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Mar. 22, 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.

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Second Amendment Project Newsletter, Mar. 22, 2000

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. Kopel's analysis of "Smith & Wesson's Faustian Bargain."

Kopel firearms policy analysis now a regular feature on National Review website.

2. Emerson case update

3. "How terminology influences the gun-control debate."

by Michael S. Brown.

4. "Are Gun Control Laws Discriminatory?

Creating economic barriers to gun ownership isn't the solution"

by Markus Funk.


1. Kopel's analysis of "Smith & Wesson's Faustian Bargain."

For a line-by-line analysis of Smith & Wesson's deal with Bill Clinton, 

http://www.nationalreview.com/

comment/comment032000b.html

This is a two-part series; the link above is to part one.

The link to part two can be found in part one.

The above analysis is of the summary that was posted last Friday on the HUD website. For the full text of the legal agreement, see

http://www.isra.org/smithagree.pdf

You will need the free Adobe Acrobat Reader for this document. You can get the reader at http://www.adobe.com , after doing some wading

through the website.

Dave Kopel will be writing frequently for National Review Online, www.nationalreview.com , on firearms policy and politics for the rest of this year. The National Review website is updated almost every weekday with great new content, so check the site frequently. And, by the way, the site also has an interesting interview with John Lott:

http://www.nationalreview.com/

interrogatory/interrogatory032000.html


2. Emerson case update.

Oral argument will probably take place during the week of June 5, 2000. Emerson's attorney will give ten minutes of his half-hour argument time to the Attorney General of Alabama. The Alabama AG's amicus brief, on behalf of Emerson, argues that if the federal statute [18 U.S. Code 922(g)(9)] is properly interpreted, it only bans gun possession when restraining orders are based on a factual finding that the restrainee has committed domestic violence, or poses a credible future threat of committing domestic violence. There was no such finding in Emerson's case. If the Fifth Circuit agrees with the Alabama Attorney General, then the Circuit could rule in Emerson's favor without needing to reach the Second Amendment issue.

 


3. "How terminology influences the gun-control debate." By Michael S. Brown

Originally printed in The Oregonian

The ability to control the terminology in a debate conveys a powerful advantage. In the  national gun control debate, this principle has been expertly exploited by gun-control advocates. The emotionally charged, but technically meaningless term "assault weapon" is a case in point.

The term "assault rifle" dates from World War II Germany, where it was intended to be lighter, cheaper and less powerful than a normal rifle so that soldiers could more easily employ it in battle and carry more rounds of the smaller ammunition. These guns started life with the unimposing, but technically correct name, "machine carbine".

These fully automatic rifles of reduced power were not favored by Adolf Hitler, because his experience in World War I convinced him that rifles must fire  powerful, long-range ammunition. Only after the rifles had been produced without his permission did he angrily sanction the project, assigning the more heroic title, "assault rifle." It was a sensationalist name, chosen for propagandistic reasons. It is ironic that anti-gun groups have appropriated Hitler's dramatic term for their own purposes today.

This less-powerful, fully automatic rifle concept was adopted by the Soviets immediately after the war. The United States and other countries followed suit after military theorists decided that a less lethal weapon could be an asset on the battlefield, since a wounded soldier actually weakened the enemy forces more than one who was killed.

Civilian ownership of assault rifles has been extremely rare in the Unites States, since they are capable of fully automatic fire and have therefore been regulated to near nonexistence by the National Firearms Act of 1934. Unfortunately, weapons that look even vaguely like AK-47s are now labeled as "assault weapons" by journalists and gun control advocates, implying that a ban is needed to stop an epidemic of automatic weapons, when such a ban has already been around for over six decades.

Semi-automatic variants of the AK-47 and other assault rifles which have been stripped of their fully automatic capabilities are properly called carbines. They are sold and used for a variety of legitimate civilian purposes, including hunting. In fact, they are functionally similar to many common hunting rifles, except that they fire a less powerful cartridge.

When gun-control advocates call for a ban on "powerful assault weapons," hunters are justifiably concerned about their right to own their even more powerful hunting rifles and shotguns.

Although many experts have pointed out that "assault weapon" is a confusing and illegitimate term, it lends drama to media stories. Therefore, sound bites from gun control organizations are heavily laced with such misleading terms. Emboldened by their media victories with the term "assault weapon," anti-gun groups fabricated another new oxymoron, "semi-automatic assault weapon," to aid their attacks on other types of weapons. The new term was quickly adopted by the media, since this sinister description plays well on news programs. One reporter for NPR recently made up an even more outlandish term, "large-caliber urban assault rifle."

Where will this blatant misuse of terminology stop? Even some handguns are now miscast as "semi-automatic assault weapons."

Gun control advocates and poorly educated journalists have mislabeled many very old and ordinary firearms with intimidating, technical-sounding, multisyllable terms. The result is that the public has been led to believe that a wave of high-tech, military arms and machine guns are flooding the streets, when these weapons have been heavily restricted for decades and very rarely involved in crimes.

Anti-gun groups use these misleading messages to frighten the general public and dupe unsuspecting journalists into promoting their real agenda, which is to ban guns one class at a time rather than all at once. Prior to each attempt, they declare that they are only targeting this one class of particularly evil weapons. The definitions are kept deliberately vague, but with catchy titles, like "Saturday night specials", "junk

guns" or "assault weapons". Later, those vague definitions can be expanded to include all guns.

Since most Americans do not support total gun prohibition, the deliberate misuse of terminology is a brilliant tactic to both promote and obscure the ultimate goal.

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

Dr. Michael S. Brown is a Vancouver, Wash., optometrist who also moderates an e-mail list for discussion of gun issues in Washington state. His e-mail address is mb [at] e-z.net.


4. "Are Gun Control Laws Discriminatory?

Creating economic barriers to gun ownership isn't the solution"

by Markus Funk

Talk with a serious gun-control advocate about methods used to make Gun ownership more difficult, and you may hear an argument that runs something like this: "Well, if we increase the prices of guns and bullets, those people will not be able to afford them; after all, those people are the ones who commit the greatest percentage of crimes." Who is this person referring to when he/she says "those people"? The answer is clear--minorities and the poor. Since substituting "blacks" for "those people" clearly renders the statement racist and patronizing (not to mention unconstitutional), gun control advocates, intent on making gun-ownership more costly, have devised a variety of legislative means to camouflage their true motivations. Such legislation merely represents a continuation of gun-control advocates'

long-standing affair with racial and socioeconomic discrimination.

WHAT ARE MELTING-POINT LAWS?

In 1990, an estimated daily average of 25 people were murdered with handguns, 33 women were raped at gunpoint, 575 people were the victims of armed robberies, and 1,116 people were assaulted with a gun in the United States. One of the methods that some states have opted for in an attempt to Bridle such illegal firearm violence is the use of "melting-point laws." The Illinois, South Carolina, Hawaii and Minnesota legislatures have adopted rigid melting-point schemes which are designed to remove so-called "Saturday Night Specials" from the market; they basically do this by outlawing the sale of all handguns which melt at set temperatures ranging from 800 to 1000 degrees Fahrenheit, or which don't have a certain tensile strength (resistance of the metal to longitudinal stress).

The net effect on the handgun market is hard to determine precisely. However, in South Carolina, the melting-point laws have thus far resulted in bans on approximately ten percent of the available handguns. While the criminological soundness of such laws is open to question, one issue over which there can be no dispute is that the handguns which fail to meet the melting-point requirements are made of cheaper materials and are the least expensive.

While there are manufacturers that produce handguns which both meet the melting-point standards and are less expensive than the premium makes, the sub-group of guns banned by the melting-point laws is the most affordable, and therefore the most accessible, segment of the handgun market. Melting-point laws take less expensive guns off the market, and while there is no shortage of expensive guns, most poor citizens cannot afford to buy them and must make due with what they can afford--namely, Saturday Night Specials.

A handgun can often inspire a feeling of security and safety in a person living in a crime-ridden segment of society, and inexpensive handguns can provide affordable and reliable protection to lower income individuals.

Moreover, it is precisely these lower income individuals who are the most frequent victims of crime. As Florida State Criminology Professor and author Gary Kleck puts it, "Gun ownership costs more money than simple measures such as locking doors, having neighbors watch one's house, or avoidance behaviors such as not going out at night, but it costs less than buying and maintaining a dog, paying a security guard, or buying a burglar alarm system. Consequently, it is a self-protection measure available to many low-Income people who cannot afford more expensive alternatives." Although handgun violence undeniably is a serious problem in American society, preventing those who by law have the right to own a handgun from doing so on the basis of socioeconomic considerations simply cannot be the solution. Both the Constitution, as it is interpreted, and the history of the United States grant the citizens the right to own a handgun. All of the states and several territories of the United States, as well as the federal government itself, recognize the sale of firearms as lawful activity.

We are, therefore, forced to consider the troubling prospect that melting-point laws and similar legislative efforts, such as Senator Moynihan's proposed bullet-tax, are instituted with the intention of increasing gun-prices and purposefully reducing the poor citizens' access to handguns, removing from them a self-defense option open to wealthier citizens. And while this prospect may be troubling, it is certainly not unprecedented in the history of the United States.

AMERICAN GUN CONTROL: A HISTORY OF DISCRIMINATION

One undeniable aspect of the history of gun control in the United States has been the conception that the poor, especially the non-white poor, can't be trusted with firearms. Keeping arms away from blacks has always been a concern of white legislators; in fact, the first ever mention of blacks in Virginia's laws was a 1644 provision barring free blacks from owning firearms, and early firearm laws were often enacted for the sole purpose of preventing immigrants, blacks, and even agrarian agitators, from owning guns.

Evidently, the intention of these lawmakers was to restrict the availability of arms to both free blacks and slaves to the extent that the restrictions were consistent with the regional ideas of safety. As U.S. Supreme Court Chief Justice Taney, writing for the majority in the infamous 1857 Dred Scott decision, put it, "[if blacks were] entitled to the privileges And immunities of citizens, ...it would give persons of the Negro race, who were recognized as citizens in [all of the states] of the union, the right...to keep and carry arms wherever they went... inevitably producing discontent and insubordination among them, and endangering the peace and safety of the state...."

Reflecting this attitude, Tennessee was the state that first attempted to utilize creative draftsmanship to prevent gun ownership by blacks in the 1870's. Tennessee barred any sale of handguns except the "Army and Navy" guns which were already owned by ex-Confederate soldiers. Since the poor Freedmen could not afford these expensive firearms, the "Army and Navy Law" can be considered the predecessor of today's melting-point laws.

Following the Civil War, several southern legislatures adopted comprehensive regulations which were known as the "Black Codes," because, fearful of race war and retribution, the mere sight of a black person with a gun was terrifying to whites. These codes denied the newly freed men many of  the rights that were enjoyed by whites. In 1867, the Special Report of the Anti-Slavery Conference noted that under the Black Codes, blacks were "forbidden to own or bear firearms, and thus were rendered defenseless against assaults." By way of example, the Mississippi Black Code contained the following provision: "Be it enacted... [t]hat no freedman, free Negro or mulatto, not in the military... and not licensed to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition... and all such arms or ammunition shall be forfeited to the former...." [For a discussion of Dred Scott, see The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev. 1359, by Dave Kopel. http://www.davekopel.com/2A/LawRev/19thcentury.htm .]

Legislative intent to disarm blacks can also be found in the voiding of a 1941 conviction of a white man, where a Florida Supreme Court Justice stated that "The [gun-control act] was passed for the purpose of disarming the Negro laborers . . . [it was] never intended to be applied to the white population." [Watson v. Stone, 148 Fla. 516, 450 So.2d 700, 703 (1941) (Buford, J., concurring specially).]

But blacks aren't the only ones whom legislators wanted to disarm; in the nineteenth century, southern states also placed restrictions on gun-ownership for certain "undesirable" whites. For example, the 1911 Sullivan Law was passed to keep guns out of the hands of immigrants (chiefly Italians--in the first three years of the Sullivan Laws, roughly 70 percent of those arrested had Italian surnames). Why single out foreigners? The answer can perhaps be found in the popular press of the time. The New York Tribune, for example, grumbled about pistols found "chiefly in the pockets of ignorant and quarrelsome immigrants of law-breaking propensities," and the New York Times pointed out the affinity of "low-browed foreigners" for handguns.

The more things change, the more they stay the same--today's melting-point laws arguably reflect the old American prejudice that lower classes And minorities cannot be trusted with weapons. While the legislative bias which originated in the South may have changed in form, legislation like the melting-point laws evidences that it apparently still exists. But pro-gun groups are not the only ones to acknowledge this unfortunate reality.

The gun control advocate and journalist Robert Sherrill frankly admitted that the Gun Control Act of 1968 was "passed not to control guns but to control blacks," and Barry Bruce-Briggs, writing in The Public Interest, stated in no uncertain terms that "it is difficult to escape the conclusion that the Saturday Night Special is emphasized because it is cheap and it is being sold to a particular class of people. The name is sufficient evidence. The reference is to 'Niggertown Saturday Night.'"

THE SOCIAL CONTRACT, AND CHOICES FOR SELF DEFENSE

Liberal theorists' differing political interpretations of the right to self-preservation notwithstanding, it seems axiomatic that the government was (and is) instituted primarily to secure individuals from threats to  their personal safety. Social contract theory is based on the notion that individuals agree to give up certain natural rights to liberty in return for political rights, so as to better protect their interest in self-preservation and personal prosperity through benefits which only the state can provide.

In creating a national government of enumerated powers subject to Numerous express limitations, the Constitution specifies the exchange of rights and powers that are made. The primary question, therefore, becomes whether the government has shown that it has been able to sufficiently protect the citizens from crime so as to make the possession of firearms for self-defense unnecessary. Given nationwide crime rates, it seems clear that the government cannot show that it is able to protect the citizenry from criminals, and, thus, social contract theory indicates that the government cannot justify taking away the citizen's right to defend themselves in the way they see fit.

Combining the fundamental right to self-preservation with the basic postulate of liberal theory, which states that people surrender their natural rights only to the extent that they are recompensed with more effective political rights, leads to the conclusion that every gun control law must be justified in terms of the law's contribution to the personal security of the citizenry. Victims must be able to defend themselves against criminals as soon as crime strikes, and the ability to defend oneself is much more critical in poor and minority neighborhoods which are ravaged by crime and do not have adequate police protection. Since the courts have consistently ruled that the police have no duty to protect the individual citizen, and that there is, as the Supreme Court put it, "no constitutional right to be protected by the state against being murdered by criminals or madmen," citizens, regrettably, are put in the position of having to defend themselves. While the deterrent effect of the police surely wards off many would-be criminals (particularly in areas where police patrol more--i.e., affluent areas), the many citizens who need personal protection are forced to face the reality that the police do not and cannot function as bodyguards for ordinary people. Therefore, individuals must remain responsible for their own protection, with the police providing only an auxiliary general deterrent.

Legislation such as the melting-point laws are intended to prevent the Poor from possessing a firearm even though the poor are disproportionately victims of crime. What compounds this situation is the fact that the poorer areas of cities (where most of the crime occurs) rarely get the same police protection that the more affluent areas get (where the least crime occurs). Therefore, any gun control which takes cheaper guns off the market, and thereby prevents the poor from obtaining a handgun, is arguably doubly unfair. Like it or not, gun ownership is legal in most parts of the country, and as long as we find racial and socioeconomic discrimination by our lawmakers offensive (and have a constitution which makes it illegal), there can be no place for laws whose primary effect is to deprive the poor of their legal right to choose the same means of protection available to those who can more easily afford it.

----

Markus Funk is a graduate student at Oxford.


 

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