Dave Kopel's Second Amendment Newsletter. March 31, 2004

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.

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Dave Kopel's Second Amendment Project is based at the
Independence Institute, a free-market think tank in
Golden, Colorado.


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Table of Contents for this issue

1. New by Kopel:

2. Dave's National Review Weblog Entries

3. Guest Editorial by Don Kates

4. Self Defense

5. International

6. Terrorism

7. Law

8. Research

9. The States

1. New by Kopel

Lions vs. Tigers. The precarious state of Sri Lanka.

The Return of a Legislative Legend. Debating "cop-killer" ammunition.

Erasing A Clinton Legacy: Rolling Back Antigun Regs. New law protects privacy rights of law-abiding gun owners.

"Global Deaths from Firearms: Searching for Plausible Estimates."
Texas Review of Law & Politics, Vol. 8, no. 1 (Fall 2003)

David Kopel, Paul Gallant and Joanne Eisen lead off our symposium
articles from the Symposium on the Legal, Economic, and Human Rights
Implications of Civilian Firearms Ownership and Regulation. They note
that proponents of gun control often claim that Small Arms and Light
Weapons account for 500,000 deaths annually. But they then demonstrate
that existing data does not support such a finding and that firearm
prohibition would only prevent a small number of deaths by
civilian-owned firearms.

2. Kopel weblog entries on the National Review Online's "The Corner"

Feb. 26, 2004

The gun-prohibition lobby has suffered a major defeat in the Missouri
supreme court. Today the court ruled that Missouri's new law to create
concealed-handgun permits for licensed, trained citizens who pass a
background check. The law was enacted last fall, when the Missouri
legislature over-rode the governor's veto. The gun-prohibition lobbies
quickly filed suit against the new law, shopped for an anti-gun judge,
and obtained a temporary injunction against the concealed-carry law.
The Missouri supreme court overturned the injunction, thereby allowing
the law to go into effect.

Article I, section 23, of the Missouri constitution states: "That the
right of every citizen to keep and bear arms in defense of his home,
person and property, or when lawfully summoned in aid of the civil
power, shall not be questioned; but this shall not justify the wearing
of concealed weapons." The obvious meaning of the final clause is that
concealed carry is not part of the right to keep and bear arms. The
Missouri legislature could prohibit concealed carry entirely, could
allow unrestricted concealed carry, or could allow concealed carry
under certain circumstances. The Missouri legislature chose the third
option: prohibiting concealed carry except for people who are given a
license according to state standards.

The gun prohibition groups made the preposterous argument--with the
trial judge in Saint Louis accepted--that the constitutional clause
forbids concealed carry under all circumstances. The Missouri supreme
court rejected this absurd claim. The court wrote: "There is no
constitutional prohibition against the wearing of concealed weapons;
there is only a prohibition against invoking the right to keep and bear
arms to justify the wearing of concealed weapons." A contrary decision
would have made it illegal for even police officers to carry concealed

Not long ago, the New Mexico supreme court rejected a similarly nonsensical claim against a new concealed-carry law in the Land of Enchantment.

The Missouri supreme court did rule that the new law cannot go into
effect in four counties, because the law, at least arguably, imposes an
unfunded mandate on local law enforcement for the cost of issuing the
permits. The Missouri constitution's "Hancock Amendment" prohibits
unfunded mandates. Sheriffs are allowed to charge a fee of up to $100,
but a few sheriffs have argued that the fee is inadequate. It is
expected that the issue regarding appropriate fees will not be
difficult to fix by the state legislature.

Feb. 2, 2004

After winning the New Hampshire primary, John Kerry told CNN, "I've
been a hunter all my life, and I'm a gun owner, and I've never thought
of going hunting with an AK-47. I believe in the Second Amendment."
Indeed, while Kerry has almost always voted with the anti-gun lobby, on
May 17, 2000, he was part of the 69-30 Senate majority that passed a
non-binding resolution urging respect for Second Amendment rights. The
resolution, Amdendment no. 3150by Senator Lott began: "(a)
FINDINGS.--The Senate makes the following findings: (1) The Second
Amendment to the United States Constitution protects the right of each
law-abiding United States citizen to own a firearm for any legitimate
purpose, including self-defense or recreation." The resolution
concluded that "It is the sense of the Senate that:...The right of each
law-abiding United States citizen to own a firearm for any legitimate
purpose, including self-defense or recreation, should not be

Senator Kerry has pledged that as President he would only appoint
judges who support Roe v. Wade. Accordingly, it is reasonable to ask
Senator Kerry if he will promise to appoint only judges who agree with
Kerry that "The Second Amendment to the United States Constitution
protects the right of each law-abiding United States citizen to own a
firearm for any legitimate purpose, including self-defense or


3. Guest editorial


The tragic story that follows epitomizes the problem of government
misfeasance and nonfeasance. A promising young woman was murdered (after
being raped) arguably because Philadelphia beat cops did not know that
there was a serial rapist striking in one of the better areas of the
city. They did not know that because the Philadelphia Police Department
had an unofficial policy of making its crime statistics look better and
reducing work and stress on detectives by systematically minimizing or
completely ignoring rapes (and other violent crimes).

Some of you may be, as I am, fans of "WEB" Griffin and may know that in
addition to the novels for which he is noted, he has a series on the
Philadelphia Police Department oxymoronically called "Badge of Honor."
In private WEB does not attempt to defend this term and admits he picked
Phili simply because he knew someone in the Department. In fact, the
term "Badge of Dishonor" is a more accurate description of this
department which has long been known for corruption, chaos and
brutality. If not the worst, it is certainly among the worst big city
departments in the nation.

Having spent a good many years handling and writing about alleged police
misconduct cases, I believe there is a simple, practical measure that
can alleviate much of the problem in this department and other police
agencies, and government misfeasance and nonfeasance in general. That
solution is to energize the deterrent power of punitive damages.

To understand the imperative for punitive damages it is necessary to
know what the distinction is between compensatory and punitive damages.
As the story below states, the parents are suing Phili under the
federal Civil Rights Act (42 U.S.C. § 1983) for $3.4 million. As
also stated, their winning is dependent on proving something that is
probably unprovable for it is probably untrue: that the Phili cops were
downplaying rape because they don't care about women. On the contrary,
they were evenhandedly downplaying all violent crime because they want
to do less work and make themselves look less bad and they don't care
about any ordinary person, male or female.

More important, however, even if the Schiebers get their $3.4 million it
will have no effect other than to make them and their lawyer richer.
That is because the $3.4 million will be levied against the city and be
paid by the hapless taxpayers who are helpless to do anything against
the officials actually responsible for the policy involved. None of
those officials are going to be discomfited in the least. Even if the
verdict would result in decreasing the funds available to the Phili
police department that would only result in citizens getting less police
protection, not in deterring police misconduct. (Moreover, note that,
even assuming reducing departmental resources inconvenienced its
current leadership, that would mean nothing for the guilty officials. As
the article notes, by now they have either retired or moved on to head
other police departments elsewhere.)

This is not an isolated problem, but rather a universal one with
government misconduct. Indeed, it is far worse with the federal
government. Randy Weaver received a $3 million settlement for the
F.B.I.'s killing his wife etc. conduct so unlawful that several agents
present at Ruby Ridge refused to follow the invalid "Rules of
Engagement" promulgated by their superiors. Why would the F.B.I. settle
for $3 million?

Why not when none of those responsible lost anything nor did the FBI
itself? The award was simply passed on to the federal treasury while the
actual wrongdoers got off scot free. (The agent who killed Mrs. Weaver
was indicted for manslaughter by the state prosecutor, but the FBI just
had the case removed to federal court and summarily dismissed w/o

Now I am not denying that Randy Weaver and the Schiebers should be
compensated for their respective losses. But the difference
between compensatory damages and punitives is that the latter are
levied only against the officials or officers actually responsible for
the wrong-doing. Suppose each of the defendant officers or officials in
the Schieber case (or the Weaver case for that matter) were held liable
for $1 million in punitive damages. They would have to pay those
damages, not their agencies. These defendants might take refuge in
bankruptcy of course, assuming they could make the necessary financial
showing. But that would only magnify the deterrent effect. Officials and
officers across the nation would be deterred from misconduct by the news
that a bunch of Phili cops had been forced into bankruptcy by a civil
verdict for misconduct.

There, however, is the rub. Plaintiffs' attorneys are liable to shy away
from seeking, or at least pressing, punitive claims. On the one hand,
the discovery required to pin down exactly who was responsible for the
wrong is expensive and time consuming and complicates the issue at
trial. On the other hand, collecting a punitive damage judgment is
usually very difficult if the defendant goes bankrupt or if collecting
requires attaching his assets or paycheck for years.

Nevertheless it is not impossible to motivate plaintiffs' lawyers to
actively seek punitives. One obvious measure would be to make it
counsel's duty to do so in any case of intentional tort by a government
employee or officer and provide that the court would examine whether
counsel failed to actively seek punitive damages in a case in which they
were likely. If counsel had failed, s/he would just lose the contingent

I do not suggest that these issues are simple or that better
alternatives are unavailable. But I feel very strongly that this is a
form of "tort reform" that is urgently needed . Incidentally, I am not a
trial lawyer and my suggestion will not find favor with trial lawyers.
Also, I have been involved in defending officers and departments as well
as in suits against them.

4. Self-defense

Subway Hero: No One Helped
Neil Graves
The New York Post
Jan 14, 2004 http://pqasb.pqarchiver.com/nypost/524476111.html?did=524476111&FMT=CITE&FMTS=FT&date=Jan+14,+2004


"A good Samaritan who was viciously slashed as he defended another
subway rider from a razor-wielding robber said yesterday no other
passengers came to his aid-

Sword-Wielding Teen Captures Suspect
Greg Jonsson
St Louis Today
Jan. 30 2004

Joshua Cary heard a noise in the basement, grabbed a sword from his big
brother's collection and went downstairs to investigate. The 14-year-old
didn't mince words. "I'm going to give you until the count of three to
come out, or I'm going to stab you," he yelled Thursday, according to
his mother, Rebecca Cary. Soon, a handcuffed man emerged, saying, "I
didn't do it."

5. International

Sword Ban After Attacks
Misha Ketchell
The Age Online
March 9, 2004


Swords will come under tough new controls from July as the Australian
Government cracks down on violence. Anyone with a sword in their home
will have three options: sell it to a licensed dealer, hand it in to
police, or apply to police for permission to keep it as a collector.

Canada's Gun Law Unconstitutional
CBC North News
March 4, 2004
An Ontario judge has ruled that Canada's gun registry violates treaty
rights of Aboriginal hunters.

Disabled Man, 71, Arrested For Killing Armed Robber
13 January 2004


A 71-year-old invalid vehicle yard owner in Amsterdam has been arrested
for shooting and killing a man during an attempted armed robbery last
month, but the businessman claims he acted in self-defense.

More Guns, Less Beeb?
By Scott Norvell
Tech Central Station
March 12, 2004

BBC Radio show organizers were obviously aghast when the winner in a
'Best Law for the New Year' call-in poll, with 37 percent of the vote,
was a law allowing homeowners to use "any means" to defend their
property from intruders.

Calls to Sack 'Gun Lessons for Children' MP
Rod Minchin
The Scotsman
March 9, 2004

"Mothers Against Murder and Aggression" said that Patrick Mercer's
comments that the British gun ban was useless and that children should
be taught to handle firearms were "crass" and "appalling", while the
SNP said the Tories should either "back him or sack him".

Second Amendment Set to Go Global With First Stop England
Jan Ireland
March 20, 2004

Alan Gottlieb's Citizens Committee for the Right to Keep and Bear Arms
is opening a branch in England with plans to agitate for the right of
citizens to keep arms for their defense in countries besides the United

6. Terrorism

Dominate. Intimidate. Control: The Sorry Record of the Transportation Security Administration
James Bovard
Reason Online
February 2004

As Bovard puts it, "arrogant, abusive, incompetent, and expensive, the
TSA is, in the words of the House Appropriations Committee, "seemingly
unable to make crisp decisions...unable to work cooperatively with the
nation's airports; and unable to take advantage of the multitude of
security-improving and labor-saving technologies available."

6. History

Bellesiles Hoax Continues: Shameless liar returns.
Kimberley A. Strassel
The Wall Street Journal
February 6, 2004

Michael Bellesiles, author of the discredited 'Arming America,' has
found another publisher after his first abandoned him. Soft Skull
Press has not only agreed to reissue "Arming America" but has decided
to release Mr. Bellesiles's latest response to his critics. It does
not convince Ms. Strassel.

7. Law

Airsoft Guns A Rage With Young Boys; Dangers Cited
John Sleezer
The Kansas City Star
February 10, 2004

Realistic-appearing toy guns that shoot soft plastic pellets are
becoming objects of concern to Kansas City area governments. Laws are
in effect similar to the proposed Denver 'slingshot ban.'

Victory in Missouri
Clayton W. Cramer
The Shotgun News
November 1, 2003

Over the most strident efforts of the Missouri anti-RKBA officials and
lobby, the state of Missouri has at last joined the ranks of the 'shall
issue' concealed carry permit states.

Church Ban On Guns Allowed
Bill Gardner
St. Paul Pioneer-Press
March 17, 2004

Hennepin County District Judge Marilyn Rosenbaum ruled that the handgun
permit law infringes upon the churches' "free exercise of religion as
guaranteed by the Minnesota Constitution." Her ruling allows churches
to ban guns in their parking lots and day-care facilities as well as
the church building.

8. Research

Stephen P. Halbrook
"Citizens in Arms: The Swiss Experience"
The Texas Review of Law & Politics
Volume 8, Issue 1 (Fall 2003)

The author argues that arming a country's citizens in peacetime
prevents foreign aggression and does not lead to increased crime.
Mr. Halbrook examines the prevalence of gun ownership and use in
the Swiss culture and its effect of preventing German invasion
during World War II.

Joyce Lee Malcolm
"Lessons of History: Firearms Regulation and the Reduction of Crime"
"Citizens in Arms: The Swiss Experience"
The Texas Review of Law & Politics
Volume 8, Issue 1 (Fall 2003)

Malcolm analyzes the history of violent crime and gun control in
England and shows that violent crime was least when gun control did not
exist and that increasing gun control has resulted in increasing
violent crime.

James Swan
"Peaceful Arms: Hunting and Sport Shooting"
The Texas Review of Law & Politics
Volume 8, Issue 1 (Fall 2003)

Swan brings out the oft-unreported positive impacts of hunting and
sport shooting on the economy, the environment, the culture, and mental

Do Gun Control Activists Pad Gun Death Statistics?
Wendy McElroy
Fox News Commentaries
March 03, 2004

Those seeking to exploit the recent release of the Columbine police
documents and other firearms tragedies for an anti-RKBA agenda are
using categories of data among their figures that are more than
slightly dubious.

Concerns about gun stores misguided
Doug Pike
The Houston Chronicle
Jan. 19, 2004, 9:04PM

A Washington-based non-profit group called Americans for Gun
Safetyclaims to take the middle ground on gun ownership. Mr.
Pike has many reasons to question its neutrality.

9. The States

Gun records bill gains in Senate
Marc Caputo
Miami Herald
March 25, 2004

Florida Police departments would be banned from compiling some gun
records that could help them solve some crimes more quickly, under a
proposal that legislators want the governor to sign into law.

Home Protection' Gun Bill Passes Illinois House
Leslie Griffy and Dave Mckinney
Chicago Sun-Times
March 25, 2004

Objections from urban-area lawmakers failed to stop a measure in Springfield that would allow citizens who break city gun ownership laws to avoid fines incurred while using firearms in self-defense.

Bloomy's 'Fun' Gun
David Seifman
The New York Post
March 17, 2004

New York City's Mayor Bloomberg demands the banning of realistic toy
guns after police officers have shot several people 'armed' with them.

Review: Dillon Precision Hp-1 Hearing Protectors
The Sight

This is a great product. I own a pair, and they work beautifully!
Firearms defense instructors recommend electronic sound
suppression/enhancement devices such as these even for home defense

10. Politics

Mark J. Penn & Peter Brodnitz
Winning the Gun Vote
New Democrats Online: The Democratic Leadership Council's Online Community
October 16, 2003

These two members of the 'Americans for Gun Safety' group provide the
Democratic Party with the results of a survey their organization
conducted as to why supporters of the 2nd Amendment do not support
their party.

This newsletter is compiled with help from Dr. Rob S. Rice. Dr.Rice,
who will not testify in public, is a historian, writer and factotum of
matters electronic to Dave Kopel.

Al Qaeda delenda est! Abu Abbas mortus est. Sic melior.

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