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June 9, 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.

The Second Amendment Project is based at the Independence

Institute, a free-market think tank in Golden, Colorado.

http://i2i.org.

No issue next week.


Table of Contents for this issue

1. New Kopel articles.

2. Supreme Court strikes down Waco sentences.

3. Colorado Legislative Update.

4. Links Extravaganza.

5. The Politicians' Guide to Gun Control (Humor).

6. Lawrence Reed essay.


1. New Kopel articles

Why D-Day Mattered. National Review Online, June 6, 2000.

http://www.nationalreview.com/d-day/d-daykopel.html

In the print version of the June 6 Weekly Standard: Spin Control at Columbine.

The final report on the shootings fails to answer the important questions.

Tune Out, Light Up. In terms of destroying years of life, television is far worse than tobacco. National Review Online, May 29, 2000.

http://www.nationalreview.com/comment/comment052900a.html


2. U.S. SUPREME COURT IN WACO CASE UPHOLDS RIGHT TO JURY TRIAL OF FIREARM TYPES IN GUN CONTROL ACT

The U.S. Supreme Court unanimously decided today in Castillo et al. v. United States that firearm types defined in the federal Gun Control Act are elements of offenses that must be alleged in the indictment and decided by the jury beyond a reasonable doubt. The case involves the 30-year sentences imposed on Branch Davidians who escaped from the tragic fire near Waco, Texas, in 1993. They were charged with and convicted of carrying or using a "firearm" in a crime of violence during the BATF raid. 18 U.S.C. § 924(c) makes this a 5-year offense, but the sentencing judge decided that "machineguns" were used and imposed a 30-year sentence.

Stephen P. Halbrook argued the case for the imprisoned Davidians in the Supreme Court on April 24. Today's 9-0 opinion, authored by Justice Breyer, held that whether a gun is a "firearm," "machinegun," or other listed weapon is an element of the offense and not a sentencing factor. The Court agreed at the outset that "treating facts that lead to an increase in the maximum sentence as a sentencing factor would give rise to significant constitutional questions. . . . Here, even apart from the doctrine of constitutional doubt, our consideration of § 924(c)(1)'s language, structure, context, history, and such other factors as typically help courts determine a statute's objectives, leads us to conclude that the relevant words create a separate substantive crime." The statute provides that whoever, during and in relation to any crime of violence, "uses or carries a firearm, shall be sentenced to imprisonment for five years, and if the firearm is a . . . machinegun, . . . to imprisonment for thirty years." First, this language can be read "as simply substituting the word 'machinegun' for the initial word 'firearm'; thereby both incorporating by reference the initial phrases that relate the basic elements of the crime and creating a different crime containing one new element, i.e., the use or carrying of a 'machinegun' during and in relation to a crime of violence." The structure clarifies any ambiguity in that carrying or using a firearm is clearly an offense, and the machinegun language appears in the same sentence without being broken up into subsections.

Second, "we cannot say that courts have typically or traditionally used firearm types (such as 'shotgun' or 'machinegun') as sentencing factors . . . ." The Court emphasized that "the difference between carrying, say, a pistol and carrying a machinegun . . . is great, both in degree and kind." Several provisions of the Gun Control Act distinguish firearm types in defining offenses. Here, machinegun use is punishable by six-times greater imprisonment than firearm use.

Third, determination of the issue by the jury rather than a judge does not complicate a trial or risk unfairness. Indeed, "in determining whether a defendant used or carried a 'firearm,' the jury ordinarily will be asked to assess the particular weapon at issue as well as the circumstances under which it was allegedly used." Leaving it to the judge to decide whether a machinegun was used "might unnecessarily produce a conflict between the judge and the jury." Where two weapons are allegedly used, the jury may decide that only one-such as a pistol-was used. "A judge's later, sentencing-related decision that the defendant used the machinegun, rather than, say, the pistol, might conflict with the jury's belief that he actively used the pistol, which factual belief underlay its firearm 'use' conviction."

"There is no reason to think that Congress would have wanted a judge's views to prevail in a case of so direct a factual conflict, particularly when the sentencing judge applies a lower standard of proof and when 25 additional years in prison are at stake."

Fourth, the legislative history does not support the government. The § 924(c) firearm offense was enacted in the Gun Control Act of 1968, which was amended with the machinegun clause in the Firearms Owners' Protection Act of 1986. Among other sponsors and supporters, Rep. Volkmer explained that the latter amendment "includes stiff mandatory sentences for the use of firearms, including machineguns and silencers, in relation to violent or drug trafficking crimes." Such statements "show only that Congress believed that the 'machinegun' and 'firearm' provisions would work similarly" and "seemingly describe offense conduct, and, thus, argue against (not for) the Government's position."

Fifth, "the length and severity of an added mandatory sentence that turns on the presence or absence of a 'machinegun' (or any of the other listed firearm types) weighs in favor of treating such offense-related words as referring to an element. Thus, if after considering traditional interpretive factors, we were left genuinely uncertain as to Congress' intent in this regard, we would assume a preference for traditional jury determination of so important a factual matter." The Court refers to several precedents holding that the "rule of lenity requires that ambiguous criminal statutes be construed in favor of the accused."

For the above reasons, the Court reversed the judgment of the U.S. Court of Appeals for the Fifth Circuit and remanded the case for proceedings consistent with the opinion. The effect of this is that the defendants' 30-year sentences for machinegun use must be vacated and that they should be resentenced to 5-years imprisonment for firearm use, the charge on which they were indicted and convicted.

This victory gives Halbrook a 3-0 record before the Supreme Court. He was previously the winning lead attorney in 5-4 decisions striking down part of the Brady Act (Printz v. US) and reversing BATF's interpretation of a portion of the National Firearms Act (the Thompson Center/Contender case).

The Waco case is available on the Web, at

http://supct.law.cornell.edu/supct/html/99-658.ZO.html


4. COLORADO LEGISLATIVE UPDATE

(From the Pikes Peak Firearms Coalition.)

On Friday, May 26, Governor Owens completed action on the many gun bills (pro and anti) introduced in the 2000 Colorado Legislature when he signed two and vetoed one.

He signed SB00-154 which changes the affirmative defense for carrying concealed with a permit or while traveling into "not an offense" and made it of statewide concern. This applies to people traveling into or through a jurisdiction other than their own. So, it protects people living outside of Denver, but allows Denver to treat its citizens as before.

He also signed HB00-1208 which prevents lawsuits against gun manufactures.

He vetoed HB00-1114 which would have kept the names of concealed carry permit holders private thus allowing the media to print a list of homes where firearms are likely stored to assist those criminals who will no longer be able to illegally purchase a firearm from a private party at a gun show (if the SAFE initiative passes).

A complete list of all gun bills and their description and history can be found on the PPFC web site at:

http://ppfc.org

---------

Notes on the Colorado legislature:

* The ban on frivolous anti-gun suits is the strongest in the country, because it bans private suits as well as government suits.

* Last summer, Governor Owens offered a five point gun control program. Two items on the agenda, which were supported by most Second Amendment activists, passed: re-enactment of the Colorado instant check, and a ban on straw purchases. The other items on Owens' agenda were defeated: special restrictions on gun show; handgun ban for persons 18-20; and burglar protection "safe storage" bill.

* Following the Columbine murders, Colorado became "ground zero" for the gun

prohibition lobby. The total defeat of their agenda in the Colorado legislature, coupled with the enactment of two progressive bills to protect Second Amendment rights, is a testimony to the grassroots energy and commitment of many Coloradoans who believed that innocent people should not have their civil rights taken away as some kind of symbolic scapegoating for the wicked deeds of the two Columbine criminals.


4. LINKS EXTRAVAGANZA

Firearms Controls and the Right to Keep and Bear Arms.

From the great Canadian libertarian scholar Pierre Lemieux.

http://www.pierrelemieux.org/re-RKBA.html

Texas Concealed Handgun Carriers: Law-abiding Public Benefactors.

By Sterling Burnett, National Center for Policy Analysis.

Details how Texas CCW permitees are enhancing everyone's safety. Debunks the mean-spirited distortions about Texas CCW permitees from the Violence Policy Center.

 http://www.ncpa.org/ba/ba324/ba324.html

Auto industry could follow guns, tobacco into courtroom.

By Jon Pepper / The Detroit News.

http://detnews.com/2000/autos/0006/04/b01-68127.htm

Those in Michigan cheering state assaults on the tobacco industry and gun manufacturers may want to hold their applause. The only reason automobiles aren't on the list just yet is because they remain too popular, says Victor Schwartz, general counsel to the American Tort Reform Association.

Gunfight at the Canadian Corral

By Dr. Michael S. Brown.

http://www.newsmax.com/commentmax/articles/Dr._Michael_S._Brown.shtml

Pink Pistols.

By Jonathan Rauch. First published in Salon March 14, 2000.

http://www.indegayforum.com/bios/rauch.html

Learning self-defense would go a long way toward emancipating gay men from their image -- often internalized -- of cringing weakness. Call it Pink Pistols: sponsoring gay shooting courses and helping urban homosexuals obtain licenses to carry -- in a way that gets as much publicity as possible -- might do more to prevent gay-bashings than a hate-crime law.

Independent Women's Forum

The IWF on Guns: Gun Control Hurts Women

http://www.iwf.org/news/000512d.shtml

"Million Moms" distracted attention from de facto gun ban.

By Vin Suprynowicz. May 22.

http://www.infomagic.net/liberty/vs000522.htm

Remarks Before The National Rifle Association

By House Conference Chairman J.C. Watts, Jr.

http://www.cnsnews.com/scripts/temp/Doc9307.html

***The Spike, by Robert A. Waters

Brave teenager with a gun prevents a mass murder. The national media

refuses to cover it.

http://www.frontpagemag.com/archives/politics/waters05-12-00.htm

Britain's Tough Gun Control Laws Termed Total Failure

By Peter Woolrich, Punch Magazine

http://www.FreeRepublic.com/forum/a39171442616c.htm

What No One Bothered To Tell You

About The Smith & Wesson Settlement

by Jeff Snyder. American Handgunner.

http://communities.prodigy.net/sportsrec/jeffsnyder.html

Debate: Would new requirements for gun owners save lives?

Insight. Pro/con articles. Sarah Brady's ghostwriter vs. John Lott.

June 21 1999, 4pp.

http://www.heartland.org/pdf/13281u.pdf

Firearms: A Handbook

Claremont Institute

June 1999, 15pp.

http://www.heartland.org/pdf/13284r.pdf

Misconceptions and Truth in the Gun Control Debate

American Policy Center

May 2000, 5pp.

http://www.heartland.org/pdf/1328bf.pdf

Will More Guns Mean Less Crime?

Consumers Research

December 1998, 5pp.

http://www.heartland.org/pdf/13281p.pdf


5. THE POLITICIAN'S GUIDE TO THE GUN CONTROL ISSUE

By Mike Brown

Vancouver, WA

Soliciting votes from today's turned-off, apathetic voters is tough. Like mutating bacteria, voters are becoming immune to our favorite campaign tactics. If you want to win an election, you must return to the basics. The oldest weapons in the politician's arsenal are fear and hatred. They are always effective if applied properly. The principles outlined in this guide can be applied in many ways, but the perfect issue, as you will see, is gun control.

Your goal is to make voters fear guns and hate the gun lobby. These emotions can then be transferred to your opponent. We are dealing with emotions, not facts, because people are more easily influenced through their emotions.

To promote fear of guns you must be prepared to rapidly exploit appropriate shooting incidents. The media will make this easy for you, since they are already extremely anti-gun and prone to hysterical coverage of these events. Imagine surfing a wave. If you are smart, the wave does the work and you enjoy the ride.

Make a prior arrangement with friendly media people to appear before their cameras on short notice. To avoid wasting your time, make it clear that you are not interested in non-gun violence like stabbing, beating, or arson deaths.

Prepare a statement in advance deploring the way that easy access to guns has caused the crime that has just occurred. Leave the details out and fill in the blanks when the information becomes available. As soon as possible after the crime, read your statement on camera. Ideally the victims will be innocent people, and preferably children.

Unfortunately, most shooting incidents occur between members of rival gangs or involve police officers shooting in the line of duty. Worst of all are the cases where an armed citizen defends herself from a criminal. Be patient and wait for the right event.

Your statement should invoke as many emotional images as possible, since you are trying to convince voters that this could happen to them. Use dramatic phrases like "guns flooding the streets". Of course you will say that we need to act "for the children" at least two or three times. It is useful to say that gun lobby organizations have "blood on their hands". Demonizing these groups is essential now, because later you will attempt to tie your opponent to them.

Arrange a tour of the crime scene as soon as possible. Political connections with the local authorities will pay off at this time. You and a few associates should walk around the scene looking shocked and saddened. Practice your facial expression and body language in advance. Do not allow any audio recording, since cynical comments are sometimes picked up by unnoticed microphones.

Fear is your friend. People usually fear what they don't understand, so direct your advertising at urban voters and women. These groups are least likely to have personal experience with responsible gun ownership. Even though gun crime is decreasing, saturation coverage by the media has convinced most people that it is increasing. If you can't stir up fear in this situation, you are in the wrong business.

Creating fear is not enough; you must also present yourself as a savior. Have your staff draft at least one new gun control bill. The exact wording is not important, since these bills rarely make it past the initial committee hearings. Gun control bills are feel-good legislation, so choose a title with phrases like "child safety" or "public protection".

You will be asked how your bill will reduce crime. A good response is: "It may not have a significant impact on crime, but if it saves only one child, it's worth it." If asked how your bill would have prevented a crime that you are exploiting, you can answer: "It may not have saved these innocent victims of gun violence, but it's a step in the right direction."

Gun control should be part of your regular stump speech. Use as many dramatic, emotional phrases as you have time for. Do not mention inconvenient facts, such as the ineffectiveness of gun control or lack of enforcement of current laws. If anyone brings up inconvenient facts during a question and answer session, simply talk around the question and change the subject. If you feel that you can comprehend some numbers, there are several excellent propaganda statements available from friendly anti-gun groups.

One popular factoid says you are 43 times more likely to be killed by a gun in your home than to use it for self defense. This is nonsense, of course, but tossing out a number, then quickly changing the subject, can often end a debate on a favorable note. If you are challenged later, you can say that you got the information from a reliable source.

The final part of the strategy is to tie your opponent to the gun lobby. One of the best tactics is to obtain photos or video of your opponent meeting with evil gun lobbyists. Also look for statements by the gun lobby referring to your opponent as a supporter of their misguided agenda. Pass this material to your friends in the media and stand back; they will do the rest of the job for you.

As you make use of these principles, beware of a serious problem that has embarrassed several politicians. Bodyguards have an annoying habit of flashing their guns or leaving them in inappropriate places. This reminds people that you have armed protection and makes you appear hypocritical, so take steps to prevent this from happening. Also, if you have ever used a gun for protection, deny it. We know that the elite can be trusted with guns, but voters may not share our enlightened view.

The truth has no place in politics. If you aren't willing to do what it takes to get elected, you don't deserve to hold an office.

-------------

Political satire by: Dr. Michael Brown, who is actually an optometrist in Vancouver, Washington who moderates an email list for discussion of gun issues.


6. LAWRENCE REED.

"What role, if any, should state government play in enacting gun controls to prevent juvenile gun violence incidents such as occurred in February in Mt. Morris Township, and, can such policies prevent similar incidents?"

Part of a pro/con essay series for the Michigan Information & Research Service, Inc. (MIRS).

Pro-constitution essay written by Lawrence W. Reed, President, Mackinac Center for Public Policy.

http://www.mackinac.org/

(Lawrence W. Reed is president of the Mackinac Center for Public Policy, a Midland-based research and educational organization. The views expressed here are his own, not those of the Mackinac Center, which has taken no position on gun control issues. Publications of the Mackinac Center can be accessed at www.mackinac.org .)

The heart of virtually every citizen of Michigan went out to the family of little Kayla Rolland after a fellow classmate took her life with a .32 caliber revolver on February 29 in Mt. Morris Township. As with the Columbine shootings of a year ago, we all feel pained and distraught about such senseless violence and we wonder what has gone wrong and what can be done to prevent any recurrences.

The challenge before the legislature of Michigan is to express appropriate grief and concern about these things without allowing hyped emotions, rhetorical window-dressing, or futile "quick fixes" to rule the day.

Political jockeying to prove who is most outraged by violence must not overwhelm facts, logic, and experience. At any time when passions run high in the legislature and the larger society, it's not easy for reason and sound policy to triumph over opportunism; time will tell if it's even possible on this issue in an election year. Already, we have seen entirely too much knee-jerk political posturing on all sides.

My advice to the legislature, therefore, is to calm down, pull your senses together, and above all, THINK, don't simply emote. In any rush to pass new laws, the prevailing rule should be to do only what makes sense because it works and protects lives, property and rights. It would do no honor to Kayla or other victims of public school shootings to pass laws for the purpose of scoring points in the media.

One very superficial but unfortunately popular reaction to school shootings is summarized this way: "Guns are bad, more laws are good." The actual facts are more complicated. Guns are not bad when they are not misused or when they are not accessible to people who misuse them, or when they are used harmlessly in sport or recreation; they are a positive good when they thwart crime. Laws are not good when they injure the rights, property or lives of the innocent; when they are ineffective, unenforceable, or counterproductive; or when they act as cheap political substitutes for a problem's real cure. Let's take a look at some facts about guns and gun laws.

Nationwide, according to the University of Chicago's John R. Lott, Jr., there are more than 20,000 gun-control laws that regulate everything from who can own guns and how they can be bought to where a person can possess or use them. "The biggest problem with gun-control laws," writes Lott, is that those who are intent on harming others, and especially those who plan to commit suicide, are the least likely to obey them."

The two students who committed the Columbine murders broke at least 17 state and federal weapons-control laws.

[See http://i2i.org/suptdocs/crime/columbine.htm#Violations  ] The student who shot Kayla Rolland apparently got the revolver he used from the bedroom of a fugitive being sought on drug charges. The boy's uncle was arrested on an outstanding felony warrant for concealing stolen property. This raises a question that those who push for more gun-control laws need to answer but rarely try: Can we realistically expect criminal suspects who blithely break many laws to somehow obey another gun law? If those close to Kayla, for example, don't worry about hiding a loaded weapon from a child, will they be careful to use a mandatory trigger lock?

Does the mere prevalence of guns in American society contribute to gun violence? If statistics matter, the answer is no. A study from the U.S. Centers for Disease Control and Prevention found that firearm-related deaths n the United States dropped 21 percent over the five-year period from 1993-97 and nonfatal firearm-related injuries fell 41 percent. Including all gunshot wounds reported at emergency rooms "whether intentional, accidental, or self-inflicted," the CDCP study said that gun-related deaths fell from 15.4 per 100,000 people in 1993 to about 12.1 per 100,000 people in 1997. Moreover, statistics compiled by the U.S. Justice Department's National Crime Survey reveal that 88 percent of all violent crimes do not involve firearms.

Firearms ownership in America is higher today than at the start of the decade. An estimated 80 million people own upwards of 240 million guns. What percentage of them were involved in intentional or accidental deaths in the most recent year for which data is available? Barely a negligible one one-hundredth of one percent. It is hard, writes researcher John Lott, "to think of any other item in the home that is anywhere near as prevalent and anywhere near as dangerous" that has such a low rate of death, whether intentional or accidental. Children under the age of five are more likely to drown in water buckets or die in fires that they themselves start with cigarette lighters. Much more common causes of death range from bicycle accidents to fires started by space heaters to drowning in swimming pools.

International evidence debunks the notion of any reliable relationship between gun ownership and gun violence. Switzerland, for instance, has a lower murder rate than any of the countries on its borders; it has a gun ownership rate about 2-1/2 times Germany's and a murder rate of about 40 percent less. New Zealand has twice the gun ownership rate of Australia but a murder rate about one-third less.

The Institute for Medicine asserted recently that the number of annual accidental deaths in American hospitals is 98,000-or 0.14 per physician. Using the CDCP figures for all age groups, the accidental gun-related deaths in America in 1997 numbered 1,500-or 0.00001875 per gun owner. Fortunately, no one has yet rushed to the conclusion that doctors are approximately 7,500 imes more dangerous than gun owners and that several thousand more laws are needed to reduce hospital deaths from medical errors.

While the misuse of firearms generates publicity, the proper use of them or protection rarely does. Americans use firearms for protection more than two million times each year. Ninety-eight percent of the time, they only brandish their weapon or fire a warning shot. However, each year gun-wielding citizens kill between 2,000 and 3,000 criminals in self-defense, an astounding three times the number killed by police. In a recent five-year period, the National Self-Defense Survey found that the number of legal, defensive gun uses was three to four times that of illegal, offensive gun uses-and that civilians using guns in self-defense save a minimum of 240,000 lives annually. That means, whether we want to admit it or not, that guns actually save many, many more lives than they cost.

Australia is now discovering this fact painfully. Australian gun owners at a cost to the central government of over half a billion dollars were forced to surrender 640,381 personal firearms. A full twelve-months of after-the-fact data revealed that nationwide, homicides rose 3.2 percent; assaults went up 8.6 percent; armed-robberies soared 44 percent. Homicides with firearms in the state of Victoria skyrocketed by 300 percent. Apparently, criminals are deterred by the knowledge that their intended victims may have guns and when they have reason to believe that their victims are unarmed, they don't evolve into nice people.

It so happens that the violent crime rate is 81 percent higher in states that do not have concealed-carry laws than in those that do. Robbery is 105 percent higher and murder is 86 percent higher where law-abiding citizens are denied the right to carry a concealed gun. Moreover, the FBI's annual crime figures for all 3,054 counties over a recent 15-year period show that states with the largest increases in gun ownership also had the largest drops in violent crimes.9

A frightening figure that is often bandied about is the one that says 13 children die every day from guns. They are not all innocent six year olds who would be saved by trigger locks. Eleven of those 13 deaths each day involve 15 to 19 year olds and a great many them are killed as a result of gang violence.

The value of mandatory trigger locks, often touted as an answer to gun

violence, may be routinely overstated. While it can be mandated that they be sold with each handgun, no government can require people to actually use them. Such locks are easily defeated by those who desire to misuse a weapon, while they diminish the defensive value of a gun in an emergency. It is likely that mandating trigger locks would increase innocent deaths resulting from intruders in the home since they require that the gun be unloaded, thereby offering far less protection.

Evidence is strong, based upon data emerging in the last couple of decades, that the one strategy that offers the best hope of curtailing crime and the misuse of guns is swift and strong punishment of violent offenders who use guns. It may seem strange to some advocates of more gun control laws that going after the guilty offers more promise than going after the innocent, but that's what the facts show. Rather than clogging the books with a raft of new laws, Senator Chris Dingell (D-Trenton) is precisely right when he insists that tough enforcement of the 20,000 gun laws already in existence makes the most sense.

Furthermore, Senator Dingell and Attorney General Granholm point to a program in Virginia that speeds tough punishment and aims to put gun-toting felons in federal prison for five years. That's an idea worth considering.

So is Dingell's idea of ending the custom of not prosecuting felons when they apply for gun permits and are rejected. Another positive approach is the House Republicans' proposal to hire more prosecutors to enforce existing law.

Finally, we must recognize that violence in any form occurs when individuals lack respect for the lives and property of others. Ultimately, anti-gun laws-even the effective ones-deal more with symptoms than they do with causes. We must as individuals address this on the home front as we raise and nurture our children. The values that once were the glue that held us together must be strengthened by home, church, school and institutions public and private. Parents must be given more freedom to choose the best and safest schools for their children.

In short, ridding our society of handgun violence requires that we recognize that guns are less the problem than are certain people, certain values, and uncertain laws.


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:

http://i2i.org/book.htm#Second

That's all folks!

 

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