May 31, 2001, Second Amendment newsletter

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. May 31, 2001.
The Second Amendment Project is based at the Independence Institute, a free-market think tank in Golden, Colorado.

Table of Contents for this issue
1. New Kopel material: The Second Amendment. "Million" Moms.
2. Attorney General Ashcroft's letter on the Second Amendment.
3. Media Show Anti-gun Bias. By Mary Zeiss Stange. USA Today
4. Links on law, politics, much more.

1. Kopel material

a. "The Supreme Court's Thirty-five Other Gun Cases."
Final version. (Previous web version had been a draft)
Part One (most of the text):

Part Two (end of text, first part of footnotes)

Part Three (end of footnotes)

b. Guns in Court. The Miller Case

c. An Army of One. Attorneys General before Ashcroft
who explicitly adhered to the Standard Model of
the Second Amendment.

d. Words of Freedom. The introductory clause of the Second Amendment.

e. Not Quite a Million Moms. Low attendance at the MMM rallies,
and other observations on the politics of the gun and anti-gun
movements – including Fortune Magazine rating the NRA as the
most powerful lobby in Washington.

f. Bigoted Moms Tempered. MMM should stop supporting
violent criminals in its leadership.

2. Attorney General Ashcroft's letter on the Second Amendment.

Office of the Attorney General
Washington, D.C. 20530

May 17, 2001

Mr. James Jay Baker
Executive Director
National Rifle Association
Institute for Legislative Action
11250 Waples Mill Road
Fairfax, VA 22030

Dear Mr. Baker,

Thank you for your letter of April 10, 2001 regarding my views on the Second Amendment. While I cannot comment on any pending litigation, let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.

While some have argued that the Second Amendment guarantees only a "collective" right of the States to maintain militias, I believe the Amendment's plain meaning and original intent prove otherwise. Like the First and Fourth Amendments, the Second Amendment protects the rights of "the people," which the Supreme Court has noted is a term of art that should be interpreted throughout the Bill of Rights. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (plurality opinion). Just as the First and Fourth Amendment secure individual rights of speech and security respectively, the Second Amendment protects an individual right to keep and bear arms. This view of the text comports with the all but unanimous understanding of the Founding Fathers. See, e.g., Federalist No. 46 (Madison); Federalist No. 29 (Hamilton); see also, Thomas Jefferson, Proposed Virginia Constitution, 1764 ("No free man shall ever be debarred the use of arms."; George Mason at Virginia's U.S. Constitution ratification convention 1788 ("I ask, sir, what is the militia? It is the whole people ... To disarm the people is the best and most effectual way to enslave them.").

This is not a novel position. In early decisions, the United States Supreme Court routinely indicated that the right protected by the Second Amendment applied to individuals. See, e.g., Logan v. United States, 144 U.S. 263, 276 (1892); Miller v. Texas, 153 U.S. 535, 538 (1893); Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897); Maxwell v. Dow, 176 U.S. 581, 597 (1900). Justice Story embraced the same view in his influential Commentaries on the Constitution. See 3 J. Story, Commentaries on the Constitution Sec. 1890, p. 746 (1833) It is the view that was adopted by United States Attorney General Homer Cummings before Congress in testifying about the constitutionality of the first federal gun control statue, the Nation Firearms Act of 1934. See The National Firearms Act of 1934: Hearings on H.R. 9066 Before the House Comm. on Ways and Means, 73rd Cong. 6, 13, 19 (1934). As recently as 1986, the United States Congress and President Ronald Reagan explicitly adopted this view in the Firearms Owners' Protection Act. See Pub. L. No. 99-308, Sec. 1(b) (1986). Significantly, the individual rights view is embraced by the preponderance of legal scholarship on the subject, which, I note, includes articles by academics on both ends of the political spectrum. See, e.g., William Van Alstyne, 'The Second Amendment and the Personal Right to Arms', 43 Duke L.J. 1236 (1994), Akhil Reed Amar, 'The Bill of Rights and the Fourteenth Amendment,' 101 Yale L.J. 1193 (1992); Sanford Levinson, 'The Embarrassing Second Amendment,' 99 Yale L.J. 637(1989), Don Kates, 'Handgun Prohibition and the Original Meaning of the Second Amendment,' 82 Mich. L. Rev. 204 (1983).

In light of this vast body of evidence, I believe it is clear that the Constitution protects the private ownership of firearms for lawful purposes.(1) As I was reminded during my confirmation hearing, some hold a different view and would, in effect, read the Second Amendment out of the Constitution. I must respectfully disagree with this view, for when I was sworn as Attorney General of the United States, I took an oath to uphold and defend the Constitution. That responsibility applies to all parts of the Constitution, including the Second Amendment.

Thank you for your interest in this matter.



John Ashcroft
Attorney General
(1) Of course, the individual rights view of the Second Amendment does not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests, such as prohibiting firearms ownership by convicted felons, just as the First Amendment does not prohibit shouting "fire" in a crowded movie theater. As Samuel Adams explained at the Massachusetts ratifying convention, the proposed Constitution should "never [be] construed ... to prevent the people of the United States who are peaceable citizens, from keeping their own arms." Reprinted in 2 B. Schwartz, The Bill of Rights: A Documentary History 675 (1971) (emphasis added).

3. Media Show Anti-gun Bias
By Mary Zeiss Stange
USA Today
4/25/01, p. 13A


This month's Joseph and Edna Josephson Institute of Ethics report, "The Ethics of American Youth: Violence and Substance Abuse," received considerable national media play. Stories about the report, based on a national survey of more than 15,000. teenagers, tended to focus on three of its many findings: that one in three students said they didn't feel safe at school; that nearly two-thirds of high school boys said they could get a gun; and that a significant proportion of youths had on occasion brought weapons to school. The connection to school shootings seemed obvious: deny teens access to firearms and schools will be safer.

Just one problem. As Michael Josephson, the institute's director, told the pro-gun publication Gun Week: "This (report) was never really about guns.***The kid at Santee (High School) took the gun out of a locked box. He stole his father's key to get that gun. This is not a question of metal detectors. It is a question of character."

The real focus of the study, Josephson said, was not guns, but issues of personal responsibility and the way substance abuse, coupled with a lack of character development, can have deadly results. Angered that some were using the report to push a gun-control agenda, Josephson went on to point out that his institute scrupulously avoids taking sides on politically charged issues such as abortion or gun control.

Less than two weeks later, the Centers for Disease Control (CDC) released a major study showing a sharp drop in the number of gun- related deaths and injuries between 1993 and 1998.. Fatalities were down 29%,. non-fatal injuries by 47%. - this during the same time frame that the Justice Department recorded a 27%. decline in violent crime. And this CDC report follows one last July that showed a continuing, significant drop in firearm-related death and injury to children and teens in recent years.

Yet both CDC reports received relatively sparse media coverage. Why didn't all this seemingly good news receive more media attention? Maybe the authors' conclusions weren't politically correct enough. Among the factors the latest CDC report said might have contributed to the decline in gun injuries and deaths were improved economic conditions, an aging population, a declining cocaine market, legislative changes, sentencing guidelines, law-enforcement practices and violence prevention programs.

The Brady Law's waiting period for handguns received no mention.

We need to think about guns and gun control in different and more complex ways. To do that, we need news outlets that are willing to report firearms-related news more forthrightly than they have to date. A study last year by the Media Research Center. that surveyed major Network TV coverage of gun-related issues between 1997 and 1999 found that more than half of the 653 stories aired were more editorial than reportorial in their content, and that more than nine out of 10 of these stories had an anti-gun perspective.

I'm a gun-owner. I hunt, I shoot recreationally and I appreciate the defensive value of firearms. I also respect the reasons others have for not using firearms for any reason. But we can agree on this much: Spin-doctoring the news won't stop school shootings and other atrocities any faster than metal detectors will.

Like many Americans, gun-owners and gun control advocates alike, I heaved A sigh of relief when the anniversaries of Waco, Oklahoma City, and Columbine came and went without major incident. Before those dates roll around again, we should start the kind of national conversation we really need have about our culture of violence, in which some people – especially teenage males - seem to lose their bearings, sometimes with disastrous results. But to do that, we need to get the story straight.

Mary Zeiss Stange, who teaches at Skidmore College, is the co-author of Gun Women: Firearms and Feminism in Contemporary America.

4. Links Extravaganza

a. U.S. gun control stalls as politicians discover the price
By Jan Cienski
April 24, 2001

b. Billionaire's Gun Control Role Is Debated
Middle-of-the-Road Advocacy and Infusion of Cash Stir Controversy on All Sides
Juliet Eilperin
Washington Post Staff Writer
April 29, 2001; Page A10

c. The "Million Mom" Posse
When will these "Million Moms" stop lying about kids and guns?
By David Lampo, publications director at the Cato Institute

d. Gun Control – What Went Wrong?
Dr. Michael S. Brown
April 25, 2001

e. Pistol Whipped: Baseless Lawsuits, Foolish Laws
by Robert A. Levy
Cato Institute.

f. Shot Down (On anti-gun lawsuits).
By Jacob Sullum
May 15, 2001
Reason Online

g. Hamilton v Accu-Tek
New York Court of Appeals unanimously squashes
anti-gun lawsuit.

h. Washington State Supreme Court rules 5-4 decision that a
retroactive law banning felons from felons from possessing firearms, is not void as an ex post facto law.


i. Michigan CCW law subject to state vote, Court of Appeals rules.
Court ruling delays concealed-weapons law for 16 months.
Case now heads to Michigan Supreme Court.

i. AMA Joins Gun Grabbers
Tuesday, May 1, 2001


j. The AMA, Ethics and Gun Control
Miguel A. Faria Jr., M.D.
May 3, 2001


k. Violence Policy Center Opposes McCain-Lieberman Gun Show Bill. Bill Undermines And Weakens Federal Brady Law

by Alan Korwin Author, Gun Laws of America


m. Weapons Scanner Raises Constitutional Concern
"A federal agency is developing a radar-like device that uses
electromagnetic waves to peer through clothing and detect concealed weapons from up to 50 feet away."
May 31, 2001 Wires


n. Gun charge veteran found hanged
May 16, 2001
The Guardian (England)
"A war veteran charged by police when he used a toy gun to scare off a gang was found hanged on the day of his first court appearance, it emerged yesterday."


o. Student removed from class because of drawings
St. Petersburg Times
May 11, 2001
"A fifth-grader was taken from Oldsmar Elementary School in handcuffs Wednesday after a teacher found drawings he had made of weapons, school officials said. "


p. United Nations FAQ on upcoming "U.N. Small Arms Conference"

q. U.N. Wants Global Gun Ban


r. New book by University of Hawaii Professor Rudy Rummel
Saving Lives, Enriching Life: Freedom as a Right And a Moral Good.
The book deals with the relationship of freedom to democide, war, revolution, famine, and human development, and has an extensive appendix providing a statistical proof of this relationship.

s. New and extensive collection of annotated photographs of democide beginning at:

t. 174,000,000 people were killed by government in the last century.
Visualize it through ten experimental graphics at:

u. Backwoods Home Magazine

v. The Firearms Training Site

w. Calendar of Second Amendment Events, from Directed Fire

x. Fewer Gun Injuries…
Good news, bad logic.
By Robert A. Levy, senior fellow in constitutional studies at the Cato Institute
May 11, 2001

y. Historian wounded as theory backfires.
15 April 2001
The Age (Australia)
"Early last year, a young and obscure history professor advanced a fascinating theory: America's love affair with the gun is a relatively recent passion, and one that would have appalled the Founding Fathers. Contrary to myth, few 19th century Americans owned a gun, and if they did, it was likely to be ancient or broken.
. . .
When his academic inquisitors asked him to settle their doubts by opening his files, Bellesiles announced that he could not accommodate them - a recent flash flood had destroyed every single page of his original research.
. . .
But if it is ever going to happen, Bellesiles' dubious scholarship won't provide the foundation for some landmark decision by the Supreme Court."


z. Their Aim Is True: Taking stock of America's real gun culture
By Abigail Kohn
Reason Magazine, May, 2001
"It was mid-September, 1998, the first day of Northern California's Range War, a 'cowboy action shooting' competition in which participants dress up in Old West costumes and use replicas of antique weapons."

aa. Do More Guns Mean Less Crime?
A Reason Online Debate
John Lott vs. Robert Erlich

bb. Pink Pistols
Gun rights group for gays and supporters of gay rights.
Motto: "Armed Gays don't get bashed."

cc. New book from an attorney who has used the Freedom of Information Act to uncover a vast amount of new evidence about Waco. This Is Not An Assault: Penetrating the Web of Official Lies Regarding the Waco Incident.
by David T. Hardy with Rex Kimball


Some pages you may want to visit at the award-winning
Independence Institute website:

Criminal Justice and the Second Amendment:
Kopel short articles:
The Columbine High School murders:
The Waco murders:
The Independence Institute's on-line bookstore. Start your
browsing at the Second Amendment section:

That's all folks!

If you don't already have a copy, it's time for you to buy a copy of
More Guns, Less Crime, By John Lott

Buy a copy from Laissez Faire Books, you'll help a great on-line book Vendor, and also help the Independence Institute.

Does allowing people to own or carry guns deter violent crime? Or does it cause more citizens to harm each other? Wherever people happen to fall along the ideological spectrum, their answers are all too often founded upon mere impressionistic and anecdotal evidence. In this direct challenge to conventional wisdom, legal scholar John Lott presents the most rigorously comprehensive data analysis ever done on crime. In this timely and provocative work he comes to a startling conclusion: more guns mean less crime.

Thorough and enlightening, More Guns, Less Crime is required reading for anyone interested in the sometimes contentious, always critical American debate over gun control.

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