About once a month, Dave Kopel produces a free e-mail Newsletter containing short summaries and links to important new research and writing involving the Second Amendment and firearms policy. The newsletter also reports on Kopel's latest writing.
The content of this newsletter is produced by the Second Amendment Project at the Independence Institute, a think tank in Golden, Colorado. The newsletter is electronically distributed by the Second Amendment Foundation in Bellevue, Washington. Thus, the Second Amendment Foundation will be given your e-mail address.
Archive of past issues.
Second Amendment Project Newsletter, June 30, 2000
The Second Amendment Project is based at the Independence Institute, a free-market think tank in Golden, Colorado.
Independence Day issue.
No issue next week.
1. The Guns of the Revolution. By Dave Kopel.
2. Justice Thomas quotes Joseph Olson & Bruce Kobayashi.
3. California Justice Brown quotes Halbrook, Kates, Kopel, Olson,
Kobayashi, and extols guns as tools against genocide.
4. London Daily Telegraph says defensive guns reduce burglary.
5. Links of the week.
1. The Guns of the Revolution. By Dave Kopel
Forthcoming on the National Review Online website,
for the weekend of July 1-2.
Shortly after the Constitution was sent to the people for ratification, anti-federalists warned that the Constitution would make the federal government too strong in relation to the people. Not so, replied the Federalists. Tench Coxe-an ally of James Madison and Alexander Hamilton, who would later serve in the Washington, Adams, Jefferson, and Madison administrations-explained:
"The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or [federal] constitution hath given away that important right. . . . [T]he unlimited power of the sword is not in the hands of either the foederal or state governments, but where I trust in God it will ever remain, in the hands of the people."
[A Pennsylvanian, To The People of the United States, Philadelphia Gazette, Feb. 20, 1788.]
What were those weapons, so recently used in the American Revolution, which Coxe and rest considered "the birthright of an American"?
At the start of the war, the most common musket, in both Patriot and Redcoat hands, was the Brown Bess, an iron-barreled musket which fired a .75 caliber ball.The "Brown" part of the name may have come from the walnut stock, or from the barrel's color, once it had been rust-proofed. "Bess" was probably chosen because it sounded good with "Brown," and because fighting men have often given their weapons female nicknames. (Note: this is not the same as calling your mother-in-law "that old battle-axe.")
When the French intervened on America's side in 1778, they brought their Charleville Muskets-named for the town near Belgium which hosted the Royal Manufactory of Arms. The French model fired a slightly smaller ball: .70. It was distributed copiously to the Americans, and later became the pattern for the federal army's Springfield Musket of 1795.
Muskets took a while to reload, so army formations typically deployed musket-men in two or three lines. The first line would fire in unison, then drop to their knees to reload, while the lines behind them fired.
Muskets were not accurate, and musketmen were not even expected to aim at particular targets. Rather, the objective was to deliver a mass of musketballs into the enemy line. The muskets were an ideal weapon for the kind of fighting man that the British used.
Life in any European standing army was brutal.Soldiers were drilled and disciplined until they could no longer think.They were expected to obey unquestioningly, and to move in precise lock-step formations.Only people who had no other choice joined the army, and the army was composed of "the dregs of society" rounded up from gin mills and gaols. The British troops were drilled and drilled until they could perform coolly and automatically in the heat of combat, and did not question whether orders made sense. Several volleys of disciplined musket fire, followed by a screaming bayonet charge (the Brown Bess had a 17 inch bayonet), was often sufficient to carry the day for the British-as at Lexington, Manhattan or Camden.
Muskets (like today's shotguns) have smooth barrels. In contrast, rifles have twisting grooves in the barrel, which give the bullet its spin. This stabilizing spin helps the rifle bullet travel much further, and more accurately, than does the musket ball. It was the rifle-which utilized the American virtue of individual initiative, which would become the quintessentially American weapon of the Revolution.
America's first great rifle-makers were Germans who settled in Pennsylvania (the "Pennsylvania Dutch").Around 1720, the Germans began adapting their German rifle designs to American conditions, by lengthening the barrel to 40-45 inches (producing longer-range accuracy), and using maplewood stocks. The typical caliber was .60.
Like the muskets, all these rifles were flintlocks, meaning that the gunpowder was ignited by a spark from metal striking flint. All of the guns used loose gunpowder made from salt-peter ("blackpowder"); modern smokeless powder did not come until the latter part of the nineteenth century.
During the Revolution, there was neither the time nor the inclination to decorate the rifles with the kind of engraving that was often seen on later versions, including today's replicas.
The Pennsylvania Rifle had a shattering effect against British Redcoats.The British musketeers could fire and reload three times as fast as the American rifleman, and knew how to march in disciplined linear formations in open terrain. Although there were plenty of open-terrain battles during the war, there were also plenty of guerilla actions, in which Patriots hid behind rocks and trees and sniped at small enemy patrols.
While muskets were easy to use, the Pennsylvania rifle was effective only in the handsof a skilled marksman, who could hit a target the size of a man's head from 200 yards away. A lucky shot could travel 400 yards. Whether in open combat or in a guerilla context, the American riflemen specialized in sniping at the British officers, causing them considerable apprehension, and distracting them from command.
Some of the gunmakers of the Pennsylvania Rifles eventually moved to Ohio, Tennessee, and other parts. After the rifles figured prominently in the great American victory at the 1815 Battle of New Orleans, at the end of the War of 1812, the rifles became universally known as "Kentucky Rifles," since the popular song celebrating the great battle was "The Hunters of Kentucky." ("For Jackson he was wide-awake, and not afraid of trifles. Full well he knew the aim we'd take with our Kentucky Rifles.")
The superior range of the Pennsylvania Rifle had allowed the Americans to engage the Redcoats beyond musket range during the first part of the War. But at the battle of Brandywine on September 11, 1777, the British deployed a special 100 man company firing a new rifle invented by Scotsman Andrew Ferguson. The innovative breech-loading design (as opposed to muzzle-loading, in which the gun is loaded by ramming the bullet down the muzzle, and through the full length of the barrel) allowed the Ferguson rifles to fire 4-5 shots per minute, and the gun could even be reloaded while a soldier marched towards the enemy.
Although the British won at Brandywine, and captured Philadelphia as a result, Ferguson was wounded, and the British Army foolishly lost interest in rifles for the rest of the war. Not until 1819 would a nation adopt a breechloader as its standard military weapon, when the United States selected the Hall Carbine.
While some people believe that handguns did not exist when the Patriots were fighting for their right to arms, handguns were actually hundreds of years old by then. Handguns had grown common enough in the early sixteenth century so that proposed legislation as early as 1518 (by the Holy Roman Emperor Maximilian) addressed them. By the latter part of the 1500s, handguns were standard cavalry weapons. When the Second Amendment was ratified in 1791, state militia laws requiring most men to supply their own firearms required officers to supply their own pistols.
The Revolutionary handguns were mostly very large .50 caliber single-shot pistols, often built by the same gunsmiths who made the Pennsylvania Rifles. Colonel Samuel Colt's multiple-shot revolver lay decades in the future-although there were predecessors available, such as "pepperbox," which used revolving barrels, each containing its own bullet.
Today, only two of Ferguson's breechloading rifles are still in existence, and the pepperbox proto-revolvers are found only in museums or the homes of wealthy collectors. But the kinds of muskets and rifles with which the American Revolution was fought are still in common use. Many hobbyists build old-fashioned rifles or muskets from kits, and many othersbuy manufactured blackpowder arms, to take advantage of the special blackpowder-only hunting seasons in many states. Some of these guns incorporate new technology (such as in-line loading), while others are remarkably faithful to the old designs.
Whether you're shooting an old-fashioned replica of a Brown Bess, or high-tech polymer pistol from Glock, you're exercising the freedoms that great Patriots such as "the Swamp Fox" Francis Marion helped win for us two centuries ago. To celebrate Independence Day, why not exercise the right you still have (and which the Redcoats' descendants don't) by taking a niece or a neighbor to a target range, or by buying your first gun, or by sending an extra contribution to one of the groups who are continuing humanity's long-running battle against tyranny and disarmament.
2. Justice Thomas.
From STENBERG v. CARHART, U.S. Supreme Court.
No. 99-830. June 28, 2000.
Dissenting opinion of Justice Thomas, joined by
Chief Justice Rehnquist.
Opinion available at www.findlaw.com
The fact that the statutory term "partial birth abortion" may express a political or moral judgment, whereas "dilation and extraction" does not, is irrelevant. It is certainly true that technical terms are frequently empty of normative content. (Of course, the decision to use a technical term can itself be normative. See ante, passim (majority opinion)). But, so long as statutory terms are adequately defined, there is no requirement that Congress or state legislatures draft statutes using morally agnostic terminology. See, e.g., 18 U. S. C. §922(v) (making it unlawful to "manufacture, transfer, or possess a semiautomatic assault weapon"); Kobayashi & Olson, et al., In Re 101 California Street: A Legal and Economic Analysis of Strict Liability For The Manufacture And Sale Of "Assault Weapons," 8 Stan. L. & Pol'y Rev. 41, 43 (1997) ("Prior to 1989, the term `assault weapon' did not exist in the lexicon of firearms. It is a political term, developed by anti-gun publicists to expand the category of `assault rifles' so as to allow an attack on as many additional firearms as possible on the basis of undefined `evil' appearance"). See also Meese, 481 U. S., at 484-485.
3. Majority of California Supreme Court upholds "assault weapon" ban.
Court majority says:
* the law's illogic is of no concern, because there is no important right involved.
* the legislature may delegate law-making authority (to ban additional guns) to the Attorney General.
* due process does not require that the list of banned guns be published in a statute book or code of regulations.
Concurring opinion by Brown, excerpted below, quotes Halbrook, Olson, Kates, Kopel, argues that the majority is wrong for not treating the right to arms as a fundamental right, and extols arms possession
as a deterrent to genocide.
CONCURRING OPINION BY BROWN, J.
. . .
The dichotomy between the United States Supreme Court's laissez-faire treatment of social and economic rights and its hypervigilance with respect to an expanding array of judicially proclaimed fundamental rights is highly suspect, incoherent, and constitutionally invalid."[T]he outcome in every case turns on how the court chooses to characterize the classification.Suspect classifications, such as those based on race or that impact rights the court deems 'fundamental,' warrant strict (read 'fatal') scrutiny; other classifications warrant rational basis (read 'anything goes') review.(FCC v. Beach Communications, Inc., supra, 508 U.S. 307, 313-316.)As Justice Mosk so aptly put it, '[t]he vice of the binary theory . . . is that it applies either a standard that is virtually always met (the rational relationship test) or one that is almost never satisfied (the strict scrutiny test).[Citation.]Once the test is selected, the result of its application is foreordained . . . .'(Hays v. Wood (1979) 25 Cal.3d 772, 796 (conc. opn. of Mosk, J.).)"(Warden, supra, 21 Cal.4th at pp. 661-662 (dis. opn. of Brown, J.).)Just so, the result here was foreordained once we assumed "the AWCA does not burden a fundamental right under either the federal or state Constitutions, [and therefore,] the rational basis test applies.(See Peoples Rights Organization, Inc. v. City of Columbus (6th Cir. 1998) 152 F.3d 522, 531-533; Coalition of New Jersey Sportsmen, Inc. v. Whitman (D.N.J. 1999) 44 F.Supp.2d 666, 685; California Rifle [& Pistol Assn., Inc. v. City of West Hollywood (1998)] 66 Cal.App.4th 1302, 1329; Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, 1133; In re Evans (1996) 49 Cal.App.4th 1263, 1270.)"(Maj. opn., ante, at p. 6.)
This case, however, illustrates the illusory nature of the distinction between "fundamental rights" and "areas of social and economic policy."Curiously, in the current dialectic, the right to keep and bear arms - a right expressly guaranteed by the Bill of Rights - is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions.(See, e.g., Cruzan v. Director, Mo. Dept. of Health (1990) 497 U.S. 261, 278-279; Zablocki v. Redhail (1978) 434 U.S. 374, 384-387; Moore v. City of East Cleveland (1977) 431 U.S. 494, 499-500.)But surely, the right to preserve one's life is at least as fundamental as the right to preserve one's privacy.
The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense.Blackstone described self-defense as the "primary law of nature," which could not be taken away by the law of society.(2 Jones's Blackstone (1976) p. 4.)"[T]he peaceable part of mankind will be continually overrun by the vile and the abandoned, while they neglect the means of self defense. . . .The supposed quietude of the good man allures the ruffian;. . . (but) arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world. . . .Horrid mischief would ensue were (the good) deprived of the use of [weapons] . . . the weak will become a prey to the strong."(1 Paine, The Writings of Thomas Paine (Conway edit. 1894) p. 56.)Extant political writings of the period repeatedly expressed a dual concern:facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.
After the Civil War a series of enactments, culminating with the Fourteenth Amendment, acknowledged the correlation between self-defense, citizenship, and freedom.Section 14 of the Freedman's Bureau Act, which the 39th Congress passed over the President's veto, provided:"That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion,. . . the right to . . . have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery. . . ."(Freedman's Bureau Act (July 16, 1866) 14 Stat. 176, italics added; see Halbrook, Second Class Citizenship and the Second Amendment in the District of Columbia (1995) 5 Geo. Mason U. Civ. Rts. L.J. 105, 141-150 (Second Class Citizenship).)
Halbrook concludes the Freedman's Bureau Act, the Civil Rights Act of 1866, and the Fourteenth Amendment leave no doubt that " 'the constitutional right to bear arms' is included among the 'laws and proceedings concerning personal liberty, personal security,' and property, and that 'the free enjoyment of such immunities and rights' is to be protected" (Second Class Citizenship, supra,
5 Geo. Mason U. Civ. Rts. L.J. at p. 150) under the Fourteenth Amendment, which would confer citizenship on all persons born in the United States and imbue them with every right of citizenship, including the right to keep and bear arms.(Ibid.)In more recent times, Congress has continued to recognize that the right of law-abiding citizens to keep and bear arms is guaranteed by the Second and the Fourteenth Amendments.(Pub.L. No. 99-308 (May 19, 1986) 100 Stat. 449.)
The judiciary, too, has consistently acknowledged the interplay between express provisions and implicit protections.In Poe v. Ullman (1960) 367 U.S. 497, the seminal case in the Supreme Court's fundamental rights jurisprudence, Justice Harlan, dissenting, argued the Fourteenth Amendment due process clause protects privacy.He claimed the due process clause covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the constitution," including "freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures."(Id. at p. 549 (dis. opn. of Harlan, J.).)The court continues to cite Justice Harlan's enumeration as part of the full scope of liberty guaranteed by the Fourteenth Amendment against state infringement.(Planned Parenthood Southeastern PA v. Casey (1992) 505 U.S. 833, 848-849; Roe v. Wade (1973) 410 U.S. 113, 169 (conc. opn. of Stewart, J.); Griswold v. Connecticut (1965) 381 U.S. 479, 499 (conc. opn. of Goldberg, J.).)
Plaintiffs complain that the ban is irrationally underinclusive.Admittedly, the Legislature's findings and declarations seem internally inconsistent.While declaring that it banned the semiautomatic firearms listed in Penal Code section 12276 because each weapon "has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings," the Legislature goes on to declare that it does not intend "to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities."(Pen. Code, § 12275.5.)Conspicuous by its absence is any finding that the listed weapons differ from those not listed with respect to the salient characteristic, namely, their "rate of fire and capacity for firepower."(Ibid.)
On the other hand, plaintiff's claim that the ban is irrational because it will have no effect on violent crime proves too much.The insistence upon a rational relationship between selected legislative ends and the means chosen to further them cannot be so exacting.To declare murder a crime will not prevent murder.Prohibiting the possession of weapons by convicted felons will not stop criminals from obtaining guns.Assessing ever greater penalties has not eliminated the scourge of drug abuse.Means scrutiny assumes the law will have some effect and compares that effect with the means the Legislature has chosen.
Were courts to overturn every legislative action that is likely to be ineffective, few laws would survive.As in other spheres of human endeavor, legislative action is often fated to be more symbolic than real, and the understandable human desire to do something to address the crisis of the moment, not to mention the political necessity of being seen to be doing something, may be the real object of many legislative exercises.(See Kobayashi & Olson, In re 101 California Street:A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of "Assault Weapons" (1997) 8 Stan. L. & Pol'y Rev. 41, 43.)And, to be fair, the most severe problems confronting us - like the current plague of violence - are quite beyond the capacity of government to cure.As Solzhenitsyn observed half a century ago, "the line separating good and evil passes not through states, nor between classes, nor between political parties either - but right through every human heart - and through all human hearts."(Solzhenitsyn, The Gulag Archipelago (1992) p. 615.)
The issue before us may be among the most troubling and intractable of the last 30 years.Predictably, as cultural disintegration accelerates, the level of lethal violence escalates.Even cynics, quick to accuse elected officials of political posturing and empty symbolism, are stunned by the steadily mounting body count.Like the poet, we are forced to "put [our] eyes on a diet" because our "tears are gaining too much weight."(Kaufman, Golden Sardine (1967) "Heavy Water Blues," p. 60.)It is impossible not to grieve for the thousands of young men cut down in their prime; impossible not to mourn toddlers slaughtered in the midst of innocent play; impossible to ignore the grim reality of school children whose final moments echo with screams of terror and the sudden slap of bullets.And worse even than the slaughter of innocents is the death of innocence.All too often, the killers are children, too.
Some antigun advocates candidly admit they welcome " '[shooting] incidents' " and hope " 'more heinous ones with more tragic or important victims' " will help move public opinion beyond support for narrow controls to the desired goal of complete disarmament.(Kates, Gun Control:Separating Reality From Symbolism (1994) 20 J. Contemp. L. 353, 358, quoting Ross, Book Review (1992) 98 Am. J. Soc. 661.)Amitai Etzioni, as spokesman for the Communitarian Network, dismisses the gun control measures that have been enacted and those currently under discussion as but " 'vanilla-pale' " measures.(Kopel et al., Communitarians, Neorepublicans, and Guns:Assessing the Case for Firearms Prohibitions (1997) 56 Md. L. Rev. 438, 450, quoting Etzioni et al., The Case for Domestic Disarmament (1992) The Communitarian Network < http://www.gwu.edu/~ccps/pop_disarm.html (June 5, 2000).)In Professor Etzioni's view, the only effective measure to end gun violence is domestic disarmament.(Ibid.)He has elsewhere argued that the right of the people to keep and bear arms (if any such right exists) is outweighed by the right of the public to be safe.(Kopel et al., at p. 445, quoting The Communitarian Network, The Responsive Communitarian Platform:Rights and Responsibilities reprinted in Rights and the Common Good:The Communitarian Perspective (Etzioni edit. 1995) 11, 19.)
I suspect the freedmen of the Reconstruction Era would vehemently disagree.So would the Armenians facing the Ottoman Turks in 1915, the embattled Jews of the Warsaw Ghetto in 1943, and the victims of Pol Pot's killing fields.
The media keep the horrific visions of gun violence ever before our eyes.These acts of individual madness are undeniably tragic and totally unacceptable in a civilized society.But there are other horrific visions - the victims of which number in the millions - perpetrated by governments against unarmed populations.
The framers could have had no conception of the massive scale on which government-sanctioned murder would be committed in the twentieth century, but they had a keen appreciation of the peril of being defenseless.That wariness is reflected in the Constitution.Perhaps they would agree with Thomas Paine's practical observation in his article Thoughts on Defensive War (Paine, Thoughts on Defensive War (July 1775) Pennsylvania Magazine < http://www.scican.net/~jsnider/thotsdefwar.html > (as of June 13, 2000)):"I am thus far a Quaker, that I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation:but unless the whole will, the matter ends, and I take up my musket and thank heaven . . . ."
4. London Daily Telegraph, June 29, 2000:
"The main reason for a much lower burglary rate in America is householders' propensity to shoot intruders. They do so without fear of being dragged before courts and jailed for life."
5. Links of the Week.
Second Amendment Law Library.
Not only an excellent collection of law review articles, also now includes a very thorough set of state and federal court cases.
The Gun Zone. Features an essay by Jeffrey Snyder
on the New York City police.
Boulder Council Debates Civil Arms. by Ari Armstrong.
June 27, 2000. Colorado Freedom Report.
A good insight into the ignorance, irrationality, and extremism of the anti-gun movement.
Browse the rest of the CFR for many other fine articles.
We don't need no steenking 2nd Amendment
by John Silveira.
Backwoods Home Magazine.
We must be in the age of the Digital Economy, when Backwoods Home Magazine is available on the Internet!
5th-graders vote for guns in school.
Mock trial's unanimous verdict: Kids safer with armed teachers
David M. Bresnahan
June 28, 2000. WorldNetDaily
Deceit is central to the gun control movement.
Nice citizen website by Bruce Tiemann, of Boulder, Colorado.
Citizens Opposing Racism and Discrimination.
Gun policy page of anti-racist group.
California Gun Bills for 2000
That's all folks!