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Fall Semester, 1998
Taught by Professor Ron Noble & Professor Dave Kopel
Contents
Professor Ronald K. Noble
E-mail to Professor Noble
Biographical
information on Professor Noble
- Adjunct Professor David B. Kopel
Kopel's c. and articles
on firearms law and policy.
E-mail to Professor Kopel.
Web Discussion Group: Continuing Dialogues
In-between Class Meetings
Accessing the Web Discussion Group (WDG) for Gun Control and Gun Rights
Introduction
to WDG
How to access a WDG
How to participate in WDG discussions
Legal Scholarship
Second Amendment Law Library. Full
text versions of law review articles on the Second Amendment and gun control.
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Cases, Statutes, and Regulations
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- Findlaw. All
Supreme Court decisions from 1893 to the present, and some from before. Full
text of many state codes. Full text of many state and federal court decisions
from the mid-1990s onward.
United States Code.
Searchable. Current as of Jan. 1996.
Code of Federal Regulations.
- U.S. Congress, Thomas
Server. Full text of bills, as well as floor debate. Some committee
reports.
- The
NFA and Other Gun-related Info and Cases site at Carnegie Mellon
University contains a vast amount of resources, including
U.S. Supreme Court firearms cases,
state court firearms cases, and
federal court firearms cases.
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Government Agencies
-
- Bureau of Alcohol, Tobacco & Firearms.
Bureau of Justice Statistics.
From the US Dept.of Justice.
Sourcebook of Criminal Justice
Statistics. From the Bureau of Justice Statistics.
NCJRS. A research service from the United
States Department of Justice.
Syracuse University Transactional
Records Clearinghouse. Independent, non-partisan statistical information
on FBI, IRS, DEA, and BATF.
Federal Bureau of Investigation
SEARCH. The National Consortium of
Criminal Justice Information Services, an organization of state criminal
justice research providers.
United Nations Crime
and Justice Information Network. Vast amount of resources, including UN
reports on gun control, and much more.
FedStats. One-stop shopping for federal
government statistics.
Interest Groups
Citizens Committee for the Right to Keep
and Bear Arms.
Coalition to Stop Gun Violence and
Educational Fund to End Handgun Violence (educational arm of CSGV).
Gun Owners of America.
Handgun Control, Inc., plus
Coalition to Stop Gun Violence (educational spin-off of HCI).
Jews for the Preservation of Firearms Ownership
Join Together Online. Brings
together resources from 15 local and national anti-gun organizations, and
provides original content. Very slick site with frequent updates.
National Rifle Association
Second Amendment Foundation (educational arm
of CCRKBA).
Link Collections
Independence Institute links
page, Second Amendment section. Links for pro and anti-gun organizations,
including foreign groups, national American ones, and state & local.
Class
1, Sept. 1. No assigned reading before class.
Class
2, Sept. 8.
Methodology: legal history. Compare and contrast law review articles,
original materials, and treatises.
Required reading:
The English Revolution of 1689 and the invention of the "ancient" right to
arms. Joyce Malcolm, "The Right to Keep and Bear Arms: The Common Law
Tradition," Hastings Constitutional Law Quarterly article reprinted in
Robert Cottrol, ed., Gun Control and the Constitution, pp. 227-56. The
British Declaration of Rights (quoted in Malcolm) is also
available on-line.
Origins and Development of the Second Amendment, pages 52-62. Some
short original documents from the American Revolution.
The Origins of the Second Amendment. Selected original documents from
the constitutional ratification debates, and the creation of the Second
Amendment. (Note: except for the Virginia Convention debates, most of these
excerpts are quite short; many are only a few paragraphs): Aug. 18, 1787
(federal constitutional convention debate on militia powers); August 23,1787
(same); October 10,1787 (Noah Webster pamphlet defending the proposed
constitution); Nov. 8,1787 (Federal Farmer [Richard Henry Lee?] pamphlet
critiquing the constitution; read letter I I I only); December 3,1787 (John De
Witt, article in the Boston American Herald); December 18,1787 (report of
the Pennsylvania Minority; focus on the parts related to militias, standing
armies, and the right to arms); December 31, 1787 (Noah Webster, reply to the
Pennsylvania dissenters and); Jan. 9,1788 (Alexander Hamilton, The Federalist
No. 35); Jan. 18, 1788 (Luther Martin; Maryland anti-federalist criticizes
proposed federal militia powers); Jan. 29, 1788 (James Madison, The Federalist
No. 45); February 6, 1788 (Massachusetts Convention); February 20, 1788 (Tench
Coxe replies to the Pennsylvania dissenters); March 8, 1788 (article in the
Philadelphia Federal Gazette);May 1788 (Federal Farmer, letter XVI I I);
June 5, 1788 (Virginia Convention, Patrick Henry speech); June 7,1788 (Virginia
Convention, Henry/Corbin debate); June 9,1788 (Virginia Convention); June 11,
1788 (George Mason’s proposed Bill of Rights; read items 15-19); June 14, 1788
(Virginia Convention); June 16, 1788 (Virginia Convention); June 21, 1788 (New
Hampshire Convention, items
X and XII); July 26,1788 (New
York Convention); June 8, 1789 (James
Madison notes for speech in Congress on the Bill of Rights, particularly
Madison’s observation that the English Declaration of Rights is too narrow
regarding arms and other rights); June 12, 1789 (Arch-Federalist Fisher Ames);
June 18, 1789 (Tench Coxe on the Bill of Rights); June 24, 1789 (James Madison
endorses Coxe’s article); August 17, 1789 (House of Representatives debate on
the Second Amendment); Sept. 9, 1789 (Senate debate on the Second Amendment);
Jan. 8, 1790 (President George Washington, speech to Congress); Appendix A
(state constitutions and declarations of rights 1776-1784--including
Virginia
(1776), Pennsylvania
(1776), Vermont (1777), and
Massachusetts
(1780); read the provisions related to arms, militias, and standing armies).
19th-century constitutional law treatises. David B. Kopel, "The
Second Amendment in the Nineteenth Century," BYU L. Rev.
(1998, forthcoming). Read the sections on St. George Tucker (Part I A), Joseph
Story (Part I D), Thomas Cooley (Part V A), and NYU Dean John Norton Pomeroy
(Part V B 5). Distributed in class.
Recommended Reading:
All of these articles are available at the reserve desk. All of the published
articles are available on Westlaw/Lexis. When indicate, some of the articles are
available on the Internet, or in other sources.
Robert J. Cottrol, & Raymond T. Diamond, "The
Fifth Auxiliary Right," 104 Yale L.J. 995-1026 (1995). Review of Joyce
Malcolm’s book.
Stephen P. Halbrook, A Right to Bear Arms by. Examines the
development of the right to arms in the thirteen original states plus Vermont.
Stephen Halbrook & David B. Kopel, "Tench Coxe and the Right to Keep and Bear
Arms, 1787-1823," article in progress. Discussion of the life and work of a
major federalist and subcabinet official in the Washington, Adams, Jefferson,
and Madison administrations, who wrote extensively about the right to keep and
bear arms.
David Hardy, "The
Second Amendment and the Historiography of the Bill of Rights," 4 Journal
of Law and Politics 1 (1987).
David T. Hardy, "Armed
Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9
Harv. J. L. & Pub. Pol'y 559 (1986). Hardy’s two articles offer the most
complete exposition of the different origins of the "militia" and the "right of
the people" clauses in the Second Amendment, and how the two clauses (and the
ideas behind them) were merged.
Don B. Kates, "The
Second Amendment and the Ideology of Self-Protection," 9 Const. Comm.
(1992) reprinted The Great American Gun Debate. The first article
setting forth a connection between the collective self-defense issues which
dominated the early Second Amendment debate, and personal defense.
David B. Kopel, "It
Isn't About Duck Hunting: The British Origins of the Right to Arms," 93
Mich. L.R. 1335 (1995). Review of Malcolm’s book.
Joyce Lee Malcolm, To Keep and Bear Arms. Book-length treatment of the
same subject as her Hastings article (which was part of the required reading).
Eugene Volokh, "The
Commonplace Second Amendment," 73 NYU L. Rev. 793 (1998). Shows that
"purpose" clauses (e.g. "A well-regulated militia being necessary...") were
common in early American state constitution-making. Argues that introductory
purpose clauses do not limit the scope of the right in the main clause.
David C. Williams, "The Unitary Second Amendment," 73 NYU L Rev. (1998).
Reply to Volokh article.
Eugene Volokh, "The
Amazing Vanishing Second Amendment," 73 NYU L. Rev. 831 (1998). Reply
to Williams’s reply to Volokh.
David C. Williams, "Civic
Republicanism and the Citizen Militia: The Terrifying Second Amendment," 101
Yale L.J. 551 (1991). Widely-discussed article suggesting that since the
government no longer trains the people to civic virtue through service in a
universal militia, the Second Amendment right has disappeared.
Class
3, Sept. 15.
Methodology: case law and legal scholarship. The Second Amendment in
twentieth centuries.
Required reading:
US v. Miller, 307 U.S. 174 (1939) in Gun Control and the Constitution.
Lewis v. United States, 445 U.S. 55 (1980).
US v. Verdugo-Urquidez, 494 U.S. 259, 264-66 (1990)
Planned Parenthood v. Casey, 505 U.S. 833, 848-49
(1994)
Lopez v. United States, 115 S. Ct. 1624 (1995). Read this
case for its general points, not for the nuances of every last footnote.
Printz & Mack v. United States. 138 L. Ed 914 (1997).
Same reading strategy as Lopez.
Spencer v. Kemna, 1998 WL 85333 (Mar. 3, 1998)(Stevens dissent from denial
of cert.)
Glenn Harlan Reynolds, "A
Critical Guide to the Second Amendment," Tennessee Law Review
symposium. Summary of modern scholarship on the Second Amendment.
William Van Alstyne, "The
Second Amendment and the Personal Right to Bear Arms," Duke L. J. (1994),
reprinted in Journal on Firearms and Public Policy.
Dennis Henigan, "Arms,
Anarchy, and the Second Amendment," Valparaiso L. Rev. in Gun Control and
the Constitution. Cornerstone article for the "state’s rights"
interpretation of the Second Amendment.
Recommended Reading:
Randy Barnett & Don B. Kates, "Under
Fire: The New Consensus on the Second Amendment," 45 Emory L.J.
1140 (1996). A reply to Herz, infra.
Brannon P. Denning, "Can
the Simple Cite be Trusted?: Lower Court Interpretations of United States v.
Miller and the Second Amendment," 26 Cumb. L. Rev. 961 (1996). Argues
that lower federal courts routinely miscite Miller in order to uphold gun
control laws.
Keith A. Ehrman & Dennis A. Henigan, "The
Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?"
15 U. Dayton L. Rev. 5 (1989).
Andrew Herz, "Gun Crazy," 75 B.U. L. Rev. 57 (1995). Bitter criticism
of the "standard model" academics.
Nelson Lund, "The Past
and Future of the Individual's Right to Arms," 31 Ga. L. Rev. 1
(1996).
David B. Kopel & Glenn Harlan Reynolds, "Taking
Federalism Seriously: Lopez and the Partial-Birth Abortion Ban." 30
Connecticut Law Review 59 (1997).
Sanford Levinson, "The
Embarrassing Second Amendment," 99 Yale L.J. 637 (1989). Extremely
influential article which made the Second Amendment a fit subject of discourse
among much of the legal academy.
Michael J. Quinlan, "Is
There a Neutral Justification for Refusing to Implement the Second Amendment or
is the Supreme Court Just ‘Gun Shy’?," 22 Cap. U. L.Rev. 641 (1993).
L.A. Powe, "Guns,
Words, and Constitutional Interpretation," 38 William & Mary L. Rev.
1131 (1997) A First Amendment professor examines the Second Amendment.
Sept. 22. No class. Rosh Hashanah.
Class
4, Sept. 29.
Methodology: traditional legal. State Constitutions and the right to arms.
Required reading:
State v. Kessler, 289 Or. 359 (1980);
State v. Delgado, 298 Or. 395 (1984)
Peoples Rights Organization v. City of Columbus, - F.3d -, 1998 FED App.
0210P (6th Cir. 1998)
David B. Kopel, Clayton Cramer, Scott Hattrup."A Tale of Three Cities: The
Right to Bear Arms in State Courts, " 68 Temple Law Review 1177 (1995),
reprinted in vol. 8 of the Journal on Firearms and Public Policy.
Make sure to read the full text of note 13, which contains the text of current
state right to arms provisions.
Aymette v. State, 2 Hump. 154 (Tenn. 1840), in Gun Control and the
Constitution.
Recommended Reading:
Clayton Cramer, For the Defense of Themselves and the State: The Original
Intent and Judicial Interpretation of the Right to Keep and Bear Arms. The
best book on state constitutional arms law. Comprehensive coverage of every
case, from early days until the present.
Robert Dowlut, "Federal
and State Constitutional Guarantees to Arms," 15 Dayton L. Rev.
1 (1989).
Glenn Harlan Reynolds, "The
Right to Keep and Bear Arms under the Tennessee Constitution: A Case Study in
Civic Republican Thought," 61 Tenn. L. Rev 647 (1994).
Glenn Harlan Reynolds, & Don B. Kates, "The
Second Amendment and States' Rights: A Thought Experiment," 36 Wm. & Mary
L. Rev. 1737 (1995). If the Second Amendment were as "state’s right," what
would that right entail?
Class
5, Oct. 6.
Methodology: Race, Gender, and Class.
Presser v. Illinois,
116 U.S. 252 (1886), in Gun Control and the Constitution.
Mary Zeiss Stange, "Women and Guns," in Guns: Who Should Have Them?
Stephen Halbrook, Freedmen, the Fourteenth Amendment, and the Right to
Bear Arms, 1866-1876, chapters 1, 7, 8. Handed out in class.
Carl Bogus, "The Hidden History of the Second Amendment," 31 U. Cal. Davis
L. Rev. 309 (1998). Handed out in class. Argues that the purpose of the
Second Amendment was to guarantee that the militia could crush slave revolts.
Akhil Amar, The Bill of Rights: Creation and Reconstruction (1998).
Selected pages. Available for pickup from Prof. Noble's hand-out station.
David Kopel, The Second Amendment in the Nineteenth Century, 1998
BYU L. Rev. (forthcoming). Pages 105-16 (discussing Bogus article, supra).
Recommended Reading:
United States v.
Cruikshank, 92 U.S. 542 (1875)
Pratt v. Chicago Housing Authority, 155 F.R.D. 177 (1994).
Alana Bassin, "Why Packing a Pistol Perpetuates Patriarchy," 8 Hastings
Women’s Law Journal 351 (1998).
Carl T. Bogus, "Race, Riots and Guns," 66 S. Cal. L. Rev.
1365 (1993).
Robert Cottrol & Raymond T. Diamond,
"Never Intended to be Applied to the White Population": Firearms Regulation and
Racial Disparity--The Redeemed South's Legacy to a National Jurisprudence?,
70 Chi.-Kent L.R. 1307 (1995).
Robert Cottrol & Raymond T. Diamond, "The
Second Amendment: Toward an Afro-Americanist Reconsideration," 80 Georgetown
L.J. 309 (1991), reprinted in Gun Control and the Constitution.
Clayton E. Cramer, "The
Racist Roots of Gun Control," 4 Kansas J. of L. & Pub. Pol. 17
(1995).
Mario-Rosario Jackson & Jeffrey D. Roth, "Handgun Violence Prevention and the
African American Community: Preliminary Findings from Focus Group Discussions
with Handgun Intervention Program (HIP) Participants," Urban Institute, 1996.
Nicholas E. Johnson, "Principles
and Passions: The Intersection of Abortion and Gun Rights," 50 Rutgers L.
Rev. 97 (1997).
Inge Anna Larish, "Why Annie Can’t Get Her Gun: A Feminist Perspective on the
Second Amendment," 1996 U. Ill. L. Rev. 467.
William R. Tonso, "Guns and the Power Elite," Liberty, Sept. 1996.
Class
6, Oct. 13.
Methodology: criminology. Gary Kleck and his critics. Quantifying
defensive gun uses.
Required Reading:
James D. Wright, "Ten Essential Observations on Guns in America," 32
Society 63 (1995). Handed out in class.
Gary Kleck, Targeting Guns (chapters 3, 5; The Ownership and
Acquisition of Guns; Guns and Self-Defense).
Douglas Weil, "Gun Control Works," The World. handed out in class.
David Hemenway, "Survey Research and Self-Defense Gun Use: An Explanation of
Extreme Overestimates," 87 J. Crim. L & Criminology
1430 (1997). Contesting Kleck’s count of 2.5 million annual defensive gun uses.
Plus Kleck's reply. On reserve.
Recommended Reading:
R. Alba & S. Messner, "Point Blank Against Itself" 11 J. Quantitative
Criminol. 391 (1995), & "Point Blank and the Evidence: A Rejoinder," p. 425.
Gary Kleck, "Using Speculation to Meet Evidence: Reply to Alba & Messsner," 9
J. Firearms & Public Pol. 13 (1997).
James D. Wright & Peter Rossi, Armed and Considered Dangerous. A
comprehensive study of criminals and how they use and acquire guns.
James D. Wright, Peter Rossi, & Kathleen Daly, Un7der the Gun. The
first comprehensive study of firearms and firearms crime in American society.
Although published in the early 1980s, still very valuable.
Class
7, Oct. 20.
Methodology: Comparative law and history. International gun control. The
experience of gun control in Japan, Canada, England, Switzerland, other
democracies, and non-democratic countries in the twentieth century. The movement
towards international gun control.
Required Reading:
Stephen P. Halbrook, Target Switzerland: Swiss Armed Neutrality in World
War II, chs. 1, 5, epilogue.
Kopel, Book review of
Aaron Zelman, et al., Lethal Laws, 15 New York Law School Journal
of International and Comparative Law 355 (1995). Distributed in class.
"The Allure of Foreign Gun Laws," 83 Journal of the Medical Association of
Georgia 153 (Mar. 1994). Distributed in class.
Canadian Firearms Centre (Ministry of Justice),
Firearms Crimes, Canada vs. U.S.
Recommended Reading:
Department of Justice, Canada, Firearms Acts Regulations, March 1998.
David B. Kopel, The Samurai, The Mountie, and The Cowboy: Should America
Adopt the Gun Controls of Other Democracies? (1992).
David B. Kopel Gun Control in Great Britain: Saving Lives or
Constricting Liberty? (1992).
Etieene G. Krug, et al., "Firearm and Non-Firearm-Related Homicide Among
Children: An International Comparison," 2 Homicide Studies 83 (1998).
EG Krug, et al., "Firearms-related Deaths in the United States and 35 other
High- and Upper-Middle-Income Countries," 27 Intl. J. Epidemiology 214
(1998).
Daniel D. Polsby & Don. B. Kates, "Of
Holocausts and Gun Control," 75 Wash. U. L.Q. 1237 (1997).
United Nations, various reports on firearms control.
Aaron Zelman, et al., Lethal Laws.
Franklin Zimring & Gordon Hawkins, Crime is Not the Problem (1997).
University of Colorado Law Review symposium issue on Zimring’s book, vol. 69,
no. 4 (Fall 1998).
Class
8, Oct. 27
Limiting on the exercise of rights. Waiting periods, bans on various types
of firearms,
Required Reading:
Kopel, "Assault Weapons" chapter in Guns: Who Should Have Them?
James B. Jacobs & Kimberly A. Potter, "Keeping Guns out of the ‘Wrong’ Hands:
The Brady Law and the Limits of Regulation," 86 J. Crim. L. & Criminol.93
(1995).
Recommended Reading:
Jon S. Verick & Stephen P. Teret, "Firearms Advertisements Promising
Protection: A Legal Analysis," Johns Hopkins School of Public Health.
Rep. Charles Schumer, War Between the States: How Gunrunners Smuggle
Weapons Across America.
Class
9, Nov. 3:
Firearms Control Laws in Practice. State and federal systems.
Required Reading:
18 USC §§ 921-29, plus "purpose" section before § 921.
Full text available on the BATF website. Gun Laws of America
version distributed in class.
NY Penal Law §§ 265, 400, and New York City administrative code. All
available in BATF,
State Laws and Published Ordinances-Firearms (1994).
Florida concealed handgun permit law.
Florida Statutes § 790.06. Gun Laws of Florida version distributed
in class.
Recommended Reading:
Stephen P. Halbrook, Firearms Law Deskbook.
David T. Hardy, "The
Firearms Owners' Protection Act: A Historical and Legal Perspective,"
17 Cumb. L.Rev.
585-682 (1987).
Alan Korwin, Gun Laws of America, and Gun Laws of Florida.
Available on Reserve in the library.
Class
10, Nov. 10
Methodology: economics. The conflicting research about laws allowing the
carrying of concealed handguns for protection.
Required Reading:
John Lott, More Guns, Less Crime, chapters 5, 7.
Dan A. Black & Daniel S. Nagin, "Do Right-to-Carry Laws Deter Violent Crime?"
27 J. Legal Stud. 221 (1998).
This class will feature a discussion with John Lott and a representative
from New Yorkers against Handgun Violence.
In the afternoon, Professor Lott and the NYAHV representative will engage
in a public debate at NYU School of Law, moderated by Professors Noble and
Kopel.
Evening of Nov. 10: Optional Field Trip.
West Side Rifle & Pistol Club. 20 West 20th St., Manhattan. Be there at 7 p.m.
We will spend approximately two hours there.
Class
11, Nov. 17
Methodology: public health. Gun control as a public health issue, and
critics of the public health approach.
Read this article:
Don B. Kates, Henry E. Schaffer, John K Lattimer, George B. Murray, Edwin H.
Cassem, "Guns and Public
Health: Epidemic of Violence or Pandemic of Propaganda?," 62 Tenn. L.Rev.
513 (1994). (Alternate version in Kopel, ed., Guns: Who Should Have Them?)
Read at least one of the following three articles:
Garen Wintemute, et al. "Criminal Activity and Assault Weapons: A Study of
Young Adult Purchasers of Handguns," 32 Annals of Emergency Medicine
44 (1998). Distributed in class.
Thomas R. Simon, et al., "Prospective Psychosocial, Interpersonal, and
Behavioral Predictors of Handgun Carrying Among Adolescents," 88 American
Journal of Public Health 960 (June 1998). Distributed in class.
David Hemenway, "Characteristics of Automatic or Semiautomatic Firearms
Ownership in the United States" reprinted in Journal on Firearms and Public
Policy, volume 9.
Read one of the two following articles:
Jacob Sullum, "What the Doctor Orders," reprinted in Journal on Firearms
and Public Policy, volume 9.
David B. Kopel, "Guns, Germs, and Science: Public Health Approaches to Gun
Control," 84 Journal of the Medical Association of Georgia 269 (June
1995). Distributed in class.
Recommended Reading:
P. Cummings, et al. "State Gun Storage Laws and Child Mortality Due to
Firearms," 278 Journal of the American Medical Association (JAMA)
1084 (1997).
Class
12, Nov. 24: Student paper presentations. No assigned reading.
Class
13, Dec. 1. Student paper presentations. No assigned reading.
Class
14, Dec. 8. Student paper presentations. No assigned reading.
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