July 14, 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. July 14, 2000.
The Second Amendment Project is based at the Independence Institute, a free-market think tank in Golden, Colorado.
American Patriotism Celebration Issue

Table of Contents for this issue

1. Kopel on Robert Remini's book The Battle of New Orleans.
2. Don't Let Schools Off the Hook. The Dos and Don'ts of Preventing School
Violence. By Dave Kopel & Dr. Helen Smith.
3. Eighth Circuit dicta says Second Amendment is individual right.
4. National Center for Health Statistics. Firearms mortality data for 1997.
5. Claremont Institute lauds "The Patriot."

1. The Battle of New Orleans: Andrew Jackson and America's First Military Victory. By Robert V. Remini. Viking. pp. xiv, 226. Review by David B. Kopel.
First published in Chronicles magazine, July 2000.

"There was a time when the United States had heroes and reveled in them. There
was a time when Andrew Jackson was one of those heroes, along with the men who
stood with him at New Orleans and drove an invading British army back to the
sea." So begins Robert Remini's excellent book The Battle of New Orleans, which
aims to recover America's history and one of its greatest heroes.

Before the War Between the States, the Battle of New Orleans was celebrated
nearly on a par with Independence Day-each anniversary commemorating the
triumph of American liberty and virtue over the British monarchy.

Andrew Jackson's victory at New Orleans capped his campaigns against the
British and the Indians in the southeast, ensuring American control over the
region. Without the new cotton-producing states such as Mississippi and
Louisiana, slavery might have withered in the 1830s and 1840s, rather than
expanding. So it is understandable that postbellum America lost interest in the
events of 1815.

Today, however, slavery is long gone from the United States (although slave
labor products pour into the United States from China). The time has come to
Andrew Jackson and his brave army to reclaim their place in the American

To the extent that junior high school history textbooks mention the Battle of
New Orleans, they insist that the Battle was irrelevant, since the battle was
fought on January 8, 1815, and the Treaty of Ghent, ending the war, was signed
on December 24, 1814. But this just isn't so.

Had the British captured New Orleans-the key to the economy of almost all the
Louisiana Territory--it is doubtful that they would have relinquished it,
despite what the Treaty of Ghent required. Indeed, the British had violated the
Treaty of Paris, which ended the American Revolution, by refusing to evacuate
their forts east of the Mississippi.

Before conveying the Louisiana Territory to the United States in 1803, France
had acquired the Territory from Spain in the 1800 Treaty of San Idelfonso.
Under that Treaty, Spain had the right of first refusal before France could
sell the Territory to any third party. The Louisiana Purchase was a plain
violation of Spain's rights under the Treaty of San Idelfonso, and Britain
would have had a strong legal case for conveying Louisiana back to Spain-if
Britain had been in control of Louisiana.

There would have been more immediate consequences too. As noted in the song
"The Hunters of Kentucky" (celebrating the Battle of New Orleans, the song
became the Jackson presidential campaigns' theme song), New Orleans is "famed
for wealth and beauty." British General Packenham had promised his soldiers
"beauty and booty"-meaning that they could rape the women and pillage the city.

The British Army was fresh from its triumph over John McCain's childhood hero
Napoleon, and the forces invading New Orleans were the best in the world-the
victors of the Peninsular Campaign in Spain. Against the best-trained, best-
equipped army in the world, the Americans did not even have enough weapons for
their forces. Remini quotes a contemporary observer: "From all the parishes the
inhabitants could be seen coming with their hunting guns" because "there were
not enough guns in the magazines of the United States to arm the citizens."

The Tennessee militia hardly looked like a professional army, with their rough
clothes, unshaven faces, and raccoon caps. The Kentucky militia was even worse,
arriving in rags, and disappointed to find out that there was no blankets in
the city for them. The Redcoats called them "dirty shirts." Yet, as Remini
explains, "most of these men could bring down a squirrel from the highest tree
with a single rifle shot. Their many years living in the Tennessee wilderness
had made them expert marksmen..."

The ladies of New Orleans, meanwhile, armed themselves with daggers, in case
the men lost, and the British rapists entered the city. When Andrew Jackson had
been a child, his mother had admonished him not to cry; she told him that
crying was for girls. When he asked what boys were for, she replied,
"fighting." But at New Orleans, the women too were prepared to fight; not a
single lady fled the city. The busied themselves with sewing, making new field
blankets, shoes, shirts, and pants for the men.

If "diversity" were really highly valued in our schools (rather than being a
code word for "hate America first"), then the Battle of New Orleans would be
known by every student in the nation. The men who fought on January 8, 1815
were a magnificent combination of professional soldiers, militia, irregulars,
free Blacks, Creoles, Cajuns, Spanish, French, Portuguese, Germans, Italians,
Indians, Anglos, lawyers, privateers, farmers, and shop-keepers.

When objections were raised to arming the free blacks of Louisiana, Jackson
replied: "place confidence in them, and...engage them by every dear and
honorable tie to the interest of the country who extends to them equal rights
and privileges with white men."

There were many heroes at New Orleans, not just Jackson. When the British army
captured Gabriel Villeré's plantation, he made a sudden break, fleeing with
British soldiers close behind, yelling "Catch him or kill him." Hiding in an
oak tree, he was forced to kill a favorite dog which had followed him, and
which would reveal his location. Villeré eventually got to a neighboring
plantation, hastily rowed upriver, and conveyed the news that the British army
had arrived.

After the British landing, Jackson spent four nights without sleep, as he rode
about the American fortifications-ordering improvements in the defenses,
receiving reports about British movements, and inspiring his men. He never even
dismounted to eat.

As the British maneuvered outside the city, nightly raids by the "dirty shirts"
killed British sentries, took their equipment, and kept the whole army off

During an engagement by the Cypress Swamp on December 28 (eleven days before
the main battle), the Tenneesseans waded though the muck, and leapt from log to
log like cats, driving off the British beefeaters. The "Hunters of Kentucky"
song would later boast that "every man was half a horse, and half an

In one encounter on the day of the main battle, a dirty shirt took aim at a
wounded British officer, who was walking back to his camp. "Halt Mr. Red Coat,"
yelled the American, "One more step and I'll drill a hole through your

The officer complied, sighing, "What a disgrace for a British officer to have
to surrender to a chimney-sweep."

Although the British greatly outnumbered the Americans, January 8, 1815 turned
into one of the worst days in British military history. Over two thousand
British soldiers were killed, captured, or wounded. The Americans lost only
seven killed, and six wounded, although their total casualties from skirmishes
on other days amounted to 333.

As new of the battle spread throughout the United States, the American
inferiority complex to the British began to recede. The Americans had smashed
the best that Britain could throw at them. Newspapers quoted Shakespeare's
Henry VI: "Advance our waving colors to the wall, Rescued is Orleans from the
English wolves." Jackson's upset victory was as important for America's future
as Joan of Arc's was for France.

Remini's compact book focuses almost exclusively on the battle and the
preceding weeks. He summarizes in a few pages of the conclusion, but does not
detail, the battle's larger significance in American life. I wish there had
been more, but even so, Remini's book is a major step towards re-remembering
one of the most glorious days in American history. Next January 8, tell your
children about Andrew Jackson and the Battle of New Orleans, and teach them how
Americans of both sexes, and all races, creeds, and colors united to fight for
freedom, and defeated the most powerful standing army of the greatest empire in
the world.

2. Don't Let Schools off the Hook
The dos and donts of preventing juvenile violence.

By Dr. Helen Smith, forensic psychologist, & Dave Kopel, Independence Institute
Dr. Helen Smith is the author of The Scarred Heart: Understanding and
Identifying Kids Who Kill.

Published on National Review Online, July 12, 2000.

Although last year saw far less school carnage than did year before, school
authorities are spending this summer, like last, laying plans and implementing
programs to counter violence in schools. Some of these programs are good -
like programs to ensure that kids with problems get help - and some, like
"zero tolerance" and the MOSAIC 2000 "geek profiling" software, are bad. But
all of them have one thing in common. They blame the kids, while ignoring the

Of course, we have known since biblical times that it is easier to see the mote
in someone else's eye than the beam in our own. But schools are a major part of
the problem. Schools that are successful at preventing juvenile violence look
very different from those that are not.

This should come as no surprise. Young people spend more waking hours in school
than any other single place. Yet far more attention is focused on the
pathologies of television, the Internet, and so on.

But if you listen to students, you hear a very different story: "School is a
totalitarian dictatorship: by the book, always by the book, even if the book is
wrong mentally," said one high school student who took part in a nationwide
survey of teens (conducted by the co-author of this article, Dr. Smith). "They
have rules that violate our rights and don't protect our safety in any way,"
says another. "Kids in the U.S. have no sense of personal responsibility,"
writes a Danish exchange student, "because parents and people from school keep
them on a tight leash."

Not all schools are like this. In fact, there are two kinds of schools: those
that take violence prevention seriously, and those whose primary interest is
protecting bureaucratic rear ends. Parents may want to note the following
characteristics of schools that are successful at dealing with violence.
Schools that are successful do not allow kids to feel intimidated. Teachers and
administrators are taught to take immediate action to intervene when bullying
is going on, instead of turning a blind eye or even - as happens all too
often, especially in phys. ed classes - tacitly encouraging the harassment.
When there has been a bullying incident, schools interview all of the kids who
were involved. Sometimes the kids who explode into violence believe that they
are in an intolerable situation and that no one cares or will help.

"We encourage parents to come in and talk if their child is being bullied, or
even just to talk about their child's school experience," explains Michael
Bundy, a counselor at a school with a successful violence-prevention program.
Then, "we follow up with the parents and kids about what steps will be taken to
correct the situation." Most importantly, he adds, "we create a climate of
consistency and reliability for parents and kids."

Kids aren't stupid. When schools enact "tough" rules that are strictly enforced
against the unpopular but waived for athletes, when discipline is arbitrary or
biased, and when promises to "look into" bullying produce no results, they lose
faith in the system and conclude that they can count on no one but themselves.
That sort of alienation is a major cause of school violence.

Before the next school year, parents owe it to themselves and their children to
look at their school's policies. Schools that talk a tough game of "zero
tolerance" but that have no procedure for intervening to prevent the kind of
conduct that leads to violence aren't part of the solution. As schools begin
looking into computer software that promises to profile kids, perhaps it's time
for parents to begin profiling schools. Young people's character counts for a
lot; so does a school's character

3. United States v. Hutzell (8th Cir. July 5)
"an individual's right to keep and bear arms is constitutionally protected, see
United States v. Miller, 307 U.S. 174, 178-79 (1939)."
This calls into question an earlier Eighth Circuit cases purporting to assert
that the Second Amendment does not protect an individual right.
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992)
See also United States v. Nelson, 859 F.2d 1318 (8th Cir. 1988).
The Hale and Nelson cases were inconsistent with a prior Eighth Circuit case
affirming a District Court decision that the
Second Amendment does protect an individual right. US v. Wiley, 309 F. Supp.
141, 145 (D. Minn. 1970), aff'd, 438 F.2d 773 (8th Cir. 1971).

4. National Center for Health Statistics, 1997 data. Released in September
Firearms deaths. The data are compiled from official death certificates.

Each line lists the following:
Name of cause of death. Total deaths in this category, all ages. Total deaths
in this category for persons aged 0-19. Total deaths in this category for
persons 14 and under.

Legal intervention by firearm, 270, 18, 1.
Not determined whether the fatal firearms discharge was accidental or was an
intentional crime. 367, 75, 15
All firearms homicides, including the two types listed above. 13849, 2562, 346.
Suicide by firearm. 17568, 1262, 127.
Firearm Accident, 981, 306, 142.

5. The Claremont Institute-PRECEPTS. June 28, 2000

Movie Critics Swamp the Swamp Fox
By Thomas L. Krannawitter

Mel Gibson's "The Patriot" opens in theaters across America
today. Gibson's character, Benjamin Martin, is modeled
partly on Francis Marion, the legendary "Swamp Fox" of
South Carolina.

There are two things about Marion that offend the
sensibilities of modern audiences: The first is that he was
a slaveholder. The second is that he is now accused of
committing horrid atrocities against the Cherokee.

The first charge, at least, is grounded in real history.
Like many others during the Founding period, Marion did own
slaves. More importantly however, is that also like these
other men, Marion risked life and limb to found the first
country in the history of the world on the principles of
equal natural rights, government by consent, and the rule
of law. Abraham Lincoln described this generation as "men
of iron."

The charge of hunting down Indians for sport, now being
circulated in the British press, appears to be something
contrived. In a letter to a friend written during the
Cherokee wars, Marion noted that some of the soldiers
enjoyed the "cruel work" of burning down Cherokee
villages, "laughing heartily at the curling flames." But
Marion thought such behavior unnecessary and unjust, and
wrote that "we surely need not grudge [them] such miserable
habitations." And when it came to chopping down Cherokee
crops, Marion records that he "could scarcely refrain from

Marion and his militia -- a ragtag band of white and black
soldiers known as "the Irregulars" -- kept the Revolution
alive in South Carolina in the face of the greatest army
then assembled on the earth. There exists a popular
anecdote of Marion which captures wonderfully how resolute
these great men were: Seeking an exchange of prisoners, a
British officer went to negotiate terms with Marion. The
British officer was surprised and somewhat taken aback by
the dreadful condition of Marion and his troops. They were
working without pay, clothed in rags, and living in the
middle of swampland. At the invitation of Marion, the
British officer stayed to dine with Marion and some of his
men. To the disgust and amazement of the officer, the menu
consisted of nothing but sweet potatoes and water! After
returning to his own troops and describing the awful
conditions he witnessed, the officer remarked that the
Americans were suffering all this misery for the cause of
liberty. "What chance have we against such men!" he
exclaimed to his British comrades.

In earlier times, Americans revered the name of Marion. No
doubt this was partly due to the romantic legend created by
biographer Parson Weems in the early nineteenth century.
Like the cherry tree myth of Washington, Weems sought to
popularize the courage, honor, justice and patriotism of
this great soldier. And his fellow Americans thought the
name and memory of Marion worth preserving as well. It is
no coincidence that today one finds across the country
streets, parks, towns, and counties bearing the
name "Marion."

Of course, the Americans who named these things were of a
different stock than those today who think multiculturalism
a virtue, and patriotism a vice.

Like the great general of the American Revolution, George
Washington, Marion was successful not because he won every
battle, but because he did effectively the one thing the
Americans had to do to win the war: He kept an army
together and refused to quit. This spirit of perseverance
is one of the pillars upon which America was built. This
manliness -- a word little used today -- was the reason
patriotic Americans made flags that bore the legend, "Don't
Tread on Me."

America's Founders believed freedom required limited
government. But limited government, and therefore freedom,
required many things from the people. It demanded sobriety,
industriousness, self-assertion, and self-restraint. It
required vigilance. As James Madison observed in Federalist
55, self-government "presupposes the existence of these
qualities in a higher degree than any other form." The
story of Francis Marion provides a vivid example of the
kind of virtues Americans must cultivate if we intend to
remain free.

And speaking of cultivating virtue, we are happy to report
the Supreme Court today upheld the right of the Boy Scouts
to determine their own membership standards. For more
information about that case, go to
or visit our home page at http://www.claremont.org

Thomas L. Krannawitter is the Claremont Institute's
Director of Academic Programs.

Copyright (c) 2000 The Claremont Institute
To subscribe to Precepts, go to: http://www.claremont.org/1_precepts.cfm
or e-mail us at info@claremont.org .

That's all folks!

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