Feb. 7, 2000, 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. Feb. 7, 2000.
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. Special Legal Update: Emerson and Waco cases.
2. Notable web publications: New work from legal scholars.
3. Prize-winning student essay on Columbine.
4. H.L. Mencken on gun control.

1. Legal Update.
a. Emerson case.
All the briefs have now been filed in the case of United States v. Emerson, currently before the Fifth Circuit Court of Appeals. Here is a guide to where to find Emerson briefs on the web:

Independence Institute brief, written by Dave Kopel. Uses state constitution texts to argue that the Second Amendment guarantees an individual right

Second Amendment Foundation's Emerson site. Contains the government Brief and all pro-government amici briefs. (Of these, the Yassky brief is the best.) Also contains public defender's brief for Emerson, and amicus briefs of the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms. The site will eventually contain all Emerson briefs.

Heartland Institute and Ethan Allan Institute brief. Written by Southern Illinois University law professor Brannon Denning. Deconstructs the lower federal court cases asserting that the Second Amendment is not an individual right.

Texas Justice Foundation brief. Written by Stephen Halbrook.
Focus on the language of the Second Amendment, and other material from the Early Republic.

Gun Owners Foundation. Written by James Jeffries.
Surveys the scholarly literature on the Second Amendment. Very useful as a bibliography, besides being a good brief.

National Rifle Association. By Nicholas Johnson & Robert Dowlut.
Analysis of Supreme Court and lower court decisions.
http://www.nraila.org From there, browse for the Emerson brief.

Among the briefs that have not yet been posted on the web are those for:
Academics for the Second Amendment, Law Enforcement Alliance of America, Jews for the Preservation of Firearms Ownership/Southern States Police Benevolent Association.
b. Waco case.
The Supreme Court has granted certiorari in the Waco criminal case!
The case is:
Jaime Castillo, et al., Petitioners v. United States (No. 99-658).
The only issue in the case is interpretation of a federal statute imposing a lengthy sentence enhancement (up to 30 extra years, which the Branch Davidians in fact received), for use of a machine gun during a crime. At trial, the jury acquitted all the Branch Davidians of murder, but convicted several of them of manslaughter. (The jury was allowed to consider self-defense for the murder charge, but not for the manslaughter charge.) The jury found that the Davidians had used firearms, but the jury made no findings about what type of firearm. The maximum federal sentence for manslaughter is 10 years. At sentencing federal district judge Walter Smith gave most of the Branch Davidians the full ten years, plus 30 additional years (consecutive to the 10) for using a machine gun in a violent crime.

The sentence enhancement statute is 18 U.S.C. § 924(c)(1). The Supreme Court will decide whether the sentence enhancement statute requires that the defendant be indicted by a grand jury for violating the statute, and whether the statute requires that the jury find beyond a reasonable doubt that the defendant used a machine gun.

The case comes as an appeal from the Fifth Circuit Court of Appeals.

The brief for the petitioner briefs is due on Feb. 20.
The United States brief due on March 29.

Each of the Waco defendants has his or her own attorney. Jamie Castillo, the lead defendant, is represented by Stephen Halbrook. Halbrook has previously won two Supreme Court decisions by a 5-4 vote. The first case, U.S. v. Thompson/Center, was a statutory interpretation case involving the assembly of firearms; the second case, Printz & Mack v. U.S., negated the Brady Act's mandate that local sheriffs perform a federal background check on gun buyers.

2. Notable items on the web. This week's list focuses on items by legal scholars.

John Lott (Law, Yale), "Creating Hysteria Over Guns." Wash. Times,
Jan. 31, 2000. One of Lott's best op-eds ever.

Eugene Volokh (Law, UCLA). "Bans on Guns or Handguns—is it true that "no one is Seriously proposing" them? One of the many fine items on Volokh's Gun Scholars site. Collection of numerous quotes showing that gun prohibition is the ultimate goal of many "gun control" advocates.

J.D. Turcille. "Spotlight on Antigun Lawsuits."
Very good collection of information, at the Free-Market.Net site.

J.D. Turcille. "Pinstiped Gunslingers."
On the About.com site. Good essay, plus lots of useful links.

"NFA and other gun law related info and cases." Much more than the title suggests. No graphics, but an outstanding treasure trove of court cases, briefs, articles, regulations, and much more on firearms law. Federal, state, and local materials all available. One of the best gun law resources on the web, and not nearly well-known enough.

3. "Essay wins trip to D.C. for teen"
This item originally appeared in the Commerce City Beacon in the summer of 1999. (Commerce City is north of Denver.

Rick Ward's short essay will get him a free trip to Washington, D.C. As reported in last week's Beacon, this 19-year-old Lester Arnold High School student will attend a two day conference "Voices Against Violence" to be held October 19-20.

Here is his essay:

I don't think that TV, music, movies and video games cause violence. I think that the parents should take time to teach their children right from wrong, real from fake. Parents should tell their children that if you shoot someone they won't get up afterwards. Take me for example. I watch cartoons but I never wanted to drop an anvil on a duck. I listen to rap but I don't go out and kill people. And it's all because my parents taught me all those things.
The government wants to outlaw guns. Why? Guns don't even know what they're doing. They aren't even alive. Then people say that the kids from Columbine suffered. Alright, it might be sad but that's the only time they'll ever hear gun shots. But kids in my neighborhood hear them every night. Then they wake up to see their mom lighting up a crack pipe. I had two friends murdered- one this summer and the other one a few years ago and I didn't still say that the gun didn't kill him and the knife didn't kill him. It was some fool with a trip.
Violence doesn't even come from outside influences. In my opinion, it comes from the home.

4. "The Uplifters Try It Again." by H. L. Mencken
THE EVENING SUN, Baltimore, 1925.

The eminent Nation [note: Mencken is referring to the leftist magazine, "The Nation"] announces with relish "the organization of a national committee of 100 to induce Congress to prohibit the inter-State traffic in revolvers," and offers the pious judgement that it is "a step forward." "Crime statistics," it appears, "show that 90% of the murders that take place are committed by the use of the pistol, and every year there are hundreds of cases of accidental homicides because someone did not know that his revolver was loaded." The new law or is it to be a constitutional amendment? We'll do away with all that. "It will not be easy," of course, "to draw a law that will permit exceptions for public officers and bank guards" to say nothing of Prohibition agents and other such legalized murderers. "But soon even these officials may get on without revolvers."

More than once in this place, I have lavished high praise upon the Nation. All that praise has been deserved, and I am by no means disposed to go back on it. The Nation is one of the few honest and intelligent periodicals published in the United States. It stands clear of official buncombe; it prints every week a great mass of news that the newspapers seem to miss; it interprets that news with a freedom and a sagacity that few newspaper editors can even so much as imagine. If it shut up shop then the country would plunge almost unchallenged into the lowest depths of Coolidgism, Rotarianism, Stantaquaism and other such bilge. It has been for a decade past, the chief consolation of the small and forlorn minority of civilized Americans.

But the Nation, in its days, has been a Liberal organ, and its old follies die hard. Ever and anon, in the midst of its most eloquent and effective pleas for Liberty, its eye wanders weakly toward Law. At such moments the old lust to lift 'em up overcomes it, and it makes a brilliant and melodramatic ass of itself. Such a moment was upon it when it printed the paragraph that I have quoted. Into that paragraph of not over 200 words it packed as much maudlin and nonsensical blather, as much idiotic reasoning and banal moralizing, as Dr. Coolidge gets into a speech of two hours' length.


The new law that it advocated, indeed, is one of the most absurd specimens of jackass legislation ever heard of, even in this paradise of legislative donkeyism. Its single and sole effect would be to exaggerate enormously all of the evils it proposes to put down. It would not take pistols out of the hands of rogues and fools; it would simply take them out of the hands of honest men. The gunman today has great advantages everywhere. He has artillery in his pocket, and he may assume that, in the large cities, at least two-thirds of his prospective victims are unarmed. But if the Nation's proposed law (or amendment) were passed and enforced, he could assume safely that all of them were unarmed.

Here I do not indulge in theory. The hard facts are publicly on display in New York State, where a law of exactly the same tenor is already on the books the so-called Sullivan Law. In order to get it there, of course, the Second Amendment had to be severely strained, but the uplifters advocated the straining unanimously, and to the tune of loud hosannas, and the courts, as usual, were willing to sign on the dotted line. It is now a dreadful felony in New York to "have or possess" a pistol. Even if one keeps it locked in a bureau drawer at home, one may be sent to the hoosegow for ten years. More, men who have done no more are frequently bumped off. The cops, suspecting a man, say, of political heresy, raid his house and look for copies of the Nation. They find none, and are thus baffled but at the bottom of a trunk they do find a rusted and battered revolver. So he goes to trial for violating the Sullivan Law, and is presently being psycho- analyzed by the uplifters at Sing Sing.

With what result? With the general result that New York, even more than Chicago, is the heaven of footpads, hijackers, gunmen and all other such armed thugs. Their hands upon their pistols, they know they are safe. Not one citizen out of a hundred that they tackle is armed for getting a license to keep a revolver is a difficult business, and carrying one without it is more dangerous than submitting to robbery. So the gunmen flourish and give humble thanks to God. Like the bootleggers, they are hot and unanimous for Law Enforcement.


To all this, of course, the uplifters have a ready answer. (At having ready answers, indeed, they always shine!) The New York thugs, they say, are armed to the teeth because New Jersey and Connecticut lack Sullivan Laws. When one of them wants a revolver all he has to do is to cross the river or take a short trolley trip. Or, to quote the Nation, he may "simply remit to one of the large firms which advertise the sale of their weapons by mail." The remedy is the usual dose: More law. Congress is besought to "prohibit the inter-State traffic in revolvers, especially to bar them from the mails."

It is all very familiar, and very depressing. Find me a man so vast an imbecile that he seriously believes that this prohibition would work. What would become of the millions of revolvers already in the hands of the American people if not in New York, then at least everywhere else? (I own two and my brother owns at least a dozen, though neither of us has fired one since the close of the Liberty Loan drives.) Would the cops at once confiscate this immense stock, or would it tend to concentrate in the hands of the criminal classes? If they attempted confiscation, how would they get my two revolvers lawfully acquired and possessed without breaking into my house? Would I wait for them docilely or would I sell out, in anticipation, to the nearest pistol bootlegger?

The first effect of the enactment of such a law, obviously, would be to make the market price of all small arms rise sharply. A pistol which is now worth, second-hand, perhaps $2, would quickly reach a value of $10 or even $20. This is not theorizing; we have had plenty of experience with gin. Well, imagining such prices to prevail, would the generality of men surrender to the Polizei, or would they sell them to the bootleggers? And if they sold them to the bootleggers, what would become of them in the end: would they fall into the hands of honest men or into the hands of rogues?


But the gunmen, I take it, would not suffer from the high cost of artillery for long. The moment the price got really attractive, the cops themselves would begin to sell their pistols, and with them the whole corps of Prohibition blacklegs, private detectives, deputy sheriffs, and other such scoundrels. And smuggling, as in the case of alcoholic beverages, would become an organized industry, large in scale and lordly in profits. Imagine the supplies that would pour over the long Canadian and Mexican borders! And into every port on every incoming ship!

Certainly, the history of the attempt to enforce Prohibition should give even uplifters pause. A case of whisky is a bulky object. It must be transported on a truck. It can not be disguised. Yet in every American city today a case of whisky may be bought almost as readily as a pair of shoes despite all the armed guards along the Canadian border, and all the guard ships off the ports, and all the raiding, snooping and murdering everywhere else. Thus the camel gets in and yet the proponents of the new anti-pistol law tell us that they will catch the gnat! Go tell it to the Marines!

Such a law, indeed, would simply make gun-toting swagger and fashionable, as Prohibition has made guzzling swagger and fashionable. When I was a youngster there were no Prohibition agents; hence I never so much as drank a glass of beer until I was nearly 19. Today, Law Enforcement is the eighth sacrament and the Methodist Board of Temperance, Prohibition and Public Morals is itself the authority for the sad news that the young of the land are full of gin. I remember, in my youth, a time when the cops tried to prohibit the game of catty. At once every boy in Baltimore consecrated his whole time and energy to it. Finally, the cops gave up their crusade. Almost instantly catty disappeared.


The real victim of moral legislation is almost always the honest, law-abiding, well-meaning citizen what the late William Graham Summer called the Forgotten Man. Prohibition makes it impossible for him to take a harmless drink, cheaply and in a decent manner. In the same way the Harrison Act puts heavy burdens upon the physician who has need of prescribing narcotic drugs for a patient, honestly and for good ends. But the drunkard still gets all the alcohol that he can hold, and the drug addict is still full of morphine and cocaine. By precisely the same route the Nation's new law would deprive the reputable citizen of the arms he needs for protection, and hand them over to the rogues that he needs protection against.

Ten or fifteen years ago there was an epidemic of suicide by bichloride of mercury tablets. At once the uplifters proposed laws forbidding their sale, and such laws are now in force in many States, including New York. The consequences are classical. A New Yorker, desiring to lay in an antiseptic for household use, is deprived of the cheapest, most convenient and most effective. And the suicide rate in New York, as elsewhere, is still steadily rising.

(Copyright, 1925, by The Evening Sun. Republication without credit not permitted.)

As always, the Independence Institute website contains extensive information on:

Criminal Justice and the Second Amendment: http://i2i.org/crimjust.htm
The Columbine High School murders: http://i2i.org/suptdocs/crime/columbine.htm and
The Waco murders: http://i2i.org/Waco.htm
The Independence Institute's on-line bookstore. Start your browsing at the Second Amendment section:

 That's all folks!

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