Gun Control Home
Opinion 1 - US Government brief
Opinion 2 - Harv Teitelbaum
Opinion 3 - Sanford Levinson
Opinion 4 - John Lott
Opinion 1 - from a BRIEF FILED BY THE U.S. GOVERNMENT FOR THE
PROSECUTION OF THE CASE U.S. v.
EMERSON IN THE 5TH CIRCUIT COURT OF APPEALS
United States v. Miller,
307 U.S. 174, 178 ... (1939)
ld. The Miller court tells us that the necessity of maintaining effective
state militias is, by the language
itself, the only concern of the Second Amendment, and that the right
to keep and bear arms is a right
coextensive with membership in the militia, existing only to the extent
necessary to meet that concern.
In sum, Miller requires that one challenging the constitutionality
of a statute under the Second
Amendment show his possession of a firearm is "reasonably related"
to service in the militia. Contrary
to the District Court's suggestion on pp. 21-22 of its opinion, Miller
does not stand for the proposition
that courts may end their analysis upon [Page 13] determining the firearm
in question is the sort of
firearm used by militias or the military. Miller expressly states that
a court must review whether the
"possession or use" of a gun has some reasonable relationship to the
preservation or efficiency of a well
regulated militia. Id. at 178. Unless the "possession or use" of the
gun meets the test, there is no
Second Amendment infirmity. If courts reviewed only whether a firearm
had a military character,
citizens could arm themselves with the most extreme of military style
weapons, such as bazookas and
rocket launchers. That Miller recognized sawed-off shotguns lack any
appreciable military utility does
not mean courts need not examine whether the possession or use of a
firearm relates to militia service.
It means only that evidence of a gun's military character may be relevant
to whether its possession or
use ultimately bears a reasonable relationship to militia service.
In United States v. Warin, 530 F.2d 103, 107 (6th Cir. 1976), the court
held that: "Even where the
Second Amendment is applicable, it does not constitute an absolute
barrier to the congressional
regulation of firearms." Id. "Weapon bearing was never treated as anything
like an absolute right by the
common law." Id. (citing United States v. Tot, 131 F.2d 261, 266 (3d
Cir. 1942) ("It was regulated by
statute [Page 29] as to time and place as far back as the Statute of
Northampton in 1328 and on many
occasions since.").
Id. "Civil liberties, as guaranteed by the
Constitution, imply the existence of an organized society maintaining
public order without which
liberty itself would be lost in the excesses of unrestrained abuses."
Id. (quoting Cox v. New
Hampshire, 312 U.S. 569, 574 (1941)). The court further stated:
As the legislative history of the [National Firearms Act] clearly shows,
Congress was dealing with
problems which threaten the maintenance of public order. There can
be no question that an organized
society which fails to regulate the importation, manufacture and transfer
of the highly sophisticated
lethal weapons in existence today does so at its peril. The requirement
that no one may possess a
submachine gun which is not registered to him in the National Firearms
Registration and Transfer
Record is a reasonable regulation for the maintenance of public order.
Opinion 2 - Harv Teitelbaum, originally published in The Denver Post
I am concerned with the erosion of American liberty. I am concerned with the weakening of the rights contained in nine of the first ten amendments to the Constitution. Perhaps what is needed is a new grassroots organization, the Nine Rights Association, (if the initials aren’t already taken), to restore the literal implementation of these neglected nine.
Consider this part of the first amendment, “Congress shall make no law...abridging the freedom of speech,...” And yet there are laws preventing me from yelling “Fire!” in a crowded movie theater. There are laws against slander and libel. There are laws that say I can not speak ill of fruits or vegetables. And in private or commercial settings, it is unclear if I have any free-speech rights at all.
“...or the right of the people peaceably to assemble, and to petition...” Do not laws requiring permits, or those outlawing loitering in groups erode the above right to assemble? And what of the myriad restrictions and conditions on the petition process? As we allow the pile of exceptions and conditions to rise higher and higher, the Bill of Rights might seem to have become increasingly marginalized, excluding of course the Second Amendment, which has its own literal-implementation defense group.
Permits, conditions or restrictions on this right, as on the others? No way. Gun control or limits might lead us down the slippery-slope to tyranny. But have compromises on the other amendments started us on a similar slippery-slope?
Yelling “Fire!” in a crowded, non-combusting theater could likely result in panic, damage and personal injury. Competing groups seeking to assemble at simultaneous times and places could do likewise. And malicious slander or libel can destroy a person’s reputation, livelihood and future. In other words, the infinite exercise of one person’s Constitutional rights could severely impact the ability of others to exercise their rights.
Rather than starting us down a slippery slope, some balancing of rights may actually serve to define and validate those rights which it seems to restrict. Free speech is discouraged and a form of self-censorship occurs when citizens are unclear of limits and risks. The drawing of boundaries clearly defines the territory within.
It is of course possible, and often occurs (fruits, vegetables, commercial space), that the restrictions on Constitutional rights are pushed too far on behalf of special interests. Corporations, industries, and even governmental agencies often seek to limit troublesome or profit-reducing speech, behavior and information, both in-house and out. And by duping the legal system into equating money with free speech, wealthy special interests succeeded, if only temporarily, in depreciating that Constitutional right.
The Supreme Court, however, recently corrected itself on the money-as-free-speech issue. Occasionally, when the scope of one of its decisions threatens to grow uncontrollably, the Court acts as its own “safety” to narrow interpretation and limit effect. There do seem to be some mechanisms in place to ensure that we do not start down slippery slopes.
Which brings us back to the claim of many gun owners that limitations on the Second Amendment will start us down the road to gun confiscation and tyranny. Such has not happened with the evolution of the other rights contained in the Bill of Rights, even in the absence of vocal, strong-arming organizations championing the literal interpretation of each.
It would also be a tragic mistake to presume, as have some of our more strident and reactionary citizens and politicians, that “the right of the people to keep and bear Arms” is the single most important right contained in the Constitution, deserving of special treatment as the one that above all others ensures a free people. A people denied free speech, free and complete access to information, freedom from and of religion, or the right to be secure in their persons, effects and privacy, can never be truly free, regardless of the firepower contained in the personal arsenals it has amassed.
The Bill of Rights itself is a balance within a balance. The Constitution was seen by some of the Founding Fathers as too favoring of centralized power. To counterbalance this, the Bill of Rights was adopted to enshrine those individual rights thought necessary to preserve a free people and free states. But these amendments themselves should be appreciated in their entirety, with no special privilege or advantage given to any one right over the others. By accepting some very limited conditions on these freedoms, we optimize the collective Bill of Rights, and overall liberty is enhanced and protected.
from “The Embarrassing Second Amendment”
It is no purpose of this essay to solicit membership for the National Rifle Association or to express any sympathy for what even Don Kates, a strong critic of the conventional dismissal of the Second Amendment, describes as "the gun lobby's obnoxious habit of assailing all forms of regulation on 2nd Amendment grounds." [93] And yet... Circumstances may well have changed in regard to individual defense, although we ignore at our political peril the good faith belief of many Americans that they cannot rely on the police for protection against a variety of criminals. Still, l et us assume that the individualist reading of the Amendment has been vitiated by changing circumstances. Are we quite so confident that circumstances are equally different in regard to the republican rationale outlined earlier?
One would, of course, like to believe that the state, whether at the
local or national level, presents no
threat to important political values, including liberty. But our propensity
to believe that this is the case
may be little more than a sign of how truly different we are from our
radical forbearers. I do not want to argue that the state is necessarily
tyrannical; I am not an anarchist. But it seems foolhardy to assume that
the armed state will necessarily be benevolent. The American political
tradition is, for good or ill, based in large measure on a healthy mistrust
of the state. The development of widespread suffrage and greater majoritarianism
in our polity is itself no sure protection, at least within republican
theory. The republican theory is predicated on the stark contrast between
mere democracy, where people are motivated by selfish personal interest,
and a republic, where civic virtue, both in common citizen and leadership,
tames selfishness on behalf of the common good. In any event, it is hard
for me to see how one can argue that circumstances have so changed us as
to make mass disarmament constitutionally unproblematic. [94]
There is one further problem of no small import; if one does accept
the plausibility of any of the
arguments on behalf of a strong reading of the Second Amendment, but,
nevertheless, rejects them in the name of social prudence and the present
-day consequences produced by finicky adherence to earlier understandings,
why do we not apply such consequentialist criteria to each and every part
of the Bill of Rights? [97] As Ronald Dworkin has argued, what it meant
to take rights seriously is that one will honor them even when there is
significant social cost in doing so. If protecting freedom of speech, the
rights of criminal defendants, or any other parts of the Bill of Rights
were always (or even most of the time) clearly cost less to the society
as a whole, it would truly be impossible to understand why they would be
as controversial as they are. The very fact that there are often significant
costs -- criminals going free, oppressed groups having to hear viciously
racist speech and so on -- helps to account for the observed fact that
those who view themselves as defenders of the Bill of Rights are generally
antagonistic to prudential arguments. Most often, one finds them embracing
versions of textual, historical, or doctrinal arguments that dismiss as
almost crass and vulgar any insistence that times might have changed and
made too "expensive" the continued adherence to a given view. "Cost-benefit"
analysis, rightly or wrongly, has come to be viewed as a "conservative"
weapon to attack liberal rights. [98] Yet one finds that the tables are
strikingly turned when the Second Amendment comes into play. Here it is
"conservatives" who argue in effect that social costs are irrelevant and
"liberals" who argue for a notion of the "living Constitution" and "changed
circumstances" that would have the practical consequence of removing any
real bite from the Second Amendment.
As Fred Donaldson of Austin, Texas wrote, commenting on those who defended
the Supreme Court's
decision upholding flag-burning as compelled by a proper (and decidedly
non-prudential) understanding of the First Amendment, "[I]t seems inconsistent
for [defenders of the decision] to scream so loudly" at the prospect of
limiting the protection given expression "while you smile complacently
at the Second torn and bleeding. If the Second Amendment is not worth the
paper it is written on, what price the First?" [99] The fact that Mr. Donaldson
is an ordinary citizen rather than an eminent law professor does not make
his question any less pointed or its answer less difficult.
Opinion 4 - John Lott
from "The Cold, Hard Facts About Guns"
(originally published in Chicago Tribune, May 8,
1998, at 27)
America may indeed be obsessed with guns, but much of what passes as
fact simply isn't true. And
these misimpressions have real costs for people's safety. Many myths
needlessly frighten people and
prevent them from defending themselves most effectively.
Myth No. 1: When one is attacked, passive behavior is the safest approach.
The Department of Justice's National Crime Victimization Survey reports
that the probability of serious
injury from an attack is 2.5 times greater for women offering no resistance
than for women resisting
with a gun. Men also benefit from using a gun, but the benefits are
smaller: offering no resistance is
1.4 times more likely to result in serious injury than resisting with
a gun.
Myth No. 2: Friends or relatives are the mostlikely killers. The myth
is usually based on
two claims: 1) 58 percent of murder victims are killed by either relatives
or acquaintances
and 2) anyone could be a murderer.
With the broad definition of "acquaintances" used in the FBI's Uniform
Crime Reports, most victims
are indeed classified as knowing their killer. However, what is not
made clear is that acquaintance
murder primarily includes drug buyers killing drug pushers, cabdrivers
killed by first-time customers,
gang members killing other gang members, prostitutes killed by their
clients, and so on. Only one city,
Chicago, reports a precise breakdown on the nature of acquaintance
killings: between 1990 and 1995
just 17 percent of murder victims were either family members, friends,
neighbors and/or roommates.
Murderers also are not your average citizen. For example, about 90
percent of adult murderers have
already had a criminal record as an adult. Murderers are overwhelmingly
young males with low IQs
and who have difficult times getting along with others. Furthermore,
unfortunately, murder is
disproportionately committed against blacks and by blacks.
Myth No. 3: The United States has such a high murder rate because Americans
own so
many guns.
There is no international evidence backing this up. The Swiss, New Zealanders
and Finns all own guns
as frequently as Americans, yet in 1995 Switzerland had a murder rate
40 percent lower than
Germany's, and New Zealand had one lower than Australia's. Finland
and Sweden have very different
gun ownership rates, but very similar murder rates. Israel, with a
higher gun ownership rate than the
U.S., has a murder rate 40 percent below Canada's. When one studies
all countries rather than just a
select few as is usually done, there is absolutely no relationship
between gun ownership and murder.
Myth No. 4: If law-abiding citizens are allowed to carry concealed handguns,
people will
end up shooting each other after traffic accidents as well as accidentally
shooting police
officers.
Millions of people currently hold concealed handgun permits, and some
states have issued them for as
long as 60 years. Yet, only one permit holder has ever been arrested
for using a concealed handgun
after a traffic accident and that case was ruled as self-defense. The
type of person willing to go through
the permitting process is extremely law-abiding. In Florida, almost
444,000 licenses were granted from
1987 to 1997, but only 84 people have lost their licenses for felonies
involving firearms. Most
violations that lead to permits being revoked involve accidentally
carrying a gun into restricted areas,
like airports or schools. In Virginia, not a single permit holder has
committed a violent crime.
Similarly encouraging results have been reported for Kentucky, Nevada,
North Carolina, South
Carolina, Texas and Tennessee (the only other states where information
is available).
Myth No. 5: The family gun is more likely to kill you or someone you
know than to kill in
self-defense.
The studies yielding such numbers never actually inquired as to whose
gun was used in the killing.
Instead, if a household owned a gun and if a person in that household
or someone they knew was shot
to death while in the home, the gun in the household was blamed. In
fact, virtually all the killings in
these studies were committed by guns brought in by an intruder. No
more than four percent of the gun
deaths can be attributed to the homeowner's gun. The very fact that
most people were killed by
intruders also surely raises questions about why they owned guns in
the first place and whether they
had sufficient protection.
How many attacks have been deterred from ever occurring by the potential
victims owning a gun? My
own research finds that more concealed handguns, and increased gun
ownership generally,
unambiguously deter murders, robbery, and aggravated assaults. This
is also in line with the
well-known fact that criminals prefer attacking victims that they consider
weak.
These are only some of the myths about guns and crime that drive the
public policy debate. We must
not lose sight of the ultimate question: Will allowing law-abiding
citizens to own guns save lives? The
evidence strongly indicates that it does.