July 26, 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 26, 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. Kopel on falsified British crime statistics, and gun control
2. Recommended links. From Weekly Standard, National Review, Salon,
much more.
3. Statistics on household accidents.
4. Pope John Paul II on self-defense.
5. Kopel article in Chronicles, on a firearms exception to
the Fourth Amendment.

1. New Kopel article:
Fear in Britain. They have no guns - so they have a lot of crime. National Review Online. July 18, 2000. With Drs. Paul Gallant & Joanne Eisen.

2. Recommended links

Russian Roulette with Cops' Lives. Politicizing the safety of our police officers.
Michael F. Cannon.

Taking the Second Amendment Seriously.
Finally, and for good reason, a gun control statute has been struck down as unconstitutional.
The Weekly Standard. July 24, 2000.
By Nelson Lund

"The ATF fired first"
Interview with Dan Gifford, Producer of "Waco: The Rules
of Engagement."
July 25, 2000

Excellent but little-known firearms law website. Includes Laws, Supreme Court Cases, State Court Cases, Other Court Cases, Hearings, ATF records issues, Historical ATF forms, GAO, Links, Jim Jeffries' Articles, AG Opinions.

Unified Sportsmen of Florida sue South Miami for passing mandatory trigger lock ordinance in violation of state preemption law.
-NRA sues to block South Miami law. Orlando Sentinel.
-County to weigh gunlock proposal. NRA Sues to Block South Miami Law
Miami Herald. July 21, 2000.

Ohio judges enjoins enforcement of state law against concealed handgun carrying.
-Ohio's gun laws being challenged by four workers
Cinn. Enquirer, July 18, 2000
-Second Amendment Foundation press release:

MILLION MOM MARCHER charged with attempted murder with a firearm.

The Florida Times-Union
July 18, 2000
Have gun, will not fear it anymore
By Paul Pinkham.
"Susan Gonzalez was afraid of guns until the night she and her husband became robbery victims and she had to use a gun to save their lives. She shot and killed one of the robbers and now she's never far from a gun."

Article on Priests, self-defense, and guns.
Washington Post, July 15.

3. Consumer Product Safety Commission

a. Recall Notice for Trigger Locks

b. Accident Data for household items.
Data for:
1. Child Nursery Equipment and Toys Accident Rates by Age
2. Sports & Recreational Equipment Injuries by Age and Sex
3. Home, Heating, Plumbing, and Appliance related injuries by cause, age and rate
4. Furniture, furnishings, household, and personal use items accident injury rates by age
5. Home, Work Tools and Misc. items accident injury rates by Age

4. Pope John Paul II on Self-defense

From the 1995 Encyclical Letter EVANGELIUM VITAE:

"....Christian reflection has sought a fuller and deeper understanding of what God's commandment prohibits and prescribes. There are in
fact situations in which values proposed by God's Law seem to involve a genuine paradox. This happens for example in the case of legitimate
defense, in which the right to protect one's own life and the duty not to harm someone else's life are difficult to reconcile in practice.
Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defense."

"...legitimate defense can be not only a right but a grave duty for someone responsible for another's life, the common good of
the family or of the State. Unfortunately, it happens that the need to render the aggressor incapable of causing harm
sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose actions brought
it about, even though he may not be morally responsible because of a lack of the use of reason."

5. No Firearms Exception to the Fourth Amendment.
From the "Cultural Revolutions" sections of Chronicles magazine.
August 2000, pp. 7-8.

By Dave Kopel

The Supreme Court attracts the most attention when it does something new, or does something so old that it seems new. For example, the decision last May in the Morrison case-declaring that Congress had no authority to enact the Violence Against Women Act under the guise of regulating interstate commerce-got lots of deserved media attention. Since 1995, the Supreme Court has begun some tentative enforcement of the Constitution's limitations on the powers granted to Congress. Since the Supreme Court had ignored this part of the Constitution from 1937 to 1995, the Supreme Court's renewed attention to the Enumerated Powers Doctrine does merit media attention.

But some of the Supreme Court's most important work is performed when the Court refuses to do something new-when the Court declines to create an "innovative" exception to constitutional rights. Thus, the most important Bill of Rights decision of the 1999-2000 Supreme Court Term came when the Court refused an invitation to invent a loophole that would have nearly destroyed the Fourth Amendment, which prohibits unreasonable searches and seizures.

In Florida v. J.L., an anonymous telephone tipster had claimed that young black male wearing a plaid shirt, and standing at a certain bus stop, was carrying a gun. Some police officers went to the bus stop, and saw three young black males, one with a plaid shirt. They frisked him, and found a gun.

Under existing Fourth Amendment doctrine, the search was plainly unconstitutional. The teenager, a fifteen-year-old, had not been doing anything illegal or suspicious, or which would make a police officer afraid about safety. The tipster was completely anonymous, and had said nothing beyond a bare accusation, so there was no way to evaluate the tipster's credibility or basis of knowledge.

After the Florida trial court, following current doctrine, suppressed evidence of the gun (since the gun had been illegally seized), the Florida Attorney General appealed the case, eventually reaching the U.S. Supreme Court. There, the Attorney General argued that there should be a "firearms exception" to the Fourth Amendment. Because guns are so dangerous, the Attorney General reasoned, searches for guns should not have to meet ordinary Fourth Amendment standards.

Writing for a unanimous Supreme Court, Justice Ruth Bader Ginsburg disagreed. Her opinion noted how easy it would be for citizens to be harassed if anonymous tips about guns could, by themselves, serve as the basis for an anonymous stop and frisk.

In the 1968 case Terry v. Ohio, the Supreme Court created a large Fourth Amendment loophole by allowing police officers to stop and frisk people who seemed to be acting in a suspicious manner. Although the Terry case was premised on the need for officer safety, in case the suspicious person were a criminal who might use a gun against the officer, the Terry case became the foundation for dozens of new Fourth Amendment exceptions, in situations having little to do with officer safety. Had the Florida Attorney General prevailed in Florida v. J.L., the case would have become the foundation of many more exceptions to the Fourth Amendment.

Although the J.L. case involved a frisk of a pedestrian, there would have been immediate pressure to apply the "firearms exception" to searches of automobiles, businesses, and homes. All over the country, prosecutors would have argued, sometimes with success, that the Fourth Amendment should also disappear in the alleged presence of other dangerous things-such as knives, brass knuckles, or drugs.

And since ordinary Fourth Amendment restrictions would not apply, mere assertions-rather than probable cause or reasonable suspicion-would have become the basis for searches, and everyone would be in jeopardy of being searched at whim.

The Supreme Court's swift and unanimous ruling may signal that the Court is unwilling to let political hysteria over guns be used to weaken the Bill of Rights. If so, today's Court is wiser than the Supreme Courts of the 1920s (when fear of communism was allowed to trump the First Amendment) or the 1980s (when the "drug war" was allowed to degenerate into a war on the Constitution).

Not since World War One has there been a Democratic President so aggressively hostile to the Bill of Rights, so it was unsurprising that the U.S. Solicitor General filed an amicus brief in favor of the "firearms exception."

What was surprising, however, was the broad collection of amici who wrote in support of the Fourth Amendment. The American Civil Liberties Union and the National Association of Criminal Defense Lawyers supplied amicus briefs, as they often do in Fourth Amendment cases. But so did the Rutherford Institute, which focuses mainly on freedom of religion. The National Rifle Association joined with the Independence Institute (a free-market think tank), in a brief which I co-authored, to point out that firearms carrying is common and legal in most the United States, and not inherently suspicious. (Available at http://i2i.org/SuptDocs/Crime/Briefs/JL.htm.)

Even the Southern Poverty Law Center, which has spent much of the last decade raising direct mail revenue from credulous donors panicked about "militia terrorism," contributed an amicus brief on J.L.'s behalf.

Grover Norquist, head of Americans for Tax Reform, has observed the growth of a "Leave Us Alone Coalition"-in which disparate people come together to uphold principle that the government should leave people alone. People such as homeschoolers, gun owners, and hemp activists are realizing that protecting the lifestyles of people they don't like is the best way to ensure protection for their own lifestyle. Florida vs. J.L. was a great victory for the Bill of Rights. As groups such as J.L.'s very diverse amici come to understand their common interest in protecting every single one of the Bill of Rights, there will be more victories for the Constitution.

That's all folks!

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