses in government due to isolation of leaders from the needs of the population, democratic governments posses an additional virtue: they do not go to war against one another.
Stable democracies are unlikely to engage in military disputes with one another or to let any such conflicts escalate into war. In fact, they rarely ever skirmish. Democracies are more likely to accept third-party mediation, to reciprocate one another's behavior and to settle their disputes peacefully. At the same time, they are about as prone to violence in their relations with authoritarian states as authoritarian states are toward one another.
In the modern world, a "democracy," means a country in which nearly everyone can vote, elections are freely contested and the chief executive is chosen by popular vote or by an elected parliament. The more democratic a nation is , the more peaceful its relations with other democracies are likely to be. Since 1946, pairs of democratic states have been only one eighth as likely as other kinds of states to threaten to use force against each other and only one tenth as likely actually to do so. Established democracies fought no wars against one another during the entire 20th century.
Moreover, the fairly tranquil relations among democracies are not spuriously caused by some other shared influence such as high levels of wealth or rapid growth or ties of alliance. Peace reigns among democracies even whet these other favorable conditions do not apply.
Peace among democracies derives in part from cultural restraints on conflict, primarily from the belief that it would be wrong to fight another democracy. This view extends into the international arena the norms of live-and-let-live and peaceful resolution of conflict that operate within democracies. Institutional constraints also play an important role: it is a complicated procedure to persuade the people, the legislature and other independent institutions that war is necessary. (116)
One reason that democratic societies tend not to go to war against one another may come not from what the rulers of these societies want to do but from the fact that most members of such societies lose from war and therefore oppose it - with better odds of success in a democracy. Note that this also means that a country with a professional army would be more likely to rationally choose war, because its citizens at most would lose indirectly and therefore are less likely to oppose it. (117)
The real possibility of widespread international peace is another strong argument for safeguarding democracy at home, fostering democracy in other nations., and resisting the erosion of citizen rights both here and abroad.
Rights are Inextricably Intertwined: Diminishment of One is Diminishment of All
The right to bear arms is simply one thread in the tapestry of civil liberties. When the government pulls on any thread, other threads are dislodged, too. (118)
NOT only does freedom accompany the acceptance of risk, but-tautological as it may seem-freedom is the midwife of freedom. Our nation was founded on radical principles of government: that the people could be trusted with what was considered an amazing, risky, terrifying amount of freedom and responsibility. In no other country are the people trusted with this much freedom. In no other country does the private citizen carry the burden of this much social and political responsibility. And, in no other country does the citizen enjoy such a verdant garden of civil liberties.
England, so often cited by those who dream of a world free of risk, is a perhaps a better illustration of gradual erosion of civil rights. Not only has the citizen, or "subject," to be more precise, have no right to self defense, no right to keep and bear arms, but he has no right to other civil liberties that we take as much for granted as the air we breathe. England is a pitiful illustration of the gradual, unwitting surrender of basic civil rights all in the name of safety, security, and the wisdom of allowing others to think and act for you. I do not wish to try the patience of the reader, but I feel compelled to illustrate other differences between our nation and England's green and fertile land:
The grand jury, which was an ancient common law institution, as was civilian gun ownership, was abolished in 1933. (119)
Civil jury trials have been abolished for all cases except libel, and criminal jury trials are rare. Over 90 percent of all jury trials that take place in the entire world take place in the United States. This is not because we have nine times more criminals who need to be tried. This is because we have a right to trial by jury. (120)
Under the "Prevention of Terrorism (Temporary Provisions) Bill," of 1974 (which has not proved to be temporary) the police may stop and search without warrant, and arrest any person "if they reasonably suspect" terrorism, or even that the person supports a terrorist organization. The person may be held without charge for up to five days beyond an initial 48 hours. The bill also makes it illegal to organize a private or public meeting addressed by a member of a proscribed organization, or to wear clothing suggesting support of such an organization. (121)
Evidence obtained illegally is still admissible in court. The police may keep defense lawyers away from a suspect while he is being interrogated. If a suspect requests that an interrogation cease, the police may continue regardless. (122) The result of this is that the police are contemptuous of other legal forms, because no matter how they get evidence it is still admissible. It is easy for the police to get authorization to search for whatever they want. Judicial approval is not required for wiretaps. (123)
Defense trial lawyers serve as prosecution lawyers on other cases under the same judge. Four out of five defendants pleading innocent do not see a lawyer until the day of trial. (124)
The government may apply for a prior restraint of matter to be published without any notification of the newspaper to be censored, or opportunity to argue the matter before a judge. Books are often banned on grounds of national security. Television stations were forbidden in 1988 from broadcasting statements supportive of a legal political party, the Sinn Fein. Views considered racist may not be expressed publicly. (125)
This matter of censorship, both imposed by publishers themselves and enforced by the government, extends beyond printed matter into the sphere of music and the arts. On November 4, 1976, the Sex Pistols, an English rock 'n' roll group, issued its first single, Anarchy in the UK. After a television appearance on December 1, 1976, their publisher, EMI, recalled the recordings and melted them down. The band's second single, God Save the Queen, was destroyed before release by their second publisher, A & M. Finally published on the Virgin label, the name of the record was erased from the BBC charts and topped the hit parade as a blank space, thus creating the bizarre situation in which Britain's most popular record was turned into contraband.
Although the Englishman may worship his Creator as he sees fit, he must nonetheless pay taxes to support a State religion.
Firearms prohibition has created a wedge into the British home that the police may exploit far beyond what the citizens may have expected when they gave up real freedom for a false safety. The "safe keeping" provisions of the gun laws allow police to enter homes without a warrant to inspect the premises. When this law was extended in 1989 to include shotguns, a few hundred thousand more homes were added to the list of those that the police could reasonably enter with no further excuse. (126)
"The 'checks and balances' of the American Constitution reflect the explicit choice that government was itself something that needed to be controlled, both by the internal checks of three coequal branches of government and by the external check of an armed people who could resist tyranny." (127)
Without this system of checks and balances, the government is free to do as it pleases. (128)
The written Constitution is the ultimate resource of our freedom. We have a written guarantee to which we may appeal if we feel that the State has encroached upon our rights. The Englishman has no such thing. He is subject to a whimsical and tyrannical parliament, which changes the law as it pleases. Power corrupts. Absolute power corrupts absolutely.
The Government and the People are and Should be at Constant Odds
Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my lords, that where laws end, tyranny begins. - William Pitt, Earl of Chatham (1708-1778) Case of Wilkes, speech, January 9, 1770.
IT is in the interests of the government to weaken the people. Unrestrained, the government would gladly usurp all our rights, doling out those it found innocuous. A government that fears its citizens, and for that reason disarms them, restricts their expression, and crushes their attempts at redress is precisely the government that must be resisted.
If the Second Amendment serves the needs of the State to have a well-regulated militia, rather than the needs of the citizens to be armed, the corollary, of course, is that armed citizens pose a threat not so much to each other-as gun prohibition advocates generally maintain-but to the State itself.
Government views everything not itself as a threat to itself. The ultimate government is the perfectly inefficient machine, consuming all the energy put into it and generating no useful work. It is the responsibility of citizens to maintain an adversarial position against their government, to give up as few rights as possible and to enlarge those already secured.
In the view of the Founders, the government and citizen are-and should be-at constant odds. The government is constantly trying to get power away from the citizen, and the citizen is constantly trying to defend himself.
Does the Possession of Overwhelming Force by One Party Obviate the Rationale for Other Parties to be Armed?
AN interesting objection to the private ownership of arms can be made, that compared to what even a moderately wealthy private citizen can afford-assuming that we accept the "shall not be infringed" clause of the Second Amendment as something to be taken literally-it is nothing when contested by the arsenal that the State could bring to bear if it so chose. Really, a pistol or rifle is just a popgun compared to an armored personnel carrier. Therefore, once the State can overwhelm the citizen by sheer force of arms, the difference between small and no arms is basically no difference. Therefore, why not remove the (putative) liability and fight the State with words alone. At least, words and ideas are not divided with the big, powerful words and ideas all on one side and the little, wimpy words and ideas on the other.
It may be observed that such a distinction already existed at the time of the framing of the Constitution. Economics alone, if nothing else, restricted cannon, batteries, fortresses and warships to the State. Few citizens, per se, ever had a private army. (129)
One of the big arguments surrounding not only the Second Amendment but the Constitution itself is this very question of a standing army. In the Federalist Papers, Hamilton argues long and hard that the Several States should not have private armies, but that there should be a central Federal army. The safeguards that he cites are rooted in the English Bill of Rights, which provided
That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
Hamilton argued that the proviso requiring the consent of parliament-or in the case of the United States, the consent of Congress-was adequate provision against the illegal maintenance of an army which would threaten the rights of the States. The reasoning was simple: the States control Congress; Congress controls the army; therefore the States control the army. Therefore, the States do not need armies. The States, however, did not entirely accept the unalloyed beneficence of the Federal Authority, and insisted on retaining their own citizen militias. The central notion that only slaves are unarmed, and that free men are-by definition-conceded the right to keep and bear arms, was instrumental in the insistence of the Several States that they retain, independently, the right to be armed above and beyond the protection (and threat) contained within the standing army of the Federal Authority.
It certainly would be the case that the Federal Authority could overwhelm any given State by force of arms alone. However, that State, so besieged, would attract the attention of other States which, fearing for their own welfare, would rise up against the tyrannical Federal Authority in concert with the oppressed State, and throw off the oppressor. This they could not do unless each State had its own militia.
It is not difficult to see where the Constitutional right of the Several States to keep and maintain military forces separate from that of the Federal Authority extends, by necessity, to the right of the individual free men within each separate State to keep and maintain their own personal arms. First, for the defense of their own homes, persons and property. Second, for the defense of the State against the Federal Authority. Third, to deter the rise of a tyrant within the government itself. Last, for the principled matter that one of the distinguishing marks of a free man is that he has the right to keep and bear arms, and the historical fact that the first order of business in making him unfree is to remove his means of personal defense. (130)
Thus, the chain of logic contained within the Second Amendment, entitling the private citizen to keep and bear arms, is straightforward and unimpeachable.
As concerns underarmed citizens versus a heavily armed State, we have before us the example of poorly armed, poorly fed, poorly equipped bands of citizens who have, in such backward and benighted nations as are found in South America, successfully resisted their own governments for years. This despite the steady supply of the latest citizen-exterminating technology provided, in many cases, by our own government. But this is another matter.
In answer to the position that overwhelming force makes a people armed only with "militia-type weapons" meaningless, I really only need to say one word: "Vietnam." I could toss in Ireland, Cuba and Afghanistan, but I'm sure that the reader familiar with modern history will grasp my meaning. One side has air power, armored vehicles, a navy, chemical weapons and a one-hundred-percent up-to-the-minute war machine backed by the full resources of the most powerful, wealthy nation in the history of the human race. The other side has incredibly crappy Chinese-made AK-47 rifles, bicycles and home-made booby traps. Some of them have nothing. The smart money is on the little guys in black pajamas. You know, the "poorly armed, poorly fed" ones fighting for their homes and families on their own turf. They kicked out the French in '54 and the Yanks in '73. We spent something on the order of $250,000 to $325,000 for each documented Viet Cong kill. The cost of the longest war in American history was equal to thirty-two years of Vietnam's GNP. They still won.
An armed citizenry can keep even a merciless dictatorship on the hop. If evil is contemplated, the citizenry must first be disarmed. Which is exactly what the Nazis did to the Jews in the 1930s. But, some of them kept their arms anyway. They died as they defended themselves against Nazi oppression but then again, dear reader, they would have died in the gas chambers anyway. Soon or late, death comes to us all, but which was the more noble?
Even when the cause is doomed, it provides a model for others:
The odds were impossible and death almost a certainty, but 50 years ago the Jews of the Warsaw ghetto commenced an uprising that would result in an imperishable story of human courage. When the Nazis moved into the ghetto early on April 19, 1943, with substantial military force, they expected to crush the starving residents within hours or days.
Instead, some 700 Jewish youths, armed with only pistols and grenades, held German tanks and heavily-equipped soldiers at bay for 27 days. As the grinding fighting continued, these young fighters, along with other ghetto residents, descended into underground bunkers where they held out under the most appalling of physical conditions.
"The story of the Warsaw ghetto is sacred text for our time," Vice President Al Gore said at a recent anniversary observance. "It warns us of the unfathomable power of evil, the pestilence of the human soul that for a time can dissolve nations and devastate civilization."
It also is a testament to the unquenchable nature of the human spirit. At the time, the rest of the world knew very little of the desperate struggle going on in an isolated enclave ringed by Nazi infamy. Now the history of the uprising is vivid and we pay tribute to a courage that will never die. (San Francisco Chronicle editorial, April 20, 1993, page A-16) (131)
The purpose of the Second Amendment is to prevent the dictatorship from arising in the first place, and this doesn't take atom bombs. Just common preparedness, a strong exercise of First Amendment rights, and a little muscle to back it all up. That's the Second Amendment's purpose.
What Weapons are Appropriate to Each Element of the Republic?
AT each level-Federal army, State militia and the personal defense of the private citizen-there are appropriate weapons. The Federal Authority can be expected to go all-out against foreign aggressors, and therefore must have the right to posses the latest, deadliest, most expensive weaponry. The State will not be called upon, or within the framework of the Constitution, will not be called upon for long, to defend itself against a powerful foreign aggressor, and accordingly is entitled to posses and bring to bear weapons of much lesser force. Machine guns, armored vehicles, rockets and explosive devices are all perfectly in order for the State. Atom bombs, jet fighters and warships are out of place, as they would allow the State to set up shop as a separate nation. The relative weakness of the under-armed State is offset by the power that all the States together possess should they need to deal with the Federal Authority.
For the private individual too, there are appropriate weapons: knives, handguns, shotguns and rifles are all perfectly within the reasonable range of weapons appropriate to the individual. (132) The weakness of the single citizen armed only with a pistol or rifle is offset by their great number: about half the households in the United States are so provided.
The task of the Federal Authority is to come to the aid of a besieged State or a State beset with civil disorder; therefore the State has weapons appropriate to a short-term, low-level holding action. Should the resources of the State prove inadequate, the United States Army will be asked to step in and help. (133)
The private citizen is not expected to perform the task of the local police or State militia, all by himself. The citizen should be armed within the context of a short-term, strictly-limited holding action against small-scale aggression directed at his home, person or property. Thus, the citizen has no appropriate need for cannon, machine guns, hand grenades, rockets or anything else that could stave off an attacking army. All the citizen needs is small arms. If everything in the society is in working order, the citizen defends himself for a short while, and when the attention of the local law is attracted to his plight, he relinquishes the battle to the stronger and better-equipped authorities. If they can't deal with it, they call in the State. If the State can't deal with it, they call in the Feds. All very neat and tidy.
An Armed Populace Discourages Crime
THE validity of the armed citizen as one who, by the very fact of being armed, forestalls possible political unrest and social violence is contained within the precepts of Anglo-American law, and was openly voiced in the debates preceding the wording of the Constitution. Thomas Paine expressed the fully-accepted concept that "arms like laws discourage and keep the invader and plunderer in awe and preserve order in the world as well as property." (134) John Adams recorded similar sentiments in his Diary on the 26th and 27th of December, 1774. In the debates of the Continental Congress, one Mr. Gadsden expressed the concept that preparedness averts the necessity of violence: "By saving our own Liberties, we shall save those of the West Indies. I am for being ready, but I am not for the sword. The only Way to prevent the sword from being used is to have it ready."
The highest rates of homicide in the United States coincide with the densest, poorest areas. Probably more important that density alone, or poverty alone, is the factor of ethnic diversity and conflict. Washington, D.C. (70% Black, 27% white; 9,984 per square mile; GSP 28.8 billion) reported an astonishing 59.5 homicides per hundred thousand in 1988, considerably ahead of the 12.5 of New York (80% white, 14% Black; 10% Hispanic; 365 per square mile; GSP 362.7 billion) and simply astronomical compared to the rural, 98 percent white, state of Iowa (50 people per square mile, 3.8 billion) at 1.7 homicides per hundred thousand . (135)
Those favoring strict gun prohibition will not be pleased to hear that New York City and Washington, D.C. have strict gun-prohibition laws of long standing. New York has had handgun prohibition for 71 years, but the state's homicide rate has nonetheless risen at twice the national average. In 1980 New York City moved from fourth most violent city to second most violent, exceeded only by Boston, Massachusetts, which had instituted Draconic gun prohibition laws in 1975. In 1976 the District of Columbia imposed a complete ban on all handgun sales, and mandated that all firearms kept in the home be disassembled or trigger-locked. In the two years before the law was imposed, homicide rates had fallen 30 percent. In the two years following, they rose by 18 percent. No new gun law had been passed in Baltimore, Maryland-which is the nearest large city to Washington, D.C.-and in Baltimore, in the same interval, the handgun homicide rate fell 46 percent. (136)
As cited below, crime statistics further support the idea that an armed citizenry averts crime in direct proportion to the degree that it is armed. It may seem contradictory that American cities with the strictest gun prohibition of the longest standing have also the highest incidence of crime, but it is so. The first and simplest explanation is that the high rate of crime preceded the passage of gun prohibition legislation and that the incidence of crime did not diminish afterward. This alone, however, would condemn the concept.
But, there is a second and more significant explanation. Surveys of the criminal population of prisons reveal that criminals are afraid of citizens with guns. The one element of the American population that supports gun prohibition even more enthusiastically than smug liberals is jailed felons. A burglar or mugger, a would-be rapist or thief, an aggressive creep, is significantly dissuaded from crime by the simple reflection that he may be taking his life in his hands when he confronts a possibly armed citizen. Most residential burglaries in the United States are committed during the day, when the burglar is reasonably sure that he will not be confronted by an armed householder. In England, since the honest citizen has been disarmed, the rate of burglary has gone up so fast that it now exceeds that of the United States. "Burglary is a more socially destructive crime in Britain because most British burglars attack houses when a victim is present. A 1982 survey found 59 percent of attempted burglaries take place against an occupied home, compared to just 13 percent in the United States. Fear of being shot convinces most American burglars to strike empty targets." (137)
When it is well known that citizens are unarmed, criminals have a carnival. Contrariwise, when the criminals have something to fear besides the relatively gentle ministrations of the law, they watch their step. According to police spokesman Angelo Bitsis, "bump and rob" highway bandits in the Miami area target foreign tourists instead of locals because "thieves are smart enough to target disoriented and slow-moving tourists while ignoring residents, many of whom drive at high speed in cars with tinted windows and cellular phones and who not infrequently are armed." (138)
"by throwing themselves into either scale"
ALEXANDER Hamilton, James Madison and John Jay, writing as "Publius" in The Federalist Papers, are proponents of a strong central government. They make compelling arguments for limiting States Rights, bringing all states into the Union, and for the ratification of the Constitution.
In number 51, James Madison-talking primarily about conflicts between rival officials-eloquently states one of the essential conundrums of government:
But what is government itself, but the greatest of all reflections on human nature? If men were angels, then no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
In numbers 26 through 29 Hamilton discusses the necessity of maintaining a standing Federal army, as opposed to relying on a citizen militia maintained by the Several States. Hamilton argues that a standing army-appropriately regulated by the legislature-is a necessity, and dismisses the notion that one can be gotten together at the drop of a hat by assembling State militiamen.
Why, then, is the Second Amendment in the Bill of Rights? If it is not designed to maintain an arm of the State, it must indeed be intended to preserve one of the rights of the people themselves. Having disposed of the necessity of State militias as a substitute for a Federal army, the necessity remains to insure that this authority is counterbalanced by the governed. The armed, private citizen is insurance against a "force large enough to awe the people into submission." (139) Furthermore
. . . if circumstances should at any time oblige the government to form an army of any magnitude that army can never be as formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens. (140)
Hamilton argues persuasively that if each several State has its own army, the likelihood of conflict among them will be amplified, and that the Federal authority needs a "military force to execute its laws." (141) However,
If the representatives of the people betray their constituents, there is no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance. (142)
Granting that the states can confront a usurper of federal authority effectively, because they are organized, Hamilton admits the right and necessity of an armed citizenry in the case of usurpation of power by the local authority. He admits that the lack of organization of individual citizens will present an extraordinary hindrance to their success, but argues further that
The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the State governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! (143)
The "natural strength of the people in a large community" is derived ultimately from their right to keep and bear arms, and the reason for that right is expressly to "struggle with the attempts of the government to establish a tyranny." It would be foolish to imagine that an impotent people could resist a tyrannous government, or that a people "awed into submission" could be the hope of freedom. Madison, in number 46 of the Federalist Papers, hastens to reassure the citizen that he has nothing to fear from his government because "of the advantage of being armed, which the Americans possess over the people of almost every other nation." (144)
This is the foundation of the Second Amendment. It does not primarily refer to the obligations of citizens to provide an armed and trained yeomanry for the occasional convenience of the government. It expressly provides for an armed citizenry which can ensure a state free from tyranny, and this is guaranteed by specifically reserving a right of the people, as individuals, to be armed. It would be preposterous to suppose that a disarmed electorate could "by throwing themselves into either scale," make a just government preponderant over an unjust.
Hamilton argues that the Federal authority protects the Several States against foreign aggression and insurrection. The states protect the people against usurpers in federal authority, and the people serve as a temporary bulwark against the rise of a local despot until a larger force can be brought to play. In the event of usurpation of power at the federal level, the armed citizen sides with the State against the federal authority; in the event of usurpation of power at the State level, the armed citizen sides with the federal authority against the State. Thus the hinge upon which the "security of a free State" swings is the armed citizen, providing the third leg of a stable system of checks and balances consisting of citizen, state militia and federal standing army. All three are necessary to the common defense, and to the internal peace of the Union.
By this measure, the citizenry should be extraordinarily suspicious of any government official, representative or body which seeks, upon specious grounds, to disarm it. It should be assumed that such a person or body means to arrogate to itself power to which it is not Constitutionally entitled, for the purpose of weakening the Union and doing harm to its inhabitants.
Enemies of the People
THOSE who would extirpate the right of the private citizen to keep and bear arms may be compared to one who looks at a great oak and, seeing only the part that grows above the ground, believes that the trunk, branches and leaves are the only parts with any importance. The roots of our nation's strength lie in the people. The people are strong only as they are free, and their freedom resides in their self-confidence that they are and shall remain so. This confidence is derived from the Bill of Rights. Tamper with that and you cut at the root. Cut the root and the tree dies.
I have noticed that the proponents of gun prohibition do not want to hear arguments of any kind that refute their contention that guns should be strictly regulated by the government. Statistics, studies, figures to the contrary-they do not want to listen. Therefore, I assume that they are not actually interested in the real function of firearms in our society, but have some other agenda hidden up their sleeves.
They may be highly moral in their opposition to weapons in the hands of the common citizen, but they are also highly elitist. Whatever their motive the result will be the same: the citizen will be weaker so that the State may be stronger. They fear the people, whom they cannot effectively control, and embrace the State, which, as they intend to control it, they do not fear. That they propose to do this legally, without violence, is not at issue. That they mean to weaken the fabric of our Republic for their own narrow political ambitions is at issue. Opponents of the Second Amendment seize on highly publicized outrages, random and infrequent acts of madmen, isolated incidents, and create from these rare and atypical events-events that have nothing whatever to do with the purpose of the Second Amendment; events that are not in any way representative of the actions of ordinary, responsible citizens-a whole edifice of justification for abrogation of this fundamental and necessary right. They flaunt half-truths and mount coarse appeals to emotion, and by slow and easy stages ease the Second Amendment right out from under the brood hen of the electorate. Frequent infringements of rights serve to weaken the sense of those rights, and by degrees the people are brought to consider their elected officials not only as their protectors but as their superiors. The transition from this to considering them masters is neither remote nor difficult, and it is hard to prevail upon a people under this impression to make a bold or effective resistance to a despot. (145)
Put in terms of the darling of the ACLU, the First Amendment, the "time, place and manner" of speech can be regulated by government but not in such a way as to substantially affect it. For example, a person may not be restricted to the 3-4 AM slot on television to air his message.
In 1939, Mayor Frank "I Am the Law" Hague of Jersey City claimed the right to deny free speech to anyone he thought radical. Of his critics he said,
"We hear about constitutional rights and the free press. Every time I hear these words, I say to myself, 'That man is a Red, that man is a Communist.' You never hear a real American talk in that manner."
The ACLU, together with the Congress of Industrial Organizations (CIO), which was trying to organize in Jersey City, took Hague to the Supreme Court, which ruled that public places such as streets and parks belonged to the people, not the mayor, and that their use for free speech and assembly, though it could be regulated, could not be denied. (146)
Similarly, reasonable restrictions on possession and use of firearms may be made, but not those which substantially infringe upon the power of the Constitutional meaning. A locality may pass laws against target practice in the back yard, but may not make substantial inroads on gun possession.
To help the First Amendment crowd understand how the Second Amendment crowd feels, remember how the threats and blustering of Jesse Helms makes you feel. He attacks things that are not always easy to defend on their virtues alone, so you go for the First Amendment per se. You believe, and rightly so, that he's got a bigger agenda than an art show or some off-beat photographs. He's after the whole thing. He wants to strip away all your First Amendment rights and leave you at the mercy of the government.
Well, that's how gun owners feel about any incursion on their right to keep and bear arms, so let's have a little cooperation here.
The best course of action is to resist each incursion as though it were the last. For the government to restrict the possession of arms is to put the fox in charge of the chicken coop. Hamilton handsomely answers the question, "Who shall guard the guards themselves?" (147) by establishing a balanced system that ensures a stable distribution of power. This system, which has served our country well in its rocky journey from Republic to Democracy, should not be trifled with.
We owe it to our ancestors to preserve entire those rights, which they have delivered to our care; we owe it to our posterity, not to suffer their dearest inheritance to be destroyed. - "Junius," No. 20, to the printer of the Public Advertiser, August 8, 1769
The Bill of Rights places an ethical obligation to do justice on the government, backed by the authority of law, beneath which necessarily must lie the threat of force. That threat is contained within the Second Amendment.
Some Things Never Change
THE Constitution is a living, growing document. The words themselves are liable to an extraordinary elasticity, and that is wherein lies their strength. The trend over the last two centuries, however, has been toward in increase in individual freedom and responsibility.
Certain things remain constant: the threat of demagoguery and tyranny are with us always. They were of the utmost concern to the framers of the Constitution and the matter now is, if anything, graver than ever. If weapons have become more deadly, governments too are capable of a power that was unimaginable in 1776.
The task of the citizen is to maintain the balance of power, compelling the State to fear and respect the collective rather than the isolated individual. In that sense, the Second Amendment is indeed a collective right: the right of all the people, appropriately individually armed, to resist the government should that become necessary. It's the principle of a union, except that the boss is our own government. A strong citizenry preempts State exercise of force. So, here's the deal: the government protects the citizen from aggression, both foreign and domestic, and the armed and informed citizen protects the body politic from the government.
AN ANALYSIS OF HOMICIDE STATISTICS
THE FALLACY OF GUN PROHIBITION
Take Care to Avoid the Sacred Cow Pat
THERE are sacred cows rambling equally among the fields of the Left and of the Right. These notions are ones so well fitted to the group's general political philosophy that they can pass by unquestioned. Gulped down whole without examination, when these chunks of received wisdom become current, they tend to make it almost impossible for the responsible citizen to think or act wisely, compassionately, or reasonably.
Here is a recent example: the stunningly misnamed organization "Fairness and Accuracy in Reporting" (FAIR) announced that on a typical Superbowl Sunday the rate of domestic violence rose by forty percent. The media went for it hook, line and sinker, and solemn announcements appeared during precious Superbowl advertising time urging all of us to mind our P's and Q's, abuse-wise. Well, this tale of woe turned out to be a crock of shit. It wasn't true, but nobody in the media questioned it because it fit so well with our assumption about the Neanderthal nature of men who watch football. When the Washington Post's Ken Ringle looked into the matter, by resorting to the amazing journalistic technique of actually telephoning the ultimate source for the story, he found that it was based on an old Dominion University study that had discovered "some very tentative findings" about women receiving medical treatment after televised football games. All those contacted by Ringle repudiated the data attributed to them, and firmly denied the existence of any study linking domestic violence and football. But, the myth firmly rooted itself in (at least) the liberal mind, and a small, tardy exposé on page A-10 in the February 5, 1993 Wall Street Journal isn't going to dispel the lie when it is just exactly the kind of thing that Politically Correct people want to believe.
The power to tax is the power to destroy(148)
THE reason I'm mentioning this intentionally false news item is that the same confusion seems to surround the matter of gun prohibition. To demonstrate the dangers of gun dealers in our midst, an impressive display of firearms was trotted out before assembled officials, reporters and the general public. These firearms had been confiscated by the police because they had been used in crimes. The public was left with the impression that these guns had been sold by neighborhood gun dealers in Berkeley, though indeed this was untrue. Not a single one had been sold in Berkeley, and there was no connection of any kind, except the one that was implied by the display.
This sort of smear and innuendo, found so reprehensible by these very same liberals when Senator Joseph McCarthy used the technique to attack the First, Fifth and Sixth Amendments, was let pass without a word when leveled against their own bugaboo, the Second Amendment.
"I have here in my hand a list . . ." became
"We have here before us a collection of weapons used in crimes . . ."
As a result of Berkeley's recrudescence of interest in the evils of the Second Amendment, I found myself examining the fundamental issues, and decided to apply to them the same sort of questioning that I've found so useful in the past, when presented with something that sounds a little too good-or bad-to be true. Our municipal crackdown on "neighborhood gun dealers" (a brilliant turn of phrase-it brings to mind a Good Humor man trundling a cart filled with lethal weapons down the street, ringing a little bell to awaken the interest of innocent urchins) has resulted in a punitive tax which, if levied at speech, or churches, or hardware stores, or just about anything else, would have provoked howls of rage from everybody and his brother. (149) The "chilling effect" it has on the exercise of what many people strongly believe to be a Constitutionally guaranteed right-a right every bit as important as the right to freedom of expression-should attract at least some notice. But, in this aggressively liberal environment, I hear not a peep.
Every liberal of my acquaintance would nod in agreement if I were to present the following quotation as an argument against a punitive, essentially fatal tax on any form of speech, but turn it about a bit, and level it against a tax on the possession of a Federal license to sell guns, and see what happens:
Few would deny that a license tax laid specifically on the privilege of disseminating ideas would infringe the right of free speech. For one reason among others, if the state may tax the privilege it may fix the rate of tax and, through the tax, control or suppress the activity which it taxes. - Chief Justice Stone, dissenting. Jones v City of Opelika 316 us 584 (1942)
Now, let's try it again:
Few would deny that a license tax laid specifically on the privilege of selling firearms would infringe the right to keep and bear arms. For one reason among others, if the state may tax the privilege it may fix the rate of tax and, through the tax, control or suppress the activity which it taxes.
Does it fit differently, or the same? Does it pinch the left foot much as it pinched the right?
The reason I mention what may seem to be the peripheral issue of taxation is that this is a way that government gets around sticky questions. Taxes sometimes start out with no more than the ostensibly benign motive of garnering revenue. Government does not voluntarily give up any source of revenue, even when it has promised in writing to do so, not only because it is an infinite consumer of money, but because this provides the classic "camel's nose in the tent," for further intrusion. Taxation, if nothing else, creates records. The English Gun License Act of 1870 began as no more than a source of revenue, and ended as a source of repression. It required the purchaser of a firearm to purchase a ten shilling (quite a lot of money) license at the local post office. (150) In 1903, Parliament enacted the Pistols Act, "which forbade pistol sales to minors and felons and ordered that sales be made only to buyers with a gun license (obtainable at the post office, the only requirement being the payment of a fee) or to those who intended to keep the pistol solely in their house." (151) "Defense of the Realm regulations during the war had required a license to buy pistols, rifles or ammunition at retail." (152) A general revulsion against the carnage of World War One, and concomitant revulsion against firearms, made smooth the path for the British Government to enact the Firearms Act of 1920, which was in direct reaction to a fear of nearly nonexistent Bolshevik and anarchist uprisings. Citizens were required not only to purchase a license, but to give the police "good reason" for wanting a rifle or pistol. A fear of gangsters soon replaced the fear of anarchists, and 1936 legislation further limited arms possession. In the 1960s, shotguns-theretofore entirely unregulated-came under scrutiny, and in 1967 the purchaser was required to obtain a shotgun certificate from the police. The permit cost twelve pounds, which at that time was a good deal of money. The average hourly wage was ten shillings, so this permit represented three day's labor for a workingman. The purchaser had to give a "good reason" for wanting a shotgun. Self-defense was not considered a "good reason." The government is now working on airguns and crossbows. Indeed, the use or possession of anything at all-keys, umbrella, dogs, carpentry tools-can be considered offensive weapons. The "natural right of resistance and self-preservation," of the English royal subject is as dead as the dodo. So, the lords who sought to disarm their peasants are by the same measure themselves disarmed. The English people may look forward to the meanness of an unbridled police and bureaucracy, and the petty viciousness of an impotent citizenry. Blackstone, who said of the Game Act of 1671, "prevention of popular insurrections and resistance to the government, by disarming the bulk of the people . . is a reason oftener meant than avowed," must be spinning in his grave. (153)
The American National Firearms Act of 1934 did not actually prohibit the personal possession of a Tommy gun: it merely taxed the sale. Marijuana is similarly available: just buy the appropriate tax stamp and it's yours by the bale. My recollection is that sometime in the mid-sixties one of my acquaintances actually tried to buy one of these stamps and was refused. He then went out and bought some dope from the friendly pusher on the corner, smoked it right under a cop's nose, was busted, and based his case on the simple argument that he'd tried in good faith to buy the requisite stamp but had not been allowed to do so. As I remember, he got away with it.
When something is taxed or issued by special permit, getting that all-important tax stamp or permit can be made extraordinarily difficult. It can be made the instrument of repression, control and confiscation. That's how our English cousins do it. Guns are simply taxed out of existence.
Population Density as a Factor in Homicide
GENERALLY speaking, as population becomes more dense, crime goes up. This certainly holds true for cities. The homicide rate in cities over 250,000 in 1984 was 18.6 per 100,000; in cities of 249,000 to 100,000 the rate was 10.4; in those of 99,000 to 50,000 it was 5.9; in towns of 50,000 to 25,000 the homicide rate per 100,000 was 4.4; in towns of 25,000 to 10,000 the rate was 3.4 and for towns under 10,000 of population the homicide rate per 100,000 was 2.9. From this statistic, we conclude that the most dangerous thing is population density. (154)
National and Ethnic Temperament as a Factor in Homicide
WE also must consider what can, for lack of a better term, only be called "ethnic temperament." To some degree, the more homogenous the population (as in Japan) the less racial, ethnic or religious strife there will be, and the homicide rate will accordingly be lower. New York City and Washington, D.C. provide a model for crowding, poverty and ethnic stress.
Anti-gun liberals have a swell time trotting out statistics that show America to be the murder capital of the civilized world. Bob Greene, a columnist for the San Francisco Chronicle, wrote an article printed in the April 18, 1993 This World section titled "South of the Murder Line," in which he drew an invidious comparison (somewhat flawed statistically, but we'll let that pass for the moment) between America and Canada. He implied that a magic line separated the two nations, on one side of which the murder rate was low, and on the other side high. He attributed this to one thing only, and that was the presence or absence of firearms. What he did not mention, probably because he did not find it suitable to his argument, is that the murder rate in many "northern tier" states that border Canada is even lower than the murder rate in Canada itself. (155) Other states-distinguished only by low population density, like Canada, and predominately White populations, also like Canada-have similarly low homicide rates. (156) However, the per capita possession of guns in those states is extraordinarily high. So, what's hidden here? The murder rate in Washington, D.C. is the highest in America. New York City, Chicago and Boston come in fourth, fifth and seventh. All these places have gun prohibition.
Seattle, Washington has a higher homicide rate than Vancouver, British Columbia. Seattle and Vancouver residents have a similar average income. However, their below average income groups are quite different. The low income population of Seattle has a high proportion of
. . . racial minorities that have been brutalized by a history of racial discrimination and destruction of basic family structures. If one limits the Seattle-Vancouver comparison to non-Hispanic whites, the homicide rates and gun victimization rates in the two cities are equal-despite Canada's stricter laws." (157)
"Other studies have also found the difference in Canadian and American crime rates to be associated with the different sociological mix of the two nations. The overall death rate for non-Hispanic white Americans from all types of shootings (murder, suicide, accident, etc.), is the same as the rate for Canadians. (158) One study, by Robert J. Mundt, compared twenty-five Canadian cities with twenty-five comparably sized American cities. When the co-variables of 'percent black' and 'city size' were considered, the difference between American and Canadian samples diminished to the point of insignificance. (159) In other words, the higher American homicide rate in relation to Canada was attributable to the fact that America is much more densely urban than Canada, and that America has a much higher percentage of blacks in its population. (160)
Canada, as has been said before, does not have written constitution, and thus is subject to the same whims and fashions that so alarmed Thomas Jefferson. Acts of parliament are "writ in water," subject to whimsical change or abolished altogether with a new government. Our written Constitution is a specific safeguard against just such things. Not only does Canada restrict the right of citizens to keep and bear arms, Canada does not have a First Amendment, and when interest groups pressure the government on "politically correct" issues, the result is sometimes a concomitant destruction of what we, in the United States, feel are important Constitutional safeguards. (161)
Japan, though densely populated, has a deeply ingrained heritage of cooperation and acceptance of circumstance. Japan has had gun prohibition since the 16th century, so there is no real way to measure if it's working or not. Japanese gun prohibition was introduced in 1587 for the identical reasons that the English imposed gun prohibition: to get all weapons out of the hands of civilians, and to protect the government from the governed. Japan is also almost entirely populated by Japanese of Japanese ancestry. Not only do they provide a very model of racism and ethnic intolerance, they don't even like Japanese who have been out of the country for long. The Japanese like everybody to be the same.
Other ethnicities have a lower level of cooperation. Somalia's total anarchy is a product of national temperament as much as is Japan's highly stable semi-feudal structure. (162)
Poverty is Necessary but not Sufficient
WHEN I began writing this paper, I assumed that one of the great causes of violence in our society was poverty. That is to say, that poor people were just like anyone else except that they didn't have any money. If they had good jobs and lived in pleasant, tree-lined neighborhoods, they would be nice people and wouldn't burglarize my house or steal my car or hold me up or break bottles in the street. That's probably true, though it's unlikely to be given much of a test.
The trouble with the "poor people as criminals" theory is that not all poor people are criminals. Poor people in rural settings don't seem to be much worse than anybody else, and as far as murder is concerned, the rate is inversely correlated with population density. Poverty doesn't seem to have much to do with it. Poor people who are crowded together start to simmer, though. Critical mass is reached when poor people in big cities see an opportunity to make money by breaking the law. Bad laws make bad men, creating a self-perpetuating cycle of crime and violence.
The Noble Experiment
"Useless laws weaken the necessary laws." - Charles de Secondat, Baron de Montesquieu, De l'Espirit des Lois (1748) XXIX, 16
IF you were to make a graph of the homicide rates from 1900 to 1991, you would see that it has one significant dip. (163) That dip starts right after the repeal of Prohibition, reaching a low in the late 1950s. It starts rising again with the passage and enforcement of anti-drug laws, and gets worse and worse as the enforcement becomes the central concern of all American law enforcement agencies. The high (so far) was in 1980.
This is corroborated by the number of New York City police officers killed in the line of duty between 1920 and 1990. Between 1920 and 1930, the height of Prohibition, 57 officers were killed. 1930 to 1940, the decade during which Prohibition was repealed, the number was still high, at 55. During the 1940s, it fell to 32; in the '50's it hit an all-time low of 10, and began to creep up again in the 60's with 24. In the '70's, with increasing lawlessness and drug enforcement, there were 46; in the '80's, 41. Though still not as high as the absolute number of Prohibition killings, the pattern correlates perfectly. (164)
Here we may introduce the principle of the inappropriate metaphor. As William Briar Arthur of the Santa Fe institute has pointed out, "If you look at a truly complex system, then the exact patterns are not repeatable. And yet there are themes that are recognizable. In history, for example, you can talk about 'revolutions,' even though one revolution might be quite different from another. Se we assign metaphors. It turns out that an awful lot of policy-making has to do with finding the appropriate metaphor. Conversely, bad policy-making almost always involves finding inappropriate metaphors. For example, it may not be appropriate to think about a drug 'war,' with guns and assaults." (165)
The nineteenth century was marked, among other things, by an amazing number of social theories and an equally amazing number of do-gooders to cram them down everybody else's throat. One of the big favorites with officious intermeddlers was the All-Encompassing Bad Thing: "(Your Crackpot Theory Here) is the root of all evil." Some of them are so ludicrous that they were even then a laughingstock, but others did quite well.
Numberless temperance organizations sprang up, among them the powerful Women's Christian Temperance Union. (166) Lunatics like Carry Nation (1846-1911) ran amok, and because they, as with others in our own time, were aggressively "politically correct," nobody could stop them.
World War One and the great influenza epidemic added to the social and economic confusion of rapid urbanization and the massive influx of Europeans into American cities. By an unfortunate coincidence, reactionary forces contrived at this delicate moment to push through the Eighteenth Amendment, perhaps the most ill-considered national legislation in our history.
The cities were crammed with the poor; with the racially, ethnically, culturally and religiously diverse. This is what I would characterize as a powderkeg.
What is not often considered by lawmakers is the straightforward consequence of a repressive law: it creates an opportunity for the enterprising criminal to make a lot of money. (167)
The rising homicide rate takes a jump, and keeps on rising to an all-time high right up until the exact second that Prohibition is repealed, at which point it begins a precipitous 27-year decline to attain a low not seen since well before World War One.
Almost before the ink on the Twenty-First Amendment was dry, the thin-lip brigade found a new evil and cranked up the tambourine and harmonium for a new cause: drugs. The year 1936 witnessed the filming of what were to become two cult howlers: "Reefer Madness" (originally titled, "The Burning Question," then "Tell Your Children") and "Marijuana" (originally titled, "Marijuana-the Devil's Weed"). These films showed for thirty years, mostly in small towns and churches. I saw "Reefer Madness" in 1958 in the basement of Our Savior's Lutheran Church fellowship hall in the further reaches of suburban Sacramento. It made absolutely no sense to me or anybody else. It didn't even make us curious about dope.
By the early 1960s drugs began to creep into the middle class, and by the mid-1960s were a commonplace. Drug crime and easy money exactly duplicate the causes of the high homicide rates of Prohibition days.
A fundamental concept that is entirely ignored by those who would give moral opinion the force of law is this: if you don't force reasonable people into being criminals, they will be less likely to go on to condone or commit real, substantial crimes. However, once the ordinary man perceives the law as foolish or unreasonable, and sees that the courts "strain at gnats and swallow camels," the social contract begins to break down. If you can get ten years in jail for possessing a small quantity of a roadside herb, and a convicted multiple kidnapper, rapist and murderer is out free and running around, the law as a whole gets a lot less respect than it should.
If reasonable steps were made to repeal drug prohibition, the homicide rate would drop like a stone. You bet your life, kiddo. (168)
Manner of Reporting and Definition of Homicide Significantly Influences International Statistics
STATISTICS reported to the World Health Organization (WHO), Interpol, and the United Nations, upon which international rates of homicide are compared are not quite as they seem. This is also true of American statistics before 1948, when death by police intervention and other lawful homicides, were first included in the overall homicide rate.
In the Wild West, where just about everyone who chose to be so was armed, people popped each other off at a considerable-and basically entirely unreported-rate. Whether a person was considered to have committed a murder was a matter of local temperament and tradition as much as anything else. If a respectable householder killed a burglar, the act might not even have merited a report. A person killing a spouse and illicit lover might not even be arrested. A person if high social standing killing another of lower social status might not be considered to have committed any crime at all.
The extremely low homicide statistics at the early part of this century may reflect community mores as much as actual killings.
At the age of eleven, my own grandfather, William Odus Burch, in 1901 shot and killed a man who had burst into his family's frontier home with the evident intent to rape his mother. The last thing the man heard on this earth was, "Look out! The kid's got a gun!" As it happened, the man and his accomplice (who escaped only to be caught by William's father, James Thomas Burch, and hanged without ceremony from a tree) had been wanted for other crimes, and a reward of five hundred dollars in gold put on their heads. My grandfather got the money, which was laid away in trust for his education. If this homicide was reported at all, it was probably only to wipe the slate clean of two bad men who had been neatly and amusingly disposed of by a child, and to account for the reward money.
A last, important caveat concerning American homicide figures is that there is a difference between a lawful homicide and an unlawful murder, though all are generally lumped together under the catch-all of homicide statistics. A substantial number of homicides are committed by police-who in the course of their lawful duties kill criminals-or by civilians committing lawful homicide. Armed citizens capture or rout thirty times the number of violent felons than they kill, and the number of felons that they lawfully kill exceeds by about three times the number killed by the police. For example, figures kept in Chicago since the 1920s show that lawful civilian homicides were equal to and at later times triple that of the police. The same is true of Washington, D.C. Naturally, more felons are killed in high-crime areas than in low-crime areas. (169)
Different nations measure murder by different standards. This can make comparison of homicide statistics misleading and confusing. Great Britain and Ireland do not include political assassinations among their murder statistics. Each year in Japan, hundreds of men kill their entire families and then commit suicide. This tradition is so much a part of Japanese culture that it was not even considered a crime until fairly recently. If these "family suicides" had been factored in as homicides, Japanese murder rates would not compare quite so favorably with those of the United States. Indeed, 17 percent of Japanese homicides consist of children killed by their parents. (170)
Japan classifies assault that results in death as assault, not homicide, but includes as homicide the preparation for the commission of a homicide and the participation in a suicide. Czechoslovakia classifies rape that results in the unintended death of the victim as rape, not homicide. These definitions affect the rate of homicide as compared with the United States.
The United States excludes attempts, calling them assaults. The reason is that there is no way to know if homicide was intended unless it actually occurred. The United States is the only country to classify attempted homicide this way. Other countries have other definitions, which seriously influence their reporting of homicide.
Interpol defines murder as "any act performed with the purpose of taking human life, in whatever circumstances. This definition excludes abortion but includes infanticide."
The United Nations defines intentional homicide as death purposely inflicted by another person, and includes infanticide.
World Health Organization defines homicide as death by injury purposely inflicted by others. It makes no distinction between intentional and unintentional homicide. It excludes attempts.
Some countries include both attempted homicides and completed homicides in their statistics.
A tremendous difference in homicide statistics occurs depending on whether suicide is counted as intentional homicide or not. In Denmark, the 1984 homicide rate was .07 per hundred thousand, whereas the suicide rate was through the roof at 28.7. Apparently the Danes get along with their neighbors all right but don't care for themselves very much.
In Japan, another place with a negligible homicide rate (0.9), the suicide rate is astronomical at 20.3, and in 1984 this still included the "family suicide" concept which was, by American standards, simply mass murder.
The Canadian suicide rate (13.94 in 1985) was also higher than in the United States (12.20 in 1982).
Though the Hindu practice of suttee is officially discouraged in India, the rate remains high because it is firmly rooted in social codes. Whether the forced suicide of a widow counts as murder or suicide would depend on how it's reported and dealt with by the authorities.
The inclusion or exclusion of suicide, and what is variously defined as suicide, so strongly influences national homicide statistics that we might even say it knocks the whole thing into a cocked hat. But, you have to do the best you can with what you've got.
International Intentional Homicides (171)
Suicide Homicide Total
Rumania 66.2 NA 66.2 (1984) Hungary 45.9 NA 45.9 (1983) Denmark 28.7 0.7 29.4 (1984) Austria 26.9 1.5 28.4 (1984) Finland 24.4 (1983) 2.86 27.2 France 21.8 (1983) 4.36 26.16 Switzerland
24.45 1.13 25.58 Belgium 23.15 1.85 25.0 West Germany
20.37 1.48 21.85 Japan 20.30 .9 21.20 U. S. 12.2 (1982) 7.59 19.79 Canada 13.94 2.6 16.54 Norway 14.5 (1984) 1.16 15.66 Northern Ireland
9.0 6.0 15.0 (may not include political homicides) Australia 11.5 1.95 13.53 New Zealand
9.7 1.6 11.3 England & Wales
8.61 .67 9.28 (does not include political homicides) Israel 6.0 2.0 8.0
Denmark, Finland, Norway and Sweden reported in their 1980 WHO data death by legal intervention. This is no longer included in the WHO definition. Legal executions are not considered homicide.
France, West Germany and the Netherlands include unintentional homicide with intentional homicide.
Smaller countries report more fully than larger countries, and non-socialist countries are better at reporting than socialist countries. (172)
Some countries apparently have no concept whatsoever of unlawful homicide. The African nation of Mali, by way of example, was perfectly pleased to report a murder rate of 0.00. (173) Others must have a standard so heavily circumscribed by cultural factors that few killings are counted as unlawful. Since statistics are based on the number of crimes officially reported or detected, they necessarily reflect police efficiency and administrative systems as much as actual crime rates.
The reader might bear in mind that homicide rates are also massively compromised when a country or area has a high rate of social and political unrest. Many European nations have a long tradition of violent protest and insurrection not commonly found in North America. African, South American and Southeast Asian nations endure constant, deadly civil wars and revolutions which create famine, plague and pestilence. (174)
The Rate of Homicide in America
IN this century, firearms and explosives have accounted for roughly fifty percent of all homicides. In 1900 suicides were about 25 percent by firearms and explosives, rising to roughly 50% by 1970. Beginning in 1904 suicide began to climb dramatically, to reach a high of 17.4 per hundred thousand in 1932. Suicide has held steady at 10-11 per hundred thousand since the end of World War Two. (175) A low point for suicide in this century was 1957, with a rate per 100,000 of 9.8. (176)
Homicides per 100,000 in the United States. Source: Historical Statistics of the United States (Note: suicide rates remain rather stable at around eleven per hundred thousand throughout the century, except for the depth of the depression, when they skyrocket to 16.8 in 1931 and 17.4 in 1932. By 1942 they level off again.)
HOMICIDES PER 100,000 IN THE UNITED STATES
1900: 1.2 1901: 1.2 1902: 1.2 1903: 1.1 1904: 1.3 1905: 2.1
1906: 3.9 1907: 4.9 1908: 4.8 1909: 4.2 1910: 4.6
1911: 5.5 1912: 5.1 1913: 5.1 1914: 5.2 1915: 5.9
1916: 6.3 1917: 6.9 1918: 6.5 1919: 7.2 1920: 6.3
1921: 8.1 1922: 8.6 1923: 7.8 1924: 8.1 1925: 8.3
1926: 8.4 1927: 8.4 1928: 8.5 1929: 8.4 1930: 8.8
1931: 9.2 1932: 9.0 1933: 9.7 1934: 9.5 1935: 8.3
1936: 8.0 1937: 7.6 1938: 6.8 1939: 6.4 1940: 6.3
1941: 6.0 1942: 5.9 1943: 5.1 1944: 5.0 1945: 5.7
1946: 6.4 1947: 6.1 1948: 5.9 1949: 5.4 1950: 5.3
1951: 4.9 1952: 5.2 1953: 4.8 1954: 4.8 1955: 4.5
1956: 4.6 1957: 4.5 1958: 4.5 1959: 4.6 1960: 4.7
1961: 4.7 1962: 4.8 1963: 4.9 1964: 5.1 1965: 5.5
1966: 5.9 1967: 6.8 1968: 7.3 1969: 7.7 1970: 8.3
Source of statistics from 1976 to 1988: FBI, Crime in the United States
1976: 8.8 1977: 8.8 1978: 9.0 1979: 9.7 1980: 10.2
1981: 9.8 1982: 9.1 1983: 8.3 1984: 7.9 1985: 7.9
1986: 8.6 1987: 8.3 1988: 8.4 1989: 8.7 1990: 9.4
Below is from "1981 Murders per 100,000 in Industrialized Western Nations." Sources: The Economist Book of Vital World Statistics (1990); New Book of World Rankings U. S. 1988 statistics from 1990 World Almanac and Book of Facts
District of Columbia 59.5 (70% Black, 27% white; 9,984 per square mile; 1985 per capita income $18,000) Puerto Rico 17.8 (population density 956 per square mile; 99% Hispanic; per capita income $4,300) New York State 12.5 Texas 12.1 Georgia 11.7 Louisiana 11.6 New Mexico 11.5 Florida 11.4 Michigan 10.8 Nevada 10.5 California 10.4 Alabama 9.9 Maryland 9.7 Tennessee 9.4 South Carolina 9.3 Arkansas 8.7 Illinois 8.6 Mississippi 8.6 Arizona 8.5 United States 8.4 Missouri 8.0 North Carolina 7.8 Virginia 7.8 Mexico 7.42 Oklahoma 7.4 Luxembourg 7.0 Indiana 6.4 Kentucky 6.2 Alaska 5.7 Colorado 5.7 Washington 5.7 Pennsylvania 5.5 Connecticut 5.4 Ohio 5.4 New Jersey 5.3 Delaware 5.2 Oregon 5.1 West Virginia 4.9 France 4.23 Australia 4.20 Hawaii 4.0 Rhode Island 4.1 Idaho 3.6 Nebraska 3.6 Massachusetts 3.5 Kansas 3.4 Belgium 3.1 Maine 3.1 South Dakota 3.1 Wisconsin 3.0 Portugal 2.99 Minnesota 2.9 Utah 2.8 Montana 2.6 Wyoming 2.5 Spain 2.32 New Hampshire 2.3 (population density 117 per square mile; 99% white; per capita income $19,000) London, England 2.2 Canada: 2.2 Vermont 2.0 North Dakota 1.8 Iowa 1.7 Italy 1.52 United Kingdom 1.37 Japan 1.2 China 1.10 Switzerland 0.92
(Mixed European, 402 per square mile; per capita in 1987 of $26,000) (177) Norway 0.90
Nothing could be easier, or more liable to misinterpretation, than a statistical analysis of homicide figures proving one point or another about homicide or gun prohibition. As Mark Twain said, "There are lies, damned lies, and statistics." I could manipulate this data to render just about any point I wanted to make, and so could someone who's point differed from mine. Therefore, I'm going to leave the numbers alone.
Furthermore, the source of these statistics is exceedingly muddy. Proponents and opponents of all aspects of gun prohibition rely heavily on the FBI's yearly Uniform Crime Reports. What is unfortunate about these reports is that they are anything but uniform, since they rely upon voluntarily reported data from state and local law enforcement agencies. They contain little information on suicides, and there is no information on 10 percent of homicides. Though firearms murders are broken down by type of weapon used-handgun, shotgun, rifle, other type of gun-the specifics are not tabulated. The caliber and type of gun is not included. Though the crime report of 1991 indicates that 26 percent of all murders were committed by someone known to the victim, 15 percent by strangers and 12 percent by relatives, at 39 percent, "unknown" is the largest category. A clearer idea of the circumstances surrounding a homicide would also be useful. One in five murders occurs during the commission of a felony, but other circumstances are not specified. Representative Pat Schroeder (D CO) introduced a bill in 1993 to create a gun fatality system which would compile the following information: type of death (homicide, suicide, accidental); the victim (age, race, gender, felon); the shooter (same as for the victim); the circumstances surrounding the shooting (date, time, location, whether related to another crime, influence of drugs or alcohol); and the weapon used (type, make, model, caliber, serial number). (178)
What does emerge from a simple ranking of available, unmanipulated homicide statistics is straightforward: people murder each other at a regular rate which seems to owe most to over-crowding, economic stress and political, ethnic or religious conflict. (179)
Also significant is the hard-to-pin-down but obvious matter of what, for want of a better term, I'll call "national character." The Japanese, who are homogenous, crowded and long accustomed to a profoundly repressive governmental structure, have had gun prohibition since the Tokugawa Shogunate. Their low homicide rate reflects not gun prohibition, but a deeply ingrained social sense of cooperation.
The Japanese live, quite happily I'm told, in what is by any reasonable standard a police state. The police keep tabs on everyone, everywhere, all of the time for everything. Though they have a written constitution, it bears roughly the same relationship to reality as do Italian speed limit signs to Italian driving habits. Amnesty International does not think highly of Japanese police technique. Any comparison of the low rate of crime in Japan with the nearly complete absence of guns in the culture must consider that the "Japanese system of gun controls cannot be separated from its Japanese cultural context." (180) I would be astonished to find even one member of the American Bar Association or the American Civil Liberties Union who could live, without chafing to the point of madness, in the safe, conformist Japan whose gun prohibition measures they so often extol.
The effect of gun prohibition on homicide in nations that have instituted it after the widespread availability of firearms is, essentially, zero. In England and Wales, the murder rate in the late nineteenth and early twentieth century was incredibly low: about one in a million and a half. Your chances of being murdered in England were about the same as being struck by a meteorite. Gun prohibition was instituted after World War One and exerted no discernible effect. Though the homicide rate has crept up, it is just about what you'd expect from a more crowded country, greater ethnic diversity and increased economic stress. (181)
In fact, gun prohibition seems to have exerted little effect on murders. The human temperament loses its patience with its fellow at a rate that has little to do with the ready availability of firearms.
Though it may seem counter-intuitive, in the United States there is an inverse relationship between firearms ownership and the rate of violent crime. (182)
. . . Sociologists David Bordua and Alan Lizotte completed a still more intensive study of the 102 counties in Illinois. They obtained data on gun ownership in each county, augmented this with extensive statewide surveys on reasons for and nature of gun ownership, and considered economic and social data for each county. The results: (1) considered in isolation, gun ownership rates had an almost perfect negative correlation with violence rates; (2) when social variables-largely urbanization-were considered, there was no relationship between violence rates and gun ownership; (3) the segment of the population with the highest percentage of gun ownership from self-protection motives was not "rednecks" but single black women living in high-crime urban areas. (183)
Would the elimination of firearms altogether have an effect on homicide rates? Perhaps, but what evidence there is seems to be against it. (184) In Japan between 1607 and 1879 firearms were, for all practical purposes, altogether absent. (185) But, the homicide rate in Japan is so exceedingly low even now that we might more profitably attribute this to national temperament than to gun prohibition (though see above for other factors). We can conjecture that, since a good half of all homicides in the United States are perpetrated with firearms, their total elimination might reduce homicides by half. But that, of course, is not what gun prohibition does. I might support an even-handed elimination of all weapons beyond the potential of a kitchen knife, provided that the government didn't have them, either. But, since that's not going to happen, let's keep the balance of power somewhat equal.
If I were to analyze the data, I'm reasonably sure that this is what I'd find: allowing for the elusive quality of "national temperament," and factoring out the triad of population density, corrosive poverty and the natural tendency of people to hate those who are unlike themselves, I'm confident that I'd get an absolutely flat line of homicide per hundred thousand that would hold true regardless of time, place or availability of weaponry. The real enemies are prejudice, poverty and the press of the crowd.
Official Homicide Far Outweighs Private Homicide
One murder made a villain. Millions, a hero. - Beilby Porteus (1731-1808) (186)
ONE more point bears consideration here. If you were to take all the mass murderers, loonies with handguns and single acts of homicide committed by private citizens with a firearm, knife, blunt instrument or their bare hands, in the entire history of the world, from the time firearms were invented (around 1325) right up until yesterday afternoon and put them on one side, and on the other side put those citizens murdered by their own governments, within their own borders, in time of peace, you would probably agree with me if I were to say that by any reasonable measure, government above the local level should be forbidden to have guns or weapons of any kind, and the people positively compelled to possess them. That our own government has not followed the shining example of most others is due, in large part, to the fact that the citizens of the United States shoot back. Oh. Well, except for the Indians, of course. Do they count?
We are mad, not only individually, but nationally. We check manslaughter and isolated murders; but what of war and the much vaunted crime of slaughtering whole peoples? - Lucius Annaeus Seneca, (c. 4 BC - AD 65) Epistles (187)
Even more lethal than any amount of official "ethnic cleansing," or "final solution," is war between nations. For any government to complain that its citizens have an unsuitable propensity for mutual murder, I direct them to Matthew 7:2-3.
With what measure ye mete, it shall be measured to you again.
And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye?
I'll grant that homicide rates were a little hard to keep track of in Europe between 1914 and 1918, and then again from 1938 through 1945. But those were homicides that can be laid at the feet of various quarreling governments. The individual rate of homicide is, how shall we say, insignificant when contrasted to what a really well-organized official killing machine can accomplish.
When guns are outlawed, only the government will have guns.
We must remember that as long as guns exist, it is best that they not all be in the hands of the government. Let those who would prefer it otherwise cast an admiring eye on the massacre in Tiannanmen Square, the thirty million murdered by Stalin, the twelve million genocidally exterminated in concentration camps by Hitler. No thanks. I'd prefer to take my chances with Jesse James.
Perversion of Law
NOT long ago, the lawyers of large corporations came up with a clever trick to silence criticism of their advertising, products, and policies. If somebody wrote a letter to the editor complaining, say, that an oil company was dumping filth into the water supply in direct defiance of the law, they filed suit against him for defamation of character, libel, slander, and whatever else they could pack in. They knew that they would win if all it took was money and time. These suits were not designed to protect their lawful right to do business. These suits were calculated to stifle criticism, intimidate those who might feel that the corporations were not serving the people and to punish those who persisted. The corporations operated under the shadow of legality, but as thieves and murderers hide in the shadows to harm the honest citizen.
The civic government of Washington, D. C. has taken a leaf out of this book. Among other things, it enacted the concept of Absolute Liability (gotten from the English) against manufacturers, purveyors, owners and users of handguns for any and all acts that may arise from the use of a gun for which they are in any way responsible. (188) Sound familiar? It should. This perversion of the law to serve vicious ends is intolerable.
What are we to do? How can we, as good citizens, make valid decisions when pernicious nonsense is presented to us by our elected officials, by our newspapers and television reporters, as sober fact? Take nothing for granted, is what we can do. "Question authority," as the bumper sticker has it.
THE gun prohibition advocate makes a crashing logical error: non causa pro causa-the fallacy of False Cause-which is to mistake what is not the cause of a given effect for its real cause. The statements also contain a bit of the old Argumentum ad Ignorantum-the argument from ignorance-which maintains that a statement is true merely because it has not been proven to be false. In this it is presumed that the hearer neither knows nor is capable of discovering the provability of any part of the statement offered. Last, each statement contains an element of the Complex Question, in which the subject is tricked into accepting the validity of the entire statement despite the irrelevancy or falseness of at least a part of it. The vaudeville question, "Have you stopped beating your wife?" is one to which any answer is incriminating. The appropriate response is to "divide the question," and answer each part separately.
How do you know that carrots are good for your eyes?
You don't see rabbits wearing glasses do you?
How do you know that gun prohibition works?
The murder rate in England is the lowest in the world, isn't it?
I'll grant that homicide, crime, poverty, crowding and ethnic strife are difficult problems, but the "illusion of action" provided by legislative incursions on the right of Americans to keep and bear arms does not address them in any way. Gun prohibition is a cheap cosmetic used by lazy, foolish legislators to cover up the real political diseases that they are unable or unwilling to confront.
The Illusion of Action
THE refuge of the illusion of action is adopted when the real problem cannot be identified, or though identifiable, cannot be dealt with. The roots of crime in areas with high homicide rates are economic instability, racial, ethnic and religious conflict, and crowding. These are enormous, grave problems and so far everything we've done to try and make them better has, effectively, made them worse. We therefore seek some other solution, in this case, one that has nothing whatever to do with the problem. As the comparison among nations, states, and cities shows, the presence or absence of firearms has little, if indeed anything, to do with crime rates.
In our city of Berkeley, the illusion of action, combined with a Robespierrian emphasis on political correctness, has led us into several ludicrous and ineffective answers to real problems. I need cite only one on the local level: "Drug Free Zone" signs near schools and parks. These signs have no effect on the problem; they just make people feel good. It's something like realizing that you're overweight and going out and buying a diet book and leaving it at that. Nothing happens.
The disastrous experiment with Prohibition is another example of the illusion of action. Perceiving that alcoholism was a social scourge, we outlawed alcohol, creating in the process a much greater alcohol problem than we'd ever had before and bringing into existence an organized criminal underworld that plagues us to this day. (189)
An example of post hoc quod propter hoc reasoning, the enactment of Prohibition is rivaled only by the criminalization of recreational drugs. (190)
Observation: Alcohol consumption can lead to dangerous behavior. It can be addictive, and as a consequence destroy not only the lives of the drinker, but the lives of his family. The social ills created by alcoholism are large.
Perceived problem: Alcohol consumption is the cause of much anti-social behavior.
Solution: Make alcohol illegal.
Immediate result: Alcohol consumption does not cease, and a criminal network is created to serve what has become, ipso facto, illegal behavior. Public esteem for law and government suffers greatly. The murder rate begins a long-term rise.
Long-term result: Upon the repeal of Prohibition, the criminal network which it created does not disappear. Crime in America now flourishes on a large, organized scale; a shadow government that touches and corrupts every aspect of our Republic.
It would be well to remember this simple principle of government: laws don't do what you think they're going to do. Adam Smith (1723-1790), in The Wealth of Nations (1776), describes what effect taxation actually has on the body politic: taxes always have repercussions on society in addition to the garnering of revenue to the State. If the taxes are perceived as unjust or excessive, people simply find a way around them, usually creating in the process a criminal class which profits from the evasion. All laws are like this.
Insofar as laws reflect the will of the people they are obeyed. Insofar as they oppose the will of the people, they are flouted. America has more gun-prohibition laws than any other nation, and to less effect. If I were a lawmaker, I would look around and see which laws people are more-or-less uniformly disobeying (federal speed limits, federal drinking age, drug laws, pornography laws, &c.) and get rid of them. It is better that a nation have a few laws that most people agree upon and obey than many laws that most people break if they think they can get away with it. If you want anarchy, pass a bunch of laws that everyone will disobey.
The Fantasy of Law
Up until not very long ago . . intellectual excitement, the sense of fighting convention, lay with those who felt that central control for the improvement of society held the highest promise, that you could create a perfect society by forcing people to do what you think is good for them. Now, the excitement is in the search for alternatives to that tired, false and bloody experiment." - Erwin A. Glikes (191)
THE passage of laws that run counter to the popular will can be characterized as the "Fantasy of Law." That is, that laws actually make the desired things happen with no other effect, and that by passing a law, the behavior of people will change accordingly. As discussed above, this is not at all the case.
Another, and perhaps more significant, element of the Fantasy of Law is that, regardless of what is actually going on, those who advocate such laws believe that it is important for society as a whole to say that some things are wrong and some things are right.
This is what I would characterize as pernicious nonsense. Society should not promulgate idle moral judgments, and here's why: suppose you don't agree with one of those moral imperatives.
You might think that society should pass symbolic laws against drugs, even though some one-third of Americans routinely break them and the concomitant criminal structure is tearing the nation apart. (192) Stick to your guns (as it were) by all means. And with my blessing. But remember this when you bask in the warm glow of having done the right thing regardless: not everyone agrees on what is a significant moral issue. Think of the issues that divide the nation: abortion, women's rights, contraception, homosexuality, pornography, political dissent, odd religious views, drugs, alcohol, tobacco, firearms, race, to name only a few. Just think of all the subjects that are not allowed at the Thanksgiving dinner table, and imagine, if you will, that there are symbolic moral laws-real, enforceable, symbolic moral laws that you can go to jail for-that are the polar opposite of how you think things should be. Then, take a little trip out to the trash can and drop in the wonderful idea that society should, by laws and law enforcement, take a moral stance on things that are, in a very real and important sense, none of society's business.
The Necessity of Consensus
IT may be taken as an article of the deepest importance that consensus is vital to a society, and that without a consensus, everything breaks down.
In most political communities consensus covers much more than the bare minimum of agreement that the State should survive. . . . Consensus on solutions to specific problems is not essential the way it is on the answer to the question of whether the State should exist. The will of the majority is accepted because to do otherwise would sap the authority of the State, thereby producing a greater evil, one opposed by consensus. . . . The matter of consensus has an important bearing on Constitutionalism. Order may be imposed through force, violence, and an arbitrary action by a dictator or oligarch even if the extent and intensity of consensus in a community are low. But it is unlikely that only a modicum of cohesion will be able to sustain a government that seeks to impose its will primarily through law and constitutional rule. Every government uses force against those within it who oppose its will. The size and intensity of the opposition usually determine the amount of that force. At an indefinable point along the continuum from complete discord to unanimity, cohesion in the society becomes so broad and strong that force is needed by the regime only in exceptional circumstances rather than as a matter of course or of policy. This situation is a precondition for Constitutionalism. Consensus on the form of its institutions and procedures is especially important to constitutional government. If large numbers of citizens feel that the design of the machinery of government operates unjustly to their disadvantage, they may not accept its facilities for the resolution of social conflict, thereby undermining its authority. (193)
That about sums up what Prohibition and drug laws have done for our Republic, doesn't it.
The same might be said for the wisdom of trying to inflict strict gun prohibition legislation on the owners of one hundred sixty million firearms. In other words: Don't try it.
In the Left Corner, Wearing the Red Trunks, defending the First Amendment:
The American Civil Liberties Union!
In the Right Corner, Draped in the Flag, defending the Second Amendment:
The National Rifle Association!
Let's Hear it for These Two Great Contenders!
Let none presume to tell me that the pen is preferable to the sword. - Miguel de Cervantes (1547-1603) Don Quixote de la Mancha [1605-1615] book IV.
Hinc quam sic calamus saevior ense, patet. (The pen is worse than the sword.) - Robert Burton (1577-1640), The Anatomy of Melancholy [1621-1651]
Beneath the rule of men entirely great,
The pen is mightier than the sword. - Edward Bulwer-Lytton, Baron Lytton (1803-1873) Richelieu  act II, scene ii
LOOKS like we have a difference of opinion here. Though I might point out that the one who feels that the pen is mightier also qualifies the statement with the caveat that the rulers be entirely great. Not that that's a problem in the modern political arena or anything; don't get me wrong.
When I was a boy, it was a common amusement to tie two tomcats together by their tails and hang them over a clothesline. They then tended then to blame one other for their mutual plight, forgetting in the heat of the moment who was actually responsible. I see an obvious parallel in the antagonism between the proponents of the First and Second Amendments to the Bill of Rights.
The proponents of gun prohibition make almost the same arguments as the proponents of speech control, and they both play into the hands of the only real enemy either one of them has: the government. In government, and especially in government bureaucracy, lies the stifling of thought and the inhibition of action.
Why do the ACLU and the NRA hate each other's guts? Why does the ACLU hopscotch right over the Second Amendment, tagging up on all the rest? Is there any way to accept the tenets of the First Amendment and the Second in the same political breath without actually bursting at the seams?
These two bodies, the NRA and ACLU, with the courage of lions in their own bailiwick, cower in a muck sweat before the imaginary terrors of freedom in areas that they do not approve of, know little about, and fundamentally mistrust.
Why are these two groups of people, who it seems to me should be in sweet accord, at sword's points? Those who should by any reasonable measure find themselves on the same side of the Constitutional fence seem to spend a tremendous amount of their energies fighting each other, to the detriment of both their causes and the amusement of their enemies. How many Americans belong both to the ACLU and to the NRA? Not many, I'll wager. Why does only a small percentage seem to think that the entire Constitution is a good idea? (194)
The government created the problem in the first place by denying people the right to do things that they wanted to do, and which, in themselves, pose no genuine threat except to the government having control over people's lives.
My Mind is Made Up, Don't Confuse Me With Facts
WHEN I made a modest donation to the ACLU they sent a couple of recruiters around to get me to give them even more, which I thought was pretty poor form, but I was polite. Quite gratuitously, halfway through the pitch, the middle-aged lawyer guy mentioned his interest in gun control. He spoke of hearing and reading contrary opinions, and openly boasted that he wasn't interested in a contrary point of view, no matter what was said or how they said it. His openly expressed opinion, which he obviously felt that I would share as a supporter of the ACLU, of (some carefully selected aspects of the) First Amendment good; Second Amendment bad; seems to be all but universal among liberals. I told him that I thought the whole Bill of Rights was pretty much OK with me, and didn't really want to hear too much more from an enemy of the Constitution. He got confused and offended and they left without getting any more money out of me. They probably won't be back.
What has been forgotten by him and others is that the First Amendment emerged from precisely the same restrictive, pro-government morass into its present status.
Chabot Gun Club vs. the First Amendment
I was raised around guns, and I've had a gun of some kind all my life, though it's been more out of habit than anything else. But, I got interested in shooting again, and my wife and I spend the occasional Sunday afternoon at the range making doilies out of paper targets. I'm an acceptable shot, getting a decent pattern at any reasonable range. Even some right in the middle when my concentration is on. Range fees are not expensive, but a membership at the range would be cheaper than paying every time we go. Plus, ammunition is expensive, and a membership would bring the cost of ammunition down to about what the cops pay for it, which is still dear. Figure you shoot about a hundred rounds per gun in an afternoon, that's twenty or thirty bucks in ammo, easy. So, I applied for a membership. They gave me a couple of pieces of paper and we left. When I got home, I read them, and was astonished. These guys are back in the 'fifties, looking for Communists under the bed. In order to join the Chabot Gun Club, which is open to the public and, as near as I can determine on public land, you have to sign a pseudo-legal sounding loyalty oath swearing that
I am not a member of any organization which has as any part of its program the attempt to overthrow the government of the United States by force or violence
consent to an investigation of my background and character by the Club to determine my eligibility for membership and I waive any rights or privileges I may have against disclosure of information obtained for said purpose.
What, are these guys from Mars or something? Haven't they heard of the Bill of Rights? What about the First Amendment, which guarantees me the right to say, write or espouse anything I damned please. What about the Fifth, which protects me against self-incrimination?
We hear about constitutional rights, free speech and the free press. Every time I hear those words I say to myself, 'That man is a Red, that man is a Communist.' You never hear a real American talk in that manner.- Mayor Frank "I Am the Law" Hague, speech before the Jersey City Chamber of Commerce, January 12, 1938.
So, what's the deal here? It seems that people pick out the parts of the Constitution that they find appealing and reject the parts that they don't like, as though it were a chicken and you ate the light meat and didn't eat the dark. The Constitution, my friends, is not a chicken dinner. You gotta eat it all.
If you were to take a poll of randomly selected members of the ACLU you'd probably find that almost all of them were in favor of gun prohibition, though if more closely questioned they might not be too clear on what gun prohibition was or what they meant by it. They'd probably lump gun prohibition together with equally vague opinions about the causes of urban crime and redneck prejudice and Joe Sixpac and wife-beating and the World Wrestling Federation. They'd probably characterize themselves as "liberals," and take a certain pride that President Bush attacked them as "card-carrying members of the ACLU," echoing McCarthyist Red-baiting. The term "cultural elitist" would likely be taken more of a badge of honor than an epithet. (195)
Many of my friends and acquaintances fall into this camp. They have never handled a gun in their lives and think that guns are in some ill-defined way slightly obscene. (196) I don't understand this. I don't understand why First Amendment types fail to realize that talk is just talk unless you can back it up with force. It seems to me that the Second Amendment is the muscle behind the rest of the Bill of Rights.
If, on the other hand, you were to take a poll of randomly selected members of the National Rifle Association, I'll bet that most of them would be opposed to allowing Communists to speak publicly. Most of them would agree that America is, and should be a Christian nation. Most of them would probably be in favor of making Communism illegal. Most of them would probably agree that someone like Malcolm X was a menace to society and should be prevented from stirring people up. We don't even need to go into such vexed issues as abortion, flag burning, photos of unusual sexual acts or the lyrics to "Cop Killer." We know, to a high degree of certainty, what the response would be. These are people who have a great commitment to the Second Amendment-as deep, indeed, as anyone has ever demonstrated for the First. These guys are our friends, but we treat them as enemies. We are their friends, though they treat us as enemies.
Many gun owners are enemies of the First Amendment, and I don't get it. Why are they so vehement in their defense of the means to obtain a freedom when they think those very freedoms are bad? Don't they understand that the whole point of having a gun is to protect you from the government? I realize that many of them demonstrate an exaggerated fear of people of different ethnicities, but in places like Oregon and Montana-where NRA membership is just about as common as ACLU membership is here in the Bay Area-there isn't that much of a minority population to be afraid of. A lot of these folks have never seen a black face in their lives, except on television.
The opinion of most ACLU types is that guns are bad because people kill other people with them, and that the world would be a better place if private citizens had little or no access to weapons.
The ACLU agrees with the Supreme Court's longstanding interpretation of the Second Amendment as set forth in the 1939 case, U.S. v Miller: that the right to bear arms applies only to the preservation of a "well-regulated militia." Except for police and military purposes, we believe that the possession of weapons by individuals is not constitutionally protected.
So, what was the liberty interest that the framers were trying to protect when they adopted the Second Amendment? It was not the interest in arming citizens against one another. Rather, it was the interest in preventing the government from enjoying a monopoly of weapons sufficient to destroy the liberty of the citizenry. The desire of some people to defend themselves against criminals rather than cede that responsibility to a public police force is not a civil liberty against the state. (197)
In its insistence on disarming private citizens, the ACLU demonstrates a childlike faith in the beneficence of government that I, for one, do not share. Nor should they, as their entire raison d'être is fighting that self-same government, which in every other civil rights matter they don't trust any further than they can throw it.
The ACLU breaks its butt defending groups with whose goals they do not agree. They go out of their way to make sure that everyone understands that the First Amendment is not just for people you agree with, or people you think are nice, or sentiments that are sweet to the ear. It's for the KKK and the American Nazi Party as well as for the Free Speech Movement and the NAACP. It's to defend some jerk's right to burn the American flag, and to defend to the hilt the almost wholly incomprehensible lyrics to a rap song metaphorically attacking the representatives of what the singer believes to be a repressive government. It's not motherhood and apple pie. It's fire and blood. That's the price you pay for freedom of speech. The government stays off your back or you fight it. The best way of keeping the government at arm's length is by making sure that the citizenry is strong. In any discussion of freedom, we balance the risks against the gains. Do the risks of an armed populace outweigh the risks of an unarmed populace? Remember, weapons are not going to disappear just because you and I don't have them.
Chosen as representative types, each concerned person-the ACLU member and the NRA member-strives to broaden the rights of citizens in one area, while seeking simultaneously to circumscribe them in another, on the specious ground that citizens can and should be trusted in one area, but cannot and should not be trusted in another.
It boils down to a lack of trust. A lack of trust in themselves, in each other, and in the American people. Neither party actually believes in democracy, but rather in some highly modified form of oligarchy, with themselves at the helm; suppressing, for the protection of the body politic, those opinions and acts which it deems-without any particular reason-to be too dangerous for the common man to handle. The NRA is afraid of words, and the ACLU is afraid of deeds.
THE ACLU is an organization of intellectual snobs. Words, only smart guys can use. Guns-you don't have to be so smart, and when guys who aren't smart have power, that's bad.
The coincidence of ACLU hostility to the Second Amendment with its otherwise vigorous civil-rights campaigns of the 1950s and 1960s is unpleasantly familiar: the first thing that a political organization does when it gains a modicum of power is to disarm its enemies. Employing the most tortured logic, both the ACLU and ABA condoned repressive, restrictive interpretations of the Second Amendment at the precise moment when the enemies of the balance of the Bill of Rights seemed to make an appeal to force majeure to continue-particularly in the South-discriminatory practices and outright defiance of Federal authority.
It would not be too much, indeed, to advance the argument that the concept of gun prohibition is a nearly conscious continuation of the most insulting element of the Reconstruction-to disarm a conquered people-and that it is calculated to punish, humiliate and weaken an element of American society that the ACLU believes is hostile to its own political ends.
If a trend in the opposite direction emerges, it will be because the liberals who make up the ACLU will have reconciled themselves to the concept that their enemies are not other citizens, but the government itself.
In the later 1960s and early 1970s, the "availability of firearms for protection against private, retaliatory violence was a key to the Civil Rights Movement's survival in the southern United States of the 1950s and 1960s." (198) This matter became a liberal shibboleth, dividing youthful radicals from old-line liberals. Participants in the Civil Rights Movement soon discovered that the police and FBI could not, or would not assist us in the lawful exercise of Constitutionally guaranteed rights, and where they were not useless bystanders, they were our enemies.
Non-violence is all very well and good, but it is my conviction that the widely publicized presence of armed citizens significantly reduced violence everywhere that they demanded their Constitutional rights. Where we waited for the government to help us, we were beaten, jailed and murdered. (199) Where we helped ourselves, there was little or no direct violence, and what there was didn't last for long.
Pro and Con
AS I worked on this essay, many of my friends and acquaintances offered their opinions and advice. Some of them were much opposed to the presence of firearms in our society, while others were either neutral or positive. Within limits, the watershed seemed simple: people who were afraid of guns and thought that they were an evil presence in society had no experience of firearms except through the medium of film, television and literature. They had little or no actual exposure to guns, and often had neither fired nor touched one in their lives.
Those who, without regard to any other political or social variable, had either a neutral or positive reaction to guns and to a discussion of their role in society, had generally speaking been exposed in childhood or early adolescence to firearms by a grandparent, parent, uncle, aunt, family friend or some other responsible adult. Those to whom firearms are not a frightening mystery, and who have actually used them for sport or as an ordinary part of their upbringing, have a deep understanding that they are just tools-albeit tools that merit considerable respect and care-not essentially different from any other tool or device. Those who fear them the most are also the least familiar with them, and approach them as one would approach a venomous reptile, as though the gun might, of its own volition, leap out at them and strike, or that it's evil influence might transform the holder or possessor into a ravening enemy of society.
Furthermore, those whose attitudes toward firearms are either positive or neutral are more likely to have been born, or have spent significant periods of time in, rural areas; while those who have negative attitudes are more likely to have come from cities. The shift in American attitudes toward firearms from positive or neutral to negative, mirrors the shift in demographics, as Americans have moved from farms to factories, and from sparsely to densely populated areas in which hunting, fishing and sport shooting are less a daily part of life than an element of an exotic vacation. (200)
Just as our Founding Fathers were accustomed to firearms as an ordinary, essential part of the panoply of a free man, so are those unaccustomed to arms likely to dismiss an armed citizenry as a hurtful anachronism. The less citizens are armed, the less they want to be armed. Thus we see that an unarmed populace, through its own free will, is self-perpetuating.
Therefore, it best serves those whose goal is the disarming of the American people to do what they can to militate against not only the pernicious employment of arms, but to inhibit their harmless or even beneficial use as well. Once disarmed, people stay disarmed.
I Can't "Bear" Arms!: The Origins of Liberal Anti-gun Sentiment
THE only significant debate to come up during the framing of the Second Amendment was in response to a suggestion made by James Madison that the Amendment provide that "no person religiously scrupulous shall be compelled to bear arms."
"Elbridge Gerry assailed this provision, expressing the peculiar fear that it would give 'an opportunity to the people in power to . . . declare who are those religiously scrupulous and prevent them from bearing arms.' Gerry apparently feared that a particular faction in control of the federal government could mendaciously classify its opponents as conscientious objectors 'and prevent them from bearing arms' in the militia. Moreover, the government might exclude so vast a portion of the populace from service as to turn the militia into a 'select militia' of their own faction . . ." (201)
Even though shouted down, Madison had by this proposed emendation acknowledged a significant element in American political philosophy. Protestant dissenters provided the bulk of American religious thinkers, of whom a significant portion refused to commit acts of violence for any reason, particularly objecting to organized warfare. The Society of Friends-the Quakers-founded in 1650 by the Englishman George Fox, rejected ritual, formal sacraments, a formal creed, a priesthood and violence. Central to their creed was the principle of absolute non-resistance and a refusal to respond to force with force. They were sharp, enthusiastic traders and merchants, and formed a wealthy, powerful segment of the population. Some few of them armed their ships with "Quaker guns," which were cannon made of wood or painted on to give the illusion of armament, but even this was generally frowned upon by the more orthodox.
Civil disobedience, non-violence and religious dissent were an acknowledge aspect of early American intellectual experience, and were accorded a corresponding degree of respect.
The American essayist, naturalist and writer Henry David Thoreau (1817-1862) perhaps embodies the perfect expression of the dissenting social conscience. He was jailed for refusing to pay the poll tax, a gesture of civil disobedience which was calculated to express his disapproval of the Mexican War. He spoke out against the Fugitive Slave Law, eloquently defending the abolitionist John Brown after his capture in 1859.
Pacifism, or the moral opposition to warfare and violence as a means of resolving conflict, took formal shape in the 19th century with the formation of the New York and Massachusetts Peace Societies. The first international peace conference was held in 1843 in London. "In the twenty years following World War i pacifism grew to be a comparatively influential international movement, especially among the youth, and was supported by numerous religious and political organizations. The movement came to a head in the mid-1930s with the annual antiwar 'strikes' held at number of American universities. At Oxford University students initiated the Oxford Oath, vowing not to fight in any war waged by their national governments. At the same time, the U.S. Congress enacted legislation to ensure American neutrality in time of war.
"By the beginning of World War II, the influence of the pacifist movement had diminished, although legislation was secured in England and the U.S. permitting pacifists to become 'conscientious objectors' (as defined by their religious beliefs), exempt from active military service. ... Subsequent court interpretations of the law expanded the definition of 'religious belief' to encompass a strong private moral or ethical conviction against all war." (202)
The two most prominent advocates of pacifism in this century were Mahatma Gandhi and Martin Luther King, Jr.
Mahatma Gandhi (1869-1948) advocated a "set of socio-economic theories which, if practiced to the full, would re-create the world of the past, inhabited largely by self-sufficient village communities." He was a strict vegetarian and practitioner of Thoreau's concept of civil disobedience, from which he "forged the tool of satyagraha, which combined passive resistance against and non-cooperation with the authorities."
The strength of Gandhi's non-violent protests lay in the fundamental acceptance of its validity by the British. Had India been under German rule, or French, it is much less likely that the technique would have found success, as these societies had no tradition of moral witness that could be compared with that of Britain and America.
The early civil-rights movement, as exemplified by Martin Luther King, Jr., embraced Gandhi's principles. "The collective courting of jail by a group of people, often with a petty-bourgeois urban background, banished the fear among the populace of being imprisoned for a just cause." (203)
Gandhi's influence, both direct and indirect, on the Bohemian, beat, intellectual, liberal and progressive elements of American society was longstanding and profound. When this part of society validated the underlying principles of non-violence, it silently abandoned the Second Amendment.
Gandhian non-violence and the American civil-rights movement embraced the principles of passive resistance. The high moral ground was gained by compelling the other side to use force. If violence was met with violence, neither side gained any moral advantage. One side might win, but neither had any claim to rightness or virtue. If, on the other hand, one side demanded its rights but declined the gambit of violence, its opponent was pushed into irrational rage and unseemly action, declaring to the world that its position was without moral force.
A lingering suspicion that might did not make right found expression in the pacifist notion that might and right were mutually exclusive.
The American Negro recognized that his claim to equal treatment under the law could not be won by force. The only thing that lay in that direction was racial extermination. If they were to succeed at all, it had to be by moral suasion, a big-time "shame on you," which could not be viewed as a physical threat.
In Montgomery, Alabama on December 1, 1955, Rosa Parks refused to give her bus seat to a White man. She was arrested, fined and jailed. Beginning on December 5, 1955 a boycott of the Montgomery bus system began under the leadership of the Reverend Dr. Martin Luther King, Jr. Facing financial ruin, the city bus system capitulated. Moving a lot faster than its usual stately pace, on April 24, 1956 the Supreme Court upheld a lower court ban on intrastate bus segregation. Negroes no longer were required to sit in the back of the bus. Non-violent resistance actually worked where a violent claim for rights would have failed. The principles of non-violence carried the civil rights movement for another ten years, in the process deeply imbedding themselves in the liberal psyche.
There is another significant aspect of Negro non-violence and passive resistance, vis-a-vis the White liberal. The passive Negro is not a threat. The success of the early civil rights movement stems from two things: first, the American intelligentsia had already accepted the rightness of the Negro cause, and was ready to side with it if an appropriate moment presented itself. A significant segment of well-educated, liberal Americans derived basic political philosophies from the Progressive Movements of the twenties and thirties. This was the same segment that embraced the essential concept of pacifism and non-violence, especially if there was a chance that violence might be directed at itself. By accepting the guilt of American oppression of the Black man, Americans also accepted the terrifying chance that the Black man might rise up against him, as he was in fact doing elsewhere. Transmitting a thrill of terror throughout the White world, on March 26, 1953, the Mau-Mau, or "Hidden Ones," of Kenya's Kikuyu tribe, formed to force the small number of land-controlling Britons from Kenya and to regain ancestral lands from the government. The rebellion climaxed in sporadic violence and the murder of 71 and wounding of 100 fellow Kikuyus who remained loyal to the colonial government. On April 8, 1953, Jomo Kenyatta, tribal leader of the Kikuyu, was found guilty of organizing the Mau-Mau rebellion. On December 12, 1964, Kenya became an independent state, with Jomo Kenyatta as Prime Minister and President.
Thus, it came as a considerable relief to White America when the guy with a legitimate gripe turned the other cheek. The relief, conscious or unconscious, that we were not going to face an American Mau-Mau rebellion made the White liberal all the more anxious to make amends and thereby forestall what was clearly a genuine possibility. Anyone with an ear to the ground could sense danger.
Indeed, as the civil rights movement proceeded, pacifism and non-violence were rejected and a more militant philosophy prevailed. Younger civil-rights workers became impatient with the go-slow approach and all that went with it, and in the summer of 1966 Stokely Carmichael and John Hulett of SNCC created the Black Panther party in Lowndes County, Alabama. Having had enough of passive resistance, their stated goal is Black Power. Right after this, SNCC threw out all the white people. In the same spirit, on July 5, 1967, the Congress of Racial Equality dropped the word "multiracial" from descriptions of its membership. This was the exact moment when the White liberals, young and old alike, discovered pressing issues elsewhere and left the civil rights movement to its own resources. Despite the passage of the 1968 Civil Rights Act, without the participation of White activists, the civil rights movement was shunted aside and steadily lost ground.
As the White liberal emphasis shifted to the Anti-War Movement, it essentially embraced all the overt aspects of pacifism. Bartleby the Scrivner's "I prefer not to," actually seemed to work where nothing else did. It worked for the Negro, and it worked for the Anti-War protester. When the civil rights movement turned to force of arms it fell apart. When the Students for a Democratic Society turned away from non-violence and the appeal to law, they disintegrated into the tiny, ultra-crazy Weather Underground and blew themselves up. The lesson learned was, the appeal to force did not work! The lesson of the twentieth century was that violence was not a viable option. This is the spirit that the ordinary, educated liberal brings to the Second Amendment.
The assassination of Mahatma Gandhi in 1948 underscored his lifelong rebuke to violence as a valid means of social change. Youthful America rejoiced in the presidency of John Fitzgerald Kennedy and the peaceful reform within the context of law that it represented. When Kennedy was assassinated in 1963, the nation fell into a paroxysm of despair, much of which centered on the means of his assassination. Overwhelmed with revulsion, citizens turned their firearms in to local police stations, and plans were made for a memorial sculpture made entirely of melted-down guns. The climax of loathing came when Martin Luther King, Jr., the outspoken advocate of Gandhian non-violence, was assassinated in 1968. Scarcely two months later Bobby Kennedy's televised assassination confirmed intellectual Americans in their dull anger against guns and political violence.
The nineteenth and twentieth century British intelligentsia provides a further antecedent to American anti-gun sentiment. Pacifism, ethical vegetarianism, (204) anti-vivisectionism, (205) and the Society for the Prevention of Cruelty to Animals spring from the deep well of English political and intellectual movements.
The ancient Platonic concept of despising the body; of viewing the corporeal as a delusion which prevents realization of the spiritual, finds complete expression in Shavian philosophy. The Fabian socialism of George Bernard Shaw provides an index of the British idealism that exerts so profound an influence on American thinking. (206)
"Like a conjurer with too many objects revolving in the air, he had to dispense with something and, in Back to Methuselah (1924), it was the body that he eliminated. In later years Shaw lusted after a non-physical consummation-'all life and no matter'-between earth and heaven. That man would have to change out of all recognition or be superseded by another species did not cause him to despair, for he had increasingly turned his attention away from the individual and the body as a vehicle of emotion." (207)
Another significant British influence on American intellectual pacifism was the mathematician Bertrand Russell whose "pamphleteering on behalf of pacifism and against conscription during 1914-1918 earned him at first a fine, then loss of his Cambridge lectureship, refusal of a passport, and finally six months in prison. . . . During the last fifteen years of his life, he tried to impress upon the world the threat to human survival posed by nuclear arms. He helped to found the Campaign for Nuclear Disarmament (208) in 1958 and was sent to prison for the second time in 1961 for civil disobedience activity with the Committee of 100." (209) Russell argued for unilateral British disarmament as a first step toward world peace and an example to the rest of the civilized world.
The central argument of the CND was simple: nuclear war will doom us all, regardless of religion, politics or government. Nothing can be as bad as racial extinction, not even tyranny. Therefore, since "while there's life there's hope," let is make the first, and only order of business the preservation of the human race from self-destruction.
American intellectuals combined the poorly understood concept of British gun prohibition with the principles of pacifism, civil disobedience, passive resistance and a somewhat muddled "back to the land" concept, creating for themselves a short-lived never-never land of "peace, love and good vibes," incorporating fragments of ethical vegetarianism and Eastern mysticism. It didn't last long, and what it left behind wasn't terribly pleasant, but the theory was so nice that it engraved itself in the liberal mind, bearing fruit as the current fear and loathing of firearms and the implications of violence that they represent. In the process, the ACLU and American Bar Association (ABA) mixed the principles of Gandhian pacifism up with the Bill of Rights and got out of the Second Amendment business.
Law and polity are the creatures of rhetoric. As pacifism, non-violence and existentialism-which contains a deep element of acceptance of things as they are, and the futility of struggle-gained acceptance among the intelligentsia, the rationale justifying violent struggle faded.
Weary of war, Americans embraced philosophies that promised world order, the universal cure-all. Esperanto-the world language-didn't get terribly far, but the United Nations, founded in San Francisco in 1945-before World War Two was quite over-was the basis for a One-World police force that could banish war forever.
Liberal America laid down the gun, believing that it served no useful purpose. The appeal to law apparently succeeded, especially if backed up by moral force and passive resistance. Two full generations of American lawyers, educators and intellectuals have grown up with the conviction that violence breeds violence, and the appeal to law is the only way to change America for the good. In the process the baby got thrown out with the bathwater.
NOTES ON LIBERAL ANTI-GUN SENTIMENT
The Jews believed in an earthly Messiah, who would lead them to a temporal sovereignty and land of their own. Their refusal to accept the temporal authority of the Romans, together with the continual rising up of one evanescent messiah after another, got them as a class into a great many difficulties, one of which is recounted by Josephus. In 70 AD, the Romans actually tried to wipe the Jews out, and may even have believed that they succeded. Jesus, at first just another in a long line of messiahs, made a significant departure from the usual pattern and laid the foundation for a successful religion, when he denied that he was an earthly messiah, and insisted on two important departures from the suicidal pattern: first, when the pharisees tried to trick him into uttering a seditious comment, he replied, "Render to Caesar the thing that are Ceasar's, and to God the things that are God's" (Mark 12:17). By this means he not only got himself and his followers out of the usual hot water, but openly declared that he was not in opposition to the temporal authority. Second, when Jesus made the politically brilliant statement, "My kingdom is not of this world," (John 18:36) he denied that he was planning on setting up anything like an earthly kingdom, thereby moving the entire operation out of conflict with the Romans. A first, really.
The idea, again expressed by Jesus, that if offended the true Christian should turn the other cheek (Luke 7:29), was certainly alien to "eye for an eye," (Exodus 21:24)principles of Judaism. Passive acceptance of the cruelties of this world in the full knowledge and belief that true and eternal joy awaited in the next is a foundation stone of Christianity, the dominant Western belief system. Though honored more in the breach than the observance, it provides a consistent background tone to all Western conflict resolution.
Pacifism and non-violence are essentially British, and this influence is clear in Canada. Violent resolution to conflict is more American.
The Quaker objection to all violent resolution of conflict, as well as a rejection of the temporal authority in a refusal to recognize the absolute sovereignty of the State. Will not take of their hats. Will not serve in the militia or army.
Thoreau's refusal to support, via impersonal taxation, a governmental course of action contrary to his conscience created the American concept of civil disobedience. An elevated form of passive-aggressive behavior, which is what a weak party does to get back at a strong party. If a woman is angry with her husband, she rightly recognizes that physical resistance would be futile and counter-productive, so she serves him cold coffee.
English: ethical vegetarianism, anti-vinvisectionism, anti-fox hunting. G. B. Shaw & Bertrand Russell = anti-war, CND, Ban-the-Bomb.
English rule influences the colonies, and Ghandi is a product as much of his native religion as of the British colonial authority, which by the 20th century had accepted the idea that moral superiority lay with pacifism and non-violence. The successful application of pacifism depends on its cultural acceptance by the ruling class. By the 20th century, the British intelligentsia, and by influence, the American, had accepted that the moral high ground lay with non-violence and pacifism. You would not have done well with pacifism if you were to have tried it on the Romans. They would have laughed at their easy victory and slaughtered you, root and branch, on the spot.
1920s reaction against the carnage of WWI and the embrace of a vague Eastern mysticism.
Ghandian behavior takes the high moral ground, or accepts the high moral ground offered by the British colonial authority, putting any violent reaction on an inferior moral position. It also forces an immoral reaction. Such behavior works where direct, violent confrontation would fail.
In his adoption of Ghandian passive resistance to serve the ends of the civil-rights movement, Marten Luther King rightly recognized that violent action would spell immediate and catastrophic reaction. Non-violence was the only option. Rosa Parks passive-aggressive refusal to sit in a back seat was also an acceptance that anything else would have been suicide. The only way to get the vital Northern and big-city liberal support. Heirs of the old Left, conscientious objectors, Ban-the-Bomb, Last-Good-War crowd was to force, by passive resistance, the adherents of the status quo to indulge in seemingly irrational violent behavior. The images of teenagers blown aside by firehoses, children attacked by trained dogs, burning busses and ministers suffering indignity in silence and passivity at segregated lunch counters moved the liberal sentiment as nothing else could have.
1960 HUAC; Civil Rights; FSM; early anti-Vietnam war (CND is British) Peace sign is semaphore
As frustration grew, non-violent elements dropped out (hippies), and violent elements prevailed (Weathermen)
both violence and non-violence are legitimate tools. Used appropriately, they're both fine.
Even as the American intelligentsia embraced the underlying principles of non-violence, vegetarianism, SPCA, anti-war, it in the same breath condoned righteous anger (Spanish civil war, Russian and Chinese revolutions, WWII).
Right now, the intelligentsia is self-destructing after the manner of its kind, following the lead of the Terror and the Cultural Revolution.
"Be in accord with local customs while still influencing the people." - Seven Military Classics of Ancient China: T'ai Kung, Six Secret Teachings
In order to influence those who might be persuaded of the value of the Second Amendment's underlying principles, do not be confrontive or argumentative. Accept that they are the products of their educations and cultures, and work with, rather than against these qualities.
What's Wrong with this Picture?
THE error lies in believing that the government is no more than the sum of its parts. If the government is made up of good men-men who eschew violence and accept the rule of law-then the appeal to force becomes an anachronism. The government, however, is more than the sum of its parts, good or bad as they may be. The government is an organism that serves its own ends, over and above those of its components. The government of any nation, state or municipality is a great, dumb, blind beast. It feeds, it digests, it excretes. But above all things, it grows. It grows by absorbing people, money and power. Unchecked, it will grow until there is nothing else.
That non-violence worked within the context of moral suasion depends absolutely upon that context being one in which all parties agreed on the principles of the morality being discussed. If there is a basic disagreement, as is likely, upon the essential morality of the subject at hand, then the stronger party will prevail. The only way, in fact, of making sure that there is a common moral ground is if the balance of physical power is maintained. That simple matter out of the way, the contending parties can sit down at the table and hammer out the matter of morality. Lacking the ultimate appeal to force, however, there will be no sitting down at tables, and there will be no discussion of morality.
The civil rights movement succeeded in its non-violence and passive resistance because it could enlist the support of a friendly intelligentsia which, in turn, could compel the civil authority to submit to the rule of law. The means by which this submission was obtained was at actual gun point. United States troops came in to escort one little girl to school. State Troopers armed with shotguns and rifles lined the streets so that marchers could exercise their First Amendment rights.
Without this force nothing would have happened. The liberal somehow performs the mental gymnastics that let him believe that because he did not hold the gun, no gun was being held. But this is not true. Had no gun been held, in this case to the head of people like Ross Barnett, I very much doubt that the civil rights of Black Americans in the South would have been recognized. The Fourteenth and Fifteenth Amendments, after all, had been on the books for quite some time and had received little beyond lip-service. (210)
Cut it any way you want. Contending parties-and the government and the governed are always contending parties-must come to the table on equal terms.
As concerns the most persuasive argument for non-violence and the anti-war movement, namely that ethical pacifism and total disarmament is the only way to ensure the survival of the human race, a valid counter-argument is one in favor of democracy a form of government that actually has been demonstrated to prevent war and the things that lead to war. Therefore, rather than throw down our arms and accept whatever may come as the price of mere survival, we can legitimately embrace a course of action which preserves democratic forms of government. The center of democracy is a free press and free elections. The bulwark of these is the ability of the people to compel their government by force of arms to respect these rights. That is how they were won in the first place, and that is how they will be preserved in the future, if they are to be preserved at all.
The Repudiation of Individual Accountability
AN additional source of liberal anti-gun sentiment is to be found in the trend away from individual responsibility for action, and the transfer of this accountability to the State. An individual can be absolved of guilt for a crime which he does not contest having committed on the grounds that he was swept up in a mob mentality; that she was abused as a child; that she had a child-like intellect and was overwhelmed by an irresistible urge; that the defendant's premeditated murderous action, though without immediate threat of harm, was the result of years of abuse and the fear of future abuse; that the defendant was temporarily insane, acting in a diminished capacity, filled with a great and nearly laudable cultural rage, or was the victim of social and cultural conditioning which rendered it impossible to separate his acts from those of society as a whole. (211)
Even though the actual perpetrator of an act is not responsible, in all cases somebody is responsible for everything. The "somebody" is the State itself. This is illustrated by the 1993 trial of two men who, during the riots attendant upon the trial of police officers who had been videotaped while beating a Los Angeles man, Rodney King, had themselves mercilessly beaten and robbed an innocent truck driver, Reginald Denny. Though the men beating Denny had also been videotaped, had no color of law to justify their actions, and obviously acted with malice and felonious intent, they were found substantially not guilty of the crime of which they had been accused. The verdict was that they had been swept up in the excitement and mob mentality of the rioting, and were therefore not responsible for their actions. In early 1994, a judge ruled that Reginald Denny, the victim, had a right to sue the City of Los Angeles Police Department for failing to protect him from the rioting mob. This is an unusually clear illustration of the shifting of responsibility from the shoulders of the citizen to the shoulders of the State.
This eradication of individual responsibility and the assumption of this accountability by society as a whole creates a relationship between the citizen and the State in which the citizen is not only not held accountable for his own actions, he is not allowed to accept responsibility for his own actions. It is the completion of the "Communitarian" philosophy in which the State is powerful and the individual is weak, where all social power is placed into a kitty in the middle and then doled out again equally.
A significant part of this eradication of the power of the individual citizen is the necessary abolition of much, if not all, of the Bill of Rights. The First Amendment is a minority rights tool: it protects unpopular points of view from the tyranny of the majority. The Second Amendment is an individual rights tool: it protects the citizen from the State, and provides him with the personal power to resist wrongdoers. If a people cannot be held accountable for their private acts, and this responsibility is shifted to the State itself, then they cannot retain the ability to defend themselves or threaten the majority opinion.
To surrender responsibility is to surrender power. A people incapable of minority political thought, word or action, a people incapable of self-defense, is also a people incapable of self-rule. If we accept the role of the State as all-accountable, we also must accept the role of the State as all-protecting. Therefore, the possession and certainly the use of weapons by private citizens is a usurpation of the powers of the State, and as such is nearly treasonous. The Communitarian elite, which conceives of itself as having the ability to decide what is best for the society as a whole, desires to remove as much individual responsibility as possible from the citizen, replacing it with collective responsibility. Health care, education, defense against aggression, morality, speech, and thought become matters of concern for the State alone.
Nature Abhors a Vacuum
THE abdication of American highbrows left the field open to self-caricaturing knuckle-heads. When the Second Amendment lost its articulate defenders, the grunt and squeal crowd moved into the vacuum. Sincere in their beliefs, but entirely inarticulate, advocates of gun ownership further damaged the idea of gun rights among the well educated, liberal and middle-class. Not only by simple minded bumper sticker arguments, but by a mulish refusal to accept reasonable restrictions on just what a private citizen should posses in the way of firepower. "Good causes command poor advocates," as the saying has it, and for the last fifty years, these guys are have been about as poor as you can get. Their idea of a convincing argument runs the gamut of "When Guns Are Outlawed, Only Outlaws Will Have Guns," and "Guns Don't Kill People. People Kill People," all the way to "They'll Take Away My Gun When They Pry It Out Of My Cold, Dead Hand."
The climax of unwitting alienation of the liberal came when a popular gun magazine featured a cover article titled "Happiness is a Warm Gun," taking off from the popular "Peanuts" comic strip in which the phrase "Happiness is a Warm Puppy," had originated and become something of a byword among the sub-teen set. The Beatles, English pop singers then at the zenith of their near-domination of the airwaves, recorded a satiric song titled "Happiness is a Warm Gun," doing thereby no end of damage to the moral and intellectual credibility of American gun owners, and reinforcing the notion that the English were vastly more civilized than their cave-man cousins. (212)
Jesus H. Christ. No wonder the Second Amendment is in trouble. With friends like these, as the saying goes, who needs enemies. One of the things that most terrifies and enrages the gun owner is that he is convinced-and with good reason-that granting even the slightest concession to his liberal enemy will result in nothing but further restrictions, bans and confiscations, ending inevitably in the total disarming of the American people. This fear is fueled by such fanatical, intransigent organizations as Handgun Control, Inc., which routinely distort and manufacture facts, passing lies and nonsense on to others who share their basic conviction that guns are, per se, bad and that gun owners are, per se, even worse. Powerful liberal newspapers, such as the openly anti-gun New York Times, the Boston Globe, and the San Francisco Chronicle, regularly publish extraordinarily sappy, maudlin-and grossly distorted, not to say out-and-out mendacious-tear-jerkers about the appalling dangers of guns in our midst. (213)
For the last fifty years the more sophisticated arguments on the matter of gun ownership have been made by the less sophisticated group of people. The liberal attitude towards firearms seems simultaneously to reject the idea-in terms of freedom of expression-of a pervasive, all-powerful government, and, as concerns the actually physical ability to resist an unjust government, to embrace the most dangerous things that a government can do. This position utterly ignores the history of the twentieth century which, awash in blood shed by government, has claimed more lives in war, oppression and slavery than can be counted. As concerns speech, the liberal position seems to echo the children's chant, "Sticks and stones will break my bones, but names will never hurt me." Forgetting that having a good stout stick might go a long way towards avoiding those broken bones.
The gun owner's attitude towards government is equally ambivalent. It seems simultaneously to reject the idea-in terms of self-defense-of big government and, in terms of stifling free political expression, simultaneously to embrace the most dangerous things that a government can do. These people seems to advocate that a narrow construction be put on freedom of speech.
Political speech has throughout history had an uphill battle with the state, as it potentially constitutes a threat to the welfare and stability of the state itself. Other forms of speech and expression, such as those that exceed the bounds set by polite society or which give offense to the sensibilities of private citizens, also threaten the political organism. These forms have in this century and the last been equally, if not upon occasion more severely, constrained. England and America, though by no means theocracies, are much governed by narrow Biblical references.
In George Orwell's distopian book 1984, political and emotional thought in England was limited by the destruction of language. When his protagonist tried to recapture love and language he was crushed by physical force. The truth is that both words and weapons threaten the State, and the State has a manifest interest in stifling each. Instead of looking at one another with doubt and suspicion, the ACLU and NRA should combine their forces and make common cause against their only real enemy: the government. The whole point of the Bill of Rights is to set out what the government can't do to you and can't stop you from doing. The Second Amendment backs this up with force. But, there's no point in the force if there's nothing to defend, and there's no point in talking if you can't back it up.
Rights are Born of Continual Struggle and Sacrifice
IF you were to read the actual blackletter of the First Amendment, you would find, as regards "freedom of religion," that it guarantees no such thing. What it guarantees is that Congress shall not establish a State religion which all taxpayers, regardless of religious feeling, must support. There was such a State Religion in the England that our forefathers were in rebellion against, and compulsion to pay for the Church of England when you were a Quaker or worse yet, a Catholic, was indeed a particularly sore point. Congress is furthermore constrained from "prohibiting the free exercise thereof," but even at the time the several states were clearly not prohibited from doing so.
The widely expressed idea of "separation of Church and State," is not that easily extracted from the First Amendment. Probably more important is the sentiment, "the power to tax is the power to destroy," which created the idea of non-profit corporation status to be conferred on any church property or income.
Indeed, until the ACLU got into the act early in this century, those who wished to establish their own, sometimes odd and unpopular forms of worship-such as the Mormons-found that they were at times compelled to resort to force of arms to worship God as they saw fit. (214)
The persistent image of colonial America as a society that cherished freedom of expression is a sentimental hallucination that ignores history. The evidence provides little support for the notion that the colonies hospitably received advocates of obnoxious or detestable ideas on matters that counted. Nor is there reason to believe that rambunctious unorthodoxies suffered only from Puritan bigots and tyrannous royal judges. The American people and their representatives simply did not understand that freedom of thought and expression means equal freedom for the other fellow, particularly the fellow with hated ideas. (215)
The point that I'm making here is not that we should run out and stomp on other people's religions because they are not supported by the blackletter of the First Amendment. The point is this: these rights which we now take for granted were won only by struggle and sacrifice. They were not there when the Constitution was framed. They were not even there beyond the bounds described by living memory. When you go to your church, or to your synagogue, or your mosque, or your ashram or if you do not wish to worship God publicly or at all, keep in mind that these rights did not spring out of the ground like cabbages.
The fundamental right to contraception-based squarely on the equally fundamental right to privacy-is nowhere to be found in the Constitution or in the Bill of Rights, and neither is the right to privacy. Speaking for the court, William O. Douglas said, "The right to privacy is not found in the letter of the Constitution, but in its penumbra." (216) I hasten to point out that the discovery of this "penumbra" and the interpretation that gives us the right to propagate as we see fit, is of the most recent vintage, and is in some dispute. I strongly suggest that those who believe in the value of these rights "gird up their loins" for a long, bitter battle, the conclusion of which is far from certain. I further urge these friends of individual liberty to remember that liberty breeds liberty, and repression breeds repression.
The Sword and Sovereignty Always March Hand in Hand (217)
THE virtue of a democracy is that it protects the people from its rulers. It protects them in two great ways: through their right to criticize and their right to replace. Rulers respond to criticism in direct proportion to their chance of losing their jobs. In non-democratic countries, the rulers are isolated from the things that can go wrong, and there's not much that the people can do about it. Thus, when things go wrong, they tend to go very wrong indeed.
The right to criticize is protected by the First Amendment, which has continually enlarged its function as our nation has grown and flourished.
The right to choose and replace our representatives is contained in the Constitution itself and three amendments: the Fifteenth, the Nineteenth and the Twenty-Sixth.
The Second Amendment is the "enabling clause" of the Bill of Rights. It backs up the vote, which is a delicate tool, with the blunt instrument of force. No unjust, tyrannical ruler can long prevail against a citizenry that can back up the ballot with the bullet. To secure his unjust power, the tyrant must muzzle the press, make a mockery of elections, and disarm the people. Failing any of these, he will not prevail.
The Second Amendment is part of the fabric of civil rights that makes America a paragon of individual liberty. In all nations where the right to keep and bear arms has been infringed, all other rights have been diminished in proportion. Those who would remain free must accept the full burden of freedom, which includes responsibility as well as privilege, risk as well as protection, uncertainty as well as safety.
Furthermore, no good argument can actually be made that gun prohibition-no matter how harshly enforced-reduces crime of any sort, and good arguments can be made that gun prohibition increases the incidence of much criminal activity. Prohibitions of any kind do not and cannot work for the public good. Our nation is on the brink of destruction from the rabid enforcement of drug laws: laws that people do not and will not obey. To add yet another unenforceable prohibition to this number would be political insanity. The rate of homicide in America is a direct function of bad laws. When these laws were repealed-as with the repeal of Prohibition-the rate of murder dropped. The rate climbed again when similar laws became an issue. Those who look to the presence of guns in America for the cause of crime are looking in the wrong place; they should look to irresponsible, foolish legislation for the cause, and for the cure they should repeal those laws.
For a variety of reasons, many Americans do not understand the meaning of the Second Amendment and would reduce its scope. To them I say this: If you don't like part of the Constitution, your only option is to change or repeal it. I'll grant that this is a tall order, but there is no other choice. You cannot whittle away at the Constitution. You cannot, as many proponents of gun prohibition insist upon doing, completely ignore the plain legislative intent of the Framers of the Constitution and Bill of Rights while insisting upon it elsewhere. The men who wrote the Constitution believed in and insisted upon the point that all American citizens had a straightforward right to keep and bear arms. The precedent for the Bill of Rights found in English common law; the writings and recorded opinions of Madison, Hamilton, Monroe, John Adams, Samuel Adams, Tom Paine, George Washington, Patrick Henry and others; debate surrounding the Second Amendment; the language of the Second Amendment itself in the light of other, similar Amendments guaranteeing "rights of the people;" provisions in contemporary state constitutions-all these confirm this individual right beyond the shadow of a doubt.
The trend in America is toward, not against, individual freedom and responsibility. These are goals that all Americans should cherish and foster.
Leave Big Brother to the English. (218)
What to remember when talking with avid proponents of gun prohibition:
A man convinced against his will
Retains the same opinion still. (219)
Charles W. Adams, For Good and Evil: The Impact of Taxes on the Course of Civilization, Madison Books, 1993
John Adams, Diary & Autobiography (1755-1804)
William G. Andrews, Editor, Constitutions and Constitutionalism, D. Van Nostrand, 1961
Articles of Confederation & Perpetual Union (1781)
Susan P. Baker, Brian O'Neill, Marvin J. Ginsberg and Guohua Li, The Injury Fact Book, Oxford University Press, 1991
Bill of Rights (also called the Declaration of Right, English, 1689)
William Blackstone, Commentaries, (1765)
John C. Calhoun, A Disquisition on Government (1851)
David I. Caplan, "The Right of the Individual to Bear Arms: A Recent Judicial Trend," Detroit College of Law Review, Volume 1982, Issue 4, Winter
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Irving M. Copi, Introduction to Logic, Macmillan Publishing Company, New York, 1972
Crime in the United States: Uniform Crime Reports, Printed annually by the Federal Bureau of Investigation, U. S. Government Printing Office, 1991-282-076/45217
Morton D. Davis, Game Theory, Basic Books, New York, 1983
Osha Gray Davidson, Under Fire: The N. R. A. and the Battle for Gun Control,
Declaration of Independence (1776)
Declaration of Rights (1765)
John Ellis, The Social History of the Machine Gun, Pantheon, 1975
George F. Esty & Doris A. Hunter, Editors, Violence: A Reader in the Ethics of Action, Boston University, Xerox College Publishing, Walthom, Massachusetts, Toronto, 1971
David Fromkin, A Peace to End All Peace, Avon Books, 1989
Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, The Independent Institute, Oakland, 1984
Alexander Hamilton, James Madison and John Jay, writing as "Publius," The Federalist Papers (1787-1788)
Thomas Hobbes, The Leviathan (1651)
Aldous Huxley, Brave New World (1932)
Don B. Kates, Jr., "Firearms and Violence: Old Premises and Current Evidence," Violence in America, Volume 1: The History of Crime, Violence, Cooperation, Peace: An International Series, Ted Robert Gurr, Editor, Sage Publications, 1989
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Gary Kleck, Point Blank: Guns and Violence in America, Aldine de Gruyter Press, 1991
David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992
Leonard W. Levy, Freedom of the Press from Zenger to Jefferson, The Bobbs-Merrill Company, Inc., New York, 1966
John Locke, Constitution of the Colony of Virginia (1669), Two Treatises on Government (1690)
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Robert Nozick, Anarchy, State and Utopia, 1974
George Orwell, 1984 (1949), Animal Farm (1945)
Thomas Paine, Common Sense (1776), The Rights of Man (1791-1792)
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Bernard Schwartz, The Roots of The Bill of Rights, Chelsea House Publishers, New York, 1980
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William R. Tonso, Editor, The Gun Culture and Its Enemies, The Second Amendment Foundation, Bellevue, Washington, 1990
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I wish to thank the following for advice and assistance:
Berkeley Public Library Wayne Collins, Jr. Warren Charles Goines Cynthia Harris Edie Sei Ichioka Bleiman Don B. Kates, Jr. Kevin Padian Neil A. F. Popovic Stephen Shiboski Richard Seibert James J. Steinberg Fred Volkmer Thomas William Weller
(1) Thomas Paine (1737- 1809) The American Crisis, No. 1 (December 23, 1776)
(2) "Policing the Police," New York Times, Monday, October 4, 1993, page A14.
(3) My parents and siblings moved to Canada in 1968, though all but one sister and her children and grandchildren have since returned to the United States. As an index of the difference between our counties, many conservative Canadians do not like American television, radio and movies leaking across their borders because it gives the youth of their nation the feeling that they also have a Bill of Rights to which they may profitably appeal. In that regard, our nation is thought of as subversive. The reader will do well to remember that Canada was settled, in large part, by Americans who thought that British colonial rule was swell, and were fundamentally opposed to the American Revolution.
Though Canada's decade-old Charter of Rights and Freedoms proclaims "freedom of the press and other media of communication," and a defendant's right to a trial "in a fair and public hearing by an independent and impartial tribunal," this is not enough to prevent a court from issuing a gag-order absolutely prohibiting any reporting of news concerning the notorious 1993 murder trial of Karlo Homolka and Paul Teale. "To enforce it, border police have stopped trucks carrying U. S. newspapers and magazines to keep Canadians from learning what their neighbors to the south know about the case. This bizarre episode reminds us why the U. S. places a high value on public trials, reported in a free press. Two centuries of strife over freedom of the press have taught that gags on speech, even in the name of justice, are instruments of tyranny even when they fail at total suppression. . . . Like many prior restraints on reporting the news, Justice Kovac's seemed foolishly excessive. . . . In the U. S., the tried and tested way to safeguard these [rights to a free press and a free trial] is to let the public learn what journalists can learn and report, and to assure the defendants of an impartial jury with devices like sequestering and careful questionings for bias. We hope that a regard for free expression, and the folly of enforcing such a gag order in today's world, will lead Canada to adopt a different course." New York Times editorial, December 4, 1993.
(4) History of the Decline and Fall of the Roman Empire (1776-1788), Chapter 71.
(5) When this country was founded, a large proportion of its inhabitants were consciously denied even the most basic, natural rights. This contradiction was more a result of political compromise and necessity than of malice or stupidity, but it troubled the Founders to their souls. If Jefferson, a slave holder himself, or Washington, who was one of the wealthiest men in American and a slaveholder as well, had acted on their beliefs that slavery was a shameful condition and freed their slaves, it would have likely been viewed as a slap in the face to the slave states, and a threat that once they had joined the Federation and accepted its sovereign power, they would have been stripped of their property. Consequently, the fragile alliance of colonies would have failed, and England and France happily carved up the pieces. Caught in a bind, the Founders were unable to do right because to do so would destroy the Union. The matter was not resolved peaceably, and represents the worst failure of this nation.
In his paper "Abolition, Deportation, Integration: Attitudes Toward Slavery in the Early Republic," (Journal of Negro History, Vol. LIII, No. 1, January, 1968), Don B. Kates, Jr. argues further:
"If the Founding Fathers recognized the iniquity of slavery, and did not believe its abolition economically unfeasible, why did they not abolish it? The answer lies not in economic but social and political considerations-in their reaction to the prospect of an integrated society. . . .
"The politicians of the North and South had together made their Revolution, remade their society, established a viable political structure. Like every successful government, the early American Republic rested upon basic consensus expressed in a defined balance of political power ultimately satisfactory to politicians and constituents alike. How could any 'responsible' person-where 'responsible' connotes fundamental agreement in the basic structure of American society and politics-look with equanimity on the accretion to the political and social population of an immense Negro mass, alien to the body politic, whose unarticulated aspirations might pursue any direction under any leaders. If emancipation and integration would inevitably overthrow the political status quo then they were unacceptable. (37-39)
(6) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, New York, page 263, and 274. (7) Thomas Hobbes, The Leviathan, "Of Common-wealth," abridged, edited, and with an introduction by Froncis B. Randall, Washington Square Press, 1969, page 213.
(8) Thomas Hobbes, The Leviathan, "Of Common-wealth," abridged, edited, and with an introduction by Froncis B. Randall, Washington Square Press, 1969, page 213.
(9) John Locke, Political Writings, "An Essay Concerning Toleration," Edited and with an introduction by David Wootton, Penguin books, 1993, page 188
(10) John Locke, Political Writings, "An Essay Concerning Toleration," Edited and with an introduction by David Wootton, Penguin books, 1993, page 189.
(11) John Locke, Political Writings, "An Essay Concerning Toleration," Edited and with an introduction by David Wootton, Penguin books, 1993, pages 190-191.
(12) See my paper "The Origin of Writing, the Development of the Alphabet and the Devolution of the Minuscules," 1992.
(13) W. K. C. Guthrie, The Greeks and Their Gods, Beacon Press, Boston, 1962, page 191.
(14) H. D. F. Kitto, The Greeks, Pelican Books, 1962, page 77
(15) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 (26).
(16) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 248.
(17) This is exactly what is wrong with the British Parliamentary system. "Civil liberties in Britain lack not only the sword of strong citizen's groups, but also the shield of a written constitution. The preservation of civil liberties endures only so long as parliamentary majorities respect unwritten tradition. A civil liberties leader in the House of Lords explains why a written constitution matters: 'Human rights are built into American life by the Constitution, and protected by a court, the Supreme Court of the USA. Not so in my country. "Human rights" is not a term of art in English law. Civil liberties-yes, our courts understand them and protect them. We rely on the common law: but the common law has no constitutional protection against the inroads of the legislature. Judges are, in terms of power, subordinate to parliament. Mr. Justice Brennan's approach to human rights is the pearl of great price that we have lost in the rough seas that prevail outside the world of a written constitution.' " David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992, pages 105.
(18) Republic, part IV, Book viii.
(19) Ullman v United States (1956), quoted in Kates, The Second Amendment, 273.
(20) "Of arms and the man I sing." The first line of the poem.
(21) Quoted in Kates, "The Second Amendment," page 232.
(22) Exodus 5
(23)David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992, page 65.
(24) Quoted from the Constitution of the United States, Magna Carta, Mayflower Compact, Declaration of Rights, Declaration of Independence, Articles of Confederation, Constitution of the State of California, as last amended November 3, 1970. The Magna Carta is taken from "Select Historical Documents of the Middle Ages," as translated from "Stubb's Charters" by Ernest F. Henderson. Published by the California Legislature Assembly, January 1971.
(25) "Just for a word-'neutrality,' a word which in wartime has so often been disregarded, just for a scrap of paper-Great Britain is going to make war." Theobald von Bethmann-Hollweg (1856-1921) to Sir Edward Goschen, upon the outbreak of World War One.
(26) "It [Blackstone's Commentaries] performed for educated society in England much the same service as was rendered to the people of Rome by the publication of their previously unknown laws." Encyclopædia Brittanica, 11th Edition (1910), article "Blackstone, Sir William."
(27) William Blackstone, Commentaries on the Laws of England, I (University of Chicago Press, 1979, quoted in David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992. page 113.
(28) The Jefferson Cyclopedia, note 105, page 318 (Foley ed., 1967) Quoted in Kates, The Second Amendment, 229.
(29) James Madison, The Federalist Papers, 46.
(30) Writings of Thomas Jefferson, letter to George Washington June 19, 1796. Quoted in Kates, The Second Amendment, 228.
(31)James Monroe papers at the New York Public Library (miscellaneous papers in his own handwriting). Quoted in Kates, "The Second Amendment," 228.
(32) James Monroe papers at the New York Public Library (miscellaneous papers in his own handwriting). Quoted in Kates, "The Second Amendment," 226.
(33) James Monroe quoting Patrick Henry. J. Elliot, Debates in the Several State Conventions (1836). Quoted in Kates, The Second Amendment, 226.
(34) J. Elliott, Debates in the Several State Conventions,(Virginia, 1788), quoted in Kates, "The Second Amendment," 221.
(35) Quoted in Kates, The Second Amendment, 221-222. (36) Papers of James Madison, letter of October 20, 1788 from Madison to Edmund Pendelton. Quoted in Kates, The Second Amendment, 223
(37) Papers of James Madison. Quoted in Kates, The Second Amendment, 223
(38) Works of Fisher Ames (1854) letter of June 11, 1789 to Thomas Dwight. The next day U. S. Senator William Gray wrote Patrick Henry that Madison had introduced a "string of amendments" which "respected personal liberty." Quoted in Kates, The Second Amendment, 223.
(39) "Originally published under the pseudonym, 'A Pennsylvanian,' these 'Remarks on the First Part of the Amendments to the Federal Constitution' first appeared in the Philadelphia Federal Gazette, June 18, 1789 at 2, col. 1. They were reprinted by the New York Packet, June 23, 1789 at 2, cols. 1-2, and by the Boston Centennial, July 4, 1789, at 1, 2. Coxe sent a copy to Madison who replied commending its 'explanatory strictures' of his proposal. Papers of James Madison, (letter of June 24, 1789, to Tench Coxe)." Kates, The Second Amendment, 224.
(40) Massachusetts' U. S. Constitutional ratification convention, 1788, cited in Kates, The Second Amendment, 223-224.
(41) Article XVI continues First Amendment provisions: That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature redress of grievances, by address, petition, or remonstrance. (Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 266).
(42) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 266
(43) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 265.
(44) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 628.
(45) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 758.
(46) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 762.
(47) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 842.
(48) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 243.
(49) Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, page 245. Also found as "No free man shall ever be debarred the use of arms." Proposed Virginia Constitution (1776), Jefferson Papers 344, (J. Boyd, editor, 1950).
(50) Kates, The Second Amendment & the Ideology of Self-Protection, 99, 100.
(51) The Encyclopedia of the American Constitution (1986) says that no act of Congress has ever been seriously contested under the Third Amendment.
(52) Kates, The Second Amendment & the Ideology of Self-Protection, 100. Kates in turn cites Stephen P. Halbrook, Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment, 15, University of Dayton, L. Rev. 91 (1989).
(53) Kates, The Second Amendment & the Ideology of Self-Protection, 102
(54) Kates, The Second Amendment, 272
(55) Quoted in Kates, The Second Amendment, 272, 273
(56) Quoted in Kates, The Second Amendment, 273
(57) Translated by W. K. Marriott.
(58) Kopel, 27
(59) Introduction to Logic, Irving M. Copi, Macmillan Publishing Company, New York, 1972, page 74.
(60) The Second Amendment seems to be drawn as much from a concern that the State could, potentially, constitute an enemy to an unarmed populace, as the fear that the state could be taken over by a professional army-obviated by the continual maintenance of a potential citizen army. But there is a further factor, found deep in the English tradition. The battles of Agincourt, Crécy and Poitiers taught the important lesson that a prepared, armed and skilled citizen-soldier was absolutely necessary to the welfare of the State, and that such a body could not be generated overnight, but had to be fostered in readiness against need. "In 1363 Edward III commanded the general practice of archery on Sundays and holidays, all other sports being forbidden. The provisions of this act were from time to time re-issued, particularly in the well-known act of Henry VIII. The price of bows and arrows was also regulated in the reign of Edward III, and Richard III ordained that for every ton of certain goods imported ten yew-bows should be imported also, while at the same time long-bows of unusual size were admitted free of duty. . . . In Scotland and Ireland also, considerable attention was paid to archery. In 1478 archery was encouraged in Ireland by statute, and James I and James IV, of Scotland, in particular, did their best to stimulate the interest of their subjects in the bow, whose powers they had felt in so many battles from Falkirk to Homildon Hill." (Encyclopedia Brittanica, 11th Edition, article "Archery.") Now, lest you say that this was only a bow and arrow, such as little boys play with, and not a serious weapon like a gun, let me hasten to point out that I'd much rather face a .38 S&W special than a longbow any day of the week. The longbow was devastating at short-range: at Abernathy in 1182 a Welsh archer put a shaft through an oak door four inches thick and the head stood out a hand's breadth on the inner side. A .45 can't do that. The longbow was also highly effective at long range. In the time of Henry VIII practice at a range of less than a furlong (one-eighth of a mile, or 220 yards-more than twice the length of a football field) was forbidden. Heavy armor was no proof against the longbow, and a skilled archer could get off between two and five aimed shots a minute. In fact, we're talking about a personal weapon just about as deadly as any that's ever been developed.
In the battle of Crécy (August 26, 1346) Edward III with 3,900 men at arms, 5,000 Welsh light troops and 11,000 archers confronted a French army of about 60,000. Here the longbow first proved its worth, and the French didn't have a chance. The French army was practically annihilated, with 1,542 men of gentle birth killed and the remainder of the French casualties unknown because they were not counted. The English lost fifty men.
In the battle of Poitiers (September 19, 1356) the Black Prince, with 6,000 men and a small body of archers, was attacked by 16,000 French. The archers picked off the first two French charges, and the English line held. The battle was resolved with 2,500 French-of which 2,000 were knights and men-at-arms-killed. Prisoners included 25 great lords, 1,933 knights and men-at-arms, and 500 others.
English casualties at the battle of Agincourt (October 25, 1415) in which Henry V-outnumbered four to one, but with 6,000 archers-triumphed over the French, were thirteen men at arms, and about 100 of the foot. French losses were 5,000 of noble birth and a thousand more of noble birth taken prisoner. It is estimated that foot casualties were more than ten thousand.
(61) Quoted in Kates, "The Second Amendment, "footnote 289, page 273.
(62)United States v Miller, (1939)
(63) See John Levin, The Right to Bear Arms: The Development of the American Experience, 48 Chi-Kent Law Review 148 (1971); Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hast. Constitutional Law Quarterly, 961 (1975); Lawrence Tribe, American Constitutional Law.
(64) See Appendix.
(65) With apologies to P. J. O'Rourke.
(66) Kates, The Second Amendment, 206.
(67) For a discussion of this and other relevant Supreme Court cases, see below.
(68) Gun Control: ACLU Policy #47
The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one, existing only in the collective population of each state for the purpose of maintaining an effective state militia.
The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms.
Nor does the ACLU believe that there is a significant civil liberties value apart from the Second Amendment in an individual right to own or use firearms. Interests of privacy and self-expression my be involved in any individual's choice of activities or possessions, but these interests are attenuated where the activity, or the object sought to be possessed, is inherently dangerous to others. With respect to firearms, the ACLU believes that this quality of dangerousness justifies legal regulation which substantially restricts the individual's interest in freedom of choice. (1)
However, particular federal or state laws on licensing, registration, prohibition or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions. For example, the enforcement process of systems of licensing, registration, or prohibition may threaten extensive invasions of privacy as owners are required to disclose details of ownership and information about their personal history, views, and associations. Furthermore, police enforcement of such schemes may encourage entrapment, illegal searches and other means which violate civil liberties.
The ACLU takes the position that any such legislation must be drafted bearing these problems in mind and seeking to minimize them [Board Minutes, June 14-15, 1979.]
(1) When the Board adopted the June 1979 policy, it was suggested that it was unclear as to whether or not the ACLU supported gun control as civil liberties matter, or simply did not oppose government regulation on this issue. In order to clarify this question, the following sentence was added to paragraph three of the policy as a footnote, "It is the sense of this body, that the word 'justifies' in this policy means we will affirmatively support gun control legislation."
At the April 12-13, 1980 Board meeting, the policy's footnote was reconsidered. Several Board members believed that the statement was inconsistent with the rest of the policy because there as no civil liberties rationale within the policy for affirmative ACLU support of gun control legislation. The Board then moved to refer the policy to the Due Process Committee to refine and discuss further the rationale for affirmative ACLU support of gun control legislation. At the June 23-24, 1982 Board meeting, the Due Process Committee recommended deletion of the footnote from the gun control polity. The Committee's recommendation was based on the fact that no acceptable civil liberties rationale could be developed for affirmative support of gun control legislation. The link between guns and the breakdown of civil liberties, the Committee suggested, contains too much of the approach to crime control. And crime control, the Committee said, includes measures violative of civil liberties. The possibility that a person who might be defending his or her self at home might be arrested for use of a handgun is troubling. If we support gun control legislation, we are encouraging the police to search homes, cars, and persons. The Due Process Committee suggested that the problem with the footnote was that it was indefensible on civil liberties grounds, and that it is not the ACLU's role to commit the ACLU to involve ourselves in social issues by finding a constitutional basis where there is none. Even though gun control is a desirable social objective, and it would be nice to find a civil liberties rationale for affirmative ACLU support of gun control legislation, the Committee noted that the ACLU has never supported particular remedies for particular crimes, and as such, we cannot support gun control legislation.
The Board approved the Committee's recommendation, and deleted the footnote from the existing policy, but left intact the basic policy which expressed the ACLU's views.
(69) I take it that the ACLU is here referring to what the Framers would have termed "natural rights," a notion in which the legislative record clearly emphasizes the right to self-defense and the means to effect it. Indeed, the Framers of the Constitution, when talking about "natural rights," which predate any law made by man, and by which man's laws must be measured, thought that there were two really important ones, from which all others flowed: the right to own property, and the right to keep and bear arms.
(70) The ACLU seems to be saying here that they do not actually think that they should refer to the historical legislative intent of the actual Framers of the Constitution, but rather to imagine what they would do if they themselves were in a similar historical context. What is being said here, in so many words, is that the ACLU has taken moral positions on all Constitutional matters, and without regard to the law itself, supports or rejects aspects of the Constitution and Bill of Rights according to some undefined, idiosyncratic and extra-legal set of criteria. They think that the First Amendment-at least the interpretation that they give to it, which is of recent vintage indeed-should be defended regardless of Constitutionality or indeed its presence in the Constitution at all. In the same arbitrary spirit, they reject the moral validity of an armed citizenry, and though having withdrawn from actual opposition to it, do not support it. Morals are all very well and good, but the Constitution is not a moral document. It is a legal contract outlining the rights and responsibilities, each to the next, of the Several States, the private citizens and the Federal Authority.
(71) I take this to mean that the ACLU rejects the principle and validity of a written constitution.
(72)The Framers did in fact perfectly openly recognize the right of a citizen to self-defense against law breakers within the community. That this right should be superseded by another is a false reading. In this, the ACLU seems to reject the Ninth Amendment, which specifically provides that the Constitutional provision for one right does not imply infringement upon another right.
(73) The ACLU here seems to promote the nonsensical position that government below the Federal level is not actually government. On the other hand, it may imply the equally dangerous, and antiquated "States Rights" position that the Bill of Rights-specifically the Second Amendment-applies only to the Federal government, and not to the Several States or local authorities.
(74) It should be pointed out in passing that as recently as World War Two-which is scarcely the dim and misty past-in the chaotic moments following the bombing of Pearl Harbor the United States government briefly relied upon individual armed citizens together with their own private weapons-the militia in its Constitutional sense-and called upon them to defend the borders of our nation against possible foreign invasion.
(75) Here the ACLU seems conveniently to forget that much of its own effort in securing civil liberties of citizens is an ongoing struggle against all branches of the government. The ACLU does not, properly speaking, interfere in individual quarrels between private citizens. It concerns itself with "government tyranny" that is going on right here, right now. It is quite a stretch to maintain that we need have no fear of some things that the Founding Fathers were afraid of and made Constitutional provision against, while in the same breath crying the blues about all the others.
(76) This implies that the Framers of the Constitution only reluctantly accepted that there was nothing they could do to remedy the flaw of an armed citizenry if they wanted to prevent the rise of overweening Federal might. This further implies that the Framers discussed the wisdom of allowing citizens to remain armed in the light of the dangers that this might present to the fledgling Republic. However, not only is there absolutely nothing in the legislative record to support this contention, there is nothing in any of the writings of any of the Framers of the Constitution to lend it the slightest credence, and there is nothing in the writing of any of the authorities which they consulted to support it. On the contrary, they made quite a large point of comparing the American people, who could and should be trusted with private arms, to degenerate foreigners who, because they had been enslaved by their own governments, could not be so trusted.
(77) Aside from the offensive paternalistic notion that citizens should rely on the State to "provide" them with arms to defend themselves against incursions by that same State, rather than recognizing their right as free men to arm themselves, for a contrary argument see Does the Possession of Overwhelming Force by One Party Obviate the Rationale for Other Parties to be Armed? below.
(78) James Q. Wilson, "Just Take Away Their Guns: Forget Gun Control," New York Times Magazine, March 20, 1994, page 47.
(79) Kates, The Second Amendment & the Ideology of Self-Protection, 94, 95.
(80) John Foxe was exiled from England from 1554 to 1559, under the reign of the Catholic Mary I, during which time he wrote his first draft of Actes and Monuments of These Latter Perilous Days, published in 1563. Known as Foxe's Book of Martyrs, it dwelt not only on the martyrs of the early Church, but at some length with English and French Protestants killed for their faith by Catholics. It didn't say too much about Catholics martyred for their faith by Protestants.
(81) Kates, The Second Amendment & the Ideology of Self-Protection,, 98
(82) David I. Caplan, "The Right of the Individual to Bear Arms: A Recent Judicial Trend," Detroit College of Law Review, Volume 1982, Issue 4, Winter, page 794
(83) Henry II claimed Ireland in the 12th century, and his successor Henry VIII declared himself king, introducing the Protestant Reformation to a Catholic nation. Scottish immigration into Ulster was encouraged under the reign of Elizabeth I. Celebration of the Mass was made an act of treason and Catholics were barred from public office. An uprising in 1641 was crushed by Oliver Cromwell, and thousands of Irishmen were massacred. After the Irish supported James II's unsuccessful bid against William of Orange, the English commenced an economic war against Ireland, destroying its woolen trade. English and Scottish Protestant landlords occupied territory confiscated from Irishmen; Gaelic, the native language, neared extinction. Inspired by the French and American Revolutions, in 1798 a popular uprising led by Wolf Tone was put down with great loss of life. Under absentee landlords, the genocidal policies of England reduced the people to the last extremity of poverty, and when a blight struck the potato crop in the 1840s one million people starved to death and half again that number emigrated to the United States. (The population of Ireland in the late 20th century is still only three and a half million.)
The Home Rule movement, spurred by the patriot Charles Stewart Parnell, led to the passage of the Home Rule Act of 1914, but England seized upon the excuse of World War One to postpone Irish independence. The postponement of Home Rule led to the brutally repressed Easter Rebellion of 1916. The separatist Sinn Finn movement gained momentum, and the Land Purchase Act, which enabled dispossessed Irish peasants to regain their stolen lands, put Ireland's economy on the road to recovery. On December 4, 1918, an election was held in Ireland which included the whole 32 counties. The issue was for or against independence from Britain. The result was 1,207,151 for independence, and 308,713 against; an 80 percent majority. The IRA representative, Michael Collins, went to London to sign for an independent Ireland, but was browbeaten by Winston Churchill with the threat that unless they accepted 26 counties, war in Ireland would continue. These events contributed to the "Troubles," a period of partisan activity lasting until England capitulated to the Irish Free State on December 6, 1921. The Republic of Ireland severed all ties with Great Britain in 1949. British troops continue to occupy the six northern counties, called Northern Ireland. Sectarian problems in the North remain unresolved. (Sources: article "Ireland" in the Encyclopaedia Brittanica, 11th edition; letter to the New York Times by Thomas C. Cullinane, August 4, 1993.)
(84) The homicide rate in the United States in 1900 was reported at 1.2 per hundred thousand. For more data see below.
(85) The New Dictionary of Statistics, Augustus D. Webb, London, George Routledge and Sons, 1911.
(86) It is estimated that five percent of the population of the earth was killed in World War One. In addition, the influenza epidemic that followed infected every man, woman and child on the planet and killed an estimated ten percent of the world's population. Military and civilian deaths resulting from World War Two are conservatively estimated at sixty million.
(87) "In England, considerably earlier, Henry VIII had tried his hand at actual gun control. He started . . . not by limiting production, but by limiting ownership. An Act of Parliament of April 25, 1523 forbade anyone with an income of less than a hundred pounds a year to possess firearms, on pain of confiscation and a fine of forty shillings. This meant that guns were lawful only for the upper gentry-as noted, a very small group indeed [about six-tenths of one percent of the population]. In 1528 the King by proclamation changed the order to specify that an unauthorized gun was not to be confiscated but destroyed on the spot. Another Act of Parliament, in 1533, increased the fine for illegal possession to ten pounds-that is, a year's wages for a master craftsman. . . . In England, King Henry's desire to keep guns out of the hands of common people (who could and did use them to shoot deer illegally) was constantly coming into conflict with his even stronger desire to make England a leading military power. . . . in 1543 he abruptly revoked the whole set of controls. He had declared war on France. Now he wanted 'his loving subjects practiced and exercised in the feat of shooting handguns and hackbuts . . . for the annoyance of his majesty's enemies in time of war and hostility.' . . . When peace came again, Henry revoked the revocation; and once more only the upper gentry (and men in walled towns within seven miles of the borders) could have firearms. But it was easier to send out the notice than it was to gather up the firearms again; and as for the skill in using them, Englishmen were no more going to lose that, just because peace was declared, than Americans were going to forget how to use in New York the modes of destruction they had learned in Vietnam. Furthermore, the ban didn't last. In 1557 there was another war, again with France. Again the gun laws were repealed." - Noel Perrin, Giving Up the Gun, David R. Godine, 1979, pages 58-62.
(88) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992. page 69. (89) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992. page 70. (00) Colin Greenwood, "The Sun Sets on British Gun Owners," American Rifleman, September 1, 1989, page 26.
(91)Murders per 100,000 in Industrialized Western Nations. New Book of World Rankings, 1981.
(92) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992. page 107.
(93) Noel Perrin, Giving Up the Gun, David R. Godine, 1979, pages 26-27.
(94) Perrin, 58
(95) Perrin, 63.
(96) Emphasis in original. Edgar W. Knight, "Notes on John Chavis," North Carolina Historical Review 7(July, 1930): 326-45.
(97) I direct the interested reader to Ambiguous Lives, Free Women of Color in Rural Georgia, 1789-1879, Adele Logan Alexander, University of Arkansas Press, Fayetteville, 1991
(98) Encyclopedia Brittanica, eleventh edition, 1910, article "Washington, D. C."
(99) Hardy, 38
(100) Joseph Douglas Deal, III, Race and Class in Colonial Virginia, a Prototype of Federal Indian Policy, Ph.D. dissertation, University of Wisconsin, Milwaukee, 1973, 425.
(101) T. H. Breen and Stephen Innes, "Myne Owne Ground,": Race and Freedom on Virginia's Eastern Shore, 1640-1676 (New York and Oxford: Oxford University Press, 1980) 26
(102) See A Collection of All the Acts of Assembly, Now in Force in the Colony of Virginia . . . (1733; reprinted, Baltimore: Gateway Press, 1976), 334.
(103) See the general reference works on colonial soldiers, such as those by Lloyd DeWitt Bockstruck, Virginia's Colonial Soldiers (Baltimore: Genealogical Publishing Company, 1983).
(104) See Franklin, Free Negro in North Carolina, 102-3." (Volume 80, Number 1, March 1992 of the National Genealogical Society Quarterly, article by Virginia Easley DeMarce, 'Verry Slitly Mixt': Tri-Racial Isolate Families of the Upper South-A Genealogical Study," page 32).
(105) A more recent instance of racially-motivated gun legislation is the spate of laws proposed and passed in record time after the confusing May 2, 1967 event in which legally armed members of the Black Panther Party appeared in Sacramento to demand redress of grievance.
(106) Joel Barlow, Advice to the Privileged Orders in the Several States of Europe: Resulting From the Necessity and Propriety of a General Revolution in the Principle of Government, Part I 45 (1792) Quoted by Kates, The Second Amendment & the Ideology of Self-Protection, 95
(107) Caesare Beccaria (1738-1794), An Essay on Crimes and Punishments (1767), (Henry Paolucci, translator, Bobbs-Merrill, 1963) quoted in Kates, The Second Amendment & the Ideology of Self-Protection, 91.
(108) For an interesting and amusing diatribe on this theme, see Robert Scheer, "Scared to Death," Playboy, January 1995, page 49. The thrust of his argument is that the media makes a living not by reporting good news, but by exaggerating the bad. He further emphasizes that the government does the same, by responding not to serious evidence, but "to pressure from consumer advocates and an army of lawyers out to make bucks. ... The strategy of risk assessment ought to be veracity, not scare tactics."
(109) The World Almanac and Book of Facts, 1990.
(110) Your chances of being injured or killed while on stairs, steps, or in the bath are incredibly high: expect a misstep on a stairway once out of 2,000 times you use a stair; one minor accident every 30 missteps; one hospitalization for each 50 minor injuries, and one fatality out of every 200 hospitalizations. In 1989, 837,020 people were admitted to hospital emergency rooms from falling down stairs. In 1989, 125,829 Americans were reported injured in the bath or shower. All told, some 21 million people were injured around the house, of whom 3.4 million were disabled for more than one day. About 90,000 of these accidents resulted in permanent impairment.
In 1989, 29,995 people were injured by their television sets; 39,984 by jewelry and 28,745 by paper money or coins. I swear I'm not making this stuff up.
The motor vehicle death rate in the United States. was 49,000, or 39 fatalities per 100,000 of population.
One thousand four hundred accidental deaths were caused by firearms in the same year, and 20,680 Americans were murdered, of whom 11,084 were killed with a firearm.
Sources: Accident Facts, published by the National Safety Council. Consumer Product Safety Commission, National Electronic Injury Surveillance System, Product Summary Report, 1989. John Templer, The Staircase. Volume 1: History and Theories, Volume 11: Studies of Hazards, Falls, and Safer Design, MIT Press, 1992.
(111) Dr. Abraham Wandersman, a psychologist at the University of South Carolina, and Dr. William Hallman, a psychologist at Rutgers discuss risk perception in an issue of the journal American Psychologist (as reported in the February 1, 1994 New York Times). Perception of risk is amplified by the "outrage factor," which makes people feel that even small risks are unacceptable. Risks that are imposed seem greater than risks that are voluntary. Risks that seem unfairly shared are more objectionable. Risks that people can take steps to control are more acceptable. Natural risks-radon in the ground as opposed to exposure to the same amount of radioactivity from mine tailings-are more acceptable than man-made. Risks that are associated with catastrophes are especially frightening. Risk from exotic technologies create more dread than those involving familiar technologies. News coverage greatly influences perception of risk. The more the media present something as bad, the worse it is assumed to be. (Source: New York Times, "Hidden Rules Often Distort Ideas of Risk" by Daniel Goldman, February 1, 1994) See also the journal Risk Analysis.
(112) M. Granger Morgan, Risk Analysis and Management," Scientific American, July, 1993, pp 32-41. In the author's "risk space," handguns pose a highly observable, moderately uncontrollable risk.
(113) On October 6, 1993, four Black youths were arrested in Montecello, Florida for the murder of a British tourist and the attempted murder of his companion. The criminals were a 13-years-old, a 14-year-old and two 16-year-olds. The 13-year-old had been arrested 15 times on more than 50 charges, dating to when he was 7 years old. One of the 16-year-old boys was reported to have 30 previous arrests, the other 16-year-old 1 previous arrest and the 14-year-old 26 previous arrests. (Source: New York Times, October 7, 1993)
(114) Amartya Sen, "The Economics of Life and Death," Scientific American, June 1993, pages 43-44.
(115) Diary, February 10, Monday, 1772.
(116) Bruce Russett, Dean Acheson Professor of Political Science at Yale University, "Peace Among Democracies," Scientific American, November 1993, page 120. I direct the interested reader to Grasping the Demorcatic Peace: Principles for a Post-Cold War World, Princeton University Press, 1993.
(117) Thomas Donaldson, Letter to the Editor, American Scientist, January-February, 1996, page 3. See also Alvin M. Sapperstein's article "War and Chaos," in the November-December, 1995, issue of American Scientist.
(118) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 103.
(119) Philip John Stead, The Police of Britain, Macmillan, 1985, Cited in David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 101.
(120) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 101.
(121) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 101.
(122) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 101.
(123) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 102. (124) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 102. (125) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 pages 99-100.
(126) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 pages 103-104.
(127) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 pages 103.
(128) On the matter of the loss of one right affecting all other rights, see Susan Riggs, "Along with Canadian's Guns will go other freedoms," Los Angeles Times,
(129) We remember the example of Marcus Licinis Crassus (115? - 53 BC), probably in real terms the richest private citizen who ever trod the earth. He lived in Rome during the reign of the dictator Cornelius Sulla, and aspired to become one himself. His first notable trial of arms was to put down the Spartican slave rebellion, after which he went on to get himself killed leading his own troops against the Parthians. Crassus is reputed to have said, "No man who cannot afford his own army can truly call himself rich." Few of us can hope to emulate Crassus, and it's probably just as well.
(130) See State of Oregon v. Kessler, 1979.
(131) It is ironic to the point of absurdity that this editorial faces, on the opposite page, another Chronicle editorial on the destruction of the Branch Davidian compound and the fiery death of nearly all its inhabitants.
(132) The Thompson sub-machine gun, which had not been perfected in time for World War One, was employed by post-war police forces not so much to deal with criminals as to intimidate striking workers. Its popular success, however, was in the world of organized gang warfare: The Prohibition debut of the "Chicago Piano" was on September 25, 1925 when it was used by the McErlaine and Saltis gangs to assassinate members of the O'Donnel family. Al Capone ordered three on February 10, 1926, and on the 20th of September his rival Weiss poured one thousand sub-machine gun rounds into Capone's headquarters in Cicero. On the 11th of October, Capone's henchmen Tommy-gunned Weiss as he went into a flower shop. You may thank Prohibition for the higher homicide rate of the 1920s. (Source, The Social History of the Machine Gun, John Ellis, Pantheon, 1975)
The Thompson sub-machine gun, along with other "gangster weapons," such as sawed-off shotguns, were taken from the hands of the citizen by the National Firearms Act of 1934.
Another "gangster weapon" casualty is the spring-blade knife. Juvenile delinquents-at least the juvenile delinquents in 'fifties Hollywood movies-spurred a faddish barrage of laws removing an ordinary, useful tool from the hands of law-abiding American citizens. Hardly a day goes past that I don't wish I had a knife that I could open with one hand, while I kept an uninterrupted hold on my work with the other.
(133) Article IV Section 4 of the United States Constitution.
The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.
(134) Moncure Conway, ed., 1 Writings of Thomas Paine at 56 (Putnam, 1894), Thoughts on Defensive War (1775).
(135) With a population of 7.5 million (24 thousand per square mile), New York City (62% White, 25% Black, 20% Hispanic) accounts for most of the crime in the state. San Francisco (731 thousand; 59% white, 22% Asian, 13% Black, 12% Hispanic) is the second densest city in the U. S., with 16 thousand per square mile. San Francisco had 92 homicides in 1988 (8 per hundred thousand), of which roughly half were committed with firearms. The homicide rate in Washington, D.C. is rising astronomically. In 1990 the F.B.I. reported a homicide rate of 77.8 per hundred thousand (Source New York Times, September 11, 1993, page 15)
(136) David T. Hardy, "Gun Control: Arm Yourself with Evidence," Reason, November 1982. His sources include: Lee Kennet and James Anderson, The Gun in America, Greenwood Press, 1975; Don Kates, ed., Restricting Handguns: The Liberal Skeptics Speak Out, North River Press, 1975; on English gun control he cites Colin Greenwood, Firearms Control, Routledge & Kegan Paul, 1972. Hardy further cites Hearings on Gun Control and Constitutional Rights, Senate Subcommittee on the Constitution, 96th Congress, 2nd Session, serial 96-83 (September 15, 1980); Krug, The Relationship Between Firearms Ownership and Crime Rates, reprinted in 113 Cong. Rec. 20060, 20064 (1967) and 114 Cong. Rec. 1496 (1968); Murray, Handguns, Gun Control Laws, and Firearms Violence, Social Problems, 1975; Magaddino, "Comparative Cross-Cultural Statistics," in Kates, p. 31. These and other studies are summarized in Hardy, Firearms Ownership and Regulation, William and Mary Law Review (1978). See also the Pierce-Bowers study, The Impact of the Mandatory Sentence Gun Law in Massachusetts, Boston University School of Law, 1979.
(137) Gary Kleck, "Crime Control Through the Private Use of Armed Force," Social Problems 35, No. 1 (February 1988). Kleck finds that a burglar's chance of being shot is about equal to his chance of being arrested. In a survey of felony convicts in state prisons, 73 percent of the convicts who had committed a burglary or violent crime agreed "one reason burglars avoid houses when people are at home is that they fear being shot." Relatively few burglars are fatally wounded by homeowners, but the low death rate hardly proves that guns are not a deterrent. Deterred burglars avoid homes which might contain an armed victim. The burglars who get shot are the unlucky few who have made a terrible miscalculation. Quoted by David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992, page 92, and footnote 254, chapter "Great Britain."
(138) American Rifleman, November 1993, page 7.
(139) The Federalist Papers, Number 26
(140) The Federalist Papers, Number 29
(141) The Federalist Papers, Number 27
(142) The Federalist Papers, Number 28
(143) The Federalist Papers, Number 28
(144) Switzerland was, even at the time, a notable exception with which Madison was no doubt familiar. When I was a boy, the story of William Tell was a favorite of my schoolteachers. I'll bet that I heard it a hundred times between kindergarten and eighth grade. The tale of Tell, "assertor patriae, vindex ultorque tyrannum," (Glareanus, 1515) had firmly entered the popular mythology by the early seventeenth century.
William Tell was a crossbowman who would not salute the symbol of oppression, a hat on a stick. He was therefore compelled by Gessler, a wicked bailiff, to show his skill with a crossbow by shooting an apple off the head of his son. William Tell took two bolts in his hand, shot, and split the apple on his boy's head. When the oppressor asked why he had taken two bolts in his hind, he replied, "Tyrant, that second bolt was for you if I had struck my child." The hero was arrested and transported in chains across Lake Lucerne. A great storm arose, and Tell was freed to steer the boat to safety. Leaping to the shore, he lay in wait until the boat should reappear, and when the wicked Gessler came past William Tell let fly the bolt that he had dedicated to his country's freedom. The Swiss people lost their fear and rose up against Austria, and to this day jealously guard their freedom.
I think that's a rattling good story, don't you? It also goes a bit of a way to explain why the Swiss have plenty of guns, and why nobody since has felt it worth their while to invade Switzerland.
(145) Paraphrasing Hamilton, The Federalist Papers, number 8.
(146) Abstracted from the ACLU's 1984-1985 annual report.
(147) Sed quis custodiet ipsos custodes? - Juvenal (AD c. 55 - c. 130) Satires.
(148) John Marshall (1755 - 1835) McCullock v Maryland, 4 Wheaton 316, 407
(149) San Francisco Chronicle, February 25, 1993, page A15. The fees levied by Berkeley and Oakland on Federally licensed gun dealers rose from $40 to more than $1,200, with the additional requirement of one million dollars in liability insurance. This last is a takeoff on the recurrent proposal that "absolute liability" be imposed on the owner, seller and manufacturer of a firearm.
On July 13, 1993, the Berkeley City Council voted unanimously to prohibit selling guns in residential areas and to require gun dealers to apply for a use permit to conduct business in the city. According to the police, 23 of Berkeley's 32 Federally licensed gun dealers operate their businesses in residential areas. (East Bay Phoenix Journal, Volume 2, Number 14, July 19, 1993, page one)
(150) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 pages 70-71.
(151) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 71.
(152) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992 page 72.
(153) Blackstone, Commentaries, cited in Kates, "The Second Amendment," Michigan Law Review, page 235.
(154) 1987 Information Please Almanac
(155) "1981 Murders per 100,000 in Industrialized Western Nations." Sources: The Economist Book of Vital World Statistics (1990); New Book of World Rankings U. S. 1988 statistics from 1990 World Almanac and Book of Facts, drawing ultimately on FBI statistics. District of Columbia 59.8* (70% Black, 27% White) Atlanta (Highest overall crime rate in America) 51.6
(67% Black, 32% White) Oakland (called "the Murder Capital") 31.3
(45% Black, 37% White, 9% Hispanic, 8% Asian) § New York City 25.7
(56% White, 23% Black, 18% Hispanic) Chicago 22
(48% White, 38% Black, 14% Hispanic) Los Angeles 21.9
(55% White, 15% Black, 24% Hispanic, 6% Asian) Boston 16
(69% White, 22% Black, 6% Hispanic, 2% Asian) San Francisco 12.5
(56% White, 12% Black, 12% Hispanic, 21% Asian) San Jose (ranked fiftieth out of fifty American cities in overall crime) 5.1
(68% White, 20% Hispanic, 8% Asian, 4% Black) * The murder rate of Washington, D.C. is higher than any nation reporting in 1985 to UNESCO. The nearest was the Philippines, with 38.7. Lesotho reported 36.4, but they have a civil war going on. The murder rate of New York State, less New York City, is 3.4 per hundred thousand. Source: Brandon S. Centerwall, "Homicide and the Prevalence of Handguns: Canada and the United States," American Journal of Epidemiology 134 (December 1991) pages 1247-51. § People reporting themselves as Hispanic may be of any race. Source, U. S. Bureau of the Census.
(99.96% White, 0.3% Black) South Dakota 3.1
(93% White, 0.31% Black) Wisconsin 3.0
(95% White, 4% Black) Minnesota 2.9
(97% White, 1.28% Black) Utah 2.8
(95% White, 0.66% Black) Montana 2.6
(94% White, 0.2% Black) Wyoming 2.5
(95% White, 0.7% Black) New Hampshire 2.3
(99% White, 0.5% Black) Canada: 2.2
(97% White) Vermont 2.0
(99% White, 0.2% Black) North Dakota 1.8
(96% White, 0.4% Black) Iowa 1.7
(97.5% White, 1.45% Black)
(156) Canada's population density is 6.5 per square mile; per capita income is $18,000; population is 44.6% British Isles, 28.7% French, 23% other European and 2.5% indigenous Indian or Eskimo. The Black population is inconsequential. The largest cities account for a substantial percentage of the 27 million population: Ottawa, 800,000; Toronto, 3.5 million; Montreal, 3 million; Vancouver, 1.5 million; Edmonton, 700, 000. Source: The Universal Almanac, 1991, Edited by John W. Wright, Andrews and McMeel. Information Please Almanac, 1987, Houghton Mifflin.
(157) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992, footnote 158. page 153. Note 132: "Seattle whites had a homicide rate of 6.2 per 100,000. Vancouver whites 6.4. Seattle blacks were 36.6, and Seattle Hispanics 26.9. Source, J. H. Sloane, A. L. Kellerman, D. I. Reay, J. A. Fenis, T. Koepsell, F. P. Rivara, C. Rice, L. Gray & J. Logerfo, "Handgun Regulations, Crime, Assaults and Homicide: A Tale of Two Cities," New England Journal of Medicine, no. 319 (November 10, 1988): 1256-62.
(158) Paul Blackman, Firearms and Violence, 1983/84 (Washington, D.C.: NRA/ILA, July, 1985) pp. 20-21. Cited in David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992, footnote 158.
(159) Robert J. Mundt, "The Effect of National Differences in Political Structures and Culture on Urban Violent Crime in Canada and the United States," paper presented at the 1990 meeting of the Urban Affairs Commission, Charlotte, North Carolina, April 20, 1990. Cited in David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992, footnote 159.
(160) David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992, page 159.
(161) The Canadian anti-pornography movement's legal crusade, spearheaded by Calgary professor of law Kathleen Mahoney, persuaded the Canadian Supreme Court to uphold legislation based on work by American anti-pornography crusaders Andrea Dworkin and Catherine MacKinnon. "Pornography," Mahoney maintained, is "an instrument of subordination and discrimination." Therefore, Canadian law judges pornography not by its moral content but by whether or not its depiction of women is "degrading and dehumanizing." Proponents of these opinions perceive the American Civil Liberties Union as their sworn enemy. (Source of quotes, "Hatefest," Ted C. Fishman, Playboy, August 1993) Further information on both Canadian and copy-cat American censorship can be gotten from Toshiba Kuwabara of Censorstop, Glad Day Bookshop, Toronto, Canada.
"Feminists have long debated whether women's interests can ever be promoted through government regulation of sexually explicit expression. Over the past year, we've had a chance to find out, courtesy of the Canadian Supreme Court, which ruled in February 1992 that words and images that 'degrade' women are 'harmful' to them and should be outlawed.
The ruling, in Butler v. Her Majesty the Queen, was based largely on the theories of the University of Michigan law professor Catharine MacKinnon and her associate Andrea Dworkin, who have been crusading for similar measures in the United States and other countries. So it should be of more than passing interest that the Canadian ruling has produced an explosion of censorship, and that women-no surprise!-are suffering serious consequences.
Soon after the ruling, a bookstore was fined for selling Bad Attitudes, a lesbian magazine. The 'harm' standard has been used to seize lesbian, gay and feminists material, according to Feminist Bookstore News, which adds, 'These actions underscore fears that the enforcement branches of government will always direct these laws against feminist erotica and gay expression.'
most feminists know that campaigns to suppress sexual expression have often been used to control women's sexual expression: to limit access to information about reproduction, sexual attitudes and practices, art, or education. Among Canadian artists, writers, readers activists and scholars, there is widespread anger at Ms. MacKinnon, Ms. Dworkin and their followers. At a recent symposium in Toronto, a lesbian speaker noted that Ms. MacKinnon and the Canadian high court had both used the terms 'degrading and dehumanizing.' 'You handed them the language they had been looking for,' she said, 'and now they are busting our bookstores.'
Since the Butler decision, the incessant customs seizures have netted novels by noted authors like David Leavitt and Kathy Acker, and 1,500 copies of 'Black Looks: Race and Representation,' by the black feminist scholar Bell Hooks-the last on suspicion that it contains 'hate speech.' There were even seizures of two of Ms. Dworkin's books on why pornography should be banned.. (After much uproar and media coverage, the authorities released these books.)
'The Butler decision belongs to the right,' said the Canadian sociologist Thelma McCormack. 'The Supreme Court of Canada doesn't give a damn about gender equality. It is concerned about control, and was pleased to have a feminist gloss on it.'
Here in the U. S., the censorship campaigners continue to press for legislation that would equate exposure to sexually related expression with 'harm' to women-even though the Supreme Court found such a law unconstitutional in an Indianapolis case in 1986. Measures inspired by Ms. MacKinnon and Ms. Dworkin to permit lawsuits against the broadest range of sexually related expression have been considered or passed in Suffolk County, N. Y., Madison, Wis., Cambridge, Mass., Bellingham, Wash., Minneapolis, Indianapolis, Los Angeles County and, in 1992, the Massachusetts Legislature. In some areas, most of its support came from conservatives who oppose every effort to improve women's status.
To some, the Canadian standard would seem to help women. But what is to be considered 'degrading'? Too often, the decision makers are those who believe that women are degraded by sex itself and all its representations. It's no wonder that many feminists are organizing to dispel the myth that women can benefit from censorship. As Lenore Teifer, a psychologist who is a member of the National Coalition Against Censorship's Working Group on Women, Censorship and 'Pornography,' recently said: 'The Canadian situation has made it unambiguous that the sex wars have entered a new phase. There's nothing like a little taste of state repression to put one back in touch with reality.' " (Leanne Katz, "Censors' Helpers," New York Times, Saturday September 4, 1993, page Y 15)
(162) The subject of cooperation can be discussed in terms of a simple game, "Prisoner's Dilemma." Prisoner's Dilemma is the most famous example of the Theory of Games developed by mathematician John von Neumann and economist Oskar Morgenstern, both of Princeton University. Their collaboration led to the highly influential treatise Theory of Games and Economic Behavior (1944).
Prisoner's Dilemma was formulated in 1950 by Melvin Dresher and Merril Flood of the RAND Corporation, and Albert W. Tucker wrote the first article on it. The game originates with a trading problem: assume that two traders must trade by leaving a bag of goods in a remote place and getting a bag of goods left by the other in another remote place. The alternatives are either to cooperate or defect. If both leave full bags, both will be satisfied. If one cooperates and the other defects, the defector has gotten something for nothing. Since this is the most satisfactory to the defector, and both parties know it, both will be tempted to leave empty bags.
Prisoner's Dilemma starts with the following scenario: Two people, suspected of being partners in a crime, are arrested and placed in separate cells so that they cannot communicate with each other. Although they are in fact guilty, without a confession from at least one suspect, the district attorney does not have sufficient evidence to convict them of the crime.
In an attempt to extract a confession, the D.A. explains to each suspect the following consequences of their joint actions. If one suspect confesses and the other does not, the one who confesses can go free for cooperating with the state, but the other gets a 10-year sentence. If both suspects confess, they get reduced sentences of five years. If both remain silent, each goes to prison for one year on a lesser charge.
The possible results are: compromise (both remain silent and get the lightest sentence); one or the other goes free and his accomplice gets the maximum sentence (one confesses and the other remains silent) or equilibrium (both confess and get the medium sentence).
The question is: Does logic prevent cooperation?
For more information on Prisoner's Dilemma and its social ramifications, see "The Prisoner's Dilemma and the Evolution of Cooperation" by Douglas R. Hofstadter, in his book Metamagical Themas, Basic Books, Inc., 1985, and also a brief article "Never Give a Sucker an Even Break," in the October, 1993 edition, page 22, which discusses two ways of playing the game. See also Robert Axelrod, The Evolution of Cooperation, Basic Books, 1984, and "Theory of Moves" by Steven J. Brams, American Scientist, Volume 81, November-December 1993, pages 562-570 discussing his book Theory of Moves, Cambridge University Press, 1994.
(163) See Appendix.
(164) Sam Roberts, "At Police Funerals, a Blend of Sorrow, Symbolism and Politics," New York Times, March 20, 1994.
(165) Complexity, M. Mitchell Waldrop, page 334.
(166) Founded in Cleveland, Ohio, in 1874. The first American temperance society was formed in 1808 at Sarotoga in the State of New York, and in 1813 the Massachusetts Society for the Suppression of Intemperance made its appearance. The parallel between the temperance movement and the anti-gun movement is striking. The interested reader will be amply rewarded by the articles in the 11th Edition of the Encyclopaedia Brittanica (1910) on "Temperance," and "Liquor Laws."
(167) A textbook example exists in the town of Cornwall, Ontario, Canada. Canadian taxes on cigarettes are five times greater than taxes on American cigarettes, creating a situation in which a carton of cigarettes costs $15 to $20 on one side of the border and $45 on the other side. According to the estimate of the Ontario Flue-Cured Tobacco Growers' Marketing Board, one in four packs of cigarettes sold in Canada is contraband. Ontario loses between $150 to $250 million per year in taxes. Furthermore, the incidence of violent crime is rising-so much so that the mayor wears a bulletproof vest and travels in a police cruiser equipped with a 12-gauge riot gun; shootings and bombings are a commonplace and gang warfare threatens to make peaceful Canada look more like New York or Chicago. The situation is reminiscent of Prohibition, but in reverse. In the 1920s, mobsters transported liquor into the U.S. from Canada. Now, they import cigarettes into Canada from the United States. (NYT 1.1.94)
If the taxes were made reasonable, people would pay them. This would have two salutary results: first, the government would make, not lose money. Second, a vector of crime would disappear.
(168) For a discussion of the role of psychoactive drugs in our society, and a call to review and reassess our prevalent thoughts, customs and laws concerning drugs, I direct the interested reader to Food of the Gods: The Search for the Original Tree of Knowledge, by Terence McKenna, Bantam Books, 1992.
Apparently the Surgeon General of the United States agrees. On December 7, 1993, Joycelyn Elders, suggested that legalizing drugs might reduce violent crime. As reported in the December 8, 1993 New York Times (page A11) Dr. Elders said before the National Press Club in a speech about violence on the streets and in the home, "I do feel that we would markedly reduce our crime rate if drugs were legalized, but I don't know all the ramifications of this. I do feel that we need to do some studies. And some of the countries that have legalized drugs and made it legal, they certainly have shown that there has been a reduction in their crime rate and there has been no increase in their drug use."
Asked by reporters whether she had entered into a subject too sensitive to discuss, Dr. Elders added, "There are a lot of things that are sensitive subjects, and just because they are sensitive subjects does not mean that we should ignore them when they are destroying the very fabric of our country."
The White House moved swiftly to dissociate itself from Dr. Elder's remarks. "The President is firmly against legalizing drugs, and he is not inclined in this case to even study the issue," said White House spokeswoman Dee Dee Myers.
(169)Source: Kates, Guns, Murders & the Constitution, 22.
(170) See R. Markman & D. Bosco, Alone with the Devil, 342ff, 1981. See also Jameson, "Parent-Child Suicides Frequent in Japan," March 26, 1981, Hartford Courant. (Source of references: Kates, Guns, Murders & the Constitution, 36.)
(171) Source: Kates, Guns Murder and the Constitution, page 42. His tables are based on Killias, "Gun Ownership and Violent Crime: The Swiss Experience in International Perspective," a paper presented at the 1989 Annual Meeting of the American Society of Criminology. Also on the United Nations Demographic Yearbook, 1987.
(172) Bureau of Justice Statistics Special Report, International Crime rates, Carol B. Kalish, pages 1-12. U. S. Department of Justice, Bureau of Justice Statistics. 1988.
(173) The Economist Book of World Statistics, Times Books, 1990, page 246.
(174) For a discussion of this subject see the June, 1993 Scientific American article "The Economics of Life and Death," by Amartya Sen.
(175) The suicide rate-a reliable indicator of how people are feeling about themselves-was highest between 1930 and 1940, remaining relatively stable throughout the rest of the century. According to Alan Ross, executive director of the Samaritans-a 24-hour suicide line-"five million living Americans have attempted suicide." With an estimated 50,000 young people attempting suicide each year, and a good two-thirds of them succeeding, it is a greater cause of death than criminal homicide. "It is eighth on the list, behind vehicular killings but ahead of AIDS deaths, with a steady rate of about 33,000 suicides a year nationally. . . . The few specialists dedicated to dissuading suicide-minded people estimate that there are many thousands more who kill themselves and go unnoted in the statistics, masked by physicians and others concerned with family scandal." (Source:" Talking About the Secret of Suicide," by Francis X. Clines, New York Times, August 22, 1993)
(176) It seems to me that if somebody wants to do the Dutch act, to take a dive, to commit the old Felo de Se, it should be nobody's business but his own. I would prefer that he not leave a nasty mess for somebody else to clean up, but as to the act itself, I really do not see that it is any business of the State.
(177) In support of my thesis that guns, per se, have nothing to do with the rate of homicide, Switzerland not only does not have the welter of gun control laws we find in the United States, but every able-bodied male over the age of 21 is required by law to have, in his house, an assault weapon such as those that are the object of much regulation and prohibition in the United States.
New York City, Boston, Massachusetts and Washington, D.C. are distinguished by two things: they all have strict handgun control, and they all have an out-of-control murder rate.
It is certainly the case that even though these places have lavish gun control (except for the wealthy and politically powerful, who have all the guns they want. The only permit to carry a concealed handgun issued in San Francisco in 1980 was to handgun-control advocate Dianne Feinstein. See Don B. Kates, Jr. "Hypocrisy and Handguns," Christian Science Monitor, Monday July 11, 1988, page 14), the barrier to imported guns is highly permeable.
As Lenin said in his pamphlet, Left-Wing Communism, an Infantile Disorder, "Comrades, you cannot have socialism in one country." In order for gun control to work, it has to be applied equally, everywhere. Not bloody likely.
(178) Source: New York Times, July 31, 1993, page 15. "Get the Facts on Gun Deaths," Osha Gray Davidson.
(179) Not surprisingly, the most disadvantaged segment of the population is responsible for a grossly disproportionate share of crime. In 1980 the racial distribution of the United States was 83% White, 11.7% Black and 5.2% other races. In 1984 people whose incomes were below the poverty level were 11.5% of the White population, 33.8% of the Black population and 28.4% of the Hispanic population; 17.2% of the White population under 15 years of age, 48.5% of Black people under the age of 15 and 39.9% of the Hispanic population under 15 were below the poverty level. In 1985, 7,817 White people were arrested for murder (50% of all arrests); Black, 7,562 arrests (48%); other races, 233 arrests (.01%). Forcible rape: White, 16,470 arrests (52%); Black, 14,669 arrests (46%); other races, 414 arrests (.01%). Robbery: White, 44.824 arrests (37%); Black, 73,946 arrests (61%); other 1,164 arrests (.009%). Aggravated assault: White, 152,189 arrests (58%); Black, 105,902 arrests (40%); other, 4,137 arrests (.015%). Burglary: White, 265,135 arrests (70%); Black, 110,104 arrests (29%); other, 5,340 arrests (.014%). Larceny & theft: White, 790,882 arrests (67%); Black, 360,098 arrests (31%); other, 25,996 arrests (.022%). Motor vehicle theft: White, 75,596 arrests (66%); Black, 37,239 arrests (32%); other, 2,097 arrests (.018%). Arson: White, 12,645 arrests (76%); Black, 3,806 arrests (23%); other, 259 arrests (.015%).
Total of arrests for serious crimes in 1985: White, 64%; Black, 34%; other, 2%.
Source: 1987 Information Please Almanac. The source from which the information is ultimately derived is the FBI's Uniform Crime Reports for the United States, 1986.
Other factors may enter into these arrest figures, such as a disproportionate number of arrests of minority citizens as a result of racial prejudice.
(180) Koppel, 46
(181) England and Japan are generally cited as outstanding examples of successful gun control legislation. There are, however, significant judicial and cultural differences between England, Japan and the United States. In England, some 81 percent of all violent crimes were solved in 1981; in Japan the rate was 90 percent. The United States rate was 45 percent. English and Japanese murder each other at a reduced rate because they also attack each other at a reduced rate, not because the means of attack are less lethal. In 1975 England had 1,141 assaults-America had 484,710. The 1981 Japanese assault rate is one-ninth that of America, but their murder rate is only one-fifth ours. Hence, when an assault does occur in Japan, it is twice as likely as an American assault to result in a killing. Source: David T. Hardy, "Gun Control: Arm Yourself with Evidence," Reason, November 1982.
(182) Professor Hans Toch of the School of Criminology at the State University of New York (Albany), has entirely reversed his anti-handgun stance. "In 1971 I served as consultant to the National Commission on the Causes and Prevention of Violence [the Eisenhower Commission]." Toch participated and endorsed the final conclusion "that the heart of any effective national firearms policy for the United States must be to reduce the availability of the [handgun, the] firearm that contributes most to violence. . . . [R]educing the availability of the handgun will reduce firearms violence." But, Toch continues, later research has not confirmed, but rather progressively has undermined the pro-gun-control position. Though violence is primarily a male phenomenon, ". . . rates of male firearms ownership tend to be inversely correlated with violent crime rates, a curious fact if firearms stimulate aggression. It is hard to explain that where firearms are most dense violent crime is lowest, and where guns are least dense, violent crime rates are highest."
Toch notes a contrasting pattern in women's gun ownership: Because few women are active in firearms sports, female gun ownership is low where crime rates are low, but high where there is high crime. "This does not imply that urban women are responsible for the crime rate," writes Professor Toch, rather "it demonstrates that when violent crimes are high, women arm themselves for protection." Toch believes that armed self-defense works. "When used for protection, firearms can seriously inhibit aggression and can provide a psychological buffer against the fear of crime. Furthermore, the fact that national patterns show little violent crime where guns are most dense implies that guns do not elicit aggression in any meaningful way. Quite the contrary, these findings show that high saturation of guns in places, or something correlated with that condition, inhibit illegal aggression."
I refer the interested reader to Eisenhower Commission staffer Ted Gurr and the work Violence in America, 1989; UCLA historian Robert McGrath's study of 19th century historical evidence; Professor Gary Kleck of Florida State University's School of Criminology and his book Point Blank: Guns and Violence in America, 1991; and James Wright & Peter Rossi's review Under the Gun: Weapons, Crime and Violence in America, Aldine de Gruyter Press, 1983. (See Don B. Kates, Jr. "Gun Rights" column in Handguns, March, 1993)
(183) David T. Hardy, "Gun Control: Arm Yourself with Evidence," Reason, November 1982.
(184) See Hardy, above.
(185) I direct the interested reader to Noel Perrin's book on the subject, Giving Up the Gun: Japan's Reversion to the Sword, 1543 - 1879, David R. Godine, Boston, 1979
(186) It has been estimated that the total of military and civilian casualties in all of Europe's domestic and international conflicts in the 100 years between 1815 and 1915 was no greater than a single day's combat losses in any of the great battles of 1916. Coming after Gallapoli and Mesopotamia, and such gory episodes as the 142,000 British casualties suffered in just four days of fighting at Arras in France, the terrible Somme offensive of July of 1916 aroused a climax of despair. On 1 July the British lost 60,000 men, the heaviest casualties ever suffered in a single day by the British army. By the time the offensive was over, British casualties had mounted to 420,000.-David Fromkin, A Peace to End All Peace, Avon Books, 1989, pp. 232-233
(187) Translated by R. M. Gummere, J. W. Basore, W. H. D. Rouse, and F. J. Miller (Loeb Classical Library).
(187) Oakland Tribune, December 19, 1990
(188) For an analysis of the motivations underlying Prohibition, see J. Husfield, Prohibition: A Symbolic Crusade. (Source of reference, Kates, "Guns, Murders and the Constitution," page 10)
(189) For an analysis of drug addiction as a medical rather than a criminal issue, and the alternative of drug decriminalization, see "Drug Prohibition in the United States: Costs, Consequences, and Alternatives," by Ethan A. Nadelmann, Science, Volume 245, September 1, 1989, pages 939-946. See also "Give Research a Push on Reversing Addiction," by Stanley G. Korenman, MD, Los Angeles Times, Thursday September 7, 1989.
For a discussion of the failure of the "war on drugs," and the proposal that a program called "harm reduction" be instituted in its stead, see the July, 1993 Scientific American article, "A Kinder War," by John Horgan, pages 24 and 25. The article quotes Arnold S. Trebach, a professor of criminal justice at American University and president of the Drug Policy Foundation in Washington, D. C., who says, "Change is in the air . . . the essence is the acceptance of the enduring reality of drug use, the absurdity of even attempting to create a drug-free society and the need to treat drug users as basically decent human beings." The goal, as Ethan A. Nadleman, a public policy scholar at Princeton University says, is to devise a "drug regulatory model that eliminates many of the worst consequences of drug prohibition without reproducing the unfortunate consequences of our alcohol- and tobacco-control policies."
(190) New York Times, July 19, 1993, "Publisher Complains Of Biased Bookstores," by Richard Bernstein, page B2
(191) "Drug offenders account for roughly a third of the U. S. prison population, which reached an all-time high of 883,593 at the end of 1992." (July, 1993 Scientific American article, "A Kinder War," by John Horgan, page 24)
(192) Constitutions and Constitutionalism, Edited by William G. Andrews, D. Van Nostrand, 1961, pages 9 - 12.
(193) I'll grant that this is a broad overstatement made for rhetorical purposes. Many ACLU members support the Second Amendment, and many NRA members support a woman's right to abortion. However, this is not typical behavior by members of either group, though I look forward to a time when it is.
(194) During China's Cultural Revolution, fanatical members of the Red Guard attacked, arrested, imprisoned, tortured and killed an estimated five percent of the population. In the main, these were managers, artists, professionals, teachers and scientists. That is to say, exactly the element of society that in the United States would be the liberals, those most in favor of all civil liberties except the right to keep and bear arms.
(195) In the process of finding an editor for this paper, I unintentionally set out on a miniature sociological survey. I ran into the brick wall of liberal intolerance. Mostly, I got the warm, welcoming response that you would expect if you were to ask someone to hold your pet tarantula for a moment. They would not read it, they would not discuss it. They did not want to be persuaded. I've learned a lot from doing this.
(196) Personal communication from Rita Buland, Public Education, American Civil Liberties Union, June 8, 1993.
(197) John R. Salter and Don B. Kates, The Necessity of Access to Firearms by Dissenters Whom Government is Unwilling or Unable to Protect, in Don B. Kates, ed., Restraining Handguns: The Liberal Skeptics Speak Out 185 (North River Press, 1979)
(198) On June 22, 1964, three civil rights workers, Michael Schwerner, Andrew Goodman and James Chaney were arrested by Deputy Sheriff Cecil Price in Neshoba County, Mississippi, held in jail until after dark and then turned over by Price to the Ku Klux Klan. On August 4, six weeks later, the FBI found their bodies buried in an earth-fill dam near Philadelphia, Mississippi. On October 20, twenty-one white men were arrested and convicted by an all-White federal jury of conspiracy in the slayings.
(199) The October 11, 1993 New York Times reports that the Bureau of the Census will no longer count the number of Americans who live on farms. In 1991, their number had dropped to 4.6 million, just under 2 percent of the population. In our nation's infancy, most Americans were farmers. Though by 1900 the shift from farm to city was obvious, the absolute number of resident farmers peaked in the decade between 1910 and 1920 at about 32 million, when about one in three Americans lived on farms. As late as 1950, there were still 23 million Americans living on farms, but by 1991, 32 percent of all farm managers did not live on the land they were farming, and 86 percent of farm workers lived elsewhere as well.
(200) Footnote 90 in "The Second Amendment" by Don B. Kates, Jr., Michigan Law Review, Volume 82 Number 2, November 1983.
(201) Entry "Pacifism," Benét's Reader's Encyclopedia, Third Edition, Harper and Row, 1987, page 729.
(202) Dilip Hiro, entry "Mahatma Gandhi," in the Dictionary of Modern Culture, edited by Justin Wintle, Arc Paperbacks, 1984.
(203) The word came into common English usage in 1847.
(204) In response to pressure from English anti-vivisectionists, an act relating to experimentation on animals was passed in 1876.
(205) The Fabian Society was founded in England in 1884, and centered upon a belief in slow orderly social change as contrasted to violent revolutionary change. One interesting manifestation of its principles is what I would characterize as sympathetic magic; that is, that by aping the thing desired the thing desired will come into being. Sort of a Victorian Cargo Cult that believed that lace curtains in the window attracted bourgeois virtue to the soul and silver to the pocket.
(206) Entry "George Bernard Shaw," by Michael Holroyd in the Dictionary of Modern Culture, edited by Justin Wintle, Ark, 1984.
(207) In response to Bertrand Russell's request for a symbol for the Campaign for Nuclear Disarmament (CND), on February 21, 1958, the British graphic designer Gerald Holtom incorporated the wigwag signals for "N" and "D" into a circle, thus creating the peace symbol.
(208) Entry "Bertrand Russell," by Dr. J. E. Tiles in the Dictionary of Modern Culture, edited by Justin Wintle, Ark, 1984.
(209) On September 25, 1962, because of his race, James Meredith was denied admission to the University of Mississippi by Governor Ross Barnett. A U. S. Court of Appeals found Barnett guilty of civil contempt and threatened him with arrest and fines. United States Marshalls and 3,000 soldiers suppressed riots when Meredith arrived on campus to begin classes.
(210) See Brent Staples, "The Rhetoric of Victimhood," New York Times, February 13, 1994 in which he discusses the Menendez case in light of the philosopher Albert Borgman's recent book, Crossing the Postmodern Divide. Lyle and Erik Menendez killed their parents, Jose and Kitty, with a shotgun as they watched television. The two boys then went on a shopping spree with their dead parents' money, buying $700,000 in automobiles, jewelry and clothing and putting a million dollars down on a penthouse. When apprehended, they pleaded long years of sexual and emotional abuse. Both trials ended in a deadlock, with half the jurors believing that they acted out of fear for their lives.
(211) The song is from the "White Album," 1968.
(212) For a sterling example of this "Weeping Jesus" school of anti-gun journalism, see "Buying Back Guns, One by One," by the Boston Globe's Ellen Goodman, reprinted in the April 20, San Francisco Chronicle (Page A-17), in which she maunders on and tosses off the entirely false statistic that "there were 24,000 pistol murders in 1991 alone." Unless things have changed a whole hell of a lot since I last looked, there were actually 21,505 American homicides from all causes in 1991, of which 14,265 were committed by firearms of all types. When shotguns, rifles and machine guns have been deducted, we are left with about 12,000 homicides committed with handguns. This is 50% of Ms. Goodman's cited number. Where are the facts checkers of yesteryear?
In a similar vein, the June 6, 1993 San Francisco Chronicle published an editorial in which they reported, "More than 138,000 men, women and children have been killed by handguns in the six years since the introduction of the federal Brady bill, which would require handgun buyers to wait five days during mandatory background checks." This is astonishingly irresponsible reporting. According to the FBI's Uniform Crime Reports, murders committed with handguns were: 1984: 7,557 out of a total of 17,280 1985: 7,548 out of a total of 17,545 1986: 8,460 out of a total of 19,257 1987: 7,847 out of a total of 17,963 1988: 8,147 out of a total of 17,971 1989: 9,103 out of a total of 18,954 1990: 10,847 out of a total of 20,045
(213) This would be a great place to launch into a diatribe about the treatment of the Branch Davidian sect by the federal government. Under the shadow of legality, little of which holds up to scrutiny, on February 28, 1993, a small crackpot religious community was invaded, harassed, held under siege and 51 days later burned to the ground together with 72 of its members, many of them small children. But, I will refrain. However-and I don't want to sound peevish-we really must abolish the Bureau of Alcohol, Tobacco and Firearms (BATF). Talk about your shadow government.
In the same vein, the Federal Bureau of Investigation enticed and entrapped Randy Weaver into selling two shotguns to agents, specifying that he must first saw off the barrels, making them illegal. With this as an excuse, Weaver was arrested on firearms charges. He was given the wrong trial date, and when he failed to appear he was deemed a fugitive. "Officials from three agencies then spent close to $1 million over 16 months stalking Mr. Weaver. Finally a family dog surprised agents lurking in the woods near his cabin. An agent shot the dog. Mr. Weaver's 14-year-old son and a family friend, Kevin Harris, fired on them. A Federal marshal was killed and Weavers son was shot in the back. In the ensuing standoff, in which no one inside the family's house fired a shot, the F.B.I suspended its usual rules of engagement, and an F.B.I sharpshooter shot Mr. Weaver's wife as she held their 10-month-old baby. Last week Mr. Weaver and Mr. Harris were acquitted of murder in the death of the marshal. During the trial the F.B.I., the lead agency, admitted that it had tampered with evidence." (New York Times, July 12, 1993). Though there is no indication that Weaver did anything illegal until federal agents asked him to, the FBI indicated that it was concerned with illegal weapons, not with his political beliefs. Shortly after Weaver and Harris were found not guilty, the FBI's director, William Sessions, came out publicly in favor of gun control. We must question the motives of our Federal police force when it oversteps its proper bounds and makes pronouncements on matters of civil liberty, openly expressing the notion that disarming the citizenry is a good idea. The police, whatever else they may be, are scarcely the ideal guardians of our civil rights.
(214) Leonard W. Levy, Freedom of the Press from Zenger to Jefferson, The Bobbs-Merrill Company, Inc., New York, 1966, page xxix.
(215) Griswold, June 7, 1965.
(216) J. Trenchard and W. Moyle, An Argument Showing That a Standing Army Is Inconsistent with a Free Government and Absolutely Destructive to the Constitution of the English Monarchy, (London, 1677. Quoted in David B. Kopel, The Samurai, The Mountie, and the Cowboy, Prometheus, 1992, page 112-113, footnote 58.
(217) On the matter of the ability of the people to enforce their will on their elected representatives, vis-a-vis gun control, see Susan Riggs, "Along with Canadian's Guns will go other freedoms," Los Angeles Times,
(218) A loose translation of Aristophanes (450-385 BC) who says, in his play Plutus (c. 388 BC), "Even if you persuade me, you won't persuade me."
As far as obeying laws with which one does not agree, the similar proverb applies: "He that complies against his will is of his own opinion still."
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