Second Amendment Project Newsletter. Nov. 22, 2000

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.

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

Thanksgiving issue.

Table of Contents for this issue:

1. New Kopel columns. On the election.
2. Fred Barnes, on how the anti-gun issue failed in the U.S. House elections.
3. New links.
4. Libertarian Party: Football kills more students than guns.
5. Nelson Lund: Why Florida's Supremes are not the Last Word.
6. Thanksgiving: We Gather Together.

1. New Kopel Columns.

a. Illegal Ballots? Hooey. Read the statute.
National Review Online. Nov. 8, 2000.

b. The Palm Beach Legal Precedent. No cause for Dem squawking.
National Review Online. Nov. 8, 2000. 

c. The Second Amendment Score. How America voted on guns.
National Review Online. Nov. 8, 2000

2. How the House Was Won: It's the overlooked story of the election:
No Speaker Gephardt
The Weekly Standard
November 20, 2000

. . .
A final surprise emerged on Election Day. After last year's massacre at
Columbine High School in Colorado, the National Rifle Association was supposed
to have become a pariah in American politics. It hasn't. Rather, it helped
defeat Democratic incumbent David Minge in Minnesota and win the open
Democratic seat in Lansing, Michigan, for Republican Mike Rogers. NRA lobbyist
Chuck Cunningham calculates the pro-gun lobby is gaining at least 5 votes in
the House. Now, the House "will serve as our backstop for potential anti-gun
actions in the Senate possibly driven by a President Al Gore." Who would have
guessed it?

3. Links.

a. Information on resident and non-resident concealed handgun permits
in all 50 states. Covers other gun transportation and policy issues too.

b. Second Amendment Police Department.
The 2AMPD maintains an archive of articles written by
pro-freedom, pro-gun members of the law enforcement
community. The intended purpose, to counter the media fed
propaganda that all cops favor restrictive firearms

Concerning the 1993 Confrontation at the Mt. Carmel Complex Waco, Texas
John C. Danforth - Special Counsel
BTW, former Senator Danforth is rumored to be a leading candidate for
Attorney General in a Bush administration.

d. East Hartford hunting case.
Appeals court affirms trial court decision that town lacks authority
to prevent lawful hunting according to state law.
Victory for Connecticut Coalition of Sportsmen and attorney Ralph Sherman.
CCS website:

e. Stephen Halbook, review of Michael Bellesiles's book "Arming America."
"Deconstructing the Second Amendment."
November 3rd, 2000

4. News from the Libertarian Party
October 30, 2000

Football kills more students than school shootings

WASHINGTON, DC -- High school football killed as many students
last year as did guns -- which means politicians should either stop
using school shootings as an excuse to attack the Second Amendment or
start passing "football control" laws, the Libertarian Party said

"According to the latest statistics, a football is as deadly as
a gun," said Steve Dasbach, the party's national director. "So why do
first downs continue to be exalted while the Second Amendment continues
to be vilified?"

A new study from the National School Safety Center (NSSC)
reported that there were 15 "school-associated deaths" caused by
violent crime -- including guns -- during the 1999-2000 school year.

That number is unchanged from the 1998-1999 school year, when
15 students were killed by guns, according to the Centers for Disease
Control and Prevention.

There have been zero student gun deaths so far during this
school year.

By comparison, 15 high school football players died during
regular season and playoff games in 1999, according to the National
Federation of State High School Associations.

Another 11 athletes have died in high school games and
practices since late August of this year -- and that number is expected
to rise during playoffs. In addition, another 29 players this year have
suffered "catastrophic injuries" on the field, leaving them paralyzed
or seriously disabled.

These numbers have Libertarians wondering: Given the carnage on
our nation's high school football fields, why the outcry about guns --
and the utter silence about football fatalities?

"When 15 students are tragically killed by guns during a school
year, every politician and anti-gun lobbying group expresses practiced
outrage, and immediately demands new laws that infringe on the Second
Amendment," said Dasbach. "But when 15 students are tragically killed
by football, the silence is deafening.

"If the preventable death of any young person is a tragedy --
and it is -- then why wasn't there a Million Mom March demanding an end
to high school football? Why no calls from Bill Clinton for
'reasonable' football control laws? Why no saturation media coverage as
dead football players are carried off the field in stretchers? Why no
class-action lawsuits against Spaulding for manufacturing cheap
Saturday Night Special footballs?

"Could it be that politicians get more yardage attacking guns
than attacking football?"

This "outrage gap" is especially puzzling, said Dasbach,
because the Constitution doesn't guarantee an explicit right to keep
and bear footballs.

"Football is nothing more than entertainment and sport. Guns
are a Constitutionally protected civil right," he said. "While every
new gun-control law triggers a fight about the scope of the Second
Amendment, football has no such protection.

"If he wanted to, President Clinton could lobby for an absolute
ban on high school football, in order to save the lives of 15 young
people every year. The fact that he doesn't, and the fact that groups
like Handgun Control Inc. don't demand such legislation, reveals that
their real motive is not to save lives, but to advance an anti-gun
political agenda."

Of course, Libertarians wouldn't support a ban on football any
more than they support a ban on guns, said Dasbach.

"Protecting the lives of young people who play high school
football is the job of parents, school officials, and coaches, not
politicians," he said. "And protecting the Second Amendment is the job
of every American, since so many politicians have fumbled their duty to
defend the fundamental human rights -- including the right to keep and
bear arms -- guaranteed in the Constitution."

New York Post
November 20,2000


IF the Florida Supreme Court declares that selected and subjective hand recounts should be included in the tally of that state's vote for presidential electors, the nation will be told that we must now all bow before the "rule of law." Such propaganda should be skeptically received. The rule of law is not synonymous with the rule of courts, and the courts may not get the last word on what the law is.

A little historical perspective is needed here, for the courts themselves have recently been busy promoting the false idea that they are the supreme interpreters of the law. In 1992, for example, the U.S. Supreme Court declared that the American people understand that it has the authority to "speak before all others for their constitutional ideals."

This was both presumptuous and degrading. The justices are not appointed to speak for our ideals, and they have no authority to twist the Constitution so that it fits their ideals. When a court misinterprets the law, especially for its own political purposes, respect for the rule of law requires resistance to the court's opinions, not pious acquiescence.

Resistance to erroneous judicial decisions at times requires more than polite disagreement, as some of our greatest presidents have demonstrated. When the Supreme Court decided that descendants of slaves could not become American citizens, Abraham Lincoln did not meekly defer to Chief Justice Taney's constitutional ideals. Instead, he devoted all his political skill and influence to correcting the Court's perversion of the law.

Similarly, when the Supreme Court invoked the Constitution to invalidate key elements of the New Deal program, President Roosevelt told the nation that "we must take action to save the Constitution from the Court and the Court from itself."

Some of the actions Roosevelt took may have been ill-advised, but they were perfectly legal. And he was certainly right that he had an obligation to use his authority and influence to defend the Constitution, as he himself interpreted it. Roosevelt did not cravenly treat judicial opinions as though they were the law itself, but energetically opposed those opinions that he believed were wrong and destructive.

One more example. After the Supreme Court upheld the constitutionality of a regulation that curtailed the right of radio and TV broadcasters to exercise their editorial judgment, Congress passed a statute writing the regulation into law. President Reagan vetoed that bill because he concluded that it violated the First Amendment, and he explicitly rejected the Supreme Court's contrary interpretation of the Constitution.

The Florida controversies over dimpled chads and swinging doors may look petty compared with some of these examples, but the election of the president is not a trivial matter. And the Florida Legislature may soon be called upon to emulate Lincoln, Roosevelt and Reagan. Just over the horizon are scenarios in which elected officials may have to exercise their own judgment about the meaning of the law, even if the Florida courts have interpreted the law differently.
Suppose, for example, that the Florida Supreme Court compels Secretary of State Katherine Harris to accept dubious returns from selected heavily Democratic counties, and orders the slate of Gore electors to be declared the winners of the election. Additional litigation could then ensue, which might well be unresolved when the deadline for voting in the Electoral College approaches.

That situation would apparently trigger a federal statute providing that electors may be appointed in such manner as the Legislature may direct. In directing the appointment of electors, the Legislature should exercise its own independent judgment about the legal validity of any selective hand recounts endorsed by the courts.

Even if all litigation is resolved before the Electoral College deadline, Florida's Legislature may conclude that the courts applied the law incorrectly. In that case, federal law can be interpreted to authorize the Florida Legislature to direct the appointment of a different slate of electors than the one dictated by the courts.

Under these or other scenarios that can be imagined, Congress may receive two conflicting sets of electoral votes from Florida. That would generate numerous legal questions for Congress to resolve before deciding who our next president will be. Congress will decide these questions for itself, and it is therefore quite conceivable that the outcome of this presidential election will be determined by legal judgments made by legislative bodies in Tallahassee and Washington.

Would such a result be consistent with the "rule of law," even if these legislatures reject the legal opinions of the Florida courts? Let's hope that those who were so very pleased with the U.S. Senate's decision in President Clinton's trial for high crimes and misdemeanors will not suddenly decide that only courts can make valid legal judgments.

Nelson Lund is Professor of Law at George Mason University in Arlington, Va.

6. We Gather Together

One of America's greatest Thanksgiving hymns is "We Gather Together"--a song which never loses its relevance. The hymn was first sung by Dutch settlers around 1625. The song was translated in English by Edward Kremser in 1877, and has been an American standard ever since.

Lyrics vary from songbook to songbook. The lyrics below are from the New American Songbook, by Marx & Ann Oberndorffer (Chicago: Hall & McCreary, 1941).

"We gather together to ask the Lord's blessing,
He chastens and hastens His will to make known;
The wicked oppressing now cease from distressing,
Sing praises to His name - He forgets not His own.

Beside us to guide us, our God with us joining,
Ordaining, maintaining His kingdom divine,
So from the beginning the fight we were winning;
Thou, Lord, wast at our side, all glory be Thine.

We all do extol Thee, Thou Leader in battle,
And pray that Thou still our defender wilt be.
Let Thy congregation escape tribulation!
Thy name be ever praised! O Lord, make us free!"

Every week in America, many dozens of murders, rapes, robberies,
and assaults are deterred or foiled because Second Amendment activists
have done so much to restore the right to bear arms. If you have been
part of this great struggle for constitutional rights, you should take
some satisfaction from knowing how many people you have saved. Most
Second Amendment activists know that they are on the pro-choice side
of the issue. It's important to remember that for the Second Amendment,
the pro-choice side is also the same as the pro-life side. Despite
all the tribulations of fighting for freedom, Second Amendment supporters
are saving more and more lives every day. So give thanks.

That's all folks!

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