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Gun Control and Gun Rights

Fall Semester, 1998

Taught by Professor Ron Noble & Professor Dave Kopel

Contents

Faculty, and Course Description

Professor Ronald K.  Noble

Biographical information on Professor Noble

Adjunct Professor David B. Kopel

Kopel's c.v. and articles on firearms law and policy.

Gun Control and Gun Rights Materials on the Web

Legal Scholarship

Second Amendment Law Library. Full text versions of law review articles on the Second Amendment and gun control.

Cases, Statutes, and Regulations
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.

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.

Syllabus

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 Quarterlyarticle 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," 9Const. 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," 93Mich. 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," 73NYU 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," 73NYU L. Rev. 831 (1998). Reply to Williams’s reply to Volokh.

David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," 101Yale 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," 45Emory 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," 26Cumb. 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," 75B.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 Review59 (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’?," 22Cap. 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 Review1177 (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," 61Tenn. L. Rev647 (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 Journal351 (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?, 70Chi.-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 inGun 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 Society63 (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 & Criminology1430 (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 Law355 (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. KopelGun 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 Studies83 (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?" 27J. 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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