Feb. 7, 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
of past issues.
Second Amendment Project Newsletter. Feb. 7, 2000.
The Second Amendment Project is based at the Independence
Institute, a free-market think tank in Golden, Colorado.
Table of Contents for this issue1. Special Legal Update: Emerson and Waco cases.
2. Notable web publications: New work from legal scholars.
3. Prize-winning student essay on Columbine.
4. H.L. Mencken on gun control.
1. Legal Update.
a. Emerson case.
All the briefs have now been filed in the case of United States v.
currently before the Fifth Circuit Court of Appeals.
Here is a guide to where to find Emerson briefs on the web:
Independence Institute brief, written by Dave Kopel. Uses state
texts to argue that the Second Amendment guarantees an individual
Second Amendment Foundation's Emerson site. Contains the government
Brief and all pro-government amici briefs. (Of these, the Yassky
brief is the best.) Also contains public defender's brief for
Emerson, and amicus briefs of the Second Amendment Foundation and
the Citizens Committee for the Right to Keep and Bear Arms. The
site will eventually contain all Emerson briefs.
Heartland Institute and Ethan Allan Institute brief.
Written by Southern Illinois University law professor
Brannon Denning. Deconstructs the lower federal court cases
asserting that the Second Amendment is not an individual right.
Texas Justice Foundation brief. Written by Stephen Halbrook.
Focus on the language of the Second Amendment, and other
material from the Early Republic.
Gun Owners Foundation. Written by James Jeffries.
Surveys the scholarly literature on the Second Amendment.
Very useful as a bibliography, besides being a good brief.
National Rifle Association. By Nicholas Johnson & Robert Dowlut.
Analysis of Supreme Court and lower court decisions.
http://www.nraila.org From there, browse for the Emerson brief.
Among the briefs that have not yet been posted on the web are those
Academics for the Second Amendment, Law Enforcement Alliance of
Jews for the Preservation of Firearms Ownership/Southern States
b. Waco case.
The Supreme Court has granted certiorari in the Waco criminal case!
The case is:
Jaime Castillo, et al., Petitioners v. United States (No. 99-658).
The only issue in the case is interpretation of a federal statute
imposing a lengthy sentence enhancement (up to 30 extra years, which
the Branch Davidians in fact received), for use of a machine gun
At trial, the jury acquitted all the Branch Davidians of murder, but
several of them of manslaughter. (The jury was allowed to consider
self-defense for the murder charge, but not for the manslaughter
The jury found that the Davidians had used firearms, but the jury
no findings about what type of firearm.
The maximum federal sentence for manslaughter is 10 years. At
federal district judge Walter Smith gave most of the Branch
full ten years, plus 30 additional years (consecutive to the 10) for
using a machine gun in a violent crime.
The sentence enhancement statute is 18 U.S.C. § 924(c)(1).
The Supreme Court will decide whether the sentence enhancement
statute requires that the defendant be indicted by a grand jury
for violating the statute, and whether the statute requires that
the jury find beyond a reasonable doubt that the defendant used a
The case comes as an appeal from the Fifth Circuit Court of Appeals.
The brief for the petitioner briefs is due on Feb. 20.
The United States brief due on March 29.
Each of the Waco defendants has his or her own attorney. Jamie
the lead defendant, is represented by Stephen Halbrook.
Halbrook has previously won two Supreme Court decisions by a 5-4
first case, U.S. v. Thompson/Center, was a statutory interpretation
involving the assembly of firearms; the second case, Printz & Mack
negated the Brady Act's mandate that local sheriffs perform a
background check on gun buyers.
2. Notable items on the web. This week's list focuses on items by
John Lott (Law, Yale), "Creating Hysteria Over Guns." Wash. Times,
Jan. 31, 2000. One of Lott's best op-eds ever.
Eugene Volokh (Law, UCLA). "Bans on Guns or Handguns—is it true that
is Seriously proposing" them? One of the many fine items on
Volokh's Gun Scholars site. Collection of numerous quotes showing
gun prohibition is the ultimate goal of many "gun control"
J.D. Turcille. "Spotlight on Antigun Lawsuits."
Very good collection of information, at the Free-Market.Net site.
J.D. Turcille. "Pinstiped Gunslingers."
On the About.com site. Good essay, plus lots of useful links.
"NFA and other gun law related info and cases." Much more than
the title suggests. No graphics, but an outstanding treasure trove
of court cases, briefs, articles, regulations, and much more on
law. Federal, state, and local materials all available. One of the
law resources on the web, and not nearly well-known enough.
3. "Essay wins trip to D.C. for teen"
This item originally appeared in the Commerce City Beacon in the
1999. (Commerce City is north of Denver.
Rick Ward's short essay will get him a free trip to Washington, D.C.
reported in last week's Beacon, this 19-year-old Lester Arnold High
student will attend a two day conference "Voices Against Violence"
to be held
Here is his essay:
I don't think that TV, music, movies and video games cause violence.
think that the parents should take time to teach their children
wrong, real from fake. Parents should tell their children that if
someone they won't get up afterwards. Take me for example. I watch
but I never wanted to drop an anvil on a duck. I listen to rap but I
go out and kill people. And it's all because my parents taught me
The government wants to outlaw guns. Why? Guns don't even know what
doing. They aren't even alive. Then people say that the kids from
suffered. Alright, it might be sad but that's the only time they'll
gun shots. But kids in my neighborhood hear them every night. Then
they wake up
to see their mom lighting up a crack pipe. I had two friends
this summer and the other one a few years ago and I didn't still say
gun didn't kill him and the knife didn't kill him. It was some fool
Violence doesn't even come from outside influences. In my opinion,
from the home.
4. "The Uplifters Try It Again." by H. L. Mencken
THE EVENING SUN, Baltimore, 1925.
The eminent Nation [note: Mencken is referring to the leftist
"The Nation"] announces with relish "the organization of a national
committee of 100 to induce Congress to prohibit the inter-State
in revolvers," and offers the pious judgement that it is "a step
forward." "Crime statistics," it appears, "show that 90% of the
that take place are committed by the use of the pistol, and every
there are hundreds of cases of accidental homicides because someone
not know that his revolver was loaded." The new law or is it to be a
constitutional amendment? We'll do away with all that. "It will not
easy," of course, "to draw a law that will permit exceptions for
officers and bank guards" to say nothing of Prohibition agents and
such legalized murderers. "But soon even these
officials may get on without revolvers."
More than once in this place, I have lavished high praise upon the
Nation. All that praise has been deserved, and I am by no means
to go back on it. The Nation is one of the few honest and
periodicals published in the United States. It stands clear of
buncombe; it prints every week a great mass of news that the
seem to miss; it interprets that news with a freedom and a sagacity
few newspaper editors can even so much as imagine. If it shut up
then the country would plunge almost unchallenged into the lowest
of Coolidgism, Rotarianism, Stantaquaism and other such bilge. It
been for a decade past, the chief consolation of the small and
minority of civilized Americans.
But the Nation, in its days, has been a Liberal organ, and its old
follies die hard. Ever and anon, in the midst of its most eloquent
effective pleas for Liberty, its eye wanders weakly toward Law. At
moments the old lust to lift 'em up overcomes it, and it makes a
brilliant and melodramatic ass of itself. Such a moment was upon it
it printed the paragraph that I have quoted. Into that paragraph of
over 200 words it packed as much maudlin and nonsensical blather, as
much idiotic reasoning and banal moralizing, as Dr. Coolidge gets
speech of two hours' length.
The new law that it advocated, indeed, is one of the most absurd
specimens of jackass legislation ever heard of, even in this
legislative donkeyism. Its single and sole effect would be to
enormously all of the evils it proposes to put down. It would not
pistols out of the hands of rogues and fools; it would simply take
out of the hands of honest men. The gunman today has great
everywhere. He has artillery in his pocket, and he may assume that,
the large cities, at least two-thirds of his prospective victims are
unarmed. But if the Nation's proposed law (or amendment) were passed
enforced, he could assume safely that all of them were unarmed.
Here I do not indulge in theory. The hard facts are publicly on
in New York State, where a law of exactly the same tenor is already
the books the so-called Sullivan Law. In order to get it there, of
course, the Second Amendment had to be severely strained, but the
uplifters advocated the straining unanimously, and to the tune of
hosannas, and the courts, as usual, were willing to sign on the
It is now a dreadful felony in New York to "have or possess" a
Even if one keeps it locked in a bureau drawer at home, one may be
to the hoosegow for ten years. More, men who have done no more are
bumped off. The cops, suspecting a man, say, of political heresy,
house and look for copies of the Nation. They find none, and are
but at the bottom of a trunk they do find a rusted and battered
revolver. So he
goes to trial for violating the Sullivan Law, and is presently being
analyzed by the uplifters at Sing Sing.
With what result? With the general result that New York, even more
Chicago, is the heaven of footpads, hijackers, gunmen and all other
armed thugs. Their hands upon their pistols, they know they are
Not one citizen out of a hundred that they tackle is armed for
license to keep a revolver is a difficult business, and carrying one
without it is more dangerous than submitting to robbery. So the
flourish and give humble thanks to God. Like the bootleggers, they
hot and unanimous for Law Enforcement.
To all this, of course, the uplifters have a ready answer. (At
ready answers, indeed, they always shine!) The New York thugs, they
are armed to the teeth because New Jersey and Connecticut lack
Laws. When one of them wants a revolver all he has to do is to cross
river or take a short trolley trip. Or, to quote the Nation, he may
"simply remit to one of the large firms which advertise the sale of
weapons by mail." The remedy is the usual dose: More law. Congress
to "prohibit the inter-State traffic in revolvers, especially to bar
It is all very familiar, and very depressing. Find me a man so vast
imbecile that he seriously believes that this prohibition would
What would become of the millions of revolvers already in the hands
the American people if not in New York, then at least everywhere
(I own two and my brother owns at least a dozen, though neither of
has fired one since the close of the Liberty Loan drives.) Would the
cops at once confiscate this immense stock, or would it tend to
concentrate in the hands of the criminal classes? If they attempted
confiscation, how would they get my two revolvers lawfully acquired
possessed without breaking into my house? Would I wait for them
or would I sell out, in anticipation, to the nearest pistol
The first effect of the enactment of such a law, obviously, would be
make the market price of all small arms rise sharply. A pistol which
now worth, second-hand, perhaps $2, would quickly reach a value of
or even $20. This is not theorizing; we have had plenty of
with gin. Well, imagining such prices to prevail, would the
of men surrender to the Polizei, or would they sell them to the
bootleggers? And if they sold them to the bootleggers, what would
of them in the end: would they fall into the hands of honest men or
the hands of rogues?
But the gunmen, I take it, would not suffer from the high cost of
artillery for long. The moment the price got really attractive, the
themselves would begin to sell their pistols, and with them the
corps of Prohibition blacklegs, private detectives, deputy sheriffs,
other such scoundrels. And smuggling, as in the case of alcoholic
beverages, would become an organized industry, large in scale and
in profits. Imagine the supplies that would pour over the long
and Mexican borders! And into every port on every incoming ship!
Certainly, the history of the attempt to enforce Prohibition should
even uplifters pause. A case of whisky is a bulky object. It must be
transported on a truck. It can not be disguised. Yet in every
city today a case of whisky may be bought almost as readily as a
shoes despite all the armed guards along the Canadian border, and
the guard ships off the ports, and all the raiding, snooping and
murdering everywhere else. Thus the camel gets in and yet the
of the new anti-pistol law tell us that they will catch the gnat! Go
tell it to the Marines!
Such a law, indeed, would simply make gun-toting swagger and
fashionable, as Prohibition has made guzzling swagger and
When I was a youngster there were no Prohibition agents; hence I
so much as drank a glass of beer until I was nearly 19. Today, Law
Enforcement is the eighth sacrament and the Methodist Board of
Temperance, Prohibition and Public Morals is itself the authority
the sad news that the young of the land are full of gin. I remember,
my youth, a time when the cops tried to prohibit the game of catty.
once every boy in Baltimore consecrated his whole time and energy to
Finally, the cops gave up their crusade. Almost instantly catty
The real victim of moral legislation is almost always the honest,
law-abiding, well-meaning citizen what the late William Graham
called the Forgotten Man. Prohibition makes it impossible for him to
take a harmless drink, cheaply and in a decent manner. In the same
the Harrison Act puts heavy burdens upon the physician who has need
prescribing narcotic drugs for a patient, honestly and for good
ends. But the
drunkard still gets all the alcohol that he can hold, and the drug
still full of morphine and cocaine. By precisely the same route the
new law would deprive the reputable citizen of the arms he needs for
protection, and hand them over to the rogues that he needs
Ten or fifteen years ago there was an epidemic of suicide by
of mercury tablets. At once the uplifters proposed laws forbidding
sale, and such laws are now in force in many States, including New
The consequences are classical. A New Yorker, desiring to lay in an
antiseptic for household use, is deprived of the cheapest, most
convenient and most effective. And the suicide rate in New York, as
elsewhere, is still steadily rising.
(Copyright, 1925, by The Evening Sun. Republication without credit
As always, the Independence Institute website contains
extensive information on:
Criminal Justice and the Second Amendment:
The Columbine High School murders:
The Waco murders: http://i2i.org/Waco.htm
The Independence Institute's on-line bookstore. Start your
browsing at the Second Amendment section:
That's all folks!
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